Federal Register Vol. 83, No.84,

Federal Register Volume 83, Issue 84 (May 1, 2018)

Page Range18913-19156
FR Document

83_FR_84
Current View
Page and SubjectPDF
83 FR 19155 - World Intellectual Property Day, 2018PDF
83 FR 19120 - Sunshine Act Meeting NoticePDF
83 FR 19062 - Sunshine Act NoticePDF
83 FR 19061 - Sunshine Act NoticePDF
83 FR 19126 - Sunshine Act MeetingsPDF
83 FR 19082 - Privacy Act of 1974; System of RecordsPDF
83 FR 19081 - The President's National Security Telecommunications Advisory CommitteePDF
83 FR 19087 - Privacy Act of 1974; System of RecordsPDF
83 FR 18939 - Restricted Buildings and GroundsPDF
83 FR 19090 - 30-Day Notice of Proposed Information Collection: Application for Displacement/Relocation/Temporary Relocation Assistance for PersonsPDF
83 FR 19140 - Open Meeting of the Federal Advisory Committee on InsurancePDF
83 FR 19039 - Agency Information Collection Activities: Proposed Collection; Comment Request-Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) Infant and Toddler Feeding Practices Study-2 (WIC ITFPS-2) Age 6 Extension StudyPDF
83 FR 19055 - Applications for New Awards; Assistance for Arts Education-Assistance for Arts Education Development and DisseminationPDF
83 FR 19060 - Clean Air Act Operating Permit Program; Petition To Object to Title V Permit for Wheelabrator Frackville Energy; PennsylvaniaPDF
83 FR 19073 - Proposed Collection; 60-day Comment Request; Division of Extramural Research and Training (DERT) Extramural Grantee Data Collection National Institute of Environmental Health Science (NIEHS)PDF
83 FR 19060 - Interim Registration Review Decisions and Case Closures for Several Pesticides; Notice of AvailabilityPDF
83 FR 19115 - Advisory Committee on Veterans' Employment, Training and Employer Outreach (ACVETEO): MeetingPDF
83 FR 19078 - Privacy Act of 1974; System of RecordsPDF
83 FR 19020 - Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security/ALL-039 Foreign Access Management System of RecordsPDF
83 FR 19134 - Petition for Exemption; Summary of Petition Received; Rolls-Royce plcPDF
83 FR 19041 - Notice of Public Meeting of the North Carolina Advisory Committee for a Meeting To Discuss Potential Project TopicsPDF
83 FR 19041 - Notice of Public Meeting of the Kentucky Advisory Committee; CorrectionPDF
83 FR 19041 - Notice of Public Meeting of the Illinois Advisory Committee to the U.S. Commission on Civil RightsPDF
83 FR 19091 - Low-Effect Habitat Conservation Plan for Endangered Sandhills Species at the Clements Property, Santa Cruz County, CaliforniaPDF
83 FR 19042 - Final Content Design for the Prototype 2020 Census Redistricting Data FilePDF
83 FR 19025 - Safety Zone; Philippine Sea, TinianPDF
83 FR 18943 - Safety Zone, Volvo Ocean Race Newport; East Passage, Narragansett Bay, RIPDF
83 FR 18946 - Safety Zone; Housatonic River, Milford and Stratford, CTPDF
83 FR 19095 - Notice of Intent To Prepare a Hult Reservoir and Dam Safety Environmental Impact Statement in Lane County, OregonPDF
83 FR 19093 - Public Land Order No. 7866; Partial Withdrawal Revocation, Power Site Classification Nos. 56 and 351; ColoradoPDF
83 FR 19116 - Applied Sciences Advisory Committee; MeetingPDF
83 FR 19052 - Request for Information Regarding Federal Technology Transfer Authorities and ProcessesPDF
83 FR 19113 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Proposed Collection; Comments Requested: Form CSO-005, Preliminary Background Check FormPDF
83 FR 19094 - Notice of Application for Withdrawal in Nye County, NevadaPDF
83 FR 19090 - 30-Day Notice of Proposed Information Collection: Choice NeighborhoodsPDF
83 FR 19076 - 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 19096 - Notice of Inventory Completion: U.S. Army Corps of Engineers, Kansas City District, Kansas City, MO, and the Nebraska State Historical Society, Lincoln, NEPDF
83 FR 19106 - Notice of Inventory Completion: Nebraska State Historical Society, Lincoln, NE; CorrectionPDF
83 FR 19107 - Notice of Inventory Completion: Nebraska State Historical Society, Lincoln, NEPDF
83 FR 19098 - Notice of Inventory Completion: Nebraska State Historical Society, Lincoln, NEPDF
83 FR 19099 - Notice of Inventory Completion: Discovery Place, Inc., Charlotte, NCPDF
83 FR 19100 - Notice of Inventory Completion: Nebraska State Historical Society, Lincoln, NEPDF
83 FR 19150 - Federal Acquisition Regulation: Federal Acquisition Circular 2005-98; Small Entity Compliance GuidePDF
83 FR 19117 - Notice of Information CollectionPDF
83 FR 19149 - Federal Acquisition Regulations: Audit of Settlement ProposalsPDF
83 FR 18913 - Revisions and Clarifications in Requirements for the Processing of Donated FoodsPDF
83 FR 19148 - Federal Acquisition Regulation: Liquidated Damages Rate AdjustmentPDF
83 FR 19146 - Federal Acquisition Regulation: Duties of Office of Small and Disadvantaged Business UtilizationPDF
83 FR 19145 - Federal Acquisition Regulation: Task- and Delivery-Order ProtestsPDF
83 FR 19005 - Fisheries Off West Coast States; West Coast Salmon Fisheries; 2018 Management Measures and a Temporary RulePDF
83 FR 18972 - Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Fishing Year 2018 Recreational Management MeasuresPDF
83 FR 19144 - Federal Acquisition Regulation: Federal Acquisition Circular 2005-98; IntroductionPDF
83 FR 19069 - Notice of Interest Rate on Overdue DebtsPDF
83 FR 19121 - Board MeetingPDF
83 FR 19074 - Center for Scientific Review; Notice of Closed MeetingsPDF
83 FR 19072 - National Institute on Aging; Notice of Closed MeetingPDF
83 FR 19074 - National Institute on Aging; Notice of Closed MeetingPDF
83 FR 19074 - National Library of Medicine; Notice of Closed MeetingPDF
83 FR 19044 - Foreign-Trade Zone (FTZ) 40-Cleveland, Ohio Authorization of Production Activity; Swagelok Company; (Valve Component Parts); Solon, Willoughby Hills, Highland Heights, and Strongsville, OhioPDF
83 FR 19051 - Initiation of Five-Year (Sunset) ReviewPDF
83 FR 19047 - Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative ReviewPDF
83 FR 19045 - Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Advance Notification of Sunset ReviewPDF
83 FR 18965 - Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; 2018 Allocation of Northeast Multispecies Annual Catch Entitlements and Approval of a Regulatory Exemption for SectorsPDF
83 FR 19046 - Export Trade Certificate of ReviewPDF
83 FR 18985 - Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Framework Adjustment 57PDF
83 FR 19138 - Notice of OFAC Sanctions ActionsPDF
83 FR 19075 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
83 FR 19109 - Certain Hybrid Electric Vehicles and Components Thereof; Commission Decision Not To Review an Initial Determination Granting a Joint Motion To Terminate the Investigation Based on Settlement and Patent License Agreements; Termination of the InvestigationPDF
83 FR 19068 - Agency Information Collection Request. 60-Day Public Comment RequestPDF
83 FR 19071 - Agency Information Collection Request; 60-Day Public Comment RequestPDF
83 FR 19072 - Agency Information Collection Request. 60-day Public Comment RequestPDF
83 FR 19045 - Proposed Information Collection; Comment Request; Procedures for Submitting Request for Exclusions From the Section 232 National Security Adjustments of Imports of Steel and AluminumPDF
83 FR 19044 - Proposed Information Collection; Comment Request; Procedures for Submitting Requests for Objections From the Section 232 National Security Adjustments of Imports of Steel and AluminumPDF
83 FR 18985 - Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Gulf of Maine Cod Trimester Total Allowable Catch Area Closure for the Common Pool FisheryPDF
83 FR 19118 - Agency Information Collection Activities: Proposed Collection, Comment RequestPDF
83 FR 19067 - Agency Information Collection Request. 60-Day Public Comment RequestPDF
83 FR 19069 - Agency Information Collection Request; 60-Day Public Comment RequestPDF
83 FR 19070 - Agency Information Collection Request; 60-Day Public Comment RequestPDF
83 FR 19065 - Proposed Information Collection Activity; Comment RequestPDF
83 FR 19118 - 30-Day Notice for the “NEA Panelist Profile Data”; Proposed Collection; Comment RequestPDF
83 FR 19115 - Notice of Intent To Grant Partially Exclusive Patent LicensePDF
83 FR 19066 - Proposed Information Collection Activity; Comment RequestPDF
83 FR 18934 - Special Conditions: Bombardier Inc., Model BD-700-2A12 and BD-700-2A13 Series Airplanes; Flight Envelope Protection: High Incidence Protection SystemPDF
83 FR 19122 - New Postal ProductsPDF
83 FR 19114 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Office of Disability Employment Policy Technical Assistance Centers Customer Satisfaction Study; Office of the SecretaryPDF
83 FR 19137 - Notice of Application for Approval To Discontinue or Modify a Railroad Signal SystemPDF
83 FR 18941 - Safety Zone; Sabine River, Orange, TexasPDF
83 FR 19136 - Petition for Waiver of CompliancePDF
83 FR 19137 - Petition for Waiver of CompliancePDF
83 FR 19047 - Proposed Information Collection; Comment Request; Surveys for User Satisfaction, Impact and NeedsPDF
83 FR 19116 - Aerospace Safety Advisory Panel; MeetingPDF
83 FR 19043 - Submission for OMB Review; Comment RequestPDF
83 FR 19123 - Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Market Maker Plus Program Under the Schedule of FeesPDF
83 FR 19128 - Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Relating to Regular Order Fees and RebatesPDF
83 FR 19122 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Update Rule 6090(a)(4)(ii) To Note the Expiration Date of the Pilot Program for the Listing and Trading of Options Settling to the RealVol SPY Index (“Index”)PDF
83 FR 19126 - Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change To List and Trade on the Exchange Shares of Eighteen ADRPLUS Funds of the Precidian ETFs Trust Under Rule 14.11(i), Managed Fund SharesPDF
83 FR 19130 - Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Extend the Delay for the Re-introduction of Concurrent Complex Order Auction FunctionalityPDF
83 FR 19127 - Self-Regulatory Organizations; NYSE National, Inc.; Notice of Designation of a Longer Period for Commission Action on Proposed Rule Change To Support the Re-Launch of NYSE National, Inc. on the Pillar Trading PlatformPDF
83 FR 19108 - Captain John Smith Chesapeake National Historic Trail Advisory Council Notice of Public MeetingPDF
83 FR 19141 - Agency Information Collection Activity Under OMB Review: Ethics Consultation Feedback Tool (ECFT)PDF
83 FR 19021 - Airworthiness Criteria: Special Class Airworthiness Criteria for the Yamaha Fazer RPDF
83 FR 18938 - Amendment for Restricted Area R-4403A; Stennis Space Center, MSPDF
83 FR 19135 - Agency Information Collection Activities: Requests for Comments; Clearance of a Renewed Approval of Information Collection: Special Flight Rules in the Vicinity of Grand Canyon National ParkPDF
83 FR 19134 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Reporting of Information Using Special Airworthiness Information BulletinPDF
83 FR 19113 - Sunshine Act MeetingPDF
83 FR 19065 - Advisory Committee on Immunization Practices (ACIP)PDF
83 FR 19065 - Advisory Committee on Immunization Practices: Notice of Charter RenewalPDF
83 FR 19127 - Proposed Collection; Comment RequestPDF
83 FR 19133 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: General Aviation and Air Taxi Activity and Avionics SurveyPDF
83 FR 19136 - Agency Information Collection Activities: Requests for Comments; Clearance of a Renewed Approval of Information Collection: Advanced Qualification Program (AQP)PDF
83 FR 19133 - Agency Information Collection Activities: Requests for Comments; Clearance of a Renewed Approval of Information Collection: Agricultural Aircraft Operator Certificate ApplicationPDF
83 FR 19119 - Centrus Energy Corp.; Proposed Decommissioning PlanPDF
83 FR 19062 - Proposed Agency Information Collection Activities; Comment RequestPDF
83 FR 19064 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
83 FR 19026 - Air Quality: Revision to the Regulatory Definition of Volatile Organic Compounds-Exclusion of cis-1,1,1,4,4,4-hexafluorobut-2-ene (HFO-1336mzz-Z)PDF
83 FR 19054 - Credit Union Advisory Council MeetingPDF
83 FR 19112 - Certain Strontium-Rubidium Radioisotope Infusion Systems, and Components Thereof Including Generators; Institution of InvestigationPDF
83 FR 18948 - Connect America FundPDF
83 FR 19033 - Channel Lineup Requirements-Modernization of Media Regulation InitiativePDF
83 FR 19054 - Renewal of the Advisory Committee on Commercial Remote SensingPDF
83 FR 19050 - Sodium Gluconate, Gluconic Acid, and Derivative Products From the People's Republic of China: Postponement of Preliminary Determination in the Less-Than-Fair-Value InvestigationPDF
83 FR 19109 - Certain Ammonium Nitrate From Ukraine; Institution of a Five-Year ReviewPDF
83 FR 18951 - Connect America Fund, ETC Annual Reports and Certifications, Establishing Just and Reasonable Rates for Local Exchange Carriers, Developing a Unified Intercarrier Compensation RegimePDF

Issue

83 84 Tuesday, May 1, 2018 Contents Agriculture Agriculture Department See

Food and Nutrition Service

Consumer Financial Protection Bureau of Consumer Financial Protection NOTICES Meetings: Credit Union Advisory Council, 19054-19055 2018-09074 Census Bureau Census Bureau NOTICES Final Content Design for the Prototype 2020 Census Redistricting Data File, 19042-19043 2018-09189 Centers Disease Centers for Disease Control and Prevention NOTICES Charter Renewals: Advisory Committee on Immunization Practices, 19065 2018-09096 Meetings: Advisory Committee on Immunization Practices, 19065 2018-09097 Children Children and Families Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19065-19067 2018-09127 2018-09131 Civil Rights Civil Rights Commission NOTICES Meetings: Illinois Advisory Committee, 19041 2018-09191 Kentucky Advisory Committee, 19041 2018-09192 North Carolina Advisory Committee, 19041-19042 2018-09193 Coast Guard Coast Guard RULES Safety Zones: Housatonic River, Milford and Stratford, CT, 18946-18948 2018-09186 Sabine River, Orange, TX, 18941-18943 2018-09122 Volvo Ocean Race Newport, East Passage, Narragansett Bay, RI, 18943-18946 2018-09187 PROPOSED RULES Safety Zones: Philippine Sea, Tinian, 19025-19026 2018-09188 Commerce Commerce Department See

Census Bureau

See

Foreign-Trade Zones Board

See

Industry and Security Bureau

See

International Trade Administration

See

National Institute of Standards and Technology

See

National Oceanic and Atmospheric Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19043-19044 2018-09116 2018-09117
Defense Department Defense Department RULES Federal Acquisition Regulation: Audit of Settlement Proposals, 19149-19150 2018-09169 Duties of Office of Small and Disadvantaged Business Utilization, 19146-19148 2018-09166 Federal Acquisition Circular 2005-98; Introduction, 19144-19145 2018-09162 Federal Acquisition Circular 2005-98; Small Entity Compliance Guide, 19150-19151 2018-09171 Liquidated Damages Rate Adjustment, 19148-19149 2018-09167 Task- and Delivery-Order Protests, 19145-19146 2018-09165 Education Department Education Department NOTICES Applications for New Awards: Assistance for Arts Education--Assistance for Arts Education Development and Dissemination, 19055-19060 2018-09215 Environmental Protection Environmental Protection Agency PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Definition of Volatile Organic Compounds—Exclusion of cis-1,1,1,4,4,4-hexafluorobut-2-ene (HFO-1336mzz-Z), 19026-19033 2018-09079 NOTICES Clean Air Act Operating Permit Program: Petition to Object to Title V Permit for Wheelabrator Frackville Energy; Pennsylvania, 19060 2018-09208 Interim Registration Review Decisions and Case Closures: Several Pesticides, 19060-19061 2018-09203 Federal Aviation Federal Aviation Administration RULES Restricted Areas: R-4403A, Stennis Space Center, MS, 18938-18939 2018-09101 Special Conditions: Bombardier Inc., Model BD-700-2A12 and BD-700-2A13 Series Airplanes; Flight Envelope Protection: High Incidence Protection System, 18934-18938 2018-09126 PROPOSED RULES Airworthiness Criteria: Special Class Airworthiness Criteria for the Yamaha Fazer R, 19021-19024 2018-09102 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Advanced Qualification Program, 19136 2018-09087 Agricultural Aircraft Operator Certificate Application, 19133 2018-09086 General Aviation and Air Taxi Activity and Avionics Survey, 19133-19134 2018-09088 Reporting of Information Using Special Airworthiness Information Bulletin, 19134 2018-09099 Special Flight Rules in the Vicinity of Grand Canyon National Park, 19135 2018-09100 Petitions for Exemption; Summaries: Rolls-Royce plc, 19134-19135 2018-09194 Federal Communications Federal Communications Commission RULES Connect America Fund, 18948-18950 2018-09066 Connect America Fund: ETC Annual Reports and Certifications, Establishing Just and Reasonable Rates for Local Exchange Carriers, Developing a Unified Intercarrier Compensation Regime, 18951-18965 2018-08025 PROPOSED RULES Channel Lineup Requirements: Modernization of Media Regulation Initiative, 19033-19038 2018-09065 Federal Mine Federal Mine Safety and Health Review Commission NOTICES Meetings; Sunshine Act, 19061-19062 2018-09292 2018-09293 Federal Railroad Federal Railroad Administration NOTICES Applications: Approval to Discontinue or Modify a Railroad Signal System, 19137-19138 2018-09123 Petitions for Waivers of Compliance: Association of American Railroads, 19137 2018-09120 BNSF Logistics, 19136-19137 2018-09121 Federal Reserve Federal Reserve System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19062-19064 2018-09083 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 19064-19065 2018-09082 Fish Fish and Wildlife Service NOTICES Low-Effect Habitat Conservation Plan: Endangered Sandhills Species at the Clements Property, Santa Cruz County, CA, 19091-19093 2018-09190 Food and Nutrition Food and Nutrition Service RULES Requirements for Processing of Donated Foods: Revisions and Clarifications, 18913-18934 2018-09168 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Special Supplemental Nutrition Program for Women, Infants, and Children Infant and Toddler Feeding Practices Study-2 Age 6 Extension Study, 19039-19041 2018-09216 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 19138-19140 2018-09147 Foreign Claims Foreign Claims Settlement Commission NOTICES Meetings; Sunshine Act, 19113 2018-09098 Foreign Trade Foreign-Trade Zones Board NOTICES Production Activities: Foreign-Trade Zone 40, Swagelok Co., Cleveland, OH, 19044 2018-09154 General Services General Services Administration RULES Federal Acquisition Regulation: Audit of Settlement Proposals, 19149-19150 2018-09169 Duties of Office of Small and Disadvantaged Business Utilization, 19146-19148 2018-09166 Federal Acquisition Circular 2005-98; Introduction, 19144-19145 2018-09162 Federal Acquisition Circular 2005-98; Small Entity Compliance Guide, 19150-19151 2018-09171 Liquidated Damages Rate Adjustment, 19148-19149 2018-09167 Task- and Delivery-Order Protests, 19145-19146 2018-09165 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Children and Families Administration

See

National Institutes of Health

See

Substance Abuse and Mental Health Services Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19067-19072 2018-09132 2018-09133 2018-09134 2018-09135 2018-09136 2018-09141 2018-09142 2018-09143 2018-09144 Interest Rate on Overdue Debts, 19069 2018-09161
Homeland Homeland Security Department See

Coast Guard

See

Secret Service

PROPOSED RULES Privacy Act; Implementation of Exemptions: ALL-039 Foreign Access Management System of Records, 19020-19021 2018-09195 NOTICES Meetings: President's National Security Telecommunications Advisory Committee, 19081-19082 2018-09234 Privacy Act; System of Records, 19078-19090 2018-09196 2018-09231 2018-09235
Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Displacement/Relocation/Temporary Relocation Assistance for Persons, 19090-19091 2018-09219 Choice Neighborhoods, 19090 2018-09179 Industry Industry and Security Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Procedures for Submitting Request for Exclusions from the Section 232 National Security Adjustments of Imports of Steel and Aluminum, 19045 2018-09140 Procedures for Submitting Requests for Objections from the Section 232 National Security Adjustments of Imports of Steel and Aluminum, 19044-19045 2018-09139 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

See

National Park Service

International Trade Adm International Trade Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Surveys for User Satisfaction, Impact and Needs, 19047 2018-09119 Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Advance Notification of Sunset Review, 19045-19046 2018-09151 Initiation of Five-Year Sunset Review, 19051-19052 2018-09153 Opportunity to Request Administrative Review, 19047-19050 2018-09152 Determinations of Sales at Less than Fair Value: Sodium Gluconate, Gluconic Acid, and Derivative Products from the People's Republic of China, 19050-19051 2018-08899 Export Trade Certificates of Review: Florida Citrus Exports, L.C., 19046-19047 2018-09149 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain Ammonium Nitrate from Ukraine, 19109-19112 2018-08793 Certain Hybrid Electric Vehicles and Components Thereof, 19109 2018-09145 Certain Strontium-Rubidium Radioisotope Infusion Systems, and Components Thereof Including Generators, 19112-19113 2018-09068 Justice Department Justice Department See

Foreign Claims Settlement Commission

See

United States Marshals Service

Labor Department Labor Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Office of Disability Employment Policy Technical Assistance Centers Customer Satisfaction Study, 19114-19115 2018-09124 Meetings: Advisory Committee on Veterans' Employment, Training and Employer Outreach, 19115 2018-09198 Land Land Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Hult Reservoir and Dam Safety, Lane County, OR, 19095-19096 2018-09185 Public Land Orders: Partial Withdrawal Revocation, Power Site Classification Nos 56 and 351; Colorado, 19093-19094 2018-09184 Withdrawals of Public Lands; Applications: Nye County, NV, 19094-19095 2018-09180 NASA National Aeronautics and Space Administration RULES Federal Acquisition Regulation: Audit of Settlement Proposals, 19149-19150 2018-09169 Duties of Office of Small and Disadvantaged Business Utilization, 19146-19148 2018-09166 Federal Acquisition Circular 2005-98; Introduction, 19144-19145 2018-09162 Federal Acquisition Circular 2005-98; Small Entity Compliance Guide, 19150-19151 2018-09171 Liquidated Damages Rate Adjustment, 19148-19149 2018-09167 Task- and Delivery-Order Protests, 19145-19146 2018-09165 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19117-19118 2018-09170 Intent to Grant Partially Exclusive Term License; Approvals, 19115-19116 2018-09128 Meetings: Aerospace Safety Advisory Panel, 19116-19117 2018-09118 Applied Sciences Advisory Committee, 19116 2018-09183 National Endowment for the Arts National Endowment for the Arts NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: NEA Panelist Profile Data, 19118 2018-09130 National Foundation National Foundation on the Arts and the Humanities See

National Endowment for the Arts

National Institute National Institute of Standards and Technology NOTICES Meetings: Federal Technology Transfer Authorities and Processes, 19052-19054 2018-09182 National Institute National Institutes of Health NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Division of Extramural Research and Training Extramural Grantee Data Collection National Institute of Environmental Health Science, 19073-19074 2018-09207 Meetings: Center for Scientific Review, 19074 2018-09158 National Institute on Aging, 19072-19074 2018-09156 2018-09157 National Library of Medicine, 19074 2018-09155 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Northeastern United States: Northeast Multispecies Fishery; 2018 Allocation of Northeast Multispecies Annual Catch Entitlements and Approval of a Regulatory Exemption for Sectors, 18965-18972 2018-09150 Northeast Multispecies Fishery; Fishing Year 2018 Recreational Management Measures, 18972-18985 2018-09163 Northeast Multispecies Fishery; Gulf of Maine Cod Trimester Total Allowable Catch Area Closure for the Common Pool Fishery, 18985 2018-09138 Fisheries off West Coast States: West Coast Salmon Fisheries; 2018 Management Measures and a Temporary Rule, 19005-19019 2018-09164 Magnuson-Stevens Fishery Conservation and Management Act Provisions: Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Framework Adjustment 57, 18985-19005 2018-09148 NOTICES Charter Renewals: Advisory Committee on Commercial Remote Sensing, 19054 2018-08994 National Park National Park Service NOTICES Inventory Completions: Discovery Place, Inc., Charlotte, NC, 19099-19100 2018-09173 Nebraska State Historical Society, Lincoln, NE, 19098-19108 2018-09172 2018-09174 2018-09175 Nebraska State Historical Society, Lincoln, NE; Correction, 19106-19107 2018-09176 U.S. Army Corps of Engineers, Kansas City District, Kansas City, MO, and the Nebraska State Historical Society, Lincoln, NE, 19096-19098 2018-09177 Meetings: Captain John Smith Chesapeake National Historic Trail Advisory Council, 19108-19109 2018-09109 National Science National Science Foundation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19118-19119 2018-09137 Nuclear Regulatory Nuclear Regulatory Commission NOTICES License Amendment; Applications: Centrus Energy Corp.; Proposed Decommissioning Plan, 19119-19120 2018-09084 Meetings; Sunshine Act, 19120-19121 2018-09330 Nuclear Waste Technical Nuclear Waste Technical Review Board NOTICES Meetings: Transport of Spent Nuclear Fuel and High-Level Radioactive Waste, 19121 2018-09160 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 19122 2018-09125 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: World Intellectual Property Day (Proc. 9729), 19153-19156 2018-09363 Secret Secret Service RULES Restricted Buildings and Grounds, 18939-18941 2018-09230 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19127 2018-09094 Meetings; Sunshine Act, 19126 2018-09256 Self-Regulatory Organizations; Proposed Rule Changes: BOX Options Exchange, LLC, 19122-19123 2018-09113 Cboe BZX Exchange, Inc., 19126-19127 2018-09112 Nasdaq ISE, LLC, 19123-19126, 19128-19133 2018-09111 2018-09114 2018-09115 NYSE National, Inc., 19127-19128 2018-09110 Substance Substance Abuse and Mental Health Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19075-19076 2018-09146 Certified Laboratories and Instrumented Initial Testing Facilities: List of Facilities that Meet Minimum Standards to Engage in Urine Drug Testing for Federal Agencies, 19076-19077 2018-09178 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Railroad Administration

Treasury Treasury Department See

Foreign Assets Control Office

NOTICES Meetings: Federal Advisory Committee on Insurance, 19140-19141 2018-09217
U.S. Marshals United States Marshals Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Preliminary Background Check Form, 19113-19114 2018-09181 Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Ethics Consultation Feedback Tool, 19141-19142 2018-09104 Separate Parts In This Issue Part II Defense Department, 19144-19151 2018-09169 2018-09166 2018-09162 2018-09171 2018-09167 2018-09165 General Services Administration, 19144-19151 2018-09169 2018-09166 2018-09162 2018-09171 2018-09167 2018-09165 National Aeronautics and Space Administration, 19144-19151 2018-09169 2018-09166 2018-09162 2018-09171 2018-09167 2018-09165 Part III Presidential Documents, 19153-19156 2018-09363 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 84 Tuesday, May 1, 2018 Rules and Regulations DEPARTMENT OF AGRICULTURE Food and Nutrition Service 7 CFR Part 250 [FNS-2017-0001] RIN 0584-AE38 Revisions and Clarifications in Requirements for the Processing of Donated Foods AGENCY:

Food and Nutrition Service (FNS), USDA.

ACTION:

Final rule.

SUMMARY:

This rule revises and clarifies requirements for the processing of donated foods in order to: Incorporate successful processing options tested in demonstration projects into the regulations, ensure accountability for donated foods provided for processing, increase program efficiency and integrity, and support vendor and State operability. The rule requires multi-State processors to enter into National Processing Agreements to process donated foods into end products, permits processors to substitute commercially purchased beef and pork of U.S. origin and of equal or better quality for donated beef and pork, and streamlines and modernizes oversight of inventories of donated foods at processors. The rule also revises regulatory provisions in plain language, to make them easier to read and understand.

DATES:

This rule is effective July 2, 2018.

FOR FURTHER INFORMATION CONTACT:

Kiley Larson or Erica Antonson at Food Distribution Division, Food and Nutrition Service, 3101 Park Center Drive, Room 506, Alexandria, Virginia 22302, or by telephone (703) 305-2680.

SUPPLEMENTARY INFORMATION: I. Background and Description of Comments Received

In a proposed rule published in the Federal Register on January 5, 2017 (82 FR 1231), Food Nutrition Service (FNS) proposed to amend Food Distribution regulations at 7 CFR part 250 to revise and clarify requirements for the processing of donated foods, in order to formalize processing options already being used in current practice, incorporate input received from processors and State and local agencies administering child nutrition programs, and rewrite much of 7 CFR part 250 Subpart C in a more user-friendly, “plain language” format. The Department of Agriculture (the Department or USDA) provides donated foods to State distributing agencies for distribution to recipient agencies (e.g., school food authorities) participating in the National School Lunch Program (NSLP) and other child nutrition or food distribution programs. In accordance with Federal regulations in 7 CFR part 250, distributing agencies may provide the donated foods to commercial processors for processing into end products for use in NSLP or other food programs.

For example, a whole chicken or chicken parts may be processed into precooked grilled chicken strips for use in NSLP. The ability to divert donated foods for further processing provides recipient agencies with more options for using donated foods in their programs. Program regulations ensure that State and recipient agencies, and program recipients, receive the full benefit of the donated foods provided to such processors for processing into end products.

FNS solicited comments through April 5, 2017, on the provisions of the proposed rulemaking. These comments are discussed below and are available for review at www.regulations.gov. To view the comments received, enter “FNS-2017-0001” in the search field on the main page of www.regulations.gov. Then click on “Search.” Under “Document Type”, select “Public Submission”.

FNS received 31 written comments regarding the proposed provisions from three associations and advocacy groups, eight State agencies, one recipient agency, thirteen private companies, and six individuals who did not identify an affiliation with an organization. Twelve of the comments received were duplicates of the comment submission from the American Commodity Distribution Association (ACDA). Two comments were supportive of the rule as proposed, in its entirety. The majority of the comments were supportive but recommended changes to add clarity and consistency to the language in the regulations.

Some commenters were supportive of the rule but opposed to a specific provision. There were no comments in opposition of the proposed rule as a whole.

Most commenters in support of the proposed rule indicated they were in favor of the clarifying changes and the consolidation of requirements previously tested in demonstration projects. Commenters also supported measures in the proposed rule to reduce administrative and reporting burdens on State distributing agencies and to streamline participation for industry stakeholders processing USDA Donated Foods.

Most commenters requested further clarification and guidance on the proposed rule and the provisions being changed. Specifically, commenters requested clarification on:

• The terminology used in the rule to ensure clear understanding of the intent and meaning of proposed provisions and requests to include commonly-used industry terms;

• The roles and responsibilities of FNS, State distributing agency, recipient agency, processor, and distributor staff in implementing some of the proposed provisions;

• The rationale behind some of the proposed provisions, including the allowable duration of some agreements required in the proposed rule;

• Whether certain entities, such as commercial entities using USDA Donated Foods in the preparation of meals, are designated as processors under the proposed rule;

• The process by which FNS establishes and disseminates the replacement value for USDA Donated Foods; and

• The method of oversight and enforcement that would be used for some of the proposed provisions including the proposed requirement for processors and distributors to enter into agreements with each other and the proposed requirement for any credit for the sale of by-products to be passed through to the recipient agency.

Commenters also requested that USDA:

• Collect, review, and file the agreements between processors and distributors required by the proposed rule;

• Include a provision in the final rule prohibiting distributors from acting as authorized agents of recipient agencies;

• Remove the provision in the proposed rule that discourages the pooling of inventory at distributors acting as the authorized agent of recipient agencies and instead establish a requirement for each distributor to enter into an agreement with FNS that (1) outlines distributor requirements, (2) transfers title of USDA Donated Foods to distributors when foods are in their possession, and (3) requires distributors to submit a surety bond to FNS to protect the value of USDA Donated Foods in their possession; and

• Include a provision in the final rule establishing the required method of calculation of inventory levels at processors and reducing the number of months used in the calculation from 12 to 10. This calculation, including the number of months used, is currently described in a Policy Memorandum.

II. Analysis of Comments Received and Regulatory Revisions, 7 CFR Part 250 A. Definitions, § 250.2

In § 250.2 we proposed to remove, revise, and add definitions relating to processing of donated foods. We proposed to remove the definitions of “Contracting agency” and “Fee-for-service.” We proposed to replace the term “Contracting agency” throughout the regulation with the specific agency (i.e., distributing and/or recipient agency) that may enter into a processing agreement. The meaning of the term “Fee-for-service” is clear in the context of the proposed regulatory provisions and no longer requires a separate definition. No comments were received on these proposed definition removals. Thus, the proposed removals are retained without change in this final rule.

We proposed to add definitions of “Backhauling,” “Commingling,” “End product data schedule,” “In-State Processing Agreement,” “National Processing Agreement,” “Recipient Agency Processing Agreement,” “Replacement value,” and “State Participation Agreement.” The definition of “Backhauling” would describe a means of delivery of donated food to a processor from a recipient agency's storage facility.

The definition of “Commingling” would describe the common storage of donated foods with commercially purchased foods.

The definition of “End product data schedule” would convey the important function of this document in describing the processing of donated foods into finished end products. The definitions of “National Processing Agreement,” “Recipient Agency Processing Agreement,” “State Participation Agreement,” and “In-State Processing Agreement” would help the reader understand the different types of processing agreements permitted. These processing agreements are further described in § 250.30 of this final rule. No comments were received on these proposed definition additions. Thus, the proposed definitions are retained without change in this final rule.

The definition of “Replacement value” would clarify the donated food value that must be used by processors to ensure compensation for donated foods lost in processing or other activities. The definition of “Replacement value” reflects the price in the market at the time that the Department assigns the value whereas the definition of “Contract value” in current regulations reflects the Department's current acquisition price, which is set annually. One commenter requested that the definition be amended to include any justifications that may be used to determine when the values will be changed and the method USDA would use to disseminate changed values. Replacement value is only changed by the Department in rare cases and only under special circumstances.

Under these special circumstances, the need to adjust the replacement value is determined on a case-by-case basis through consultation with the relevant State and local agencies. Changes are communicated directly to State and local agencies and the justifications for changes will vary significantly from case to case. Thus, the proposed definition is retained without change in this final rule.

B. Delivery and Receipt of Donated Food Shipments, § 250.11

In § 250.11(e), we proposed to describe the timing of transfer of title to donated foods and the agency to which title is transferred, in accordance with the amendments made by Section 4104 of the Agricultural Act of 2014 (Pub. L. 113-79) to Section 17 of the Commodity Distribution Reform Act and WIC Amendments of 1987, 7 U.S.C. 612c note, and the requirements under National Processing Agreements in this rule. In § 250.11(e) we proposed that the title to donated foods provided to a multi-State processor, in accordance with its National Processing Agreement, transfers to the distributing or recipient agency, as appropriate, upon the acceptance of finished end products at the time and place of delivery. No comments were received on this proposed change. Thus, the proposed language is retained without change in this final rule.

In § 250.11(e), we also proposed to require that when a distributor is contracted by the recipient agency for the transportation and/or storage of finished end products and is acting as the recipient agency's authorized agent (i.e., purchasing processed end products containing donated foods on behalf of the recipient agency), title of donated foods would transfer to the recipient agency upon the acceptance of finished end products at the time and place of delivery at the recipient agency, or the distributor acting as the authorized agent of the recipient agency, whichever happens first. Many recipient agencies receiving finished end products from multi-State processors contract with a distributor to store end products and/or transport the finished end products to their facilities. The inclusion of distributors in the supply chain for finished end products creates challenges related to tracking and reporting the value of donated foods. Because processors are not a party to the contractual relationship between recipient agencies and distributors, processors lose control of finished end products once they are delivered to the distributors designated by each recipient agency. Pursuant to current regulations, however, processors are required to maintain a bond for the value of those finished end products.

As a result, in situations where recipient agencies contract with a distributor to store and/or transport processed end products containing donated foods and act as their authorized agent, complications can arise that may impede the transfer of title described above. Some processors and distributors, working in this manner, manufacture and/or order some processed end products prior to receiving donated food orders from recipient agencies. This is sometimes termed “inventory pooling” (as illustrated below). Under current regulations, title cannot transfer to the recipient agency at the time of delivery at its contracted distributor because neither the processor nor the distributor know which recipient agency will receive which products.

The intent of § 250.11(e) is to discourage the pooling of processed end products.

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Many comments were received on this provision ranging from overall support to overall opposition. One commenter expressed strong support for the provision, claiming that it would increase efficiency and program integrity.

One commenter expressed support for the provision but requested clarification that title for donated foods will never transfer to the distributor but will only transfer from USDA to the recipient agency. Thirteen commenters expressed understanding of the Department's position to include the provision but requested clarifying language be included to instruct processors to closely monitor distributor transactions and reporting practices, and to label the practice as it is known, inventory pooling.

In response, we would point out that processors should always closely monitor distributor transactions and reporting practices to ensure that all parties are adhering to the requirements of 7 CFR part 250 and the processor's processing agreement. Transaction monitoring and reporting maybe outlined in the agreement between the distributor and processor required in § 250.30(i). Inventory pooling, in this context, refers to a practice employed by distributors. § 250.11(e) is focused on clarifying when title transfers, ensuring that processors know which School Food Authority (SFA) is accepting ownership of end products. Therefore, the term “pooling” is not referenced in the regulatory text.

One commenter acknowledged the challenges that the practice of inventory pooling creates for entities within the end product supply chain but suggested alternate methods for addressing them. The alternate methods suggested were prohibiting distributors from acting as authorized agents of SFAs and requiring that distributors enter into agreements with FNS to furnish a surety bond for donated foods in their inventory or transfers title to donated foods to distributors while in their inventory. Current statutory provisions do not permit the transfer of title of donated foods to a distributor or a requirement for a distributor to furnish a surety bond to USDA. In addition, a regulatory change of this magnitude must be subject to public review and comment prior to being codified. Therefore, FNS is not able to implement these alternatives at this time.

Two commenters expressed strong opposition to the provision. The commenters felt that inventory pooling provided flexibility for distributors and allowed them to more easily serve recipient agencies. Similar to other commenters on this provision, the commenters felt that an alternative could be to require distributors to enter into agreements with FNS to furnish a surety bond for donated foods in their inventory. For the reasons described in the previous paragraph, this proposed alternative cannot be implemented at this time. The commenters also expressed concerns about the administrative burden associated with maintaining separate school-owned inventories for each eligible recipient agency, including individual stock keeping units (SKUs) for each end product and recipient agency. This interpretation of the intent of this provision is incorrect. FNS does not expect distributors to maintain separate physical inventories for every eligible recipient agency as the commenters describe. Doing so would be overly burdensome and would contradict the long-established concept of substitution in USDA Foods processing. However, FNS understands that this provision may require further guidance and that there may be potential benefits of establishing a different accountability mechanism for processed end products at distributors through agreements or other mechanisms. FNS will explore whether potential pilot projects could be used to test these approaches. The proposed provision is retained without change in this final rule.

C. Reporting Requirements, § 250.18

In § 250.18(b) we proposed to retain the requirement for processors to submit monthly performance reports to the distributing agency. However, we proposed to replace the reference to § 250.30(m) with § 250.37(a) as the section is being re-designated and revised. No comments were received on this proposed change. Thus, the proposed language is retained without change in this final rule.

D. Recordkeeping Requirements, § 250.19

In § 250.19(a) we proposed to amend the recordkeeping requirements for processors and instead reference specific recordkeeping requirements for processors contained in Subpart C. No comments were received on this proposed change. Thus, the proposed language is retained without change in this final rule.

E. Subpart C—Processing of Donated Foods

FNS proposed to completely revise current Subpart C of 7 CFR part 250 to more clearly present the specific processing requirements and rewrite these sections in plain language. We proposed to include the requirements for specific processing activities in the order in which they most commonly occur; i.e., entering into processing agreements, processing of donated foods into end products, sale of end products, submission of reports, etc. We also proposed to change the heading of Subpart C to Processing of Donated Foods. Comments received on this Subpart are outlined below. The new sections proposed under the revised Subpart C include the following:

250.30 Processing of donated foods into end products. 250.31 Procurement requirements. 250.32 Protection of donated food value. 250.33 Ensuring processing yields of donated foods. 250.34 Substitution of donated foods. 250.35 Storage, food safety, quality control, and inventory management. 250.36 End product sales and crediting for the value of donated foods. 250.37 Reports, records, and reviews of processor performance. 250.38 Provisions of agreements. 250.39 Miscellaneous provisions. 1. Processing of Donated Foods Into End Products, § 250.30

In § 250.30, we proposed to state clearly why donated foods are provided to processors for processing, and we proposed to describe the different types of processing agreements permitted, including National, In-State, and Recipient Agency Processing Agreements. However, we proposed to include the specific provisions required for each type of agreement in § 250.38, as the reason for their inclusion would only be clear with an understanding of the processing requirements contained in the preceding sections.

In § 250.30(a), we proposed to describe the benefit of providing donated foods to a processor for processing into end products, and we proposed to clarify that a processor's use of a commercial facility to repackage donated foods, or to use donated foods in the preparation of meals, is also considered processing in 7 CFR part 250. Two commenters requested that this provision be amended to clarify that repackaging of USDA Donated Foods in meals that are vended to a school food authority is subject to the processing requirements in 7 CFR part 250. To clarify our intent in this final rule, the words “A processor's” are deleted from the last sentence of § 250.30(a) to indicate that any commercial entity's use of a commercial facility to repackage donated foods, or to use donated foods in the preparation of meals, is also considered processing in 7 CFR part 250.

Two commenters expressed concerns that considering meal vendors as processors under 7 CFR part 250 could impact competition and limit the use of USDA Donated Foods at recipient agencies contracted with meal vendors. The commenters requested that meal vendors be permitted to operate in a similar manner as Food Service Management Companies which must receive USDA Donated Foods and prepare meals at the recipient agency's facility. Meal vendors have long been considered processors under current regulations. The final rule is only clarifying an already established requirement. Thus, the proposed provision is retained without change in this final rule. We also want to clarify that SFAs providing meals containing USDA Donated Foods to another recipient agency under an intergovernmental agreement are not considered processors in this part.

In § 250.30(b), we proposed to clarify that processing of donated foods must be performed in accordance with an agreement between the processor and FNS, between the processor and the distributing agency, or, if permitted by the distributing agency, between the processor and a recipient agency (or subdistributing agency). We proposed to include in § 250.30(b) the stipulation in current § 250.30(c)(5)(ix) that an agreement may not obligate the distributing or recipient agency, or FNS, to provide donated foods to a processor for processing. We proposed to clarify that the agreements described in this section are required in addition to, not in lieu of, competitively procured contracts required in accordance with § 250.31. We proposed to revise the requirement in current § 250.30(c)(4) that indicates which official of the processor must sign the processing agreement and more simply state in proposed § 250.30(b) that the processing agreement must be signed by an authorized individual acting for the processor. We proposed to remove the stipulation in current § 250.30(c)(1) that a processing agreement must be in standard written form. No comments were received on the proposed changes in this subsection. Thus, the proposed provision is retained without change in this final rule.

In § 250.30(c), we proposed to require that a multi-State processor enter into a National Processing Agreement with FNS to process donated foods into end products, in accordance with end product data schedules approved by FNS. We also indicated that, in the proposed § 250.32, FNS holds and manages the multi-State processor's performance bond or letter of credit to protect the value of donated food inventories under the National Processing Agreement. We indicated that FNS does not itself procure or purchase end products under such agreements, and that a multi-State processor must enter into a State Participation Agreement with the distributing agency in order to sell nationally approved end products in the State, as in the proposed § 250.30(d). No comments were received on the proposed changes in this subsection. Thus, the proposed provision is retained without change in this final rule.

In § 250.30(d), we proposed to require the distributing agency to enter into a State Participation Agreement with a multi-State processor to permit the sale of end products produced under the processor's National Processing Agreement in the State, as previously indicated. The State Participation Agreement is currently utilized in conjunction with National Processing Agreements in the demonstration project. Under the State Participation Agreement, we proposed to permit the distributing agency to select the processor's nationally approved end products for sale to eligible recipient agencies within the State or to directly purchase such end products. The processor may provide a list of such nationally approved end products in a summary end product data schedule. We also proposed to permit the distributing agency to include other processing requirements in the State Participation Agreement, such as the specific methods of end product sales permitted in the State, in accordance with the proposed § 250.36, (e.g., a refund, discount, or indirect discount method of sales), or the use of labels attesting to fulfillment of meal pattern requirements in child nutrition programs. We proposed to require the distributing agency to utilize selection criteria in current § 250.30(c)(1) to select processors with which to enter into State Participation Agreements. No comments were received on State Participation Agreements overall.

However, one commenter requested that “the marketability or acceptability of end products” be removed from the list of selection criteria that State agencies must evaluate prior to entering into State Participation Agreements with multi-State processors. The commenter felt that the requirement was burdensome and impractical for large States. Marketability and acceptability are important factors for end products served in child nutrition programs to ensure that products are well-suited to the local market and promote the use of donated foods. The requirement to include marketability and acceptability as selection criteria is long standing, and State agencies have discretion in how they evaluate products under these criteria. Thus, the proposed provision is retained without change in this final rule.

In § 250.30(e), we proposed to clarify the distinction between master agreements and other In-State Processing Agreements and to include in this proposed section the required criteria in current § 250.30(c)(1) for distributing agencies that procure end products on behalf of recipient agencies or that limit recipient agencies' access to the procurement of specific end products through its master agreements. We proposed to require that the distributing agency enter into an In-State Processing Agreement with an in-State processor (i.e., a processor which only services recipient agencies in a single State via a production facility located in the same State) to process donated foods, as currently required under the demonstration project. Under all In-State Processing Agreements, the distributing agency must approve end product data schedules submitted by the processor, hold and manage the processor's performance bond or letter of credit, and assure compliance with all processing requirements.

No comments were received on In-State Processing Agreements overall, however one commenter requested that marketability and acceptability be removed from the list selection criteria that State agencies must evaluate prior to entering into an In-State Processing Agreement with an in-State processor. As stated above, marketability and acceptability are important factors for end products served in child nutrition programs and the requirement to include them as a selection criteria is long standing. One commenter also requested that additional detail be included instructing State agencies on how to calculate bond and letter of credit levels for in-State processors. As proposed, § 250.30(e), provides State agencies with the flexibility to set bond and letter of credit levels to reflect State laws and the status of their State's processing market. However, FNS recognizes that State agencies may benefit from further guidance and will explore whether policy guidance can be used to aid States on this matter. Thus, the proposed provision is retained without change in this final rule.

In § 250.30(f), we proposed to allow distributing agencies to permit recipient agencies (or subdistributing agencies) to enter into agreements with processors to process donated foods and to purchase the finished end products. These agreements are referred to as Recipient Agency Processing Agreements. We also proposed to clarify that, under such agreements, the distributing agency may also delegate oversight and monitoring to the recipient agency to approve end product data schedules or select nationally approved end product data schedules, review processor performance reports, manage the performance bond or letter of credit of an in-State processor, and monitor other processing activities. All such activities must be performed in accordance with the requirements of this part. We proposed to clarify that a recipient agency may also enter into a Recipient Agency Processing Agreement, and perform the activities described above, on behalf of other recipient agencies, in accordance with an agreement between the parties (such as in a school cooperative). We proposed to require the recipient agency to utilize selection criteria in current § 250.30(c)(1) to select processors with which to enter into Recipient Agency Processing Agreements. The distributing agency must approve all Recipient Agency Processing Agreements. No comments were received on this proposed provision. Thus, the proposed language is retained without change in this final rule.

In § 250.30(g), we proposed to retain the requirement that distributing agencies must test end products with recipient agencies prior to entering into processing agreements, to ensure that they will be acceptable to recipient agencies. We proposed to clarify that the requirements only apply to distributing agencies that procure end products on behalf of recipient agencies or otherwise limit recipient agencies' access to the procurement of specific end products, and we proposed to clarify that the distributing agency may permit recipient agencies to test end products. We also proposed to amend the current requirement that the distributing agency develop a system to monitor product acceptability on a periodic basis by requiring instead that the distributing agency, or its recipient agencies, must monitor product acceptability on an ongoing basis. No comments were received on this proposed provision. Thus, the proposed language is retained without change in this final rule.

In § 250.30(h), we proposed that a processor may not assign any processing activities under its processing agreement, or subcontract with another entity to perform any aspect of processing, without the written consent of the other party to the agreement, which may be the distributing, subdistributing, or recipient agency, or FNS. We proposed to permit the distributing agency to provide the required written consent as part of its State Participation Agreement or In-State Processing Agreement with the processor. One commenter requested that we require distributing agencies to approve of subcontractors in its State Participation Agreement with the processor. The National Processing Agreement requires subcontractor agreements but States should have flexibility in how they provide written consent for subcontracting. Thus, the proposed language is retained without change in this final rule.

In § 250.30(i), we proposed to require agreements between processors and distributors. We proposed that the agreement, initiated by the processor before releasing finished end products to a distributor, must reference, at a minimum, the financial liability (i.e., who must pay) for the replacement value of donated foods, not less than monthly end product sales reporting frequency, requirements under § 250.11, and the applicable value pass through system to ensure that the value of donated foods and finished end products are properly credited to recipient agencies. We also proposed that distributing agencies could set additional requirements such as requiring that copies or templates of these agreements be included with the submission of signed State Participation Agreements. Many comments were received on this provision.

One commenter noted strong support for this provision overall, but requested that clarifying language be added to the provision to prescribe that financial liability for donated foods in the agreement is assigned to the party that caused a loss or negative balance to occur. These agreements are designed to allow processors and distributors to draft an agreement that mutually protects each of their interests, including financial liability. FNS will not be a party to these agreements and does not want to dictate, in regulations, the structure of specific provisions for all situations that the parties may encounter. Therefore, this language will not be included in the final rule. However, FNS will explore whether further policy guidance on this matter is needed. The commenter also requested that provisions be added to specifically address distributors, including requiring written agreements between a distributor and FNS that covers liability, reporting, and delivery requirements. FNS does not maintain a direct relationship with distributors. Therefore, this language will not be included in the final rule.

Fourteen commenters noted support for the provision but requested that we add a requirement that agreements between processors and distributors must be submitted to FNS for review and record keeping. FNS will not be a party to these agreements and is not in a position to evaluate if individual agreements are appropriate. States will also not be required to review or collect these agreements. However, we agree with the importance of having an oversight mechanism in place to ensure that the agreements are in place as required. Verification of these agreements will be required as part of the audits that processors must obtain under current requirements at § 250.20(b). Moreover, requiring processors to submit these agreements to FNS for review and record keeping would impose an additional information collection burden. Such a provision would require a separate rule and would be subject to public comment. Therefore, this language will not be included in the final rule.

One commenter noted support for the provision but requested that agreements between processors and distributors be made permanent. Under the proposal, the duration of these agreements is up to the specific processor and distributor in the agreement. If both parties agree, the agreement could be permanent. Therefore, no change is being made in the final rule. The commenter also requested that the required reporting frequency in the agreement be increased from the proposed “not less than monthly” to “not more than five calendar days.” The commenter felt that the more frequent reporting would improve coordination between the processor and distributor and allow the processor to be more timely with the monthly performance reports. Improvements in technology are allowing many distributors to report end product sales to processors much more frequently than monthly. This is a positive trend which FNS supports insofar as it should result in improved transparency and coordination. However, not all distributors are currently capable of meeting that requirement. Therefore, this language will not be included in the final rule.

Two commenters were opposed to requiring agreements between processors and distributors. One of these commenters noted that some of the required topics in the agreements, such as financial liability, reporting frequency, and value pass through method are already the responsibility of the processor via the National Processing Agreement or regulations and that that may diminish the usefulness of the agreements between processors and distributors. This commenter also stated a concern that State agencies may create additional burdensome requirements for these agreements that may discourage processor and distributor participation. The required topics are only intended to be a starting point. Processors and distributors may include additional provisions that more accurately reflect their interests or business model. State agencies must be able to add requirements to reflect State laws or the status of the market within their State. The second of these commenters requested that agreements between processors and distributors be encouraged as opposed to required. Requiring these agreements will ensure more communication, transparency, and cooperation between processors and distributors. This provision was widely supported in other comments. Thus, the proposed language is retained without change in this final rule.

In § 250.30(j), we proposed to permit all agreements between a distributing, subdistributing, or recipient agency and a processor to be up to five years in duration, as opposed to the current one year limit with an option to extend for two additional years. This proposal would permit the appropriate agency to determine the length of agreement that would be to its best advantage, within the five-year limitation, and would reduce the time and labor burden imposed on such agencies. We proposed to make National Processing Agreements permanent. We proposed that amendments to any agreements may be made as needed (e.g., when new subcontractors are added), with the concurrence of the parties to the agreement, and that such amendments would be effective for the duration of the agreement, unless otherwise indicated.

One commenter requested that all agreements, including the State Participation, In-State Processing, and Recipient Agency Processing Agreements are made permanent. In-State and Recipient Agency Processing Agreements are sometimes subject to frequent updates and are often executed in conjunction with a procurement action. Therefore, the proposed five year duration limit is retained in this final rule for In-State and Recipient Agency Processing Agreements. However, State Participation Agreements are designed to allow State agencies to supplement requirements in the National Processing Agreement for multi-State processors. Therefore, the final rule is amended to allow State agencies to make their State Participation Agreements permanent. Amendments to State Participation Agreements should still be made when needed, for example, to approve subcontractors arrangements or approve end products to be sold in the State.

We proposed to remove the following requirements or statements in current § 250.30 related to processing agreements, as they are overly restrictive or unnecessary given current practice and administrative structure:

• The requirement in current § 250.30(c)(1) that the FNS Regional Office review processing agreements.

• The requirement in current § 250.30(c)(3) that the agreement be prepared and reviewed by State legal staff to ensure conformance with Federal regulations.

• The requirement in current § 250.30(l) that the distributing agency provide a copy of the 7 CFR part 250 regulations to processors and a copy of agreements to processors and the FNS Regional Office.

No comments were received on these proposed removals. Thus, the proposed removals are retained without change in this final rule.

2. Procurement Requirements, § 250.31

The requirements for the procurement of goods and services under Federal grants are established in 2 CFR part 200 and USDA implementing regulations at 2 CFR part 400 and part 416, as applicable. In § 250.31(a), we proposed to indicate the applicability of these requirements to the procurement of processed end products, distribution, or of other processing services related to donated foods. We also proposed that distributing or recipient agencies may use procurement procedures that conform to applicable State and local laws, as appropriate, but must ensure compliance with the Federal procurement requirements. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

In § 250.31(b), we proposed to require specific information in procurement documents, to assist recipient agencies in ensuring that they receive credit for the value of donated foods in finished end products. We proposed to require that procurement documents include the price to be charged for the finished end product or other processing service, the method of end product sales that would be utilized, an assurance that crediting for donated foods would be performed in accordance with the applicable requirements for such method of sales in proposed § 250.36, the contract value of the donated food in the finished end products, and the location for the delivery of the finished end products. We proposed to remove current requirements for the provision of pricing information outside of the procurement process, including:

(1) The requirement in current § 250.30(c)(5)(ii) that pricing information be included with the end product data schedule; and

(2) The requirements in current § 250.30(d)(3) and (e)(2) that the processor provide pricing information summaries to the distributing agency, and the distributing agency provide such information to recipient agencies, as soon as possible after completion of the agreement.

One commenter requested clarification on the applicability of these requirements to subsequent procurements conducted by a distributor acting as a recipient agency's authorized agent. The information required in procurement documents in this provision apply to all procurements for end products containing donated foods, regardless of who performed the procurement. The commenter also requested clarification that the requirement to include the value of the donated food in the end products in procurement documents does not remove the requirement to include the value of the donated food in the end products on the end product data schedule. This reflects an incorrect understanding of current requirements. The value of donated foods is no longer required on end product data schedules. Including the value on the end product data schedule would require it to be revised with every change in value. However, FNS publishes summary end product data schedules which include the value of donated food for each end product. The summary end product data schedules can be used to confirm the accuracy of the value of donated food listed in the procurement documents. Thus, the proposed language is retained without change in this final rule.

3. Protection of Donated Food Value, § 250.32

In § 250.32(a), we proposed to include the requirement that the processor obtain financial protection to protect the value of donated foods prior to their delivery for processing, by means of a performance bond or irrevocable letter of credit. We proposed to remove escrow accounts as an option for financial protection. Multi-State processors must provide the performance bond or irrevocable letter of credit to FNS, in accordance with its National Processing Agreement. We proposed to clarify that the amount of the performance bond or letter of credit must be sufficient to cover at least 75 percent of the value of donated foods in the processor's physical or book inventory, as determined annually, and at the discretion of FNS, for processors under National Processing Agreements. For multi-State processors in their first year of participation in the processing program, the amount of the performance bond or letter of credit must be sufficient to cover 100 percent of the value of donated foods, as determined annually, and at the discretion of FNS. In-State processors must provide the performance bond or letter of credit to the distributing or recipient agency, in accordance with its In-State or Recipient Agency Processing Agreement. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

In § 250.32(b), we proposed to indicate the conditions under which the distributing or recipient agency must call in the performance bond or letter of credit. We also proposed to indicate that FNS would call in the performance bond or letter of credit under the same conditions and would ensure that any monies recovered by FNS are reimbursed to distributing agencies for losses of entitlement foods. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

4. Ensuring Processing Yields of Donated Foods, § 250.33

In § 250.33, we proposed to retain the required submission of the end product data schedule and to more specifically describe the required processing yields of donated food, which is currently referred to as the yield. In § 250.33(a), we proposed to require submission of the currently required information on the end product data schedule, with the exception of the price charged for the end product or other pricing information and the contract value of the donated food. As described above, in the proposed § 250.31, pricing information must be included in the procurement of end products or other processing services relating to donated foods. Inclusion of such information on end product data schedules may be misleading, as it may lead some recipient agencies to conclude that a competitive procurement has been performed by the distributing agency under its In-State Processing Agreement or State Participation Agreement. Prices currently included on end product data schedules generally reflect the highest price that a processor would charge for the finished end product and not necessarily the actual price of the end product.

We also proposed to require inclusion of the processing yield of donated food, which may be expressed as the quantity of donated food (pounds) needed to produce a specific quantity of end product or as the percentage of donated food returned in the finished end product. We proposed to retain the requirement that end product data schedules be approved by the distributing agency under In-State Processing Agreements. We proposed to clarify that the end product data schedules for products containing donated red meat or poultry must also be approved by the Department, as is currently required under program policy. We proposed to require that, under National Processing Agreements, end product data schedules be approved by the Department. Lastly, we proposed to clarify that an end product data schedule must be submitted in a standard electronic format dictated by FNS, and approved for each new end product that a processor wishes to provide or for a previously approved end product in which the ingredients or other pertinent information have been altered. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

In § 250.33(b), we proposed to describe the different processing yields of donated foods that may be approved in end product data schedules. In an effort to simplify the yield requirements and streamline monitoring for distributing and recipient agencies we proposed to limit the processing yields to 100 percent yield, guaranteed yield, and standard yield. In § 250.33(b)(1), we proposed to include the current 100 percent yield requirement. We proposed to indicate that FNS may make exceptions to the 100 percent yield requirement, on a case-by-case basis. Exceptions to the 100 percent yield requirement can result in one of the alternate processing yields described below. Two commenters expressed support for the removal of guaranteed minimum yield. Thus, the proposed language is retained without change in this final rule.

In § 250.33(b)(2), we proposed to describe guaranteed yield. Under guaranteed yield, the processor must ensure that a specific quantity of end product would be produced from a specific quantity of donated food put into production. The guaranteed yield for a specific product is determined and agreed upon by the parties to the processing agreement, and, for In-State and Recipient Agency Processing Agreements, approved by the Department. Guaranteed yield is generally used when significant variance is present across processors in manufacturing and yield for a particular end product. The guaranteed yield must be indicated on the end product data schedule. One commenter requested clarification that a specific quantity of end product is tracked or reported as pounds of donated food per case of end product. This is correct. Thus, the final rule is amended to clarify.

In § 250.33(b)(3), we proposed to describe standard yield. Under standard yield, the processor must ensure that a specific quantity of end product, as determined by the Department, would be produced from a specific quantity of donated food. The standard yield is determined and applied uniformly by the Department to all processors for specific donated foods. The established standard yield is higher than the average yield under normal commercial production and serves to reward those processors that can process donated foods most efficiently. If necessary, the processor must use commercially purchased food of the same generic identity, of U.S. origin, and equal or better in all USDA procurement specifications than the donated food to provide the number of cases required to meet the standard yield to the distributing or recipient agency, as appropriate. The standard yield must be indicated on the end product data schedule. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

In § 250.33(c), we proposed to require that the processor compensate the distributing or recipient agency, as appropriate, for the loss of donated foods, or for commercially purchased foods substituted for donated foods. Loss of donated foods may result for a number of reasons, including the processor's failure to meet the required processing yield or failure to produce end products that meet required specifications, spoilage or damage of donated foods in storage, or improper distribution of end products. In order to compensate for such losses of donated foods, we proposed to require that the processor:

(1) Replace the lost donated food or commercial substitute with commercially purchased food of the same generic identity, of U.S. origin, and equal or better in all USDA procurement specifications than the donated food; or

(2) Return end products that are wholesome but do not meet required specifications to production for processing into the requisite quantity of end products that meet the required specifications; or

(3) Pay the distributing or recipient agency, as appropriate, for the replacement value of the donated food or commercial substitute only if the purchase of replacement foods is not feasible and the processor has received approval. In-State processors would be required to obtain distributing agency approval for such payment and multi-State processors would be required to obtain FNS approval.

No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

In § 250.33(d), we proposed to retain the requirement that processors must credit the distributing or recipient agency, as appropriate, for the sale of any by-products resulting from the processing of donated foods or of commercially purchased foods substituted for donated foods. However, we proposed to require crediting through invoice reductions or another means of crediting. We also proposed to clarify that the processor must credit the appropriate agency for the net value received from the sale of by-products after subtraction of any documented expenses incurred in preparing the by-product for sale. We proposed to remove the requirement in current § 250.30(c)(5)(viii)(D) that the processor credit the distributing or recipient agency for the sale of donated food containers because the burden required to monitor the credit outweighed the value returned. One commenter requested clarification on the method of oversight to ensure that distributing or recipient agencies are credited for the sale of by-products by processors. Verification that appropriate credits for the sale of by-products have occurred is required as part of the audits required of processors under current requirements at § 250.20(b). Thus, the proposed language is retained without change in this final rule.

In § 250.33(e), we proposed to retain the requirements that processors must meet applicable Federal labeling requirements, and must follow the procedures required for approval of labels for end products that claim to meet meal pattern requirements in child nutrition programs. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

5. Substitution of Donated Foods, § 250.34

In § 250.34(a), we proposed to permit a processor to substitute any donated food that is delivered to it from a USDA vendor with commercially purchased food of the same generic identity, of U.S. origin, and of equal or better quality in all Departmental purchase specifications than the donated food. We proposed to clarify that commercially purchased beef, pork or poultry must meet the same specifications as donated product, including inspection, grading, testing, and humane handling standards, and must be approved by the Department in advance of substitution. We proposed to remove the required elements of a processor's plan for poultry substitution in current § 250.30(f)(1)(ii)(B). We also proposed to allow a processor the option to substitute any donated food in advance of the receipt of the donated food shipment and to more clearly describe the processor's assumption of risk should the Department be unable to purchase and deliver any donated food so substituted. Lastly, we proposed to require that commercially purchased food substituted for donated food meet the same processing yield requirements that would be required for the donated food, as in the proposed § 250.33. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

In § 250.34(b), we proposed to prohibit substitution or commingling of all backhauled donated foods and to require that the processor, if amenable to reformulation, process such end products into end products for sale and delivery to the same recipient agency that provided them and not to any other recipient agency. In other words, the recipient agency which backhauls a previously processed end product to a processor for reformulation must in turn use the reformulated end products, containing their backhauled product, in their food service. Additionally, we proposed to prohibit the processor from providing payment to the recipient agency in lieu of processing and prohibit the distributing or recipient agency from transferring the backhauled food to another processor. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

In § 250.34(c), we proposed to retain current requirements at § 250.30(g), which state that the processing of donated beef, pork and poultry must occur under Federal Quality Assessment Division grading in order to assure that substitution and yield requirements are met and that end products conform with the applicable end product data schedule. The Department's Agricultural Marketing Service conducts such grading. The processor is responsible for paying the cost of the acceptance service grading. The processor must maintain records (including grading certificates) necessary to document that substitution of all donated foods has been conducted in accordance with the requirements in 7 CFR part 250. One commenter expressed that the financial burden of grading can be overwhelming for small processors. FNS recognizes that the cost of grading requirements is not insignificant to small processors. However, grading requirements are important for ensuring that Federal regulations are adhered to. Further, small processors are typically in-State processors and not multi-State processors and, when circumstances warrant it, State distributing agencies can waive grading requirements under In-State and Recipient Agency Processing Agreements, according to proposed § 250.34(d). Thus, the proposed language is retained without change in this final rule.

In § 250.34(d), we proposed to permit distributing agencies to approve a waiver of the grading requirement for donated beef, pork, or poultry under certain conditions. However, we proposed to indicate that such waivers may only be approved on a case by case basis—e.g., for a specific production run. The distributing agency may not approve a blanket waiver of the requirement. We also included the stipulation that a waiver may only be approved if the processor's past performance indicates that the quality of the end product would not be adversely affected. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

In § 250.34(e), we proposed to include the current provision that the processor may use any substituted donated food in other processing activities conducted at its facilities. We proposed to remove the stipulation, in current § 250.30(f)(4), that title to the substituted donated food passes to the processor upon the initiation of processing of the end product with the commercial substitute. The transfer of title to donated foods, which are part of the Federal grant, is limited to the distributing agency or recipient agency, as the recipients of the grant. Subsequent donated food activities may be performed in accordance with Federal regulations and the terms of processing agreements but would not include a further transfer of title. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

6. Storage, Food Safety, Quality Control, and Inventory Management, § 250.35

In § 250.35, we proposed to include requirements for the storage, food safety oversight, quality control, and inventory management of donated foods provided for processing. In § 250.35(a), we proposed to require the processor to ensure the safe and effective storage of donated foods, including compliance with the general storage requirements in current § 250.12, and to maintain an effective quality control system at its processing facilities. We proposed to require the processor to maintain documentation to verify the effectiveness of its quality control system and to provide such documentation upon request. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

In § 250.35(b), we proposed to require that all processing of donated foods is conducted in compliance with all Federal, State, and local requirements relative to food safety. This represents a simplification of current regulations. One commenter requested that the Agricultural Marketing Service (AMS) be explicitly listed along with Federal, State, and local requirements. AMS is only one of many Federal agencies with pertinent requirements that would be included in this list and applicable requirements will vary from processor to processor depending on the type of product produced, among other factors. Thus, the proposed language is retained without change in this final rule.

In § 250.35(c), we proposed to clarify that a processor may commingle donated foods and commercially purchased foods, unless the processing agreement specifically stipulates that the donated foods must be used in processing, and not substituted, or the donated foods have been backhauled from a recipient agency. However, such commingling must be performed in a manner that ensures the safe and efficient use of donated foods, as well as compliance with substitution requirements, and with reporting of donated food inventories on performance reports, as required in 7 CFR part 250.

We also proposed to require that processors ensure that commingling of finished end products with other food products by distributors results in the sale to recipient agencies of end products that meet substitution requirements. One way that this may be achieved is by affixing the applicable USDA certification stamp to the exterior shipping containers of such end products. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

In § 250.35(d), we proposed to include the current limitation on inventories of donated foods at a processor and to clarify that distributing agencies are not permitted to submit food orders for processors reporting no sales activity during the prior year's contract period unless documentation is submitted by the processor which outlines specific plans for donated food drawdown, product promotion, or sales expansion. A processor may not have on hand more than a six-month supply of donated foods, based on an average amount utilized for that period. However, the distributing agency may, at the processor's request, provide written approval to allow the processor to maintain a larger amount of donated foods in inventory if it determines that the processor may efficiently store and process such an amount. We also proposed to include an allowance for FNS to require an inventory transfer to another State distributing agency or processor when inventories are determined to be excessive for a State distributing agency or processor, i.e., more than six months on-hand or exceeding the established inventory protection, to ensure full utilization prior to the end of the school year.

Many comments were received on this provision. One commenter requested clarification that the inventory limit was not based on the average usage over a six-month period. That is correct. The inventory limit is intended to be based on average usage for the year being evaluated. Thus, the final rule is amended to clarify.

One commenter expressed concern that including a provision allowing FNS to transfer inventories to another State distributing agency or processor when inventories are determined to be excessive for a State distributing agency or processor will prevent a distributing agency from providing justification that accounts for the overage. This is not the intent of the proposed provision. Consistent with inventory transfers generally, inventory transfers due to excessive inventories will only occur after consultation with all the involved parties. The commenter also inquired whether advancements in technology and improvements in the Department's business practices will eventually eliminate the need for the six-month inventory limit. The Department consistently endeavors to improve our service and the technology with which stakeholders interface. However, elimination of the current inventory limits is not currently proposed. Thus, the proposed language is retained without change in this final rule

One commenter requested that the six-month inventory limit be eliminated and that an annual three-month inventory carryover limit be imposed. Such a provision would require a separate rule and would be subject to public comment. Therefore, this language will not be included in the final rule.

Fourteen commenters requested that language be included in this provision to establish the method by which the six-month inventory level is calculated. Additionally, the commenters requested that average monthly usage, which is used to determine the six-month inventory limit, be calculated using a ten month period as opposed to a twelve month period. The commenters felt that a ten month period more accurately reflects the average school year and the period during which products are delivered. Although the six-month inventory limit is contained in current regulations, the method by which it is calculated is prescribed in a Policy Memorandum (FD-064; dated March 20, 2012). FNS will consider the position of the commenters and determine whether to issue program policy to reflect this change. Thus, the proposed language is retained without change in this final rule.

In § 250.35(e), we proposed to clarify that the distributing agency may permit the processor to carry over donated foods in excess of allowed levels into the next year of its agreement, if the distributing agency determines that the processor may efficiently process such foods. We also proposed to include the distributing agency's current option to direct the processor to transfer or re-donate such donated foods to another distributing or recipient agency or processor. Lastly, we proposed to clarify that, if these options are not practical, the distributing agency must require the processor to pay for the donated foods held in excess of allowed levels in an amount equal to the replacement value of the donated foods. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

In § 250.35(f), we proposed to expand the current options for the disposition of substitutable donated foods at the termination of an agreement to all donated foods, in accordance with our proposal in the proposed § 250.34 to permit substitution of all donated foods. We proposed to clarify that the disposition of donated foods may include a transfer; i.e., the distributing agency may permit a transfer of donated foods to another State distributing agency, with FNS approval, in accordance with current § 250.12(e). We also proposed to permit the transfer of commercially purchased foods that meet the substitution requirements in the proposed § 250.34 in place of the donated foods. We proposed to permit the processor to pay the distributing or recipient agency, as appropriate, for the donated foods only if returning or transferring the donated foods or commercially purchasing food that meets the substitution requirements is not feasible and if FNS approval has been granted. We proposed to include the current requirement that the processor pay the cost of transporting any donated foods when the agreement is terminated at the processor's request or as a result of the processor's failure to comply with the requirements of 7 CFR part 250. One commenter requested that the higher value not be used between the contract value and replacement value when processors pay the distributing or recipient agency under § 250.35(f)(3). However, FNS wants to ensure that distributing and recipient agencies are made whole in these situations. Thus, the proposed language is retained without change in this final rule.

7. End Product Sales and Crediting for the Value of Donated Foods, § 250.36

In § 250.36, we proposed to describe the methods of end product sales. A processor must sell end products to recipient agencies under a system that assures such agencies receive credit or “value pass through” for the contract value of donated food contained in the end product. Processors must also ensure that, when end products are provided to commercial distributors for sale and delivery to recipient agencies, such sales occur under a system that provides such agencies with a credit for the contract value of donated food contained in the end product. In § 250.36(a), we proposed to require that the sales of end products, either directly by the processor or through a commercial distributor, be performed utilizing one of the methods of end product sales contained in this section, to ensure that the distributing or recipient agency, as appropriate, receives credit for the value of donated foods contained in end products. We also proposed to require that all systems of sales utilized must provide clear documentation of crediting for the value of the donated foods contained in the end products. One commenter requested that language be added to this provision that clarifies that method of end product sales is synonymous with value pass through system. Thus, the final rule is amended to clarify.

In § 250.36(b), we proposed to permit end product sales through a refund or rebate system, in which the processor or distributor sells end products to the distributing or recipient agency, as appropriate, at the commercial or gross price, and provides the appropriate agency with a refund for the contract value of donated foods contained in the end products. We proposed to require the processor to remit the refund to the distributing or recipient agency, as appropriate, within 30 days of receiving a request for a refund from the appropriate agency. We proposed to clarify that the refund request must be in writing but may be transmitted via email or other electronic means. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

In § 250.36(c), we proposed to permit end product sales through a discount system, in which the processor sells end products at a net price that provides a discount from the commercial case price for the value of the donated foods contained in the end products. We proposed to refer to this system as a direct discount system to distinguish it from the method of end product sales described in the following paragraph. One commenter requested that the word “provides” be replaced with “incorporates” to clarify the provision. Thus, the final rule is amended to clarify.

In § 250.36(d), we proposed to permit end product sales through a net price that provides a discount from the commercial case price for the value of the donated foods contained in the end products. The processor then compensates the distributor for the discount provided for the value of the donated food in its sale of end products. We proposed to refer to it as an indirect discount system. We proposed to require the processor to ensure that the distributor notify it of such sales, at least on a monthly basis, through automated sales reports or other submissions. Fifteen commenters requested that the term “net off invoice” be incorporated into the provision to refer to the practice as it is commonly known. Thus, the final rule is amended to clarify. Twelve commenters requested that language be included in the provision to encourage recipient agencies to closely monitor invoices to ensure correct discounts are applied. Thus, the final rule is amended to clarify. One commenter requested that the word “provides” be replaced with “incorporates” to clarify the provision. Thus, the final rule is amended to clarify. One commenter requested that the frequency at which distributors must report end product sales to processors be increased from at least monthly to weekly. Not all distributors are currently capable of meeting that requirement. Moreover, such a provision would require a separate rule and would be subject to public comment. Therefore, this language will not be included in the final rule.

In § 250.36(e), we proposed to permit end product sales through a fee-for-service system, which includes all costs to produce the end product minus the value of the donated food put into production. The processor must identify any charge for delivery of end products separately from the fee-for-service on its invoice. One commenter requested clarification on how a processor would know a distributor's delivery charge in order to identify it separately on its invoice. If the delivery charge is listed on the processor's invoice, the processor may have procured the services of the distributor to store and/or deliver the product to the recipient. Therefore, the delivery charge would be known by the processor. If the processor did not procure the services of the distributor, the processor can request that the distributor directly bill the recipient agency for the distributor's services. Thus, the proposed language is retained without change in this final rule. Thirteen commenters requested that this provision be expanded to identify three distinct variations of fee-for-service. The commenters' preferred breakdown is: (1) Direct shipment and invoicing from the processor to the recipient agency; (2) Fee-for-service through a distributor, where the processor ships multiple pallets of product to a distributor with a breakout of who owns what products; and (3) What is commonly known as Modified Fee-for-service, when the recipient agency has an authorized agent bill them for the total case price. Thus, the final rule is amended to clarify.

In § 250.36(f), we proposed that the processor and distributor may sell end products to the distributing or recipient agency under an alternate method of end product sales that is approved by FNS and the distributing agency. Such alternate methods of sale must ensure that the distributing or recipient agency, as appropriate, receives credit for the value of donated foods contained in the end products. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

In § 250.36(g), we proposed to clarify that the contract value of the donated foods must be used in crediting for donated foods in end product sales and to refer to the definition of contract value included in current § 250.2. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

In § 250.36(h), we proposed to require that the distributing agency provide the processor with a list of recipient agencies eligible to purchase end products along with the quantity of raw donated food that is to be delivered to the processor for processing on behalf of each recipient agency. This is intended to ensure that only eligible recipient agencies receive end products and that those end products are received only in the amounts for which they are eligible. For end products sold through distributors, we proposed to require that the processor provide the distributor with a list of eligible recipient agencies and either the quantities of approved end products that each recipient agency is eligible to receive or the quantity of donated food allocated to each recipient agency along with the raw donated food (pounds or cases) needed per case of each approved end product. One commenter expressed concern that this provision has the potential for abuse by processors because it may provide them with information that can be used for marketing and that it may impact deliveries for direct delivery donated foods. Processors and distributors must know which recipient agencies are eligible to receive end products containing donated foods to ensure that only eligible recipient agencies receive such products. FNS believes that processors will use this provision to promote the use of processed end products by recipient agencies but not to a degree that could be seen as abuse. Thus, the proposed language is retained without change in this final rule.

8. Reports, Records, and Reviews of Processor Performance, § 250.37

In § 250.37, we proposed to include the reporting and recordkeeping requirements for the processing of donated foods, and the use of such reports and records to review processor performance. In current § 250.30(m), the processor must submit a monthly performance report to the distributing agency, including the following information for the reporting period, with year-to-date totals:

(1) A list of all eligible recipient agencies receiving end products;

(2) The quantity of donated foods on hand at the beginning of the reporting period;

(3) The quantity of donated foods received;

(4) The quantity of donated foods transferred to the processor from another entity, or transferred by the processor to another entity;

(5) The quantity of end products delivered to each eligible recipient agency; and

(6) The quantity of donated foods remaining at the end of the reporting period.

In § 250.37(a), we proposed to retain the requirement that the processor submit the performance report to the distributing agency (or to the recipient agency, in accordance with a Recipient Agency Processing Agreement) on a monthly basis. We proposed to retain all of the currently required information in the report. We proposed to require the processor to also include quantities of donated food losses, and grading certificates and other documentation, as requested by the distributing agency, to support the information included in the performance reports. Such documentation may include, for example, bills of lading, invoices or copies of refund payments to verify sales and delivery of end products to recipient agencies. We proposed to retain the current deadlines for the submission of performance reports in the proposed § 250.37(a). Twelve commenters requested that the additional month for reporting year-end transactions be removed from the provision. The commenters felt that the advanced tracking methods instituted with improved technology permits processors to complete the necessary tasks without additional time and that this will assist state agencies in expediting the analysis of processor inventory. Thus, the final rule is amended accordingly. The commenters also requested clarification that a processor can stop reporting on a given USDA Food to a state agency for products with a beginning balance of zero and by which there have been no receipts, adjustments, or shipments of end products for that USDA Foods code. This is a correct interpretation. FNS will explore policy guidance to provide clarification on this issue.

In § 250.37(b), we proposed to require that the processor must include reductions in donated food inventories on monthly performance reports only after sales of end products have been made or after sales of end products through distributors have been documented. We proposed to require that, when a distributor sells end products under a refund system, such documentation must be through the distributing or recipient agency's request for a refund (under a refund system) or through the distributor's automated sales reports or other electronic or written submission (under an indirect discount system or under fee-for-service). No comments were received on this provision. However, FNS received many comments on the proposed provision at § 250.11(e) and language was included in § 250.37(b) of this final rule to clarify the impact of that provision.

In § 250.37(c), we proposed to require that a multi-State processor submit a summary performance report to FNS, on a monthly basis and in a standard format established by FNS, containing information from the performance report that would allow FNS to track the processor's total and State-by-State donated food inventories. The purpose of this report is to assess the amount of the performance bond or letter of credit required of the processor under its National Processing Agreement. However, each distributing agency would still be responsible for monitoring the multi-State processor's inventory of donated foods received for processing in the respective State, in accordance with the proposed § 250.37(a). No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

In § 250.37(d), we proposed to require processors to maintain specific records to demonstrate compliance with processing requirements in 7 CFR part 250, including, for example, assurance of receipt of donated food shipments, production, sale, and delivery of end products, and crediting for donated foods contained in end products. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

In § 250.37(e), we proposed to require distributing agencies to maintain specific records to demonstrate compliance with processing requirements in 7 CFR part 250, including, for example, end product data schedules, performance reports, copies of audits, and documentation of the correction of any deficiencies identified in such audits. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

In § 250.37(f), we proposed to require that recipient agencies maintain specific records to demonstrate compliance with processing requirements in 7 CFR part 250, including, for example, the receipt of end products purchased from processors or distributors, crediting for the value of donated foods included in end products, and procurement documents. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

In § 250.37(g), we proposed to clarify the review requirements for the distributing agency including the review of performance reports to ensure that the processor:

(1) Receives donated food shipments, as applicable;

(2) Delivers end products to eligible recipient agencies, in the types and quantities for which they are eligible;

(3) Meets the required processing yields for donated foods; and

(4) Accurately reports donated food inventory activity and maintains inventories within approved levels.

No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

We proposed to remove the requirements in current § 250.30(m)(2) and (n)(2) relating to the submission of reports and the performance of reviews to ensure that substitution of concentrated skim milk for donated nonfat dry milk is in compliance with requirements. Donated nonfat dry milk is no longer available for donation to schools. No comments were received on this removal. Thus, the proposed removal is retained without change in this final rule.

9. Provisions of Agreements, § 250.38

In § 250.38, we proposed the required provisions for each type of processing agreement included in the proposed § 250.30, to ensure compliance with the requirements in 7 CFR part 250. In § 250.38(a), we proposed to establish that the National Processing Agreement is inclusive of all provisions necessary to ensure that a multi-State processor complies with all applicable requirements relating to the processing of donated foods. FNS has developed a prototype National Processing Agreement that includes all such required provisions. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

In § 250.38(b), we proposed to require that the State Participation Agreement with a multi-State processor contain specific provisions or attachments to assure compliance with requirements in 7 CFR part 250 that are not included in the multi-State processor's National Processing Agreement. Such provisions include, for example, a list of recipient agencies eligible to receive end products, summary end product data schedules that contain a list of end products that may be sold in the State, a requirement that processors enter into a written agreement with distributors handling end products containing donated foods, and the allowed method(s) of end product sales implemented by the distributing agency. One commenter requested clarification that physical processor to processor transfers are not included in the term backhauled in § 250.38(b)(5). The commenter is correct that physical processor to processor transfers are not included in the term backhaul. The term backhauling is defined in the proposed § 250.2 to only include distributing or recipient agency origin. Thus, the proposed language is retained without change in this final rule.

In § 250.38(c), we proposed to require that the In-State Processing Agreement contain specific provisions or attachments to assure compliance with requirements in 7 CFR part 250, including assurance that the processor will meet processing yields for donated foods and substitution requirements, report donated food inventory activity and maintain inventories within approved levels, enter into a written agreement with distributors handling end products containing donated foods, credit recipient agencies for the value of all donated foods contained in end products, and obtain required audits. One commenter requested clarification on which party is responsible for holding the bond or irrevocable letter of credit for donated foods at the subcontractor of an in-State processor under the proposed § 250.38(c)(4). The distributing agency has discretion under an In-State Processing Agreement, including discretion in determining which party holds the bond or irrevocable letter of credit for donated foods at the subcontractor of an in-State processor. Thus, the proposed language is retained without change in this final rule.

In § 250.38(d), we proposed to require that the Recipient Agency Processing Agreement contain the same provisions as an In-State Processing Agreement, to the extent that the distributing agency permits the recipient to perform activities normally performed by the distributing agency under an In-State Processing Agreement (e.g., approval of end product data schedules or review of performance reports). However, a list of recipient agencies eligible to receive end products need not be included unless the Recipient Agency Processing Agreement represents more than one (e.g., a cooperative) recipient agency. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

In § 250.38(e), we proposed to prohibit a distributing or recipient agency, as appropriate, from extending or renewing an agreement when a processor has not complied with processing requirements. We proposed to allow a distributing or recipient agency to immediately terminate an agreement in the event of such noncompliance. One commenter expressed concern that requiring an agency to terminate or not renew an agreement can cause hardship for either agency. The commenter felt that this should be at the discretion of the agency as extenuating circumstances may apply and processors may be able to rectify their issues and provide sufficient service the following year. Thus, the final rule is amended to allow distributing and recipient agencies discretion in determining whether or not to extend or renew agreements when a processor has not complied with processing requirements. However, these decisions will be evaluated by FNS during reviews of distributing and recipient agencies to ensure compliance with processing requirements.

10. Miscellaneous Provisions, § 250.39

In § 250.39(a), we proposed that FNS may waive any of the requirements in 7 CFR part 250 for the purpose of conducting demonstration projects to test program changes which might improve processing of donated foods. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

In § 250.39(b), we proposed to require the distributing agency to develop and provide a processing manual or similar materials to processors and other parties to ensure sufficient guidance is given regarding the requirements for the processing of donated foods.

Consistent with the current demonstration project, the distributing agency would be permitted to provide additional information relating to State-specific processing procedures upon request. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

In § 250.39(c), we proposed to clarify that guidance or information relating to the processing of donated foods is included on the FNS website or may otherwise be obtained from FNS. Such guidance and information includes program regulations and policies, the FNS Audit Guide, and the USDA National Processing Agreement. No comments were received on this provision. Thus, the proposed language is retained without change in this final rule.

III. Procedural Matters A. Executive Orders 12866, 13563, and 13771

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 directs agencies to reduce regulation and control regulatory costs and provides that for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.

This final rule has been determined to be not significant and was not reviewed by the Office of Management and Budget (OMB) in conformance with Executive Order 12866. FNS considers this rule to be an Executive Order 13771 deregulatory action.

B. Regulatory Impact Analysis

This rule has been designated as not significant by the Office of Management and Budget, therefore, no Regulatory Impact Analysis is required.

C. Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601-612) requires Agencies to analyze the impact of rulemaking on small entities and consider alternatives that would minimize any significant impacts on a substantial number of small entities. Pursuant to that review, the Administrator of FNS has certified that this rule would not have a significant impact on a substantial number of small entities.

D. Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local and tribal governments and the private sector. Under section 202 of the UMRA, the Department generally must prepare a written statement, including a cost benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures by State, local or Tribal governments, in the aggregate, or the private sector, of $100 million or more in any one year. When such a statement is needed for a rule, Section 205 of the UMRA generally requires the Department to identify and consider a reasonable number of regulatory alternatives and adopt the most cost effective or least burdensome alternative that achieves the objectives of the rule.

This final rule does not contain Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and Tribal governments or the private sector of $100 million or more in any one year. Thus, the rule is not subject to the requirements of sections 202 and 205 of the UMRA.

E. Executive Order 12372

The donation of foods in USDA food distribution and child nutrition programs is included in the Catalog of Federal Domestic Assistance under 10.555, 10.558, 10.559, 10.565, 10.567, and 10.569 is subject to Executive Order 12372, which requires intergovernmental consultation with State and local officials. (See 2 CFR chapter IV)

F. Federalism Summary Impact Statement

Executive Order 13132 requires Federal agencies to consider the impact of their regulatory actions on State and local governments. Where such actions have federalism implications, agencies are directed to provide a statement for inclusion in the preamble to the regulations describing the agency's considerations in terms of the three categories called for under Section (6)(b)(2)(B) of Executive Order 13121.

The Department has considered the impact of this rule on State and local governments and has determined that this rule does not have federalism implications. Therefore, under section 6(b) of the Executive Order, a federalism summary is not required.

G. Civil Rights Impact Analysis

FNS has reviewed this final rule in accordance with USDA Regulation 4300-4, “Civil Rights Impact Analysis,” to identify any major civil rights impacts the rule might have on program participants on the basis of age, race, color, national origin, sex or disability. After a careful review of the rule's intent and provisions, FNS has determined that this rule would not in any way limit or reduce the ability of participants to receive the benefits of donated foods in food distribution or child nutrition programs on the basis of an individual's or group's race, color, national origin, sex, age, or disability. FNS found no factors that would negatively and disproportionately affect any group of individuals.

H. Executive Order 13175

Executive Order 13175 requires Federal agencies to consult and coordinate with Tribes on a government-to-government basis on policies that have Tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects on one or more Indian Tribes, on the relationship between the Federal Government and Indian Tribes, or on the distribution of power and responsibilities between the Federal Government and Indian Tribes. FNS consulted with Tribes on this proposed rule on November 19, 2014; however, no concerns or comments were received. We are unaware of any current Tribal laws that could conflict with the final rule.

I. Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. Chap. 35) requires the Office of Management and Budget (OMB) to approve all collections of information by a Federal agency before they can be implemented. Respondents are not required to respond to any collection of information unless it displays a current, valid OMB control number. No changes have been made to the proposed information collection requirements in this final rulemaking. Thus, in accordance with the Paperwork Reduction Act of 1995, the information collection requirements associated with this final rule, which were filed under 0584-0293, have been submitted for approval to OMB. When OMB notifies FNS of its decision, FNS will publish a notice in the Federal Register of the action.

J. E-Government Act Compliance

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

List of Subjects in 7 CFR Part 250

Administrative practice and procedure, Food assistance programs, Grant programs, Reporting and recordkeeping requirements, Social programs, Surplus agricultural commodities.

Accordingly, 7 CFR part 250 is amended as follows:

PART 250—DONATION OF FOODS FOR USE IN THE UNITED STATES, ITS TERRITIORIES AND POSSESSIONS AND AREAS UNDER ITS JURISDICTION 1. The authority citation for part 250 continues to read as follows: Authority:

5 U.S.C. 301; 7 U.S.C. 612c, 612c note, 1431, 1431b, 1431e, 1431 note, 1446a-1, 1859, 2014, 2025; 15 U.S.C. 713c; 22 U.S.C. 1922; 42 U.S.C. 1751, 1755, 1758, 1760, 1761, 1762a, 1766, 3030a, 5179, 5180.

2. In § 250.2: a. Remove definitions of Contracting agency and Fee-for-service. b. Add definitions in alphabetical order for Backhauling, Commingling, End product data schedule, In-State Processing Agreement, National Processing Agreement, Recipient Agency Processing Agreement, Replacement value, and State Participation Agreement.

The additions read as follows:

§ 250.2 Definitions.

Backhauling means the delivery of donated foods to a processor for processing from a distributing or recipient agency's storage facility.

Commingling means the storage of donated foods together with commercially purchased foods.

End product data schedule means a processor's description of its processing of donated food into a finished end product, including the processing yield of donated food.

In-State Processing Agreement means a distributing agency's agreement with an in-State processor to process donated foods into finished end products for sale to eligible recipient agencies or for sale to the distributing agency.

National Processing Agreement means an agreement between FNS and a multi-State processor to process donated foods into end products for sale to distributing or recipient agencies.

Recipient Agency Processing Agreement means a recipient agency's agreement with a processor to process donated foods and to purchase the finished end products.

Replacement value means the price assigned by the Department to a donated food which must reflect the current price in the market to ensure compensation for donated foods lost in processing or other activities. The replacement value may be changed by the Department at any time.

State Participation Agreement means a distributing agency's agreement with a multi-State processor to permit the sale of finished end products produced under the processor's National Processing Agreement to eligible recipient agencies in the State or to directly purchase such finished end products.

3. In § 250.11, revise paragraph (e) to read as follows:
§ 250.11 Delivery and receipt of donated food shipments.

(e) Transfer of title. In general, title to donated foods transfers to the distributing agency or recipient agency, as appropriate, upon acceptance of the donated foods at the time and place of delivery. Title to donated foods provided to a multi-State processor, in accordance with its National Processing Agreement, transfers to the distributing agency or recipient agency, as appropriate, upon acceptance of the finished end products at the time and place of delivery. However, when a recipient agency has contracted with a distributor to act as an authorized agent, title to finished end products containing donated foods transfers to the recipient agency upon delivery and acceptance by the contracted distributor. Notwithstanding transfer of title, distributing and recipient agencies must ensure compliance with the requirements of this part in the distribution, control, and use of donated foods.

4. In § 250.18, revise paragraph (b) to read as follows:
§ 250.18 Reporting requirements.

(b) Processor performance. Processors must submit performance reports and other supporting documentation, as required by the distributing agency or by FNS, in accordance with § 250.37(a), to ensure compliance with requirements in this part.

5. In § 250.19, revise paragraph (a) to read as follows:
§ 250.19 Recordkeeping requirements.

(a) Required records. Distributing agencies, recipient agencies, processors, and other entities must maintain records of agreements and contracts, reports, audits, and claim actions, funds obtained as an incident of donated food distribution, and other records specifically required in this part or in other Departmental regulations, as applicable. In addition, distributing agencies must keep a record of the value of donated foods each of its school food authorities receives, in accordance with § 250.58(e), and records to demonstrate compliance with the professional standards for distributing agency directors established in § 235.11(g) of this chapter. Processors must also maintain records documenting the sale of end products to recipient agencies, including the sale of such end products by distributors, and must submit monthly performance reports, in accordance with subpart C of this part and with any other recordkeeping requirements included in their agreements. Specific recordkeeping requirements relating to the use of donated foods in contracts with food service management companies are included in § 250.54. Failure of the distributing agency, recipient agency, processor, or other entity to comply with recordkeeping requirements must be considered prima facie evidence of improper distribution or loss of donated foods and may result in a claim against such party for the loss or misuse of donated foods, in accordance with § 250.16, or in other sanctions or corrective actions.

6. Revise Subpart C to read as follows: Subpart C—Processing of Donated Foods Sec. 250.30 Processing of donated foods into end products. 250.31 Procurement requirements. 250.32 Protection of donated food value. 250.33 Ensuring processing yields of donated foods. 250.34 Substitution of donated foods. 250.35 Storage, food safety, quality control, and inventory management. 250.36 End product sales and crediting for the value of donated foods. 250.37 Reports, records, and reviews of processor performance. 250.38 Provisions of agreements. 250.39 Miscellaneous provisions. Subpart C—Processing of Donated Foods
§ 250.30 Processing of donated foods into end products.

(a) Purpose of processing donated foods. Donated foods are most commonly provided to processors to process into approved end products for use in school lunch programs or other food services provided by recipient agencies. The ability to divert donated foods for processing provides recipient agencies with more options for using donated foods in their programs. For example, donated foods such as whole chickens or chicken parts may be processed into precooked grilled chicken strips for use in the National School Lunch Program. In some cases, donated foods are provided to processors to prepare meals or for repackaging. Use of a commercial facility to repackage donated foods, or to use donated foods in the preparation of meals, is considered processing in this part.

(b) Agreement requirement. The processing of donated foods must be performed in accordance with an agreement between the processor and FNS, between the processor and the distributing agency, or, if allowed by the distributing agency, between the processor and a recipient agency or subdistributing agency. However, a processing agreement will not obligate any party to provide donated foods to a processor for processing. The agreements described below are required in addition to, not in lieu of, competitively procured contracts required in accordance with § 250.31. The processing agreement must be signed by an authorized individual for the processor. The different types of processing agreements are described in this section.

(c) National Processing Agreement. A multi-State processor must enter into a National Processing Agreement with FNS in order to process donated foods into end products in accordance with end product data schedules approved by FNS. FNS also holds and manages such processor's performance bond or letter of credit under its National Processing Agreement, in accordance with § 250.32. FNS does not itself procure or purchase end products under a National Processing Agreement. A multi-State processor must also enter into a State Participation Agreement with the distributing agency in order to sell nationally approved end products in the State, in accordance with paragraph (d) of this section.

(d) State Participation Agreement. The distributing agency must enter into a State Participation Agreement with a multi-State processor to permit the sale of end products produced under the processor's National Processing Agreement to eligible recipient agencies in the State or to directly purchase such end products. The distributing agency may include other State-specific processing requirements in its State Participation Agreement, such as the methods of end product sales permitted, in accordance with § 250.36, or the use of labels attesting to fulfillment of meal pattern requirements in child nutrition programs. The distributing agency must utilize the following criteria in its selection of processors with which it enters into agreements. These criteria will be reviewed by the appropriate FNS Regional Office during the management evaluation review of the distributing agency.

(1) The nutritional contribution provided by end products;

(2) The marketability or acceptability of end products;

(3) The means by which end products will be distributed;

(4) Price competitiveness of end products and processing yields of donated foods;

(5) Any applicable labeling requirements; and

(6) The processor's record of ethics and integrity, and capacity to meet regulatory requirements.

(e) In-State Processing Agreement. A distributing agency must enter into an In-State Processing Agreement with an in-State processor to process donated foods into finished end products, unless it permits recipient agencies to enter into Recipient Agency Processing Agreements for such purpose, in accordance with paragraph (f) of this section. Under an In-State Processing Agreement, the distributing agency approves end product data schedules (except red meat and poultry) submitted by the processor, holds and manages the processor's performance bond or letter of credit, in accordance with § 250.32, and assures compliance with other processing requirements. The distributing agency may also purchase the finished end products for distribution to eligible recipient agencies in the State under an In-State Processing Agreement, or may permit recipient agencies to purchase such end products, in accordance with applicable procurement requirements. In the latter case, the In-State Processing Agreement is often called a “master agreement.” A distributing agency that procures end products on behalf of recipient agencies, or that limits recipient agencies' access to the procurement of specific end products through its master agreements, must utilize the following criteria in its selection of processors with which it enters into agreements. These criteria will be reviewed by the appropriate FNS Regional Office during the management evaluation review of the distributing agency.

(1) The nutritional contribution provided by end products;

(2) The marketability or acceptability of end products;

(3) The means by which end products will be distributed;

(4) Price competitiveness of end products and processing yields of donated foods;

(5) Any applicable labeling requirements; and

(6) The processor's record of ethics and integrity, and capacity to meet regulatory requirements.

(f) Recipient Agency Processing Agreement. The distributing agency may permit a recipient agency to enter into an agreement with an in-State processor to process donated foods and to purchase the finished end products in accordance with a Recipient Agency Processing Agreement. A recipient agency may also enter into a Recipient Agency Processing Agreement on behalf of other recipient agencies, in accordance with an agreement between the parties. The distributing agency may also delegate a recipient agency to approve end product data schedules or select nationally approved end product data schedules, review in-State processor performance reports, manage the performance bond or letter of credit of an in-State processor, and monitor other processing activities under a Recipient Agency Processing Agreement. All such activities must be performed in accordance with the requirements of this part. All Recipient Agency Processing Agreements must be reviewed and approved by the distributing agency. All recipient agencies must utilize the following criteria in its selection of processors with which it enters into agreements:

(1) The nutritional contribution provided by end products;

(2) The marketability or acceptability of end products;

(3) The means by which end products will be distributed;

(4) Price competitiveness of end products and processing yields of donated foods;

(5) Any applicable labeling requirements; and

(6) The processor's record of ethics and integrity, and capacity to meet regulatory requirements.

(g) Ensuring acceptability of end products. A distributing agency that procures end products on behalf of recipient agencies, or that otherwise limits recipient agencies' access to the procurement of specific end products, must provide for testing of end products to ensure their acceptability by recipient agencies, prior to entering into processing agreements. End products that have previously been tested, or that are otherwise determined to be acceptable, need not be tested. However, such a distributing agency must monitor product acceptability on an ongoing basis.

(h) Prohibition against subcontracting. A processor may not assign any processing activities under its processing agreement or subcontract to another entity to perform any aspect of processing, without the specific written consent of the other party to the agreement (i.e., distributing or recipient agency, or FNS, as appropriate). The distributing agency may, for example, provide the required consent as part of its State Participation Agreement or In-State Processing Agreement with the processor.

(i) Agreements between processors and distributors. A processor providing end products containing donated foods to a distributor must enter into a written agreement with the distributor. The agreement must reference, at a minimum, the financial liability (i.e., who must pay) for the replacement value of donated foods, not less than monthly end product sales reporting frequency, requirements under § 250.11, and the applicable value pass through system to ensure that the value of donated foods and finished end products are properly credited to recipient agencies. Distributing agencies can set additional requirements.

(j) Duration of agreements. In-State Processing Agreements and Recipient Agency Processing Agreements may be up to five years in duration. State Participation Agreements may be permanent. National Processing Agreements are permanent. Amendments to any agreements may be made, as needed, with the concurrence of both parties to the agreement. Such amendments will be effective for the duration of the agreement, unless otherwise indicated.

§ 250.31 Procurement requirements.

(a) Applicability of Federal procurement requirements. Distributing and recipient agencies must comply with the requirements in 2 CFR part 200 and part 400, as applicable, in purchasing end products, distribution, or other processing services from processors. Distributing and recipient agencies may use procurement procedures that conform to applicable State or local laws and regulations, but must ensure compliance with the procurement requirements in 2 CFR part 200 and part 400, as applicable.

(b) Required information in procurement documents. In all procurements of processed end products containing USDA donated foods, procurement documents must include the following information:

(1) The price to be charged for the end product or other processing service;

(2) The method of end product sales that will be utilized and assurance that crediting for donated foods will be performed in accordance with the applicable requirements for such method of sales in § 250.36;

(3) The value of the donated food in the end products; and

(4) The location for the delivery of the end products.

§ 250.32 Protection of donated food value.

(a) Performance bond or irrevocable letter of credit. The processor must obtain a performance bond or an irrevocable letter of credit to protect the value of donated foods to be received for processing prior to the delivery of the donated foods to the processor. The processor must provide the performance bond or letter of credit to the distributing or recipient agency, in accordance with its In-State or Recipient Agency Processing Agreement. However, a multi-State processor must provide the performance bond or letter of credit to FNS, in accordance with its National Processing Agreement. For multi-State processors, the minimum amount of the performance bond or letter of credit must be sufficient to cover at least 75 percent of the value of donated foods in the processor's physical or book inventory, as determined annually and at the discretion of FNS for processors under National Processing Agreements. For multi-state processors in their first year of participation in the processing program, the amount of the performance bond or letter of credit must be sufficient to cover 100 percent of the value of donated foods, as determined annually, and at the discretion of FNS. The surety company from which a bond is obtained must be listed in the most current Department of Treasury's Listing of Approved Sureties (Department Circular 570).

(b) Calling in the performance bond or letter of credit. The distributing or recipient agency must call in the performance bond or letter of credit whenever a processor's lack of compliance with this part, or with the terms of the In-State or Recipient Agency Processing Agreement, results in a loss of donated foods to a distributing or recipient agency and the processor fails to make restitution or respond to a claim action initiated to recover the loss. Similarly, FNS will call in the performance bond or letter of credit in the same circumstances, in accordance with National Processing Agreements, and will ensure that any monies recovered are reimbursed to distributing agencies for losses of entitlement foods.

§ 250.33 Ensuring processing yields of donated foods.

(a) End product data schedules. The processor must submit an end product data schedule, in a standard electronic format dictated by FNS, for approval before it may process donated foods into end products. For In-State Processing Agreements, the end product data schedule must be approved by the distributing agency and, for products containing donated red meat and poultry, the end product data schedule must also be approved by the Department. For National Processing Agreements, the end product data schedule must be approved by the Department. An end product data schedule must be submitted, and approved, for each new end product that a processor wishes to provide or for a previously approved end product in which the ingredients (or other pertinent information) have been altered. On the end product data schedule, the processor must describe its processing of donated food into an end product, including the following information:

(1) A description of the end product;

(2) The types and quantities of donated foods included;

(3) The types and quantities of other ingredients included;

(4) The quantity of end product produced; and

(5) The processing yield of donated food, which may be expressed as the quantity (pounds or cases) of donated food needed to produce a specific quantity of end product or as the percentage of raw donated food versus the quantity returned in the finished end product.

(b) Processing yields of donated foods. All end products must have a processing yield of donated foods associated with its production and this processing yield must be indicated on its end product data schedule. The processing yield options are limited to 100 percent yield, guaranteed yield, and standard yield.

(1) Under 100 percent yield, the processor must ensure that 100 percent of the raw donated food is returned in the finished end product. The processor must replace any processing loss of donated food with commercially purchased food of the same generic identity, of U.S. origin, and equal or better in all USDA procurement specifications than the donated food. The processor must demonstrate such replacement by reporting reductions in donated food inventories on performance reports by the amount of donated food contained in the finished end product rather than the amount that went into production. The Department may approve an exception if a processor experiences a significant manufacturing loss.

(2) Under guaranteed yield, the processor must ensure that a specific quantity of end product (i.e., number of cases) will be produced from a specific quantity of donated food (i.e., pounds), as determined by the parties to the processing agreement, and, for In-State Processing Agreements, approved by the Department. If necessary, the processor must use commercially purchased food of the same generic identity, of U.S. origin, and equal or better in all USDA procurement specifications than the donated food to provide the guaranteed number of cases of end product to the distributing or recipient agency, as appropriate. The guaranteed yield must be indicated on the end product data schedule.

(3) Under standard yield, the processor must ensure that a specific quantity of end product (i.e., number of cases), as determined by the Department, will be produced from a specific quantity of donated food. The established standard yield is higher than the yield the processor could achieve under normal commercial production and serves to reward those processors that can process donated foods most efficiently. If necessary, the processor must use commercially purchased food of the same generic identity, of U.S. origin, and equal or better in all USDA procurement specifications than the donated food to provide the number of cases required to meet the standard yield to the distributing or recipient agency, as appropriate. The standard yield must be indicated on the end product data schedule.

(c) Compensation for loss of donated foods. The processor must compensate the distributing or recipient agency, as appropriate, for the loss of donated foods, or for the loss of commercially purchased foods substituted for donated foods. Such loss may occur, for example, if the processor fails to meet the required processing yield of donated food or fails to produce end products that meet required specifications, if donated foods are spoiled, damaged, or otherwise adulterated at a processing facility, or if end products are improperly distributed. To compensate for such loss, the processor must:

(1) Replace the lost donated food or commercial substitute with commercially purchased food of the same generic identity, of U.S. origin, and equal or better in all USDA procurement specifications than the donated food; or

(2) Return end products that are wholesome but do not meet required specifications to production for processing into the requisite quantity of end products that meet the required specifications (commonly called rework products); or

(3) If the purchase of replacement foods or the reprocessing of products that do not meet the required specifications is not feasible, the processor may, with FNS, distributing agency, or recipient agency approval, dependent on which entity maintains the agreement with the processor, pay the distributing or recipient agency, as appropriate, for the replacement value of the donated food or commercial substitute.

(d) Credit for sale of by-products. The processor must credit the distributing or recipient agency, as appropriate, for the sale of any by-products produced in the processing of donated foods. The processor must credit for the net value of such sale, or the market value of the by-products, after subtraction of any documented expenses incurred in preparing the by-product for sale. Crediting must be achieved through invoice reduction or by another means of crediting.

(e) Labeling requirements. The processor must ensure that all end product labels meet Federal labeling requirements. A processor that claims end products fulfill meal pattern requirements in child nutrition programs must comply with the procedures required for approval of labels of such end products.

§ 250.34 Substitution of donated foods.

(a) Substitution of commercially purchased foods for donated foods. Unless its agreement specifically stipulates that the donated foods must be used in processing, the processor may substitute commercially purchased foods for donated foods that are delivered to it from a USDA vendor. The commercially purchased food must be of the same generic identity, of U.S. origin, and equal or better in all USDA procurement specifications than the donated food. Commercially purchased beef, pork, or poultry must meet the same specifications as donated product, including inspection, grading, testing, and humane handling standards and must be approved by the Department in advance of substitution. The processor may choose to make the substitution before the actual receipt of the donated food. However, the processor assumes all risk and liability if, due to changing market conditions or other reasons, the Department's purchase of donated foods and their delivery to the processor is not feasible. Commercially purchased food substituted for donated food must meet the same processing yield requirements in § 250.33 that would be required for the donated food.

(b) Prohibition against substitution and other requirements for backhauled donated foods. The processor may not substitute or commingle donated foods that are backhauled to it from a distributing or recipient agency's storage facility. The processor must process backhauled donated foods into end products for sale and delivery to the distributing or recipient agency that provided them and not to any other agency. Distributing or recipient agencies must purchase end products utilizing donated foods backhauled to their contracted processor. The processor may not provide payment for backhauled donated foods in lieu of processing.

(c) Grading requirements. The processing of donated beef, pork, and poultry must occur under Federal Quality Assessment Division grading, which is conducted by the Department's Agricultural Marketing Service. Federal Quality Assessment Division grading ensures that processing is conducted in compliance with substitution and yield requirements and in conformance with the end product data schedule. The processor is responsible for paying the cost of acceptance service grading. The processor must maintain grading certificates and other records necessary to document compliance with requirements for substitution of donated foods and with other requirements of this subpart.

(d) Waiver of grading requirements. The distributing agency may waive the grading requirement for donated beef, pork or poultry in accordance with one of the conditions listed in this paragraph (d). However, grading may only be waived on a case by case basis (e.g., for a particular production run); the distributing agency may not approve a blanket waiver of the requirement. Additionally, a waiver may only be granted if a processor's past performance indicates that the quality of the end product will not be adversely affected. The conditions for granting a waiver include:

(1) That even with ample notification time, the processor cannot secure the services of a grader;

(2) The cost of the grader's service in relation to the value of donated beef, pork or poultry being processed would be excessive; or

(3) The distributing or recipient agency's urgent need for the product leaves insufficient time to secure the services of a grader.

(e) Use of substituted donated foods. The processor may use donated foods that have been substituted with commercially purchased foods in other processing activities conducted at its facilities.

§ 250.35 Storage, food safety, quality control, and inventory management.

(a) Storage and quality control. The processor must ensure the safe and effective storage of donated foods, including compliance with the general storage requirements in § 250.12, and must maintain an effective quality control system at its processing facilities. The processor must maintain documentation to verify the effectiveness of its quality control system and must provide such documentation upon request.

(b) Food safety requirements. The processor must ensure that all processing of donated foods is conducted in compliance with all Federal, State, and local requirements relative to food safety.

(c) Commingling of donated foods and commercially purchased foods. The processor may commingle donated foods and commercially purchased foods, unless the processing agreement specifically stipulates that the donated foods must be used in processing, and not substituted, or the donated foods have been backhauled from a recipient agency. However, such commingling must be performed in a manner that ensures the safe and efficient use of donated foods, as well as compliance with substitution requirements in § 250.34 and with reporting of donated food inventories on performance reports, as required in § 250.37. The processor must also ensure that commingling of processed end products and other food products, either at its facility or at the facility of a commercial distributor, ensures the sale and delivery of end products that meet the processing requirements in this subpart—e.g., by affixing the applicable USDA certification stamp to the exterior shipping containers of such end products.

(d) Limitation on donated food inventories. Inventories of donated food at processors may not be in excess of a six-month supply, based on an average amount of donated foods utilized, unless a higher level has been specifically approved by the distributing agency on the basis of a written justification submitted by the processor. Distributing agencies are not permitted to submit food orders for processors reporting no sales activity during the prior year's contract period unless documentation is submitted by the processor which outlines specific plans for donated food drawdown, product promotion, or sales expansion. When inventories are determined to be excessive for a State or processor, e.g., more than six months or exceeding the established protection, FNS may require the transfer of inventory and/or entitlement to another State or processor to ensure utilization prior to the end of the school year.

(e) Reconciliation of excess donated food inventories. If, at the end of the school year, the processor has donated food inventories in excess of a six-month supply, the distributing agency may, in accordance with paragraph (d) of this section, permit the processor to carry over such excess inventory into the next year of its agreement, if it determines that the processor may efficiently store and process such quantity of donated foods. The distributing agency may also direct the processor to transfer such donated foods to other recipient agencies, or to transfer them to other distributing agencies, in accordance with § 250.12(e). However, if these actions are not practical, the distributing agency must require the processor to pay it for the donated foods held in excess of allowed levels at the replacement value of the donated foods.

(f) Disposition of donated food inventories upon agreement termination. When an agreement terminates, and is not extended or renewed, the processor must take one of the actions indicated in this paragraph (f) with respect to remaining donated food inventories, as directed by the distributing agency or recipient agency, as appropriate. The processor must pay the cost of transporting any donated foods when the agreement is terminated at the processor's request or as a result of the processor's failure to comply with the requirements of this part. The processor must:

(1) Return the donated foods, or commercially purchased foods that meet the substitution requirements in § 250.34, to the distributing or recipient agency, as appropriate; or

(2) Transfer the donated foods, or commercially purchased foods that meet the substitution requirements in § 250.34, to another distributing or recipient agency with which it has a processing agreement; or

(3) If returning or transferring the donated foods, or commercially purchased foods that meet the substitution requirements in § 250.34, is not feasible, the processor may, with FNS approval, pay the distributing or recipient agency, as appropriate, for the donated foods, at the contract value or replacement value of the donated foods, whichever is higher.

§ 250.36 End product sales and crediting for the value of donated foods.

(a) Methods of end product sales. To ensure that the distributing or recipient agency, as appropriate, receives credit for the value of donated foods contained in end products, the sale of end products must be performed using one of the methods of end product sales, also known as value pass through systems, described in this section. All systems of sales utilized must provide clear documentation of crediting for the value of the donated foods contained in the end products.

(b) Refund or rebate. Under this system, the processor sells end products to the distributing or recipient agency, as appropriate, at the commercial, or gross, price and must provide a refund or rebate for the value of the donated food contained in the end products. The processor may also deliver end products to a commercial distributor for sale to distributing or recipient agencies under this system. In both cases, the processor must provide a refund to the appropriate agency within 30 days of receiving a request for a refund from that agency. The refund request must be in writing, which may be transmitted via email or other electronic submission.

(c) Direct discount. Under this system, the processor must sell end products to the distributing or recipient agency, as appropriate, at a net price that incorporates a discount from the commercial case price for the value of donated food contained in the end products.

(d) Indirect discount. Under this system, also known as net off invoice, the processor delivers end products to a commercial distributor, which must sell the end products to an eligible distributing or recipient agency, as appropriate, at a net price that incorporates a discount from the commercial case price for the value of donated food contained in the end products. The processor must require the distributor to notify it of such sales, at least on a monthly basis, through automated sales reports or other electronic or written submission. The processor then compensates the distributor for the discount provided for the value of the donated food in its sale of end products. Recipient agencies should closely monitor invoices to ensure correct discounts are applied.

(e) Fee-for-service. (1) Under this system, the processor must sell end products to the distributing or recipient agency, as appropriate, at a fee-for-service, which includes all costs to produce the end products not including the value of the donated food used in production. Three basic types of fee-for-service are used:

(i) Direct shipment and invoicing from the processor to the recipient agency;

(ii) Fee-for-service through a distributor, where the processor ships multiple pallets of product to a distributor with a breakout of who owns what products; and

(iii) What is commonly known as Modified Fee-for-service, when the recipient agency has an authorized agent bill them for the total case price.

(2) The processor must identify any charge for delivery of end products separately from the fee-for-service on its invoice. If the processor provides end products sold under fee-for-service to a distributor for delivery to the distributing or recipient agency, the processor must identify the distributor's delivery charge separately from the fee-for-service on its invoice to the appropriate agency or may permit the distributor to bill the agency separately for the delivery of end products. The processor must require that the distributor notify it of such sales, at least on a monthly basis, through automated sales reports, email, or other electronic or written submission. When the recipient agency procures storage and distribution of processed end products separately from the processing of donated foods, the recipient agency may provide the distributor written approval to act as the recipient agency's authorized agent for the total case price (i.e., including the fee-for-service and the delivery charge), in accordance with § 250.11(e).

(f) Approved alternative method. The processor or distributor may sell end products under an alternative method approved by FNS and the distributing agency that ensures crediting for the value of donated foods contained in the end products.

(g) Donated food value used in crediting. In crediting for the value of donated foods in end product sales, the contract value of the donated foods, as defined in § 250.2, must be used.

(h) Ensuring sale and delivery of end products to eligible recipient agencies. In order to ensure the sale of end products to eligible recipient agencies, the distributing agency must provide the processor with a list of recipient agencies eligible to purchase end products, along with the quantity of raw donated food that is to be delivered to the processor for processing on behalf of each recipient agency. In order to ensure that the distributor sells end products only to eligible recipient agencies, the processor must provide the distributor with a list of eligible recipient agencies and either:

(1) The quantities of approved end products that each recipient agency is eligible to receive; or

(2) The quantity of donated food allocated to each recipient agency and the raw donated food (pounds or cases) needed per case of each approved end product.

§ 250.37 Reports, records, and reviews of processor performance.

(a) Performance reports. The processor must submit a performance report to the distributing agency (or to the recipient agency, in accordance with a Recipient Agency Processing Agreement) on a monthly basis, which must include the information listed in this paragraph (a). Performance reports must be submitted not later than 30 days after the end of the reporting period. The performance report must include the following information for the reporting period, with year-to-date totals:

(1) A list of all recipient agencies purchasing end products;

(2) The quantity of donated foods in inventory at the beginning of the reporting period;

(3) The quantity of donated foods received;

(4) The quantity of donated foods transferred to the processor from another entity, or transferred by the processor to another entity;

(5) The quantity of donated foods losses;

(6) The quantity of end products delivered to each eligible recipient agency;

(7) The quantity of donated foods remaining at the end of the reporting period;

(8) A certification statement that sufficient donated foods are in inventory or on order to account for the quantities needed for production of end products;

(9) Grading certificates, as applicable; and

(10) Other supporting documentation, as required by the distributing agency or recipient agency.

(b) Reporting reductions in donated food inventories. The processor must report reductions in donated food inventories on performance reports only after sales of end products have been made, or after sales of end products through distributors have been documented. However, when a recipient agency has contracted with a distributor to act as an authorized agent, the processor may report reductions in donated food inventories upon delivery and acceptance by the contracted distributor, in accordance with § 250.11(e). Documentation of distributor sales must be through the distributing or recipient agency's request for a refund (under a refund or rebate system) or through receipt of the distributor's automated sales reports or other electronic or written reports submitted to the processor (under an indirect discount system or under a fee-for-service system).

(c) Summary performance report. Along with the submission of performance reports to the distributing agency, a multi-State processor must submit a summary performance report to FNS, on a monthly basis and in a format established by FNS, in accordance with its National Processing Agreement. The summary report must include an accounting of the processor's national inventory of donated foods, including the information listed in this paragraph (c). The report must be submitted not later than 30 days after the end of the reporting period; however, the final performance report must be submitted within 60 days of the end of the reporting period. The summary performance report must include the following information for the reporting period:

(1) The total donated food inventory by State and the national total at the beginning of the reporting period;

(2) The total quantity of donated food received by State, with year-to-date totals, and the national total of donated food received;

(3) The total quantity of donated food reduced from inventory by State, with year-to-date totals, and the national total of donated foods reduced from inventory; and

(4) The total quantity of donated foods remaining in inventory by State, and the national total, at the end of the reporting period.

(d) Recordkeeping requirements for processors. The processor must maintain the following records relating to the processing of donated foods:

(1) End product data schedules and summary end product data schedules, as applicable;

(2) Receipt of donated foods shipments;

(3) Production, sale, and delivery of end products, including sales through distributors;

(4) All agreements with distributors;

(5) Remittance of refunds, invoices, or other records that assure crediting for donated foods in end products and for sale of byproducts;

(6) Documentation of Federal or State inspection of processing facilities, as appropriate, and of the maintenance of an effective quality control system;

(7) Documentation of substitution of commercial foods for donated foods, including grading certificates, as applicable;

(8) Waivers of grading requirements, as applicable; and

(9) Required reports.

(e) Recordkeeping requirements for the distributing agency. The distributing agency must maintain the following records relating to the processing of donated foods:

(1) In-State Processing Agreements and State Participation Agreements;

(2) End product data schedules or summary end product data schedules, as applicable;

(3) Performance reports;

(4) Grading certificates, as applicable;

(5) Documentation that supports information on the performance report, as required by the distributing agency (e.g., sales invoices or copies of refund payments);

(6) Copies of audits of in-State processors and documentation of the correction of any deficiencies identified in such audits;

(7) The receipt of end products, as applicable; and

(8) Procurement documents, as applicable.

(f) Recordkeeping requirements for the recipient agency. The recipient agency must maintain the following records relating to the processing of donated foods:

(1) The receipt of end products purchased from processors or distributors;

(2) Crediting for the value of donated foods contained in end products;

(3) Recipient Agency Processing Agreements, as applicable, and, in accordance with such agreements, other records included in paragraph (e) of this section, if not retained by the distributing agency; and

(4) Procurement documents, as applicable.

(g) Review requirements for the distributing agency. The distributing agency must review performance reports and other records that it must maintain, in accordance with the requirements in paragraph (e) of this section, to ensure that the processor:

(1) Receives donated food shipments;

(2) Delivers end products to eligible recipient agencies, in the types and quantities for which they are eligible;

(3) Meets the required processing yields for donated foods; and

(4) Accurately reports donated food inventory activity and maintains inventories within approved levels.

§ 250.38 Provisions of agreements.

(a) National Processing Agreement. A National Processing Agreement includes provisions to ensure that a multi-State processor complies with all of the applicable requirements in this part relating to the processing of donated foods.

(b) Required provisions for State Participation Agreement. A State Participation Agreement with a multi-State processor must include the following provisions:

(1) Contact information for all appropriate parties to the agreement;

(2) The effective dates of the agreement;

(3) A list of recipient agencies eligible to receive end products;

(4) Summary end product data schedules, with end products that may be sold in the State;

(5) Assurance that the processor will not substitute or commingle backhauled donated foods and will provide end products processed from such donated foods only to the distributing or recipient agency from which the foods were received;

(6) Any applicable labeling requirements;

(7) Other processing requirements implemented by the distributing agency, such as the specific method(s) of end product sales permitted;

(8) A statement that the agreement may be terminated by either party upon 30 days' written notice;

(9) A statement that the agreement may be terminated immediately if the processor has not complied with its terms and conditions; and

(10) A statement requiring the processor to enter into an agreement with any and all distributors delivering processed end products to recipient agencies that ensures adequate data sharing, reporting, and crediting of donated foods, in accordance with § 250.30(i).

(c) Required provisions of the In-State Processing Agreement. An In-State Processing Agreement must include the following provisions or attachments:

(1) Contact information for all appropriate parties to the agreement;

(2) The effective dates of the agreement;

(3) A list of recipient agencies eligible to receive end products, as applicable;

(4) In the event that subcontracting is allowed, the specific activities that will be performed under subcontracts;

(5) Assurance that the processor will provide a performance bond or irrevocable letter of credit to protect the value of donated foods it is expected to maintain in inventory, in accordance with § 250.32;

(6) End product data schedules for all end products, with all required information, in accordance with § 250.33(a);

(7) Assurance that the processor will meet processing yields for donated foods, in accordance with § 250.33;

(8) Assurance that the processor will compensate the distributing or recipient agency, as appropriate, for any loss of donated foods, in accordance with § 250.33(c);

(9) Any applicable labeling requirements;

(10) Assurance that the processor will meet requirements for the substitution of commercially purchased foods for donated foods, including grading requirements, in accordance with § 250.34;

(11) Assurance that the processor will not substitute or commingle backhauled donated foods and will provide end products processed from such donated foods only to the recipient agency from which the foods were received, as applicable;

(12) Assurance that the processor will provide for the safe and effective storage of donated foods, meet inspection requirements, and maintain an effective quality control system at its processing facilities;

(13) Assurance that the processor will report donated food inventory activity and maintain inventories within approved levels;

(14) Assurance that the processor will return, transfer, or pay for, donated food inventories remaining upon termination of the agreement, in accordance with § 250.35(f);

(15) The specific method(s) of end product sales permitted, in accordance with § 250.36;

(16) Assurance that the processor will credit recipient agencies for the value of all donated foods, in accordance with § 250.36;

(17) Assurance that the processor will submit performance reports and meet other reporting and recordkeeping requirements, in accordance with § 250.37;

(18) Assurance that the processor will obtain independent CPA audits and will correct any deficiencies identified in such audits, in accordance with § 250.20;

(19) A statement that the distributing agency, subdistributing agency, or recipient agency, the Comptroller General, the Department of Agriculture, or their duly authorized representatives, may perform on-site reviews of the processor's operation to ensure that all activities relating to donated foods are performed in accordance with the requirements in 7 CFR part 250;

(20) A statement that the agreement may be terminated by either party upon 30 days' written notice;

(21) A statement that the agreement may be terminated immediately if the processor has not complied with its terms and conditions;

(22) A statement that extensions or renewals of the agreement, if applicable, are contingent upon the fulfillment of all agreement provisions; and

(23) A statement requiring the processor to enter into an agreement with any and all distributors delivering processed end products to recipient agencies that ensures adequate data sharing, reporting, and crediting of donated foods, in accordance with § 250.30(i).

(d) Required provisions for Recipient Agency Processing Agreement. The Recipient Agency Processing Agreement must contain the same provisions as an In-State Processing Agreement, to the extent that the distributing agency permits the recipient agency to perform activities normally performed by the distributing agency under an In-State Processing Agreement (e.g., approval of end product data schedules, review of performance reports, or management of the performance bond). However, a list of recipient agencies eligible to receive end products need not be included unless the Recipient Agency Processing Agreement represents more than one (e.g., a cooperative) recipient agency.

(e) Noncompliance with processing requirements. If the processor has not complied with processing requirements, the distributing or recipient agency, as appropriate, may choose to not extend or renew the agreement and may immediately terminate it.

§ 250.39 Miscellaneous provisions.

(a) Waiver of processing requirements. The Food and Nutrition Service may waive any of the requirements contained in this part for the purpose of conducting demonstration projects to test program changes designed to improve the processing of donated foods.

(b) Processing activity guidance. Distributing agencies must develop and provide a processing manual or similar procedural material for guidance to contracting agencies, recipient agencies, and processors. Distributing agencies must revise these materials as necessary to reflect policy and regulatory changes. This guidance material must be provided to contracting agencies, recipient agencies, and processors at the time of the approval of the initial agreement by the distributing agency, when there have been regulatory or policy changes which necessitate changes in the guidance materials, and upon request. The manual must include, at a minimum, statements of the distributing agency's policies and procedures regarding:

(1) Contract approval;

(2) Monitoring and review of processing activities;

(3) Recordkeeping and reporting requirements;

(4) Inventory controls; and

(5) Refund applications.

(c) Guidance or information. Guidance or information relating to the processing of donated foods is included on the FNS website or may otherwise be obtained from FNS.

Dated: March 30, 2018. Brandon Lipps, Administrator, Food and Nutrition Service.
[FR Doc. 2018-09168 Filed 4-30-18; 8:45 am] BILLING CODE 3410-30-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2018-0335; Special Conditions No. 25-725-SC] Special Conditions: Bombardier Inc., Model BD-700-2A12 and BD-700-2A13 Series Airplanes; Flight Envelope Protection: High Incidence Protection System AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions; request for comments.

SUMMARY:

These special conditions are issued for the Bombardier Inc. (Bombardier), Model BD-700-2A12 and BD-700-2A13 series airplanes. These airplanes will have a novel or unusual design feature when compared to the state of technology envisioned in the airworthiness standards for transport category airplanes. This design feature is a high incidence protection system that replaces the stall warning system during normal operating conditions, prohibits the airplane from stalling, limits the angle of attack at which the airplane can be flown during normal low speed operation, and cannot be overridden by the flight crew. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

DATES:

This action is effective on Bombardier Inc. on May 1, 2018. Send comments on or before June 15, 2018.

ADDRESSES:

Send comments identified by Docket No. FAA-2018-0335 using any of the following methods:

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

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

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

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

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

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

FOR FURTHER INFORMATION CONTACT:

Joe Jacobsen, FAA, Airplane and Flight Crew Interface Section, AIR-671, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, 2200 South 216th Street, Des Moines, Washington 98198-6547; telephone 206-231-3158; email [email protected].

SUPPLEMENTARY INFORMATION:

The substance of these special conditions previously has been published in the Federal Register for public comment. These special conditions have been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and finds that, for the same reason, good cause exists for adopting these special conditions upon publication in the Federal Register.

Comments Invited

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

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

Background

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

Type Certification Basis

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

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

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

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

Novel or Unusual Design Features

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

A high incidence protection system that replaces the stall warning system during normal operating conditions, prohibits the airplane from stalling, limits the angle of attack at which the airplane can be flown during normal low speed operation, and cannot be overridden by the flight crew. The application of this angle-of-attack limit impacts the stall speed determination, the stall characteristics and stall-warning demonstration, and the longitudinal handling characteristics.

Discussion

The high incidence protection function prevents the airplanes from stalling at low speeds and, therefore, a stall warning system is not needed during normal flight conditions. If there is a failure of the high incidence protection function that is not shown to be extremely improbable, theses special conditions will apply. For example, stall warning must be provided in a conventional manner and the flight characteristics at the angle of attack for CLMAX must be suitable in the traditional sense.

These special conditions addressing the high incidence protection system will replace the applicable sections of 14 CFR part 25. Part I of the following special conditions is in lieu of §§ 25.21(b), 25.103, 25.145(a), 25.145(b)(6), 25.201, 25.203, 25.207, and 25.1323(d). Part II is in lieu of §§ 25.103, 25.105(a)(2)(i), 25.107(c) and (g), 25.121(b)(2)(ii)(A), 25.121(c)(2)(ii)(A), 25.121(d)(2)(ii), 25.123(b)(2)(i), 25.125(b)(2)(ii)(B), and 25.143(j)(2)(i).

These special conditions address this novel or unusual design feature on the Bombardier Model BD-700-2A12 and BD-700-2A13, and contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

Applicability

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

Conclusion

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

List of Subjects in 14 CFR Part 25

Aircraft, Aviation safety, Reporting and recordkeeping requirements.

Authority Citation

The authority citation for these special conditions is as follows:

Authority:

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

The Special Conditions

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

Part I: Stall Protection and Scheduled Operating Speeds Foreword

In the following paragraphs, “in icing conditions” means with the ice accretions (relative to the relevant flight phase) as defined in 14 CFR part 25, Amendment 121, appendix C.

1. Definitions

These special conditions use terminology that does not appear in 14 CFR part 25. For the purpose of these special conditions, the following terms describe certain aspects of this novel or unusual design feature:

a. High incidence protection system: A system that operates directly and automatically on the airplane's flight controls to limit the maximum angle of attack that can be attained to a value below that at which an aerodynamic stall would occur.

b. Alpha-limit: The maximum angle of attack at which the airplane stabilizes with the high incidence protection system operating, and the longitudinal control held on its aft stop.

c. V min: The minimum steady flight speed in the airplane's configuration under consideration with the high incidence protection system operating. See Part 1, paragraph 3 of these Special Conditions.

d. V min 1g: Vmin corrected to 1g conditions. See Part 1, paragraph 3, of these Special Conditions. It is the minimum calibrated airspeed at which the airplane can develop a lift force normal to the flight path and equal to its weight when at an angle of attack not greater than that determined for Vmin.

2. Capability and Reliability of the High Incidence Protection System

The applicant must establish the capability and reliability of the high incidence protection system. The applicant may establish this capability and reliability by flight test, simulation, or analysis as appropriate. The capability and reliability required are:

a. It must not be possible during pilot induced maneuvers to encounter a stall and handling characteristics must be acceptable, as required by Part 1, paragraph 5 of these Special Conditions;

b. The airplane must be protected against stalling due to the effects of wind-shears and gusts at low speeds as required by Part 1, paragraph 6 of these Special Conditions;

c. The ability of the high incidence protection system to accommodate any reduction in stalling incidence must be verified in icing conditions;

d. The high incidence protection system must be provided in each abnormal configuration of the high lift devices that is likely to be used in flight following system failures; and

e. The reliability of the system and the effects of failures must be acceptable in accordance with § 25.1309.

3. Minimum Steady Flight Speed and Reference Stall Speed

In lieu of § 25.103, the following requirements apply:

a. The minimum steady flight speed, Vmin, is the final, stabilized, calibrated airspeed obtained when the airplane is decelerated until the longitudinal control is on its stop in such a way that the entry rate does not exceed 1 knot per second.

b. The minimum steady flight speed, Vmin, must be determined in icing and non-icing conditions with:

i. The high incidence protection system operating normally.

ii. Idle thrust and automatic thrust system (if applicable) inhibited;

iii. All combinations of flaps setting and landing gear position for which Vmin is required to be determined;

iv. The weight used when reference stall speed, VSR, is being used as a factor to determine compliance with a required performance standard;

v. The most unfavorable center of gravity allowable; and

vi. The airplane trimmed for straight flight at a speed achievable by the automatic trim system.

c. The 1-g minimum steady flight speed, Vmin1g, is the minimum calibrated airspeed at which the airplane can develop a lift force (normal to the flight path) equal to its weight, while at an angle of attack not greater than that at which the minimum steady flight speed of Part 1, paragraph 3(a) of these special conditions is determined. It must be determined in icing and non-icing conditions.

d. The reference stall speed, VSR, is a calibrated airspeed defined by the applicant. VSR may not be less than a 1-g stall speed. VSR must be determined in non-icing conditions and expressed as:

ER01MY18.000 where— VCLmax = Calibrated airspeed obtained when the load-factor-corrected lift coefficient ER01MY18.001   is first a maximum during the maneuver   prescribed in condition (3)(e)(viii) of   these special conditions. nzw = Load factor normal to the flight path at VCLmax W = Airplane gross weight; S = Aerodynamic reference wing area; and q = Dynamic pressure.

e. VCLmax is determined in non-icing conditions with:

i. Engines idling, or, if that resultant thrust causes an appreciable decrease in stall speed, not more than zero thrust at the stall speed;

ii. The airplane in other respects (such as flaps and landing gear) in the condition existing in the test or performance standard in which VSR is being used;

iii. The weight used when VSR is being used as a factor to determine compliance with a required performance standard;

iv. The center of gravity position that results in the highest value of reference stall speed;

v. The airplane trimmed for straight flight at a speed achievable by the automatic trim system, but not less than 1.13 VSR and not greater than 1.3 VSR;

vi. None.

vii. The High Incidence Protection System adjusted, at the option of the applicant, to allow higher incidence than is possible with the normal production system; and

viii. Starting from the stabilized trim condition, apply the longitudinal control to decelerate the airplane so that the speed reduction does not exceed 1 knot per second.

4. Stall Warning

In lieu of § 25.207, the following requirements apply:

4.1 Normal Operation

If the design meets all conditions of Part 1, paragraph 2 of these special conditions, then the airplane need not provide stall warning during normal operation. The conditions of Part 1, paragraph 2 of these special conditions provide a level of safety equal to the intent of § 25.207, “Stall Warning”, so the provision of an additional, unique warning device is not required.

4.2 High Incidence Protection System Failure

For any failures of the high incidence protection system that the applicant cannot show to be extremely improbable, and that result in the capability of the system no longer satisfying any part of paragraph 2(a), (b), and (c) of Part 1 of these special conditions, the design must provide stall warning that protects against encountering unacceptable stall characteristics and against encountering stall.

a. This stall warning, with the flaps and landing gear in any normal position, must be clear and distinctive to the pilot and meet the requirements specified in Part 1, paragraphs 4.2(d) and 4.2(e) of these special conditions.

b. The design must also provide this stall warning in each abnormal configuration of the high lift devices that is likely to be used in flight following system failures.

c. The design may furnish this stall warning either through the inherent aerodynamic qualities of the airplane or by a device that will give clearly distinguishable indications under expected conditions of flight. However, a visual stall warning device that requires the attention of the crew within the flight deck is not acceptable by itself. If a warning device is used, it must provide a warning in each of the airplane configurations prescribed in paragraph 4.2(a) and for the conditions prescribed in paragraphs 4.2(d) and 4.2(e) of Part 1 of these special conditions.

d. In non-icing conditions, stall warning must provide sufficient margin to prevent encountering unacceptable stall characteristics and encountering stall in the following conditions:

i. In power off straight deceleration not exceeding 1 knot per second to a speed of 5 knots or 5 percent calibrated airspeed (CAS), whichever is greater, below the warning onset.

ii. In turning flight, stall deceleration at entry rates up to 3 knots per second when recovery is initiated not less than one second after the warning onset.

e. In icing conditions, stall warning must provide sufficient margin to prevent encountering unacceptable characteristics and encountering stall, in power off straight and turning flight decelerations not exceeding 1 knot per second, when the pilot starts a recovery maneuver not less than three seconds after the onset of stall warning.

f. An airplane is considered stalled when the behavior of the airplane gives the pilot a clear and distinctive indication of an acceptable nature that the airplane is stalled. Acceptable indications of a stall, occurring either individually or in combination are:

i. A nose-down pitch that cannot be readily arrested;

ii. Buffeting, of a magnitude and severity that is strong and effective deterrent to further speed reduction; or

iii. The pitch control reaches the aft stop, and no further increase in pitch attitude occurs when the control is held full aft for a short time before recovery is initiated.

g. An aircraft exhibits unacceptable characteristics during straight or turning flight decelerations if it is not always possible to produce and to correct roll and yaw by unreversed use of aileron and rudder controls, or abnormal nose-up pitching occurs.

5. Handling Characteristics at High Incidence 5.1 High Incidence Handling Demonstrations

In lieu of § 25.201, the following is required:

(a) Maneuvers to the limit of the longitudinal control, in the nose up sense, must be demonstrated in straight flight and in 30-degree banked turns with:

(i) The high incidence protection system operating normally;

(ii) Initial power conditions of:

(1) Power off; and

(2) The power necessary to maintain level flight at 1.5 VSR1, where VSR1 is the reference stall speed with flaps in approach position, the landing gear retracted and maximum landing weight.

(iii) None.

(iv) Flaps, landing gear, and deceleration devices in any likely combination of positions;

(v) Representative weights within the range for which certification is requested; and

(vi) The airplane trimmed for straight flight at a speed achievable by the automatic trim system.

(b) The following procedures must be used to show compliance in non-icing and icing conditions:

i. Starting at a speed sufficiently above the minimum steady flight speed to ensure that a steady rate of speed reduction can be established, apply the longitudinal control so that the speed reduction does not exceed 1 knot per second until the control reaches the stop;

ii. The longitudinal control must be maintained at the stop until the airplane has reached a stabilized flight condition and must then be recovered by normal recovery techniques;

iii. Maneuvers with increased deceleration rates;

(1) In non-icing conditions, the requirements must also be met with increased rates of entry to the incidence limit, up to the maximum rate achievable; and

(2) In icing conditions, with the anti-ice system working normally, the requirements must also be met with increased rates of entry to the incidence limit, up to 3 knots per second.

iv. Maneuver with ice accretion prior to operation of the normal anti-ice system.

v. With the ice accretion prior to operation of the normal anti-ice system, the requirement must also be met in deceleration at 1 knot per second up to full back stick.

5.2 Characteristics of High Incidence Maneuvers

In lieu of § 25.203, the following requirements apply:

a. Throughout maneuvers with a rate of deceleration of not more than 1 knot per second, both in straight flight and in 30-degree banked turns, the airplane's characteristics must be as follows:

i. There must not be any abnormal nose-up pitching.

ii. There must not be any uncommanded nose-down pitching, which would be indicative of stall. However, reasonable attitude changes associated with stabilizing the incidence at Alpha limit as the longitudinal control reaches the stop would be acceptable.

iii. There must not be any uncommanded lateral or directional motion and the pilot must retain good lateral and directional control, by conventional use of the controls, throughout the maneuver.

iv. The airplane must not exhibit buffeting of a magnitude and severity that would act as a deterrent from completing the maneuver specified in 5.1(a) of these special conditions.

b. In maneuvers with increased rates of deceleration, some degradation of characteristics is acceptable, associated with a transient excursion beyond the stabilized Alpha-limit. However, the airplane must not exhibit dangerous characteristics or characteristics that would deter the pilot from holding the longitudinal control on the stop for a period of time appropriate to the maneuver.

c. It must always be possible to reduce incidence by conventional use of the controls.

d. The rate at which the airplane can be maneuvered from trim speeds associated with scheduled operating speeds such as V2 and VREF, up to Alpha-limit, must not be unduly damped or be significantly slower than can be achieved on conventionally controlled transport airplanes.

5.3 Characteristics up to Maximum Lift Angle of Attack

In lieu of § 25.201, the following requirements apply:

a. In non-icing conditions:

Maneuvers with a rate of deceleration of not more than 1 knot per second up to the angle of attack at which VCLmax was obtained, as defined in paragraph 3 of Part 1 of these special conditions, must be demonstrated in straight flight and in 30-degree banked turns in the following configurations:

i. The high incidence protection deactivated or adjusted, at the option of the applicant, to allow higher incidence than is possible with the normal production system;

ii. Automatic thrust increase system inhibited (if applicable);

iii. Engines idling;

iv. Flaps and landing gear in any likely combination of positions; and

v. The airplane trimmed for straight flight at a speed achievable by the automatic trim system.

b. In icing conditions:

Maneuvers with a rate of deceleration of not more than 1 knot per second up to the maximum angle of attack reached during maneuvers from paragraph 5.1(b)(iii)(2) of these special conditions must be demonstrated in straight flight with:

i. The high incidence protection deactivated or adjusted, at the option of the applicant, to allow higher incidence than is possible with the normal production system;

ii. Automatic thrust increase system inhibited (if applicable);

iii. Engines idling;

iv. Flaps and landing gear in any likely combination of positions;

v. The airplane trimmed for straight flight at a speed achievable by the automatic trim system.

c. During the maneuvers used to show compliance with paragraphs 5.3(a) and (b) of these special conditions the airplane must not exhibit dangerous characteristics and it must always be possible to reduce angle of attack by conventional use of the controls. The pilot must retain good lateral and directional control, by conventional use of the controls, throughout the maneuver.

6. Atmospheric Disturbances

Operation of the high incidence protection system must not adversely affect aircraft control during expected levels of atmospheric disturbances, nor impede the application of recovery procedures in case of wind-shear. This must be demonstrated in non-icing and icing conditions.

7. Proof of Compliance

In lieu of § 25.21(b), “[Reserved],” the design must meet the following requirement:

(b) The flying qualities must be evaluated at the most unfavorable center-of-gravity position.

8. Sections 25.145(a), 25.145(b)(6), and 25.1323(d)

The design must meet the following modified requirements:

• For § 25.145(a), “Vmin” in lieu of “stall identification.”

• For § 25.145(b)(6), “Vmin” in lieu of “VSW.”

• For § 25.1323(d), “From 1.23 VSR to Vmin . . .,” in lieu of “1.23 VSR to stall warning speed . . .,” and, “. . . speeds below Vmin . . .” in lieu of “. . . speeds below stall warning . . . .”

Part II: Credit for Robust Envelope Protection in Icing Conditions

The following special conditions are in lieu of the specified paragraphs of § § 25.103, 25.105, 25.107, 25.121, 25.123, 25.125, 25.143, and 25.207.

1. In lieu of § 25.103, define the stall speed as provided in Part I, paragraph 3 of these special conditions.

2. In lieu of § 25.105(a)(2)(i), the following applies:

(i) The V2 speed scheduled in non-icing conditions does not provide the maneuvering capability specified in § 25.143(h) for the takeoff configuration, or apply 25.105(a)(2)(ii) unchanged.

3. In lieu of § 25.107(c′) and (g′), the following apply, with additional sections (c′) and (g′):

(c) In non-icing conditions, V2, in terms of calibrated airspeed, must be selected by the applicant to provide at least the gradient of climb required by § 25.121(b), but may not be less than—

(1) V2MIN;

(2) VR plus the speed increment attained (in accordance with § 25.111(c)(2)) before reaching a height of 35 feet above the takeoff surface; and

(3) A speed that provides the maneuvering capability specified in § 25.143(h).

(c′) In icing conditions with the “takeoff ice” accretion defined in part 25, appendix C, V2 may not be less than—

(1) The V2 speed determined in non-icing conditions; and

(2) A speed that provides the maneuvering capability specified in § 25.143(h).

(g) In non-icing conditions, VFTO, in terms of calibrated airspeed, must be selected by the applicant to provide at least the gradient of climb required by § 25.121(c), but may not be less than—

(1) 1.18 VSR; and

(2) A speed that provides the maneuvering capability specified in § 25.143(h).

(g′) In icing conditions with the “final takeoff ice” accretion defined in part 25, appendix C, VFTO may not be less than—

(1) The VFTO speed determined in non-icing conditions.

(2) A speed that provides the maneuvering capability specified in § 25.143(h).

4. In lieu of §§ 25.121(b)(2)(ii)(A), 25.121(c)(2)(ii)(A), and 25.121(d)(2)(ii), the following apply:

In lieu of § 25.121(b)(2)(ii)(A):

(A) The V2 speed scheduled in non-icing conditions does not provide the maneuvering capability specified in § 25.143(h) for the takeoff configuration; or

In lieu of § 25.121(c)(2)(ii)(A):

(A) The VFTO speed scheduled in non-icing conditions does not provide the maneuvering capability specified in § 25.143(h) for the en-route configuration; or

In lieu of § 25.121(d)(2)(ii):

(d)(2) The requirements of subparagraph (d)(1) of this paragraph must be met:

(ii) In icing conditions with the approach ice accretion defined in 14 CFR part 25, appendix C, in a configuration corresponding to the normal all-engines-operating procedure in which Vmin1g for this configuration does not exceed 110 percent of the Vmin1g for the related all-engines-operating landing configuration in icing, with a climb speed established with normal landing procedures, but not more than 1.4 VSR (VSR determined in non-icing conditions).

5. In lieu of § 25.123(b)(2)(i), the following applies:

(i) The minimum en-route speed scheduled in non-icing conditions does not provide the maneuvering capability specified in § 25.143(h) for the en-route configuration; or

6. In lieu of § 25.125(b)(2)(ii)(B) and § 25.125(b)(2)(ii)(C), the following applies:

(B) A speed that provides the maneuvering capability specified in § 25.143(h) with the approach ice accretion defined in 14 CFR part 25, appendix C.

7. In lieu of § 25.143(j)(2)(i), the following applies:

(i) The airplane is controllable in a pull-up maneuver up to 1.5 g load factor or lower if limited by angle-of-attack protection.

8. In lieu of § 25.207, “Stall warning,” to read as the requirements defined in these special conditions Part I, paragraph 4.

Issued in Des Moines, Washington, on April 25, 2018. Suzanne Masterson, Acting Manager, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service.
[FR Doc. 2018-09126 Filed 4-30-18; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 73 [Docket No. FAA-2017-1109; Airspace Docket No. 17-ASO-22] RIN 2120-AA66 Amendment for Restricted Area R-4403A; Stennis Space Center, MS AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This action amends the time of designation for restricted area R-4403A, Stennis Space Center, MS, from “Intermittent, 1000 to 0300 local time, as activated by NOTAM at least 24 hours in advance,” to “Intermittent by NOTAM at least 24 hours in advance.” The National Aeronautics and Space Administration (NASA) requested the change to meet requirements of the Space Launch System (SLS) Core Stage test program.

DATES:

Effective date 0901 UTC, July 19, 2018.

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it supports a change to restricted area R-4403A, Stennis Space Center, MS, to safely accommodate NASA test programs.

History

The FAA published a notice of proposed rulemaking (NPRM) in the Federal Register for Docket No. FAA-2017-1109 (83 FR 1319; January 11, 2018). The NPRM proposed to amend the time of designation for restricted area R-4403A, Stennis Space Center, MS, from “Intermittent, 1000 to 0300 local time, as activated by NOTAM at least 24 hours in advance,” to “Intermittent by NOTAM at least 24 hours in advance.” Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. No comments were received.

The Rule

The FAA is amending 14 CFR part 73 by changing the time of designation for restricted area R-4403A, Stennis Space Center, MS, from “Intermittent, 1000 to 0300 local time, as activated by NOTAM at least 24 hours in advance,” to “Intermittent by NOTAM at least 24 hours in advance.”

This change is required to provide the additional restricted area activation time needed to accommodate NASA's SLS Core Stage engine testing program. The current boundaries and designated altitude for R-4403A remain unchanged. Additionally, this action does not affect restricted areas R-4403B, C, E, or F (Note: there is no “D” subdivision).

Regulatory Notices and Analyses

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

Environmental Review

The FAA determined the modification of restricted area R-4403A, Stennis Space Center, MS, to be within the scope of the Navy and NASA's Environmental Assessment (EA) and Finding of No Significant Impact (FONSI) for the Redesignation and Expansion of Restricted Airspace R-4403 to Support Military Air-To-Ground Munitions Training and NASA Rocket Engine Testing At Stennis Space Center, Mississippi dated November 24, 2015; and the FAA's decision document adopting the airspace portion of the above cited EA titled “Federal Aviation Administration, Adoption of the Environmental Assessment and FONSI/ROD for Redesignation and Expansion of Restricted Airspace R-4403, Stennis Space Center, Hancock and Pearl River County, MS, and St Tammany Parrish, LA, signed on March 22, 2016; and that no further environmental review is required.

List of Subjects in 14 CFR Part 73

Airspace, Prohibited areas, Restricted areas.

The Amendment

In consideration of the foregoing, the Federal Aviation Administration amends 14 CFR part 73 as follows:

PART 73—SPECIAL USE AIRSPACE 1. The authority citation for part 73 continues to read as follows: Authority:

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

§ 73.44 [Amended]
2. Section 73.44 is amended as follows: R-4403A Stennis Space Center, MS [Amended]

By removing “Time of Designation. Intermittent, 1000 to 0300 local time, as activated by NOTAM at least 24 hours in advance,” and adding in their place:

Time of designation. Intermittent by NOTAM at least 24 hours in advance.

Issued in Washington, DC, on April 24, 2018. Rodger A. Dean, Jr., Manager, Airspace Policy Group.
[FR Doc. 2018-09101 Filed 4-30-18; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF HOMELAND SECURITY Secret Service 31 CFR Part 408 Restricted Buildings and Grounds AGENCY:

U.S. Secret Service, Department of Homeland Security.

ACTION:

Final rule.

SUMMARY:

This final rule repeals outdated U.S. Secret Service (“USSS”) regulations concerning the designation of and access to a temporary residence of the President or other USSS protectee. Due to amendments to the relevant statutory authority, the USSS regulations are no longer necessary. This final rule removes these outdated regulations, thereby bringing the CFR into alignment with the terms of the statutory authority and eliminating unnecessary provisions.

DATES:

Effective Date: May 1, 2018.

FOR FURTHER INFORMATION CONTACT:

Catherine Milhoan, USSS Office of Government and Public Affairs, (202) 406-5708.

SUPPLEMENTARY INFORMATION:

Background

As part of the Omnibus Crime Control Act of 1970, Congress enacted 18 U.S.C. 1752 (Temporary residence of the President) (“Section 1752”), making it unlawful to willfully and knowingly enter or remain in any building or grounds designated by the Secretary of the Treasury as a temporary residence of the President or the temporary offices of the President and his staff. Public Law 91-644, Title V, Sec. 18, 84 Stat. 1891-92 (Jan. 2, 1971). Subsection (d) of Section 1752 further authorized the Secretary of the Treasury:

(1) To designate by regulation the buildings and grounds which constitute the temporary residences of the President and the temporary offices of the President and his staff, and

(2) to prescribe regulations governing ingress or egress to such buildings and grounds and to posted, cordoned off, or otherwise restricted areas where the President is or will be temporarily visiting.

Department of Treasury regulations designating the temporary residence of the President and the temporary offices of the President and his staff and governing ingress and egress to those buildings and grounds are set forth in Chapter IV, part 408 of title 31 of the Code of Federal Regulations and consist of sections 408.1-408.3 (31 CFR 408.1-408.3). Section 1752 has been amended several times since its enactment in 1971. For example, amendments in 1982 modified subsection (d) to include the authority to issue regulations concerning the residences of USSS protectees in addition to the President. But further modifications in 2006 have eliminated the need for implementing regulations and have removed provisions regarding the issuance of regulations.

Need for Correction

In 2006, the Secret Service Authorization and Technical Modification Act of 2005, Public Law 109-177, Title VI, Sec. 602, 120 Stat. 252 (Mar. 9, 2006), amended Section 1752 to eliminate any reference to regulations. Subsection (d), which authorized the Secretary of the Treasury to issue regulations, was stricken. References to residences as “designated” were also eliminated throughout the text. Instead, the offense conduct was described as willfully and knowingly entering or remaining in any posted, cordoned off, or otherwise restricted area of a building or grounds where the President or other person protected by the USSS is or will be temporarily visiting or in any posted, cordoned off, or otherwise restricted area of a building or grounds so restricted in conjunction with an event designated as an event of national significance. With those amendments, the regulations found at 31 CFR part 408 became obsolete.

While Section 1752 was amended again in 2012, the authorization to the promulgate regulations was not reintroduced, and the statute in its current form makes no reference to regulation. Those amendments, made in the Federal Restricted Buildings and Grounds Improvement Act of 2011, Public Law 112-98, Sec. 2, 126 Stat. 263 (Mar. 8, 2012), reflect the most recent expression of Congressional intent. As in 2006, the 2012 amendments to Section 1752 reflect that the offense conduct is fully described in the text of the statute itself. Rather than identifying restricted residences and offices through regulation, the 2012 statutory amendments define those venues as any posted, cordoned off, or otherwise restricted of the White House or its grounds, the Vice President's official residence and its grounds, the building or grounds where a Secret Service protectee is or will be temporarily visiting, or a building or grounds that is restricted in conjunction with an event designated as a special event of national significance. There have been no amendments to Section 1752 since 2012.

The regulations found in part 408 were not removed after the enactment of the Secret Service Authorization and Technical Modification Act of 2005 or the Federal Restricted Buildings and Grounds Improvement Act of 2011. The regulations have also not been updated since 1984, well before the statutory language was changed in 2006 to eliminate all references to regulation. For instance, the regulations currently list the President's designated temporary residence in Santa Barbara County, California, as it was in the Reagan Administration.

The existing regulations are now obsolete and retaining them maintains an inconsistency between the terms of the statute itself and the outdated regulations. As a result, USSS is repealing part 408 in its entirety. This change will align the provisions of the CFR with the express language of the statute and eliminate any potential confusion as to the offense conduct at issue in Section 1752.

Executive Orders 13563, 12866, and 13771

Executive Orders 13563 and 12866 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”) directs agencies to reduce regulation and control regulatory costs. This rule is not a “significant regulatory action,” under section 3(f) of Executive Order 12866. Accordingly, the Office of Management and Budget has not reviewed this regulation.

DHS considers this final rule to be an Executive Order 13771 deregulatory action. See OMB's Memorandum titled “Guidance Implementing Executive Order 13771, Titled `Reducing Regulation and Controlling Regulatory Costs' ” (April 5, 2017).

This rule will serve to remove obsolete provisions and will eliminate any inconsistency between the offense conduct set forth in Section 1752 and the outdated regulatory provisions. This rule will not affect the current application of the terms of the statute. Instead, the rule will provide greater clarity for the public of its application. Therefore, this rule will not impose any costs on USSS or the public. DHS believes that removing the obsolete regulations will reduce confusion for the public and that streamlining the regulations will provide non-monetized efficiencies.

Inapplicability of Notice and Delayed Effective Date

Pursuant to 5 U.S.C. 553(b)(B) of the Administrative Procedure Act (APA), an agency may, for good cause, find that notice and public comment procedure on a rule is impracticable, unnecessary, or contrary to the public interest. Part 408 of 31 CFR contains obsolete regulations, which are no longer required pursuant to statutory authority. Further, USSS believes that maintaining outdated regulations causes confusion for the public. Therefore, USSS has determined that it would be unnecessary and contrary to the public interest to delay publication of this rule in final form pending an opportunity for public comment.

Under 5 U.S.C. 553(d)(3) of the APA, USSS has, for the same reasons, determined that there is good cause for this final rule to become effective immediately upon publication. USSS currently applies the terms of Section 1752 as they appear in the text of the statute as a matter of law. The repeal of obsolete regulations will serve to align the Code of Federal Regulations with the terms of the authorizing statute itself.

Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601 et seq.), as amended by the Small Business Regulatory Enforcement and Fairness Act of 1996, requires agencies to assess the impact of regulations on small entities. A small entity may be a small business (defined as any independently owned and operated business not dominant in its field that qualifies as a small business per the Small Business Act); a small not-for-profit organization; or a small governmental jurisdiction (locality with fewer than 50,000 people). The Regulatory Flexibility Act applies only to rules subject to notice and comment rulemaking requirements under the APA or any other law (5 U.S.C. 553(a)(2)). Because this rule is not subject to such notice and comment rulemaking requirements, the provisions of the Regulatory Flexibility Act do not apply. However, as discussed above in the “Executive Orders 13563, 12866, and 13771” section, this rule will impose no costs on the public, including small entities, because it merely eliminates outdated USSS regulations.

Signing Authority

Prior to March 1, 2003, USSS was a component of the Department of the Treasury. On November 25, 2002, the President signed the Homeland Security Act of 2002, 6 U.S.C. 101 et seq., Public Law 107-296, (the “HSA”), establishing the Department of Homeland Security (“DHS”). Pursuant to section 821 of the HSA, the USSS was transferred from Treasury to DHS effective March 1, 2003. Accordingly, this final rule to repeal Treasury regulations impacting USSS functions may be signed by the Secretary of Homeland Security.

List of Subjects in 31 CFR Part 408

Federal buildings and facilities, Security measures.

PART 408—[REMOVED AND RESERVED] Under 18 U.S.C. 1752 and for the reasons discussed in the preamble, amend 31 CFR chapter IV by removing and reserving part 408. Claire M. Grady, Acting Deputy Secretary.
[FR Doc. 2018-09230 Filed 4-30-18; 8:45 am] BILLING CODE 9110-18-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG 2017-1080] RIN 1625-AA00 Safety Zone; Sabine River, Orange, Texas AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary safety zone for certain navigable waters of the Sabine River, shoreline to shoreline, adjacent to the public boat ramp located in Orange, TX. This action is necessary to protect persons and vessels from hazards associated with a high speed boat race competition in Orange, TX. Entry of vessels or persons into this zone is prohibited unless authorized by the Captain of the Port Marine Safety Unit Port Arthur.

DATES:

This rule is effective from 8:30 a.m. on May 19, 2018 through 6 p.m. on May 20, 2018.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2017-1080 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email Mr. Scott Whalen, Marine Safety Unit Port Arthur, U.S. Coast Guard; telephone 409-719-5086, email [email protected].

SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Marine Safety Unit Port Arthur DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking PATCOM Patrol Commander § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. This safety zone must be established by May 19, 2018 and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule. The NPRM process would delay the establishment of the safety zone until after the dates of the high speed boat races and compromise public safety.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be impracticable and contrary to public interest because immediate action is needed to protecting participants, spectators, and other persons and vessels from the potential hazards during a high speed boat race on a navigable waterway.

III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Marine Safety Unit Port Arthur (COTP) has determined that the potential hazards associated with high speed boat races are a safety concern for vessels operating on the Sabine River. Possible hazards include risks of injury or death from near or actual contact among participant vessels and spectators or mariners traversing through the safety zone. This rule is needed to protect all waterway users, including event participants and spectators, before, during, and after the scheduled event.

IV. Discussion of the Rule

This rule establishes a temporary safety zone from 8:30 a.m. through 6 p.m. each day on from May 19, 2018 through May 20, 2018. The safety zone covers all navigable waters of the Sabine River, extending the entire width of the river, adjacent to the public boat ramp located in Orange, TX bounded by the Navy Pier One at latitude 30°05′50″ N to the north and latitude 30°05′33″ N to the south. The duration of the safety zone is intended to protect participants, spectators, and other persons and vessels, in the navigable waters of the Sabine River during the high speed boat races and will include breaks and opportunity for vessels to transit through the regulated area.

No vessel or person is permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. They may be contacted on VHF-FM channel 13 or 16, or by telephone at 409-719-5070. A designated representative may be a Patrol Commander (PATCOM). The PATCOM may be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The PATCOM may be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign “PATCOM”. The “official patrol vessels” consist of any Coast Guard, state, or local law enforcement and sponsor provided vessels assigned or approved by the COTP or a designated representative to patrol the zone. All persons and vessels not registered with the sponsor as participants or official patrol vessels are considered spectators.

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

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

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

V. Regulatory Analyses

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

A. Regulatory Planning and Review

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

This regulatory action determination is based on the size, location, and duration of the safety zone. This safety zone encompasses a less than half-mile stretch of the Sabine River for nine and a half hours on each of two days. Moreover, the Coast Guard will issue Broadcast Notice to Mariners (BNMs) via VHF-FM marine channel 16 about the zone, daily enforcement periods will include breaks that will provide an opportunity for vessels to transit through the regulated area, and the rule allows vessel to seek permission to enter the zone.

B. Impact on Small Entities

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

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

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

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

C. Collection of Information

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

D. Federalism and Indian Tribal Governments

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

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

E. Unfunded Mandates Reform Act

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

F. Environment

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a safety zone lasting nine and a half hours on each of two days that will prohibit entry on less than a one-half mile stretch of the Sabine River. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

G. Protest Activities

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

List of Subjects in 33 CFR Part 165

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

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

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

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

2. Add § 165.T08-1080 to read as follows:
§ 165.T08-1080 Safety Zone; Sabine River, Orange, Texas.

(a) Location. The following area is a safety zone: all navigable waters of the Sabine River, extending the entire width of the river, adjacent to the public boat ramp located in Orange, TX bounded by the Navy Pier One at latitude 30°05′50″ N to the north and latitude 30°05′33″ N to the south.

(b) Effective period. This section is effective from 8:30 a.m. on May 19, 2018 through 6 p.m. on May 20, 2018.

(c) Enforcement periods. This section will be enforced from 8:30 a.m. through 6 p.m. daily. Breaks in the racing will occur during the enforcement periods, which will allow for vessels to pass through the safety zone. The Captain of the Port Marine Safety Unit Port Arthur (COTP) or a designated representative will provide notice of breaks as appropriate under paragraph (e) of this section.

(d) Regulations. (1) In accordance with the general regulations in § 165.23, entry of vessels or persons into this zone is prohibited unless authorized by the COTP or a designated representative. They may be contacted on VHF-FM channel 13 or 16, or by phone at by telephone at 409-719-5070. A designated representative may be a Patrol Commander (PATCOM). The PATCOM may be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The Patrol Commander may be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign “PATCOM”.

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

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

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

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

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

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

(8) The COTP or a designated representative will terminate enforcement of the special local regulations at the conclusion of the event.

(e) Informational broadcasts. The COTP or a designated representative will inform the public of the effective period for the safety zone as well as any changes in the dates and times of enforcement through Local Notice to Mariners (LNMs), Broadcast Notices to Mariners (BNMs), and/or Marine Safety Information Bulletins (MSIBs) as appropriate.

Dated: April 24, 2018. Jacqueline Twomey, Captain, U.S. Coast Guard, Captain of the Port Marine Safety Unit Port Arthur.
[FR Doc. 2018-09122 Filed 4-30-18; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0118] RIN 1625-AA00 Safety Zone, Volvo Ocean Race Newport; East Passage, Narragansett Bay, RI AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary safety zone in the navigable waters of the East Passage, Narragansett Bay, RI, during the Volvo Ocean Race Newport marine event from May 17 to May 21, 2018. This safety zone is intended to safeguard mariners from the hazards associated with high-speed, high-performance sailing vessels competing in inshore races on the waters of the East Passage, Narragansett Bay, RI. Vessels will be prohibited from entering into, transiting through, mooring, or anchoring within this safety zone during periods of enforcement unless authorized by the Captain of the Port (COTP), Southeastern New England or the COTP's designated representative or Patrol Commander (PATCOM).

DATES:

This rule is effective from 11 a.m. May 17, 2018 through 7 p.m. May 21, 2018.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2018-0118 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email LT Arthur Frooks, Waterways Management Division, Sector Southeastern New England, U.S. Coast Guard; telephone 401-435-2355, email [email protected]

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

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) because it is impractical to provide and publish an NPRM with a full comment period. This safety zone is necessary to ensure the safety of vessels and persons in the East Passage before, during, and after the event. It is impractical to publish an NPRM, request comment, and then publish a final rule as this safety zone must be effective by May 17, 2018.

Under 5 U.S.C. 553(d)(3), the Coast Guard also finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be impracticable because, in order to protect persons and vessels from the dangers associated with the scheduled event, it is necessary the safety zone is established by May 17, 2018.

III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port (COTP) Southeastern New England has determined that the Newport Volvo Ocean Race presents a potential safety concern to vessels, people, and the navigable waters of the East Passage of Narragansett Bay in the vicinity of Newport, R.I. This event is part of a world-wide race and it is expected to generate national and international media coverage, in addition to spectators on a number of recreational and excursion vessels. As a result, this rule is needed to ensure the safety of vessels and the navigable waters in the East Passage before, during, and after the scheduled event.

IV. Discussion of the Rule

The Coast Guard is establishing this safety zone, in conjunction with the Volvo Ocean Race Newport, to ensure the protection of the maritime public and event participants from the hazards associated with large-scale marine events. This safety zone is of similar dimension and duration to the one established in 2015. The safety zone will extend from an east-west line across the East Passage of Narragansett Bay at the Newport Pell Bridge south to the COLREGS demarcation line between Brenton Pt and Beavertail Pt. The safety zone will be enforced only during times of actual sailing vessel racing.

The East Passage of Narragansett Bay is the site of many marine events each year. As a result, vessel traffic, particularly recreational vessel traffic, is frequently required to utilize the West Passage of Narragansett Bay. Accordingly, the West Passage of Narragansett Bay may be a viable option for recreational vessels as well as many tug/barge combinations and smaller commercial vessels during the Volvo Ocean Race Newport.

Regardless, the Coast Guard anticipates that some commercial and/or recreational vessels may still need to transit the East Passage of Narragansett Bay for a variety of reasons, including destination, familiarity with the waterway, tide restrictions, etc. Vessels may be able to continue transits through the East Passage, even during enforcement of the safety zone, as there may be sufficient room for most recreational vessels, and some commercial vessels, to pass to the west of the safety zone. Also, the Coast Guard routinely works with the local marine pilot organization and shipping agents to coordinate vessel transits during marine events in the East Passage, and will continue to do so for the entire event to avoid major interruptions to shipping schedules.

V. Regulatory Analyses

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

A. Regulatory Planning and Review

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

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. We expect the adverse economic impact of this rule to be minimal. Although this regulation may have some adverse impact on the public, the potential impact will be minimized for the following reasons: the safety zone will be in effect for a maximum of eight hours each day for five consecutive days; vessels will only be restricted from the zone in the East Passage of Narragansett Bay during those limited periods when the races are actually ongoing; during periods when there is no actual racing (e.g., racing vessels transiting from the pier to the racing site, downtime between races, etc.) vessels may be allowed to transit through the safety zone; there is an alternate route, the West Passage of Narragansett Bay, that does not add substantial transit time, is already routinely used by mariners, and will not be affected by this safety zone; many vessels, especially recreational vessels, will still have sufficient room to transit the affected waterway; and vessels may enter or pass through the safety zone with the permission of the COTP or the COTP's representative.

Notification of the Volvo Ocean Race Newport and the associated safety zone will be made to mariners through the Rhode Island Port Safety Forum, Local Notice to Mariners, event sponsors, and local media well in advance of the event.

B. Impact on Small Entities

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

This rule will affect the following entities, some of which might be small entities: owners or operators of vessels intending to transit, fish, or anchor in the East Passage of Narragansett Bay, RI, during the Volvo Ocean Race Newport sailing races.

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

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

C. Collection of Information

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

D. Federalism and Indian Tribal Governments

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

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

E. Unfunded Mandates Reform Act

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

F. Environment

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of a temporary safety zone in conjunction with the four-day Volvo Ocean Race Newport event and a fifth day reserved as a “rain date” should inclement weather delay scheduled races. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination will be available in the docket where indicated under ADDRESSES.

G. Protest Activities

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

List of Subjects in 33 CFR Part 165

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

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

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

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

2. Add § 165.T01-0118 to read as follows:
§ 165.T01-0118 Safety Zone for Volvo Ocean Race Newport, East Passage, Narragansett Bay, RI.

(a) Location. The following area is a safety zone: From an east-west line across the East Passage of Narragansett Bay at the Newport Bridge south to the COLREGS demarcation line between Brenton Pt and Beavertail Pt.

(b) Enforcement period. Vessels will be prohibited from entering this safety zone, when enforced, during the Volvo Ocean Race Newport sailing vessel racing events each day between 11 a.m. and 7 p.m. from Thursday, May 17, 2018 to Monday, May 21, 2018.

(c) Definitions. The following definitions apply to this section:

(1) Designated representative. A “designated representative” is any Coast Guard commissioned, warrant, petty officer, or designated Patrol Commander of the U.S. Coast Guard who has been designated by the Captain of the Port, Sector Southeastern New England (COTP), to act on his or her behalf. The designated representative may be on an official patrol vessel or may be on shore and will communicate with vessels via VHF-FM radio or loudhailer. In addition, members of the Coast Guard Auxiliary may be present to inform vessel operators of this regulation.

(2) Official patrol vessels. Official patrol vessels may consist of any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement vessels assigned or approved by the COTP.

(3) Patrol commander. The Coast Guard may patrol this safety zone under the direction of a designated Coast Guard Patrol Commander. The Patrol Commander may be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign “PATCOM.”

(4) Spectators. Includes persons and vessels not registered with the event sponsor as participants or official patrol vessels.

(d) Regulations. (1) The general regulations contained in § 165.23 as well as the following regulations apply to the safety zone established in conjunction with the Volvo Ocean Race Newport, East Passage, Narragansett Bay, Newport, RI. These regulations may be enforced for the duration of the event.

(2) Approximately one hour prior to race start time each day of the event, the Coast Guard will announce via Safety Marine Information Broadcasts and local media the times and duration of each sailing race scheduled for that day, including the precise area(s) of the safety zone that will be enforced.

(3) Vessels may not transit through or within the safety zone during periods of enforcement without Patrol Commander approval. Vessels permitted to transit must operate at a no-wake speed, in a manner which will not endanger participants or other crafts in the event.

(4) Spectators or other vessels shall not anchor, block, loiter, or impede the movement of event participants or official patrol vessels in the safety zone unless authorized by an official patrol vessel.

(5) The Patrol Commander may control the movement of all vessels in the safety zone. When hailed or signaled by an official patrol vessel, a vessel shall come to an immediate stop and comply with the lawful directions issued. Failure to comply with a lawful direction may result in expulsion from the area, citation for failure to comply, or both.

(6) The Patrol Commander may delay or terminate the Volvo Ocean Race at any time to ensure safety. Such action may be justified as a result of weather, traffic density, spectator actions, or participant behavior.

Dated: April 16, 2018. R.J. Schultz, Captain, U.S. Coast Guard, Captain of the Port Southeastern New England.
[FR Doc. 2018-09187 Filed 4-30-18; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0304] RIN 1625-AA00 Safety Zone; Housatonic River, Milford and Stratford, CT AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is establishing a temporary safety zone for certain waters of the Housatonic River. This action is necessary to provide for the safety of life on these navigable waters near Milford and Stratford, CT, during a wire replacement project on the Devon Railroad Bridge. Entry of vessels or people into the safety zone is prohibited unless authorized by the Captain of the Port Long Island Sound or a designated representative. The safety zone will only be enforced during wire replacement operations or other instances which may create a hazard to navigation.

DATES:

This rule is effective without actual notice from May 1, 2018 through May 15, 2018. For the purposes of enforcement, actual notice will be used from April 5, 2018 through May 1, 2018.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2018-0304 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, contact Chief Petty Officer Katherine Linnick, Prevention Department, U.S. Coast Guard Sector Long Island Sound, telephone (203) 468-4565, email [email protected].

SUPPLEMENTARY INFORMATION: I. Table of Abbreviations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register LIS Long Island Sound NPRM Notice of Proposed Rulemaking NAD 83 North American Datum 1983 II. Background Information and Regulatory History

On March 19, 2018, Sector Long Island Sound was made aware of an emergency wire replacement project for the Devon Railroad Bridge over the Housatonic River near Stratford and Milford, CT. The Captain of the Port (COTP) Long Island Sound has determined that the potential hazards associated with the wire replacement project could be a safety concern for anyone within the safety zone.

The project runs from April 5, 2018 through May 15, 2018. During this project, CIANBRO Construction work boats will be in place to remove frayed guy wires currently spanning between two high towers above the Devon Railroad Bridge. Once the frayed guy wires are removed, CIANBRO Construction work boats will stretch new replacement guy wires across the navigable channel and will hoist the wires to the top of the high towers via a pull rope attached to a work boat, starting on the west side of the river, then finishing on the east side of the river. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP Long Island Sound or a designated representative. The safety zone will be enforced only when wires, cables, and rigging equipment are stretched across the navigable channel at low elevations during the wire replacement project or when other hazards to navigation arise. The Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 twenty-four (24) hours in advance to any period of enforcement or as soon as practicable in response to an emergency. If the project is completed prior to May 15, 2018, enforcement of the safety zone will be suspended and notice given via Broadcast Notice to Mariners.

The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing an NPRM with respect to this rule because doing so would be impracticable and contrary to the public interest. The late finalization of project details did not give the Coast Guard enough time to publish an NPRM, take public comments, and issue a final rule before the wire replacement project is set to begin. It would be impracticable and contrary to the public interest to delay promulgating this rule as it is necessary to protect the safety of the public and waterway users.

Under 5 U.S.C. 553(d)(3), and for the same reasons stated in the preceding paragraph, the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register.

III. Legal Authority and Need for Rule

The legal basis for this temporary rule is 33 U.S.C. 1231. The COTP Long Island Sound has determined that potential hazards associated with the wire replacement project, which runs from April 5, 2018 through May 15, 2018, will be a safety concern for anyone on the navigable waters within 100 yards of the wire replacement project. This rule is needed to protect people, vessels, and the marine environment within the safety zone until the wire replacement project is completed.

IV. Discussion of the Rule

This rule establishes a safety zone from 6:00 a.m. on April 5, 2018 through 6:00 p.m. on May 15, 2018. The safety zone will cover all navigable waters of the Housatonic River near Milford and Stratford, CT contained within the following area: Beginning at a point on land in position at 41°12′14.5″ N, 073°06′40.8″ W south of the Governor John Davis Lodge Turnpike (I-95) Bridge; then northeast across the Housatonic River to a point on land in position at 41°12′17.7″ N, 073°06′29.1″ W south of the Governor John Davis Lodge Turnpike (I-95) Bridge; then northwest along the shoreline to a point on land in position at 41°12′25″ N, 073°06′31″ W; then southwest across the Housatonic River to a point on land in position at 41°12′22″ N, 073°06′43″ W; then southeast along the shoreline back to point of origin (NAD 83). All positions are approximate.

The duration of the safety zone is intended to ensure the safety of vessels on the navigable waters within this zone before, during, and after each wire and cable suspension operation, or during any instance that necessitates a temporary closure of the Housatonic River at the project site. No vessel or person will be permitted to enter the safety zone without obtaining permission from the COTP Long Island Sound or a designated representative.

The Coast Guard will notify the public and local mariners of this safety zone through appropriate means, which may include, but are not limited to, publication in the Federal Register, the Local Notice to Mariners, and Broadcast Notice to Mariners via VHF-FM marine channel 16 twenty-four (24) hours in advance of any scheduled enforcement period. The regulatory text we are enforcing appears at the end of this document.

V. Regulatory Analyses

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

A. Regulatory Planning and Review

Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, it has not been reviewed by the Office of Management and Budget.

This regulatory action determination is based on the size, location, duration, and enforcement of the safety zone. The safety zone will impact only a small designated portion on the Housatonic River for 41 days. Although vessels will not be able to transit around this safety zone, this waterway is typically transited by small recreational craft on an infrequent basis prior to Memorial Day Weekend. Additionally, the safety zone will only be enforced when the wire replacement project necessitates closure of the waterway or during an emergency. The Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone and any periods of enforcement. Moreover, the rule allows vessels to seek permission to enter the zone.

B. Impact on Small Entities

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

While some owners or operators of vessels intending to transit this safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator. Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT.

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

C. Collection of Information

This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

D. Federalism and Indian Tribal Governments

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

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

E. Unfunded Mandates Reform Act

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

F. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This temporary rule creates a safety zone lasting 41 days. During those 41 days, the safety zone will be enforced only when the wire replacement project necessitates closure of the waterway or during an emergency. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination will be available in the docket where indicated under ADDRESSES.

G. Protest Activities

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

List of Subjects in 33 CFR Part 165

Harbors, Marine safety, Navigation (water), Reporting and record keeping requirements, Security measures, and Waterways.

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

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

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

2. Add § 165.T01-0304 to read as follows:
§ 165.T01-0304 Safety Zone; Housatonic River, Milford and Stratford, CT.

(a) Location. The following area is a safety zone: All navigable waters of the Housatonic River near Milford and Stratford, CT contained within the following area: Beginning at a point on land in position at 41°12′14.5″ N, 073°06′40.8″ W south of the Governor John Davis Lodge Turnpike (I-95) Bridge; then northeast across the Housatonic River to a point on land in position at 41°12′17.7″ N, 073°06′29.1″ W south of the Governor John Davis Lodge Turnpike (I-95) Bridge; then northwest along the shoreline to a point on land in position at 41°12′25″ N, 073°06′31″ W; then southwest across the Housatonic River to a point on land in position at 41°12′22″ N, 073°06′43″ W; then southeast along the shoreline back to point of origin (NAD 83). All positions are approximate.

(b) Effective and Enforcement period. This rule is effective from 6:00 a.m. on April 5, 2018 to 6:00 p.m. on May 15, 2018. The Coast Guard will issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 twenty-four (24) hours prior to any scheduled period of enforcement or as soon as practicable in response to an emergency.

(c) Definitions. The following definitions apply to this section:

(1) A “designated representative” is any Coast Guard commissioned, warrant or petty officer of the U.S. Coast Guard who has been designated by the Captain of the Port Long Island Sound (COTP), to act on his or her behalf. The designated representative may be on an official patrol vessel or may be on shore and will communicate with vessels via VHF-FM radio or loudhailer.

(2) An “Official patrol vessel” may be any Coast Guard, Coast Guard Auxiliary, state, or local law enforcement vessels assigned or approved by the COTP Long Island Sound. In addition, members of the Coast Guard Auxiliary may be present to inform vessel operators of this regulation.

(d) Regulations. (1) Under the general safety zone regulations in subpart C of this part, you may not enter or remain in the safety zone described in paragraph (a) of this section unless authorized by the COTP or one of the COTP's designated representatives.

(2) Any vessel that is granted permission by the COTP or a designated representative must proceed through the area with caution and operate at a speed no faster than necessary to maintain a safe course, unless otherwise required by the Navigation Rules.

(3) Any person or vessel permitted to enter the safety zone shall comply with the directions and orders of the COTP or a designated representative. Upon being hailed by a U.S. Coast Guard vessel by siren, radio, flashing lights, or other means, the operator of a vessel within the zone shall proceed as directed. Any person or vessel within the safety zone shall exit the zone when directed by the COTP or a designated representative.

(4) To seek permission to enter or remain in the safety zone, individuals may reach the COTP or a designated representative via Channel 16 (VHF-FM) or at 203-468-4401 (Sector Long Island Sound command center).

Dated: April 4, 2018. K.B. Reed, Commander, U.S. Coast Guard, Acting Captain of the Port Long Island Sound.
[FR Doc. 2018-09186 Filed 4-30-18; 8:45 am] BILLING CODE 9110-04-P
FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 54 [WC Docket Nos. 10-90; FCC 18-37] Connect America Fund AGENCY:

Federal Communications Commission.

ACTION:

Final rule.

SUMMARY:

In this document, the Federal Communications Commission (Commission) for the period beginning January 1, 2017, increases the amount of operating costs that carriers that predominantly serve Tribal lands can recover from the universal service fund (USF) in recognition that they are likely to have higher costs than carriers not serving Tribal lands. This action will provide additional funding to these carriers to provide both voice and broadband services to their customers.

DATES:

Effective May 31, 2018.

FOR FURTHER INFORMATION CONTACT:

Suzanne Yelen, Wireline Competition Bureau, (202) 418-7400 or TTY: (202) 418-0484.

SUPPLEMENTARY INFORMATION:

This is a summary of the Commission's Report and Order in WC Docket Nos. 10-90; FCC 18-37, adopted on March 27, 2018 and released on April 5, 2018. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street SW, Washington, DC 20554 or at the following internet address: https://transition.fcc.gov/Daily_Releases/Daily_Business/2018/db0405/FCC-18-37A1.pdf.

Synopsis I. Introduction

1. In this Report and Order (Order), for the period beginning January 1, 2017, the Commission increases the amount of operating costs that carriers that predominantly serve Tribal lands can recover from the universal service fund (USF) in recognition that they are likely to have higher costs than carriers not serving Tribal lands. This action will provide additional funding to these carriers to provide both voice and broadband services to their customers.

2. In March 2016, the Commission adopted the Rate-of-Return Reform Order and FNPRM establishing a new mechanism for the distribution of Connect America Fund support in rate-of-return areas. In the March 2016 Rate-of-Return Reform Order and Further Notice of Proposed Rulemaking (FNPRM), 81 FR 24282, April 25, 2016 and 81 FR 21511, April 12, 2016, the Commission adopted a limitation on the amount of operating expenses (opex) for which rate-of-return carriers may receive high-cost support, such that each carrier's opex eligible for high-cost support is limited to a regression model-generated opex per location plus 1.5 standard deviations. In the FNPRM, the Commission asked whether the opex limitations should be modified for carriers serving Tribal lands.

3. The Commission is persuaded based on the record before us that there is good reason to increase the opex limitation for carriers receiving legacy high-cost support that primarily serve Tribal lands because of the increased costs of providing service on Tribal lands. Both the National Tribal Telecommunications Association (NTTA) and Gila River Telecommunications, Inc. (GRTI) cite a number of unique costs faced by carriers serving Tribal lands. They explain that carriers generally must invest significant time and financial resources in securing rights-of-way and easements to install new broadband facilities on Tribal lands due to the number of permissions that must be obtained. Such permissions include the consent of multiple owners of allotted lands, as well as the consent of Tribal authorities, the Bureau of Indian Affairs (BIA), and other administrators and managers of Native trust lands. In some cases, letters of support from Tribal villages in or near the construction areas are also required. NTTA and GRTI represent that the process of obtaining Tribal cultural clearances, as well as the cost of compliance with the Archeological Resources Protection Act of 1979 and the National Historic Preservation Act of 1966, and coordination of National Environmental Protection Act compliance with BIA, are often significant. Commenters also point out that Tribal sovereignty issues require additional negotiation and legal review, that many Tribes require that qualified members of the Tribe be given preference in hiring and promotion, and that some Tribal authorities require construction observation by a Tribal member. In sum, the Commission is persuaded based on the record before us that there are unique costs associated with serving Tribal lands that warrant revisiting the opex limit adopted by us for this subset of carriers. Therefore, the Commission relaxes the opex limit for those study areas most in need where a majority of the housing units are on Tribal lands, as determined by the Bureau using U.S. Census data.

4. The Commission declines at this time to remove the opex limitation altogether and instead raise the limitation to 2.5 standard deviations above the regression-determined amount for those carriers that qualify subject to the criteria set out below. All carriers, including those that predominantly serve Tribal lands, should have incentives to prudently manage their operating expenditures. Although the Commission finds that carriers serving Tribal lands have expenses that are significantly greater than those serving non-Tribal lands, commenters have failed to show in this circumstance that there is no need for any opex limitation. Taking into account that factor, and mindful of the generally higher costs of serving Tribal lands, the Commission therefore decides that carriers whose opex limit will be relaxed will have their opex limitation raised to 2.5 standard deviations above the regression-determined amount. For example, as shown below, a carrier with $20,000 in opex costs and 58 percent of its opex eligible for support will now have 89 percent of its opex eligible for support. Moreover, when other carrier costs, such as taxes and capital expenses are considered, the opex limitation has a small effect on a carrier's revenue requirement.

Opex costs OPEX cost percent
  • eligible for support
  • Allowed opex costs
  • (opex costs * eligible
  • percent)
  • Other carrier costs Revenue
  • requirement
  • No Opex Limitation $20,000 100 $20,000 $15,000 $35,000 1.5 Standard Deviations 20,000 58 11,600 15,000 26,600 2.5 Standard Deviations 20,000 89 17,712 15,000 32,712

    5. In addition, the Commission limits this relief to those carriers meeting the following conditions. First, the carrier has not deployed broadband service of 10 Mbps download/1 Mbps upload to 90 percent or more of the housing units on the Tribal lands in its study area. Second, unsubsidized competitors have not deployed broadband service of 10 Mbps download/1 Mbps upload to 85 percent or more of the housing units on the Tribal lands in its study area. The Commission believes that these conditions will limit this relief to those carriers with the greatest need to accelerate broadband deployment.

    6. All universal service support must be necessary and reasonable for the provision, maintenance, and upgrading of facilities and services for which the support is intended. The Commission understands that some carriers serving Tribal lands may have significant sources of telecommunications-associated revenue which is passed through to a tribe or may have particular costs imposed by a tribe. The Commission expects Tribal carriers to be able to demonstrate in the event such revenue or costs are questioned that in fact the revenues or cost are necessary and reasonable for the provision, maintenance, and upgrading of facilities and services for which the support is intended.

    7. Bureau staff estimates in 2017 and/or 2018 that five carriers that have been affected by the opex cap are eligible for the relief. The Commission concludes that a 2.5 standard deviation limit will still provide an incentive for eligible carriers to avoid imprudent or unnecessary expenses, while recognizing the higher costs associated with providing service on Tribal lands. Because we determine that an opex limit of 2.5 standard deviations is appropriate for those study areas where a majority of the housing units are on Tribal lands and that meet our other conditions, we direct the Universal Service Administrative Company (USAC) to use the 2.5 standard deviation metric for these study areas for support calculations for the period beginning January 1, 2017, when the opex limitation was implemented.

    II. Procedural Matters A. Paperwork Reduction Act

    8. This document does not contain new information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. In addition, therefore, it does not contain any new or information collection burden for small business concerns with fewer than 25 employees, pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4).

    B. Congressional Review Act

    9. The Commission will send a copy of this Report and Order to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

    10. As required by the Regulatory Flexibility Act of 1980 (RFA), as amended, an Initial Regulatory Flexibility Analyses (IRFA) was incorporated in the Rate-of-Return Reform Order and/or FNPRM. The Commission sought written public comment on the proposals in the Rate-of-Return Reform FNPRM, including comment on the IRFA. The Commission did not receive any relevant comments in response to this IRFA. This Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

    11. The Report and Order increases the amount of operating expenses that rate-of-return carriers predominantly serving Tribal lands can recover from the universal service fund (USF). This increase recognizes that carriers serving Tribal lands are likely to have higher operating costs than carriers serving non-Tribal areas.

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

    13. There are three comprehensive, statutory small entity size standards. First, nationwide, there are a total of approximately 28.2 million small businesses, according to the SBA, which represents 99.7% of all businesses in the United States. In addition, a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of 2007, there were approximately 1,621,215 small organizations. Finally, the term “small governmental jurisdiction” is defined generally as “governments of cities, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” Census Bureau data for 2011 indicate that there were 90,056 local governmental jurisdictions in the United States. The Commission estimates that, of this total, as many as 89,327 entities may qualify as “small governmental jurisdictions.”

    14. The action taken in this Report and Order would affect a maximum of approximately 50 small entities and will likely only affect approximately seven or eight entities per year.

    15. No additional reporting, recordkeeping, or other compliance requirements are required by this Report and Order.

    16. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include (among others) the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. The Commission has considered all of these factors subsequent to receiving substantive comments from the public and potentially affected entities. The Commission has considered the economic impact on small entities, as identified in comments filed in response to the Rate-of-Return Reform FNPRM and its IRFA, in reaching its final conclusions and taking action in this proceeding.

    17. The Commission has, at the request of the carriers, increased the amount of operating expenses that rate-of-return carriers predominantly serving Tribal lands can recover from the universal service fund (USF). By raising this limitation, we recognize the higher costs of these small carriers in serving Tribal areas. The higher operating expense limit does not involve additional reporting or recordkeeping requirements.

    III. Ordering Clauses

    18. Accordingly, it is ordered, pursuant to the authority contained in sections 1, 2, 4(i), 5, 201-206, 214, 218-220, 251, 252, 254, 256, 303(r), 332, 403, and 405 of the Communications Act of 1934, as amended, and section 706 of the Telecommunications Act of 1996, 47 U.S.C. 151, 152, 154(i), 155, 201-206, 214, 218-220, 251, 252, 254, 256, 303(r), 332, 403, and 1302 that this Report and Order is adopted.

    19. It is further ordered that part 54, of the Commission's rules, 47 CFR part 54, is amended as set forth in the following.

    20. It is further ordered that the rules adopted herein will become effective May 31, 2018.

    21. It is further ordered that USAC implement the rule adopted herein for support calculations beginning January 1, 2017.

    List of Subjects in 47 CFR Part 54

    Communications common carriers, Health facilities, Infants and children, Internet, Libraries, Reporting and recordkeeping requirements, Schools, Telecommunications, Telephone.

    Federal Communications Commission. Marlene Dortch, Secretary, Office of the Secretary. Final Rules

    For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 54 as follows:

    PART 54—UNIVERSAL SERVICE 1. The authority citation for part 54 continues to read as follows: Authority:

    47 U.S.C. 151, 154(i), 155, 201, 205, 214, 219, 220, 254, 303(r), 403, and 1302 unless otherwise noted.

    2. Amend § 54.303 by adding paragraph (a)(6) to read as follows:
    § 54.303 Eligible Capital Investment and Operating Expenses.

    (a) * * *

    (6) For those study areas where a majority of the housing units are on Tribal lands, as determined by the Wireline Competition Bureau, and meet the following conditions, total eligible annual operating expenses per location shall be limited by calculating Exp (Ŷ + 2.5 * mean square error of the regression): The carrier serving the study area has not deployed broadband service of 10 Mbps download/1 Mbps upload to 90 percent or more of the housing units on the Tribal lands in its study area and unsubsidized competitors have not deployed broadband service of 10 Mbps download/1 Mbps upload to 85 percent or more of the housing units on the Tribal lands in its study area.

    [FR Doc. 2018-09066 Filed 4-30-18; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 54 and 64 [WC Docket Nos. 10-90, 14-58, 07-135, CC Docket No. 01-92; FCC 18-29] Connect America Fund, ETC Annual Reports and Certifications, Establishing Just and Reasonable Rates for Local Exchange Carriers, Developing a Unified Intercarrier Compensation Regime AGENCY:

    Federal Communications Commission.

    ACTION:

    Final rule.

    SUMMARY:

    In this document, the Federal Communications Commission (Commission) takes the next step in closing the digital divide through actions and proposals designed to stimulate broadband deployment in rural areas. To reach the Commission's objective, it must continue to reform its existing high-cost universal support programs. Building on earlier efforts to modernize high-cost universal support, it seeks to offer greater certainty and predictability to rate-of-return carriers and create incentives to bring broadband to the areas that need it the most.

    DATES:

    Effective May 31, 2018, except for §§ 54.313(f)(4) and 54.1305(j) which contains information collection requirements that have not been approved by OMB. The FCC will publish a document in the Federal Register announcing the effective date of those rules awaiting OMB approval.

    FOR FURTHER INFORMATION CONTACT:

    Suzanne Yelen, Wireline Competition Bureau, (202) 418-7400 or TTY: (202) 418-0484.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Report and Order and Third Order on Reconsideration in WC Docket Nos. 10-90, 14-58, 07-135, CC Docket No. 01-92; FCC 18-29, adopted on March 14, 2018 and released on March 23, 2018. The full text of this document is available for public inspection during regular business hours in the FCC Reference Center, Room CY-A257, 445 12th Street SW, Washington, DC 20554 or at the following internet address: https://transition.fcc.gov/Daily_Releases/Daily_Business/2018/db0323/FCC-18-29A1.pdf. The Notice of Proposed Rulemaking (NPRM) that was adopted concurrently with the Report and Order and Third Order on Reconsideration was published in the Federal Register on April 25, 2018.

    I. Introduction

    1. Universal service can—and must—play a critical role in helping to bridge the digital divide to ensure that rural America is not left behind as broadband services are deployed. The directive articulated by the Commission in 2011 remains as true today as it did then: “The universal service challenge of our time is to ensure that all Americans are served by networks that support high-speed internet access.” Though the Commission has made progress for rural Americans living in areas served by our nation's largest telecommunications companies, the rules governing smaller, community-based providers—rate-of-return carriers—appear to make it more difficult for these providers to serve rural America. As a result, approximately 11 percent of the housing units in areas served by rate-of-return carriers lack access to 10 Mbps downstream/1 Mbps upstream (10/1 Mbps) terrestrial fixed broadband service while 34 percent lack access to 25 Mbps downstream/3 Mbps upstream (25/3 Mbps). It is time to close this gap and ensure that all of those living in rural America have the high-speed broadband they need to participate fully in the digital economy.

    2. By improving access to modern communications services, the Commission can help provide individuals living in rural America with the same opportunities that those in urban areas enjoy. Broadband access fosters employment and educational opportunities, stimulates innovations in health care and telemedicine and promotes connectivity among family and communities. And as important as these benefits are in America's cities, they can be even more important in America's more remote small towns, rural, and insular areas. Rural Americans deserve to reap the benefits of the internet and participate in the 21st century society—not run the risk of falling yet further behind.

    3. In the Report and Order and Third Order on Reconsideration, the Commission takes the next step in closing the digital divide through actions designed to stimulate broadband deployment in rural areas. To reach its objective, the Commission must continue to reform its existing high-cost universal support programs. Building on earlier efforts to modernize high-cost universal service support, the Commission seeks to offer greater certainty and predictability to rate-of-return carriers and create incentives to bring broadband to the areas that need it most.

    4. Specifically, in this Report and Order the Commission takes several steps to increase broadband deployment in rural areas. First, to maximize available funding for broadband networks, the Commission codifies existing rules that protect the high-cost universal service support program from waste, fraud, and abuse by explicitly prohibiting the use of federal high-cost support for expenses that are not used for the provision, maintenance, and upgrading of facilities and services for which the high-cost support is intended. The Commission also adopts additional compliance obligations that will assist us in determining whether high-cost recipients comply with the requirement to spend high-cost funds only on eligible expenses. Additionally, for rate-of-return carriers, the Commission adopts a presumption against recovery through interstate rates for specific types of expenses not used and useful in the ordinary course and identify other expenses that the Commission presumes are not used and useful unless customary for similarly situated companies. Second, in exchange for increased broadband deployment obligations, the Commission offers additional high-cost support to those rate-of-return carriers that previously accepted model-based support. Next, to ensure stability in the contribution factor pending ongoing implementation of various high-cost reforms, the Commission directs the Universal Service Administrative Company (USAC) to continue forecasting a uniform quarterly amount of high-cost demand pending further Commission action.

    5. In the Third Order on Reconsideration, the Commission resolves or clarifies a number of issues raised in several petitions for reconsideration of the Commission's 2016 Rate-of-Return Reform Order, 81 FR 24282, April 25, 2016. Taken together, the Commission expects that these actions will provide greater stability and certainty in the high-cost program and therefore spur additional broadband deployment to the areas that need it most.

    II. Report and Order

    6. In this Report and Order, the Commission adopts reforms to ensure that high-cost universal service support provided to eligible telecommunications carriers (ETCs) is used only for the provision, maintenance, and upgrading of facilities and services for which the high-cost support is intended pursuant to section 254(e) of the Act. The Commission also adopts reforms to ensure that the investments and expenses that rate-of-return carriers recover through interstate rates are reasonable pursuant to section 201(b) of the Act. The Commission's findings here do not prevent rate-of-return carriers from incurring any particular investment or expense, but simply clarify the extent to which investments and expenses may be recovered through federal high-cost support and interstate rates. The rules the Commission adopts are prospective but the underlying obligations are preexisting and many of the rules the Commission adopts codify existing precedent. The Commission's rules and the used and useful standard have long governed ETCs and rate-of-return carriers' behavior. Nothing the Commission does in this Report and Order is intended to undermine its precedent.

    7. Discussion.—Recent events by carriers involving large-scale abuses in the recovery of expenses that are unrelated to the provision of a universal service supported services give us cause to provide more specific rules for compliance with section 254(e). The Commission has a duty to the public to protect against waste, fraud, and abuse and ensure ETCs utilize finite universal service funds most effectively for their intended purpose. Unrelated expenses detract from universal service goals. The Commission finds that section 254(e) provides that carriers can recover those expenses from high-cost support to the extent those expenses are used only for, directly related to, and incurred for the sole purpose of, the provision, maintenance, and upgrading of facilities and services for which the support is intended, i.e., supported voice and broadband. The use by Congress of the word “only” to modify the description of the uses of universal service support indicates that such support must be used exclusively for providing, maintaining and upgrading of facilities and services, so that support is not used for purposes other than those “for which the support is intended.” To the extent an expense is incurred in part for a recoverable business use and in part for a non-recoverable use, carriers may only recover from high-cost support that portion of expenses incurred for the provision, maintenance, and upgrading of facilities for which support is intended.

    8. Because the Commission establishes the contours of universal service programs under section 254, the statute vests it with the authority to determine the scope of expenditures “for which support is intended.” Having reviewed the record, the Commission now codifies a simple, clear, and carefully defined, non-exclusive, list of expense categories that are precluded from recovery via the high-cost programs of the Fund because the Commission finds it is not used “for the provision, maintenance and upgrading of facilities and services for which the support is intended.” In codifying a list of ineligible expenses, the Commission incorporates, with some modifications, expense categories the Commission previously identified as ineligible for high-cost support in the High-Cost Oct. 19, 2015 Public Notice and in the Rate-of-Return Reform Further Notice of Proposed Rulemaking (FNPRM), 81 FR 21511, April 12, 2016, and the Commission provides guidance going forward on the eligibility of expenses on which the Commission sought comment in the Rate-of-Return Reform FNPRM. The Commission recognizes that its approach differs from that proposed by the rural associations; however, the Commission finds that its approach is more consistent with the statutory requirements that high-cost support be used only for the provision, maintenance, and upgrading of facilities and services for which the support is intended. To the extent the Commission adopts new prohibitions on expenses that may be recovered from high-cost support, the Commission's rules apply on a prospective basis.

    9. The Commission organizes the types of goods and services as ineligible for support into three broad expense categories—personal expenses, expenses unrelated to operations, and corporate luxury goods—and within each broad category specify certain types of goods and services not eligible for support. The Commission cautions that this list is based on the record before us. As specified in the Commission's revised rules, this list is not a comprehensive list of expenses ineligible for high-cost support. This list provides a codified bright-line prohibition on seeking high-cost support for some types of expenses. However, the Commission reminds carriers that it is also prohibited from seeking support for any expenses that are not used only for the provision, maintenance, and upgrading of facilities and services for which the support is intended. The Commission intends to remain vigilant in protecting the Fund from waste, fraud, and abuse.

    10. Personal Expenses.—Initially, the Commission codifies the existing prohibition on recovery from the high-cost program for personal expenses of employees, board members, family members of employees and board members, contractors, or any other individuals affiliated with the ETC, including but not limited to personal expenses for personal travel, personal vehicles, housing, such as rent, mortgages, or housing allowances, childcare, employee gifts, and entertainment-related expenses including food and beverage, regardless of whether such expenses are paid directly by the individual or indirectly by the carrier in the form of allowances or gifts. Personal expenses are clearly not used for the provision of supported services and thus may not be recovered through high-cost support. Furthermore, the Commission cautions recipients of high-cost support that recovering these types of expenses from high-cost support may constitute outright fraud, waste, and abuse on the Fund, subjecting employees, executives, and board members to personal civil and criminal liability.

    11. The Commission already explicitly excludes personal travel expenses from high-cost support recovery. Personal travel expenses include airfare, car rentals, gas, lodging, and meals for personal use. Commenters overwhelmingly agree that personal travel is unrelated to the provision of a supported service and may not be recovered through high-cost support. In response to concerns raised by commenters, the Commission finds that, in contrast to personal travel expenses, reasonable work-related travel expenses are recoverable to the extent they are used for the provision, maintenance, and upgrading of facilities and services for which high-cost support is intended. For example, if an ETC's technician travels to repair a supported facility and such travel requires overnight accommodation, the ETC may recover that employee's reasonable hotel costs.

    12. The Commission already explicitly excludes expenses for personal vehicles and housing for personal use from high-cost support recovery. Commenters supported the continued exclusion. For example, an ETC is prohibited from recovering from high-cost support the purchase of a vehicle and home for personal use. To the extent a vehicle is used for both legitimate business purposes and non-business purposes, an ETC may only recover from high-cost support that portion of expenses incurred in connection with the provision, maintenance, and upgrading of supported services and facilities for which high-cost support is intended.

    13. Subject to the very narrow exception the Commission describes below, the prohibition concerning housing for personal use precludes ETCs from using high-cost support to provide housing allowances for employees. Some commenters claim that housing allowances are necessary to attract qualified employees and may be essential if affordable housing is not available in rural areas. Another commenter asserts that housing allowances are not a common operating expenditure. Regardless of whether such allowances are beneficial or commonly provided, they are not generally used for the provision, maintenance, and upgrading of facilities and services. Expenses for employee housing allowances are no different than other personal expenses for housing, which are disallowed, and the Commission codifies this prohibition.

    14. However, the Commission recognizes that it may be appropriate to seek high-cost support to recover the cost of providing temporary or seasonal lodging for employees providing service in remote areas with rugged terrain and extreme weather conditions where no other lodging is available. The Commission views this situation as analogous to per diem travel expenses for lodging, which can be a recoverable operating expense when such travel meets the statutory test for recoverable expenses. Reasonable temporary or seasonal lodging may only be recovered if used for the provision, maintenance, and upgrading of services and facilities for which high-cost support is intended. Housing allowances outside of this very narrow exception are prohibited and are excluded from high-cost support.

    15. Childcare expenses are not recoverable from high-cost support. Commenters argue that childcare is important to “attract and retain qualified employees.” Another commenter asserts that the “vast majority” of rural incumbent LECs are “too small to afford childcare” which they do not provide. Although the provision of childcare may be desirable and beneficial, such expenses are not used only for the provision, maintenance, and upgrading of supported facilities and services. Accordingly, such expenses are excluded from high-cost support.

    16. It is undisputed that gifts to employees may not be recovered through high-cost support. Gifts to employees are unrelated to the provision, maintenance, and upgrading of facilities and services for which high-cost support is intended, and therefore are excluded from high-cost support.

    17. Entertainment and food and beverage expenses, including but not limited to expenses incurred for meals to celebrate personal events, such as weddings, births, or retirements, are explicitly not recoverable through high-cost support. Some commenters agree that entertainment expenses in particular have not been recoverable in the past. Other commenters disagree, claiming that recovering entertainment expenses incurred for “client or vendor meetings, or attendance at board meetings” is a “common and accepted practice.” Some commenters maintain that they should be able to include food and beverage and entertainment expenses related to annual meetings, employee recognition, parties or picnics because such events build morale and improve service quality. The question is whether these expenses are used only for the provision, maintenance, and upgrading of facilities and services for which high-cost support is intended—not whether they are beneficial, desirable or common practice. Because these expenses do not meet the Commission's interpretation of what the statutory standard requires, the Commission excludes them from high-cost support. As noted above, the Commission acknowledges that meals provided during business-related travel may qualify as a reasonable per diem travel expense recoverable from high-cost support consistent with the Commission's interpretation of section 254(e).

    18. Finally, some commenters misread § 32.6720(j) of the Commission's rules as permitting universal service recovery for “`food services (e.g., cafeterias, lunch rooms and vending facilities).'” While cafeterias and dining facilities should be recorded in corporate operations accounts (Account 6720), it does not follow that these expenses can be recovered from high-cost support. Commenters argue that such costs are “insignificant and immaterial” and “offset by increased efficiencies.” At the same time, some commenters acknowledge that the vast majority of rate-of-return carriers do not provide cafeterias and dining facilities. Most rate-of-return carriers are able to serve their customers without having cafeterias and dining facilities for their employees precisely because these expenses are not solely related to the provision, maintenance, and upgrading of facilities and services for which the support is intended. Thus, consistent with the Commission's interpretation of section 254(e), ETCs may not recover from high-cost support expenses for food services and dining facilities, including cafeterias, lunch rooms, and vending facilities.

    19. Expenses Unrelated To Operations.—The Commission next codifies the existing prohibitions on recovering support for expenses unrelated to operations—including political contributions, charitable donations, scholarships, membership fees and dues in clubs and organizations, sponsorships of conferences or community events, and penalties or fines for statutory or regulatory violations, penalties or fees for late payments on debt, loans, or other payments—from high-cost support. ETCs calculate high-cost universal support, including high cost loop support (HCLS) and Connect America Fund Broadband Loop Support (CAF BLS) (formerly interstate common line support (ICLS)), based on their eligible capital investment and operating expenses pursuant to § 54.303. Expenses unrelated to operations, however, are not currently included in these high-cost support calculations. Instead, under the Commission's current rules, “nonoperating expenses”—including political contributions, contributions for charitable, social, or community welfare purposes, membership fees and dues in social, service and recreational or athletic clubs and organizations, and penalties and fines on account of violations of statutes—are recorded in Account 7300, presumed excluded from the costs of service in setting rates, and not included in high-cost support calculations. Expenses unrelated to operations have historically not been recoverable from high-cost support because by definition these expenses are not operational in nature and are ancillary to core business objectives. Expenses must fall within the scope of the statutory requirement that support be used “only for the provision, maintenance, and upgrading of facilities and services for which support is intended.” Below the Commission finds that various expenses unrelated to operations, including various Account 7300 nonoperating expenses, do not satisfy this standard and, thus, may not be recovered from high-cost support.

    20. Political contributions are expenses unrelated to operations that may not be recovered from high-cost support. The record supports the continued exclusion of political contributions from recovery through high-cost support. No commenter opposed this. Political contributions are not used only for the provision, maintenance, and upgrading of facilities and services for which support is intended. ETCs are still, of course, free to make political contributions to the extent permitted by other laws, but they cannot recover those expenses from high-cost support.

    21. In a related vein, the National Exchange Carrier Association (NECA) sought clarification on the extent to which the costs of “`[m]aintaining relations with government, regulators, other companies and the general public' such as `performing public relations and non-product-related corporate image advertising activities'” (Account 6720) should be included in universal service data submissions. At the outset, no commenter has provided any persuasive basis for determining how non-product-related corporate image advertising expenses are used for the provision, maintenance, and upgrading of supported services and facilities. Accordingly, corporate image advertising expenses may not be recovered from high-cost support. By contrast, expenses incurred to meet state, local, or federal regulatory requirements or obligations to provide supported services including preparing tariff and service cost filings and obtaining plant construction permits are allowable under section 254(e) to the extent that they are a precondition to providing supported services. Additionally, contracting expenses (excluding sales contracts) such as negotiating pole attachment rights-of-way and interconnection agreements that are a precondition to providing supported service are recoverable from the high-cost program consistent with the Act.

    22. Charitable donations and scholarships are expenses unrelated to operations that may not be recovered from high-cost support. The Commission recognizes the benefits charitable donations provide to the community, as raised by multiple commenters. However, charitable donations are unrelated to the provision, maintenance, and upgrading of facilities and services for which the high-cost support is intended.

    23. Membership fees and dues in clubs and organizations, including social, service, and recreational or athletic clubs and organizations, as well as trade associations and organizations that provide professional or trade certifications such as state bar associations, are expenses unrelated to operations excluded from high-cost support. Commenters agree that these expenses related to social and recreational clubs and organizations are already excluded from high-cost support recovery. But those same and other commenters also argue that membership fees and dues in trade associations, chambers of commerce, state bar associations and professional certifications for specialized employees should be recoverable. The Commission recognizes the educational and training benefits that trade associations provide and that membership in chambers of commerce may help stimulate business. However, as other commenters acknowledge, a function of many of these organizations is advocacy on behalf of their members for the purpose of influencing public policy which is not used for the provision, maintenance, and upgrading of facilities and services for which support is intended. Just as ETCs may not recover lobbying expenses under the Commission's rules, similarly, they may not recover membership fees in organizations that engage in lobbying. Further, professional affiliations or certifications such as state bar associations, accounting associations, or other professional groups may facilitate general corporate functions but are not used only for the provision of supported facilities and services.

    24. No commenter opposed the prohibition on using high-cost support to sponsor conferences or community events. As the Commission has explained, sponsorships may be related to community interests but are not used for the provision, maintenance, and upgrading of facilities and services for which support is intended. The Commission continues to recognize that sponsorships of conferences or community events may benefit the community and the ETC, but such expenses do not satisfy the statutory standard for recovery.

    25. Costs incurred as penalties or fines on account of violations of statutes, including judgments and payments in settlement of civil and criminal suits alleging antitrust violations, are excluded from high-cost support. Such expenses are not used for the provision, maintenance, and upgrading of facilities and services for which the support is intended. Commenters did not take issue with this exclusion.

    26. Similar to penalties or fines for statutory or regulatory violations, costs incurred as penalties or fees for any late payments on debts, loans, or other payments are not used for the provision, maintenance, and upgrading of facilities and services for which the support is intended. Indeed, commenters recognize that such expenses “have typically not been recoverable in the past.” Penalties or fees for late payments on debt, loans, or other payments arguably are costs of doing business and mistakes will happen, but the costs of these mistakes and inefficiencies should not be borne by universal service contributors.

    27. Corporate Luxury Goods.—The Commission next codifies the prohibition on recovery from the high-cost program of expenses for corporate luxury goods, including artwork and other objects which possess aesthetic value, and corporate aircraft, watercraft, and other vehicles, with limited exception discussed below and codify the existing prohibitions on using high-cost support for tangible luxury goods, including consumer electronics for personal use, and tangible property used for entertainment purposes. None of these goods is used only for the provision, maintenance, and upgrading of facilities and services for which high-cost support is intended. Likewise, kitchen appliances are unrecoverable with a limited exception noted below.

    28. No commenter argues that artwork is used only for the provision, maintenance, or upgrading of facilities; instead commenters claim that artwork creates a pleasant work environment. While this may be the case, it is irrelevant to the question of whether such expenses meet the statutory standard. Because artwork is not used for the provision, maintenance, and upgrading of supported facilities and services, expenses for artwork must be excluded from high-cost support.

    29. Corporate aircraft, boats, and other off-road vehicles to the extent used by executives or board members are more akin to luxuries for personal benefit and not used for provision, maintenance, and upgrading of supported facilities and services. The Commission's proposed rule in the Rate-of-Return Reform FNPRM did make allowances “insofar as necessary to access inhabited portions of the study area not reachable by motor vehicles traveling on roads.” Commenters supported this exception and opposed a blanket exclusion of aircraft, watercraft, and the like as contrary to the Commission's objective of reducing waste and promoting efficiency. The Commission is persuaded that the use of aircraft and off-road vehicles often can be the “fastest, safest, most reliable and most efficient and least expensive way for technicians to reach remote areas to install, inspect or repair facilities.” The Commission encourages such efficiencies because they reduce burdens on the Fund and thus reduce universal service fees for subscribers. The Commission cautions ETCs that they may only recover from high-cost support that portion of aircraft, watercraft, and other vehicle expenses used for the provision, maintenance, and upgrading of supported services and facilities, not expenses used for the benefit of corporate executives and board members. Thus, the Commission will closely scrutinize these expenses, and ETCs seeking to recover these costs from high-cost support must retain records of their use in sufficient detail to justify recovery.

    30. Consumer electronics for personal use may not be recovered from high-cost support. Consumer electronics such as video games, televisions, and radios designed, marketed, and sold for everyday personal use by consumers, not business use, are analogous to a personal expense or an entertainment expense, both of which are not recoverable from high-cost support. The Commission acknowledges that consumer electronic devices such as laptops, monitors, smart phones, or other hand-held devices may serve valid business purposes. Accordingly, ETCs may only seek high-cost support for that portion of the expense associated with work use, consistent with the Commission's narrow interpretation of section 254(e). The Commission emphasizes that consumer electronics for personal use are never used for the provision, maintenance, and upgrading of facilities and services for which high-cost support is intended.

    31. Tangible property used for entertainment purposes (e.g., pool tables) may not be recovered from high-cost support. Commenters argue that property used for entertainment purposes builds morale and improves overall service quality. But, these expenses have no direct nexus to the provision, maintenance, or upgrading of facilities or supported services.

    32. Except in narrow circumstances referenced above, kitchen appliances may not be recovered from high-cost support except to the extent provided as part of temporary or seasonal lodging for employees providing supported service in rugged, remote areas as explained above. Commenters argued that kitchen appliances are useful for employees in “fulfillment of their company obligations in rural areas” and “relatively inexpensive and last for years.” The Commission recognizes that kitchen appliances may be a good investment for rural providers, but ultimately the standard is whether the item is used only for the “provision, maintenance, and upgrading of facilities and services for which the support is intended,” and kitchen appliances do not meet this standard, except in the very narrow circumstance described above.

    33. Compliance.—Based on the record received in response to the Rate-of-Return Reform FNPRM, the Commission adopts measures to ensure carrier compliance with the permitted expense rules adopted above for universal service support. Specifically, the Commission requires rate-of-return ETCs to identify on their annual FCC Form 481 (Carrier Annual Reporting Data Collection Form) their cost consultants and cost consulting firm, or other third party, if any, used to prepare cost studies, or other calculations used to calculate high-cost support for their submission. Disclosure of an ETC's cost consultants is a low-burden measure that will help the Commission identify waste, fraud, and abuse during audits. As at least one commenter explained, it is common business practice for rate-of-return carriers to hire cost consultants to prepare their financial and operations data disclosures used to justify high-cost support. The Commission agrees with commenters that discrepancies in permitted expenses disclosed on Form 481 prepared by a cost consultant may flow through to other carriers' represented by the same cost consultant. Identifying a carrier's cost consultants and cost consulting firms will help NECA, the Commission, and USAC identify and rectify patterns of noncompliance, and potentially fraud, during audits. This disclosure will ultimately help preserve the integrity of the Fund by ensuring that carriers only recover permitted expenses.

    34. The Commission declines at this time, however, to adopt a number of other compliance measures proposed in the Rate-of-Return Reform FNPRM. Specifically, the Commission declines to require a new certification from carriers attesting that they have not included any prohibited expenses in their cost submissions used to calculate high-cost support. Carriers' corporate officers are already required to certify that they are compliant with the Commission's rules. Carriers are also required to certify to the accuracy of their cost studies used to calculate HCLS pursuant to § 69.601(c) and CAF BLS pursuant to § 54.903(a)(3) and (4). The Commission further requires similar certifications for filings with NECA, Tariff Review Plans (TRPs), tariff filings for carriers that elect to receive CAF support, cost studies used to calculate high-cost support submitted to NECA and USAC and high-cost support. For example, willful false statements in data submissions to NECA or USAC are punishable by fine or imprisonment pursuant to U.S. Code, Title 18, Section 1001. Requiring carriers to submit an additional certification would not further encourage compliance but would be needlessly duplicative and burdensome. To the extent a carrier's corporate officer certifies compliance with the Commission's rules, such certification would cover compliance with the eligible expense rules, as amended.

    35. The Commission also does not believe it is necessary to alter NECA's role to enforce the rules adopted herein. NECA is an association of LECs established in 1984, at the direction of the Commission, to administer interstate access tariffs for LECs that do not file separate tariffs and to collect and distribute access charge revenues for those companies. NECA administers the process by which average schedule companies submit sampled data and cost companies submit cost studies that are ultimately used to calculate revenue requirements, rate base, and universal service disbursements. Carriers are required to submit certain cost data necessary to calculate high-cost support payments to NECA, certifying that they are accurate to the best of their knowledge, and NECA in turn analyzes that cost data, performs certain calculations and submits that information to USAC for use in determining support payments for eligible carriers. NECA has a responsibility to take reasonable precautions to ensure that the data it uses in preparing interstate access tariff filings and distributing interstate revenue comply with the Commission's rules. The Commission believes that NECA has sufficient authority and operational capability to provide oversight of its members with respect to high-cost support. Rather than expel carriers from the NECA pools as some commenters propose, the Commission encourages NECA to continue its oversight role, which it must do in compliance with the Commission's rules, and subject to Commission review. The Commission directs NECA to work with its members to develop processes to ensure compliance with the eligible expenses rules adopted herein to ensure that universal service support is being used only for its intended purposes. The Commission reminds NECA members that it is their responsibility to ensure that the expenses submitted to and used by NECA to calculate high-cost support are accurate and consistent with the Commission's rules. The Commission has authority to revoke section 214 authorizations based on misconduct, a finding that disqualifies that carrier from participation in the NECA pools.

    36. Finally, the Commission declines to adopt a “safe harbor” standard proposed by commenters that would insulate carriers from audit and enforcement liability if a carrier includes prohibited expenses but the “overall impact” is “immaterial.” The only way to determine if excluded expense are immaterial would be to conduct an audit. Moreover, the Commission believes that such an approach would not be in the public interest because it would not encourage strict compliance with the existing and revised permitted expense rules.

    37. The Commission reminds carriers that failure to keep Commission-prescribed accounts, records, and memoranda on the books is a violation of section 220(d) of the Act and may subject carriers to forfeiture liability in the amount of $6,000 for each day of the continuance of each such offense. Carriers' employees, executives, and board members may also be subject to personal liability for violations. Carriers' employees, executives, and board members that willfully make any false entry in Commission-prescribed accounts may be subject them to monetary penalties for violations of section 220(e) of the Act will be deemed guilty of a misdemeanor, and shall be subject, upon conviction, to a fine of not less than $1,000 nor more than $5,000 or imprisonment for a term of not less than one year nor more than three years, or both such fine and imprisonment. Furthermore, persons making willful false statements in data submissions to NECA, USAC, or the Commission can be punished by fine or imprisonment under the provisions Title 18, Section 1001, of the U.S. Code.

    38. Section 201(b) of the Communications Act requires that only reasonable investments and expenses be recovered through regulated interstate rates—a requirement the Commission has historically enforced through the “used and useful” standard. The Commission amends its rules to provide guidance to legacy rate-of-return LECs regarding investments and expenses that are presumed not used and useful (and thus unreasonable under section 201) and thus, as a general matter, may not be recovered through interstate rates. The Commission divides such investments and expenses into two broad categories: Those that the Commission does not expect would be used and useful in the ordinary course and those the Commission would not expect to be used and useful unless customary for similarly situated companies. The Commission notes that the second category is intended to capture types of expenses that may be customary among small companies (and based on their widespread usage the Commission may consider more likely to be used and useful) but are subject to abuse. For example, a small company may reasonably host a company picnic (to boost the morale of employees operating the interstate telecommunications network), which would be customary for small companies, but might not reasonably host an expensive banquet for employees at an out-of-state venue.

    39. The Commission makes clear that its actions are not intended to alter the scope of the used and useful standard—instead only to provide prospective guidance and a default presumption in certain cases. Legacy rate-of-return LECs are free to attempt to rebut the presumption by showing particular factual circumstances justifying recovery of these investments and expenses through interstate rates but cannot recover for such costs absent a particularized showing. To the extent that these investments and expenses are recovered through interstate rates, in the event of an audit or other investigation, the carrier bears the burden of demonstrating that such investments and expenses are used and useful despite the presumption that they are not.

    40. Discussion.—Commenters agree that several of the expenses and investments discussed in the Rate-of-Return Reform FNPRM are already excluded from ratemaking, while others argue they should be excluded prospectively. Based on the record, below the Commission discusses the specific categories of investments and expenses that it presumes are not used and useful in the ordinary course and those not used and useful unless customary for similarly situated companies.

    41. Personal Expenses.—Personal expenses including vehicles for personal use, and personal travel (such as transportation, lodging and meals) are presumed excluded from recovery through interstate rates. There is broad consensus in the record that personal expenses are not used and useful for the provision of interstate telecommunications services and therefore cannot, and should not, be recovered through interstate rates. Personal expenses are for the benefit of an individual affiliated with the rate-of-return LEC without an articulable business-related purpose and are not necessary or incurred to provide regulated service. Personal expenses are presumed not used and useful in the ordinary course.

    42. To the extent a rate-of-return LEC provides its employees, executives or board members, or any other individuals affiliated with the LEC with additional benefits, such as gifts, housing allowances, and childcare that are not part of taxable compensation, the Commission finds that these expenses are presumed not used and useful unless customary for similarly situated companies. As noted by commenters, cash or in-kind bonuses, housing allowances, or childcare may qualify as part of a taxable compensation package—and are subject to a presumption-free review under the used and useful standard. The Commission agrees with commenters that temporary housing offered as part of businesses-related travel lodging or a temporary work assignment may qualify as legitimate business expenses, not a personal expense, and do not warrant the presumption.

    43. Personal food and beverage expenses are presumed not used and useful whereas food and beverage expenses for work and work-related travel as well as costs of operating cafeterias and dining facilities are presumed not used and useful unless customary for similarly situated companies. The Commission clarifies that food and beverages purchased during business-related travel are not personal expenses. As noted by commenters, reasonable per diem travel expenses, including food and beverages, are commonly-accepted business expenses. Similarly, food and beverage expenses incurred as part of work-related entertainment such as company parties or picnics are likewise presumed not used and useful unless customary. The Commission's existing rules allow rate-of-return LECs to include expenses incurred operating cafeterias and dining facilities in general and administrative accounts used to calculate interstate rates. At the same time, ratepayers should not be forced to pay for excessive or imprudent expenses unrelated to business purposes or unnecessary to the provision of regulated services.

    44. Although commenters disagree on whether entertainment expenses should be recoverable, the Commission finds that entertainment expenses are presumed not used and useful unless customary for similarly situated companies. Entertainment expenses, such as musical entertainment or food and beverage expenses incurred at company parties or picnics, are a common business practice to improve employee morale but are subject to potential abuse.

    45. Expenses Unrelated to Operations.—The Commission clarifies that certain expenses unrelated to operations—including political contributions, membership fees and dues in social, service and recreational or athletic clubs and organizations, penalties or fines for statutory or regulatory violations, and penalties or fees for late payments on debt, loans, or other payments—are presumed not used and useful. As several commenters note, most of these nonoperating expenses are currently presumed to be excluded from the cost of service in setting rates. The record supports the continued presumption that these expenses are excluded from recovery through interstate rates.

    46. Although penalties or fees for late payments on debt, loans, or other payments have typically not been recovered through ratemaking, as noted by commenters, the Commission's rules do not contain an explicit prohibition. The Commission fails to see how these expenses can be distinguished from penalties or fines for statutory or regulatory violations which are currently presumed excluded from ratemaking. All of these expenses are imprudent—incurred when a carrier fails to adequately manage its business and operations. Ratepayers should not pay for expenses incurred due to irresponsible business practices. Accordingly, the Commission finds that penalties or fees for any late payments on debt, loans, or other payments are presumed not used and useful (and thus unreasonable).

    47. Under the Commission's current rules, membership fees and dues in social, service and recreational, or athletic clubs and organizations are presumed not used and useful and must be excluded from recovery via interstate rates. The Commission declines at this time to expand the scope of excluded fees and dues to cover additional types of fees, such as memberships in professional organizations and associations. As some commenters have argued, there is utility to customary memberships in professional organizations such as trade associations, chambers of commerce, and bar associations. As a result, membership fees and dues associated with professional organizations, unless customary for similarly situated companies, are presumed not used and useful.

    48. The Commission clarifies that other expenses unrelated to operations—including charitable donations, scholarships, sponsorships of conferences or community events—raise the potential for abuse and thus are presumed not used and useful unless customary for similarly situated companies. As commenters note, there appears to be a conflict in the Commission's rules regarding the treatment of charitable donations for ratemaking purposes. The Commission clarifies here, consistent with the justification provided in the 1987 Rate Base Order, 53 FR 1027, January 15, 1988, that the Commission's rules allow recovery of reasonable charitable donations through the interstate revenue requirement. The Commission agrees with commenters that reasonable charitable donations may to be appropriate to support the community in which it operates as a cost of doing business and part of “good corporate citizenship.” For similar reasons as charitable donations, the Commission finds that scholarships and sponsorships of conferences or community events likewise serve an important role in the community.

    49. Corporate Luxury Goods.—Although some corporate luxury goods are in fact customary, as a category it is subject to potential abuse. As such, expenses associated with corporate luxury goods—specifically corporate aircraft, watercraft, and other off-road vehicles used for work and work-related purposes, as well as artwork and other objects which possess aesthetic value that are displayed in the workplace—are presumed not used and useful (and thus unreasonable) unless customary for similarly situated companies. In the Rate-of-Return Reform FNPRM, the Commission proposed to allow recovery for corporate aircraft, watercraft, and other vehicles “insofar as necessary to access inhabited portions of the study area not reachable by motor vehicles traveling on roads.” Commenters support this proposal, asserting that a blanket ban is contrary to the Commission's objective of reducing waste and promoting efficiency. The Commission agrees that the use of aircraft and off-road vehicles can be the “fastest, safest, most reliable and most efficient and least expensive way for technicians to reach remote areas to install, inspect or repair facilities.” However, to avoid the risk of abuse, the Commission presumes that even vehicles used for work and work-related purposes are not used and useful unless customary for similarly situated companies. Based on the record, the Commission fully expects that carriers using such vehicles to access areas not seasonably reachable by road travel will be able to overcome the presumption, so long as they limit the use of aircraft, watercraft and off-road vehicles to work and work-related purposes. The Commission acknowledges that office artwork is a common business expense and should not place excessive burdens on ratepayers. Accordingly, expenses associated with artwork and other objects which possess aesthetic value that are displayed in the workplace are presumed not used and useful unless customary for similarly situated companies.

    50. The Rate-of-Return Reform FNPRM also proposed to prohibit recovery from interstate support “expenses for tangible property not logically related or necessary to offering voice or broadband service.” Such expenses include, for example, recreational equipment and consumer electronics not used for work purposes. These expenses are not used in the ordinary course for providing interstate telecommunications services, and so the Commission will presume them not used and useful (and thus unreasonable). Further, the Commission's rules provide that rate-of-return LECs may not recover investments and expenses unless “recognized by the Commission as necessary to the provision” of interstate telecommunications services. The Commission notes that, by definition, tangible property not logically related or necessary to offering voice or broadband service is not necessary or incurred to provide regulated interstate telecommunications service.

    51. Also in the Report and Order, the Commission directs the Bureau to offer additional Alternative Connect America Cost Model (A-CAM) support up to $146.10 per-location to all carriers that accepted the revised offers of model-based support. Under the revised offer, all locations with costs above $52.50 per location will be funded up to a per-location funding cap of $146.10, and the Bureau should adjust deployment obligations accordingly. If all eligible carriers accept this offer, the Commission anticipates that it would result in approximately $36.5 million more support per year for the 10-year A-CAM term. Increasing support immediately will result in additional broadband deployment, while balancing budgetary constraints pending the outcome of this proceeding. This increase in support does not impact legacy support.

    52. There is ample support in the record from carriers and state government officials, as well as from members of Congress, for increasing the budget for A-CAM. With additional funding, these parties have made clear the economic, educational, and healthcare benefits that will directly follow. The Commission's action today addresses these requests by extending a revised offer at $146.10, the same maximum per-location support amount as the Commission offered to price cap carriers for the Phase II offer of model-based support and as the Commission has proposed for the maximum reserve price in the Phase II auction. By raising the per-location cap to a uniform $146.10 for all current A-CAM recipients, the Commission could increase by more than 17,700 the number of locations that will receive 25/3 Mbps over the course of the support term, with another 14,000 locations receiving 10/1 Mbps. Although the Commission declines to extend the per-location funding cap to $200 at this time, the Commission seeks comment on doing so in the concurrently adopted NPRM, along with potential increases to the overall budget.

    53. The Commission directs the Bureau to release a public notice announcing the revised model-based support amounts and corresponding deployment obligations, and providing carriers with 45 days to confirm that they are will accept the revised offer. Any such election shall be irrevocable. In order to true up support that would have been disbursed in 2017 at the $146.10 per-location cap support amounts, the Commission directs USAC to make a one-time lump sum payment from excess cash in its high-cost account. USAC shall disburse that support the month following a Bureau public notice authorizing those carriers that accept this revised offer. The Commission further directs USAC to collect additional funds going forward to cover the increase in A-CAM support for the remainder of the support term.

    54. Finally, in the Report and Order, pursuant to § 54.709(a)(3) of the Commission's rules, the Commission directs USAC to continue forecasting a quarterly amount of high-cost demand at no less than one quarter of $4.5 billion until further Commission action, such as addressing the issues raised in the concurrently adopted NPRM. The concerns raised by the Commission in 2011 regarding support fluctuations resulting from implementation of the CAF remain true today. The Commission expects that there will continue to be shifts in support levels as the Commission transitions to paying winners of both upcoming universal service auctions (CAF Phase II and Mobility Fund II) while phasing down payments to current ETCs receiving frozen support amounts. At this time, the Commission cannot predict how those transitions will impact the overall CAF budget but will have a better sense of the impacts after the outcome of the auctions. It is in the public interest to collect a uniform amount to minimize unpredictable fluctuations in consumers' bills by allowing USAC to build up some excess cash to cover transitions without causing a dramatic shift in the quarterly contribution factor. Moreover, the Commission seeks comment in the concurrently adopted NPRM on whether to make certain adjustments to the rate-of-return support mechanisms, and building up excess cash leading up to an order on those decisions could lessen later increases to the contribution factor.

    55. USAC forecasted contributions based on an estimated demand of $1.06 billion for the first quarter of 2018, given that USAC's directive to collect $1.125 billion ended in 2017. To collect at least $4.5 billion for 2018, the Commission directs USAC to project for each of the final quarters of 2018 a total high-cost demand of at least $1.125 billion plus the difference between what it has already projected in 2018 based only on demand and the amount it would have collected had the Commission's prior direction continued into 2018, equally spread out over the final quarters. USAC shall place those excess funds in its high-cost account, pending further Commission decisions. USAC shall not take those excess funds into account when forecasting demand for 2018. If high-cost quarterly demand actually exceeds $1.125 billion plus the additional amount, no additional funds will accumulate in the high-cost cash account for that quarter and excess cash will be used to constrain the high-cost demand in the contribution factor. In other words, by the end of 2018, absent further direction by the Commission, USAC will have collected at least $4.5 billion for the deployment of broadband networks in high-cost areas. The Commission anticipates that it will take action on the concurrently adopted NPRM prior to the end of 2018 and will issue additional guidance to USAC at that time.

    III. Third Order on Reconsideration

    56. On May 25, 2016, five petitions were filed requesting that the Commission reconsider or clarify various aspects of the Rate-of-Return Reform Order. In April 2017, the Commission adopted an Order on Reconsideration, 82 FR 22901, May 19, 2017, in which it amended the capital investment allowance (CIA) rule limiting support for new construction projects with high average capital expenses. In a Second Order on Reconsideration and Clarification, 83 FR 14185, April 3, 2018, the Commission addressed the surrogate method for estimating consumer broadband-only loops (CBOLs) and the Access Recovery Charge imputation rule. In this Third Order on Reconsideration, the Commission addresses certain additional issues petitioners raised, including the mitigation of the budget control mechanism from July 2017 to June 2018; the addition of an inflation factor to calculate the operating expenses limitation; inclusion of broadband-only loops in calculating each carrier's corporate operations expense limitation; treatment of transferred exchanges; streamlined waivers; and the effect of the first A-CAM election on current budget for legacy rate-of-return carriers.

    57. Discussion.—To address the concerns raised by NTCA-The Rural Broadband Association (NTCA), the Commission grants its petition in part and eliminate the effect of the budget control mechanism for the period current budget year (from July 2017 to June 2018).

    58. During this budget year, the support claims of legacy rate-of-return carriers have been reduced by approximately $180 million due to application of the budget control mechanism—a 13 percent reduction in support. Moreover, the reductions in support are not evenly distributed among states or carriers. For example, carriers in Virginia are subject to an average 17 percent reduction in support while carriers in New Mexico have their support reduced overall by only 9 percent. Similarly, carriers within each state may be subject to drastically different reductions. In Iowa, one carrier has its support reduced by 17 percent while another carrier's support is only reduced by 8 percent. In Texas, carrier reductions range from 8 percent to 16 percent.

    59. NTCA claims these legacy support reductions, which are even greater than it predicted, endanger legacy carriers' ability to offer service at reasonably comparable rates, and could result in rural consumers paying “tens of dollars (or even hundreds of dollars) more per month than urban consumers for standalone broadband.” That claim has been borne out in fact: Based on FCC Form 481 data, 27 eligible telecommunications carriers could not certify to meeting the broadband reasonable comparability benchmark.

    60. Several parties support NTCA's assertions regarding the insufficient budget for legacy carriers as enforced through the budget control mechanism. GVNW states that the Commission should revisit the budget “to ensure sufficient support so that rural consumers may pay affordable rates.” The National Tribal Telecommunications Association also argues that “inadequate funding is leading to unreasonably comparable rates between rural Tribal areas and the urban areas of the United States,” and that the Commission “must act soon to provide the support necessary to ensure broadband capable facilities are deployed in these areas that allow for services being provided at affordable rates.” ITTA “shares the concerns expressed by NTCA . . . regarding the insufficiency” of the budget. The WTA-Advocates for Rural Broadband (WTA) Petition for Reconsideration of the Rate-of-Return Reform Order similarly asserts that the budget control mechanism is contributing to rates that are not reasonably comparable to urban areas.

    61. The Commission agrees with these concerns and find here that it is in the public interest to grant in part NTCA's petition for reconsideration. Specifically, the Commission reconsiders implementation of the budget control mechanism affecting claims from July 2017 to June 2018 by fully funding carrier claims during that period—such large and variable reductions in support have made support not sufficiently “predictable” for affected rate-of-return carriers to engage in the long-term planning for the high-speed broadband deployment needed in rural America. The Commission directs USAC, working with the Bureau, to determine an efficient methodology to calculate the amounts withheld as a result of the budget control mechanism and make payments to fully fund support claims to the affected carriers in a lump sum payment in the second full quarter after the effective date of this Third Order on Reconsideration, drawing first upon funds available in USAC's reserve account.

    62. Nonetheless, the Commission disagrees with NTCA's suggestion that it should go farther immediately and instead initiate a budget review to determine whether the current level of support is sufficient and predictable enough for carriers serving rural areas to provide service at rates comparable to those in urban areas. The Commission also seeks comment on how it can encourage more efficient use of carrier support and modify the budget control mechanism to provide more predictable support.

    63. Discussion.—The Commission grants NTCA's request regarding the opex limitation. The Commission recognizes that the opex limitation, which does not account for inflation, may constrain support for rising costs, potentially diminishing carriers' ability to maintain and support their networks, thereby potentially reducing service quality, and in turn harming consumers. The Commission therefore reconsiders how the opex limitation is calculated to include the inflationary adjustment factor GDP-CPI. The GDP-CPI is the same adjustment factor proposed by industry and that the Commission uses for the Rural Growth Factor (RGF). Using this adjustment factor will alleviate any harm caused by inflation in application of the opex limitation. Moreover, using the same series for both the opex adjustment and the RGF will reduce confusion and facilitate administrative efficiency. This inflation adjustment will be applicable for five years. Thereafter, the Commission anticipates that it may revisit the inflation adjustment to assess whether it accurately reflects carriers' experienced changes in costs and if it remains necessary to protect carriers from inflation-driven cost increases.

    64. The Commission directs NECA to calculate each carrier's opex limitation for the following calendar year by multiplying the inflation adjustment factor used in the RGF, as described in its annual September 30 filing, by the carrier's opex limitation for the current year. For example, if the inflation adjustment in NECA's September 30, 2018 annual filing is 2 percent, then each carrier's opex limit for 2019 will be calculated by multiplying its 2018 opex limit by 1.02. Adjusting the opex limitation on this schedule will provide sufficient notice for carriers in preparing their budgets for the upcoming calendar year.

    65. The inflation adjustments will be implemented beginning with expenses incurred in 2017. It would be administratively burdensome to apply the inflation adjustment to 2016 expenses because NECA has already made its annual filing setting 2018 HCLS amounts based on 2016 expenses. Therefore, the Commission will include in the 2017 opex limitation a compounded inflation adjustment so as to account for the effects of inflation for 2016 expenses. Specifically, the inflation adjustment will be implemented as follows.

    Expense
  • incurred in
  • Inflation adjustment
  • (multiplied by prior year opex limitation)
  • Expenses reported in
    2017 1.0273 NECA October 1, 2018 annual filing (HCLS), December 31, 2018 Form 509 (CAF BLS). 2018 1.0128 NECA October 1, 2019 annual filing (HCLS), December 31, 2019 Form 509 (CAF BLS). 2019 As published in NECA's Oct. 1, 2018 annual filing NECA October 1, 2020 annual filing (HCLS), December 31, 2020 Form 509 (CAF BLS). Subsequent years As published in the prior year's NECA annual filing NECA annual filing and Form 509 filed in the following year.

    66. On reconsideration, as requested by NTCA, the Commission amends § 54.1308(a)(4) of the Commission's rules to include CBOLs in the calculation of each carrier's corporate operations expense limitation. The rule operates by creating a limit on total corporate operations expenses based on the number of lines, and then apportioning those costs among common line and other cost categories. The Commission did not amend this rule in the Rate-of-Return Reform Order, and the rule currently includes only common line (voice and voice-broadband) loops in the calculation. As a result, NTCA argues that the rule now sets an inappropriately low limit on the corporate operations expenses for carriers with broadband-only lines. In an extreme case, a carrier with customers that exclusively have chosen to subscribe through broadband-only lines would not be eligible to recover any of its corporate operations expenses. The Commission concurs and amends the rule accordingly to allow broadband-only loops, as well as voice and voice-broadband loops, in the corporate operations expense limitation calculations. The Commission expects that this action will provide parity for carriers with broadband-only lines and create incentives for broadband deployment.

    67. At the request of WTA, the Commission clarifies the treatment of transferred exchanges under the rules adopted in the Rate-of-Return Reform Order.

    68. Specifically, the Commission first clarifies that when any entity that is not a rate-of-return carrier (including a price cap carrier, competitive local exchange carrier, interexchange carrier, or non-carrier entity) acquires exchanges from a rate-of-return carrier, § 54.902(c) applies. This means that, “absent further action by the Commission, the carrier will receive model-based support.” The Commission notes that the language about which WTA raises its specific question—“entity other than a rate-of-return carrier”—is retained from the prior ICLS rule. Given that CAF BLS is predicated on rate-of-return regulation, there does not appear to be any basis for automatically providing CAF BLS to an entity that is not a rate-of-return carrier. The rule expressly contemplates that the Commission may consider alternatives on a case-by-case basis, but provides a default mechanism whereby the acquiring entity becomes subject to the Connect America Model support and obligations. WTA suggests that this result does not appear to be the intent of the Rate-of-Return Reform Order but provides no support for this assertion.

    69. Second, the Commission clarifies, as requested by WTA, that the term “exchanges” in § 54.902 does not apply to entire study areas, but instead to areas smaller than a complete study area. This approach is consistent with how the Commission has previously treated transfers of control, as well as § 54.305 (the “parent trap rule”) and study area waivers. The Commission notes that the sale of a complete study area does not necessarily present the same potential for manipulating universal service support as the sale of exchanges because support is calculated on a study area basis. The transfer of exchanges or other parts of a study area, on the other hand, likely would affect the amount of universal service support for which a study area would qualify under its rules. The Commission is concerned that transfers of exchanges could be structured in order to maximize and increase high-cost support and could put additional pressure on scarce high-cost resources.

    70. Next, the Commission declines to eliminate § 54.305 as proposed by Madison Telephone Company (Madison Telephone). Madison Telephone argues that the parent trap rule is no longer necessary because § 54.902 is sufficient to address the consequences to high-cost universal service support resulting from transfers of exchanges. The Commission disagrees. Section 54.902, entitled “Calculation of CAF BLS Support for transferred exchanges,” does not apply to HCLS. Without § 54.305, therefore, there is no constraint on increases to HCLS resulting from the strategic transfer of portions of study areas. Further, the Commission is not persuaded by Madison Telephone's arguments that the parent trap rule should be eliminated because only a relatively small number of carriers are currently subject to the rule. Currently, 28 carriers are subject to the parent trap rule. Madison Telephone's argument fails to address the fact that the absolute number of carriers subject to the rule is not an adequate measure of the potential financial effects to universal service posed by the elimination of the parent trap rule. Madison Telephone does not, for example, estimate the amount of additional support that affected carriers would receive if the parent trap rule were eliminated. The Commission further notes that the Commission relied on the applicability of § 54.305 as a constraint on universal service support in granting study area waivers to many of the carriers currently subject to the parent trap rule. Eliminating the parent trap rule without further analysis of the consequences would undermine the rationale for granting those waivers.

    71. The Commission is also not persuaded by Madison Telephone's argument that the build-out requirements of the Rate-of-Return Reform Order necessitate the provision of additional support to carriers currently subject to the parent trap rule. Each carrier's build-out obligations have been determined based on the amount of support a carrier was forecasted to receive, which takes into account the effect of the parent trap rule. Therefore, the Commission expects that eliminating the parent trap rule would increase the build-out obligations for those carriers, rather than provide additional support to achieve the same obligations. Finally, the Commission rejects Madison Telephone's argument that the complications of the parent trap rule perpetuate a disincentive to further consolidation among rate-of-return carriers. Although the Commission agrees that rate-of-return carriers should have appropriate incentives for further consolidation, the Commission must have adequate safeguards to protect the Fund from transfers of exchanges that result in excessive increases in high-cost support. As described above, the Commission disagrees that there would be adequate safeguards if the Commission eliminates the parent trap rule and find that it continues to serve an important purpose.

    72. In general, the rules governing the transfer of exchanges are intended to prevent an increase in high-cost universal service, driven by a change in the area over which costs are averaged, without a Commission finding that such an increase would be in the public interest. Although budget constraints now prevent the Fund's total size from increasing as the result of transactions, increases in universal service awarded to one carrier result in decreases in support to other carriers. Therefore, the Commission must carefully review new or additional demands on resources to ensure that the overall effect is in the public interest. Although the Commission may consider a systematic review of the rules governing transfers of exchanges in light of the recent reforms, it does not believe that the current petitions are the appropriate means by which to do so.

    73. The Commission also addresses two requests, one from NTCA and the other from WTA, related to streamlining waivers. NTCA's petition for reconsideration, in part, asks the Commission to clarify (or to the extent necessary, reconsider) the circumstances in which a “streamlined waiver” process may be used, whereby an “engineer-certified estimate of construction costs could be substituted for the CIA-estimated investment allowance. Specifically, NTCA argues that a streamlined process should be permitted for circumstances beyond the narrow instance of compliance with defined buildout obligations.” For example, NTCA states that, “a RLEC may be unable to obtain financing to perform any buildout—whether tied to a specific obligation or otherwise intended to advance broadband—unless it can obtain such a waiver.” NTCA also notes that “timing considerations with respect to buildout and hiring of contractors, especially in certain locales where build seasons are shorter, may drive the need for a waiver.”

    74. First, the Commission clarifies that it did not adopt a “streamlined waiver” process in the Rate-of-Return Reform Order. Although the Commission noted that several commenters argued a streamlined waiver process was needed “to ensure that carriers can seek a waiver if it needs to make investments greater than those allowed by the capital budget limitation to provide broadband to the carrier's customers,” the Commission determined that any carrier could file a waiver under the Commission's existing rules. The Commission then explained what would enable “expeditious” treatment of a waiver and further stated that “carriers who cannot meet their deployment obligation even by expending the full amount of their TALPI [Total Allowed Loop Plant Investment] allowance should submit information regarding the costs expected to be incurred to meet the deployment obligation certified by an engineer licensed in the state(s) in which the construction will take place.” The Commission noted that this information would assist the Commission in reviewing a waiver request expeditiously.

    75. Second, the Commission clarifies that in assessing whether “good cause” exists to grant a request for waiver of the CIA, the Commission is likely to view as highly relevant cost estimate information certified by an engineer licensed in the state where the construction will take place. The Commission anticipates that certification will help ensure that any cost estimates are reasonably accurate and objective. The Commission further clarifies that it will review any waiver petitions of the CIA on a case-by-case basis, and carriers should submit all relevant information, certified appropriately, to justify the relief requested to help expedite the review process.

    76. WTA asks the Commission to address the “extremely likely” situation of material/labor shortages and corresponding price increases by adopting a rule that allows rate-of-return carriers receiving CAF BLS to “request and obtain via a streamlined process a reduction of their applicable build-out requirements if they can show that their cost per location has increased by thirty percent (30.0%) or more above the cost per location used to compute their initial buildout requirement.” WTA further requests a streamlined waiver process for all CAF BLS and A-CAM carriers to “extend their deadlines for meeting interim and/or ultimate build-out requirements if they can show that they had made bona fide attempts to obtain the requisite pre-construction approvals, fiber optic cable and/or contractor arrangements, and had been unsuccessful in doing so for reasons significantly outside their control.”

    77. The Commission denies WTA's request. The Commission finds that the situations for which WTA requests streamlined waivers must each be considered individually and that there is an existing process by which to seek relief. As stated above and in the Rate-of-Return Reform Order, any carrier may file a waiver under existing rules to address the specific hardships that it faces. Carriers should submit all relevant information, certified appropriately, to justify the relief requested to help expedite the review process, and the Commission will evaluate the circumstances on a case-by-case basis. The Commission further notes that WTA does not provide a concrete proposal for how a streamlined waiver process would work. For instance, it is not clear whether after a specific period of time the waiver would be deemed granted; or whether a request to reduce the number of locations by a third or extend a deadline by two years would qualify for streamlined treatment. Given the availability of an existing mechanism to address WTA's concerns, and its lack of a specific proposal, the Commission concludes that WTA's request lacks merit and is thereby denied. The Commission reminds carriers that detailed petitions for waiver, substantiated by data (and certified appropriately) will help to facilitate expeditious review.

    78. The Commission dismisses as moot NTCA's request regarding the budgetary impact in cases where a carrier that initially elected to receive model support in 2016 subsequently declined the revised offer. In the Rate-of-Return Reform Order, the Commission decided how the budget for the first offer of A-CAM support would be determined if carriers that initially elected to receive model support subsequently declined to accept a revised second offer. Specifically, the Rate-of-Return Reform Order provided that “[i]f the carrier received more support from the legacy mechanisms in 2015 than it was offered by the final model run, the overall budget for all carriers that receive support though the rate-of-return mechanisms (HCLS and reformed ICLS) will be reduced by the difference between the carrier's 2015 legacy support amount and the final amount of model support offered to that carrier.”

    79. NTCA seeks clarification of whether this statement means that the difference reduces that carrier's own support, or whether it reduces the overall budget for carriers remaining on legacy support. To the extent the Commission intended to reduce the overall budget, NTCA seeks reconsideration of this decision. NTCA is concerned that such an approach could dramatically reduce the budget for carriers remaining on legacy support and undermine their ability to offer voice and broadband service at reasonably comparable rates. Similarly, Custer Telephone Cooperative et al. seeks clarification, or reconsideration, regarding the reduction of support available to carriers remaining on legacy support mechanisms.

    80. In the A-CAM Revised Offer Order, 82 FR 4275, January 13, 2017, the Commission concluded that its approach to revising the first A-CAM offers largely addressed the concerns raised by NTCA because the Commission did not change the support amounts for those carriers for which the offer of model-based support was less than the legacy support. The 35 such carriers that accepted the initial offer contributed to the overall A-CAM budget and were authorized by the Bureau to receive support because their support was unchanged and their initial elections were irrevocable. When the Bureau extended revised offers to the remaining carriers that accepted the initial offer, it resulted in only 18 instances in which the carrier was offered a revised amount that was less than the legacy support received in 2015. Because the net decrease in legacy support for this group of carriers was only approximately $4.2 million, the Commission determined that the difference was only a de minimis amount in the context of the overall rate-of-return budget. Therefore, the potential harm identified by the parties in their petitions for clarifications or reconsideration of this issue—“to ensure that non-model carriers and their consumers will not be harmed by the decisions of RLECs that choose to `jump in and out' of the model election process”—did not come to pass. Accordingly, the Commission dismisses as moot those portions of these requests.

    IV. Procedural Matters A. Paperwork Reduction Act

    81. The Report and Order adopted herein contains new or modified information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13. It will be submitted to the Office of Management and Budget (OMB) for review under section 3507(d) of the PRA. OMB, the general public, and other Federal agencies will be invited to comment on the new or modified information collection requirements contained in this proceeding. In addition, the Commission notes that pursuant to the Small Business Paperwork Relief Act of 2002, Public Law 107-198, see 44 U.S.C. 3506(c)(4), it previously sought specific comment on how the Commission might further reduce the information collection burden for small business concerns with fewer than 25 employees. In this present document, the Commission has assessed the effects of the new and modified rules that might impose information collection burdens on small business concerns, and find that they either will not have a significant economic impact on a substantial number of small entities or will have a minimal economic impact on a substantial number of small entities.

    B. Congressional Review Act

    82. The Commission will send a copy of the Report and Order, Third Order on Reconsideration and Notice of Proposed Rulemaking to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

    83. As required by the Regulatory Flexibility Act of 1980 (RFA), as amended, Initial Regulatory Flexibility Analyses (IRFAs) were incorporated in the Report and Order, Order, and Order on Reconsideration, and Further Notice of Proposed Rulemaking (Rate-of-Return Reform Order and Further NPRM). The Commission sought written public comment on the proposals in the Rate-of-Return Reform Order and Further NPRM, including comment on the IRFA. The Commission did not receive comments on the Rate-of-Return Reform Order and FNPRM IRFA. This present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

    84. In the Report and Order, the Commission adopts reforms to ensure that high-cost universal service support provided to eligible telecommunications carriers (ETCs) is used only for the provision, maintenance, and upgrading of facilities and services for which the high-cost support is intended. Specifically, this Report and Order addresses whether specific expenses are eligible for recovery from federal high-cost support pursuant to section 254(e) of the Act.

    85. The Commission also adopts measures to ensure carrier compliance with the permitted expense rules adopted above for high-cost support. The Commission requires rate-of-return ETCs to identify on their annual FCC Form 481 (Carrier Annual Reporting Data Collection Form) their cost consultants and cost consulting firm, or other third party, if any, used to prepare cost studies, or other calculations used to calculate high-cost support for their submission. Disclosure of such parties is a low-burden measure that will help the Commission identify waste, fraud, and abuse during audits. Identifying such parties will help the Commission and USAC identify and rectify patterns of noncompliance, and potentially fraud, during audits. This will ultimately help preserve the integrity of the Universal Service Fund by ensuring that carriers use high-cost support only for the provision, maintenance, and upgrading of facilities and services for which the high-cost support is intended.

    86. In the Report and Order, the Commission further amends the rules to provide guidance to legacy rate-of-return LECs regarding investments and expenses that are presumed not used and useful (and thus unreasonable under section 201 of the Communications Act) and thus, as a general matter, may not be recovered through interstate rates. The Commission divides such investments and expenses into two broad categories: Those that it does not expect would be used and useful in the ordinary course and those it would not expect to be used and useful unless customary for similarly situated companies.

    87. The Report and Order also addresses two matters for which Final Regulatory Flexibility Analysis is unnecessary.

    88. First, the Report and Order provides additional support to fund model-based deployment. In the April 2014 Connect America FNPRM, 79 FR 39196, July 9, 2014, the Commission proposed a framework for a voluntary election by rate-of-return carriers to receive model-based support and tentatively concluded that such a framework could achieve important universal service benefits by creating incentives for deployment of voice and broadband-capable infrastructure. The Commission sought written comment on the proposal, including comment on the Initial Regulatory Flexibility Analysis (IRFA). The Commission did not receive any comments on the April 2014 Connect America FNPRM IRFA. In the Rate-of-Return Reform Order, the Commission adopted a voluntary path under which rate-of-return carriers may elect to receive model-based support for a term of 10 years in exchange for meeting defined build-out obligations. The Commission issued a Final Regulatory Flexibility Analysis (FRFA) that conforms to the Regulatory Flexibility Act of 1980 (RFA), as amended. This present Report and Order further implements the framework previously adopted by the Commission. Therefore, the Commission certifies that it will not have a significant economic impact on a substantial number of small entities.

    89. Second, the Report and Order directs USAC to continue the practice of uniform quarterly collections. The Commission's directive to USAC to continue uniform quarterly collection is not a rule subject to notice-and-comment rulemaking and therefore no Regulatory Flexibility Analysis is required. Further, the Commission notes that is only applicable to USAC and will not have a significant economic impact on a substantial number of small entities.

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

    91. The Commission's actions, over time, may affect small entities that are not easily categorized at present. The Commission therefore describes here, at the outset, three broad groups of small entities that could be directly affected herein. First, while there are industry specific size standards for small businesses that are used in the regulatory flexibility analysis, according to data from the SBA's Office of Advocacy, in general a small business is an independent business having fewer than 500 employees. These types of small businesses represent 99.9% of all businesses in the United States which translates to 28.8 million businesses.

    92. Next, the type of small entity described as a “small organization” is generally “any not-for-profit enterprise which is independently owned and operated and is not dominant in its field.” Nationwide, as of Aug. 2016, there were approximately 356,494 small organizations based on registration and tax data filed by nonprofits with the Internal Revenue Service (IRS).

    93. Finally, the small entity described as a “small governmental jurisdiction” is defined generally as “governments of cities, counties, towns, townships, villages, school districts, or special districts, with a population of less than fifty thousand.” U.S. Census Bureau data from the 2012 Census of Governments indicates that there were 90,056 local governmental jurisdictions consisting of general purpose governments and special purpose governments in the United States. Of this number there were 37,132 General purpose governments (county, municipal and town or township) with populations of less than 50,000 and 12,184 Special purpose governments (independent school districts and special districts) with populations of less than 50,000. The 2012 U.S. Census Bureau data for most types of governments in the local government category shows that the majority of these governments have populations of less than 50,000. Based on this data the Commission estimates that at least 49,316 local government jurisdictions fall in the category of “small governmental jurisdictions.”

    94. In the Report and Order, the Commission codifies a list of ineligible expenses and expense categories the Commission previously identified as ineligible for high-cost support, and it provides guidance going-forward on the eligibility of expenses on which the Commission sought comment in the Rate-of-Return Reform Order and FNPRM. The revised rules adopted herein provide more specificity and certainty to ETCs and do not impose any additional recordkeeping requirements. Additionally, the Commission requires all rate-of-return ETCs to identify on their annual FCC Form 481 (Carrier Annual Reporting Data Collection Form) their cost consultants and cost consulting firm, or other third party, if any, used to prepare cost studies, or other calculations used to calculate high-cost support for their submission. The Commission expects this reporting obligation to have a minimal impact.

    95. The Report and Order amends the rules to provide guidance to legacy rate-of-return LECs regarding investments and expenses that are presumed not used and useful and thus, as a general matter, may not be recovered through interstate rates. Such investments and expenses are divided into two broad categories: Those that the Commission does not expect would be used and useful in the ordinary course and those it would not expect to be used and useful unless customary for similarly situated companies. These changes do not impact reporting obligations, and are necessary to ensure that recovery of these investments and expenses via interstate rates is consistent with section 201(b) of the Act.

    96. The RFA requires an agency to describe any significant alternatives that it has considered in reaching its proposed approach, which may include (among others) the following four alternatives: (1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) an exemption from coverage of the rule, or any part thereof, for small entities. The Commission has considered all of these factors subsequent to receiving substantive comments from the public and potentially affected entities. The Commission has considered the economic impact on small entities, as identified in comments filed in response to Rate-of-Return Reform Order and FNRPM and IRFA, in reaching its final conclusions and taking action in this proceeding.

    97. The rules that the Commission adopts in the Report and Order provide greater certainty to rate-of-return carriers, many of which are small entities. The Commission codifies a simple, clear, and carefully defined list of categories of expenses that are precluded from recovery via the universal service fund. The Commission incorporates expenses categories previously identified as ineligible for high-cost support, High-Cost Oct. 19, 2015 Public Notice and in the Rate-of-Return Reform FNPRM and the Commission provides guidance going-forward on the eligibility of expenses on which the Commission sought comment in the Rate-of-Return Reform FNPRM. Providing a clear list of expenses that are not reimbursable will ensure that more resources are available in the universal service fund. Although the Commission provides guidance going-forward on the eligibility of expenses on which the Commission sought comment, such guidance should have only a minimal impact on small entities.

    98. Similarly, the Commission provides greater certainty to legacy rate-of-return carriers by codifying a list of investments and expenses that are presumed not used and useful and thus, as a general matter, may not be recovered through interstate rates. This guidance provides more certainty and predictability, while also providing carriers the opportunity to recover these costs via regulated interstate rates if the presumption can be overcome.

    99. The Commission also acts to modify its existing reporting requirements. The Commission requires carriers to identify on their annual FCC Form 481 their cost consultants and cost consulting firm, or other third party, used to prepare cost studies or other calculations used to calculate high-cost support for their submission will have a minimal economic impact because small entities already prepare this filing. The Commission revises ETCs' annual reporting requirements to align better those requirements with the Commission's statutory and regulatory objectives. This addition will allow the Commission to identify themes and trends among both rate-of-return carriers and third-party cost consultants and to eliminate waste, fraud, and abuse.

    100. The Third Order on Reconsideration above amends rules adopted in the Rate-of-Return Reform Order by (1) implementing, for a five-year period, an inflation adjustment for the operating expense limitation, (2) incorporating broadband-only loops into the corporate operations expense limitation, and (3) reconsiders the application of the budget control mechanism for July 2017 to June 2018. These revisions do not create any burdens, benefits, or requirements that were not addressed by the Final Regulatory Flexibility Analysis attached to the Rate-of-Return Reform Order. Therefore, the Commission certifies that the rule revisions adopted in this Third Order on Reconsideration and Clarification will not have a significant economic impact on a substantial number of small entities.

    V. Ordering Clauses

    101. Accordingly, it is ordered that, pursuant to the authority contained in sections 1-4, 5, 201-206, 214, 218-220, 251, 252, 254, 256, 303(r), 332, 403, and 405 of the Communications Act of 1934, as amended, and section 706 of the Telecommunications Act of 1996, 47 U.S.C. 151-155, 201-206, 214, 218-220, 251, 256, 254, 256, 303(r), 403 and 405, this Report and Order, Third Order on Reconsideration is adopted, effective thirty (30) days after publication of the text or summary thereof in the Federal Register, except for those rules and requirements involving Paperwork Reduction Act burdens, which shall become effective immediately upon announcement in the Federal Register of OMB approval. It is the Commission's intention in adopting these rules that if any of the rules that the Commission retains, modifies, or adopts herein, or the application thereof to any person or circumstance, are held to be unlawful, the remaining portions of the rules not deemed unlawful, and the application of such rules to other persons or circumstances, shall remain in effect to the fullest extent permitted by law.

    102. It is further ordered that part 54 and 64 of the Commission's rules, 47 CFR part 54 and 64, are amended as set forth in the following, and such rule amendments shall be effective May 31, 2018, except that those rules and requirements which contain new or modified information collection requirements that require approval by the Office of Management and Budget under the Paperwork Reduction Act will become effective after the Commission publishes a document in the Federal Register announcing such approval and the relevant effective date.

    103. It is further ordered that, pursuant to the authority contained in section 405 of the Communications Act of 1934, as amended, 47 U.S.C. 405, and §§ 0.331 and 1.429 of the Commission's rules, 47 CFR 0.331 and 47 CFR 1.429, the Petition for Reconsideration filed by NTCA on May 25, 2016 is granted in part and dismissed as moot in part to the extent described herein.

    104. It is further ordered that, pursuant to the authority contained in section 405 of the Communications Act of 1934, as amended, 47 U.S.C. 405, and §§ 0.331 and 1.429 of the Commission's rules, 47 CFR 0.331 and 47 CFR 1.429, the Petition for Reconsideration filed by CUSTER TELEPHONE COOPERATIVE, ET AL., on May 25, 2016 is dismissed as moot in part to the extent described herein.

    105. It is further ordered that, pursuant to the authority contained in section 405 of the Communications Act of 1934, as amended, 47 U.S.C. 405, and §§ 0.331 and 1.429 of the Commission's rules, 47 CFR 0.331 and 47 CFR 1.429, the Petition for Reconsideration filed by WTA on May 25, 2016 is granted in part and denied in part to the extent described herein.

    106. It is further ordered that, pursuant to the authority contained in section 405 of the Communications Act of 1934, as amended, 47 U.S.C. 405, and §§ 0.331 and 1.429 of the Commission's rules, 47 CFR 0.331 and 47 CFR 1.429, the Petition for Reconsideration filed by MADISON TELEPHONE COMPANY on May 25, 2016 is denied.

    List of Subjects 47 CFR Part 54

    Communications common carriers, Health facilities, Infants and children, Internet, Libraries, Reporting and recordkeeping requirements, Schools, Telecommunications, Telephone.

    47 CFR Part 64

    Claims, Communications Common carriers, Computer technology, Credit, Foreign relations, Individuals with disabilities, Political candidates, Radio, Reporting and recordkeeping requirements, Telecommunications, Telegraph, Telephone.

    Federal Communications Commission. Katura Jackson, Federal Register Liaison Officer, Office the Secretary. Final Rules

    For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 54 and 64 as follows:

    PART 54—UNIVERSAL SERVICE 1. The authority citation for part 54 continues to read as follows: Authority:

    47 U.S.C. 151, 154(i), 155, 201, 205, 214, 219, 220, 254, 303(r), 403, and 1302 unless otherwise noted.

    2. Amend § 54.7 by adding paragraph (c) to read as follows:
    § 54.7 Intended use of federal universal service support.

    (c) For those eligible telecommunications carriers as defined in § 54.5 receiving universal service support pursuant to subparts K and M of this part, ineligible expenses include but are not limited to the following:

    (1) Personal expenses of employees, executives, board members, and contractors, and family members thereof, or any other individuals affiliated with the eligible telecommunications carrier, including but not limited to personal expenses for housing, such as rent or mortgages, vehicles for personal use and personal travel, including transportation, lodging and meals;

    (2) Gifts to employees; childcare; housing allowances or other forms of mortgage or rent assistance for employees except that a reasonable amount of assistance shall be allowed for work-related temporary or seasonal lodging; cafeterias and dining facilities; food and beverage except that a reasonable amount shall be allowed for work-related travel; entertainment;

    (3) Expenses associated with: Tangible property not logically related or necessary to the offering of voice or broadband services; corporate aircraft, watercraft, and other motor vehicles designed for off-road use except insofar as necessary or reasonable to access portions of the study area not readily accessible by motor vehicles travelling on roads; tangible property used for entertainment purposes; consumer electronics used for personal use; kitchen appliances except as part of work-related temporary or seasonal lodging assistance; artwork and other objects which possess aesthetic value;

    (4) Political contributions; charitable donations; scholarships; membership fees and dues in clubs and organizations; sponsorships of conferences or community events; nonproduct-related corporate image advertising; and

    (5) Penalties or fines for statutory or regulatory violations; penalties or fees for any late payments on debt, loans, or other payments.

    3. Amend § 54.303 by adding paragraph (a)(6) to read as follows:
    § 54.303 Eligible Capital Investment and Operating Expenses.

    (a) * * *

    (6) For a period of five years following the implementation of paragraph (a) of this section, the total eligible annual operating expenses per location in paragraph (a) shall be adjusted annually to account for changes to the Department of Commerce's Gross Domestic Product Chain-type Price Index (GDP-CPI).

    4. Amend § 54.313 by adding paragraph (f)(4) to read as follows:
    § 54.313 Annual reporting requirements for high-cost recipients.

    (f) * * *

    (4) If applicable, the name of any cost consultant and cost consulting firm, or other third-party, retained to prepare financial and operations data disclosures submitted to the National Exchange Carrier Association (NECA), the Administrator or the Commission pursuant to subpart D, K, or M of this part.

    5. Amend § 54.901 by revising paragraph (b) and adding paragraph (f)(4) to read as follows:
    § 54.901 Calculation of Connect America Fund Broadband Loop Support.

    (b) For the purpose of calculating support pursuant to paragraph (a) of this section, the Interstate Common Line Revenue Requirement and Consumer Broadband-only Revenue Requirement shall be subject to the limitations set forth in § 54.303.

    (f) * * *

    (4) This paragraph (f) shall not apply to support provided from July 1, 2017 to June 30, 2018.

    6. Amend § 54.1305 by adding paragraph (j) to read as follows:
    § 54.1305 Submission of information to the National Exchange Carrier Administration (NECA)

    (j) The number of consumer broadband-only loops for each study area, as defined in § 54.901(g), calculated as of December 31st of the calendar year preceding each July 31st filing.

    7. Amend § 54.1308 by revising paragraphs (a)(4)(ii) introductory text and (a)(4)(ii)(A) through (C) to read as follows:
    § 54.1308 Study Area Total Unseparated Loop Cost.

    (a) * * *

    (4) * * *

    (ii) A monthly per-loop amount computed according to paragraphs (a)(4)(ii)(A) through (D) of this section. To the extent that some carriers' corporate operations expenses are disallowed pursuant to these limitations, the national average unseparated cost per loop shall be adjusted accordingly. For the purposes of this paragraph (a)(4)(ii), “total eligible lines” refers to working loops as defined by this subpart and consumer broadband-only loops, as defined in § 54.901(g).

    (A) For study areas with 6,000 or fewer total eligible lines, the monthly per-loop amount shall be $42.337 − (.00328 × the number of total eligible lines), or, $63,000/the number of total eligible lines, whichever is greater;

    (B) For study areas with more than 6,000 but fewer than 17,887 total eligible lines, the monthly per-loop amount shall be $3.007 + (117,990/the number of total eligible lines); and

    (C) For study areas with 17,887 or more total eligible lines, the monthly per-loop amount shall be $9.562.

    8. Amend § 54.1310 by adding paragraph (d)(3) as follows:
    § 54.1310 Expense adjustment.

    (d) * * *

    (3) This paragraph (d) shall not apply to support provided from July 1, 2017 to June 30, 2018.

    PART 64—MISCELLANEOUS RULES RELATING TO COMMON CARRIERS 9. The authority citation for part 64 continues to read as follows: Authority:

    47 U.S.C. 154, 202, 225, 251(e), 254(k), 403(b)(2)(B), (c), 616, 620, Pub. L. 104-104, 110 Stat. 56. Interpret or apply 47 U.S.C. 201, 202, 218, 222, 225, 226, 227, 228, 251(e), 254(k), 616, 620, and the Middle Class Tax Relief and Job Creation Act of 2012, Pub. L. 112-96, unless otherwise noted.

    1. Add subpart J, consisting of §§ 64.1000 through 64.1002, to read as follows:

    Subpart J—Recovery of Investments and Expenses in Regulated Interstate Rates Sec. 64.1000 Scope. 64.1001 Purpose. 64.1002 Investments and expenses. Subpart J—Recovery of Investments and Expenses in Regulated Interstate Rates
    § 64.1000 Scope.

    This subpart is applicable only to rate-of-return carriers as defined in § 54.5 of this chapter receiving Connect America Fund Broadband Loop Support as described in § 54.901 of this chapter.

    § 64.1001 Purpose.

    This subpart is intended to ensure that only used and useful investments and expenses are recovered through regulated interstate rates pursuant to section 201(b) of the Communications Act as amended (the Act), 47 U.S.C. 201(b).

    § 64.1002 Investments and expenses.

    (a) Investment and expenses not used and useful in the ordinary course. The following investments and expenses are presumed not used and useful (and thus unreasonable):

    (1) Personal expenses, including but not limited to personal expenses for food and beverages, housing, such as rent or mortgages, vehicles for personal use, and personal travel;

    (2) Tangible property not logically related or necessary to offering voice or broadband services;

    (3) Political contributions;

    (4) Membership fees and dues in social, service and recreational, or athletic clubs or organizations;

    (5) Penalties or fines for statutory or regulatory violations; and

    (6) Penalties or fees for late payments on debt, loans, or other payments.

    (b) Non-customary investments and expenses. Unless customary for similarly situated companies, the following investments and expenses are presumed not used and useful (and thus unreasonable):

    (1) Personal benefits, such as gifts, housing allowances, and childcare, that are not part of taxable compensation;

    (2) Artwork and other objects that possess aesthetic value that are displayed in the workplace;

    (3) Aircraft, watercraft, and off-road vehicles used for work and work-related purposes;

    (4) Cafeterias and dining facilities;

    (5) Charitable donations;

    (6) Entertainment;

    (7) Food and beverage expenses for work and work-related travel;

    (8) Membership fees and dues associated with professional organizations;

    (9) Scholarships; and

    (10) Sponsorships of conferences or community events.

    [FR Doc. 2018-08025 Filed 4-30-18; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 180123065-8378-02] RIN 0648-XF989 Magnuson-Stevens Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; 2018 Allocation of Northeast Multispecies Annual Catch Entitlements and Approval of a Regulatory Exemption for Sectors AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    This rule provides allocations to 17 of 19 groundfish sectors for the 2018 fishing year and also approves a new regulatory exemption for sector vessels. The action is necessary because sectors must receive allocations in order to operate in the 2018 fishing year. This action is intended to maximize fishing opportunities, ensure sector allocations are based on the best scientific information available, and help achieve optimum yield for the fishery.

    DATES:

    Effective May 1, 2018, through April 30, 2019.

    ADDRESSES:

    Copies of each sector's operations plan and contract, as well as the programmatic environmental assessment for sectors operations in fishing years 2015 to 2020, are available from the NMFS Greater Atlantic Regional Fisheries Office (GARFO): Michael Pentony, Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930. These documents are also accessible via the GARFO website: https://www.greateratlantic.fisheries.noaa.gov/sustainable/species/multispecies/.

    FOR FURTHER INFORMATION CONTACT:

    Kyle Molton, Fishery Management Specialist, (978) 281-9236.

    SUPPLEMENTARY INFORMATION: Background

    The Northeast multispecies (groundfish) sector management system allows us to allocate a portion of available groundfish catch by stock to each sector. Each sector's annual allocations are known as annual catch entitlements (ACE) and are based on the collective fishing history of a sector's members. The ACEs are a portion of a stock's annual catch limit (ACL) available to commercial groundfish vessels. A sector determines how to harvest its ACEs and may decide to limit operations to fewer vessels. Atlantic halibut, windowpane flounder, Atlantic wolffish, and ocean pout are not managed under the sector system, and sectors do not receive allocations of these groundfish species. With the exception of halibut, which has a one-fish per vessel trip limit, possession of these stocks is prohibited.

    Because sectors elect to receive an allocation under a quota-based system, the Northeast Multispecies Fishery Management Plan (FMP) grants sector vessels several “universal” exemptions from the FMP's effort controls. The FMP allows sectors to request additional exemptions to increase flexibility and fishing opportunities for consideration and approval by NMFS. Sectors are prohibited from requesting, and NMFS from approving, exemptions from permitting restrictions, gear restrictions designed to minimize habitat impacts, and most reporting requirements.

    In addition to the sectors, there are several state-operated permit banks, which receive allocations based on the fishing history of permits that the state holds. The final rule implementing Amendment 17 to the FMP allowed a state-operated permit bank to receive an allocation without needing to comply with sector administrative and procedural requirements (77 FR 16942; March 23, 2012). Instead, permit banks are required to submit a list of permits to us, as specified in the permit bank's Memorandum of Agreement between NMFS and the state. These permits are not active vessels; instead, the allocations associated with the permits may be leased to other sectors. State-operated permit banks contribute to the total allocation under the sector system.

    We approved nineteen sectors to operate in fishing years 2017 and 2018, and also approved 21 requested exemptions for sectors (82 FR 19618; April 28, 2017). On November 20, 2017, we withdrew approval of Northeast Fishery Sector IX (NEFS 9) (82 FR 55522; November 22, 2017). This action allocates 2018 ACE to 17 of 19 sectors based on the specifications in Framework Adjustment 57 to the Northeast Multispecies FMP. This action also approves a new regulatory exemption to increase fishing opportunities for monkfish while fishing on a groundfish sector trip.

    Sector Allocations for Fishing Year 2018

    The 2018 allocations in this rule are based on sector enrollment in fishing year 2018 as determined by preliminary roster submissions. All permits enrolled in a sector, and the vessels associated with those permits, have until April 30, 2018, to withdraw from a sector and fish in the common pool for fishing year 2018. The allocations in this rule are based on the fishing year 2018 specifications in Framework 57 to the FMP. As explained in more detail below, this rule does not allocate 2018 ACE to NEFS 7 or NEFS 9, or make any determinations on their operations plans.

    We calculate a sector's allocation for each stock by summing its members' potential sector contributions (PSC) for a stock and then multiplying that total percentage by the available commercial sub-ACL for that stock. Table 1 shows the total PSC by stock for each sector receiving an allocation under this rule for fishing year 2018. Tables 2 and 3 show the allocations for each sector, in pounds and metric tons, respectively, for fishing year 2018, based on their submitted fishing year 2018 rosters. The common pool sub-ACLs are also included in each of these tables. Framework 57 sets the fishing year 2018 common pool sub-ACLs, and are calculated using the PSC of permits not enrolled in sectors. The common pool sub-ACL is managed separately from sectors and does not contribute to available ACE for leasing or harvest by sector vessels, but is shown for comparison.

    We do not assign a permit separate PSCs for the Eastern Georges Bank (GB) cod or Eastern GB haddock; instead, we assign each permit a PSC for the GB cod stock and GB haddock stock. Each sector's GB cod and GB haddock allocations are then divided into an Eastern ACE and Western ACE, based on each sector's percentage of the GB cod and GB haddock ACLs. For example, if a sector is allocated 4 percent of the GB cod ACL, the sector is allocated 4 percent of the commercial Eastern U.S./Canada Area GB cod total allowable catch. The Eastern GB haddock allocations are determined in the same way. These amounts are then subtracted from the sector's overall GB cod and haddock allocations to determine its Western GB cod and haddock ACEs. A sector may only harvest its Eastern GB cod and haddock ACEs in the Eastern U.S./Canada Area. A sector may also “convert,” or transfer, its Eastern GB cod or haddock allocation into Western GB allocation and fish that converted ACE outside the Eastern GB area.

    All sectors were required to submit preliminary fishing year 2018 sector rosters to us by March 26, 2018. Prior to the start of each fishing year, we review preliminary rosters to determine, among other issues, whether the vessels enrolled in sectors are eligible, whether the sectors have signed contracts from permit holders demonstrating membership, and whether the sector continues to fulfill the “rule of three” requirement, which requires sectors to be composed of permits held by at least three distinct entities. Enrollment of sectors may change each year, but these changes in enrollment are usually minor and require minimal review.

    Subsequent to the proposed rule for this action (83 FR 12706; March 23, 2018), there were significant changes in sector enrollment for NEFS 7, NEFS 8, and NEFS 9 for the 2018 fishing year. Sector roster submissions indicated that all permits enrolled in NEFS 7 in fishing year 2017 are leaving the sector for fishing year 2018, with several moving to the common pool and the remainder moving to NEFS 8. Additionally, sector roster submissions indicated that nearly all permits enrolled in NEFS 9 (55 of 60 permits) during fishing year 2017 are enrolling in NEFS 7 for fishing year 2018. Five of these permits are subject to forfeiture as a result of the criminal case against Carlos Rafael. Two permits from NEFS 9 enrolled in NEFS 8. Only three permits remain enrolled in NEFS 9. These changes are especially significant given ongoing efforts to account for misreported catch by NEFS 9 vessels in prior fishing years and resolve other issues that caused withdrawal of approval of the NEFS 9 operations plan. We are also working to resolve whether the five permits subject to forfeiture can be enrolled in a sector given that Mr. Rafael's interest in them has been forfeited to the U.S. Government.

    These significant roster changes, including substantive operational and overage payback issues, require further consideration. Therefore, we are delaying a decision regarding allocating 2018 ACE to NEFS 7 or NEFS 9, and this final rule does not include allocations for either sector. Although the proposed rule for this action included allocations for both NEFS 7 and NEFS 9, issuing an allocation to either sector in this rule would be premature until the large-scale changes to sector enrollment and related issues are fully considered and resolved, and we consult with the New England Fishery Management Council. Any allocation to NEFS 7 or NEFS 9, or operations plan approvals, will be completed in a separate rulemaking.

    Holdback of Allocation and End of Year Catch Accounting

    The FMP authorizes us to hold 20 percent of a sector's ACE up to, and through, June 30 to allow time to complete catch accounting and reconcile overages, if necessary. At the start of fishing year 2018, we will withhold 20 percent of NEFS 8's allocation. We are requiring a holdback because two vessels enrolled in NEFS 9 for 2017 have joined NEFS 8 for fishing year 2018, and we are evaluating potential pound-for-pound payback of allocation necessary to account for NEFS 9 overages in previous fishing years. If we have not finalized our analysis and catch accounting prior to June 30, 2018, NEFS 8 will receive the holdback allocation. No other sectors receiving an allocation for 2018 in this rule will be subject to the holdback provision. Holding back this quota will ensure that NEFS 8 has sufficient allocation to begin operating on May 1, 2018, while also ensuring sufficient allocation is available to cover any potential overage associated with vessels previously enrolled in NEFS 9, if payback is determined to be necessary. In 2018, NEFS 7 and 9 will be almost entirely made up of permits that were enrolled in NEFS 9 in 2017. Therefore, we determined that a 20-percent holdback is potentially not sufficient to ensure proper accounting of overages that may affect these two sectors.

    We expect to finalize 2017 catch information for all groundfish sectors in the summer of 2018 consistent with the normal sector process. We will allow sectors to transfer fishing year 2017 ACE for 2 weeks upon our completion of year-end catch accounting to reduce or eliminate any fishing year 2017 overages. If necessary, we will reduce any sector's fishing year 2018 allocation to account for a remaining overage in fishing year 2017. We will notify managers of any overages their sector has for 2017 and the 2-week trading window when we have finalized 2017 catch information.

    BILLING CODE 3510-22-P ER01MY18.002 ER01MY18.003 ER01MY18.004 BILLING CODE 3510-22-C New Sector Exemption Approved for Fishing Year 2018 Limit on the Number of Gillnets for Day Gillnet Vessels Fishing in the Gulf of Maine

    Each year, vessels fishing with gillnet gear must declare as either a “Day” or “Trip” gillnet vessel. A Day gillnet vessel is limited in the number of nets it may fish, but can return to port while leaving the gear in the water. A Trip gillnet vessel is not limited in the number of nets it may fish, but must retrieve all of its gear each trip. This action approves an exemption for Day gillnet vessels fishing in the Gulf of Maine from the current 100-net limit. The intent of this exemption is to increase opportunities for sector vessels to harvest monkfish, a healthy non-groundfish stock, while fishing on a groundfish trip. The exemption allows sector vessels to fish up to 150 gillnets, provided at least 50 nets are 10-inch (25.4-cm) or larger mesh and those nets are fished east of 70 degrees West longitude. The 100-net limit still applies in the portion of the Gulf of Maine (GOM) Regulated Mesh Area west of 70 degrees West longitude (Figure 1).

    This exemption is a variation of an exemption we previously approved for Day gillnet vessels in the GOM. The original exemption allowed the use of 150 gillnets and the use of a single gillnet tag per net, as is currently allowed for sector vessels fishing in other areas. We withdrew approval of the original exemption in 2014 as part of the GOM cod emergency action (79 FR 67362; November 13, 2014) due to concerns about potential GOM cod catch from the additional gillnet effort. The new exemption approved in this action is more restrictive than the original exemption in several ways. The new exemption requires the use of larger mesh nets, limits the geographic scope of any additional nets, and does not modify tagging provisions for nets fished in the GOM. These restrictions were developed to reduce any additional impacts to GOM cod and address the concerns underlying our withdrawal of the original exemption.

    This exemption does not change the 50-roundfish or “stand up” net limit in the GOM. Day gillnet vessels are still required to tag each roundfish net with two gillnet tags and each flatfish or “tied down” net with a single gillnet tag. We will not issue additional gillnet tags, so vessels must choose between fishing their full suite of roundfish nets or taking advantage of the extra nets available under this exemption. Keeping tagging provisions in place will maintain consistency and allow for better enforcement of the gillnet limits, including the 50-roundfish gillnet limit in the GOM and the overall 150-net limit. Sector vessels fishing under the exemption are also still required to comply with any regulatory measures designed to limit gear interactions with protected resources, such as the mandated use of pingers or weak-links.

    ER01MY18.005 Comments and Responses

    We received two public comments on the proposed rule. One was a joint letter from the Northeast Seafood Coalition (NSC) and the Northeast Sector Service Network (NESSN). The other comment submitted was from a member of the fishing industry, but was not relevant to the proposed measures. NSC and NESSN also resubmitted their comments on the interim final rule which withdrew approval of NEFS 9 (82 FR 55522; November 22, 2017). Only comments that related to the proposed measures are addressed below.

    Approval of a New Regulatory Exemption for Sectors

    Comment 1: NSC and NESSN supported the approval of the new gillnet exemption as proposed. NSC and NESSN also state that the Day gillnet fishery in the GOM will benefit from the opportunity to better target monkfish, and state that they expect impacts to the monkfish resource to be minimal.

    Response: We have granted the exemption, as proposed.

    Changes From the Proposed Rule

    This final rule does not include allocations for NEFS 7 or NEFS 9, which were included in the proposed rule. There are no other changes from the proposed measures made in this final rule.

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act (Magnuson-Stevens Act), the NMFS Assistant Administrator has determined that this rule is consistent with the Northeast Multispecies FMP, other provisions of the Magnuson-Stevens Act, and other applicable law.

    This action is exempt from the procedures of Executive Order (E.O.) 12866.

    This rule does not contain policies with federalism or “takings” implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively.

    Because this rule relieves several restrictions, the NMFS Assistant Administrator finds good cause under 5 U.S.C. 553(d)(1) and (3) to waive the 30-day delay in effectiveness so that this final rule may become effective May 1, 2018. If this action is not implemented by the start of the 2018 fishing year on May 1, 2018, sectors would not have allocations, and sector vessels would be unable to fish. Sector vessels would be prohibited from fishing for groundfish until this rule was finalized. This would result in significant negative economic impacts.

    Permit holders make decisions about sector enrollment based largely on allocations to permits that are based on overall available catch. The sector allocations in this rulemaking are based on catch limits set by Framework 57, which incorporates information from updated stock assessments for the 20 groundfish stocks. The development of Framework 57 was timed to rely on the best available science by incorporating the results of the assessments. This information was not finalized, however, until mid-December 2017. By regulation, rosters are required to be submitted by December 1, unless we instruct otherwise. This year, we instructed sectors to provide roster information to us by March 26, 2018, instead of December 1, 2017. This later date was necessary to provide permit holders the opportunity to use the Framework 57 catch limit information to make more fully informed decisions of where they would enroll for this fishing year. Accommodating this need for information required us to delay publishing the proposed and final rules for this action and was unavoidable.

    Sector exemptions relieve restrictions that provide operational flexibility and efficiency that help avoid short-term adverse economic impacts on North east multispecies sector vessels. These exemptions provide vessels with flexibility in choosing when to fish, how long to fish, what species to target, and how much catch they may land on any given trip. This flexibility increases efficiency and reduces costs. A delay in implementing this action would forego the flexibility and economic efficiency that sector exemptions are intended to provide. Additionally, a delay in this action would delay approval of a new exemption to increase fishing opportunities for monkfish. For all of these reasons outlined above, good cause exists to waive the otherwise applicable requirement to delay implementation of this rule for a period of 30 days.

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration during the proposed rule stage that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: April 26, 2018. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2018-09150 Filed 4-30-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 180201108-8393-02] RIN 0648-BH55 Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Fishing Year 2018 Recreational Management Measures AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    This action adjusts recreational management measures for Georges Bank cod and maintains status quo measures for Gulf of Maine cod and haddock for the 2018 fishing year. This action is necessary to respond to updated scientific information and to achieve the goals and objectives of the Northeast Multispecies Fishery Management Plan. The intended effect of this action is to achieve, but not exceed, the recreational catch limits.

    DATES:

    Effective May 1, 2018.

    ADDRESSES:

    Analyses supporting this rulemaking include the environmental assessment (EA) for Framework Adjustment 57 to the Northeast Multispecies Fishery Management Plan that the New England Fishery Management Council prepared, and a supplemental EA to Framework Adjustment 57 that the Greater Atlantic Regional Fisheries Office and Northeast Fisheries Science Center prepared. Copies of these analyses are available from: Michael Pentony, Regional Administrator, National Marine Fisheries Service, 55 Great Republic Drive, Gloucester, MA 01930. The supporting documents are also accessible via the internet at: http://www.nefmc.org/management-plans/northeast-multispecies or http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Emily Keiley, Fishery Management Specialist, phone: 978-281-9116; email: [email protected].

    SUPPLEMENTARY INFORMATION: Table of Contents 1. Gulf of Maine Recreational Management Measures for Fishing Year 2018 2. Georges Bank Cod Recreational Management Measures for Fishing Year 2018 3. Regulatory Corrections 4. Comments and Responses 1. Gulf of Maine Recreational Management Measures for Fishing Year 2018 Background

    The recreational fishery for Gulf of Maine (GOM) cod and haddock is managed under the Northeast Multispecies Fishery Management Plan (FMP). For both stocks, the FMP sets a sub-annual catch limit (sub-ACL) for the recreational fishery for each fishing year. These sub-ACLs are a portion of the overall catch limit and are based on a fixed percentage. The groundfish fishery opens on May 1 each year and runs through April 30 the following calendar year. The FMP also includes accountability measures (AM) to prevent the recreational sub-ACLs from being exceeded, or if an overage occurs, to correct its cause or mitigate its biological impact.

    The proactive AM provision in the FMP authorizes the Regional Administrator, in consultation with the New England Fishery Management Council, to develop recreational management measures for the upcoming fishing year to ensure that the recreational sub-ACL is achieved, but not exceeded. Framework Adjustment 57, a concurrent action, set the groundfish ACLs and sub-ACLs for the 2018 fishing year. For 2018, the recreational GOM haddock sub-ACL increases from 1,160 mt to 3,358 mt, and the recreational GOM cod sub-ACL increases from 157 to 220 mt.

    Fishing Year 2018 Recreational GOM Measures

    Recreational catch and effort data are estimated by the Marine Recreational Information Program (MRIP). A peer-reviewed bioeconomic model of expected fishing practices, developed by the Northeast Fisheries Science Center, was used to estimate 2018 recreational GOM cod and haddock mortality under various combinations of minimum sizes, possession limits, and closed seasons. Based on the bioeconomic model, status quo measures were expected to constrain the catch of GOM cod to the sub-ACL only if the Commonwealth of Massachusetts prohibited the possession of GOM cod by recreational anglers in state waters for the 2018 fishing year. In 2017, Massachusetts allowed private anglers to retain one cod (possession by the for-hire fleet was prohibited). In the event that Massachusetts did not prohibit cod possession in 2018, we proposed an additional, more conservative set of measures that were expected to keep cod catch below the sub-ACL. These measures included additional restrictions for GOM haddock to help ensure cod catch was below the sub-ACL. Table 1 summarizes the status quo measures and the two options we proposed for comment.

    Table 1—Summary of the Status Quo and Proposed Measures Proposed measures 1 Fleet Haddock possession limit Minimum fish size
  • (inches)
  • Closed season Predicted
  • haddock catch
  • (mt)
  • Probability
  • haddock catch
  • below sub-ACL 3
  • Predicted
  • cod catch
  • (mt)
  • Probability
  • cod catch
  • below sub-ACL 4
  • 2017 Status Quo Private 12 fish per angler 17 3/1-4/14 920 100 226 19 For-hire 9/17-10/31 2018 Measures 2 Private 12 fish per angler 17 3/1-4/14 916 100 193 57 For-hire 9/17-10/31 2018 Alternative Not Selected Private 12 fish per angler 17 3/1-4/14, 5/1-5/31, 9/17-10/31 839 100 198 51 For-hire 10 fish per angler 3/1-4/14, 9/17-10/31 1 GOM cod possession, in Federal waters, is prohibited in all scenarios. 2 This option is based on the Commonwealth of Massachusetts prohibiting GOM cod possession by recreational anglers. 3 The 2018 GOM haddock sub-ACL is 3,358 mt. 4 The model assumed a GOM cod sub-ACL of 200 mt, the actual GOM cod sub-ACL is 200 mt.

    On March 26, 2018, the Commonwealth of Massachusetts notified us that it is prohibiting recreational anglers from retaining GOM cod beginning on May 1, 2018. Because Massachusetts is prohibiting cod possession, status quo Federal GOM cod and haddock recreational management measures are expected to keep catch within the recreational sub-ACLs, while providing the most access to the healthy haddock stock. Based on the bioeconomic model the probability of status quo measures, combined with Massachusetts's regulatory change, constraining cod catch to the sub-ACL is greater than 50 percent. As a result, this final rule maintains status quo recreational management measures for GOM cod and haddock for the 2018 fishing year. These measures are summarized in Table 2 below.

    Table 2—GOM Cod and Haddock Recreational Management Measures for Fishing Year 2018 Stock Per day possession limit Minimum fish size Season when possession is allowed GOM Cod Possession Prohibited Year-Round GOM Haddock 12 fish per angler 17 inches (43.2 cm) May 1-September 16, November 1-February 28, and April 15-April 30. 2. Georges Bank Cod Recreational Management Measures for Fishing Year 2018 Background

    Framework 57 to the Northeast Multispecies FMP authorizes the Regional Administrator to adjust the GB cod recreational management measures for fishing years 2018 and 2019. This action was precipitated by an increasing trend in recreational catch of GB cod in recent years, including unusually high recreational catch in 2016 that contributed to an overage of the total ACL and acceptable biological catch (ABC). Unlike GOM cod and haddock, there is no recreational sub-ACL for GB cod. Because the recreational fishery does not receive an allocation for GB cod, there are no AMs for recreational vessels in the event the catch target or the overall ACL is exceeded. As a result, the commercial groundfish fishery is required to pay back the 2016 ACL overage.

    The Council did not consider a recreational sub-ACL in Framework 57 because of a lack of time to fully consider the issue and develop appropriate long-term measures in the FMP. However, as part of Framework 57, the Council recommended a catch target for us to use when considering adjustments to GB cod measures for 2018 and 2019. The catch target is based on a 5-year (2012-2016) average of recreational catch (138 mt) (Table 3).

    Using a 5-year average to determine the catch target mitigates some of the uncertainty and variability in MRIP data. MRIP provides information on a 2-month wave, calendar year basis. Preliminary data are released throughout the year, and final data is released in the spring of the following year. Calendar years 2012-2016 is the most recent 5-year period for which final recreational data are available. The Council expects that recreational measures designed to achieve a target based on this average will help prevent future overages of the ACL.

    Table 3—Georges Bank Cod Recreational Catch, Calendar Years 2012-2016 GB cod catch
  • (mt)
  • Calendar year 2012 2013 2014 2015 2016
    Landings 56 6 88 124 369 Discards 1 1 2 15 30 Total Catch 57 7 90 139 399 Average 138
    We evaluate more recent catch in the GB cod fishery for determining what recreational measures may be necessary to achieve the catch target. For this purpose, we used data from fishing years 2015-2017, including preliminary 2017 data, which resulted in average catch of 196 mt. This more current and shorter time-period reflects more recent fishing practices. Using this 3-year average of more recent catch history provides a basis for developing measures that meaningfully address recent fishery trends and practices while reducing the chance of using overly restrictive or permissive measures that could result from relying on a single year's estimate. Fishing Year 2018 Recreational GB Measures

    Because the recreational measures currently in place for GB cod are not expected to constrain fishing year 2018 catch to the catch target, we are adjusting management measures for the 2018 fishing year, as recommended by the Council.

    We consulted with the Council at its January 2018 meeting on potential changes to recreational GB cod measures. Due to the potential increase in cod encounters by recreational anglers, the poor stock condition, and that recreational measures currently in place for GB cod are not expected to constrain fishing year 2018 catch to the catch target, the Council recommended measures to limit the potential for extreme catch of cod to prevent future overages of the ACL.

    To meet this goal, the Council recommended setting a possession limit for the for-hire fleet. Currently private anglers have a 10-fish possession limit, and for-hire vessels have no limit. The Council also proposed an increase in the minimum size limit from 22 up to 24 inches (55.88 up to 60.96 cm). The Council submitted a comment on the proposed rule clarifying that the recommended minimum size was 23 or 24 inches (58.42 cm or 60.96 cm).

    Unlike for the GOM recreational fishery, there is no model available to evaluate the probability of catch amounts for the Georges Bank management changes. Because of the variability in MRIP data, and the lack of a model to simulate the potential effect of the proposed measures, it is difficult to determine the probability that measures may constrain harvest to the catch target. In such cases, we evaluate past practices and measures to develop limits that are gauged to achieve desired catch amounts.

    The Council recommended the 10-fish limit as a way to minimize extreme catch events that could have an inordinate effect on exceeding the catch target if left unaddressed. In 2016, less than 1 percent of anglers landed more than 10 fish. The majority (approximately 70 percent in 2016) of anglers retained 1-3 cod. Although the 10-fish limit is not a limiting factor for most anglers, in 2016 approximately 7 percent of trips reported cod catch, per angler, of greater than 10 fish. The intent of the 10-fish possession limit is to eliminate those high catches of cod, and to dis-incentivize the targeting of cod beyond 10-fish per angler. The most recent assessment suggests that the GB cod stock biomass is increasing, likely resulting in increased catch rates in the recreational fishery and potentially more high catch incidences. Overall, however, the stock remains in poor condition.

    The Council also recommended an increase to the minimum size up to 24 inches (60.96 cm) that is expected to reduce cod mortality relative to recent years. In 2016, approximately 40 percent of the cod landings were less than 24 inches (60.96 cm), and about 22 percent were less than 23 inches (58.42 cm). Because a proportion of released fish die, the mortality reduction is not equal to the amount of released fish. Currently we assume that 30 percent GB cod released by recreational anglers die.

    Based on these mortality assumptions and catch data, a 2-inch (5.08-cm) increase to the minimum size would have been necessary to constrain harvest to the catch target based on the preliminary data available when the Council made its recommendation. This data included final fishing years 2015 and 2016 data, preliminary 2017 data, and projections to estimate harvest for the remainder of the fishing year. Based on the updated 2017 catch data, less reduction is necessary. As a result, we determined that increasing the minimum size by 1 inch (2.54 cm), to 23 inches (58.42 cm), is expected to achieve the necessary reduction in cod catch and minimize discards of undersized fish, while preserving recreational fishing opportunities to the extent practicable.

    Effective May 1, 2018, the recreational bag limit of GB cod will be 10 fish for private and for-hire modes. The possession limit applies per day at sea. Multiday trips are allowed to retain the possession limit multiplied by the number of days of the trip. For example, if a for-hire vessel conducts a 2-day trip, anglers would be able to retain up to 20 cod per person (10 fish, per person, per day). The minimum size for GB cod will be increased to 23 inches (58.42 cm). These measures are summarized in Table 4, along with information on the current measures for comparison. We will reevaluate these measures, and make necessary adjustments for the 2019 fishing year.

    Table 4—Georges Bank Cod Recreational Management Measures for Fishing Year 2018 and Status Quo (Fishing Year 2017) Measures Alternatives Fleet Georges Bank Cod
  • possession limit
  • Minimum
  • fish size
  • (inches)
  • Open season
    Status Quo Private
  • For-hire
  • 10
  • Unlimited.
  • 22 5/1-4/30
    2018 Measures Private
  • For-hire.
  • 10 23 5/1-4/30
    3. Regulatory Corrections

    This rule makes two regulatory corrections under the authority of section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act, which allows the Secretary of Commerce to promulgate regulations necessary to ensure that the FMP is carried out in accordance with the Magnuson-Stevens Act. These administrative corrections are necessary and consistent with the FMP's goals and objectives.

    In § 648.89(c), we added a table to summarize the recreational possession limits. This change is intended to simplify and improve clarity of the regulations.

    In § 648.14(k)(16), we added the possession prohibitions for ocean pout and windowpane flounder by the recreational fishery. Possession of ocean pout and windowpane flounder is already prohibited; however, these prohibitions were omitted from the prohibitions section of the regulations. This correction is intended to improve consistency and clarity of the regulations.

    4. Comments and Responses

    We received 47 comments on the proposed rule. Two of the comments were not related to the proposed measures and are not discussed further. We received comments from the Council, the Stellwagen Bank Charter Boat Association (150 members), the National Party Boat Owners Alliance, the Recreational Fishing Alliance, the Connecticut Charter and Party Boat Association, the Rhode Island Party and Charter Boat Association (65 members), the Rhode Island Saltwater Anglers Association, and 39 members of the public. Twenty-two comments were on the proposed measures for GB cod, 32 comments addressed the proposed GOM measures, and some of these comments addressed both GOM and GB proposed measures. Only one individual supported the proposed GB cod measures, and a number of commenters supported a more conservative approach that would better align GB and GOM cod measures. The remaining comments supported status quo measures for GB cod. Two individuals and two organizations supported the proposed split of private and for-hire measures for GOM haddock. The remaining comments on GOM measures supported status quo Federal measures, or a liberalization of cod limits.

    Gulf of Maine Management Measures

    Comment 1: The Stellwagen Bank Charter Boat Association requested that we eliminate the closed season for GOM haddock from September 17 through October 31 based on the increase in the GOM haddock sub-ACL and a decrease in effort during this period. Alternatively, they suggested that we consider reducing the GOM haddock bag limit from 12 fish to 6 fish during this period to allow anglers to take home some haddock while fishing for non-groundfish species.

    Response: Due to the co-occurrence of cod and haddock, the similarity in gear, and fishing techniques used to target them, it is difficult to simultaneously decrease cod catch, while increasing haddock catch. Using the bioeconomic model, we analyzed a wide variety of seasons and possession limits for haddock. The goal of the model is to maximize opportunities to target haddock while keeping cod catch within the sub-ACL. Based on the model results, we determined that both the spring and fall closures are necessary to constrain the catch of cod to the sub-ACL. Even when the haddock possession limit was decreased significantly, it did not allow for more open haddock seasons. Status quo measures will remain in place for the 2018 fishing year. This was the least constraining option possible for the GOM recreational fishery in the 2018 fishing year.

    Comment 2: Six individuals commented on the increasing number of haddock and cod they are encountering while fishing recreationally in the GOM. Individuals also pointed to the increasing quotas for both GOM cod and haddock. When referring to GOM haddock, all of these comments questioned the rationale for proposing more restrictive management measures for a healthy and abundant stock.

    Response: The 2017 assessment updates for GOM cod and haddock concluded that both haddock and cod populations in the GOM are increasing. GOM haddock biomass is well above the target level; however, GOM cod is still at low levels. As described in the response to Comment 1, cod and haddock are often caught together when recreationally fishing for groundfish in the GOM. Although the assumed discard mortality rate for GOM cod is only 15 percent, the mortality associated with cod bycatch in the directed GOM haddock fishery has resulted in cod catch greater than the recreational sub-ACL in 4 of the last 5 years. Preliminary 2017 data suggests that the 2017 sub-ACL for GOM cod would be exceeded by 55 percent despite a complete closure of the Federal cod fishery. The bioeconomic model projected 2018 cod catch greater than the cod sub-ACL in all scenarios where we modeled less restrictive haddock measures. Status quo measures for the 2018 fishing year are the least restrictive option for GOM recreational measures that allows the fishery to achieve, but not exceed, its sub-ACLs. This final rule maintains status quo measures.

    We are supporting a variety of cooperative research to improve our understanding of recreational fisheries in order to increase fishing opportunities while we continue to rebuild the cod stock. Current examples include an evaluation of discard mortality, a cod bycatch avoidance program, and a study of different tackle and its impact on catch rates.

    Comment 3: Ten individuals and the National Party Boat Owners Alliance supported status quo measures for the GOM haddock fishery.

    Response: We agree, and this final rule maintains status quo measures for the 2018 fishing year. The proposed rule included an option that would have further restricted GOM haddock measures. The proposed changes were only necessary if the Commonwealth of Massachusetts continued to allow private anglers to retain one cod in 2018. Since the proposed rule for this action was published, Massachusetts decided to prohibit the retention of GOM cod by recreational anglers to complement Federal measures and maximize access to the abundant GOM haddock stock.

    Comment 4: Two individuals, the Recreational Fishing Alliance, and the Rhode Island Party and Charter Boat Association supported the split-measures proposed for GOM haddock for private anglers and the for-hire fleet because these measures would have allowed the for-hire fleet to continue operating in May, which is an important month for the haddock fishery. These individuals and organizations only supported the split measures in the event that more restrictive measures were necessary. However, four commenters opposed the split-measures proposed for GOM haddock because private anglers do not catch as much cod as the for-hire component of the fishery.

    Response: Because Massachusetts decided to prohibit the retention of GOM cod by recreational anglers, the more restrictive GOM haddock measures, including the split measures, are not necessary. Federal measures will remain status quo for the 2018 fishing year. These measures are the least restrictive of our options that will allow the most access to GOM haddock for all components of the recreational fishery in Federal waters. The month of May will remain open to haddock fishing for all anglers, at the current possession limit of 12-fish per person.

    In 2016 and 2017, private recreational anglers accounted for 71 and 82 percent, respectively, of the total recreational cod catch in the Gulf of Maine. While the number of anglers on any one private boat is less than a party vessel, the number of private vessels targeting groundfish in the Gulf of Maine is significantly more than the number of for-hire vessels. The number of cod caught per angler on private vessels is also greater than when compared to party vessels. In 2017, the average number of cod caught on a private vessel was 5.9 fish per person, on party vessels the average number of cod caught was 1.6 per person.

    These recent data suggest that the for-hire fleet has been able to avoid cod bycatch when fishing for haddock more effectively than private anglers. As a result, if more restrictive measures for GOM haddock were necessary in 2018, the Council recommended split measures for private anglers and the for-hire fleet. The Council intended the split measures to maximize fishing opportunities for haddock as much as possible for both components of the recreational fishery. Although the more restrictive, split measures are not necessary in 2018, consideration of different measures for private anglers and the for-hire fleet in the future may be appropriate and warranted.

    Comment 5: Fifteen individuals commented on the disparity between proposing GOM cod and haddock recreational limits while the fishing year 2018 GOM cod and haddock commercial quotas are increasing.

    Response: We recognize the perceived discrepancy because the Federal GOM recreational measures are not being liberalized and commercial quotas are increasing. However, we have to take into account the recreational fishery's recent past overages when considering what measures are warranted. Each year, we are required to set recreational management measures designed to achieve, but not exceed, the recreational sub-ACLs. Sometimes increasing sub-ACLs will allow us an opportunity to raise recreational limits or remove restrictions. Other times, particularly when a sub-ACL may still be at a low-level despite an increase, we cannot. This year is an example of when the GOM cod sub-ACL requires us to maintain recreational limits on both GOM cod and haddock to prevent an overage of the relatively lower recreational GOM cod sub-ACL.

    Framework 57 sets the 2018 ACLs based on updated 2017 assessments. According to the 2017 stock assessments, the GOM cod and haddock stocks are increasing, although cod remains overfished and subject to a rebuilding plan. The assessments support increasing the overall ACL for both GOM cod and haddock in 2018, including both the recreational and commercial allocations. The increases for each stock differ substantially. For 2018, the haddock recreational sub-ACL increases by 290 percent, from 1,160 mt to 3,358 mt. The cod sub-ACL remains relatively low, however, and increases a much smaller amount from 157 to 220 mt. The recreational sub-ACLs are based on a fixed percentage of the total catch limit.

    When considering potential measures for 2018, more liberal measures for GOM haddock were not likely to keep cod bycatch within the recreational sub-ACL, even when maintaining the prohibition on possession of GOM cod. Status quo measures were the least restrictive measures possible for 2018 that are expected to achieve the increased cod sub-ACL, with an approximately 57-percent chance of not exceeding the sub-ACL. In fishing year 2017, GOM cod catch (based on preliminary data) is estimated to be 226 mt, which is significantly more than the 2017 GOM cod sub-ACL, and slightly greater than the 2018 sub-ACL. While it is difficult to predict the performance of recreational measures, the bioeconomic model has underestimated recreational catch historically. Increasing the probability of maintaining catch under the sub-ACL provides more confidence that measures successfully keep catch within the sub-ACLs despite the inherent uncertainty in recreational data.

    Comment 6: Four individuals pointed out the differences between the more liberal recreational management measures for GB cod as compared to more restrictive measures for GOM cod. The commenters stated that this difference in management measures was unfair to anglers in the Gulf of Maine.

    Response: Currently, cod is managed as two distinct stocks, GOM and GB. The recreational management measures are designed to achieve, but not exceed, the catch limits for each stock. The 2018 acceptable biological catch (ABC) for GB cod is 1,591 mt, the 2018 GOM cod ABC is 703 mt. The different management measures for GOM and GB cod are based on the different catch history and catch limits. Catch of GOM cod, even when the possession limit has been zero, is significantly more than GB cod catch. In 2017, estimated catch of GB cod, in numbers, was 97,871 fish, and in the GOM estimated catch was 768,134 fish. There are also significantly more angler trips targeting cod and haddock in the GOM than GB. In 2017, approximately 151,000 angler trips were takin in the GOM compared to 62,000 in GB. Another significant factor in the distinction between management measures for GOM and GB cod is that the recreational GOM fishery is allocated GOM cod and is subject to AMs. The GB recreational cod fishery is not allocated quota, and is not subject to AMs in the event of a quota overage. The Council may revisit the allocation determinations in the future.

    There is some uncertainty regarding the GOM and GB cod stock structure, degree of connectivity, and mixing. Because of these uncertainties, and the potential management implications, the Council has planned a workshop to examine the stock structure of cod in the region. Until the stock structure and assessments are revisited, we are required to base management measures on the current stock determinations and corresponding catch limits, which is the best scientific information available. Future measures, and the relationship between GOM and GB cod management, may change depending on the outcome of the stock structure workshops.

    Comment 7: Five individuals opposed the continued closure of the recreational GOM cod fishery, and instead suggested a range of possession limits from 1 to 5 cod. Commenters also recommended a variety of size limits and seasons.

    Response: When compared to the 2017 catch, the 2018 sub-ACLs would allow for a 78-percent increase in haddock catch, but would require an 11-percent reduction in cod catch. Allowing the possession of one cod, even for a limited season, is projected to result in an overage of the 2018 recreational cod sub-ACL. Additionally, although recreational measures are set each year to prevent overages, the recreational fishery has exceeded their sub-ACL of cod in 4 of the last 5 years. The status quo measures maintained through this final rule are expected to constrain cod catch within the recreational sub-ACL, with a 57-percent chance of success. Based on all of the available data, these measures are the least restrictive for the 2018 fishing year that provide the maximum amount of fishing opportunities for other stocks, while keeping catch within the recreational sub-ACL.

    The most recent assessment of GOM cod suggests that the stock is increasing, but remains at a low level. If this increasing trend continues, we expect additional stock rebuilding to provide increased opportunities for recreational and commercial fishermen in the future. Although the recreational sub-ACL for GOM cod is constant for the next 3 years, we will evaluate recreational measures again before the 2019 fishing year to make any necessary adjustments.

    Comment 8: The Stellwagen Bank Charter Boat Association and one individual raised questions about the number of private angler trips estimated by MRIP. These commenters believe that the MRIP estimate is biased high resulting in an overestimation of catch. One individual opposed the GOM management measures based on his observation of a limited number of private vessels fishing recreationally in the GOM.

    Response: Both the Recreational Advisory Panel (RAP) and the Council have discussed the number of angler trips estimated by MRIP. In 2017, the estimated number of angler trips in the GOM on private vessels was greater than 1.1 million. Of these trips, an estimated 108,000 were estimated to be targeting cod and haddock. The GOM is a large region, and while some areas may have a limited number of anglers, the overall amount of effort is high. At recent recreational meetings, and in its comment on the proposed rule for this action, the Stellwagen Bank Charter Boat Association estimated that the number of 2017 angler trips from MRIP would mean that there were 176 vessels fishing per day, every day from April 15 to September 15. This calculation assumes that no private anglers fish after the fall closure, or during closures in state waters, and that vessels have an average of 4 people on board, and it is not clear if these assumptions are reasonable. While there are some uncertainties with MRIP data, including the estimated number of angler trips, MRIP is currently the best scientific information available.

    At the January 2018 RAP meeting, the RAP proposed a dedicated survey to gauge the amount of private angler effort, although the Council did not discuss this proposal further. Additionally, there are improvements being made to the MRIP sampling protocols that should improve the estimates of recreational effort, including the estimated number of private angler trips.

    Comment 9: Five individuals commented that private anglers can more effectively avoid cod by-catch when fishing for haddock than the for-hire fleet.

    Response: We disagree. In 2016, the average number of cod caught per angler on party boats was 4.5, and in 2017 this dropped to 1.6, representing a decrease of 64 percent. On charter boats, the average number of cod caught per person was 10.9 in 2016, and 5.9 in 2017, which is a reduction of 46 percent. Private anglers caught an average of 5.8 cod per person in 2016. In 2017, private anglers caught roughly the same number, 5.9 fish per person, which is a slight increase of 2 percent. While there is uncertainty in the estimates provided by MRIP, it is likely that the trends are representative. The data from 2016 and 2017 suggest that on average, the for-hire modes of the fishery were able to significantly reduce cod catch per person, while private anglers continued to catch approximately the same number of cod.

    Georges Bank Cod Recreational Measures

    Comment 10: The Council clarified that its recommendation to “increase the minimum size fish from 22 inches (55.88 cm) up to 24 inches (60.96 cm)” meant it would support a revised minimum size of 23 (58.42 cm) or 24 (60.96 cm) inches.

    Response: As discussed already in the preamble of this rule, this final rule implements a minimum size of 23 inches (58.42 cm) for GB cod consistent with the Council's recommendation. The proposed rule to this action included a minimum size of 24 inches (60.96 cm) for GB cod. Although we did not specifically propose a minimum size of 23 inches (58.42 cm) as an alternative, a 23 inch (58.42 cm) minimum size was within the range of alternatives evaluated in Section 5.1 of the supplemental EA (see ADDRESSES). Unlike the Gulf of Maine fishery, we do not have a model to predict catches, and evaluate impacts. We used the most recent 3-year average as an estimate of current catch, and compared that estimate to the catch target. Based on that comparison we determined that we needed to make regulatory changes to reduce catch. In order to determine 2018 management measures, we evaluated trends in the fishery to determine what size and possession limits would be effective. We analyzed total catch, and landings in each mode of the fishery, as well as the size of fish being landed. Based on this analysis we have determined that a 23-inch (58.42-cm) minimum size, coupled with a 10-fish possession limit for all modes of the fishery is expected to result in catch close to the catch target.

    Comment 11: Eighteen individuals and organizations commented that MRIP data varies too much and is an unreliable source of information for the development of management measures. Individuals pointed out that the low estimates (e.g. 2013) and high estimates (e.g. 2016) are not accurate estimates of the catch and should not be used as the basis for management. Some comments provided specific examples of errors with the MRIP dataset, such as the high estimate of shore catch from New Jersey in 2016.

    Response: All surveys have degrees of certainty that accompany them depending on different factors including how many people were surveyed. We agree that the annual MRIP point estimates of GB cod catch, like any survey catch estimates, include a degree of uncertainty. Some uncertainty in the GB cod estimates result from the small sample size relative to the population of recreational anglers. However, we considered MRIP data uncertainty or variability when developing the recreational fishery's management measures. Because of the known variability in annual point estimates, many recreational fishery management plans use a 3-year moving average to evaluate past catch and determine future management measures. For GB cod recreational catch, we determined that averaging the data over numerous years helps address uncertainty in the survey. The use of an average smooths the high and low estimates, and provides a more accurate picture of fishery conditions and trends.

    Estimates of catch and effort must be used because it is not possible to have a complete census of all recreational anglers to capture all catch and every angler trip. MRIP is the method used to count and report marine recreational catch and effort. In January 2017, the National Academies of Science released their latest review of MRIP and recognized NMFS for making “impressive progress” and “major improvements” to MRIP survey designs since the 2006 review of MRIP. While there are some remaining challenges to MRIP surveys, we continue to make improvements including transitioning from the Coastal Household Telephone survey to the Fishing Effort Survey, which will further improve our estimates of recreational fishing effort.

    Although estimates from MRIP are uncertain and variable to a degree, MRIP is currently the only source of information we have to estimate effort and catch by private recreational anglers, and is therefore the best scientific information available. As also described earlier in responses to comments on the GOM measures, we are exploring recommendations made by the RAP that would supplement the for-hire dataset. We also expect revised MRIP estimates based on the improved methodology to be released later this year. We have taken into account the uncertainty issues in the current dataset and are actively working to improve the information we use to make management decisions. In the interim, we plan to use approaches that minimize the impacts of outliers and variability.

    Comment 12: One individual supported reducing the recreational catch of GB cod, but suggested that the possession limit should be more restrictive than 10 fish. The commenter noted the recreational fishery is being rewarded for overharvesting GB cod, and that the catch target should be set at a lower level consistent with catches in 2012 or before.

    Response: In 2016, unusually high recreational catch reflected in the MRIP data resulted in an overage of the GB cod U.S. ABC. This overage prompted the Council to develop a short-term plan to address recreational GB cod catch, which included the recommendation of a catch target to guide the development of management measures. The catch target (138 mt) was not developed, proposed, or approved as part of this action. Additional information on the catch target can be found in Framework 57.

    The Council developed the catch target based on a 5-year average, and provided us the limited authority for 2018 and 2019 to adjust recreational GB cod management measures to cap GB cod catch at this level. In this action, we only have the ability to revise the management measures relative to the catch target. The measures we plan to implement have been designed to constrain GB cod catch by the recreational fishery and prevent its catch from contributing to exceeding the overall GB cod ACL. The recreational fishery does not have an allocation (sub-ACL) of GB cod; therefore, there is no mechanism to hold that fishery accountable for any overages that may occur. The Council may choose to review recent recreational catch and determine if an allocation, and associated management and AMs, are appropriate for this fishery in a future management action. The Council would consider the performance of the management measures implemented in this final rule in developing long-term measures for the GB cod recreational fishery.

    Comment 13: One individual suggested that limiting the gear types allowed to catch haddock would reduce cod bycatch better than limiting seasons.

    Response: We agree that fishing methods may be an important factor influencing the bycatch rate and mortality of cod. Research is exploring the impacts of different tackle and fishing methods on discard mortality and catch rates. We continue to support (fund and participate in) these efforts so that gear modification can be used in the future as a potential tool to manage recreational fisheries. At this time, we do not have the information required to make modifications to the management measures. We will continue to support innovative gear research.

    Comment 15: The National Party Boat Owners Alliance, Recreational Fishing Alliance, Rhode Island Saltwater Anglers Association, Connecticut Charter and Party Boat Association, and eleven individuals supported status quo measures for GB cod. The commenters pointed to the preliminary 2017 GB cod MRIP data, and the new estimate of 2017 GB cod catch of 51 mt. The commenters cite the 2017 estimate as evidence that GB cod catch is not increasing, and that the status quo measures should be maintained, or even more liberal measures considered.

    Response: We determined that averaging numerous years of MRIP estimates better takes into account uncertainty in the MRIP data than using estimates from a single year or part of a year. We considered the preliminary 2017 wave 6 MRIP data, which became available after the Council developed its recommendations, to determine appropriate measures for the 2018 fishing year. Consistent with averaging multiple years of data, we did not rely solely on the wave 6 estimate because it is a single data point. Nor did we rely on any other single annual estimate. Even when incorporating the low preliminary 2017 estimate into the 3-year average catch calculation, the result is greater than the catch target selected by the Council. The most recent 3-year average (2015-2017) is 196 mt, compared to the 2018 catch target of 138 mt. Additional rationale is provided in the preamble of the proposed and final rule.

    Comment 14: Two individuals opposed the GB cod recreational catch target because the catch target is being set at a stable level while the total GB cod ACL is increasing. Additionally, two individuals and the Rhode Island Party and Charter Boat Association questioned the use of fishing year data to calculate average catch when it is being compared to a catch target that is calculated with calendar year data.

    Response: The approval of the recreational GB cod catch target was not included in this rule. It was part of Framework 57. Because the catch target is not part of this action, these comments are outside the scope of the measures approved in this final rule. However, because we use the recreational catch target to set recreational management measures, additional background on the catch target is included below. More specific responses to comments on the catch target have been included as part of the Framework 57 final rule.

    The Council recommended a catch target calculated using the average of 5 calendar years of catch estimates from the most recent GB cod assessment. We do not use calendar year catch, but instead use fishing year data to estimate catch based on the most recent 3-year average catch. We selected the most recent fishing year data to estimate catch because it allows us to include the preliminary 2017 catch estimate in the average. While the general trend is that recreational catch is increasing, the preliminary 2017 data indicate 2017 catch is lower than the unusually high catches in 2016 and more consistent with the general trend. The catch estimates are different depending on the months included in the estimate. For example, the calendar year estimate for 2016 includes data from January 2016 through December 2016, whereas the fishing year 2016 estimate includes data from May 2016 through April 2017. This naturally results in different estimates, particularly for GB cod, because the fishing season is concentrated at the end of the calendar year. However, despite small differences, the calendar year and fishing year estimates are relatively similar each year. Further, regardless of what combination of calendar year and fishing year estimates are used, the result is that recent catch exceeds the 5-year average catch target. As a result, and as more fully described in the preamble above, this final rule adjusts recreational management measures for the 2018 fishing year to ensure recreational catch does not exceed the catch target that the Council identified.

    Comment 15: Eight individuals commented that the implementation of a 10-fish possession limit for the charter and party vessels would have a negative impact on their businesses. In addition, they stated that the possession limit would not actually affect cod catch, and that it was a “feel good” measure to appease other fisheries.

    Response: Implementing a bag limit in the for-hire mode may impact these businesses negatively, primarily due to the shift in the marketing strategy because currently these vessels can market “unlimited cod.” However, a 10-fish bag limit is not limiting for the majority of customers. In 2016, less than 1 percent of anglers landed more than 10 fish. The majority (approximately 70 percent in 2016) of anglers retained one to three cod. Although the 10-fish limit is not a limiting factor for most anglers, in 2016 approximately 7 percent of trips reported cod catch, per angler, of greater than 10 fish. The intent of this possession limit is to eliminate high catches of cod, and the potential for high catches of cod, that could contribute to exceeding the target. The most recent stock assessment suggests that the GB cod stock biomass is increasing, likely resulting in increased catch rates in the recreational fishery and potentially more high catch trips.

    In addition, the per person possession limit applies per day. Therefore, multi-day trips are allowed to retain the possession limit times the number of days-at-sea fished. For example, if a for-hire vessel takes a 2-day trip offshore, anglers can retain up to 20 cod per person (10 fish, per person, per day). This may ease some of the concerns expressed by some for-hire industry members relative to longer, offshore trips.

    Comment 16: The Stellwagen Bank Charter Boat Association and six individuals commented on the connectivity between the GOM and GB cod stocks. These commenters were concerned that the difference between GOM and GB recreational management measures allows anglers to target GOM cod when they are in southern New England, further hindering the recovery of this stock, and creating an inequity between the GOM and GB anglers.

    Response: The connectivity between the GOM cod stock and cod in Southern New England (currently considered GB cod) has been well documented in the scientific literature, though there is uncertainty in the degree of that connectivity. The relationship between cod in these regions is not currently included in the stock assessments or management programs. However, efforts are underway to examine the connectivity and implications. A workshop to analyze the population structure of cod is planned for this fall. Additional information on the working group can be found here: https://www.nefsc.noaa.gov/saw/acsswg/. These efforts may lead to changes in the assessments or management of these stocks. We agree that this is an important issue and one that will require input from the scientific community and industry to resolve. At this time, the cod population is managed and assessed as two distinct stocks (GOM and GB), and this rule only implements management measures to achieve the sub-ACL for GOM cod and catch target for GB cod.

    Comment 17: The Stellwagen Bank Charter Boat Association, Rhode Island Party and Charter Boat Association, and six individuals disagreed that the proposed minimum size limit increase from 22 to 24 inches (55.88 to 60.96 cm) would improve compliance (an enforcement benefit) and better align management measures for the two cod stocks, particularly because the GOM is closed to cod fishing.

    Response: We agree that the compliance benefit is likely negligible at this time because the GOM recreational cod fishery will be closed in Federal and state waters in fishing year 2018. However, if both fisheries were open, different management measures for the same species may be confusing to anglers, and is difficult to enforce, resulting in compliance issues. We have determined that a minimum size of 23 inches (58.42 cm) is more appropriate for GB cod for this year. If the GOM recreational cod fishery opens in the future, the Council may consider how to align management measures for GOM and GB in any recommendations it makes to us.

    Comment 18: The Recreational Fishing Alliance, Rhode Island Party and Charter Boat Association, Rhode Island Saltwater Anglers Association, Connecticut Charter and Party Boat Association, and seven individuals opposed the proposed increase in minimum size from 22 to 24 inches (55.88 to 60.96 cm). The commenters noted the new minimum size would increase regulatory discards and could cause effort on GB cod to increase as anglers attempt to catch larger cod. These commenters did not feel that changing the size limit would be an effective tool to control mortality of GB cod, and would result in long-term consequences for the fishery.

    Response: The minimization of discards is an overall objective of U.S. fisheries management (National Standard 9). Increasing the minimum size is likely to result in an increase in regulatory discards. However, the amount discards would increase is difficult to estimate because it is not only related to the minimum size, but the structure of the cod population. For example, a large year-class of cod propagating through the fishery may be greater than the minimum size, and may represent the majority of fish available to the fishery. In this scenario, discards may decline or remain constant despite an increase in the minimum size. The implementation of a 23 inch (58.42 cm) minimum size, as opposed to 24 inches (60.96 cm), is an attempt to balance these competing issues.

    While minimizing discards is important, the overall reduction of mortality is more important. The current GB cod assessment assumes that 30 percent of fish discarded in the recreational fishery die, meaning that 70 percent survive. So, although discards may increase as a result of this action, the majority of these fish survive.

    Previously, the Council had recommended a non-binding prioritization of possible measures recommended for consideration when developing recreational management measures. For cod, first increases to minimum fish sizes, then adjustments to seasons, followed by changes to bag limits; and for haddock, first increases to minimum size limits, then changes to bag limits, and then adjustments to seasons. This prioritization was considered when determining what type of management changes should be considered for GB cod.

    Comment 19: The Recreational Fishing Alliance, National Party Boat Owners Alliance, and three individuals disagreed that recreational GB cod catch is increasing. These commenters suggest that the increasing trend is only seen “on paper” and the reality is that recreational catches have been consistent over the past 10 years.

    Response: The annual estimates of GB cod recreational catch are highly variable; however, the data available suggest an increasing trend in GB cod catch, since a low in 2013. This trend is reasonable to believe given the increasing GB cod stock, and the closure of the GOM to recreational cod fishing. Estimated recreational GB cod catch, from the 2017 assessment, depicts increasing recreational catch from 2007 to 2011, low catches in 2012 and 2013, followed by a sharp increase through 2016. It is difficult to resolve long-term trend in the fishery, particularly given the variability of the MRIP estimates, the impacts of the stock size, and other factors that may influence an angler's decision to fish recreationally. Given the uncertain impact of these variables, we have decided to compare the most recent 3-year average to the Council's proposed catch target. We have the flexibility to adjust measures for the 2019 fishing year if updated catch information alters the outcome of this analysis.

    Classification

    The Administrator, Greater Atlantic Region, NMFS, determined that these measures are necessary for the conservation and management of the Northeast multispecies fishery and that the measures are consistent with the Magnuson-Stevens Fishery Conservation and Management Act and other applicable laws.

    This final rule has been determined to be not significant for purposes of Executive Order (E.O.) 12866.

    This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.

    This final rule does not contain policies with Federalism or takings implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively.

    Pursuant to 5 U.S.C. 553(d)(3), the Assistant Administrator for Fisheries finds good cause to make this rule effective May 1, 2018. This final rule implements reductions from the current recreational management measures for GB cod that will remain in place until this rule is effective. Delaying the effective date of this rule increases the likelihood that recreational catch in the 2018 fishing year will exceed the catch target, and potentially contribute to an overage of the overall ACL. In fishing year 2016, the GB cod ACL and ABC were exceeded. GB cod is overfished and overfishing is occurring, and it is critical that the 2018 recreational management measures, which will reduce cod mortality, go into effect with the start of the fishing year to ensure that the catch limit is not exceeded again. Thus, delaying implementation of these measures would be contrary to the public interest of ensuring that GB cod catch limits are not exceeded.

    The Northeast Multispecies fishing year begins on May 1 of each year and continues through April 30 of the following calendar year. Altering recreational management measures too far after the season has begun is problematic because it negatively impacts business planning for the for-hire segment of the fishery, causes confusion in the fishery, and may result in less compliance with the regulations.

    NMFS could not have finalized this action earlier because of the availability of recreational data from MRIP. We, in consultation with the Council, develop recreational management measures using MRIP data. Effort and catch in the current fishing year is used to gauge performance relative to the catch limits, and for GOM cod and haddock MRIP data is used in the bioeconomic model to evaluate management options. The collection and processing of recreational data creates a very compressed period for development and consideration of options, consulting with the Council process, and completing proposed and final rulemaking. MRIP data is collected on a calendar year basis in 2-month waves. Preliminary data from the summer and fall, when recreational effort is significant, is not available until December, so analyses are not ready until January at the earliest. We consulted with the Council in January 2018. On January 31, 2018, the Council voted to recommend to us the suite of recreational measures we are implementing. In addition to this consultation process, we must fully evaluate and analyze the measures under consideration. This involves not only the bioeconomic model output presented in January, but also includes an environmental analysis of the recommended measures, consistent with the National Environmental Policy Act (NEPA) requirements, and a systematic review of compliance with other applicable laws. In order to evaluate the impact of the 2016 recreational catch overages, and the proposed management alternatives, we needed to consider them in the context of total catch and catch limits. Final data on commercial catch of GOM and GB cod and haddock, and the portion of the catch limit that was caught, was not available until February 2018.

    For the reasons outlined, NMFS finds that there is good cause to waive the requirement to provide a 30-day delay in implementation.

    Regulatory Flexibility Act (RFA)

    A final regulatory flexibility analysis (FRFA) was prepared for this action. The FRFA incorporates the IRFA and a summary of the analyses completed to support the action. NMFS did not receive any comments that were specifically in response to the IRFA. The FRFA incorporates sections of the preamble (SUPPLEMENTARY INFORMATION) and analyses supporting this rulemaking, including the Framework Adjustment 57 EA and the supplemental EA to Framework Adjustment 57 (see ADDRESSES). A description of the action, why it is being considered, and the legal basis for this action are contained in the supplemental information report and preamble to the proposed rule, and are not repeated here. A summary of the analyses follows.

    A Summary of the Significant Issues Raised by the Public in Response to the IRFA, a Summary of the Agency's Assessment of Such Issues, and a Statement of Any Changes Made in the Final Rule as a Result of Such Comments

    Our responses to all of the comments received on the proposed rule, including those that raised significant issues with the proposed action can be found in the Comments and Responses section of this rule. In the proposed rule we solicited comments on two options for GOM cod, and one option for GB cod. The majority of comments supported implementing the measures that the NEFMC recommended for the GOM (status quo), and opposed changes to the GB cod recreational management measures. There were no comments that specifically addressed the IRFA.

    Description and Estimate of the Number of Small Entities to Which This Rule Would Apply

    The Small Business Administration (SBA) defines a small commercial finfishing or shellfishing business (NAICS code 11411) as a firm with annual receipts (gross revenue) of up to $11.0 million for Regulatory Flexibility Act compliance purposes only. A small for-hire recreational fishing business is defined as a firm with receipts of up to $7.5 million (NAICS code 487210). Having different size standards for different types of fishing activities creates difficulties in categorizing businesses that participate in multiple fishing related activities. For purposes of this assessment, business entities have been classified into the SBA-defined categories based on which activity produced the highest percentage of average annual gross revenues from 2014-2016. This is the most recent 3-year period for which data are available. Ownership data in the Northeast permit database identify all individuals who own fishing vessels. Using this information, vessels can be grouped together according to common owners. The resulting groupings were treated as a fishing business for purposes of this analysis. Revenues summed across all vessels in a group and the activities that generate those revenues form the basis for determining whether the entity is a large or small business.

    The proposed regulations include closed seasons in addition to possession limits and size limits. For purposes of this analysis, it is assumed that all three types of recreational fishing restrictions may directly affect for-hire businesses. According to the FMP, it is unlawful for the owner or operator of a charter or party boat issued a valid multispecies permit, when the boat is carrying passengers for hire, to:

    • Possess cod or haddock in excess of the possession limits.

    • Fish with gear in violation of the regulations.

    • Fail to comply with the applicable restrictions if transiting the GOM Regulated Mesh Area with cod or haddock on board that was caught outside the GOM Regulated Mesh Area.

    As the for-hire owner and operator can be prosecuted under the law for violations of the proposed regulations, for-hire business entities are considered directly affected in this analysis. Private recreational anglers are not considered “entities” under the RFA, and thus economic impacts on anglers are not discussed here.

    For-hire fishing businesses are required to obtain a Federal charter/party multispecies fishing permit in order to carry passengers to fish for cod or haddock. Thus, the affected businesses entities of concern are businesses that hold Federal multispecies for-hire fishing permits. While all business entities that hold for-hire permits could be affected by changes in recreational fishing restrictions, not all businesses that hold for-hire permits actively participate in a given year. The regulations affect the group of business entities who actively participate, i.e., land fish. Latent fishing power (in the form of unfished permits) has the potential to alter the impacts on a fishery. However, it is not possible to predict how many of these latent business entities will or will not participate in this fishery in fishing year 2018.

    The Northeast Federal landings database (i.e., vessel trip report data) indicates that a total of 661 vessels held a multispecies for-hire fishing permit in 2016. This is the most recent full year of available data. Of the 661 for-hire permitted vessels, only 164 actively participated in the for-hire Atlantic cod and haddock fishery in fishing year 2016 (i.e., reported catch of cod or haddock).

    Using vessel ownership information developed from Northeast Federal permit data and Northeast vessel trip report data, it was determined that the 164 actively participating for-hire vessels are owned by 151 unique fishing business entities. The vast majority of the 151 fishing businesses were solely engaged in for-hire fishing, but some also earned revenue from shellfish and/or finfish fishing. For all but 23 of these fishing businesses, the revenue from for-hire fishing was greater than the revenue from shellfishing and the revenue from finfish fishing.

    According to the SBA size standards, small for-hire businesses are defined as firms with annual receipts of up to $7.5 million. Small commercial finfishing or shellfishing businesses are defined as firms with annual receipts (gross revenue) of up to $11.0 million. Average annual gross revenue estimates calculated from the most recent 3 years (2014-2016) indicate that none of the 151 fishing business entities had annual receipts of more than $2.8 million from all of their fishing activities (for-hire, shellfish, and finfish). Therefore, all of the affected fishing business entities are considered “small” based on the SBA size standards.

    Description of the Projected Reporting, Recordkeeping, and Other Compliance Requirements of This Rule

    There are no reporting, recordkeeping, or other compliance requirements.

    Federal Rules Which May Duplicate, Overlap, or Conflict With This Rule

    The action is authorized by the regulations implementing the Northeast Multispecies FMP. It does not duplicate, overlap, or conflict with other Federal rules.

    Description of Significant Alternatives to the Rule Which Accomplish the Stated Objectives of Applicable Statutes and Which Minimize Any Significant Economic Impact on Small Entities

    There are three options that were presented to the Council that would accomplish the objectives, but are not being proposed. Options 5 and 6 were only discussed by the Council, and while they would achieve the objective, were not selected. The options presented, but not proposed, were rejected either because they did not achieve the required cod sub-ACL, or they had significant negative impacts on the for-hire fleet (e.g., Option 2, a May closure). The options proposed in this action minimize, to the extent practical, the impact on small entities.

    BILLING CODE 3510-22-P ER01MY18.010 BILLING CODE 3510-22-C

    Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996 states that, for each rule or group of related rules for which an agency is required to prepare a FRFA, the agency shall publish one or more guides to assist small entities in complying with the rule, and shall designate such publications as “small entity compliance guides.” The agency shall explain the actions a small entity is required to take to comply with a rule or group of rules. As part of this rulemaking process, a letter to permit holders that also serves as small entity compliance guide (the guide) was prepared. Copies of this final rule are available from the Greater Atlantic Regional Fisheries Office (see ADDRESSES), and the guide, i.e., bulletin, will be sent to all holders of permits for the Northeast multispecies fishery. The guide and this final rule will be available upon request.

    List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Recordkeeping and reporting requirements.

    Dated: April 26, 2018. Samuel D. Rauch, III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

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

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

    16 U.S.C. 1801 et seq.

    2. In § 648.14, add paragraphs (k)(16)(viii) and (ix) to read as follows:
    § 648.14 Prohibitions.

    (k) * * *

    (16) * * *

    (viii) Ocean pout. If fishing under the recreational or charter/party regulations, possess ocean pout.

    (ix) Windowpane flounder. If fishing under the recreational or charter/party regulations, possess windowpane flounder.

    3. In § 648.89, revise paragraphs (b) and (c) to read as follows:
    § 648.89 Recreational and charter/party vessel restrictions.

    (b) Recreational minimum fish sizes—(1) Minimum fish sizes. Unless further restricted under this section, persons aboard charter or party boats permitted under this part and not fishing under the NE multispecies DAS program or under the restrictions and conditions of an approved sector operations plan, and private recreational fishing vessels in or possessing fish from the EEZ, may not possess fish smaller than the minimum fish sizes, measured in total length, as follows:

    Species Minimum size Inches cm Cod: Inside GOM Regulated Mesh Area 1 24 61.0 Outside GOM Regulated Mesh Area 1 23 58.4 Haddock: Inside GOM Regulated Mesh Area 1 17 43.2 Outside GOM Regulated Mesh Area 1 18 45.7 Pollock 19 48.3 Witch Flounder (gray sole) 14 35.6 Yellowtail Flounder 13 33.0 American Plaice (dab) 14 35.6 Atlantic Halibut 41 104.1 Winter Flounder (black back) 12 30.5 Redfish 9 22.9 1 GOM Regulated Mesh Area specified in § 648.80(a).

    (2) Exceptions—(i) Fillet size. Vessels may possess fillets less than the minimum size specified, if the fillets are taken from legal-sized fish and are not offered or intended for sale, trade or barter.

    (ii) Transiting. Vessels in possession of cod or haddock caught outside the GOM Regulated Mesh Area specified in § 648.80(a)(1) may transit this area with cod and haddock that meet the minimum size specified for fish caught outside the GOM Regulated Mesh Area specified in § 648.80(b)(1), provided all bait and hooks are removed from fishing rods, and any cod and haddock on board has been gutted and stored.

    (3) Fillets. Fish fillets, or parts of fish, must have at least 2 square inches (5.1 square cm) of skin on while possessed on board a vessel and at the time of landing in order to meet minimum size requirements. The skin must be contiguous and must allow ready identification of the fish species.

    (c) Possession Restrictions—(1) Private recreational vessels. Persons aboard private recreational fishing vessels in or possessing fish from the EEZ, during the open season listed in the column titled “Open Season” in Table 1 to paragraph (c), may not possess more fish than the amount listed in the column titled “Daily Possession Limit” in Table 1 to paragraph (c).

    (i) Closed season. Persons aboard private recreational fishing vessels may not possess species, as specified in the column titled “Species” in Table 1 to paragraph (c), in or from the EEZ during that species closed season as specified in the column titled “Closed Season” in Table 1 to paragraph (c).

    Table 1 to Paragraph (c) Species Open season Daily possession limit Closed season GB Cod All Year 10 N/A. GOM Cod CLOSED No retention All Year. GB Haddock All Year Unlimited N/A. GOM Haddock June 1-September 16; November 1-February 28 (or 29); April 15-30 12 September 17-October 31; March 1-April 14; May 1-31. GB Yellowtail Flounder All Year Unlimited N/A. SNE/MA Yellowtail Flounder All Year Unlimited N/A. CC/GOM Yellowtail Flounder All Year Unlimited N/A. American Plaice All Year Unlimited N/A. Witch Flounder All Year Unlimited N/A. GB Winter Flounder All Year Unlimited N/A. GOM Winter Flounder All Year Unlimited N/A. SNE/MA Winter Flounder All Year Unlimited N/A. Redfish All Year Unlimited N/A. White Hake All Year Unlimited N/A. Pollock All Year Unlimited N/A. N. Windowpane Flounder CLOSED No retention All Year. S. Windowpane Flounder CLOSED No retention All Year. Ocean Pout CLOSED No retention All Year. Atlantic Halibut See paragraph (c)(3). Atlantic Wolffish CLOSED No retention All Year.

    (2) Charter or Party Boats. Persons aboard party or charter boats in or possessing fish from the EEZ, during the open season listed in the column titled “Open Season” in Table 2 to paragraph (c), may not possess more fish than the amount listed in the column titled “Daily Possession Limit” in Table 2 to paragraph (c).

    Table 2 to Paragraph (c) Species Open season Daily possession limit Closed season GB Cod All Year 10 N/A. GOM Cod CLOSED No retention All Year. GB Haddock All Year Unlimited N/A. GOM Haddock May 1-September 16; November 1-February 28 (or 29); April 15-30 10 September 17-October 31; March 1-April 14. GB Yellowtail Flounder All Year Unlimited N/A. SNE/MA Yellowtail Flounder All Year Unlimited N/A. CC/GOM Yellowtail Flounder All Year Unlimited N/A. American Plaice All Year Unlimited N/A. Witch Flounder All Year Unlimited N/A. GB Winter Flounder All Year Unlimited N/A. GOM Winter Flounder All Year Unlimited N/A. SNE/MA Winter Flounder All Year Unlimited N/A. Redfish All Year Unlimited N/A. White Hake All Year Unlimited N/A. Pollock All Year Unlimited N/A. N Windowpane Flounder CLOSED No retention All Year. S Windowpane Flounder CLOSED No retention All Year. Ocean Pout CLOSED No retention All Year. Atlantic Halibut See Paragraph (c)(3). Atlantic Wolffish CLOSED No retention All Year.

    (3) Atlantic halibut. Vessels permitted under this part, and recreational fishing vessels fishing in the EEZ, may not possess more than one Atlantic halibut on board the vessel.

    (4) Accounting of daily possession limit. For the purposes of determining the per day trip limit for cod and haddock for private recreational fishing vessels and charter or party boats, any trip in excess of 15 hours and covering 2 consecutive calendar days will be considered more than 1 day. Similarly, any trip in excess of 39 hours and covering 3 consecutive calendar days will be considered more than 2 days and, so on, in a similar fashion.

    (5) Fillet conversion. For purposes of counting fish for cod and haddock for private recreational fishing vessels and charter or party boats, if fish are filleted, fillets will be converted to whole fish by dividing the number of fillets by two. If fish are filleted into a single (butterfly) fillet, such fillet shall be deemed to be from one whole fish.

    (6) Application of daily possession limit. Compliance with the daily possession limit for cod and haddock harvested by party, charter, and private recreational fishing vessels, in or from the EEZ, with more than one person aboard, will be determined by dividing the number of fish on board by the number of persons on board. If there is a violation of the daily possession limit on board a vessel carrying more than one person the violation shall be deemed to have been committed by the owner or operator of the vessel.

    (7) Storage. Cod and haddock must be stored so as to be readily available for inspection.

    [FR Doc. 2018-09163 Filed 4-30-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 151211999-6343-02] RIN 0648-XG175 Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Gulf of Maine Cod Trimester Total Allowable Catch Area Closure for the Common Pool Fishery AGENCY:

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

    ACTION:

    Temporary rule; area closure.

    SUMMARY:

    This action closes the Gulf of Maine Cod Trimester Total Allowable Catch Area to Northeast multispecies common pool vessels fishing with trawl gear, sink gillnet gear, and longline/hook gear. The closure is required by regulation because the common pool fishery is projected to have caught 90 percent of its Trimester 3 quota for Gulf of Maine cod. This closure is intended to prevent an overage of the common pool's quota for this stock.

    DATES:

    This action is effective April 26, 2018, through April 30, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Spencer Talmage, Fishery Management Specialist, (978) 281-9232.

    SUPPLEMENTARY INFORMATION:

    Federal regulations at § 648.82(n)(2)(ii) require the Regional Administrator to close a common pool Trimester Total Allowable Catch (TAC) Area for a stock when 90 percent of the Trimester TAC is projected to be caught. The closure applies to all common pool vessels fishing with gear capable of catching that stock for the remainder of the trimester.

    Based on catch data through April 23, 2018, the common pool fishery is projected to have caught approximately 90 percent of the Trimester 3 TAC (3.0 mt) for Gulf of Maine (GOM) cod on April 24, 2018. Projections show that catch will likely reach 100 percent of the annual quota by April 26, 2018. Effective April 26, 2018, the GOM Cod Trimester TAC Area is closed for the remainder of Trimester 3, through April 30, 2018. This closure applies to all common pool vessels fishing on a Northeast multispecies trip with trawl gear, sink gillnet gear, and longline/hook gear. The GOM Cod Trimester TAC Area consists of statistical areas 513 and 514. The area reopens at the beginning of Trimester 1 of the 2018 fishing year on May 1, 2018.

    If a vessel declared its trip through the Vessel Monitoring System (VMS) or the interactive voice response system, and crossed the VMS demarcation line prior to April 26, 2018, it may complete its trip within the GOM Cod Trimester TAC Area. A vessel that has set gillnet gear prior to April 26, 2018, may complete its trip by hauling such gear.

    If the common pool fishery exceeds its total quota for a stock in the 2017 fishing year, the overage must be deducted from the common pool's quota for that stock for fishing year 2018. Any uncaught portion of the common pool's total annual quota may not be carried over into the following fishing year.

    Weekly quota monitoring reports for the common pool fishery are on our website at: http://www.greateratlantic.fisheries.noaa.gov/ro/fso/MultiMonReports.htm. We will continue to monitor common pool catch through vessel trip reports, dealer-reported landings, VMS catch reports, and other available information and, if necessary, we will make additional adjustments to common pool management measures.

    Classification

    This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866. The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553(b)(B) and 5 U.S.C. 553(d)(3) to waive prior notice and the opportunity for public comment and the 30-day delayed effectiveness period because it would be impracticable and contrary to the public interest.

    The regulations require the Regional Administrator to close a trimester TAC area to the common pool fishery when 90 percent of the Trimester TAC for a stock has been caught. Updated catch information through April 23, 2018, only recently became available indicating that the common pool fishery is projected to have caught 90 percent of its Trimester 3 TAC for GOM cod on April 24, 2018. The time necessary to provide for prior notice and comment, and a 30-day delay in effectiveness, would prevent the immediate closure of the GOM Cod Trimester TAC Area. This would be contrary to the regulatory requirement and would increase the likelihood that the common pool fishery would exceed its trimester or annual quota of GOM cod to the detriment of this stock. This could undermine management objectives of the Northeast Multispecies Fishery Management Plan. Fishermen expect these closures to occur in a timely way to prevent overages and their payback requirements. Overages of the trimester or annual common pool quota could cause negative economic impacts to the common pool fishery as a result of overage paybacks deducted from a future trimester or fishing year.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: April 26, 2018. Jennifer M. Wallace, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-09138 Filed 4-26-18; 4:15 pm] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 648 [Docket No. 180110022-8383-02] RIN 0648-BH52 Magnuson-Stevens Fishery Conservation and Management Act Provisions; Fisheries of the Northeastern United States; Northeast Multispecies Fishery; Framework Adjustment 57 AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    This action approves and implements Framework Adjustment 57 to the Northeast Multispecies Fishery Management Plan, as recommended by the New England Fishery Management Council. This rule sets 2018-2020 catch limits for 20 multispecies (groundfish) stocks, adjusts allocations for several fisheries, revises accountability measures, and makes other minor changes to groundfish management measures. This action is necessary to respond to updated scientific information and achieve the goals and objectives of the fishery management plan. The final measures are intended to prevent overfishing, rebuild overfished stocks, achieve optimum yield, and ensure that management measures are based on the best scientific information available.

    DATES:

    Effective on May 1, 2018.

    ADDRESSES:

    Copies of Framework Adjustment 57, including the Environmental Assessment, the Regulatory Impact Review, and the Regulatory Flexibility Act Analysis prepared by the New England Fishery Management Council in support of this action are available from Thomas A. Nies, Executive Director, New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950. The supporting documents are also accessible via the internet at: http://www.nefmc.org/management-plans/northeast-multispecies or http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Mark Grant, Fishery Policy Analyst, phone: 978-281-9145; email: [email protected].

    SUPPLEMENTARY INFORMATION: Table of Contents 1. Summary of Approved Measures 2. Fishing Year 2018 Shared U.S./Canada Quotas 3. Catch Limits for Fishing Years 2018-2020 4. Default Catch Limits for Fishing Year 2021 5. Revisions to Common Pool Trimester Allocations 6. Adjustments Due to Fishing Year 2016 Overages 7. Revisions to Atlantic Halibut Accountability Measures 8. Revisions to Southern Windowpane Flounder Accountability Measures for Non-Groundfish Trawl Vessels 9. Revision to the Southern New England/Mid-Atlantic Yellowtail Flounder Accountability Measures for Scallop Vessels 10. Recreational Fishery Measures 11. Fishing Year 2018 Annual Measures Under Regional Administrator Authority 12. Administrative Regulatory Corrections Under Secretarial Authority 13. Comments and Responses on Measures Proposed in the Framework 57 Proposed Rule 1. Summary of Approved Measures

    This action approves the management measures in Framework Adjustment 57 to the Northeast Multispecies Fishery Management Plan (FMP). The measures implemented in this final rule are:

    • Fishing year 2018 shared U.S./Canada quotas for Georges Bank (GB) yellowtail flounder and eastern GB cod and haddock;

    • Fishing year 2018-2020 specifications for 20 groundfish stocks;

    • Revisions to the common pool trimester total allowable catch (TAC) allocations for several stocks;

    • Revisions to the accountability measures (AM) for Atlantic halibut for vessels issued any Federal permit;

    • Revisions to the AMs for southern windowpane flounder for non-groundfish trawl vessels;

    • Revisions to the trigger for the scallop fishery's AM for Southern New England/Mid-Atlantic (SNE/MA) yellowtail flounder; and

    • Regional Administrator authority to adjust recreational measures for GB cod.

    This action also implements a number of other measures that are not part of Framework 57, but that are implemented under Regional Administrator authority included in the Northeast Multispecies FMP or Secretarial authority to address administrative matters under section 305(d) of the Magnuson-Stevens Fishery Conservation and Management Act. We are implementing these measures in conjunction with the Framework 57 measures for expediency purposes, and because these measures are related to the catch limits in Framework 57. The additional measures implemented by this action are listed below:

    Management measures for the common pool fishery—this action adjusts fishing year 2018 trip limits for the common pool fishery.

    Adjustments for fishing year 2016 catch overages—this action reduces the 2018 allocations of GB cod, Gulf of Maine (GOM) cod, and witch flounder due to catch limit overages that occurred in fishing year 2016.

    Other regulatory corrections—this action corrects a minor rounding error in the regulations for the common pool trimester TACs.

    2. 2018 Fishing Year U.S./Canada Quotas Management of Transboundary Georges Bank Stocks

    As described in the proposed rule, eastern GB cod, eastern GB haddock, and GB yellowtail flounder are jointly managed with Canada under the United States/Canada Resource Sharing Understanding. This action adopts shared U.S./Canada quotas for these stocks for fishing year 2018 based on 2017 assessments and the recommendations of the Transboundary Management Guidance Committee (TMGC). The 2018 shared U.S./Canada quotas, and each country's allocation, are listed in Table 1. For a more detailed discussion of the TMGC's 2018 catch advice, see the TMGC's guidance document at: https://www.greateratlantic.fisheries.noaa.gov/sustainable/species/multispecies/announcements/2017tmgcguiddoc.pdf.

    Table 1—Fishing Year 2018 U.S./Canada Quotas (mt, live weight) and Percent of Quota Allocated to Each Country Quota Eastern GB cod Eastern GB
  • haddock
  • GB Yellowtail flounder
    Total Shared Quota 951 40,000 300 U.S. Quota 257 (27%) 15,600 (39%) 213 (71%) Canadian Quota 694 (73%) 24,400 (61%) 87 (29%)

    The regulations implementing the U.S./Canada Resource Sharing Understanding require deducting any overages of the U.S. quota for eastern GB cod, eastern GB haddock, or GB yellowtail flounder from the U.S. quota in the following fishing year. If catch information for the 2017 fishing year indicates that the U.S. fishery exceeded its quota for any of the shared stocks, we will reduce the respective U.S. quotas for the 2018 fishing year in a future management action, as close to May 1, 2018, as possible. If any fishery that is allocated a portion of the U.S. quota (e.g., scallop fishery, sectors, or common pool) exceeds its allocation and causes an overage of the overall U.S. quota, the overage reduction would only be applied to that fishery's allocation in the following fishing year. This ensures that catch by one component of the overall fishery does not negatively affect another component of the overall fishery.

    3. Catch Limits for the 2018-2020 Fishing Years Summary of the Catch Limits

    Framework 55 (81 FR 26412; May 2, 2016) adopted fishing year 2016-2018 catch limits for all groundfish stocks, except for the U.S./Canada stocks, which are set annually. Framework 56 (82 FR 35660; August 1, 2017) implemented fishing year 2017-2019 catch limits for witch flounder and 2017 U.S./Canada quotas. This rule adopts catch limits for the 2018-2020 fishing years for all groundfish stocks. The catch limits implemented in this action, including overfishing limits (OFL), acceptable biological catches (ABC), and annual catch limits (ACL), can be found in Tables 2 through 9. A summary of how these catch limits were developed, including the distribution to the various fishery components, was provided in the proposed rule and in Appendix II (Calculation of Northeast Multispecies Annual Catch Limits, FY 2018—FY 2020) to the Framework 57 Environmental Assessment, and is not repeated here.

    The sector and common pool sub-ACLs implemented in this action are based on fishing year 2018 potential sector contributions (PSC) and final fishing year 2017 sector rosters. All permits enrolled in a sector, and the vessels associated with those permits, have until April 30, 2018, to withdraw from a sector and fish in the common pool for the 2018 fishing year. In addition to the enrollment delay, all permits that change ownership after December 1, 2017, may join a sector through April 30, 2018. We will publish final sector and common pool sub-ACLs based on final 2018 sector rosters as soon as practicable after the start of the 2018 fishing year. Initial 2018 sector allocations are being established in a separate, concurrent rulemaking.

    Table 2—Fishing Years 2018-2020 Overfishing Limits and Acceptable Biological Catches [Mt, live weight] Stock 2018 OFL U.S. ABC Percent change from 2017 2019 OFL U.S. ABC 2020 OFL U.S. ABC GB Cod 3,047 1,591 139 3,047 2,285 3,047 2,285 GOM Cod 938 703 41 938 703 938 703 GB Haddock 94,274 48,714 −15 99,757 48,714 100,825 73,114 GOM Haddock 16,954 13,131 190 16,038 12,490 13,020 10,186 GB Yellowtail Flounder UNK 213 3 UNK 300 SNE/MA Yellowtail Flounder 90 68 −75 90 68 90 68 CC/GOM Yellowtail Flounder 662 511 20 736 511 848 511 American Plaice 2,260 1,732 30 2,099 1,609 1,945 1,492 Witch Flounder UNK 993 13 UNK 993 UNK 993 GB Winter Flounder 1,083 810 7 1,182 810 1,756 810 GOM Winter Flounder 596 447 −45 596 447 596 447 SNE/MA Winter Flounder 1,228 727 −7 1,228 727 1,228 727 Redfish 15,451 11,552 5 15,640 11,785 15,852 11,942 White Hake 3,885 2,938 −20 3,898 2,938 3,916 2,938 Pollock 51,680 40,172 88 53,940 40,172 57,240 40,172 N. Windowpane Flounder 122 92 −49 122 92 122 92 S. Windowpane Flounder 631 473 −24 631 473 631 473 Ocean Pout 169 127 −23 169 127 169 127 Atlantic Halibut UNK 104 −34 UNK 104 UNK 104 Atlantic Wolffish 120 90 10 120 90 120 90 SNE/MA = Southern New England/Mid-Atlantic; CC = Cape Cod; N = Northern; S = Southern. Note: An empty cell indicates no OFL/ABC is adopted for that year. These catch limits will be set in a future action. Closed Area I Hook Gear Haddock Special Access Program

    Overall fishing effort by both common pool and sector vessels in the Closed Area I Hook Gear Haddock Special Access Program (SAP) is controlled by an overall TAC for GB haddock, which is the target species for this SAP. The GB haddock TAC for the SAP is based on the amount allocated to this SAP for the 2004 fishing year (1,130 mt) and adjusted according to the change of the western GB haddock biomass in relationship to its size in 2004. Based on this formula, the GB Haddock TAC for this SAP is 2,511 mt for the 2018 fishing year. Once this overall TAC is caught, the Closed Area I Hook Gear Haddock SAP will be closed to all groundfish vessels for the remainder of the fishing year.

    Table 3—Catch Limits for the 2018 Fishing Year [Mt, live weight] Stock Total ACL Groundfish
  • sub-ACL
  • Preliminary
  • sector
  • sub-ACL
  • Preliminary
  • common pool
  • sub-ACL
  • Recreational
  • sub-ACL
  • Midwater
  • trawl
  • fishery
  • Scallop
  • fishery
  • Small-mesh
  • fisheries
  • State waters
  • sub-
  • component
  • Other
  • sub-
  • component
  • GB Cod 1,519 1,360 1,335 25 16 143 GOM Cod 666 610 377 13 220 47 9 GB Haddock 46,312 44,659 44,348 311 680 487 487 GOM Haddock 12,409 12,097 8,643 95 3,358 122 95 95 GB Yellowtail Flounder 206 169 167 3 33.1 4.0 0.0 0.0 SNE/MA Yellowtail Flounder 66 42 34 8 4 2 17 CC/GOM Yellowtail Flounder 490 398 381 18 51 41 American Plaice 1,649 1,580 1,550 29 35 35 Witch Flounder 948 849 830 19 40 60 GB Winter Flounder 787 731 725 6 0 57 GOM Winter Flounder 428 357 339 18 67 4 SNE/MA Winter Flounder 700 518 456 62 73 109 Redfish 10,986 10,755 10,696 59 116 116 White Hake 2,794 2,735 2,713 22 29 29 Pollock 38,204 37,400 37,163 237 402 402 N. Windowpane Flounder 86 63 na 63 18 2 3 S. Windowpane Flounder 457 53 na 53 158 28 218 Ocean Pout 120 94 na 94 3 23 Atlantic Halibut 100 77 na 77 21 2 Atlantic Wolffish 84 82 na 82 1 1
    Table 4—Catch Limits for the 2019 Fishing Year [Mt, live weight] Stock Total ACL Groundfish
  • sub-ACL
  • Preliminary
  • sector
  • sub-ACL
  • Preliminary
  • common pool
  • sub-ACL
  • Recreational
  • sub-ACL
  • Midwater
  • trawl
  • fishery
  • Scallop
  • fishery
  • Small-mesh
  • fisheries
  • State waters
  • sub-
  • component
  • Other
  • sub-
  • component
  • GB Cod 2,182 1,954 1,918 36 23 206 GOM Cod 666 610 377 13 220 47 9 GB Haddock 46,312 44,659 44,348 311 680 487 487 GOM Haddock 11,803 11,506 8,222 90 3,194 116 91 91 GB Yellowtail Flounder 291 239 235 4 47 6 0 0 SNE/MA Yellowtail Flounder 66 32 26 6 15 2 17 CC/GOM Yellowtail Flounder 490 398 381 18 51 41 American Plaice 1,532 1,467 1,440 27 32 32 Witch Flounder 948 849 830 19 40 60 GB Winter Flounder 787 731 725 6 0 57 GOM Winter Flounder 428 357 339 18 67 4 SNE/MA Winter Flounder 700 518 456 62 73 109 Redfish 11,208 10,972 10,911 60 118 118 White Hake 2,794 2,735 2,713 22 29 29 Pollock 38,204 37,400 37,163 237 402 402 N. Windowpane Flounder 86 63 63 18 2 3 S. Windowpane Flounder 457 53 53 158 28 218 Ocean Pout 120 94 94 3 23 Atlantic Halibut 100 77 77 21 2 Atlantic Wolffish 84 82 82 1 1
    Table 5—Catch Limits for the 2020 Fishing Year [Mt, live weight] Stock Total ACL Groundfish
  • sub-ACL
  • Preliminary
  • sector
  • sub-ACL
  • Preliminary
  • common pool
  • sub-ACL
  • Recreational
  • sub-ACL
  • Midwater
  • trawl
  • fishery
  • Scallop
  • fishery
  • Small-mesh
  • fisheries
  • State waters
  • sub-
  • component
  • Other
  • sub-
  • component
  • GB Cod 2,182 1,954 1,918 36 23 206 GOM Cod 666 610 377 13 220 47 9 GB Haddock 69,509 67,027 66,560 467 1,020 731 731 GOM Haddock 9,626 9,384 6,705 74 2,605 95 74 74 GB Yellowtail Flounder 0.0 0.0 0.0 0.0 SNE/MA Yellowtail Flounder 66 31 25 6 16 2 17 CC/GOM Yellowtail Flounder 490 398 381 18 51 41 American Plaice 1,420 1,361 1,335 25 30 30 Witch Flounder 948 849 830 19 40 60 GB Winter Flounder 787 731 725 6 0 57 GOM Winter Flounder 428 357 339 18 67 4 SNE/MA Winter Flounder 700 518 456 62 73 109 Redfish 11,357 11,118 11,057 61 119 119 White Hake 2,794 2,735 2,713 22 29 29 Pollock 38,204 37,400 37,163 237 402 402 N. Windowpane Flounder 86 63 63 2 3 S. Windowpane Flounder 457 53 53 158 28 218 Ocean Pout 120 94 94 3 23 Atlantic Halibut 100 77 77 21 2 Atlantic Wolffish 84 82 82 1 1
    Table 6—Fishing Years 2018-2020 Common Pool Trimester TACs [Mt, live weight] Stock 2018 Trimester 1 Trimester 2 Trimester 3 2019 Trimester 1 Trimester 2 Trimester 3 2020 Trimester 1 Trimester 2 Trimester 3 GB Cod 6.1 7.4 8.3 10.1 12.3 13.7 10.1 12.3 13.7 GOM Cod 6.2 4.2 2.3 6.2 4.2 2.3 6.2 4.2 2.3 GB Haddock 84.0 102.6 124.4 84.0 102.6 124.4 126.1 154.1 186.7 GOM Haddock 25.6 24.7 44.6 24.4 23.5 42.4 19.9 19.1 34.6 GB Yellowtail Flounder 0.5 0.8 1.3 0.7 1.1 1.9 SNE/MA Yellowtail Flounder 1.7 2.3 4.2 1.3 1.7 3.2 1.3 1.7 3.1 CC/GOM Yellowtail Flounder 10.0 4.6 3.0 10.0 4.6 3.0 10.0 4.6 3.0 American Plaice 21.8 2.4 5.3 20.3 2.2 4.9 18.8 2.0 4.6 Witch Flounder 10.4 3.8 4.7 10.4 3.8 4.7 10.4 3.8 4.7 GB Winter Flounder 0.5 1.4 4.1 0.5 1.4 4.1 0.5 1.4 4.1 GOM Winter Flounder 6.5 6.7 4.4 6.5 6.7 4.4 6.5 6.7 4.4 Redfish 14.8 18.4 26.1 15.1 18.7 26.6 15.3 19.0 27.0 White Hake 8.3 6.8 6.8 8.3 6.8 6.8 8.3 6.8 6.8 Pollock 66.4 83.0 87.7 66.4 83.0 87.7 66.4 83.0 87.7 Note. For tables 3-6, an empty cell indicates that no catch limit has been set yet for these stocks, or that stock is not allocated to a fishery. These catch limits will be set in a future management action. Table 7—Common Pool Incidental Catch TACs for the 2018-2020 Fishing Years [Mt, live weight] Stock Percentage of
  • common pool
  • sub-ACL
  • 2018 2019 2020
    GB Cod 2 0.50 0.72 0.72 GOM Cod 1 0.13 0.13 0.13 GB Yellowtail Flounder 2 0.05 0.07 0.00 CC/GOM Yellowtail Flounder 1 0.18 0.18 0.18 American Plaice 5 1.47 1.37 1.27 Witch Flounder 5 0.95 0.95 0.95 SNE/MA Winter Flounder 1 0.62 0.62 0.62
    Table 8—Percentage of Incidental Catch TACs Distributed to Each Special Management Program Stock Regular B DAS
  • program
  • Closed Area I
  • hook gear
  • haddock SAP
  • Eastern
  • US/CA
  • haddock SAP
  • GB Cod 50 16 34 GOM Cod 100 GB Yellowtail Flounder 50 50 CC/GOM Yellowtail Flounder 100 American Plaice 100 Witch Flounder 100 SNE/MA Winter Flounder 100 White Hake 100 Note. DAS = day-at-sea.
    Table 9—Fishing Years 2018-2020 Incidental Catch TACs for Each Special Management Program [Mt, live weight] Stock Regular B DAS program 2018 2019 2020 Closed Area I hook gear haddock SAP 2018 2019 2020 Eastern U.S./Canada haddock SAP 2018 2019 2020 GB Cod 0.25 0.36 0.36 0.08 0.12 0.12 0.17 0.25 0.25 GOM Cod 0.13 0.13 0.13 GB Yellowtail Flounder 0.03 0.04 0.00 0.03 0.04 0.00 CC/GOM Yellowtail Flounder 0.18 0.18 0.18 American Plaice 1.47 1.37 1.27 Witch Flounder 0.95 0.95 0.95 SNE/MA Winter Flounder 0.62 0.62 0.62 4. Default Catch Limits for the 2021 Fishing Year

    Framework 53 (80 FR 25110; May 1, 2015) established a mechanism for setting default catch limits in the event a future management action is delayed. Additional description of the default catch limit mechanism is provided in the preamble to the Framework 53 final rule. The default catch limits for 2021 are shown in Table 10. This final rule also corrects transcription errors in the 2021 default specifications published in the proposed rule. In the proposed rule, Table 10 was missing GB cod from the list of stocks and, as a result, the remaining stocks were listed next to the incorrect values.

    The default limits would become effective May 1, 2021, until replaced by final specifications, although they will remain in effect only through July 31, 2021. The preliminary sector and common pool sub-ACLs in Table 10 are based on existing 2017 sector rosters and will be adjusted for new specifications beginning in fishing year 2021 based on rosters from the 2020 fishing year. In addition, prior to the start of the 2021 fishing year, we will evaluate whether any of the default catch limits announced in this rule exceed the Council's ABC recommendations for 2021. If necessary, we will announce adjustments prior to May 1, 2021.

    Table 10—Default Specifications for the 2021 Fishing Year [Mt, live weight] Stock U.S. ABC Total ACL Groundfish
  • sub-ACL
  • Preliminary
  • sector
  • sub-ACL
  • Preliminary
  • common pool
  • sub-ACL
  • Midwater
  • trawl
  • fishery
  • GB Cod 800 764 684 671 13 GOM Cod 246 233 213 132 4 GB Haddock 25,590 24,328 23,460 23,296 163 1,020 GOM Haddock 3,565 3,369 3,284 2,347 26 95 GB Yellowtail Flounder 0 0 0 0 0 SNE/MA Yellowtail Flounder 24 23 11 9 2 CC/GOM Yellowtail Flounder 179 172 139 133 6 American Plaice 522 497 476 4679 9 Witch Flounder 348 332 297 291 7 GB Winter Flounder 284 276 256 254 2 GOM Winter Flounder 156 150 125 119 6 SNE/MA Winter Flounder 254 245 181 160 22 Redfish 4,180 3,975 3,891 3,870 21 White Hake 1,028 978 957 950 9 Pollock 14,060 13,371 13,090 13,007 83 N. Windowpane Flounder 32 30 22 0 22 S. Windowpane Flounder 166 160 18 0 18 Ocean Pout 44 42 33 0 33 Atlantic Halibut 36 35 27 0 27 Atlantic Wolffish 32 29 29 0 29
    5. Revisions to Common Pool Trimester Allocations

    The common pool sub-ACL for each stock (except for SNE/MA winter flounder, windowpane flounder, ocean pout, Atlantic wolffish, and Atlantic halibut) is further divided into trimester TACs. The percentages of the common pool sub-ACL allocated to each trimester, as determined in Amendment 16 (75 FR 18262; April 9, 2010), are shown in Table 11. The Council developed this initial distribution based on recent fishing effort at the time after considering the influence of regulatory changes on recent landings patterns. Amendment 16 specified that the trimester TAC apportionment could be adjusted on a biennial basis with specifications based on the most recent 5-year period available. Framework 57 grants the Regional Administrator authority to modify the trimester TAC apportionments, for stocks that have experienced early closures in Trimester 1 or 2, on a biennial basis using the process specified in Amendment 16.

    Framework 57 also revises the apportionment of the common pool sub-ACL among the trimesters, using the calculation method specified in Amendment 16, for stocks that have experienced early closure in Trimester 1 or 2 since the 2010 fishing year. The stocks that meet these criteria are: GB cod; GOM cod; SNE/MA yellowtail flounder; Cape Cod/GOM yellowtail flounder; American plaice; and witch flounder. The Trimester 1 portion of the sub-ACL for each of these stocks is increased, with the exception of SNE/MA yellowtail, which remains unchanged. The trimester 2 portion of the sub-ACL for each of these stocks is reduced. The trimester 3 portion of the TAC is unchanged for GB cod; increased for SNE/MA yellowtail flounder; and decreased for GOM cod, Cape Cod/GOM yellowtail flounder, American plaice, and witch flounder. The new trimester TAC apportionments for these stocks are shown in Table 12 and were used in calculating the trimester TACs for 2018-2020 (see 3. Catch Limits for the 2018-2020 Fishing Years).

    Table 11—Trimester TAC Apportionments Set in Amendment 16 Stock Trimester 1
  • (%)
  • Trimester 2
  • (%)
  • Trimester 3
  • (%)
  • GB Cod 25 37 38 GOM Cod 27 36 37 GB Haddock 27 33 40 GOM Haddock 27 26 47 GB Yellowtail 19 30 52 SNE/MA Yellowtail 21 37 42 CC/GOM Yellowtail 35 35 30 American Plaice 24 36 40 Witch Flounder 27 31 42 GB Winter 8 24 69 GOM Winter 37 38 25 Redfish 25 31 44 White Hake 38 31 31 Pollock 28 35 37
    Table 12—Revisions to Trimester TAC Apportionments Stock Trimester 1
  • (%)
  • Trimester 2
  • (%)
  • Trimester 3
  • (%)
  • GB Cod 28 34 38 GOM Cod 49 33 18 SNE/MA Yellowtail 21 28 51 CC/GOM Yellowtail 57 26 17 American Plaice 74 8 18 Witch Flounder 55 20 25
    6. Adjustments Due to Fishing Year 2016 Overages

    If the overall ACL is exceeded due to catch from vessels fishing in state waters outside of the FMP or from vessels fishing in non-groundfish fisheries that do not receive an allocation, the overage is distributed to the components of the fishery with an allocation. If a fishery component's catch and its share of the ACL overage exceed the component's allocation, then the applicable AMs must be implemented. In the case of the commercial groundfish fishery, the AMs require a reduction of the sector or common pool sub-ACL following an overage.

    In fishing year 2016, the overall ACL was exceeded for witch flounder, GB cod, and GOM cod (Table 13). The proposed rule included a description of fishing year 2016 catch overages and required adjustments to fishing year 2018 allocations, and is not repeated here. This final rule corrects transcription errors in the 2016 ABC and ACL for witch flounder published in the proposed rule. Table 13 includes the corrected values. Although the ABC and ACL values were listed incorrectly in the proposed rule, the catch, overage, and amount to be paid back were correct. The proposed revised 2018 allocations were correct. Therefore, this correction does not affect fishery operations. These adjustments to the 2018 allocations are not part of Framework 57. We are including them in conjunction with Framework 57 measures for expediency purposes, and because they relate to the catch limits included in Framework 57.

    Each sub-component's payback amounts for these stocks is shown in Table 14. Revised 2018 allocations, incorporating these payback amounts, are shown in Table 15. These revised allocations were incorporated in the quotas set for 2018 (see 3. Catch Limits for the 2018-2020 Fishing Years).

    Table 13—2016 ABCs, ACLs, Catch, and Overages [Mt, live weight] Stock U.S. ABC Total ACL Catch Overage Amount to be paid back GB Cod 762 730 1,132.1 402.1 165.97 GOM Cod 500 473 633.7 160.7 37.66 Witch Flounder 460 441 460.3 19.3 19.20 Table 14—2016 Payback Amounts [Mt, live weight] Stock Total Sector Common pool Recreational GB Cod 402.1 162.57 3.40 n/a GOM Cod 160.7 21.05 0.00 16.61 Witch Flounder 19.3 19.15 0.05 n/a Note: “n/a” indicates that the stock is not allocated to that sub-component of the fishery. A value of 0.00 indicates that no payback is required. Table 15—Revised 2018 Allocations [Mt, live weight] Stock Total ACL Groundfish sub-ACL Initial preliminary sector
  • sub-ACL
  • Revised preliminary sector
  • sub-ACL
  • Initial preliminary common pool sub-ACL Revised preliminary common pool sub-ACL
    GB Cod 1,519 1,360 1,335.17 1,172.61 25.13 21.73. GOM Cod 666 610 376.92 355.87 12.73 unchanged. Witch Flounder 948 849 830.09 810.94 18.93 18.88.
    7. Revisions to Atlantic Halibut Accountability Measures

    As described in the proposed rule and Environmental Assessment, the FMP includes two reactive AMs for Atlantic halibut that affect the Federal commercial groundfish fishery. If the Atlantic halibut ACL is exceeded by an amount greater than the uncertainty buffer (i.e., the ABC is exceeded), then commercial groundfish vessels are prohibited from retaining Atlantic halibut and are required to use selective gear in several areas (Figure 1). When the Atlantic halibut AM is triggered, trawl vessels fishing in the Atlantic Halibut Trawl Gear AM Area may only use a haddock separator trawl, a Ruhle trawl, a rope separator trawl, or other approved gear. When in effect, groundfish vessels with gillnet or longline gear may not fish or be in the Atlantic Halibut Fixed Gear AM Areas, unless transiting with gear stowed or using approved gear.

    This action extends the zero-possession AM to all Federal permit holders (including federally permitted scallop, lobster, and highly migratory species general category vessels). Vessels issued only a charter/party permit for any species, an Atlantic highly migratory species angling permit, and/or an Atlantic highly migratory species charter/headboat permit are exempt from the zero-possession AM. For example, a vessel issued a Northeast multispecies charter/party permit and a bluefish charter/party permit would be exempt from the AM, but a vessels issued a Northeast multispecies charter/party permit and a commercial bluefish permit would not be exempt from the AM. The intent of expanding the AM is to facilitate enforcement of Federal fishery limits and reduce the catch of halibut by federally permitted vessels not currently subject to the AM. This measure is expected to increase the probability that catch will be below the ACL by reducing potentially illegal catch in Federal waters and legal directed fishing effort by federally permitted vessels.

    Framework 57 also modifies the gear-restricted AM areas for Federal groundfish vessels based on the best available science. Based on an updated evaluation of Atlantic halibut encounter rates, the existing AM areas are changed to allow access to places and times where Atlantic halibut encounter rates are low while protecting areas and times where encounter rates are highest. This would allow groundfish trawl and fixed gear vessels additional flexibility while continuing to reduce catch of halibut when the AMs are triggered (Figure 2). This action eliminates the Fixed Gear AM Area 1 on Stellwagen Bank; exempts longline gear from Fixed Gear AM Area 2 on Platts Bank; allows gillnet gear in Fixed Gear AM Area 2 from November through February; and allows standard trawl gear in the Trawl Gear AM Area between 41 degrees 40 minutes N latitude and 42 degrees N latitude from April through July (see dashed line in Figure 2). These modifications are expected to continue to protect the Atlantic halibut stock due to the low encounter rates and low catch rates in the seasons and areas included, and will preserve fishing opportunities for vessels targeting other species.

    BILLING CODE 3510-22-P ER01MY18.006 ER01MY18.007 BILLING CODE 3510-22-C 8. Revisions to Southern Windowpane Flounder AMs for Non-Groundfish Trawl Vessels

    Based on an updated evaluation of the existing AM areas, the AM areas for non-groundfish vessels are revised to more closely tailor the areas to where southern windowpane are being encountered. Framework 57 also applies measures, similar to those used in the groundfish fishery, to scale the size of the AM area based on the condition of the stock and catch in the year after the overage, but does not alter the AM trigger. Additionally, Framework 57 allows for reducing the duration of an AM for non-groundfish vessels when merited by biological or operational conditions, similar to how the AMs are applied to groundfish vessels.

    The southern windowpane flounder AMs are gear restricted areas that affect groundfish trawl vessels and non-groundfish trawl vessels using a codend mesh size of 5 inches (12.7 cm) or greater (see Figure 3). This includes vessels that target summer flounder, scup, and skates. The AM for large-mesh non-groundfish fisheries is implemented if the total ACL is exceeded by more than the management uncertainty buffer and catch by the other sub-component exceeds what was expected. When the AM is triggered, large-mesh non-groundfish vessels fishing with trawl gear with codend mesh size of 5 inches (12.7 cm) or greater are required to use selective trawl gear to minimize the catch of flatfish in the AM areas. Approved gears include the separator trawl, Ruhle trawl, mini-Ruhle trawl, and rope trawl, which are inefficient at catching the species targeted by the non-groundfish large-mesh trawl fleet. The FMP includes several provisions that allow a reduction in the size and duration of the AM for groundfish vessels if certain stock status criteria are met. This action implements similar areas and reduced duration provisions for the large mesh non-groundfish fleet and modifies the current gear restricted areas that would apply to the non-groundfish fleet when an AM is triggered.

    ER01MY18.008 Reducing the Size of the AM

    Framework 57 will scale the size of the AM areas based on the condition of the stock and catch in the year after the overage. Similar to the AM for the groundfish fishery, when the stock is rebuilt and the biomass criterion (described in the proposed rule and Environmental Assessment) is greater than the fishing year catch, the small AM areas may be implemented in lieu of the large AM areas. These modifications allow additional flexibility for affected vessels while continuing to reduce impacts on the southern windowpane stock, similar to provisions already implemented for the groundfish fishery.

    If we determine that the biological and catch criteria are met, the small AM area would be implemented rather than the large AM area. This AM trigger better accounts for the uncertainty associated with this index-based stock because it evaluates an overage in the context of the biomass and exploitation trends in the stock assessment. As explained in the Environmental Assessment, using survey information to determine the size of the AM is appropriate because windowpane flounder is assessed with an index-based method, possession is prohibited, and the ABCs and ACLs are not based on a projection that accounts for possible increases in biomass over time. This change is expected to minimize the economic impacts of the AM for a rebuilt stock, while still correcting for operational issues contributing to the overage and mitigating potential biological consequences.

    Reducing the Duration of the AM

    Framework 57 also grants the Regional Administrator authority to remove the southern windowpane flounder AM early for non-groundfish trawl vessels if operational criteria are met. If an overage in year 1 triggers the AM for year 3, and we determine that the applicable windowpane flounder ACL was not exceeded in year 2, then the Regional Administrator would be authorized to remove the AM on or after September 1 once year-end data for year 2 are complete. This reduced duration would not occur if we determine during year 3 that a year 3 overage of the southern windowpane flounder ACL has occurred. This provision was already implemented for the groundfish fishery.

    Modification of the Gear-Restricted Areas

    In addition to scaling the size of the AM area based on the condition of the stock and catch in the year after the overage, and allowing for reducing the duration of an AM for non-groundfish vessels when merited by current stock conditions and catch amounts, this action also revises the area and season of the AM areas for non-groundfish trawl vessels using a codend mesh size of 5 inches (12.7 cm) or greater based on an updated evaluation of the existing AM areas using recent data (see Figure 4). The geographic area of the small AM area remains unchanged, but the AM will be in effect from September through April, rather than the entire fishing year. The large AM area south of Long Island also remains unchanged, but the large AM area east of Long Island is reduced to a smaller geographic area made up of the small AM area and the eastern most 10-minute square of the current large AM area. Both large AM areas will be closed year-round when triggered. These changes do not affect the AM areas applicable to groundfish trawl vessels. Based on recent data, these modifications are likely to have minimal impacts on the southern windowpane flounder stock because of the low bycatch ratios documented in the areas that would no longer be closed. The revised areas are intended to provide additional opportunities for the non-groundfish fleet to pursue target stocks, while still maintaining the necessary conservation benefits of the AMs.

    BILLING CODE 3510-22-P ER01MY18.009 BILLING CODE 3510-22-C 9. Revision to the SNE/MA Yellowtail Flounder AMs for Scallop Vessels

    The scallop fishery is allocated sub-ACLs for four stocks: GB yellowtail flounder; SNE/MA yellowtail flounder; northern windowpane flounder; and southern windowpane flounder. If the scallop fishery exceeds its sub-ACL for these stocks, it is subject to AMs that, in general, restrict the scallop fishery in seasons and areas with high encounter rates for these stocks. Framework 47 (77 FR 26104; May 2, 2012) established a policy for triggering scallop fishery AMs. Framework 56 (82 FR 35660; August 1, 2017) made a change to this policy for GB yellowtail flounder and northern windowpane flounder for the 2017 and 2018 fishing years. This action expands that change to the SNE/MA yellowtail flounder stock for the 2018 fishing year.

    For fishing year 2018, the AM for the scallop fishery's sub-ACL would be triggered only if the scallop fishery's sub-ACL and the overall ACL for the stock is exceeded. This change is intended to provide flexibility for the scallop fishery to better achieve optimal yield, despite a reduction in the ACL, while continuing to prevent overfishing. In recent years, a significant portion of the overall ACL has remained uncaught as groundfish vessels have reduced their catch. The likelihood of overfishing occurring significantly increases only if the total ACL is exceeded. Exceeding the total ACL would trigger the AM to prevent subsequent ACL overages and correct the cause of the overage. This measure provides the scallop fishery with flexibility to adjust to current catch conditions while still providing an incentive to avoid yellowtail flounder. To align with changes to the AM triggers for GB yellowtail flounder and northern windowpane flounder, and to reduce the potential risk for the groundfish fishery, this change would be effective for 1 year.

    10. Recreational Fishery Measures

    The recreational fishery does not have an allocation of GB cod, and as a result, no AMs apply to this fishery in the event of an ACL overage. Recreational fishery management measures were designed and put in place to control recreational catch in 2010 through Amendment 16. The current recreational minimum size for GB cod is 22 inches (55.9 cm), and private recreational vessels have a possession limit of 10 fish per person per day. There is no possession limit for charter or party vessels.

    In response to increasing recreational catch in recent years and an unusually high recreational catch estimate in 2016 that contributed to an ACL overage, the Council calculated a recreational catch target for GB cod of 138 mt for 2018-2020. This catch target was calculated using the average catch (landings and discards) of the most recent 5 calendar years included in the GB cod stock assessment. This catch target was used in setting the values of the state and other sub-components (see Appendix II of the Environmental Assessment) and helps to gauge what measures may be necessary to limit catch to the target amount to avoid future overages. To facilitate preventing future overages of the GB cod ACL, Framework 57 gives the Regional Administrator authority to set recreational measures for fishing years 2018 and 2019 to prevent the recreational catch target from being exceeded. After consultation with the Council, any changes to recreational measures would be made consistent with the Administrative Procedure Act. However, no changes to recreational measures are included in this action. A separate rule published March 22, 2018, (83 FR 12551) proposed GOM cod and haddock and GB cod recreational management measures for the 2018 fishing year. Those measures will also be finalized in a separate rule.

    11. Fishing Year 2018 Annual Measures Under Regional Administrator Regulatory Authority

    The Northeast Multispecies FMP regulations give us authority to implement certain types of management measures for the common pool fishery, the U.S./Canada Management Area, and Special Management Programs on an annual basis, or as needed. This action implements a number of these management measures for the 2018 fishing year. These measures are not part of Framework 57, and were not specifically proposed by the Council. We are implementing them in conjunction with Framework 57 measures in this action for expediency purposes, and because they relate to the catch limits in Framework 57.

    Common Pool Trip Limits

    Tables 16 and 17 provide a summary of the current common pool trip limits for fishing year 2017 and the initial trip limits implemented for fishing year 2018. The 2018 trip limits were developed after considering changes to the common pool sub-ACLs and potential sector enrollment, trimester TACs for 2018, catch rates of each stock during 2017, and other available information.

    The default cod trip limit is 300 lb (136 kg) for Handgear A vessels and 75 lb (34 kg) for Handgear B vessels. If the GOM or GB cod landing limit for vessels fishing on a groundfish day-at-sea (DAS) drops below 300 lb (136 kg), then the respective Handgear A cod trip limit must be reduced to the same limit. Similarly, the Handgear B trip limit must be adjusted proportionally (rounded up to the nearest 25 lb (11 kg)) to the DAS limit. This action implements a GOM cod landing limit of 50 lb (23 kg) per DAS for vessels fishing on a groundfish DAS, which is 94 percent lower than the default limit specified in the regulations for these vessels (800 lb (363 kg) per DAS). As a result, the Handgear A trip limit for GOM cod is reduced to 50 lb (23 kg) per trip, and the Handgear B trip limit for GOM cod is maintained at 25 lb (11 kg) per trip. This action implements a GB cod landing limit of 100 lb (45 kg) per DAS for vessels fishing on a groundfish DAS, which is 95 percent lower than the 2,000-lb (907-kg) per DAS default limit specified in the regulations for these vessels. As a result, the Handgear A trip limit for GB cod is 100 lb (45 kg) per trip, and the Handgear B trip limit for GB cod is 25 lb (11 kg) per trip.

    Vessels with a Small Vessel category permit may possess up to 300 lb (136 kg) of cod, haddock, and yellowtail, combined, per trip. For the 2018 fishing year, we are setting the maximum amount of GOM cod and haddock (within the 300-lb (136-kg) trip limit) equal to the possession limits applicable to multispecies DAS vessels (see Table 16). This adjustment is necessary to ensure that the trip limit applicable to the Small Vessel category permit is consistent with reductions to the trip limits for other common pool vessels, as described above.

    Table 16—Common Pool Trip Limits for the 2018 Fishing Year Stock Current 2017 trip limit 2018 Trip limit GB Cod (outside Eastern U.S./Canada Area) Possession Prohibited 100 lb (45 kg) per DAS, up to 200 lb (91 kg) per trip. GB Cod (inside Eastern U.S./Canada Area) 100 lb (45 kg) per DAS, up to 500 (227 kg) lb per trip. GOM Cod 25 lb (11 kg) per DAS, up to 100 lb (45 kg) per trip 50 lb (23 kg) per DAS, up to 100 lb (45 kg) per trip. GB Haddock 100,000 lb (45,359 kg) per trip. GOM Haddock 500 lb (227 kg) per DAS, up to 1,000 lb (454 kg) per trip 1,000 lb (454 kg) per DAS, up to 2,000 lb (907 kg) per trip. GB Yellowtail Flounder 100 lb (45 kg) per trip. SNE/MA Yellowtail Flounder 500 lb (227 kg) per DAS, up to 1,000 lb per trip 100 lb (45 kg) per DAS, up to 200 lb (91 kg) per trip. Cape Cod (CC)/GOM Yellowtail Flounder 750 lb (340 kg) per DAS, up to 1,500 lb (680 kg) per trip. American plaice 500 lb (227 kg) per trip 750 lb (340 kg) per DAS, up to 1,500 lb (680 kg) per trip. Witch Flounder 400 lb (181 kg) per trip. GB Winter Flounder 250 lb (113 kg) per trip. GOM Winter Flounder 2,000 lb (907 kg) per trip 1,000 lb (454 kg) per trip. SNE/MA Winter Flounder 2,000 lb (907 kg) per DAS, up to 4,000 lb (1,814 kg) per trip. Redfish Unlimited. White hake 1,500 lb (680 kg) per trip. Pollock Unlimited. Atlantic Halibut 1 fish per trip. Windowpane Flounder Possession Prohibited. Ocean Pout Atlantic Wolffish Table 17—Cod Trip Limits for Handgear A, Handgear B, and Small Vessel Category Permits for the 2018 Fishing Year Permit Current 2017 trip limit 2018 Trip limit Handgear A GOM Cod 25 lb (11 kg) per trip 50 lb (23 kg) per trip. Handgear A GB Cod Possession Prohibited 100 lb (45 kg) per trip. Handgear B GOM Cod 25 lb (11 kg) per trip. Handgear B GB Cod Possession Prohibited 25 lb (11 kg) per trip. Small Vessel Category 300 lb (136 kg) of cod, haddock, and yellowtail flounder combined; additionally, vessels are limited to the common pool DAS limit for all stocks. Closed Area II Yellowtail Flounder/Haddock SAP

    This action allocates zero trips for common pool vessels to target yellowtail flounder within the Closed Area II Yellowtail Flounder/Haddock SAP for fishing year 2018. Vessels may still fish in this SAP in 2018 to target haddock, but must fish with a haddock separator trawl, a Ruhle trawl, or hook gear. Vessels may not fish in this SAP using flounder trawl nets. This SAP is open from August 1, 2018, through January 31, 2019.

    We have the authority under the FMP's regulations to determine the allocation of the total number of trips into the Closed Area II Yellowtail Flounder/Haddock SAP based on several criteria, including the GB yellowtail flounder catch limit and the amount of GB yellowtail flounder caught outside of the SAP. The FMP specifies that no trips should be allocated to the Closed Area II Yellowtail Flounder/Haddock SAP if the available GB yellowtail flounder catch is insufficient to support at least 150 trips with a 15,000-lb (6,804-kg) trip limit (or 2,250,000 lb (1,020,600 kg)). This calculation accounts for the projected catch from the area outside the SAP. Based on the fishing year 2018 GB yellowtail flounder groundfish sub-ACL of 372,581 lb (169,000 kg), there is insufficient GB yellowtail flounder to allocate any trips to the SAP, even if the projected catch from outside the SAP area is zero. Further, given the low GB yellowtail flounder catch limit, catch rates outside of this SAP are more than adequate to fully harvest the 2018 GB yellowtail flounder allocation.

    12. Administrative Regulatory Corrections Under Secretarial Authority

    The following change is being made using Magnuson-Stevens Fishery Conservation and Management Act section 305(d) authority to ensure that FMPs or amendments are implemented in accordance with the Magnuson-Stevens Act. This rule corrects a minor error in the regulations that specify the apportionment of the common pool sub-ACLs among the trimesters. This change to the regulations is necessary to correct a rounding error and ensure that not more than 100 percent of the common pool sub-ACL is allocated among the trimesters. In § 648.82(n), the proportions of the common pool sub-ACLs allocated to each trimester for GB yellowtail flounder and GB winter flounder are corrected to sum to 100 percent to address a previous rounding error.

    13. Comments and Responses on Measures Proposed in the Framework 57 Proposed Rule

    We received 15 comments on the Framework 57 proposed rule. Public comments were submitted by the Conservation Law Foundation, the National Party Boat Owners Alliance, the New England Fishery Management Council, the Northeast Hook Fisherman's Association, the Northeast Seafood Coalition, and ten individuals. Only comments that were applicable to the proposed measures are addressed below. Comments received on the proposed recreational measures for fishing year 2018 (83 FR 12551; March 22, 2018) that related to measures in Framework 57 are included in the comments and responses below. Consolidated responses are provided to similar comments on the proposed measures.

    Catch Limits for Fishing Years 2018-2020

    Comment 1: Two individuals generally opposed increasing any stock's ABC. The Conservation Law Foundation opposed the ABC increases for GB cod and GOM cod; and stated the increases were inconsistent with National Standards 1 and 2, and that a precautionary approach was necessary due to warming in the Gulf of Maine and illegal discarding. The Northeast Seafood Coalition commented in support of the catch limits included in Framework 57, but also raised concerns about using 3-year constant ABCs as a replacement for ABC projections. Further, it stated that, in the future, the constant catch approach should be reevaluated in the context of the cost of forfeited yields measured against realized and quantifiable biomass responses.

    Response 1: We disagree that the ABCs in this action are not consistent with National Standards 1 and 2. The approved 2018-2020 ABCs and ACLs are based on peer-reviewed 2017 stock assessments and the recommendations of the Council's Scientific and Statistical Committee (SSC), consistent with the National Standard 2 requirement to use the best scientific information available. Further, the ABCs and ACLs were calculated to prevent overfishing while achieving optimum yield, as required by National Standard 1, and they are consistent with current rebuilding programs.

    The 2017 assessments for GB cod and GOM cod cite accuracy and completeness of catch (including discards) along with the estimate of natural mortality (which could include effects from warming in the Gulf of Maine) as important sources of uncertainty. The SSC considered scientific uncertainty, including accuracy of catch and natural mortality estimates, in setting catch advice for both cod stocks and used the Council's ABC control rule in the absence of better information that would allow a more explicit determination of scientific uncertainty. In both cases, the SSC recommended a 3-year constant catch to help account for uncertainty in the catch projections that are often overly optimistic in the out years. Future stock growth is often projected to be higher than what is realized. As a result, the SSC's ABC recommendations in many cases are lower than the projected output. Future benchmark assessments would be expected to consider any additional information on catch estimate accuracy and estimates of natural mortality that are not included in operational assessment updates.

    As explained in Appendix I to the Environmental Assessment, in recent years, the SSC has either used the default control rule for a groundfish stock or applied other approaches tailored to address particular elements of scientific uncertainty. One example of a tailored approach is the use of constant catch levels. The Council's Groundfish Plan Development Team (PDT) used the outcomes of operational assessments to develop OFL and ABC alternatives for the SSC to consider using either the defined ABC control rule, approaches tailored for particular stocks in recent specification setting, or recommendations from the peer review panel. The SSC also developed new approaches for some stocks based on its evaluation of uncertainty and attributes of the available science. The SSC routinely uses a constant catch approach and has recommended formally adopting this approach as part of the SSC's control rules.

    The catch limits implemented in this rule, based on the SSC's recommendation, practicably mitigate economic impacts consistent with Magnuson-Stevens Act requirements. Ignoring an alternative that meets conservation objectives of the Magnuson-Stevens Act that could help mitigate some of the substantial economic impacts of recent groundfish management actions would not be consistent with National Standard 8. Groundfish vessels catch cod along with other stocks in this multispecies fishery. As a result, a lower ABC could also jeopardize achieving optimum yield for the groundfish fishery compared to the ABCs approved in this final rule.

    Comment 2: Two individuals commented that the GOM cod quota for 2018-2020 is too low, with one individual stating that the rapid quota decreases and increases cannot reflect real circumstances, and that it is hard to avoid cod while fishing for haddock, pollock, and flounders. The Northeast Seafood Coalition also stated that the 2017 stock assessments do not explain why fishermen see different fish populations than the assessments.

    Response 2: We disagree. Information from multiple fishery-independent surveys conducted by independent groups show similar trends in the GOM cod stock. According to the 2017 assessment, the GOM cod stock shows a truncated size and age structure, consistent with a population experiencing high mortality. Additionally, there are no positive signs of incoming recruitment, continued low survey indices, and the current spatial distribution of the stock is considerably less than its historical range within the Gulf of Maine. Because the GOM cod population has contracted to concentrated areas near the coast, fishermen encounter these fish in what may be higher numbers than they have recently experienced. However, that does not accurately represent the overall population because cod are absent from large areas of their historic range. As explained in the Environmental Assessment (see ADDRESSES), projections show an increase in spawning stock biomass after fishing year 2018 if the approved ABC is caught.

    Revisions to Common Pool Trimester Allocations

    Comment 3: The Northeast Hook Fisherman's Association supported the revised trimester allocations based on recent data to address closures in Trimesters 1 and 2.

    Response 3: We agree. For the reasons discussed in the preamble, we have approved the changes to the trimester allocations. These changes are intended to ensure the trimester allocations reflect recent fishing effort and help avoid inseason fishery closures. As a result, this improvement to common pool management measures will likely provide additional fishing opportunities for common pool vessels compared to the current trimester allocation.

    Adjustments Due to Fishing Year 2016 Overages

    Comment 4: Two individuals commented that the commercial sub-ACL for GB cod is being reduced for an overage that might not have happened because of errors in the recreational catch data from the Marine Recreational Information Program (MRIP).

    Response 4: Based on the final report for the 2016 fishing year, catch of GB cod exceeded the ACL by 54 percent (396 mt) and the ABC by 48 percent (364 mt). A minimal overage of the common pool sub-ACL and higher than expected catches by the state and other subcomponents also contributed to the GB cod overage. The majority of state waters catch and the other sub-component catch is from the recreational fishery. As described in our March 20, 2018, letter to the Council, we revised the method for calculating the recreational GB cod catch that we consider when determining if an overage has occurred. The 3-year average was used to estimate recreational GB cod catch in the state and other sub-components to better account for the variability and uncertainty associated with the MRIP recreational catch estimates. This method is consistent with how we evaluate catch from other recreational fisheries that do not have a sub-ACL.

    Revisions to Atlantic Halibut Accountability Measures

    Comment 5: The Northeast Seafood Coalition supported all of the changes to the Atlantic halibut AMs.

    Response 5: We agree. For the reasons discussed in the preamble, we have approved the changes to the Atlantic halibut AMs. Extending the zero-possession halibut AM to all Federal permit holders will reduce the catch of halibut by federally-permitted vessels not currently subject to the AM and facilitate enforcement of Federal fishery limits to increase the probability that catch will be below the ACL. Modifying the gear-restricted halibut AM areas for Federal groundfish vessels will provide groundfish vessels additional flexibility while continuing to reduce catch of halibut when the AMs are triggered.

    Comment 6: The Northeast Seafood Coalition commented that many fishermen affected by the changes to the Atlantic halibut AMs were not aware of the potential changes until late in the development of Framework 57 because updated data was provided late in the development of the framework. The Northeast Seafood Coalition recommended addressing this by considering further modifications in the future.

    Response 6: We agree that the Council may consider further modifications in the future if it chooses to do so. We encourage individuals to raise these concerns to the Council. For Framework 57, there was ample opportunity for public participation and comment on these matters. Potentially applying halibut AMs to all Federal permit holders was discussed in at least five public meetings and available for public participation over the entire 51/2-month period of the Framework beginning in June 2017, and culminating in the Council's final vote to submit Framework 57 on December 5, 2017. During that time, these matters were first discussed at the June 20, 2017, Council meeting that initiated Framework 57, then developed and discussed by the PDT and the Groundfish Oversight Committee. The PDT provided the Committee with written information about expanding the zero-possession AM to other Federal permit holders in a September 20, 2017, memorandum. The Council voted on September 27, 2017, to include these measures in Framework 57, but did not take a final vote to submit Framework 57 to NMFS until December 5, 2017. Each of these meetings provided opportunity for public comment on the proposed changes to the halibut AMs, in addition to the comment period provided by this rulemaking.

    Comment 7: One individual commented that exclusion from the zero-possession AM should apply to all recreational groundfish trips, including charter or party trips by vessels issued a limited access Northeast multispecies permit, and suggested that had been the Council's intent.

    Response 7: We disagree. On Tuesday December 5, 2017, the Council discussed revising the Atlantic halibut AMs to apply to all vessels issued a Federal permit. The Council specifically considered the impact of this issue on commercial Federal groundfish vessels operating as for-hire vessels during development of the rule and approved the AM, as written in the proposed rule and approved in this final rule, as necessary to implement Framework 57. The application of the zero-possession halibut AM is reasonably calibrated to facilitate enforcement and limit Federal catch to the stock's ACL. The Council's deliberations involved a careful consideration of the measure's effectiveness in achieving its goals, the measure's impacts compared to reasonable alternatives, and supports their decision.

    Revisions to Southern Windowpane Flounder Accountability Measures

    Comment 8: One individual opposed the changes to the southern windowpane flounder AMs. The commenter stated that to prevent overfishing, the size of the AM area that is implemented should be based on the stock conditions during the overage, rather than at the time the AMs are implemented.

    Response 8: We disagree. Accountability measures are management controls to prevent ACLs from being exceeded and correct or mitigate overages if they occur. When an ACL is exceeded, the AM must be implemented as soon as possible to correct the operational issue that caused the overage as well as any known biological consequences from the overage. As explained in the Environmental Assessment, using survey information to determine the size of the AM is appropriate because windowpane flounder is assessed with an index-based method, possession is prohibited, and the ABCs and ACLs are not based on a projection that accounts for possible increases in biomass over time. Using the most up to date information for the revised AM better accounts for potential biological consequences of the overage. It evaluates an overage in the context of the biomass and exploitation trends in the most recent stock assessment and is consistent with using the best available science. As a result, the AM mitigation is more closely tailored to the biological effect from the overage.

    Comment 9: The Northeast Seafood Coalition supported the revisions to the southern windowpane flounder AMs.

    Response 9: We agree. For the reasons discussed in the preamble, we have approved the changes to the southern windowpane flounder AMs. These changes are expected to minimize the economic impacts of the AM for a rebuilt stock, consistent with National Standards, while still correcting for any overage and mitigating potential biological consequences. The additional flexibility this provides to non-groundfish vessels, including vessels that target summer flounder, scup, and skates, will provide additional opportunities to achieve optimal yield in those fisheries while preventing overfishing.

    Revision to the Southern New England/Mid-Atlantic Yellowtail Flounder Accountability Measures

    Comment 10: The Northeast Seafood Coalition supported the revisions to the SNE/MA yellowtail flounder AMs.

    Response 10: We agree. For the reasons discussed in the preamble, we have approved the changes to the SNE/MA yellowtail flounder AMs. This change provides flexibility for the scallop fishery to better achieve optimal yield, despite a reduction in the SNE/MA yellowtail flounder ACL, while continuing to prevent overfishing. This measure provides the scallop fishery with flexibility to adjust to current catch conditions while still providing an incentive to avoid yellowtail flounder.

    Recreational Fishery Measures

    Comment 11: The Northeast Seafood Coalition supported setting a recreational catch target for GB cod, using the average of the most recent five calendar years of catch to set the target, and granting the Regional Administrator authority to set recreational measures for GB cod for fishing years 2018 and 2019 to prevent the target from being exceeded. One individual supported reducing recreational fishing when there are sudden spikes in catch, but only if failing to constrain the recreational catch would cause significant economic or environmental harm. Two individuals commented that no action is needed on recreational measures for GB cod because the fishing year 2017 data shows that catch is down significantly from 2016.

    Response 11: For the reasons explained in the preamble, we have approved the 138-mt recreational catch target, and granting the Regional Administrator authority to set recreational measures for GB cod for fishing years 2018 and 2019 to prevent the target from being exceeded. Preliminary recreational catch data from 2017 does show a reduction in catch from 2016, but the Council chose to set a recreational catch target to limit recreational catch to recent levels based on the trend of increasing recreational catch and the impact that increased catch has had on the commercial fishery. This action alone does not constrain recreational fishing. Instead, it provides authority to the Regional Administrator to constrain catch when necessary to prevent ACLs from being exceeded and to prevent overfishing. The Regional Administrator will be able to carefully consider the degree to which recreational fishing may need to be constrained using the most up to date information. This will provide an opportunity to use measures that are well designed to address the nature and extent of the recreational fishery's contribution to any potential overage.

    Comment 12: One individual commented that the Council should have used the most recent five fishing years, rather than calendar years, to set the GB cod catch target for 2018-2020. Two individuals commented in opposition to setting a constant GB cod recreational catch target for three years and commented that the target should increase annually along with sub-ACLs and sub-components. Two individuals commented that the GB cod recreational catch target should not be based on the recreational catch data from MRIP because the data is flawed and variable.

    Response 12: We disagree. The Council specifically chose to use the most recent five calendar years of recreational catch used in the 2017 stock assessment to be consistent with the MRIP source of data for setting sub-ACLs and sub-components. As explained in the Environmental Assessment and the preamble, the Council used a 5-year average to reflect the recent character of the fishery, and to account for the variability of catch and uncertainty of catch data. The Council's decision to set a catch target provides an objective metric that facilitates the Regional Administrator determining whether to use the authority granted to liberalize or constrain the recreational fishery to achieve, but not exceed, the catch target based on the most up to date information.

    Changes From the Proposed Rule

    This final rule contains a number of minor corrections from the proposed rule. In section 4 Default Catch Limits for the 2021 Fishing Year, Table 10 of this final rule corrects transcription errors in the 2021 default specifications published in the proposed rule. Table 10 in the proposed rule was missing GB cod from the list of stocks and, as a result, the default specifications for the remaining stocks were listed next to the incorrect values.

    In section 6, Adjustments Due to Fishing Year 2016 Overages, Table 13 of this final rule corrects transcription errors in the 2016 ABC and ACL for witch flounder that were published in the proposed rule. Although the 2016 ABC and ACL values were listed incorrectly in Table 13 in the proposed rule, the 2016 catch and overage, the amount to be paid back in 2018 (Table 14), and the revised 2018 allocations (Table 15) were correct.

    Classification

    Pursuant to section 304(b)(1)(A) of the Magnuson-Stevens Fishery Conservation and Management Act, the NMFS Assistant Administrator has determined that the management measures implemented in this final rule are necessary for the conservation and management of the Northeast multispecies fishery and consistent with the Magnuson-Stevens Act, and other applicable law.

    This final rule has been determined to be not significant for purposes of Executive Order (E.O.) 12866.

    This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.

    This final rule does not contain policies with Federalism or takings implications as those terms are defined in E.O. 13132 and E.O. 12630, respectively.

    The Assistant Administrator for Fisheries finds that there is good cause, under 5 U.S.C. 553(d)(3), to waive the 30-day delayed effectiveness of this action. This action relies on the best available science to set 2018 catch limits for 20 groundfish stocks and adopts several other measures to improve the management of the groundfish fishery. If the final rule is not effective on May 1, 2018, the Eastern U.S./Canada Area would be closed, until this rule is effective, because there are no default quotas specified for eastern GB Cod or eastern GB haddock. Groundfish vessels would also be unable to benefit from the increased quotas (particularly GOM cod, GOM haddock, Cape Cod/GOM yellowtail flounder, and American plaice) for the first portion of the fishing year, which occurs during the important summer fishing season. To fully capture the conservation and economic benefits of Framework 57 and prevent the negative economic impacts that would result from the closure of the Eastern U.S./Canada Area, it is necessary to waive the 30-day delayed effectiveness of this rule. In addition to potentially preventing the fishery from fully benefitting from catch limit increases, a delay could substantially disrupt business planning and fishing practices that would also result in direct economic loss for the groundfish fleet because of disruption to the fishery. Delaying effectiveness this rule would undermine the intent of the rule to set 2018 catch limits using the best available science.

    This rulemaking incorporates information from updated stock assessments for the 20 groundfish stocks. The development of Framework 57 was timed to rely on the best available science by incorporating the results of these assessments, the last of which was finalized in December 2017. This required Council action and analysis that could not be completed until January 2018, and an opportunity for public comment on the proposed rule that did not close until April 6, 2018. The regulatory changes resulting from this best available information are regularly made in, and anticipated by, the fishery. Quotas for 11 stocks will increase with the implementation of this rule, which notably includes a 41-percent increase for GOM cod and a 139-percent increase for GB cod. In recent years, low quotas for these two key groundfish stocks have constrained catch of other stocks because cod is caught along with other stocks in this mixed fishery and fishing must stop in an area when catch of any one stock reaches its quota. Delaying the increases in the quotas would result in lost fishing opportunities and constrain catch of all other stocks.

    Failure to waive the 30-day delayed effectiveness would result in no catch limits being specified for eastern GB cod and haddock, which are jointly managed with Canada. Without an allocation for these groundfish stocks, groundfish vessels would be unable to fish in the Eastern U.S./Canada Management Area until this rule is effective. This would result in direct economic losses for the groundfish fleet. Delaying implementation of this rule would not only limit the benefits of an increased quota in 2018, but cause vessels to miss part of the summer season. The milder weather associated with the summer season is important for offshore fishing trips to the Eastern U.S./Canada Area, which extends out to 200 miles from shore. When the opening of the Eastern Area was delayed until August during the 2017 fishing year, vessels that normally fish in that area reported revenue losses of 50 percent. While the summer season is important to all vessels, it is particularly important to the small groundfish vessels with the most limited range and least sea-keeping ability because it is the season when many stocks are available nearest to shore. For smaller vessels, missing a month of the summer season could effectively curtail the entirety of their groundfish season.

    In addition to the catch limit increases, quotas for nine stocks will decrease with implementation of this rule. These decreases range from 7 percent to 75 percent. Delaying these reductions could lead to catch at a rate that would result in an early closure, or quota overages, once the reduced quotas are implemented. This would have future negative economic impacts on the fishery. Further, delaying required reductions in ACLs increases the likelihood of overages and negative biological impacts to groundfish stocks, including many which are overfished and subject to a rebuilding plan.

    For the reasons laid out above, delaying the effectiveness past the beginning of the fishing season on May 1, 2018, will result in a direct economic loss for the groundfish fleet. The groundfish fishery already faced substantial catch limit reductions for many key groundfish stocks over the past 7 years. Any further disruption to the fishery would diminish the benefits of these specifications and other approved measures and create additional and unnecessary economic impacts and confusion to the groundfish fishery. Delaying effectiveness may result in the fishery not fully benefitting from the quota increases in this final rule.

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration, during the proposed rule stage, that this action would not have a significant economic impact on a substantial number of small entities. The factual basis for this certification was published in the proposed rule and is not repeated here. No comments were received regarding this certification. As a result, a regulatory flexibility analysis was not required and none was prepared.

    List of Subjects in 50 CFR Part 648

    Fisheries, Fishing, Reporting and recordkeeping requirements.

    Dated: April 26, 2018. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

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

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

    16 U.S.C. 1801 et seq.

    2. In § 648.14, revise paragraphs (k)(18) and (20) to read as follows:
    § 648.14 Prohibitions.

    (k) * * *

    (18) Trimester TAC AM. It is unlawful for any person, including any owner or operator of a vessel issued a valid Federal NE multispecies permit or letter under § 648.4(a)(1)(i), unless otherwise specified in § 648.17, to fish for, harvest, possess, or land regulated species or ocean pout in or from the closed areas specified in § 648.82(n)(2)(ii) once such areas are closed pursuant to § 648.82(n)(2)(i).

    (20) AMs for both stocks of windowpane flounder, ocean pout, Atlantic halibut, and Atlantic wolffish. It is unlawful for any person, including any owner or operator of a vessel issued a valid Federal NE multispecies permit or letter under § 648.4(a)(1)(i), unless otherwise specified in § 648.17, to fail to comply with the restrictions on fishing and gear specified in § 648.90(a)(5)(i)(D) through (H).

    3. In § 648.82, revise paragraph (n)(2)(i) to read as follows:
    § 648.82 Effort-control program for NE multispecies limited access vessels.

    (n) * * *

    (2) * * *

    (i) Trimester TACs—(A) Trimester TAC distribution. With the exception of SNE/MA winter flounder, any sub-ACLs specified for common pool vessels pursuant to § 648.90(a)(4) shall be apportioned into 4-month trimesters, beginning at the start of the fishing year (i.e., Trimester 1: May 1-August 31; Trimester 2: September 1-December 31; Trimester 3: January 1-April 30), as follows:

    Portion of Common Pool Sub-ACLs Apportioned to Each Stock for Each Trimester Stock Trimester 1
  • (percent)
  • Trimester 2
  • (percent)
  • Trimester 3
  • (percent)
  • GB cod 28 34 38 GOM cod 49 33 18 GB haddock 27 33 40 GOM haddock 27 26 47 GB yellowtail flounder 19 30 51 SNE/MA yellowtail flounder 21 28 51 CC/GOM yellowtail flounder 57 26 17 American plaice 74 8 18 Witch flounder 55 20 25 GB winter flounder 8 24 68 GOM winter flounder 37 38 25 Redfish 25 31 44 White hake 38 31 31 Pollock 28 35 37

    (B) Trimester TAC adjustment. For stocks that have experienced early closures (e.g., Trimester 1 or Trimester 2 closures), the Regional Administrator may use the biennial adjustment process specified in § 648.90 to revise the distribution of trimester TACs specified in paragraph (n)(2)(i)(A) of this section. Future adjustments to the distribution of trimester TACs shall use catch data for the most recent 5-year period prior to the reevaluation of trimester TACs.

    4. In § 648.89, add paragraph (g) to read as follows:
    § 648.89 Recreational and charter/party vessel restrictions.

    (g) Regional Administrator authority for 2018 and 2019 Georges Bank cod recreational measures. For the 2018 or 2019 fishing years, the Regional Administrator, after consultation with the NEFMC, may adjust recreational measures for Georges Bank cod to prevent the recreational fishery from exceeding the annual catch target of 138 mt. Appropriate measures, including adjustments to fishing seasons, minimum fish sizes, or possession limits, may be implemented in a manner consistent with the Administrative Procedure Act, with the final measures published in the Federal Register prior to the start of the fishing year when possible. Separate measures may be implemented for the private and charter/party components of the recreational fishery. Measures in place in fishing year 2019 will be in effect beginning in fishing year 2020, and will remain in effect until they are changed by a Framework Adjustment or Amendment to the FMP, or through an emergency action.

    5. Section 648.90 is amended by: a. Removing reserved paragraph (a)(5)(i)(E); b. Redesignating paragraph (a)(5)(i)(D)(1) through (4) as paragraphs (a)(5)(i)(E) through (H); c. Revising newly redesignated paragraphs (a)(5)(i)(E) through (H); and d. Adding paragraph (a)(5)(iv)(C).

    The revisions and addition read as follows:

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

    (a) * * *

    (5) * * *

    (i) * * *

    (E) Windowpane flounder. Unless otherwise specified in paragraphs (a)(5)(i)(E)(5) and (6) of this section, if NMFS determines the total catch exceeds the overall ACL for either stock of windowpane flounder, as described in this paragraph (a)(5)(i)(E), by any amount greater than the management uncertainty buffer, up to 20 percent greater than the overall ACL, the applicable small AM area for the stock shall be implemented, as specified in paragraph (a)(5)(i)(E) of this section, consistent with the Administrative Procedure Act. If the overall ACL is exceeded by more than 20 percent, the applicable large AM area(s) for the stock shall be implemented, as specified in this paragraph (a)(5)(i)(E), consistent with the Administrative Procedure Act. Vessels fishing with trawl gear in these areas may only use a haddock separator trawl, as specified in § 648.85(a)(3)(iii)(A); a Ruhle trawl, as specified in § 648.85(b)(6)(iv)(J)(3); a rope separator trawl, as specified in § 648.84(e); or any other gear approved consistent with the process defined in § 648.85(b)(6).

    (1) Multispecies Fishery. If an overage of the overall ACL for southern windowpane flounder is a result of an overage of the sub-ACL allocated to the multispecies fishery pursuant to paragraph (a)(4)(iii)(H)(2) of this section, the applicable AM area(s) shall be in effect year-round for any limited access NE multispecies permitted vessel fishing on a NE multispecies DAS or sector trip.

    (2) Exempted Fisheries. If an overage of the overall ACL for southern windowpane flounder is a result of an overage of the sub-ACL allocated to exempted fisheries pursuant to paragraph (a)(4)(iii)(F) of this section, the applicable AM area(s) shall be in effect for any trawl vessel fishing with a codend mesh size of greater than or equal to 5 inches (12.7 cm) in other, non-specified sub-components of the fishery, including, but not limited to, exempted fisheries that occur in Federal waters and fisheries harvesting exempted species specified in § 648.80(b)(3). If triggered, the Southern Windowpane Flounder Small AM Area will be implemented from September 1 through April 30; the Southern Windowpane Flounder Large AM Areas 2 and 3 will be implemented year-round.

    (3) Combined Overage. If an overage of the overall ACL for southern windowpane flounder is a result of overages of both the multispecies fishery and exempted fishery sub-ACLs, the applicable AM area(s) shall be in effect for both the multispecies fishery and exempted fisheries as described in this paragraph (a)(5)(i)(E). If a sub-ACL for either stock of windowpane flounder is allocated to another fishery, consistent with the process specified at paragraph (a)(4) of this section, and there are AMs for that fishery, the multispecies fishery AM shall only be implemented if the sub-ACL allocated to the multispecies fishery is exceeded (i.e., the sector and common pool catch for a particular stock, including the common pool's share of any overage of the overall ACL caused by excessive catch by other sub-components of the fishery pursuant to paragraph (a)(5) of this section exceeds the common pool sub-ACL) and the overall ACL is also exceeded.

    (4) Windowpane AM Areas. The AM areas defined below are bounded by the following coordinates, connected in the order listed by rhumb lines, unless otherwise noted.

    Point N latitude W longitude Northern Windowpane Flounder and Ocean Pout Small AM Area 1 41°10′ 67°40′ 2 41°10′ 67°20′ 3 41°00′ 67°20′ 4 41°00′ 67°00′ 5 40°50′ 67°00′ 6 40°50′ 67°40′ 1 41°10′ 67°40′ Northern Windowpane Flounder and Ocean Pout Large AM Area 1 42°10′ 67°40′ 2 42°10′ 67°20′ 3 41°00′ 67°20′ 4 41°00′ 67°00′ 5 40°50′ 67°00′ 6 40°50′ 67°40′ 1 42°10′ 67°40′ Southern Windowpane Flounder and Ocean Pout Small AM Area 1 41°10′ 71°30′ 2 41°10′ 71°20′ 3 40°50′ 71°20′ 4 40°50′ 71°30′ 1 41°10′ 71°30′ Southern Windowpane Flounder and Ocean Pout Large AM Area 1 1 41°10′ 71°50′ 2 41°10′ 71°10′ 3 41°00′ 71°10′ 4 41°00′ 71°20′ 5 40°50′ 71°20′ 6 40°50′ 71°50′ 1 41°10′ 71°50′ Southern Windowpane Flounder and Ocean Pout Large AM Area 2 1 ( 1 ) 73°30′ 2 40°30′ 73°30′ 3 40°30′ 73°50′ 4 40°20′ 73°50′ 5 40°20′ ( 2 ) 6 ( 3 ) 73°58.5′ 7 ( 4 ) 73°58.5′ 8 5 40°32.6′ 5 73°56.4′ 1 ( 1 ) 73°30′ Southern Windowpane Flounder Large AM Area 3 1 41°10′ 71°30′ 2 41°10′ 71°10′ 3 41°00′ 71°10′ 4 41°00′ 71°20′ 5 40°50′ 71°20′ 6 40°50′ 71°30′ 1 41°10′ 71°30′ 1 The southernmost coastline of Long Island, NY, at 73°30′ W longitude. 2 The easternmost coastline of NJ at 40°20′ N latitude, then northward along the NJ coastline to Point 6. 3 The northernmost coastline of NJ at 73°58.5′ W longitude. 4 The southernmost coastline of Long Island, NY, at 73°58.5′ W longitude. 5 The approximate location of the southwest corner of the Rockaway Peninsula, Queens, NY, then eastward along the southernmost coastline of Long Island, NY (excluding South Oyster Bay), back to Point 1.

    (5) Reducing the size of an AM. If the overall northern or southern windowpane flounder ACL is exceeded by more than 20 percent and NMFS determines that the stock is rebuilt, and the biomass criterion, as defined by the Council, is greater than the most recent fishing year's catch, then only the small AM may be implemented as described in paragraph (a)(5)(i)(D)(1) of this section, consistent with the Administrative Procedure Act. This provision applies to a limited access NE multispecies permitted vessel fishing on a NE multispecies DAS or sector trip, and to all vessels fishing with trawl gear with a codend mesh size equal to or greater than 5 inches (12.7 cm) in other, non-specified sub-components of the fishery, including, but not limited to, exempted fisheries that occur in Federal waters and fisheries harvesting exempted species specified in § 648.80(b)(3).

    (6) Reducing the duration of an AM. If the northern or southern windowpane flounder AM is implemented in the third fishing year following the year of an overage, as described in paragraph (a)(5)(i)(D) of this section, and NMFS subsequently determines that the applicable windowpane flounder ACL was not exceeded by any amount the year immediately after which the overage occurred (i.e., the second year), on or after September 1 the AM can be removed once year-end data are complete. This reduced duration does not apply if NMFS determines during year 3 that a year 3 overage of the applicable windowpane flounder ACL has occurred. This provision applies to a limited access NE multispecies permitted vessel fishing on a NE multispecies DAS or sector trip, and to all vessels fishing with trawl gear with a codend mesh size equal to or greater than 5 inches (12.7 cm) in other, non-specified sub-components of the fishery, including, but not limited to, exempted fisheries that occur in Federal waters and fisheries harvesting exempted species specified in § 648.80(b)(3).

    (F) Atlantic halibut. If NMFS determines the overall ACL for Atlantic halibut is exceeded, as described in this paragraph (a)(5)(i)(F), by any amount greater than the management uncertainty buffer, the applicable AM areas shall be implemented and any vessel issued a Federal permit for any fishery management plan may not fish for, possess, or land Atlantic halibut for the fishing year in which the AM is implemented, as specified in paragraph (a)(5)(i)(F) of this section. Vessels issued only a charter/party permit, and/or an Atlantic highly migratory species angling permit, and/or an Atlantic highly migratory species charter/headboat permit are exempt from the AM. A vessel issued a permit that is not exempt from the AM in addition to an exempt permit may not fish for, possess, or land Atlantic halibut for the fishing year in which the AM is implemented. If the overall ACL is exceeded by more than 20 percent, the applicable AM area(s) for the stock shall be implemented, as specified in paragraph (a)(5)(i)(F) of this section, and the Council shall revisit the AM in a future action. The AM areas defined below are bounded by the following coordinates, connected in the order listed by rhumb lines, unless otherwise noted. Any vessel issued a limited access NE multispecies permit and fishing with trawl gear in the Atlantic Halibut Trawl Gear AM Area may only use a haddock separator trawl, as specified in § 648.85(a)(3)(iii)(A); a Ruhle trawl, as specified in § 648.85(b)(6)(iv)(J)(3); a rope separator trawl, as specified in § 648.84(e); or any other gear approved consistent with the process defined in § 648.85(b)(6); except that selective trawl gear is not required in the portion of the Trawl Gear AM Area between 41 degrees 40 minutes and 42 degrees from April 1 through July 31. When in effect, a limited access NE multispecies permitted vessel with gillnet gear may not fish or be in the Atlantic Halibut Fixed Gear AM Area from March 1 through October 31, unless transiting with its gear stowed and not available for immediate use as defined in § 648.2, or such gear was approved consistent with the process defined in § 648.85(b)(6). If a sub-ACL for Atlantic halibut is allocated to another fishery, consistent with the process specified at § 648.90(a)(4), and there are AMs for that fishery, the multispecies fishery AM shall only be implemented if the sub-ACL allocated to the multispecies fishery is exceeded (i.e., the sector and common pool catch for a particular stock, including the common pool's share of any overage of the overall ACL caused by excessive catch by other sub-components of the fishery pursuant to § 648.90(a)(5), exceeds the common pool sub-ACL) and the overall ACL is also exceeded.

    Atlantic Halibut Trawl Gear AM Area Point N latitude W longitude 1 42°00′ 69°20′ 2 42°00′ 68°20′ 3 41°30′ 68°20′ 4 41°30′ 69°20′ Atlantic Halibut Gillnet Gear AM Area Point N latitude W longitude 1 43°10′ 69°40′ 2 43°10′ 69°30′ 3 43°00′ 69°30′ 4 43°00′ 69°40′

    (G) Atlantic wolffish. If NMFS determines the overall ACL for Atlantic wolffish is exceeded, as described in this paragraph (a)(5)(i)(G), by any amount greater than the management uncertainty buffer, the applicable AM areas shall be implemented, as specified in this paragraph (a)(5)(i)(G). If the overall ACL is exceeded by more than 20 percent, the applicable AM area(s) for the stock shall be implemented, as specified in this paragraph (a)(5)(i)(G), and the Council shall revisit the AM in a future action. The AM areas defined below are bounded by the following coordinates, connected in the order listed by rhumb lines, unless otherwise noted. Any vessel issued a limited access NE multispecies permit and fishing with trawl gear in the Atlantic Wolffish Trawl Gear AM Area may only use a haddock separator trawl, as specified in § 648.85(a)(3)(iii)(A); a Ruhle trawl, as specified in § 648.85(b)(6)(iv)(J)(3); a rope separator trawl, as specified in § 648.84(e); or any other gear approved consistent with the process defined in § 648.85(b)(6). When in effect, a limited access NE multispecies permitted vessel with gillnet or longline gear may not fish or be in the Atlantic Wolffish Fixed Gear AM Areas, unless transiting with its gear stowed and not available for immediate use as defined in § 648.2, or such gear was approved consistent with the process defined in § 648.85(b)(6). If a sub-ACL for Atlantic wolffish is allocated to another fishery, consistent with the process specified at § 648.90(a)(4), and AMs are developed for that fishery, the multispecies fishery AM shall only be implemented if the sub-ACL allocated to the multispecies fishery is exceeded (i.e., the sector and common pool catch for a particular stock, including the common pool's share of any overage of the overall ACL caused by excessive catch by other sub-components of the fishery pursuant to § 648.90(a)(5), exceeds the common pool sub-ACL) and the overall ACL is also exceeded.

    Atlantic Wolffish Trawl Gear AM Area Point N latitude W longitude 1 42°30′ 70°30′ 2 42°30′ 70°15′ 3 42°15′ 70°15′ 4 42°15′ 70°10′ 5 42°10′ 70°10′ 6 42°10′ 70°20′ 7 42°20′ 70°20′ 8 42°20′ 70°30′ Atlantic Wolffish Fixed Gear AM Area 1 Point N latitude W longitude 1 41°40′ 69°40′ 2 41°40′ 69°30′ 3 41°30′ 69°30′ 4 41°30′ 69°40′ Atlantic Wolffish Fixed Gear AM Area 2 Point N latitude W longitude 1 42°30′ 70°20′ 2 42°30′ 70°15′ 3 42°20′ 70°15′ 4 42°20′ 70°20′

    (H) Ocean pout. Unless otherwise specified in paragraphs (a)(5)(i)(E)(5) and (6) of this section, if NMFS determines the total catch exceeds the overall ACL for ocean pout, as described in paragraph (a)(5)(i)(E) of this section, by any amount greater than the management uncertainty buffer up to 20 percent greater than the overall ACL, the applicable small AM area for the stock shall be implemented, as specified in paragraph (a)(5)(i)(E) of this section, consistent with the Administrative Procedure Act. If the overall ACL is exceeded by more than 20 percent, large AM area(s) for the stock shall be implemented, as specified in paragraph (a)(5)(i)(E) of this section, consistent with the Administrative Procedure Act. The AM areas for ocean pout are defined in paragraph (a)(5)(i)(E)(4) of this section, connected in the order listed by rhumb lines, unless otherwise noted. Vessels fishing with trawl gear in these areas may only use a haddock separator trawl, as specified in § 648.85(a)(3)(iii)(A); a Ruhle trawl, as specified in § 648.85(b)(6)(iv)(J)(3); a rope separator trawl, as specified in § 648.84(e); or any other gear approved consistent with the process defined in § 648.85(b)(6).

    (iv) * * *

    (C) 2018 fishing year threshold for implementing the Atlantic sea scallop fishery AM for SNE/MA yellowtail flounder. For the 2018 fishing year, if the scallop fishery catch exceeds its SNE/MA yellowtail flounder sub-ACL specified in paragraph (a)(4) of this section, and total catch exceeds the overall ACL for that stock, then the applicable scallop fishery AM will take effect, as specified in § 648.64 of the Atlantic sea scallop regulations. Beginning in fishing year 2019, the threshold for implementing scallop fishery AMs for SNE/MA yellowtail flounder listed in paragraph (a)(5)(iv)(A) of this section will be in effect.

    [FR Doc. 2018-09148 Filed 4-30-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 [Docket No. 170831849-8404-01] RIN 0648-BH22 Fisheries Off West Coast States; West Coast Salmon Fisheries; 2018 Management Measures and a Temporary Rule AGENCY:

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

    ACTION:

    Final rule; and a temporary rule for emergency action.

    SUMMARY:

    Through this final rule, NMFS establishes fishery management measures for the 2018 ocean salmon fisheries off Washington, Oregon, and California and the 2019 salmon seasons opening earlier than May 1, 2019. The temporary rule for emergency action (emergency rule), under the Magnuson-Stevens Fishery Conservation and Management Act (MSA), implements the 2018 annual management measures for the West Coast ocean salmon fisheries for the area from the U.S./Canada border to Cape Falcon, OR, from May 1, 2018, through October 28, 2018. The emergency rule is required because allocation of coho harvest between recreational and commercial fisheries will not be consistent with the allocation schedule specified in the Pacific Coast Salmon Fishery Management Plan (FMP) in order to limit fishery impacts on Queets and Grays Harbor coho and meet conservation and management objectives. The fishery management measures for the area from Cape Falcon, OR, to the U.S./Mexico border are consistent with the FMP and are implemented through a final rule. Specific fishery management measures vary by fishery and by area. The measures establish fishing areas, seasons, quotas, legal gear, recreational fishing days and catch limits, possession and landing restrictions, and minimum lengths for salmon taken in the U.S. exclusive economic zone (EEZ) (3-200 nautical miles (nmi)) off Washington, Oregon, and California. The management measures are intended to prevent overfishing and to apportion the ocean harvest equitably among treaty Indian, non-treaty commercial, and recreational fisheries. The measures are also intended to allow a portion of the salmon runs to escape the ocean fisheries in order to provide for spawning escapement and inside fisheries (fisheries occurring in state internal waters).

    DATES:

    The final rule covering fisheries south of Cape Falcon, OR, is effective from 0001 hours Pacific Daylight Time (PDT), May 1, 2018, until the effective date of the 2019 management measures, which will be published in the Federal Register. The temporary rule covering fisheries north of Cape Falcon, OR, is effective from 0001 hours PDT, May 1, 2018, through 2400 hours PDT, October 28, 2018, or the attainment of the specific quotas listed below in section two of this rule.

    ADDRESSES:

    The documents cited in this document are available on the Pacific Fishery Management Council's (Council's) website (www.pcouncil.org).

    FOR FURTHER INFORMATION CONTACT:

    Peggy Mundy at (206) 526-4323.

    SUPPLEMENTARY INFORMATION:

    Background

    The ocean salmon fisheries in the EEZ off Washington, Oregon, and California are managed under a “framework” FMP. Regulations at 50 CFR part 660, subpart H, provide the mechanism for making preseason and inseason adjustments to the management measures, within limits set by the FMP, by notification in the Federal Register. 50 CFR 660.408, in addition to the FMP, governs the establishment of annual management measures.

    The management measures for the 2018 and pre-May 2019 ocean salmon fisheries that are implemented in this final rule were recommended by the Council at its April 5 to 11, 2018, meeting.

    Process Used To Establish 2018 Management Measures

    The Council announced its annual preseason management process for the 2018 ocean salmon fisheries in the Federal Register on December 27, 2017 (82 FR 61268), and on the Council's website at www.pcouncil.org. NMFS published an additional notice of opportunities to submit public comments on the 2018 ocean salmon fisheries in the Federal Register on January 23, 2018 (83 FR 3133). These notices announced the availability of Council documents, the dates and locations of Council meetings and public hearings comprising the Council's complete schedule of events for determining the annual proposed and final modifications to ocean salmon fishery management measures, and instructions on how to comment on the development of the 2018 ocean salmon fisheries. The agendas for the March and April Council meetings were published in the Federal Register (83 FR 7457, February 21, 2018, and 83 FR 11991, March 19, 2018, respectively) and posted on the Council's website prior to the actual meetings.

    In accordance with the FMP, the Council's Salmon Technical Team (STT) and staff economist prepared four reports for the Council, its advisors, and the public. All four reports were made available on the Council's website upon their completion. The first of the reports, “Review of 2017 Ocean Salmon Fisheries,” was prepared in February when the first increment of scientific information necessary for crafting management measures for the 2018 and pre-May 2019 ocean salmon fisheries became available. The first report summarizes biological and socio-economic data for the 2017 ocean salmon fisheries and assesses the performance of the fisheries with respect to the Council's 2017 management objectives. The second report, “Preseason Report I Stock Abundance Analysis and Environmental Assessment Part 1 for 2018 Ocean Salmon Fishery Regulations” (PRE I), provides the 2018 salmon stock abundance projections and analyzes the impacts on the stocks and Council management goals if the 2017 regulations and regulatory procedures were applied to the projected 2018 stock abundances. The completion of PRE I is the initial step in developing and evaluating the full suite of preseason alternatives.

    Following completion of the first two reports, the Council met in Rohnert Park, CA, from March 7 to 14, 2018, to develop 2018 management alternatives for proposal to the public. The Council proposed three alternatives for commercial and recreational fisheries management for analysis and public comment. These alternatives consisted of various combinations of management measures designed to ensure that stocks of coho and Chinook salmon with low abundance meet conservation goals, and to provide for ocean harvests of more abundant stocks. After the March Council meeting, the Council's STT and staff economist prepared a third report, “Preseason Report II Proposed Alternatives and Environmental Assessment Part 2 for 2018 Ocean Salmon Fishery Regulations” (PRE II), which analyzes the effects of the proposed 2018 management alternatives.

    The Council sponsored public hearings to receive testimony on the proposed alternatives on March 26, 2018, in Westport, WA, and Coos Bay, OR; and on March 27, 2018, in Salinas, CA. The States of Washington, Oregon, and California sponsored meetings in various fora that also collected public testimony, which was then presented to the Council by each state's Council representative. The Council also received public testimony at both the March and April meetings and received written comments at the Council office and electronic submissions via www.regulations.gov.

    The Council met from April 5 to 11, 2018, in Portland, OR, to adopt its final 2018 salmon management recommendations. Following the April Council meeting, the Council's STT and staff economist prepared a fourth report, “Preseason Report III Analysis of Council-Adopted Management Measures for 2018 Ocean Salmon Fisheries” (PRE III), which analyzes the environmental and socio-economic effects of the Council's final recommendations. After the Council took final action on the annual ocean salmon specifications in April, it transmitted the recommended management measures to NMFS, published them in its newsletter, and posted them on the Council website (www.pcouncil.org).

    National Environmental Policy Act (NEPA)

    The environmental assessment (EA) for this action comprises the Council's documents described above (PRE I, PRE II, and PRE III), providing analysis of environmental and socioeconomic effects under NEPA. The EA and its related Finding of No Significant Impact are posted on the NMFS West Coast Region website (www.westcoast.fisheries.noaa.gov).

    Resource Status Stocks of Concern

    The FMP requires that the fisheries be shaped to meet escapement-based Annual Catch Limits (ACLs), Endangered Species Act (ESA) consultation requirements, obligations of the Pacific Salmon Treaty (PST) between the U.S. and Canada, and other conservation objectives detailed in the FMP. Because the ocean salmon fisheries are mixed-stock fisheries, this requires “weak stock” management to avoid exceeding limits for the stocks with the most constraining limits. Abundance forecasts for individual salmon stocks can vary significantly from one year to the next; therefore, the stocks that constrain the fishery in one year may differ from those that constrain the fishery in the next. For 2018, limits for six stocks are the most constraining on the fisheries; these are described below.

    Fisheries south of Cape Falcon, OR, are limited in 2018 primarily by conservation concerns for Klamath River fall-run Chinook salmon (KRFC) and Sacramento River fall-run Chinook salmon (SRFC); both stocks meet the FMP criteria for being overfished, although NMFS has not made a determination at this time. Fisheries north of Cape Falcon are limited primarily by the low abundance forecast for Queets and Grays Harbor coho which are managed subject to provisions of the Pacific Salmon Treaty as well as those specified in the Council's FMP. The Queets coho stock, as well as Juan de Fuca and Snohomish coho stocks, meets the FMP criteria for being overfished; although again, NMFS has not made a determination at this time. Additionally, collective fisheries impacts on the tule component of the ESA-listed Lower Columbia River Chinook salmon evolutionarily significant unit (ESU) and Puget Sound Chinook salmon ESU are limiting primarily to fisheries north of Cape Falcon. The limitations imposed in order to protect these stocks are described below. The alternatives and the Council's recommended management measures for 2018 were designed to avoid exceeding these limitations.

    Klamath River fall-run Chinook salmon (KRFC): Abundance for this non-ESA-listed stock in recent years has been historically low, and it currently meets the FMP's status determination criteria (SDC) for an overfished condition based on spawning escapement in 2015, 2016, and 2017. The FMP defines “overfished” status in terms of a three-year geometric mean escapement level and whether it is below the minimum stock size threshold. Forecast abundance for KRFC in 2017 was the lowest on record. Forecast abundance for KRFC in 2018 is improved from 2017, and fisheries will be managed to meet the FMP conservation objective, a maximum sustainable yield spawning escapement goal (SMSY) of 40,700 natural area spawners. Fisheries south of Cape Falcon, particularly in the Klamath Management Zone (KMZ) from Humbug Mountain, OR to Humboldt South Jetty, CA will be somewhat constrained to meet this goal, but less so than in 2017 when there was a complete closure of commercial and recreational ocean salmon fishing in the KMZ.

    Sacramento River fall-run Chinook salmon (SRFC): SRFC is not an ESA-listed stock; however, abundance for this stock in recent years has been low. In 2017, spawning escapement was 33 percent of what was forecast. The stock currently meets the FMP's SDC for an overfished condition based on escapements in 2015, 2016, and 2017. Abundance forecast for SRFC in 2018 is nearly identical to the forecast in 2017. However, preseason abundance forecasts for SRFC have tended to be optimistic in recent years, when compared to postseason abundance estimates. For example, in 2017 the preseason forecast for SRFC abundance was 230,700, whereas the postseason estimate was 139,997. In order to be conservative given the frequent upward bias in the abundance forecasts and the fact that SRFC meet the FMP criteria for overfished, the Council has recommended fisheries to achieve a spawning escapement of 151,000, the mid-point of the FMP Conservation Objective range (122,000 to 180,000 natural and hatchery adult spawners). Meeting this risk averse spawning escapement goal will constrain fisheries south of Cape Falcon in 2018.

    Queets coho: Queets coho are managed in Council-area and northern fisheries subject to the provisions of the PST. The 2018 abundance forecast for this non-ESA-listed stock is low; 7,000 fish compared to a 2008-2017 average of 16,620 fish. The stock currently meets the FMP's criteria for an overfished condition based on escapements in 2014, 2015, and 2016 (the three most recent years for which escapement data are available). The FMP's conservation objective for Queets coho is an SMSY spawning escapement of 5,800 fish after ocean and in-river fishery impacts. Under the criteria of the PST's Southern Coho Management Plan, Queets coho abundance is in the “low” category in 2018 and subject to a total exploitation rate limit of 20 percent. The Council has recommended fisheries that will meet both the FMP's escapement requirement and the PST exploitation rate limit. Meeting the conservation and management objectives for Queets coho will constrain fisheries north of Cape Falcon.

    Grays Harbor coho: Grays Harbor coho is another non-ESA-listed stock that, like Queets coho, is managed in Council-area and northern fisheries subject to provisions of the PST. The forecast abundance for Grays Harbor coho places this stock in the “low” category under the PST, which limits the exploitation rate to 20 percent. The U.S. Commissioner that represents Washington State informed the Canadian Chair of the Pacific Salmon Commission that we anticipate a total exploitation rate of 20.7 percent for Grays Harbor coho and, given the small deviation from the 20 percent limit, recommended that we not invoke the provisions of PST Chapter Five, Paragraph 11(c) that involve the Southern Panel. The Canadian Chair did not object to the recommendation. The result is that the action is in compliance with provisions of the PST.

    The FMP also includes a conservation objective for Grays Harbor coho—a spawning escapement of 35,400 fish. Although the Council's recommendations would allow for an ocean escapement of 40,500 Grays Harbor coho, the conservation objective in the FMP is for a spawning escapement that accounts for in-river fishery impacts. The FMP provides flexibility in setting the annual spawning escapement for several Washington coho stocks, provided there is agreement between the Washington Department of Fish and Wildlife (WDFW) and the treaty tribes, under the provisions of U.S. v Washington. Based on agreement between those parties, the Council adopted a 2018 spawning escapement target of 33,700 Grays Harbor coho to allow for limited harvest opportunity in ocean and in-river fisheries directed at other higher-abundance stocks. Meeting the conservation and management objectives for Grays Harbor coho will constrain fisheries, primarily north of Cape Falcon.

    Lower Columbia River Chinook salmon (LCR Chinook)—ESA-listed Threatened: In 2012, NMFS consulted under ESA section 7 and issued a biological opinion that applies to fisheries beginning in 2012, concluding that the proposed fisheries, if managed consistent with the proposed action analyzed in the biological opinion, are not likely to jeopardize the continued existence of LCR Chinook salmon. The LCR Chinook salmon ESU is comprised of a spring-run component, a “far-north” migrating bright component, and a component of north migrating tules. The bright and tule components both have fall-run timing. Unlike the spring-run or bright populations of the ESU, LCR tule populations are caught in large numbers in Council fisheries, as well as fisheries to the north and in the Columbia River. Therefore, this component of the ESU is the one most likely to constrain Council fisheries in the area north of Cape Falcon, Oregon. Consistent with the proposed action for the 2012 biological opinion, NMFS and the Council use an abundance-based management (ABM) framework to set annual exploitation rates for LCR tule Chinook salmon below Bonneville Dam. Applying the ABM framework to the 2018 preseason abundance forecast, the LCR tule exploitation rate is limited to a maximum of 38 percent. In 2018, LCR Chinook will primarily constrain salmon fisheries north of Cape Falcon.

    Puget Sound Chinook—ESA-listed Threatened: Impacts on threatened Puget Sound Chinook from Council-managed fisheries are addressed through a 2004 biological opinion. Generally, these impacts are quite low and well within the range contemplated in the 2004 opinion. However, because Puget Sound Chinook are also impacted by fisheries in Puget Sound and associated freshwater fisheries (collectively referred to as “inside” fisheries), the Council and NMFS usually consider the impacts of Council-area and inside fisheries on Puget Sound Chinook together, and they base their analysis of the combined impacts on a package of Puget Sound fisheries to which the State of Washington and Indian tribes with treaty rights to fish in Puget Sound have agreed through a negotiation process that runs concurrent with the Council's salmon season planning process. In 2018, fisheries north of Cape Falcon will be constrained to avoid jeopardy to several populations within the Puget Sound Chinook salmon ESU, when combined with inside fisheries.

    Sacramento River winter-run Chinook salmon (SRWC)—ESA-listed Endangered: The endangered SRWC ESU is one of NMFS' Species in the Spotlight, eight species that are among the most at risk of extinction in the near future. Impacts on SRWC from Council-managed fisheries are addressed through a set of management measures analyzed in NMFS' 2018 biological opinion and approved by NMFS, including a new harvest control rule recommended by the Council for limiting impacts on SRWC based on projected abundance. The harvest control rule was developed through the Council process over two years. NMFS published a final rule to approve the Council's recommendation (83 FR 18233, April 26, 2018). The SRWC management measures include management-area-specific fishing season openings and closures and minimum size limits for both commercial and recreational fisheries, these restrictions were included in a 2012 Reasonable and Prudent Alternative NMFS issued for the fishery. The new harvest control rule establishes an allowable age-three impact rate based on the forecast of age-three SRWC escapement absent fishing. The forecast of the age-three escapement absent fishing is based on juvenile survival rates spanning outmigration in freshwater and early ocean residence. The forecast of SRWC age-three escapement absent fishing in 2018 is 1,594. Application of the harvest control rule results in a maximum age-three impact rate of 14.4 percent for the area south of Point Arena in 2018. However, constraints in place for SRFC will limit impacts to SRWC to 8.5 percent; therefore, SRWC will not constrain fisheries south of Cape Falcon in 2018.

    Annual Catch Limits and Status Determination Criteria

    Annual Catch Limits (ACLs) are set for two Chinook salmon stocks, SRFC and KRFC, and one coho stock, Willapa Bay natural coho. The Chinook salmon stocks are indicator stocks for the Central Valley Fall Chinook complex and the Southern Oregon/Northern California Chinook complex, respectively. The Far North Migrating Coastal Chinook complex includes a group of Chinook salmon stocks that are caught primarily in fisheries north of Cape Falcon, Oregon, and other fisheries that occur north of the U.S./Canada border. No ACL is set for these stocks because they are managed subject to provisions of the PST between the U.S. and Canada. Other Chinook salmon stocks caught in fisheries north of Cape Falcon are ESA-listed or hatchery produced, and are managed consistent with ESA consultations or hatchery goals. Willapa Bay natural coho is the only coho stock for which an ACL is set, as the other coho stocks in the FMP are either ESA-listed, hatchery produced, or managed under the PST.

    ACLs for salmon stocks are escapement-based, which means they establish a number of adults that must escape the fisheries to return to the spawning grounds. ACLs are set based on the annual potential spawner abundance forecast and a fishing rate reduced to account for scientific uncertainty. For SRFC in 2018, the overfishing limit (OFL) is SOFL = 229,432 (potential spawner abundance forecast) multiplied by 1−FMSY (1−0.78) or 50,475 returning spawners (FMSY is the fishing mortality rate that would result in maximum sustainable yield−MSY). SABC is 229,432 multiplied by 1−FABC (1−0.70) (FMSY reduced for scientific uncertainty = 0.70) or 68,830. The SACL is set equal to SABC, i.e., 68,830 spawners. The adopted management measures provide for a projected SRFC spawning escapement of 151,000. For KRFC in 2018, SOFL is 59,733 (potential spawner abundance forecast) multiplied by 1−FMSY (1−0.71), or 17,323 returning spawners. SABC is 59,733 multiplied by 1−FABC (1−0.68) (FMSY reduced for scientific uncertainty = 0.68) or 19,115 returning spawners. SACL is set equal to SABC, i.e., 19,115 spawners. The adopted management measures provide for a projected KRFC spawning escapement of 40,700. For Willapa Bay natural coho in 2018, SOFL = 20,645 (potential spawner abundance forecast) multiplied by 1−FMSY (1−0.74) or 5,368 returning spawners. SABC is 20,645 multiplied by 1−FABC (1−0.70) (FMSY reduced for scientific uncertainty = 0.70) or 6,194. SACL is set equal to SABC, i.e., 6,194 spawners. The adopted management measures provide for a projected Willapa Bay natural coho ocean escapement of 19,000.

    As explained in more detail above under “Stocks of Concern,” fisheries north and south of Cape Falcon are constrained by impact limits necessary to protect ESA-listed salmon stocks including LCR and Puget Sound Chinook salmon, as well as four salmon stocks that are not ESA-listed. For 2018, projected abundance of the three stocks with ACLs (SRFC, KRFC, and Willapa Bay natural coho), in combination with the constraints for ESA-listed and non-ESA-listed stocks, are expected to result in escapements greater than required to meet the ACLs for all three stocks with defined ACLs.

    Emergency Rule

    The Council's final recommendation for the ocean salmon fishing seasons that commence May 1, 2018, deviates from the FMP specifically with regard to the FMP's allocation schedule for coho harvest in the area north of Cape Falcon, between commercial and recreational fisheries. The total allowable catch (TAC) of coho in non-treaty commercial and recreational fisheries north of Cape Falcon is 47,600 marked coho in 2018. At that TAC level, the FMP allocates 25 percent (16 percent marked coho equivalent) of coho to the commercial fishery and 75 percent (84 percent marked coho equivalent) of coho to the recreational fishery. To limit fishery impacts on coho consistent with the adopted spawning escapement and exploitation rates described above, the Council recommended the following allocations of marked coho TAC: 12 percent commercial and 88 percent recreational. Recreational fisheries are more dependent on coho, while commercial fisheries are more dependent on Chinook salmon. Additionally, in mark-selective fisheries, recreational fisheries have a lower impact rate than commercial fisheries due to lower hook and release mortality. This deviation from the FMP allocation schedule should provide fishing opportunity on abundant stocks while limiting fishery impacts on Queets coho.

    The Council considered three alternative fishery management schemes for the fisheries north of Cape Falcon; one of the three alternatives was inconsistent with the FMP coho allocation schedule. Alternative I would have limited the commercial fishery to 12 percent of the north of Falcon marked coho TAC, inconsistent with the FMP allocation schedule between commercial and recreational fisheries; Alternatives II and III would have been consistent with the FMP coho allocation schedule. The Council's state and tribal representatives, and industry advisory committee, supported consideration of these three alternatives. The Council's final recommended management measures are within the range of the three alternatives in terms of impacts to coho and they meet the FMP conservation objectives. The Council voted unanimously to adopt these measures, and members spoke about the need to conserve Queets and Grays Harbor coho while providing harvest opportunity on abundant stocks to provide economic benefit to fishery dependent communities.

    The proposed fisheries are designed to minimize impacts on Queets and Grays Harbor coho and are not expected to jeopardize the capacity of the fishery to produce maximum sustainable yield on a continuing basis. The FMP defines overfishing and overfished status for these stocks. No coho stock would be subject to overfishing under the proposed management measures. Queets coho currently meet the FMP's SDC for an overfished condition based on escapements in 2014, 2015, and 2016. Escapement for Queets coho is not yet available for 2017; however, fisheries in 2017 were managed similar to the Council's proposed 2018 fisheries, to conserve fishery impacts to Queets and other coho stocks.

    The temporary rule for emergency action implements the 2018 annual management measures for the West Coast ocean salmon fisheries for the area from the U.S./Canada border to Cape Falcon, OR, for 180 days, from May 1, 2018, through October 28, 2018 (16 U.S.C. 1855(c)).

    Public Comments

    The Council invited written comments on developing 2018 salmon management measures in their notice announcing public meetings and hearings (82 FR 61268, December 27, 2017). At its March meeting, the Council adopted three alternatives for 2018 salmon management measures having a range of quotas, season structure, and impacts, from the least restrictive in Alternative I to the most restrictive in Alternative III. These alternatives are described in detail in PRE II. Subsequently, comments were taken at three public hearings held in March, staffed by representatives of the Council and NMFS. The Council received several written comments directly. The three public hearings were attended by a total of 229 people; 80 people provided oral comments. Comments came from individual fishers, fishing associations, fish buyers, and processors. Written and oral comments addressed the 2018 management alternatives described in PRE II, and generally expressed preferences for a specific alternative or for particular season structures as well as concern over economic impacts of restricting fisheries for conservation of weak stocks. All comments were included in the Council's briefing book for their April 2018 meeting and were considered by the Council, which includes a representative from NMFS, in developing the recommended management measures transmitted to NMFS on April 19, 2018. In addition to comments collected at the public hearings and those submitted directly to the Council, several people provided oral comments at the April 2018 Council meeting. NMFS also invited comments to be submitted directly to the Council or to NMFS, via the Federal Rulemaking Portal (www.regulations.gov) in a notice (83 FR 3133, January 23, 2018). Twenty comments were submitted via www.regulations.gov; of these, two were relevant to the 2018 ocean salmon fishery.

    Comments on alternatives for fisheries north of Cape Falcon. For fisheries north of Cape Falcon, Alternative I was favored by most commercial and recreational fishery commenters at the public hearing in Westport, WA. A variety of modifications to the alternatives were presented, most designed to maximize fishing opportunity or extend the season in both commercial and recreational fisheries.

    Comments on alternatives for fisheries south of Cape Falcon. Comments supporting a particular alternative south of Cape Falcon varied with geographic location of the meeting or commenter. Those attending the meeting in Coos Bay, OR, largely favored Alternative I for both commercial and recreational fisheries, while those attending the meeting in Salinas, CA, did not express support for any of the commercial fishery alternatives and the few attendees who expressed a preference for any of the recreational alternatives favored Alternative I. Comments on fisheries south of Cape Falcon largely focused on the economic consequences of continuing constrained fisheries.

    Comments on incidental halibut retention in the commercial salmon fisheries. At its March meeting, the Council identified three alternatives for landing limits for incidentally caught halibut that are retained in the salmon troll fishery. The alternatives included: (1) A range of trip limits for halibut possession and landing, (2) two alternatives for the ratio of halibut to Chinook salmon landed in a trip, and (3) the number of halibut that could be retained prior to catching any Chinook salmon. There were a few comments received on halibut and these focused on the ability to access the full halibut allocation as Chinook salmon landing limits will be constrained in many areas (severely constrained salmon fisheries in 2016 resulted in the commercial fleet being unable to access all of the incidental halibut allocation available).

    Comments from treaty tribe representatives. At its March and April meetings, the Council heard testimony from members of several treaty tribes; additional comments were submitted in writing. There was strong concern about environmental conditions in the Klamath and Trinity Rivers that are deleterious to salmon survival, including promoting increased rates of infection by the parasite Ceratonova shasta. Comments were made on the need for sufficient spawning escapement in the Columbia River Basin and in support of successful artificial propogation and reintroduction efforts implemented there by the tribes. Comments were made on the reserved treaty rights of tribes to fish and frustration with insufficient salmon for tribal needs.

    The Council, including the NMFS representative, took all of these comments into consideration. The Council's final recommendation generally includes aspects of all three alternatives, while taking into account the best available scientific information and ensuring that fisheries are consistent with impact limits for ESA-listed stocks, ACLs, PST obligations, and tribal fishing rights. These management tools assist the Council in meeting impact limits on weak stocks. The Council adopted an alternative for incidental halibut retention that is within the range of the alternatives considered, including a per trip landing limit that is lower than was adopted for 2017 salmon fisheries (82 FR 19631, April 28, 2017).

    Management Measures for 2018 Fisheries

    The Council's recommended ocean harvest levels and management measures for the 2018 fisheries are designed to apportion the burden of protecting the weak stocks identified and discussed in PRE I equitably among ocean fisheries and to allow maximum harvest of natural and hatchery runs surplus to inside fishery and spawning needs. NMFS finds the Council's recommendations to be responsive to the goals of the FMP, the requirements of the resource, and the socioeconomic factors affecting resource users. The recommendations are consistent with the requirements of the MSA, U.S. obligations to Indian tribes with federally recognized fishing rights, and U.S. international obligations regarding Pacific salmon. The Council's recommended management measures are consistent with the proposed actions analyzed in NMFS' ESA consultations for those ESA-listed salmon species that may be affected by Council fisheries. Accordingly, NMFS, through this final rule and temporary rule, approves and implements the Council's recommendations.

    North of Cape Falcon, 2018 management measures for non-Indian commercial troll and recreational fisheries have decreased quotas for Chinook salmon compared to 2017, and coho quotas are the same as in 2017.

    Quotas for the 2018 treaty-Indian commercial troll fishery North of Cape Falcon are 40,000 Chinook salmon and 12,500 coho in ocean management areas and Washington State Statistical Area 4B combined. These quotas are unchanged from 2017. The treaty-Indian commercial fisheries include a May and June fishery with a quota of 16,000 Chinook, and a July and August fishery, with quotas of 24,000 Chinook and 12,500 coho.

    Recreational fisheries south of Cape Falcon will be directed primarily at Chinook salmon and are shaped to meet conservation and management goals for KRFC and SRFC spawning escapement. Commercial fisheries south of Cape Falcon will be directed at Chinook and have no coho retention.

    Management Measures for 2019 Fisheries

    The timing of the March and April Council meetings makes it impracticable for the Council to recommend fishing seasons that begin before May 1 of the same year. Therefore, this action also establishes the 2019 fishing seasons that open earlier than May 1. The Council recommended, and NMFS concurs, that the commercial season off Oregon from Cape Falcon to the Oregon/California border, the commercial season off California from Horse Mountain to Point Arena, the recreational season off Oregon from Cape Falcon to Humbug Mountain, and the recreational season off California from Horse Mountain to the U.S./Mexico border will open in 2019 as indicated in the “Season Description” section of this document. At the March 2019 meeting, NMFS may take inseason action, if recommended by the Council or the states, to adjust the commercial and recreational seasons prior to May 1 in the areas off Oregon and California.

    The following sections set out the management regime for the ocean salmon fishery. Open seasons and days are described in Sections 1, 2, and 3 of the 2018 management measures. Inseason closures in the commercial and recreational fisheries are announced on the NMFS hotline and through the U.S. Coast Guard (USCG) Notice to Mariners as described in Section 6. Other inseason adjustments to management measures are also announced on the hotline and through the Notice to Mariners. Inseason actions will also be published in the Federal Register as soon as practicable.

    The following are the management measures recommended by the Council, approved, and implemented here for 2018 and, as specified, for 2019.

    Section 1. Commercial Management Measures for 2018 Ocean Salmon Fisheries

    Parts A, B, and C of this section contain restrictions that must be followed for lawful participation in the fishery. Part A identifies each fishing area and provides the geographic boundaries from north to south, the open seasons for the area, the salmon species allowed to be caught during the seasons, and any other special restrictions effective in the area. Part B specifies minimum size limits. Part C specifies special requirements, definitions, restrictions, and exceptions.

    A. Season Description North of Cape Falcon, OR —U.S./Canada Border to Cape Falcon May 1 through the earlier of June 30 or 16,500 Chinook, no more than 5,200 of which may be caught in the area between the U.S./Canada border and the Queets River and no more than 4,600 of which may be caught in the area between Leadbetter Point and Cape Falcon (C.8). Open seven days per week (C.1). All salmon except coho may be retained (C.4, C.7). Chinook minimum size limit of 28 inches total length (B). See compliance requirements (C.1) and gear restrictions and definitions (C.2, C.3). Chinook landing and possession limits per vessel per landing week (Thursday through Wednesday) are in place: U.S./Canada border to the Queets River: 50 Chinook; Queets River to Leadbetter Point: 100 Chinook; Leadbetter Point to Cape Falcon: 50 Chinook (C.1, C.6).

    When it is projected that approximately 60 percent of the overall Chinook guideline has been landed, or approximately 60 percent of the Chinook subarea guideline has been landed in the area between the U.S./Canada border and the Queets River, or approximately 60 percent of the Chinook subarea guideline has been landed in the area between Leadbetter Point and Cape Falcon, inseason action will be considered to ensure the guideline is not exceeded.

    July 1 through the earlier of September 19 or 11,000 Chinook or 5,600 coho, no more than 4,600 Chinook may be caught in the area between the U.S./Canada border and the Queets River, and no more than 1,300 Chinook may be caught in the area between Leadbetter Point and Cape Falcon (C.8). Open seven days per week. All salmon may be retained, except no chum retention north of Cape Alava, Washington, in August and September (C.4, C.7). Chinook minimum size limit of 28 inches total length. Coho minimum size limit of 16 inches total length (B, C.1). All coho must be marked with a healed adipose fin clip (C.8.e). See compliance requirements (C.1) and gear restrictions and definitions (C.2, C.3). In the area between the U.S./Canada border and the Queets River and the area between Leadbetter Point and Cape Falcon, a landing and possession limit of 50 Chinook per vessel per landing week (Thursday through Wednesday) will be in place (C.1, C.6). Landing and possession limit of 10 coho per vessel per landing week (C.1). When it is projected that approximately 60 percent of the overall Chinook guideline has been landed, or approximately 60 percent of the Chinook subarea guideline has been landed in the area between the U.S./Canada border and the Queets River, or approximately 60 percent of the Chinook subarea guideline has been landed in the area between Leadbetter Point and Cape Falcon, inseason action will be considered to ensure the guideline is not exceeded.

    For all commercial troll fisheries north of Cape Falcon: Mandatory closed areas include: Salmon Troll Yelloweye Rockfish Conservation Area (YRCA), Cape Flattery and Columbia Control Zones, and, beginning August 13, Grays Harbor Control Zone (C.5). Vessels must land and deliver their salmon within 24 hours of any closure of this fishery. Vessels fishing, or in possession of salmon while fishing, north of Leadbetter Point must land and deliver all species of fish within the area and north of Leadbetter Point. Vessels fishing, or in possession of salmon while fishing, south of Leadbetter Point must land and deliver all species of fish within the area and south of Leadbetter Point, except that Oregon permitted vessels may also land all species of fish in Garibaldi, OR. Under state law, vessels must report their catch on a state fish receiving ticket. Oregon State regulations require all fishers landing salmon into Oregon from any fishery between Leadbetter Point, WA, and Cape Falcon, OR, must notify Oregon Department of Fish and Wildlife (ODFW) within one hour of delivery or prior to transport away from the port of landing by either calling (541) 867-0300 ext. 271 or sending notification via email to [email protected] Notification shall include vessel name and number, number of salmon by species, port of landing and location of delivery, and estimated time of delivery. Inseason actions may modify harvest guidelines in later fisheries to achieve or prevent exceeding the overall allowable troll harvest impacts (C.8). Vessels in possession of salmon north of the Queets River may not cross the Queets River line without first notifying WDFW at (360) 249-1215 with area fished, total Chinook, coho, and halibut catch aboard, and destination. Vessels in possession of salmon south of the Queets River may not cross the Queets River line without first notifying WDFW at (360) 249-1215 with area fished, total Chinook, coho, and halibut catch aboard, and destination.

    South of Cape Falcon, OR —Cape Falcon to Humbug Mountain May 4-14, and 19-31; June 4-12, and 16-30; July 5-12, and 16-31; August 3-7, 13-17, and 25-29; September 1-October 31 (C.9.a).

    Open seven days per week. All salmon except coho may be retained (C.4, C.7). Chinook minimum size limit of 28 inches total length (B, C.1). All vessels fishing in the area must land their fish in the state of Oregon. See gear restrictions and definitions (C.2, C.3) and Oregon State regulations for a description of special regulations at the mouth of Tillamook Bay. Beginning September 1, no more than 50 Chinook allowed per vessel per landing week (Thursday through Wednesday); and only open shoreward of the 40 fathom management line beginning October 1.

    In 2019, the season will open March 15 for all salmon except coho. Chinook minimum size limit of 28 inches total length. Gear restrictions same as in 2018. This opening could be modified following Council review at its March 2019 meeting.

    —Humbug Mountain to Oregon/California Border (Oregon KMZ) May 4-14, and 19-31; June 4-12, and 16-30, or a 1,500 Chinook quota; July 5-12, and 16-31, or a 2,000 Chinook quota; August 3-7, 13-17, and 25-29, or a 500 Chinook quota; (C.9.a).

    Open seven days per week. All salmon except coho may be retained (C.4, C.7). Chinook minimum size limit of 28 inches total length (B, C.1). See compliance requirements (C.1) and gear restrictions and definitions (C.2, C.3). Prior to June 1, all salmon caught in this area must be landed and delivered in the state of Oregon. June 4 through August 29 weekly landing and possession limit of 50 Chinook per vessel per landing week (Thursday through Wednesday). Any remaining portion of a monthly Chinook quota may be transferred inseason on an impact neutral basis to the next open quota period (C.8.b). All vessels fishing in this area from June through August must land and deliver all salmon within this area or into Port Orford, within 24 hours of any closure of this fishery, and prior to fishing outside of this area. For all quota managed seasons, Oregon state regulations require fishers to notify ODFW within one hour of landing and prior to transport away from the port of landing by calling (541) 867-0300 extension 252 or sending notification via email to [email protected], with vessel name and number, number of salmon by species, location of delivery, and estimated time of delivery. In 2019, the season will open March 15 for all salmon except coho. Chinook minimum size limit of 28 inches total length. Gear restrictions same as in 2018. This opening could be modified following Council review at its March 2019 meeting.

    —Oregon/California Border to Humboldt South Jetty (California KMZ) May 1 through the earlier of May 29, or a 3,600 Chinook quota; June 1 through the earlier of June 30, or a 4,000 Chinook quota; July 1 through the earlier of July 31, or a 4,000 Chinook quota; August 3 through the earlier of August 31, or a 4,000 Chinook quota (C.9.b).

    Open five days per week (Friday through Tuesday). All salmon except coho may be retained (C.4, C.7). Chinook minimum size limit of 26 inches total length (B, C.1). Landing and possession limit of 20 Chinook per vessel per day (C.8.f). Any remaining portion of a monthly Chinook quota may be transferred inseason on an impact neutral basis to the next open quota period (C.8.g). See compliance requirements (C.1) and gear restrictions and definitions (C.2, C.3). All fish caught in this area must be landed within the area and within 24 hours of any closure of the fishery and prior to fishing outside the area (C.10). Klamath Control Zone closed (C.5.e). See California State regulations for additional closures adjacent to the Smith and Klamath Rivers.

    —Humboldt South Jetty to Horse Mt. Closed.

    For all commercial fisheries south of Cape Falcon: When the fishery is closed between the Oregon/California border and Humbug Mountain and open to the south, vessels with fish on board caught in the open area off California may seek temporary mooring in Brookings, OR, prior to landing in California, only if such vessels first notify the Chetco River Coast Guard Station via VHF channel 22A between the hours of 0500 and 2200 and provide the vessel name, number of fish on board, and estimated time of arrival (C.6).

    —Horse Mt. to Point Arena (Fort Bragg) July 26-31; August 3-29; September 1-30 (C.9.b).

    Open seven days per week. All salmon except coho may be retained (C.4, C.7). Chinook minimum size limit of 26 inches total length (B, C.1). See compliance requirements (C.1) and gear restrictions and definitions (C.2, C.3). All salmon must be landed in California. All salmon caught in the area prior to September 1 must be landed and offloaded no later than 11:59 p.m., August 30 (C.6). When the California KMZ fishery is open, all fish caught in the area must be landed south of Horse Mountain until the California KMZ fishery has been closed for at least 24 hours (C.6). During September, all fish must be landed north of Point Arena (C.6). In 2019, the season will open April 16-30 for all salmon except coho, with a 27 inch Chinook minimum size limit and the same gear restrictions as in 2018. All salmon caught in the area must be landed in the area. This opening could be modified following Council review at its March 2019 meeting.

    —Point Arena to Pigeon Point (San Francisco) July 26-31; August 3-29; September 1-30 (C.9.b).

    Open seven days per week. All salmon except coho may be retained (C.4, C.7). Chinook minimum size limit of 26 inches total length (B, C.1). See compliance requirements (C.1) and gear restrictions and definitions (C.2, C.3). All salmon must be landed in California. All salmon caught in the area prior to September 1 must be landed and offloaded no later than 11:59 p.m., August 30 (C.6). When the California KMZ fishery is open, all fish caught in the area must be landed south of Horse Mountain until the California KMZ fishery has been closed for at least 24 hours (C.6). During September, all fish must be landed south of Point Arena (C.6).

    —Point Reyes to Point San Pedro (Fall Area Target Zone) October 1-5 and 8-12.

    Open five days per week, Monday through Friday. All salmon except coho may be retained (C.4, C.7). Chinook minimum size limit of 26 inches total length (B, C.1). All salmon caught in this area must be landed between Point Arena and Pigeon Point (C.6). See compliance requirements (C.1) and gear restrictions and definitions (C.2, C.3).

    —Pigeon Point to U.S./Mexico Border (Monterey) May 1-7; June 19-30 (C.9.b).

    Open seven days per week. All salmon except coho may be retained (C.4, C.7). Chinook minimum size limit of 26 inches total length (B, C.1). See compliance requirements (C.1) and gear restrictions and definitions (C.2, C.3). All fish must be landed in California. All salmon caught in the area must be landed and offloaded no later than 11:59 p.m., July 15 (C.6). When the California KMZ fishery is open, all fish caught in the area must be landed south of Horse Mountain until the California KMZ fishery has been closed for at least 24 hours (C.6).

    For all commercial troll fisheries in California: California State regulations require all salmon be made available to a California Department of Fish and Wildlife (CDFW) representative for sampling immediately at port of landing. Any person in possession of a salmon with a missing adipose fin, upon request by an authorized agent or employee of the CDFW, shall immediately relinquish the head of the salmon to the state (California Fish and Game Code § 8226).

    B. Minimum Size (Inches) (See C.1) Area
  • (when open)
  • Chinook Total length Head-off Coho Total length Head-off Pink
    North of Cape Falcon, OR 28.0 21.5 16 12 None. Cape Falcon to Humbug Mountain 28.0 21.5 None. Humbug Mountain to OR/CA border 28.0 21.5 None. OR/CA border to Humboldt South Jetty 26.0 19.5 26. Horse Mountain to Point Arena 26.0 19.5 26. Point Arena to Pigeon Point 26.0 19.5 26. Pigeon Point to U.S./Mexico border 26.0 19.5 26. Metric equivalents: 28.0 in = 71.1 cm, 26.0 in = 66.0 cm, 21.5 in = 54.6 cm, 19.5 in = 49.5 cm, 16.0 in = 40.6 cm, and 12.0 in = 30.5 cm.
    C. Requirements, Definitions, Restrictions, or Exceptions C.1. Compliance With Minimum Size or Other Special Restrictions

    All salmon on board a vessel must meet the minimum size, landing/possession limit, or other special requirements for the area being fished and the area in which they are landed if the area is open or has been closed less than 48 hours for that species of salmon. Salmon may be landed in an area that has been closed for a species of salmon more than 48 hours only if they meet the minimum size, landing/possession limit, or other special requirements for the area in which they were caught. Salmon may not be filleted prior to landing.

    Any person who is required to report a salmon landing by applicable state law must include on the state landing receipt for that landing both the number and weight of salmon landed by species. States may require fish landing/receiving tickets be kept on board the vessel for 90 days or more after landing to account for all previous salmon landings.

    C.2. Gear Restrictions

    a. Salmon may be taken only by hook and line using single point, single shank, barbless hooks.

    b. Cape Falcon, Oregon, to the Oregon/California border: No more than 4 spreads are allowed per line.

    c. Oregon/California border to U.S./Mexico border: No more than 6 lines are allowed per vessel, and barbless circle hooks are required when fishing with bait by any means other than trolling.

    C.3. Gear Definitions

    Trolling defined: Fishing from a boat or floating device that is making way by means of a source of power, other than drifting by means of the prevailing water current or weather conditions.

    Troll fishing gear defined: One or more lines that drag hooks behind a moving fishing vessel engaged in trolling. In that portion of the fishery management area off Oregon and Washington, the line or lines must be affixed to the vessel and must not be intentionally disengaged from the vessel at any time during the fishing operation.

    Spread defined: A single leader connected to an individual lure and/or bait.

    Circle hook defined: A hook with a generally circular shape and a point which turns inward, pointing directly to the shank at a 90′ angle.

    C.4. Vessel Operation in Closed Areas With Salmon on Board

    a. Except as provided under C.4.b below, it is unlawful for a vessel to have troll or recreational gear in the water while in any area closed to fishing for a certain species of salmon, while possessing that species of salmon; however, fishing for species other than salmon is not prohibited if the area is open for such species, and no salmon are in possession.

    b. When Genetic Stock Identification (GSI) samples will be collected in an area closed to commercial salmon fishing, the scientific research permit holder shall notify NOAA Office of Law Enforcement, USCG, CDFW, WDFW, and Oregon State Police at least 24 hours prior to sampling and provide the following information: The vessel name, date, location and time collection activities will be done. Any vessel collecting GSI samples in a closed area shall not possess any salmon other than those from which GSI samples are being collected. Salmon caught for collection of GSI samples must be immediately released in good condition after collection of samples.

    C.5. Control Zone Definitions

    a. Cape Flattery Control Zone—The area from Cape Flattery (48°23′00″ N lat.) to the northern boundary of the U.S. EEZ; and the area from Cape Flattery south to Cape Alava (48°10′00″ N lat.) and east of 125°05′00″ W long.

    b. Salmon Troll YRCA (50 CFR 660.70(c))—The area in Washington Marine Catch Area 3 from 48°00.00′ N lat.; 125°14.00′ W long. to 48°02.00′ N lat.; 125°14.00′ W long. to 48°02.00′ N lat.; 125°16.50′ W long. to 48°00.00′ N lat.; 125°16.50′ W long. and connecting back to 48°00.00′ N lat.; 125°14.00′ W long.

    c. Grays Harbor Control Zone—The area defined by a line drawn from the Westport Lighthouse (46°53′18″ N lat., 124°07′01″ W long.) to Buoy #2 (46°52′42″ N lat., 124°12′42″ W long.) to Buoy #3 (46°55′00″ N lat., 124°14′48″ W long.) to the Grays Harbor north jetty (46°55′36″ N lat., 124°10′51″ W long.).

    d. Columbia Control Zone—An area at the Columbia River mouth, bounded on the west by a line running northeast/southwest between the red lighted Buoy #4 (46°13′35″ N lat., 124°06′50″ W long.) and the green lighted Buoy #7 (46°15′09″ N lat., 124°06′16″ W long.); on the east, by the Buoy #10 line which bears north/south at 357° true from the south jetty at 46°14′00″ N lat., 124°03′07″ W long. to its intersection with the north jetty; on the north, by a line running northeast/southwest between the red lighted Buoy #4 and tip of the south jetty (46°14′03″ N lat., 124°04′05″ W long.), and then along the south jetty to the point of intersection with the Buoy #10 line.

    e. Klamath Control Zone—The ocean area at the Klamath River mouth bounded on the north by 41°38′48″ N lat. (approximately 6 nautical miles north of the Klamath River mouth); on the west by 124°23′00″ W long. (approximately 12 nautical miles off shore); and on the south by 41°26′48″ N lat. (approximately 6 nautical miles south of the Klamath River mouth).

    f. Waypoints for the 40 fathom regulatory line from Cape Falcon to Humbug Mountain (50 CFR 660.71(k)).

    (12) 45°46.00′ N lat., 124°04.49′ W long.; (13) 45°44.34′ N lat., 124°05.09′ W long.; (14) 45°40.64′ N lat., 124°04.90′ W long.; (15) 45°33.00′ N lat., 124°04.46′ W long.; (16) 45°32.27′ N lat., 124°04.74′ W long.; (17) 45°29.26′ N lat., 124°04.22′ W long.; (18) 45°20.25′ N lat., 124°04.67′ W long.; (19) 45°19.99′ N lat., 124°04.62′ W long.; (20) 45°17.50′ N lat., 124°04.91′ W long.; (21) 45°11.29′ N lat., 124°05.20′ W long.; (22) 45°05.80′ N lat., 124°05.40′ W long.; (23) 45°05.08′ N lat., 124°05.93′ W long.; (24) 45°03.83′ N lat., 124°06.47′ W long.; (25) 45°01.70′ N lat., 124°06.53′ W long.; (26) 44°58.75′ N lat., 124°07.14′ W long.; (27) 44°51.28′ N lat., 124°10.21′ W long.; (28) 44°49.49′ N lat., 124°10.90′ W long.; (29) 44°44.96′ N lat., 124°14.39′ W long.; (30) 44°43.44′ N lat., 124°14.78′ W long.; (31) 44°42.26′ N lat., 124°13.81′ W long.; (32) 44°41.68′ N lat., 124°15.38′ W long.; (33) 44°34.87′ N lat., 124°15.80′ W long.; (34) 44°33.74′ N lat., 124°14.44′ W long.; (35) 44°27.66′ N lat., 124°16.99′ W long.; (36) 44°19.13′ N lat., 124°19.22′ W long.; (37) 44°15.35′ N lat., 124°17.38′ W long.; (38) 44°14.38′ N lat., 124°17.78′ W long.; (39) 44°12.80′ N lat., 124°17.18′ W long.; (40) 44°09.23′ N lat., 124°15.96′ W long.; (41) 44°08.38′ N lat., 124°16.79′ W long.; (42) 44°08.30′ N lat., 124°16.75′ W long.; (43) 44°01.18′ N lat., 124°15.42′ W long.; (44) 43°51.61′ N lat., 124°14.68′ W long.; (45) 43°42.66′ N lat., 124°15.46′ W long.; (46) 43°40.49′ N lat., 124°15.74′ W long.; (47) 43°38.77′ N lat., 124°15.64′ W long.; (48) 43°34.52′ N lat., 124°16.73′ W long.; (49) 43°28.82′ N lat., 124°19.52′ W long.; (50) 43°23.91′ N lat., 124°24.28′ W long.; (51) 43°20.83′ N lat., 124°26.63′ W long.; (52) 43°17.96′ N lat., 124°28.81′ W long.; (53) 43°16.75′ N lat., 124°28.42′ W long.; (54) 43°13.97′ N lat., 124°31.99′ W long.; (55) 43°13.72′ N lat., 124°33.25′ W long.; (56) 43°12.26′ N lat., 124°34.16′ W long.; (57) 43°10.96′ N lat., 124°32.33′ W long.; (58) 43°05.65′ N lat., 124°31.52′ W long.; (59) 42°59.66′ N lat., 124°32.58′ W long.; (60) 42°54.97′ N lat., 124°36.99′ W long.; (61) 42°53.81′ N lat., 124°38.57′ W long.; (62) 42°50.00′ N lat., 124°39.68′ W long.; (63) 42°49.13′ N lat., 124°39.70′ W long.; (64) 42°46.47′ N lat., 124°38.89′ W long.; (65) 42°45.74′ N lat., 124°38.86′ W long.; (66) 42°44.79′ N lat., 124°37.96′ W long.; (67) 42°45.01′ N lat., 124°36.39′ W long.; (68) 42°44.14′ N lat., 124°35.17′ W long.; (69) 42°42.14′ N lat., 124°32.82′ W long.; (70) 42°40.50′ N lat., 124°31.98′ W long. C.6. Notification When Unsafe Conditions Prevent Compliance With Regulations

    If prevented by unsafe weather conditions or mechanical problems from meeting special management area landing restrictions, vessels must notify the USCG and receive acknowledgment of such notification prior to leaving the area. This notification shall include the name of the vessel, port where delivery will be made, approximate number of salmon (by species) on board, the estimated time of arrival, and the specific reason the vessel is not able to meet special management area landing restrictions.

    In addition to contacting the USCG, vessels fishing south of the Oregon/California border must notify CDFW within one hour of leaving the management area by calling (800) 889-8346 and providing the same information as reported to the USCG. All salmon must be offloaded within 24 hours of reaching port.

    C.7. Incidental Halibut Harvest

    During authorized periods, the operator of a vessel that has been issued an incidental halibut harvest license by the International Pacific Halibut Commission (IPHC) may retain Pacific halibut caught incidentally in Area 2A while trolling for salmon. Halibut retained must be no less than 32 inches in total length, measured from the tip of the lower jaw with the mouth closed to the extreme end of the middle of the tail, and must be landed with the head on. When halibut are caught and landed incidental to commercial salmon fishing by an IPHC license holder, any person who is required to report the salmon landing by applicable state law must include on the state landing receipt for that landing both the number of halibut landed, and the total dressed, head-on weight of halibut landed, in pounds, as well as the number and species of salmon landed.

    License applications for incidental harvest must be obtained from the IPHC (phone: 206-634-1838). Applicants must apply prior to mid-March 2019 for 2019 permits (exact date to be set by the IPHC in early 2019). Incidental harvest is authorized only during April, May, and June of the 2018 troll seasons and after June 30 in 2018 if quota remains and if announced on the NMFS hotline (phone: (800) 662-9825 or (206) 526-6667). WDFW, ODFW, and CDFW will monitor landings. If the landings are projected to exceed the IPHC's 35,620 pound preseason allocation or the total Area 2A non-Indian commercial halibut allocation, NMFS will take inseason action to prohibit retention of halibut in the non-Indian salmon troll fishery.

    May 1, 2018, until the end of the 2018 salmon troll season, and April 1-30, 2019, license holders may land or possess no more than one Pacific halibut per each two Chinook, except one Pacific halibut may be possessed or landed without meeting the ratio requirement, and no more than 25 halibut may be possessed or landed per trip. Pacific halibut retained must be no less than 32 inches in total length (with head on). IPHC license holders must comply with all applicable IPHC regulations.

    Incidental Pacific halibut catch regulations in the commercial salmon troll fishery adopted for 2018, prior to any 2018 inseason action, will be in effect when incidental Pacific halibut retention opens on April 1, 2019, unless otherwise modified by inseason action at the March 2019 Council meeting.

    a. “C-shaped” YRCA is an area to be voluntarily avoided for salmon trolling. NMFS and the Council request salmon trollers voluntarily avoid this area in order to protect yelloweye rockfish. The area is defined in the Pacific Council Halibut Catch Sharing Plan in the North Coast subarea (Washington marine area 3), with the following coordinates in the order listed:

    48°18′ N lat.; 125°18′ W long.; 48°18′ N lat.; 124°59′ W long.; 48°11′ N lat.; 124°59′ W long.; 48°11′ N lat.; 125°11′ W long.; 48°04′ N lat.; 125°11′ W long.; 48°04′ N lat.; 124°59′ W long.; 48°00′ N lat.; 124°59′ W long.; 48°00′ N lat.; 125°18′ W long.; and connecting back to 48°18′ N lat.; 125°18′ W long. C.8. Inseason Management

    In addition to standard inseason actions or modifications already noted under the season description, the following inseason guidance applies:

    a. Chinook remaining from the May through June non-Indian commercial troll harvest guideline north of Cape Falcon may be transferred to the July through September harvest guideline if the transfer would not result in exceeding preseason impact expectations on any stocks.

    b. Chinook remaining from the June or July non-Indian commercial troll quotas in the Oregon KMZ may be transferred to the Chinook quota for the next open quota period if the transfer would not result in exceeding preseason impact expectations on any stocks.

    c. NMFS may transfer salmon between the recreational and commercial fisheries north of Cape Falcon if there is agreement among the areas' representatives on the Salmon Advisory Subpanel (SAS), and if the transfer would not result in exceeding preseason impact expectations on any stocks.

    d. At the March 2019 meeting, the Council will consider inseason recommendations for special regulations for any experimental fisheries (proposals must meet Council protocol and be received in November 2018).

    e. If retention of unmarked coho (adipose fin intact) is permitted by inseason action, the allowable coho quota will be adjusted to ensure preseason projected impacts on all stocks is not exceeded.

    f. Landing limits may be modified inseason to sustain season length and keep harvest within overall quotas.

    g. Chinook remaining from the remaining May, June, and/or July non-Indian commercial troll quotas in the California KMZ may be transferred to the Chinook quota for the next open period if the transfer would not result in exceeding preseason impact expectations on any stocks.

    C.9. State Waters Fisheries

    Consistent with Council management objectives:

    a. The State of Oregon may establish additional late-season fisheries in state waters.

    b. The State of California may establish limited fisheries in selected state waters. Check state regulations for details.

    C.10. For the Purposes of California Fish and Game Code, Section 8232.5, the Definition of the KMZ for the Ocean Salmon Season Shall Be That Area From Humbug Mountain, Oregon, to Horse Mountain, California. Section 2. Recreational Management Measures for 2018 Ocean Salmon Fisheries

    Parts A, B, and C of this section contain restrictions that must be followed for lawful participation in the fishery. Part A identifies each fishing area and provides the geographic boundaries from north to south, the open seasons for the area, the salmon species allowed to be caught during the seasons, and any other special restrictions effective in the area. Part B specifies minimum size limits. Part C specifies special requirements, definitions, restrictions and exceptions.

    A. Season Description North of Cape Falcon, OR —U.S./Canada border to Cape Alava (Neah Bay Subarea)

    June 23 through earlier of September 3 or 4,370 marked coho subarea quota with a subarea guideline of 4,900 Chinook (C.5).

    Open seven days per week. All salmon may be retained, except no chum beginning August 1; two salmon per day, no more than one of which may be a Chinook. All coho must be marked with a healed adipose fin clip (C.1). Beginning August 1, Chinook non-retention east of the Bonilla-Tatoosh line (C.4.a) during Council managed ocean fishery. See gear restrictions and definitions (C.2, C.3).

    —Cape Alava to Queets River (La Push Subarea)

    June 23 through earlier of September 3 or 1,090 marked coho subarea quota with a subarea guideline of 1,500 Chinook (C.5).

    Open seven days per week. All salmon may be retained, two salmon per day. All coho must be marked with a healed adipose fin clip (C.1). See gear restrictions and definitions (C.2, C.3).

    —Queets River to Leadbetter Point (Westport Subarea)

    July 1 through earlier of September 3 or 15,540 marked coho subarea quota with a subarea guideline of 13,100 Chinook (C.5).

    Open five days per week (Sunday through Thursday). All salmon may be retained; two salmon per day, no more than one of which may be a Chinook. All coho must be marked with a healed adipose fin clip (C.1). See gear restrictions and definitions (C.2, C.3). Grays Harbor Control Zone closed beginning August 13 (C.4.b).

    —Leadbetter Point to Cape Falcon (Columbia River Subarea)

    June 23 through earlier of September 3 or 21,000 marked coho subarea quota with a subarea guideline of 8,000 Chinook (C.5).

    Open seven days per week. All salmon may be retained; two salmon per day, no more than one of which may be a Chinook. All coho must be marked with a healed adipose fin clip (C.1). See gear restrictions and definitions (C.2, C.3). Columbia Control Zone closed (C.4.c).

    For all recreational fisheries north of Cape Falcon: Inseason management may be used to sustain season length and keep harvest within the overall Chinook and coho recreational TACs for north of Cape Falcon (C.5).

    South of Cape Falcon, OR —Cape Falcon to Humbug Mountain.

    March 15 through October 31 (C.6), except as provided below during the mark-selective coho fishery and the non-mark-selective coho fishery (C.5).

    Open seven days per week. All salmon except coho may be retained; two salmon per day (C.1). Chinook minimum size limit of 24 inches total length (B). See gear restrictions and definitions (C.2, C.3). October 1-31: The fishery is only open shoreward of the 40 fathom management line.

    In 2019, the season will open March 15 for all salmon except coho; two salmon per day (C.1). Chinook minimum size limit of 24 inches total length (B); and the same gear restrictions as in 2018 (C.2, C.3). This opening could be modified following Council review at the March 2019 Council meeting.

    —Cape Falcon to Humbug Mountain

    Mark-selective coho fishery: June 30 through the earlier of September 3, or a landed catch of 35,000 marked coho (C.6). Open seven days per week. All salmon may be retained, except all retained coho must be marked with a healed adipose fin clip, two salmon per day (C.1). See minimum size limits (B). See gear restrictions and definitions (C.2, C.3, C.5.e).

    Non-mark-selective coho fishery: September 7-8, and each Friday through Saturday thereafter through the earlier of September 29 or a landed catch of a 3,500 non-mark-selective coho quota (C.6). Open days may be modified inseason. All salmon may be retained, two salmon per day (C.1). See minimum size limits (B). See gear restrictions and definitions (C.2, C.3).

    —Humbug Mountain to Oregon/California border (Oregon KMZ)

    May 19-August 26 (C.6).

    Open seven days per week. All salmon except coho may be retained, two salmon per day (C.1). Chinook minimum size limit of 24 inches total length (B). See gear restrictions and definitions (C.2, C.3).

    For recreational fisheries from Cape Falcon to Humbug Mountain: Fishing in the Stonewall Bank YRCA restricted to trolling only on days the all depth recreational halibut fishery is open (call the halibut fishing hotline (800) 662-9825 for specific dates) (C.3.b, C.4.d).

    —Oregon/California Border to Horse Mountain (California KMZ)

    June 1-September 3 (C.6).

    Open seven days per week. All salmon except coho may be retained, two salmon per day (C.1). Chinook minimum size limit of 20 inches total length (B). See gear restrictions and definitions (C.2, C.3). Klamath Control Zone closed in August (C.4.e). See California State regulations for additional closures adjacent to the Smith, Eel, and Klamath Rivers.

    —Horse Mountain to Point Arena (Fort Bragg) June 17-October 31 (C.6).

    Open seven days per week. All salmon except coho may be retained; two salmon per day (C.1). Chinook minimum size limit of 20 inches total length (B). See gear restrictions and definitions (C.2, C.3).

    In 2019, season opens April 6 for all salmon except coho, two salmon per day (C.1). Chinook minimum size limit of 20 inches total length (B); and the same gear restrictions as in 2018 (C.2, C.3). This opening could be modified following Council review at the March 2019 Council meeting.

    —Point Arena to Pigeon Point (San Francisco) June 17-October 31 (C.6).

    Open seven days per week. All salmon except coho may be retained, two salmon per day (C.1). Chinook minimum size limit of 20 inches total length (B). See gear restrictions and definitions (C.2, C.3).

    In 2019, season opens April 6 for all salmon except coho; two salmon per day (C.1). Chinook minimum size limit of 24 inches total length (B); and the same gear restrictions as in 2018 (C.2, C.3). This opening could be modified following Council review at the March 2019 Council meeting.

    —Pigeon Point to U.S./Mexico border (Monterey) April 7-July 2 (C.6).

    Open seven days per week. All salmon except coho may be retained; two salmon per day (C.1). Chinook minimum size limit of 24 inches total length (B). See gear restrictions and definitions (C.2, C.3).

    In 2019, season opens April 6 for all salmon except coho; two salmon per day (C.1). Chinook minimum size limit of 24 inches total length (B); and the same gear restrictions as in 2018 (C.2, C.3). This opening could be modified following Council review at the March 2019 Council meeting.

    California State regulations require all salmon be made available to a CDFW representative for sampling immediately at port of landing. Any person in possession of a salmon with a missing adipose fin, upon request by an authorized agent or employee of the CDFW, shall immediately relinquish the head of the salmon to the state (California Code of Regulations Title 14 Section 1.73).

    B. Minimum Size (Total Length in Inches) (See C.1) Area
  • (when open)
  • Chinook Coho Pink
    North of Cape Falcon 24.0 16.0 None. Cape Falcon to Humbug Mountain 24.0 16.0 None. Humbug Mt. to OR/CA border 24.0 16.0 None. OR/CA border to Horse Mountain 20.0 20.0. Horse Mountain to Point Arena 20.0 20.0. Point Arena to Pigeon Point 20.0 20.0. Pigeon Point to U.S./Mexico border 24.0 24.0. Metric equivalents: 24.0 in = 61.0 cm, 20.0 in = 50.8 cm, and 16.0 in = 40.6 cm.
    C. Requirements, Definitions, Restrictions, or Exceptions C.1. Compliance With Minimum Size and Other Special Restrictions

    All salmon on board a vessel must meet the minimum size or other special requirements for the area being fished and the area in which they are landed if that area is open. Salmon may be landed in an area that is closed only if they meet the minimum size or other special requirements for the area in which they were caught. Salmon may not be filleted prior to landing.

    Ocean Boat Limits: Off the coast of Washington, Oregon, and California, each fisher aboard a vessel may continue to use angling gear until the combined daily limits of Chinook and coho salmon for all licensed and juvenile anglers aboard have been attained (additional state restrictions may apply).

    C.2. Gear Restrictions

    Salmon may be taken only by hook and line using barbless hooks. All persons fishing for salmon, and all persons fishing from a boat with salmon on board, must meet the gear restrictions listed below for specific areas or seasons.

    a. U.S./Canada border to Point Conception, California: No more than one rod may be used per angler; and no more than two single point, single shank barbless hooks are required for all fishing gear.

    b. Horse Mountain, California, to Point Conception, California: Single point, single shank, barbless circle hooks (see gear definitions below) are required when fishing with bait by any means other than trolling, and no more than two such hooks shall be used. When angling with two hooks, the distance between the hooks must not exceed five inches when measured from the top of the eye of the top hook to the inner base of the curve of the lower hook, and both hooks must be permanently tied in place (hard tied). Circle hooks are not required when artificial lures are used without bait.

    C.3. Gear Definitions

    a. Recreational fishing gear defined: Off Oregon and Washington, angling tackle consists of a single line that must be attached to a rod and reel held by hand or closely attended; the rod and reel must be held by hand while playing a hooked fish. No person may use more than one rod and line while fishing off Oregon or Washington. Off California, the line must be attached to a rod and reel held by hand or closely attended; weights directly attached to a line may not exceed four pounds (1.8 kg). While fishing off California north of Point Conception, no person fishing for salmon, and no person fishing from a boat with salmon on board, may use more than one rod and line. Fishing includes any activity which can reasonably be expected to result in the catching, taking, or harvesting of fish.

    b. Trolling defined: Angling from a boat or floating device that is making way by means of a source of power, other than drifting by means of the prevailing water current or weather conditions.

    c. Circle hook defined: A hook with a generally circular shape and a point which turns inward, pointing directly to the shank at a 90° angle.

    C.4. Control Zone Definitions

    a. The Bonilla-Tatoosh Line: A line running from the western end of Cape Flattery to Tatoosh Island Lighthouse (48°23′30″ N lat., 124°44′12″ W long.) to the buoy adjacent to Duntze Rock (48°24′37″ N lat., 124°44′37″ W long.), then in a straight line to Bonilla Point (48°35′39″ N lat., 124°42′58″ W long.) on Vancouver Island, British Columbia.

    b. Grays Harbor Control Zone—The area defined by a line drawn from the Westport Lighthouse (46°53′18″ N lat., 124°07′01″ W long.) to Buoy #2 (46°52′42″ N lat., 124°12′42″ W long.) to Buoy #3 (46°55′00″ N lat., 124°14′48″ W long.) to the Grays Harbor north jetty (46°55′36″ N lat., 124°10′51″ W long.).

    c. Columbia Control Zone: An area at the Columbia River mouth, bounded on the west by a line running northeast/southwest between the red lighted Buoy #4 (46°13′35″ N lat., 124°06′50″ W long.) and the green lighted Buoy #7 (46°15′09″ N lat., 124°06′16″ W long.); on the east, by the Buoy #10 line which bears north/south at 357° true from the south jetty at 46°14′00″ N lat., 124°03′07″ W long. to its intersection with the north jetty; on the north, by a line running northeast/southwest between the green lighted Buoy #7 to the tip of the north jetty (46°15′48″ N lat., 124°05′20″ W long. and then along the north jetty to the point of intersection with the Buoy #10 line; and on the south, by a line running northeast/southwest between the red lighted Buoy #4 and tip of the south jetty (46°14′03″ N lat., 124°04′05″ W long.), and then along the south jetty to the point of intersection with the Buoy #10 line.

    d. Stonewall Bank YRCA: The area defined by the following coordinates in the order listed:

    44°37.46′ N lat.; 124°24.92′ W long. 44°37.46′ N lat.; 124°23.63′ W long. 44°28.71′ N lat.; 124°21.80′ W long. 44°28.71′ N lat.; 124°24.10′ W long. 44°31.42′ N lat.; 124°25.47′ W long. and connecting back to 44°37.46′ N lat.; 124°24.92′ W long.

    e. Klamath Control Zone: The ocean area at the Klamath River mouth bounded on the north by 41°38′48″ N lat. (approximately 6 nautical miles north of the Klamath River mouth); on the west by 124°23′00″ W long. (approximately 12 nautical miles off shore); and, on the south by 41°26′48″ N lat. (approximately 6 nautical miles south of the Klamath River mouth).

    f. Waypoints for the 40 fathom regulatory line from Cape Falcon to Humbug Mountain (50 CFR 660.71(k)).

    (12) 45°46.00′ N lat., 124°04.49′ W long.; (13) 45°44.34′ N lat., 124°05.09′ W long.; (14) 45°40.64′ N lat., 124°04.90′ W long.; (15) 45°33.00′ N lat., 124°04.46′ W long.; (16) 45°32.27′ N lat., 124°04.74′ W long.; (17) 45°29.26′ N lat., 124°04.22′ W long.; (18) 45°20.25′ N lat., 124°04.67′ W long.; (19) 45°19.99′ N lat., 124°04.62′ W long.; (20) 45°17.50′ N lat., 124°04.91′ W long.; (21) 45°11.29′ N lat., 124°05.20′ W long.; (22) 45°05.80′ N lat., 124°05.40′ W long.; (23) 45°05.08′ N lat., 124°05.93′ W long.; (24) 45°03.83′ N lat., 124°06.47′ W long.; (25) 45°01.70′ N lat., 124°06.53′ W long.; (26) 44°58.75′ N lat., 124°07.14′ W long.; (27) 44°51.28′ N lat., 124°10.21′ W long.; (28) 44°49.49′ N lat., 124°10.90′ W long.; (29) 44°44.96′ N lat., 124°14.39′ W long.; (30) 44°43.44′ N lat., 124°14.78′ W long.; (31) 44°42.26′ N lat., 124°13.81′ W long.; (32) 44°41.68′ N lat., 124°15.38′ W long.; (33) 44°34.87′ N lat., 124°15.80′ W long.; (34) 44°33.74′ N lat., 124°14.44′ W long.; (35) 44°27.66′ N lat., 124°16.99′ W long.; (36) 44°19.13′ N lat., 124°19.22′ W long.; (37) 44°15.35′ N lat., 124°17.38′ W long.; (38) 44°14.38′ N lat., 124°17.78′ W long.; (39) 44°12.80′ N lat., 124°17.18′ W long.; (40) 44°09.23′ N lat., 124°15.96′ W long.; (41) 44°08.38′ N lat., 124°16.79′ W long.; (42) 44°08.30′ N lat., 124°16.75′ W long.; (43) 44°01.18′ N lat., 124°15.42′ W long.; (44) 43°51.61′ N lat., 124°14.68′ W long.; (45) 43°42.66′ N lat., 124°15.46′ W long.; (46) 43°40.49′ N lat., 124°15.74′ W long.; (47) 43°38.77′ N lat., 124°15.64′ W long.; (48) 43°34.52′ N lat., 124°16.73′ W long.; (49) 43°28.82′ N lat., 124°19.52′ W long.; (50) 43°23.91′ N lat., 124°24.28′ W long.; (51) 43°20.83′ N lat., 124°26.63′ W long.; (52) 43°17.96′ N lat., 124°28.81′ W long.; (53) 43°16.75′ N lat., 124°28.42′ W long.; (54) 43°13.97′ N lat., 124°31.99′ W long.; (55) 43°13.72′ N lat., 124°33.25′ W long.; (56) 43°12.26′ N lat., 124°34.16′ W long.; (57) 43°10.96′ N lat., 124°32.33′ W long.; (58) 43°05.65′ N lat., 124°31.52′ W long.; (59) 42°59.66′ N lat., 124°32.58′ W long.; (60) 42°54.97′ N lat., 124°36.99′ W long.; (61) 42°53.81′ N lat., 124°38.57′ W long.; (62) 42°50.00′ N lat., 124°39.68′ W long.; (63) 42°49.13′ N lat., 124°39.70′ W long.; (64) 42°46.47′ N lat., 124°38.89′ W long.; (65) 42°45.74′ N lat., 124°38.86′ W long.; (66) 42°44.79′ N lat., 124°37.96′ W long.; (67) 42°45.01′ N lat., 124°36.39′ W long.; (68) 42°44.14′ N lat., 124°35.17′ W long.; (69) 42°42.14′ N lat., 124°32.82′ W long.; (70) 42°40.50′ N lat., 124°31.98′ W long. C.5. Inseason Management

    Regulatory modifications may become necessary inseason to meet preseason management objectives such as quotas, harvest guidelines, and season duration. In addition to standard inseason actions or modifications already noted under the season description, the following inseason guidance applies:

    a. Actions could include modifications to bag limits, or days open to fishing, or extensions or reductions in areas open to fishing.

    b. Coho may be transferred inseason among recreational subareas north of Cape Falcon to help meet the recreational season duration objectives (for each subarea) after conferring with representatives of the affected ports and the Council's SAS recreational representatives north of Cape Falcon, and if the transfer would not result in exceeding preseason impact expectations on any stocks.

    c. Chinook and coho may be transferred between the recreational and commercial fisheries north of Cape Falcon if there is agreement among the representatives of the SAS, and if the transfer would not result in exceeding preseason impact expectations on any stocks.

    d. Fishery managers may consider inseason action modifying regulations restricting retention of unmarked (adipose fin intact) coho. To remain consistent with preseason expectations, any inseason action shall consider, if significant, the difference between observed and preseason forecasted (adipose-clipped) mark rates. Such a consideration may also include a change in bag limit of two salmon, no more than one of which may be a coho.

    e. Marked coho remaining from the Cape Falcon to Humbug Mountain recreational mark-selective coho quota may be transferred inseason to the Cape Falcon to Humbug Mountain non-mark-selective recreational fishery if the transfer would not result in exceeding preseason impact expectations on any stocks.

    C.6. Additional Seasons in State Territorial Waters

    Consistent with Council management objectives, the States of Washington, Oregon, and California may establish limited seasons in state waters. Check state regulations for details.

    Section 3. Treaty Indian Management Measures for 2018 Ocean Salmon Fisheries

    Parts A, B, and C of this section contain requirements that must be followed for lawful participation in the fishery.

    A. Season Descriptions

    May 1 through the earlier of June 30 or 16,000 Chinook quota.

    All salmon may be retained except coho. If the Chinook quota is exceeded, the excess will be deducted from the later all-salmon season (C.5). See size limit (B) and other restrictions (C).

    July 1 through the earlier of September 15, or 24,000 Chinook quota (C.5), or 12,500 coho quota.

    All salmon. See size limit (B) and other restrictions (C).

    B. Minimum Size (Inches) Area
  • (when open)
  • Chinook Total length Head-off Coho Total length Head-off Pink
    North of Cape Falcon 24.0 18.0 16.0 12.0 None. Metric equivalents: 24.0 in = 61.0 cm, 18.0 in = 45.7 cm, 16.0 in = 40.6 cm, 12.0 in = 30.5 cm.
    C. Requirements, Restrictions, and Exceptions C.1. Tribe and Area Boundaries

    All boundaries may be changed to include such other areas as may hereafter be authorized by a Federal court for that tribe's treaty fishery.

    S'KLALLAM—Washington State Statistical Area 4B (defined to include those waters of Puget Sound easterly of a line projected from the Bonilla Point Light on Vancouver Island to the Tatoosh Island light, thence to the most westerly point on Cape Flattery and westerly of a line projected true north from the fishing boundary marker at the mouth of the Sekiu River [WAC 220-301-030]).

    MAKAH—Washington State Statistical Area 4B and that portion of the fishery management area (FMA) north of 48°02′15″ N lat. (Norwegian Memorial) and east of 125°44′00″ W long.

    QUILEUTE—A polygon commencing at Cape Alava, located at latitude 48°10′00″ north, longitude 124°43′56.9″ west; then proceeding west approximately forty nautical miles at that latitude to a northwestern point located at latitude 48°10′00″ north, longitude 125°44′00″ west; then proceeding in a southeasterly direction mirroring the coastline at a distance no farther than 40 nmi from the mainland Pacific coast shoreline at any line of latitude, to a southwestern point at latitude 47°31′42″ north, longitude 125°20′26″ west; then proceeding east along that line of latitude to the Pacific coast shoreline at latitude 47°31′42″ north, longitude 124°21′9.0″ west (per court order dated March 5, 2018, Federal District Court for the Western District of Washington).

    HOH—That portion of the FMA between 47°54′18″ N lat. (Quillayute River) and 47°21′00″ N lat. (Quinault River) and east of 125°44′00″ W long.

    QUINAULT—A polygon commencing at the Pacific coast shoreline near Destruction Island, located at latitude 47°40′06″ north, longitude 124°23′51.362″ west; then proceeding west approximately 30 nmi at that latitude to a northwestern point located at latitude 47°40′06″ north, longitude 125°08′30″ west; then proceeding in a southeasterly direction mirroring the coastline no farther than 30 nmi from the mainland Pacific coast shoreline at any line of latitude southwestern point at latitude 46°53′18″ north, longitude 124°53′53″ west; then proceeding east along that line of latitude to the Pacific coast shoreline at latitude 46°53′18″ north, longitude 124°7′36.6″ west (per court order dated March 5, 2018, Federal District Court for the Western District of Washington).

    C.2. Gear Restrictions

    a. Single point, single shank, barbless hooks are required in all fisheries.

    b. No more than eight fixed lines per boat.

    c. No more than four hand held lines per person in the Makah area fishery (Washington State Statistical Area 4B and that portion of the FMA north of 48°02′15″ N lat. (Norwegian Memorial) and east of 125°44′00″ W long.).

    C.3. Quotas

    a. The quotas include troll catches by the S'Klallam and Makah tribes in Washington State Statistical Area 4B from May 1 through September 15.

    b. The Quileute Tribe will continue a ceremonial and subsistence fishery during the time frame of October 1 through October 15 in the same manner as in 2004-2015. Fish taken during this fishery are to be counted against treaty troll quotas established for the 2018 season (estimated harvest during the October ceremonial and subsistence fishery: 20 Chinook; 40 coho).

    C.4. Area Closures

    a. The area within a six nautical mile radius of the mouths of the Queets River (47°31′42″ N lat.) and the Hoh River (47°45′12″ N lat.) will be closed to commercial fishing.

    b. A closure within two nautical miles of the mouth of the Quinault River (47°21′00″ N lat.) may be enacted by the Quinault Nation and/or the State of Washington and will not adversely affect the Secretary of Commerce's management regime.

    C.5. Inseason Management

    In addition to standard inseason actions or modifications already noted under the season description, the following inseason guidance applies:

    a. Chinook remaining from the May through June treaty-Indian ocean troll harvest guideline north of Cape Falcon may be transferred to the July through September harvest guideline on a fishery impact equivalent basis.

    Section 4. Halibut Retention

    Under the authority of the Northern Pacific Halibut Act, NMFS promulgated regulations governing the Pacific halibut fishery, which appear at 50 CFR part 300, subpart E. On March 9, 2018, NMFS published a final rule announcing the IPHC's regulations, including season dates, management measures, and Catch Sharing Plans for the U.S. waters off of Alaska (83 FR 10390). On March 26, 2018, NMFS published an interim final rule implementing Area 2A (U.S. West Coast) catch limits (83 FR 13080) and a separate final rule approving and implementing the Area 2A Pacific halibut Catch Sharing Plan and management measures for 2018 (83 FR 13090). The Area 2A Catch Sharing Plan, in combination with the IPHC regulations, provides that vessels participating in the salmon troll fishery in Area 2A, which have obtained the appropriate IPHC license, may retain halibut caught incidentally during authorized periods in conformance with provisions published with the annual salmon management measures. A salmon troller may participate in the halibut incidental catch fishery during the salmon troll season or in the directed commercial fishery targeting halibut, but not both.

    The following measures have been approved by the IPHC, and implemented by NMFS. During authorized periods, the operator of a vessel that has been issued an incidental halibut harvest license may retain Pacific halibut caught incidentally in Area 2A while trolling for salmon. Halibut retained must be no less than 32 inches (81.28 cm) in total length, measured from the tip of the lower jaw with the mouth closed to the extreme end of the middle of the tail, and must be landed with the head on.

    License applications for incidental harvest must be obtained from the IPHC (phone: 206-634-1838). Applicants must apply prior to mid-March 2019 for 2019 permits (exact date to be set by the IPHC in early 2019). Incidental harvest is authorized only during April, May, and June of the 2018 troll seasons and after June 30 in 2018 if quota remains and if announced on the NMFS hotline (phone: (800) 662-9825 or (206) 526-6667). WDFW, ODFW, and CDFW will monitor landings. If the landings are projected to exceed the 35,620 pound preseason allocation or the total Area 2A non-Indian commercial halibut allocation, NMFS will take inseason action to prohibit retention of halibut in the non-Indian salmon troll fishery.

    May 1, 2018, through December 31, 2018, and April 1-30, 2019, license holders may land or possess no more than one Pacific halibut per each two Chinook, except one Pacific halibut may be possessed or landed without meeting the ratio requirement, and no more than 35 halibut may be possessed or landed per trip. Pacific halibut retained must be no less than 32 inches in total length (with head on). IPHC license holders must comply with all applicable IPHC regulations.

    Incidental Pacific halibut catch regulations in the commercial salmon troll fishery adopted for 2018, prior to any 2018 inseason action, will be in effect when incidental Pacific halibut retention opens on April 1, 2019, unless otherwise modified by inseason action at the March 2019 Council meeting.

    NMFS and the Council request that salmon trollers voluntarily avoid a “C-shaped” YRCA (also known as the Salmon Troll YRCA) in order to protect yelloweye rockfish. Coordinates for the Salmon Troll YRCA are defined at 50 CFR 660.70(a) in the North Coast subarea (Washington marine area 3). See Section 1.C.7 in this document for the coordinates.

    Section 5. Geographical Landmarks

    Wherever the words “nautical miles off shore” are used in this document, the distance is measured from the baseline from which the territorial sea is measured.

    Geographical landmarks referenced in this document are at the following locations:

    Cape Flattery, WA 48°23′00″ N lat. Cape Alava, WA 48°10′00″ N lat. Queets River, WA 47°31′42″ N lat. Leadbetter Point, WA 46°38′10″ N lat. Cape Falcon, OR 45°46′00″ N lat. Florence South Jetty, OR 44°00′54″ N lat. Humbug Mountain, OR 42°40′30″ N lat. Oregon-California border 42°00′00″ N lat. Humboldt South Jetty, CA 40°45′53″ N lat. Horse Mountain, CA 40°05′00″ N lat. Point Arena, CA 38°57′30″ N lat. Point Reyes, CA 37°59′44″ N lat. Point San Pedro, CA 37°35′40″ N lat. Pigeon Point, CA 37°11′00″ N lat. Point Sur, CA 36°18′00″ N lat. Point Conception, CA 34°27′00″ N lat. Section 6. Inseason Notice Procedures

    Notice of inseason management actions will be provided by a telephone hotline administered by the West Coast Region, NMFS, (800) 662-9825 or (206) 526-6667, and by USCG Notice to Mariners broadcasts. These broadcasts are announced on Channel 16 VHF-FM and 2182 KHz at frequent intervals. The announcements designate the channel or frequency over which the Notice to Mariners will be immediately broadcast. Inseason actions will also be published in the Federal Register as soon as practicable. Since provisions of these management measures may be altered by inseason actions, fishermen should monitor either the telephone hotline or USCG broadcasts for current information for the area in which they are fishing.

    Classification

    This final rule is necessary for conservation and management of Pacific coast salmon stocks and is consistent with the MSA and other applicable law. These regulations are being promulgated under the authority of 16 U.S.C. 1855(d) and 16 U.S.C. 773(c).

    This final rule has been determined to be not significant for purposes of Executive Order 12866.

    The Assistant Administrator for Fisheries finds good cause under 5 U.S.C. 553(b)(B), to waive the requirement for prior notice and opportunity for public comment, as such procedures would be impracticable and contrary to the public interest.

    The annual salmon management cycle begins May 1 and continues through April 30 of the following year. May 1 was chosen because the pre-May harvests constitute a relatively small portion of the annual catch. The time frame of the preseason process for determining the annual modifications to ocean salmon fishery management measures depends on when the pertinent biological data are available. Salmon stocks are managed to meet annual spawning escapement goals or specific exploitation rates. Achieving either of these objectives requires designing management measures that are appropriate for the ocean abundance predicted for that year. These pre-season abundance forecasts, which are derived from previous years' observed spawning escapement, vary substantially from year to year, and are not available until January or February because spawning escapement continues through the fall.

    The preseason planning and public review process associated with developing Council recommendations is initiated in February as soon as the forecast information becomes available. The public planning process requires coordination of management actions of four states, numerous Indian tribes, and the Federal Government, all of which have management authority over the stocks. This complex process includes the affected user groups, as well as the general public. The process is compressed into a two-month period culminating with the April Council meeting at which the Council adopts a recommendation that is forwarded to NMFS for review, approval, and implementation of fishing regulations effective on May 1.

    Providing opportunity for prior notice and public comments on the Council's recommended measures through a proposed and final rulemaking process would require 30 to 60 days in addition to the two-month period required for development of the regulations. Delaying implementation of annual fishing regulations, which are based on the current stock abundance projections, for an additional 60 days would require that fishing regulations for May and June be set in the previous year, without the benefit of information regarding current stock abundance. For the 2018 fishing regulations, the current stock abundance was not available to the Council until February. Because a substantial amount of fishing occurs during May and June, managing the fishery with measures developed using the prior year's data could have significant adverse effects on the managed stocks, including ESA-listed stocks. Although salmon fisheries that open prior to May are managed under the prior year's measures, as modified by the Council at its March meeting, relatively little harvest occurs during that period (e.g., on average, less than 5 percent of commercial and recreational harvest occurred prior to May 1 during the years 2001 through 2017). Allowing the much more substantial harvest levels normally associated with the May and June salmon seasons to be promulgated under the prior year's regulations would impair NMFS' ability to protect weak and ESA-listed salmon stocks, and to provide harvest opportunity where appropriate. The choice of May 1 as the beginning of the regulatory season balances the need to gather and analyze the data needed to meet the management objectives of the Salmon FMP and the need to manage the fishery using the best available scientific information.

    If these measures are not in place on May 1, salmon fisheries will not open as scheduled, or would open based on 2017 management measures which do not account for 2018 abundance projections without inseason action by NMFS. This would result in lost fishing opportunity, negative economic impacts, potential harm to stocks at low abundance and ESA-listed stocks, and confusion for the public as the state fisheries adopt concurrent regulations that conform to the Federal management measures.

    Overall, the annual population dynamics of the various salmon stocks require managers to adjust the season structure of the West Coast salmon fisheries to both protect weaker stocks and give fishers access to stronger salmon stocks, particularly hatchery produced fish. Failure to implement these measures immediately could compromise the status of certain stocks, or result in foregone opportunity to harvest stocks whose abundance has increased relative to the previous year thereby undermining the purpose of this agency action.

    In addition, these measures were developed with significant public input. Public comment was received and considered by the Council and NMFS throughout the process of developing these management measures. As described above, the Council took comment at its March and April meetings, and heard summaries of comments received at public meetings held between the March and April meetings in each of the coastal states. NMFS also invited comments in a notice published prior to the March Council meeting, and considered comments received by the Council through its representative on the Council.

    Based upon the above-described need to have these measures effective on May 1 and the fact that there is limited time available to implement these new measures after the final Council meeting in April and before the commencement of the ocean salmon fishing year on May 1, NMFS has concluded it is impracticable and contrary to the public interest to provide an opportunity for prior notice and public comment under 5 U.S.C. 553(b)(B).

    The Assistant Administrator for Fisheries also finds that good cause exists under 5 U.S.C. 553(d)(3), to waive the 30-day delay in effectiveness of this final rule. As previously discussed, data were not available until February and management measures were not finalized until mid-April. These measures are essential to conserve threatened and endangered ocean salmon stocks as well as potentially overfished stocks, and to provide for harvest of more abundant stocks. Delaying the effectiveness of these measures by 30 days could compromise the ability of some stocks to attain their conservation objectives, preclude harvest opportunity, and negatively impact anticipated international, state, and tribal salmon fisheries, thereby undermining the purposes of this agency action and the requirements of the MSA.

    To enhance the fishing industry's notification of these new measures, and to minimize the burden on the regulated community required to comply with the new regulations, NMFS is announcing the new measures over the telephone hotline used for inseason management actions and is posting the regulations on its West Coast Region website (http://www.westcoast.fisheries.noaa.gov). NMFS is also advising the states of Washington, Oregon, and California on the new management measures. These states announce the seasons for applicable state and Federal fisheries through their own public notification systems.

    Because prior notice and an opportunity for public comment are not required to be provided for this rule by 5 U.S.C. 553, or 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 for this rule and none has been prepared.

    This action contains collection-of-information requirements subject to the Paperwork Reduction Act (PRA), and which have been approved by the Office of Management and Budget (OMB) under control number 0648-0433. The current information collection approval expires on August 30, 2020. The public reporting burden for providing notifications if landing area restrictions cannot be met is estimated to average 15 minutes per response. This estimate includes the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information.

    Notwithstanding any other provision of the 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 PRA, unless that collection of information displays a currently valid OMB control number.

    NMFS has current ESA biological opinions that cover fishing under these regulations on all listed salmon species. NMFS provided guidance on the impact limits for all ESA-listed salmon and steelhead species, given annual abundance projections, in our annual guidance letter to the Council dated March 6, 2018, but noted that further guidance might be provided at the April meeting that would account for the year specific circumstances. NMFS did provide an update to its guidance at the April meeting for six Puget Sound management units. The management measures for 2018 are consistent with the biological opinions. The Council's recommended management measures therefore have been determined not likely to jeopardize the continued existence of any listed salmon species which may be affected by Council fisheries. In some cases, the recommended measures are more restrictive than necessary for ESA compliance.

    NMFS consulted on the effects of the ocean salmon fisheries on the ESA-listed Southern Resident killer whale (SRKW) distinct population segment in 2009. NMFS considered conservative scenarios of prey abundance, diet composition and prey selectivity to evaluate effects of fishery-related prey reduction on SRKW and considered factors such as the limited overlap of Council area fisheries and the whales. Based on that information, NMFS concluded in the 2009 opinion that the salmon fisheries were not likely to jeopardize SRKW. More recent information regarding coastal diet and selectivity of the whales indicates that the most conservative scenarios are not the most likely this upcoming season and therefore, the effects of the 2018 fisheries are consistent with the 2009 biological opinion. In addition, quotas for Chinook salmon in fisheries north of Cape Falcon in particular are reduced from those in 2017 and other recent years in order to meet management objectives. As mentioned above, impacts from the Council's recommended 2018 fisheries to ESA-listed salmonids, including Chinook salmon are consistent with the applicable opinions for those ESUs.

    This final rule was developed after meaningful and collaboration with the affected tribes. The tribal representative on the Council made the motion for the regulations that apply to the tribal fisheries.

    Authority:

    16 U.S.C. 773-773k; 1801 et seq.

    Dated: April 26, 2018. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.
    [FR Doc. 2018-09164 Filed 4-30-18; 8:45 am] BILLING CODE 3510-22-P
    83 84 Tuesday, May 1, 2018 Proposed Rules DEPARTMENT OF HOMELAND SECURITY Office of the Secretary 6 CFR Part 5 [Docket No. DHS-2017-0069] Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security/ALL-039 Foreign Access Management System of Records AGENCY:

    Department of Homeland Security.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Department of Homeland Security is giving concurrent notice of an updated and reissued system of records pursuant to the Privacy Act of 1974 for the “Department of Homeland Security/ALL-039 Foreign Access Management System of Records” and this proposed rulemaking. In this proposed rulemaking, the Department proposes to exempt portions of this system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.

    DATES:

    Comments must be received on or before May 31, 2018.

    ADDRESSES:

    You may submit comments, identified by docket number DHS-2017-0069, by one of the following methods:

    Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-343-4010.

    • Mail: Philip S. Kaplan, Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.

    Instructions: All submissions received must include the agency name and docket number for this notice. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

    Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    For general and privacy-related questions please contact: Philip S. Kaplan, [email protected], (202) 343-1717, Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528.

    SUPPLEMENTARY INFORMATION: I. Background

    The Department of Homeland Security (DHS) is proposing to update applicable regulations to exempt portions of an updated and reissued system of records from certain provisions of the Privacy Act. Specifically, this rule exempts portions of the “DHS/ALL-039 Foreign Access Management System of Records,” which is being proposed concurrently with this Notice of Proposed Rulemaking elsewhere in the Federal Register, from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements, pursuant to 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5). Furthermore, to the extent certain categories of records are ingested from other systems, the exemptions applicable to the source systems will remain in effect.

    DHS is publishing the system of records notice (SORN) to update the categories of individuals and modify the routine uses. In the original SORN, the categories of individuals indicated that dual U.S. citizens and lawful permanent residents (LPR) representing foreign interests were included. The SORN is being updated to indicate that all U.S. citizens representing foreign interests are included in the categories of individuals, not just dual U.S. citizens.

    The SORN provides transparency on how DHS collects, uses, maintains, and disseminates information relating to foreign nationals who seek access to DHS and partner U.S. Government (USG) agency personnel, information, facilities, programs, research, studies, and information technology (IT) systems. The DHS Office of the Chief Security Officer (OCSO)/Center for International Safety & Security (CISS) Foreign Access Management (FAM) program uses the Foreign Access Management System (FAMS) to manage the risk assessment process for foreign nationals requesting access to DHS and partner agencies. DHS is responsible for conducting screening of all foreign nationals and foreign entities seeking access to DHS personnel, information, facilities, programs, and IT systems, including: U.S. citizens and lawful permanent residents (LPR) representing foreign interests; LPRs providing construction or contractual services (e.g., food services, janitorial services); and foreign contacts and foreign visitors reported by DHS and partner USG agency employees who have met and/or befriended such contacts and visitors outside the scope of the employee's official duties.

    II. Privacy Act

    The Privacy Act embodies fair information practice principles in a statutory framework governing the means by which Federal Government agencies collect, maintain, use, and disseminate individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. Additionally, and similarly, the Judicial Redress Act (JRA) provides a statutory right to covered persons to make requests for access and amendment to covered records, as defined by the JRA, along with judicial review for denials of such requests. In addition, the JRA prohibits disclosures of covered records, except as otherwise permitted by the Privacy Act.

    The Privacy Act allows government agencies to exempt certain records from the access and amendment provisions. If an agency claims an exemption, however, it must issue a Notice of Proposed Rulemaking to make clear to the public the reasons why a particular exemption is claimed.

    DHS is claiming exemptions from certain requirements of the Privacy Act for DHS/ALL-039 Foreign Access Management System of Records. Some information in DHS/ALL-039 Foreign Access Management System of Records relates to official DHS national security, law enforcement, immigration, intelligence activities. These exemptions are needed to protect information relating to DHS activities from disclosure to subjects or others related to these activities. Specifically, the exemptions are required to avoid disclosure of screening techniques; to protect the identities and physical safety of confidential informants and law enforcement personnel; to ensure DHS's ability to obtain information from third parties and other sources; to protect the privacy of third parties; and to safeguard classified information. Disclosure of information to the subject of the inquiry could also permit the subject to avoid detection or apprehension.

    In appropriate circumstances, when compliance would not appear to interfere with or adversely affect the law enforcement purposes of this system and the overall law enforcement process, the applicable exemptions may be waived on a case by case basis.

    A notice of system of records for DHS/ALL-039 Foreign Access Management System of Records is also published in this issue of the Federal Register.

    List of Subjects in 6 CFR Part 5

    Freedom of information, Privacy.

    For the reasons stated in the preamble, DHS proposes to amend chapter I of title 6, Code of Federal Regulations, as follows:

    PART 5—DISCLOSURE OF RECORDS AND INFORMATION 1. Revise the authority citation for Part 5 to read as follows: Authority:

    6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat. 2135; 5 U.S.C. 301.

    2. Amend appendix C to part 5 by adding paragraph 78: Appendix C to Part 5—DHS Systems of Records Exempt From the Privacy Act

    78. The DHS/ALL-039 Foreign Access Management System of Records consists of electronic and paper records and will be used by DHS and its components. The DHS/ALL-039 Foreign Access Management System of Records is a repository of information held by DHS in connection with its several and varied missions and functions, including, but not limited to the enforcement of civil and criminal laws; investigations, inquiries, and proceedings there under; and national security and intelligence activities. The DHS/ALL-039 Foreign Access Management System of Records contains information that is collected by, on behalf of, in support of, or in cooperation with DHS and its components and may contain personally identifiable information collected by other federal, state, local, tribal, foreign, or international government agencies.

    The Secretary of Homeland Security, pursuant to 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5), has exempted this system from the following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). When a record received from another system has been exempted in that source system under 5 U.S.C. 552a(j)(2), DHS will claim the same exemptions for those records that are claimed for the original primary systems of records from which they originated and claims any additional exemptions set forth here.

    Exemptions from these particular subsections are justified, on a case-by-case basis to be determined at the time a request is made, for the following reasons:

    (a) From subsection (c)(3) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS as well as the recipient agency. Disclosure of the accounting would therefore present a serious impediment to law enforcement efforts and efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension, which would undermine the entire investigative process. When an investigation has been completed, information on disclosures made may continue to be exempted if the fact that an investigation occurred remains sensitive after completion.

    (b) From subsection (d) (Access and Amendment to Records) because access to the records contained in this system of records could inform the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS or another agency. Access to the records could permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension. Amendment of the records could interfere with ongoing investigations and law enforcement activities and would impose an unreasonable administrative burden by requiring investigations to be continually reinvestigated. In addition, permitting access and amendment to such information could disclose security-sensitive information that could be detrimental to homeland security.

    (c) From subsection (e)(1) (Relevancy and Necessity of Information) because in the course of investigations into potential violations of federal law, the accuracy of information obtained or introduced occasionally may be unclear, or the information may not be strictly relevant or necessary to a specific investigation. In the interests of effective law enforcement, it is appropriate to retain all information that may aid in establishing patterns of unlawful activity.

    (d) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency Requirements) and (f) (Agency Rules), because portions of this system are exempt from the individual access provisions of subsection (d) for the reasons noted above, and therefore DHS is not required to establish requirements, rules, or procedures with respect to such access. Providing notice to individuals with respect to existence of records pertaining to them in the system of records or otherwise setting up procedures pursuant to which individuals may access and view records pertaining to themselves in the system would undermine investigative efforts and reveal the identities of witnesses, and potential witnesses, and confidential informants.

    Philip S. Kaplan, Chief Privacy Officer, Department of Homeland Security.
    [FR Doc. 2018-09195 Filed 4-30-18; 8:45 am] BILLING CODE 9110-9B-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 21 [Docket No. FAA-2018-0379] Airworthiness Criteria: Special Class Airworthiness Criteria for the Yamaha Fazer R AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed airworthiness criteria.

    SUMMARY:

    The FAA announces the availability of and requests comments on proposed airworthiness criteria for an unmanned aircraft system, Yamaha Motor Corporation, U.S.A., model Fazer R. This document proposes policy for a special class of aircraft, to designate airworthiness criteria found by the FAA to provide an equivalent level of safety, for this proposed design, to existing standards.

    DATES:

    Send comments on or before May 31, 2018.

    ADDRESSES:

    Send comments identified by docket number FAA-2018-0379 using any of the following methods:

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

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

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

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

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

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

    FOR FURTHER INFORMATION CONTACT:

    Mr. Quentin Coon, AIR-692, Federal Aviation Administration, Policy & Innovation Division, Small Airplane Standards Branch, Aircraft Certification Service, 901 Locust, Room 301, Kansas City, MO 64106, telephone (816) 329-4168, facsimile (816) 329-4090.

    SUPPLEMENTARY INFORMATION: Comments Invited

    We invite interested people to take part in the development of these airworthiness criteria by sending written comments, data, or views. The most helpful comments reference a specific portion of the airworthiness criteria, explain the reason for any recommended change, and include supporting data. We ask that you send us two copies of written comments.

    We will consider all comments received on or before the closing date for comments. We will consider comments filed late if it is possible to do so without incurring expense or delay. We may change these airworthiness criteria based on received comments.

    Background

    Yamaha Motor Corporation, U.S.A. (Yamaha) applied to the FAA on April 28, 2017 for special class type certification under Title 14, Code of Federal Regulations (14 CFR) 21.17(b) for the Fazer R Unmanned Aircraft System (UAS). The Fazer R UAS (Fazer R) consists of the Unmanned Aircraft (UA), flight transmitter ground control station, and payload spray system. The Fazer R is a vertical take-off UAS that is of the traditional main/tail rotor helicopter design. Its intended primary use is conducting crop-spraying operations in the agricultural industry.

    The aircraft and payload spray system would weigh approximately 244 lbs with full fuel and oil tanks, and be able to carry a payload of approximately 105 lbs. The main rotor is just over nine feet in diameter, and the aircraft would be just over three feet high and 12 feet long with a carbon frame. The aircraft would be powered by a fuel-injected 2-cylinder engine running on regular gasoline. The aircraft would have a “Turn Assistance” function that enables automatic turning to facilitate back-and-forth agricultural operations.

    The proposed policy was developed in order to establish performance-based airworthiness criteria appropriate for the Yamaha Fazer R.

    Discussion

    The FAA establishes airworthiness criteria to ensure the safe operation of aircraft in accordance with 49 U.S.C. 44701(a) and 44704. The applicant has proposed a design with constraints upon its operations and an unusual design characteristic: The pilot is remotely located. The FAA proposes that existing airworthiness criteria, including Title 14 Code of Federal Regulations (14 CFR) parts 23 and 27, do not provide criteria appropriate to the proposed design.

    The FAA proposes this aircraft is a “special class” under 14 CFR 21.17(b), and proposes that the following airworthiness criteria are appropriate for this aircraft and would provide an equivalent level of safety to existing airworthiness standards. These proposed airworthiness criteria differ from those in 14 CFR parts 23 and 27 due to the aircraft's design, which includes various constraints upon the aircraft's operation. These constraints include its relatively small size, lack of humans on board, and operations that would be limited to remote locations, low altitude, and visual range of a trained flight crew.

    The FAA has reviewed the proposed design and assessed the potential risk to the National Aerospace System (NAS). The FAA took into consideration the size of the proposed aircraft, its maximum airspeed and altitude, and operational limitations such as where it would operate and whether it would operate out of sight of its operators. These factors allowed the FAA to estimate the kinetic energy of the proposed design when in operation, and the potential risk the aircraft could pose to other aircraft and people and property nearby. Using these types of parameters, the FAA developed airworthiness criteria appropriate for that risk to ensure the aircraft remains reliable, controllable, safe, and airworthy.

    The particular airworthiness criteria proposed by this notice were selected for the following reasons:

    UAS Concept of Operations: To assist the FAA in identifying and analyzing the risks and impacts associated with integrating the Fazer R proposed design into the NAS, the applicant would be required to submit a Concept of Operations (CONOPS). The CONOPS identifies the applicant's proposed operational concepts for this aircraft and would contain a description of the UAS and its operation.

    UAS Means of Compliance: To address the risks associated with inadequate or incomplete showings of compliance to the performance-based criteria described in this notice, the proposed airworthiness criteria include a requirement that the applicant only utilize a means of compliance accepted by the FAA, in accordance with FAA Advisory Circular 23.2010-1.

    UAS Operational Envelope and Limitations: In order to ensure the UAS is operated only in accordance with its type design, the applicant must define the operational envelope and proposed operational limitations. The applicant would be required to show that the UAS can be operated safely and reliably within the operational envelope and limitations, mitigating the hazards that could result from an unconstrained operating envelope.

    UAS Instructions for Continued Airworthiness (ICA): To address the risks associated with degradation of the aircraft caused by age and use, and to ensure that the UAS can be maintained for safe operation, the applicant would be required to prepare Instructions for Continued Airworthiness for the UAS that are accepted by the FAA, in accordance with FAA Order 8110.54A. The proposed criteria are derived from 14 CFR parts 23 and 27, and past FAA practices, but are tailored for this proposed design.

    UAS Flight Manual: To address the risks associated with improper operation of the UAS, such as flight above the approved operating altitude, at weights above maximum takeoff weight, and at speeds greater than the maximum allowed speed, the applicant would be required to provide a flight manual. The manual would be used to ensure that the flight crew operates the aircraft only within the proposed operational envelope and limitations.

    UAS Flight Testing: To address the risks associated with inadequate design and integration, the applicant would be required to conduct flight testing to demonstrate adequate structure, system reliability, and proper function.

    UAS Critical Parts: To ensure the continued airworthiness of the aircraft and address the risks of castrophic failure, which is a failure that causes a fatal injury or results in destruction of the UAS, the applicant would be required to identify those parts that could cause a catastrophic event upon failure. Those parts must be properly maintained to prevent a catastrophic failure.

    UAS Controls: To address the risks associated with loss of control of the UAS caused by the failure or improper use of UAS controls, the applicant would be required to design controls that are adequate to safely and reliably control the UAS.

    UAS Flight Termination System: To address the risks associated with uncontrolled flight and inadvertent or unsafe operation, the applicant would be required to provide a means to quickly and safely terminate the UAS flight.

    UAS Engine and Engine Control System: To address the risks associated with failure or loss of control of the powerplant, the applicant would be required to design the engine and engine controls so that they are durable and reliable.

    UAS Powerplant Installation: To address the risks associated with failure of the powerplant installation that includes each component necessary for propulsion or that affects propulsion safety, the applicant would be required to design the powerplant installation to ensure its continued safe operation.

    UAS Systems and Equipment: To address the risks associated with the failure or malfunction of electric and mechanical systems and equipment, the applicant would be required to design and install the systems and equipment to perform safely and reliably their intended function when considered separately and in relation to other systems.

    UAS Communication: To address the risks associated with loss of communication between the flight crew members and between the flight crew and the UA, the applicant would be required to provide an FAA approved means that allows for all communication necessary to safely operate the UA.

    UAS Interference from External Sources: To address the risks associated with cyber threats and system failures or malfunctions, the applicant would be required to design the UAS' electronic systems and networks to protect against and minimize the effects of intentional and unintentional external interference.

    UAS Interference with Other Aircraft or Obstacles: To address the risks associated with collisions with obstacles and other aircraft, the applicant would be required to use an FAA accepted means of compliance showing how the UAS will remain well clear of obstacles and other aircraft so as to avoid the risk of collision.

    Operational Considerations

    The following operational considerations were derived from the applicant's CONOPS, which helped drive the development of these proposed airworthiness criteria. The aircraft would:

    1. Be primarily used for agricultural use to include spraying, sensing, and imaging.

    2. Operate in remote or sparsely populated areas.

    3. Not operate over people and occupied vehicles on roads and highways.

    4. Operate at 400 feet above ground level (AGL) or lower.

    5. Operate at a maximum altitude of 6,500 feet above mean sea level (MSL).

    6. Be operated within Visual Line of Sight (VLOS) as defined in 14 CFR part 107.31, Visual line-of-sight aircraft operation.

    7. Be operated by a minimum flight crew consisting of one pilot-in-command (PIC) and one visual observer.

    8. Be operated by a flight crew that is appropriately qualified and trained.

    9. Be operated by a minimum flight crew that would operate only one UAS at any time.

    10. Be operated by a flight crew that has successfully completed required flight crew training.

    11. Be maintained by persons who hold required FAA maintenance certificates or work according to an FAA approved maintenance program.

    12. Be maintained by persons who have completed required maintenance training.

    13. Be equipped with caution and alerting annunciation that is visible to the PIC and visual observer during flight.

    14. Remain within Radio Line-of-Sight (RLOS) of the control station. RLOS is the straight and unobstructed path between the transmitting and receiving antennas.

    15. Electronically communicate between the UA and the ground control station only within frequencies approved by the Federal Communications Commission (FCC).

    16. Operate in Class G airspace unless specifically authorized by the FAA.

    17. Operate subject to minimum setback distances that define how far people must be from the UA, the control station, and the operating zone when the UA is operating.

    18. Operate within specific meteorological conditions that define permissible wind speeds, turbulence, visibility, outside air temperature, or other parameters as identified. The UAS would not operate in icing conditions, in accordance with 14 CFR 91.527.

    19. Operate in day Visual Meteorological Conditions (VMC).

    Note:

    A change to the CONOPS may require a change to the airworthiness criteria.

    Proposed Airworthiness Criteria

    The FAA proposes to establish, as a matter of policy, the following airworthiness criteria for type certification of the Yamaha Fazer R. The FAA proposes that compliance with the following would appropriately mitigate the risks associated with the proposed design and Concept of Operations (CONOPS) and would provide an equivalent level of safety to existing rules:

    UAS Concept of Operations: The applicant must define and submit to the FAA a (CONOPS) proposal describing the intended UAS operation in the National Airspace System (NAS).

    UAS Accepted Means of Compliance:

    1. An applicant must comply with these airworthiness criteria using a means of compliance, which may include consensus standards, accepted by the FAA.

    2. An applicant requesting acceptance of a means of compliance must provide the means of compliance to the FAA in a form and manner acceptable to the FAA.

    UAS Operational Envelope and Limitations: The operational envelope and operational limitations must be defined:

    1. The UAS must be shown to perform as intended within the defined operational envelope and operational limitations.

    2. The UAS must be consistently and predictably controllable and maneuverable within the operating envelope, including:

    (a) At all loading conditions for which certification is requested;

    (b) During all phases of flight; and

    (c) During configuration changes.

    UAS Instructions for Continued Airworthiness: The applicant must prepare Instructions for Continued Airworthiness (ICA) for the UAS that are acceptable to the FAA. The ICA may be incomplete at type certification if a program exists to ensure their completion prior to delivery of the first UAS or issuance of a standard certificate of airworthiness, whichever occurs later.

    The ICA must contain a section titled Airworthiness Limitations that is segregated and clearly distinguishable from the rest of the document. This section must set forth each mandatory replacement time, structural inspection interval, and related structural inspection procedure required for type certification. If the ICA consist of multiple documents, the section required by this paragraph must be included in the principal manual. This section must contain a legible statement in a prominent location that reads “The Airworthiness Limitations section is FAA approved and specifies maintenance conducted under §§ 43.16 and 91.403 of Title 14 of the Code of Federal Regulations unless an alternative program has been FAA approved.”

    UAS Flight Manual: The applicant must provide a UAS Flight Manual with each UAS. The UAS Flight Manual must contain the following information—

    (a) UAS operating limitations;

    (b) UAS normal and emergency operating procedures;

    (c) Performance information;

    (d) Loading information; and

    (e) Other information that is necessary for safe operation because of design, operating, or handling characteristics.

    UAS Flight Testing: The UAS must successfully complete at least 150 hours of flight testing to determine whether there is reasonable assurance that the UAS, its components, its equipment, and structures are adequate, reliable, and function properly. The testing must consist of:

    1. At least 50 hours with the Unmanned Aircraft (UA) at 5 percent over maximum weight at critical weight, altitude, and temperature; and

    2. At least 100 hours in normal operations.

    UAS Critical Parts: A critical part is a part, the failure of which could have a catastrophic effect upon the UAS. If the type design includes critical parts, a critical parts list must be established.

    The applicant must develop and define inspections or other procedures to prevent failures due to degradation of critical parts. Each of these inspections or procedures must be included in the Airworthiness Limitations Section of the ICA.

    UAS Controls:

    1. Flight Controls: The applicant must design the flight control systems and control station to:

    (a) Operate easily, smoothly, and positively enough to allow proper performance of their functions, and

    (b) Protect against likely hazards.

    2. Flight Crew Interface: The control station must be designed to allow the flight crew to perform their duties and to perform any maneuvers within the operating envelope of the UAS, without excessive concentration, skill, alertness, or fatigue considering the intended operating conditions for the control station.

    3. Equipment: The applicant must define and install necessary equipment so the flight crew can monitor and perform defined tasks associated with the intended functions of the systems and equipment.

    4. Flight Crew Error: The UAS must be designed to minimize flight crew errors which could result in additional hazards.

    UAS Flight Termination System:

    1. There must be a means for the flight crew to quickly and safely terminate the UA flight.

    2. The UAS must have a means to safely terminate the UA flight when safe operation cannot continue or be maintained.

    3. There must be means to prevent inadvertent operation of the flight termination system.

    UAS Engine and Engine Control System:

    1. The UAS Engine and Engine Control System includes each component necessary for propulsion or which affects propulsion safety.

    2. The UAS Engine and Engine Control System installation must be designed, constructed, installed, and maintained to ensure its continued safe operation within the operational envelope between normal inspections and overhauls.

    3. The UAS Engine Control System including any Engine Control Unit (ECU) software or electronic hardware must be designed and developed using methods accepted by the FAA.

    4. The applicant must identify the UAS Engine and Engine Control System failure modes and effects that may result in a catastrophic condition to the UAS. The applicant must mitigate each hazard to a level acceptable to the FAA.

    5. The UAS Engine and Engine Control System operability, durability and reliability must be demonstrated.

    UAS Powerplant Installation:

    1. The powerplant installation includes each part of the UAS (other than the main and auxiliary rotor structures) that—

    (a) Is necessary for propulsion;

    (b) Affects the control of the major propulsive units; or

    (c) Affects the safety of the major propulsive units between normal inspections or overhauls.

    2. Each component of the powerplant installation must be constructed, arranged, and installed to ensure its continued safe operation between normal inspections or overhauls for the range of temperature and altitude for which approval is requested.

    UAS Systems and Equipment: This requirement applies to the UAS unless another requirement has been imposed for a specific piece of equipment, system, or systems. The UAS systems and equipment, including any software or electronic hardware, must be designed and developed using methods accepted by the FAA.

    1. The systems and equipment required for a UAS to operate safely in the kinds of operations for which certification is requested must be designed and installed to perform their intended function throughout the operating and environmental limits for which the UAS is certificated.

    2. All systems and equipment not covered by paragraph 1 of this section, considered separately and in relation to other systems, must be designed and installed so their operation or failure, does not have an adverse effect on the UAS.

    UAS Communication:

    1. The applicant must define the type, methods, and operational limits of communication, including the mitigation of any hazard created by any loss of communication between the flight crew and between the flight crew and the UAS.

    2. A means must be provided to allow for all communication necessary to safely operate the UA.

    UAS Interference from External Sources: The design must minimize the risks associated with interference to UAS electronic systems and networks from external sources.

    UAS Interference with Other Aircraft or Obstacles: The UAS must have a means to remain well clear of obstacles and other aircraft for its intended operation and airspace to avoid the risk of collision.

    Note:

    The FAA may propose amending this airworthiness criteria, or propose additional operational criteria, prior to approval of the type design.

    Issued in Kansas City, Missouri, on April 23, 2018. Pat Mullen, Manager, Small Airplane Standards Branch, Aircraft Certification Service.
    [FR Doc. 2018-09102 Filed 4-30-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0194] RIN 1625-AA11 Safety Zone; Philippine Sea, Tinian AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard proposes to establish a temporary safety zone for certain waters off of Chulu and Babui beaches in Tinian. The Coast Guard believes this safety zone is necessary to protect all divers participating in this underwater military exercise from potential safety hazards associated with vessel traffic in the area. This proposed rulemaking would prohibit persons and vessels not involved in the exercise from being in the safety zone unless authorized by the Captain of the Port Guam (COTP) or a designated representative. We invite your comments on this proposed rulemaking.

    DATES:

    Comments and related material must be received by the Coast Guard on or before May 31, 2018.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2018-0194 using the Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section for further instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this proposed rulemaking, call or email Chief Todd Wheeler, Sector Guam Waterways Management Division, U.S. Coast Guard; telephone 671-355-4866, email [email protected].

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

    The purpose of this rulemaking is to ensure the safety of divers in the water during an underwater military exercise in support of the biennial Exercise Valiant Shield from 6 p.m. on September 10, 2018 to 6 a.m. on September 11, 2018. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

    III. Discussion of Proposed Rule

    The COTP proposes to establish a safety zone from 6 p.m. on September 10, 2018 to 6 a.m. on September 11, 2018. The safety zone would cover all navigable waters two miles off Chulu and Babui beaches in Tinian. This safety zone is necessary to protect all divers participating in this underwater military exercise from potential safety hazards associated with vessel traffic in the area. This proposed rulemaking would prohibit persons and vessels not involved in the exercise from being in the safety zone unless authorized by the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

    IV. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic would be able to safely transit around this safety zone. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

    B. Impact on Small Entities

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

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone vessel traffic would be able to safely transit around. Normally such actions are categorically excluded from further review under paragraph L[37] of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

    G. Protest Activities

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

    V. Public Participation and Request for Comments

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

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

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

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

    List of Subjects in 33 CFR Part 165

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

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

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

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

    2. Add § 165.T14-0194 to read as follows:
    § 165.T14-0194 Safety Zone; Philippine Sea, Tinian.

    (a) Location. The following area is a safety zone: All waters off of Chulu and Babui Beach, Tinian, from surface to bottom, encompassed by a line connecting the following points beginning at 15°04′09″ N, 145°36′44″ E, thence to 15°04′48″ N, 145°35′42″ E, thence to 15°05′09″ N, 145°36′08″ E, thence to 15°04′48″ N, 145°37′23″ E, and along the shore line back to the beginning point. These coordinates are based on NAD 1983.

    (b) Regulations. (1) The general regulations governing safety zones contained in 33 CFR 165.23 apply. This proposed rulemaking would prohibit persons and vessels not involved in the exercise from being in the safety zone unless authorized by the Captain of the Port (COTP) Guam or a designated representative.

    (2) To seek permission to enter, contact the COTP Guam or the COTP's representative by VHF channel 16 or by telephone at 671-355-4821. Those in the safety zone must comply with all lawful orders or directions given to them by the COTP or the COTP's designated representative.

    (c) Enforcement period. This section will be enforced from 6 p.m. on September 10, 2018 to 6 a.m. on September 11, 2018.

    Dated: April 6, 2018. Christopher M. Chase, Captain, U.S. Coast Guard, Captain of the Port Guam.
    [FR Doc. 2018-09188 Filed 4-30-18; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 51 [EPA-HQ-OAR-2017-0175; FRL-9977-28-OAR] RIN 2060-AT52 Air Quality: Revision to the Regulatory Definition of Volatile Organic Compounds—Exclusion of cis-1,1,1,4,4,4-hexafluorobut-2-ene (HFO-1336mzz-Z) AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to revise the regulatory definition of volatile organic compounds (VOC) under the Clean Air Act (CAA). This action proposes to add cis-1,1,1,4,4,4-hexafluorobut-2-ene (also known as HFO-1336mzz-Z; CAS number 692-49-9) to the list of compounds excluded from the regulatory definition of VOC on the basis that this compound makes a negligible contribution to tropospheric ozone (O3) formation.

    DATES:

    Written comments must be received on or before July 2, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2017-0175, at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the Web, Cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Souad Benromdhane, Office of Air Quality Planning and Standards, Health and Environmental Impacts Division, Mail Code C539-07, Environmental Protection Agency, Research Triangle Park, NC 27711; telephone: (919) 541-4359; fax number: (919) 541-5315; email address: [email protected].

    SUPPLEMENTARY INFORMATION:

    Docket. The EPA has established a docket for this rulemaking under Docket ID No. EPA-HQ-OAR-2017-0175. All documents in the docket are listed in the Regulations.gov index. Although listed in the index, some information is not publicly available, e.g., 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. Publicly available docket materials are available either electronically in Regulations.gov or in hard copy at the EPA Docket Center, Room 3334, EPA WJC West Building, 1301 Constitution Avenue NW, Washington, DC. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the EPA Docket Center is (202) 566-1742.

    Instructions. Direct your comments to Docket ID No. EPA-HQ-OAR-2017-0175. The EPA's policy is that all comments received will be included in the public docket without change and may be made available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be CBI or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov or email. The http://www.regulations.gov website is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should not include special characters or any form of encryption and be free of any defects or viruses. For additional information about the EPA's public docket, visit the EPA Docket Center homepage at http://www.epa.gov/dockets.

    Table of Contents I. General Information A. Does this action apply to me? B. What should I consider as I prepare my comments for the EPA? II. Background A. The EPA's VOC Exemption Policy B. Petition To List HFO-1336mzz-Z as an Exempt Compound III. The EPA's Assessment of the Petition A. Contribution to Tropospheric Ozone Formation B. Potential Impacts on Other Environmental Endpoints 1. Contribution to Stratospheric Ozone Depletion 2. The Significant New Alternatives Policy (SNAP) Program Acceptability Findings 3. Toxicity 4. Contribution to Climate Change C. Conclusions IV. Proposed Rule V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs C. Paperwork Reduction Act (PRA) D. Regulatory Flexibility Act (RFA) E. Unfunded Mandates Reform Act (UMRA) F. Executive Order 13132: Federalism G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments H. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use J. National Technology Transfer and Advancement Act (NTTAA) K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations L. Judicial Review VI. References I. General Information A. Does this action apply to me?

    Entities potentially affected by this proposed rule include, but are not necessarily limited to, the following: State and local air pollution control agencies that adopt and implement regulations to control air emissions of VOC; and industries manufacturing and/or using HFO-1336mzz-Z for use in polyurethane rigid insulating foams, and refrigeration and air conditioning. Potential entities that may be affected by this action include:

    Table 1—Potentially Affected Entities by North American Industrial Classification System (NAICS) Code Category NAICS code Description of regulated entities Industry 326140 Polystyrene Foam Product Manufacturing. Industry 326150 Urethane and Other Foam Product (except Polystyrene) Manufacturing. Industry 333415 Air-Conditioning and Warm Air Heating Equipment and Commercial and Industrial Refrigeration Equipment Manufacturing. Industry 3363 Motor Vehicle Parts Manufacturing. Industry 336611 Ship Building and Repairing. Industry 336612 Boat Building. Industry 339999 All other Miscellaneous Manufacturing.

    This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities that might be affected by this deregulatory action. This table lists the types of entities that the EPA is now aware of that could potentially be affected to some extent by this action. Other types of entities not listed in the table could also be affected to some extent. To determine whether your entity is directly or indirectly affected by this action, you should consult your state or local air pollution control and/or air quality management agencies.

    B. What should I consider as I prepare my comments for the EPA?

    Submitting CBI. Do not submit information containing CBI to the EPA through http://www.regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information on a disk or CD-ROM that you mail to the EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comments that includes information claimed as CBI, you must submit a copy of the comments that does not contain the information claimed as CBI for inclusion in the public docket. If you submit a CD-ROM or disk that does not contain CBI, mark the outside of the disk or CD-ROM clearly that it does not contain CBI. Information not marked as CBI will be included in the public docket and the EPA's electronic public docket without prior notice. Information marked as CBI will not be disclosed except in accordance with procedures set forth in 40 Code of Federal Regulations (CFR) part 2. Send or deliver information identified as CBI only to the following address: OAQPS Document Control Officer (C404-02), OAQPS, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711, Attention Docket ID No. EPA-HQ-OAR-2017-0175.

    II. Background A. The EPA's VOC Exemption Policy

    Tropospheric O3, commonly known as smog, is formed when VOC and nitrogen oxides (NOX) react in the atmosphere in the presence of sunlight. Because of the harmful health effects of O3, the EPA and state governments limit the amount of VOC that can be released into the atmosphere. Volatile organic compounds form O3 through atmospheric photochemical reactions, and different VOC have different levels of reactivity. That is, different VOC do not react to form O3 at the same speed or do not form O3 to the same extent. Some VOC react slowly or form less O3; therefore, changes in their emissions have limited effects on local or regional O3 pollution episodes. It has been the EPA's policy since 1971 that certain organic compounds with a negligible level of reactivity should be excluded from the regulatory definition of VOC in order to focus VOC control efforts on compounds that significantly affect O3 concentrations. The EPA also believes that exempting such compounds creates an incentive for industry to use negligibly reactive compounds in place of more highly reactive compounds that are regulated as VOC. The EPA lists compounds that it has determined to be negligibly reactive in its regulations as being excluded from the regulatory definition of VOC (40 CFR 51.100(s)).

    The CAA requires the regulation of VOC for various purposes. Section 302(s) of the CAA specifies that the EPA has the authority to define the meaning of “VOC” and, hence, what compounds shall be treated as VOC for regulatory purposes. The policy of excluding negligibly reactive compounds from the regulatory definition of VOC was first laid out in the “Recommended Policy on Control of Volatile Organic Compounds” (42 FR 35314, July 8, 1977) (from here forward referred to as the 1977 Recommended Policy) and was supplemented subsequently with the “Interim Guidance on Control of Volatile Organic Compounds in Ozone State Implementation Plans” (70 FR 54046, September 13, 2005) (from here forward referred to as the 2005 Interim Guidance). The EPA uses the reactivity of ethane as the threshold for determining whether a compound has negligible reactivity. Compounds that are less reactive than, or equally reactive to, ethane under certain assumed conditions may be deemed negligibly reactive and, therefore, suitable for exemption from the regulatory definition of VOC. Compounds that are more reactive than ethane continue to be considered VOC for regulatory purposes and, therefore, are subject to control requirements. The selection of ethane as the threshold compound was based on a series of smog chamber experiments that underlay the 1977 Recommended Policy.

    The EPA has used three different metrics to compare the reactivity of a specific compound to that of ethane: (i) The rate constant for reaction with the hydroxyl radical (OH) (known as kOH); (ii) the maximum incremental reactivity (MIR) on a reactivity per unit mass basis; and (iii) the MIR expressed on a reactivity per mole basis. Differences between these three metrics are discussed below.

    The kOH is the rate constant of the reaction of the compound with the OH radical in the air. This reaction is often, but not always, the first and rate-limiting step in a series of chemical reactions by which a compound breaks down in the air and contributes to O3 formation. If this step is slow, the compound will likely not form O3 at a very fast rate. The kOH values have long been used by the EPA as metrics of photochemical reactivity and O3-forming activity, and they were the basis for most of the EPA's early exemptions of negligibly reactive compounds from the regulatory definition of VOC. The kOH metric is inherently a molar-based comparison, i.e., it measures the rate at which molecules react.

    The MIR, both by mole and by mass, is a more updated metric of photochemical reactivity derived from a computer-based photochemical model, and it has been used as a metric of reactivity since 1995. This metric considers the complete O3-forming activity of a compound over multiple hours and through multiple reaction pathways, not merely the first reaction step with OH. Further explanation of the MIR metric can be found in Carter (1994).

    The EPA has considered the choice between MIRs with a molar or mass basis for the comparison to ethane in past rulemakings and guidance. In the 2005 Interim Guidance, the EPA stated:

    [A] comparison to ethane on a mass basis strikes the right balance between a threshold that is low enough to capture compounds that significantly affect ozone concentrations and a threshold that is high enough to exempt some compounds that may usefully substitute for more highly reactive compounds.

    When reviewing compounds that have been suggested for VOC-exempt status, EPA will continue to compare them to ethane using kOH expressed on a molar basis and MIR values expressed on a mass basis.

    The 2005 Interim Guidance notes that the EPA will consider a compound to be negligibly reactive if it is equal to or less reactive than ethane based on either kOH expressed on a molar basis or MIR values expressed on a mass basis.

    The molar comparison of MIR is more consistent with the original smog chamber experiments, which compared equal molar concentrations of individual VOCs, supporting the selection of ethane as the threshold, while the mass-based comparison of MIR is consistent with how MIR values and other reactivity metrics are applied in reactivity-based emission limits. It is, however, important to note that the mass-based comparison is slightly less restrictive than the molar-based comparison in that a few more compounds would qualify as negligibly reactive.

    Given the two goals of the exemption policy articulated in the 2005 Interim Guidance, the Agency believes that ethane continues to be an appropriate threshold for defining negligible reactivity. And, to encourage the use of environmentally beneficial substitutions, the EPA believes that a comparison to ethane on a mass basis strikes the right balance between a threshold that is low enough to capture compounds that significantly affect ozone concentrations and a threshold that is high enough to exempt some compounds that may usefully substitute for more highly reactive compounds.

    The 2005 Interim Guidance also noted that concerns have sometimes been raised about the potential impact of a VOC exemption on environmental endpoints other than O3 concentrations, including fine particle formation, air toxics exposures, stratospheric O3 depletion, and climate change. The EPA has recognized, however, that there are existing regulatory or non-regulatory programs that are specifically designed to address these issues, and the EPA continues to believe in general that the impacts of VOC exemptions on environmental endpoints other than O3 formation can be adequately addressed by these programs. The VOC exemption policy is intended to facilitate attainment of the O3 National Ambient Air Quality Standards (NAAQS) and VOC exemption decisions will continue to be based primarily on consideration of a compound's contribution to O3 formation. However, if the EPA determines that a particular VOC exemption is likely to result in a significant increase in the use of a compound and that the increased use would pose a significant risk to human health or the environment that would not be addressed adequately by existing programs or policies, then the EPA may exercise its judgment accordingly in deciding whether to grant an exemption.

    B. Petition To List HFO-1336mzz-Z as an Exempt Compound

    DuPont Chemicals & Fluoroproducts (DuPont) submitted a petition to the EPA on February 14, 2014, requesting that cis-1,1,1,4,4,4-hexafluorobut-2-ene (HFO-1336mzz-Z; CAS number 692-49-9) be exempted from the regulatory definition of VOC. The petition was based on the argument that HFO-1336mzz-Z has low reactivity relative to ethane. The petitioner indicated that HFO-1336mzz-Z may be used in a variety of applications as a replacement for foam expansion or blowing agents with higher global warming potential (GWP) (>700 GWP) for use in polyurethane rigid insulating foams, among others. It is also a new developmental refrigerant as a potential working fluid for Organic Rankine Cycles (ORC).1

    1 Konstantinos Kontomaris, 2014, HFO-1336mzz-Z High Temperature Chemical Stability and Use as a Working Fluid in Organic Rankine Cycles. International Refrigeration and Air Conditioning Conference. Perdue University: https://www.chemours.com/Refrigerants/en_US/products/Opteon/Stationary_Refrigeration/assets/downloads/2014_Purdue-Paper-Opteon-MZ.pdf.

    To support its petition, DuPont referenced several documents, including one peer-reviewed journal article on HFO-1336mzz-Z reaction rates (Baasandorj, M. et al., 2011). DuPont also provided a supplemental technical report on the MIR of HFO-1336mzz-Z (Carter, 2011a). Per this report, the MIR of HFO-1336mzz-Z is 0.04 gram (g) O3/g HFO-1336mzz-Z on the mass-based MIR scale. This reactivity rate is 86 percent lower than that of ethane (0.28 g O3/g ethane). The reactivity rate kOH for the gas-phase reaction of OH radicals with HFO-1336mzz-Z (kOH) has been measured to be 4.91 × 10−13 centimeter (cm)3/molecule-seconds at ~296 degrees Kelvin (K) (Pitts et al., 1983, Baasandorj et al., 2011). This kOH rate is twice as high as that of ethane (kOH of ethane = 2.4 × 10−13 cm3/molecule-sec at ~298 K) and, therefore, suggests that HFO-1336mzz-Z is twice as reactive as ethane. In most cases, chemicals with high kOH values also have high MIR values, but for HFO-1336mzz-Z, the products that are formed are expected to be mostly smaller perfluorinated compounds, which are not reactive in the atmosphere and do not form ozone (Baasandorj et al., 2011). Based on the current scientific understanding of tetrafluoroalkene reactions in the atmosphere, it is unlikely that the actual O3 impact on a mass basis would equal or exceed that of ethane in the scenarios used to calculate VOC reactivity (Baasandorj et al., 2011; Carter, 2011a).

    To address the potential for stratospheric O3 impacts, the petitioner contended that, because the atmospheric lifetime of HFO-1336mzz-Z due to loss by OH reaction was estimated to be ~20 days and it does not contain chlorine or bromine, it is not expected to contribute to the depletion of the stratospheric O3 layer.

    III. The EPA's Assessment of the Petition

    The EPA is responding to the petition by proposing to exempt HFO-1336mzz-Z from the regulatory definition of VOC. This action is based on consideration of the compound's low contribution to tropospheric O3 and the low likelihood of risk to human health or the environment, including stratospheric O3 depletion, toxicity, and climate change. Additional information on these topics is provided in the following sections.

    A. Contribution to Tropospheric Ozone Formation

    As noted in studies cited by the petitioner, HFO-1336mzz-Z has a MIR value of 0.04 g O3/g VOC for “averaged conditions,” versus 0.28 g O3/g VOC for ethane (Carter, 2011). Therefore, the EPA considers HFO-1336mzz-Z to be negligibly reactive and eligible for VOC-exempt status in accordance with the Agency's long-standing policy that compounds should so qualify where either reactivity metric (kOH expressed on a molar basis or MIR expressed on a mass basis) indicates that the compound is less reactive than ethane. While the overall atmospheric reactivity of HFO-1336mzz-Z was not studied in an experimental smog chamber, the chemical mechanism derived from other chamber studies (Carter, 2011) was used to model the complete formation of O3 for an entire single day under realistic atmospheric conditions (Carter, 2011a). Therefore, the EPA believes that the MIR value calculated in the Carter study submitted by the petitioner is reliable.

    Table 2 presents three reactivity metrics for HFO-1336mzz-Z as they compare to ethane.

    Table 2—Reactivities of Ethane and HFO-1336mzz-Z Compound kOH
  • (cm3/
  • molecule-sec)
  • Maximum
  • incremental
  • reactivity (MIR)
  • (g O3/mole VOC)
  • Maximum
  • incremental
  • reactivity (MIR)
  • (g O3/g VOC)
  • Ethane 2.4 × 10−13 8.4 0.28 HFO-1336mzz-Z 4.91 × 10−13 6.6 0.04 Notes: 1. kOH value at 298 K for ethane is from Atkinson et al., 2006 (page 3626). 2. kOH value at 296 K for HFO-1336mzz-Z is from Baasandorj, 2011. 3. Mass-based MIR value (g O3/g VOC) of ethane is from Carter, 2011. 4. Mass-based MIR value (g O3/g VOC) of HFO-1336mzz-Z is from a supplemental report by Carter, 2011a. 5. Molar-based MIR (g O3/mole VOC) values were calculated from the mass-based MIR (g O3/g VOC) values using the number of moles per gram of the relevant organic compound.

    The reaction rate of HFO-1336mzz-Z with the OH radical (kOH) has been measured to be 4.91 × 10−13 cm3/molecule-sec (Baasandorj et al., 2011); other reactions with O3 and the nitrate radical were negligibly small. The corresponding reaction rate of ethane with OH is 2.4 × 10−13 cm3/molecule-sec (Atkinson et al., 2006). The data in Table 2 show that HFO-1336mzz-Z has a slightly higher kOH value than ethane, meaning that it initially reacts faster in the atmosphere than ethane. However, a molecule of HFO-1336mzz-Z is less reactive than a molecule of ethane in terms of complete O3-forming activity as shown by the molar-based MIR (g O3/mole VOC) values. Additionally, one gram of HFO-1336mzz-Z has a lower capacity than one gram of ethane to form O3. Thus, following the 2005 Interim Guidance, HFO-1336mzz-Z is eligible to be exempted from the regulatory definition of VOC based on both the molar- and mass-based MIR.

    B. Potential Impacts on Other Environmental Endpoints

    The EPA's proposed decision to exempt HFO-1336mzz-Z from the regulatory definition of VOC is based on our findings above. However, as noted in the 2005 Interim Guidance, the EPA reserves the right to exercise its judgment in certain cases where an exemption is likely to result in a significant increase in the use of a compound and a subsequent significantly increased risk to human health or the environment. In this case, the EPA is proposing to find that exemption of HFO-1336mzz-Z would not result in an increase of risk to human health or the environment, with regard to stratospheric O3 depletion, toxicity and climate change. Additional information on these topics is provided in the following sections.

    1. Contribution to Stratospheric Ozone Depletion

    HFO-1336mzz-Z is unlikely to contribute to the depletion of the stratospheric O3 layer. The O3 depletion potential (ODP) of HFO-1336mzz-Z is expected to be negligible based on several lines of evidence: The absence of chlorine or bromine in the compound and the atmospheric reactions described in Carter (2008). Because HFO-1336mzz-Z has a kOH value that is twice as high as that of ethane (see section III.A “Contribution to Tropospheric Ozone Formation”), it will decay before it has a chance to reach the stratosphere and, thus, will not participate in O3 destruction.

    2. The Significant New Alternatives Policy (SNAP) Program Acceptability Findings

    The SNAP program is the EPA's program to evaluate and regulate substitutes for end-uses historically using ozone-depleting chemicals. Under section 612(c) of the CAA, the EPA is required to identify and publish lists of acceptable and unacceptable substitutes for class I or class II ozone-depleting substances. Per the SNAP program findings, the ODP of HFO-1336mzz-Z is zero. The SNAP program has listed HFO-1336mzz-Z as an acceptable substitute for a number of foam blowing end-uses provided in 79 FR 62863, October 21, 2014 (USEPA, 2014), and as an acceptable substitute in the refrigeration and air conditioning sector in heat transfer, as well as in chillers and industrial process air conditioning provided in 81 FR 32241, May 23, 2016 (USEPA, 2016).

    3. Toxicity

    Based on screening assessments of the health and environmental risks of HFO-1336mzz-Z, the SNAP program anticipated that users will be able to use the compound without significantly greater health risks than presented by use of other available substitutes for the same uses (USEPA, 2014, 2016).

    The EPA anticipates that HFO-1336mzz-Z will be used consistent with the recommendations specified in the manufacturer's safety data sheet (SDS) (DuPont, 2011). According to the SDS, potential health effects from inhalation of HFO-1336mzz-Z include skin or eye irritation or frostbite. Exposure to high concentrations of HFO-1336mzz-Z from misuse or intentional inhalation abuse may cause irregular heartbeat. In addition, HFO-1336mzz-Z could cause asphyxiation if air is displaced by vapors in a confined space. The Workplace Environmental Exposure Limit (WEEL) committee of the Occupational Alliance for Risk Science (OARS) reviewed available animal toxicity data and recommends a WEEL for the workplace of 500 parts per million (ppm) (3350 mg/m3) time-weighted average (TWA) for an 8-hour workday (OARS, 2014). This WEEL was derived based on reduced male body weight in the 13-week rat inhalation toxicity study (Dupont, 2011). The WEEL is also protective against skeletal fluorosis, which may occur at higher exposures because of metabolism. The EPA anticipates that users will be able to meet the WEEL and address potential health risks by following requirements and recommendations in the SDS and other safety precautions common to the refrigeration and air conditioning industry.

    HFO-1336mzz-Z is not regulated as a hazardous air pollutant (HAP) under title I of the CAA. Also, it is not listed as a toxic chemical under section 313 of the Emergency Planning and Community Right-to-Know Act (EPCRA).

    The Toxic Substances Control Act (TSCA) gives the EPA authority to assess and prevent potential unreasonable risks to human health and the environment before a new chemical substance is introduced into commerce. Section 5 of TSCA requires manufacturers and importers to notify the EPA before manufacturing or importing a new chemical substance by submitting a Premanufacture Notice (PMN) prior to the manufacture (including import) of the chemical. Under the TSCA New Chemicals Program, the EPA then assesses whether an unreasonable risk may, or will, be presented by the expected manufacturing, processing, distribution in commerce, use, and disposal of the new substance. The EPA has determined, however, that domestic manufacturing, use in non-industrial products, or use other than as described in the PMN may cause serious chronic health effects. To mitigate risks identified during the PMN review of HFO-1336mzz-Z, the EPA issued a Significant New Use Rule (SNUR) under TSCA on June 5, 2015, to require persons to submit a Significant New Use Notice to the EPA at least 90 days before they manufacture or process HFO-1336mzz-Z for uses other than those described in the PMN (80 FR 32003, 32005, June 5, 2015). The required notification will provide the EPA with the opportunity to evaluate the intended use and, if necessary, to prohibit or limit that activity before it occurs. The EPA, therefore, believes that existing programs address the risk of toxicity associated with the use of HFO-1336mzz-Z.

    4. Contribution to Climate Change

    The Intergovernmental Panel on Climate Change (IPCC) Fifth Assessment Report (IPCC AR5) estimated the lifetime of HFO-1336mzz-Z to be approximately 22 days (Baasandorj et al., 2011), and the gas-phase degradation of HFO-1336-mzz-Z is not expected to lead to a significant formation of atmospherically long-lived species. The radiative efficiency of HFO-1336-mzz-Z was calculated to be 0.38 watts per square meter at the earth's surface per part per billion concentration of the material (W m−2 ppb−1) based on Baasandorj et al., 2011. The report estimated the resulting 100-year GWP to be 9, meaning that, over a 100-year period, one ton of HFO-1336mzz-Z traps 9 times as much warming energy as one ton of carbon dioxide (CO2) (IPCC, 2013). HFO-1336mzz-Z's GWP of 9 is lower than those of some of the substitutes in a variety of foam blowing end-uses and in centrifugal and positive displacement chillers, heat transfer, and industrial process air conditioning. HFO-1336mzz-Z was developed to replace other chemicals used for similar end-uses with GWP ranging from 725 to 5,750 such as CFC-11, CFC-113, HCFC-141b and HCFC-22. The petitioner claims that HFO-1336mzz-Z is a better alternative to other substitutes in foam expansion or blowing agents for use in polyurethane rigid insulating foams. Thermal test data and energy efficiency trials indicate that HFO-1336mzz-Z will provide superior insulating value and, thus, reduces climate change impacts both directly by its low GWP and indirectly by decreasing energy consumption throughout the lifecycle of insulated foams in appliances, buildings, refrigerated storage and transportation.

    C. Conclusions

    The EPA finds that HFO-1336mzz-Z is negligibly reactive with respect to its contribution to tropospheric O3 formation and, thus, may be exempted from the EPA's definition of VOC in 40 CFR 51.100(s). HFO-1336mzz-Z has been listed as acceptable for use in several industrial and commercial refrigeration and air conditioning end-uses, as well as for use as a blowing agent under the SNAP program (USEPA, 2014, 2016). The EPA has also determined that exemption of HFO-1336mzz-Z from the regulatory definition of VOC will not result in an increase of risk to human health and the environment, and, to the extent that use of this compound does have impacts on other environmental endpoints, those impacts are adequately managed by existing programs. For example, HFO-1336mzz-Z has a similar or lower stratospheric O3 depletion potential than available substitutes in those end-uses, and the toxicity risk from using HFO-1336mzz-Z is not significantly greater than the risk from using other available alternatives for the same uses. The EPA has concluded that non-tropospheric O3-related risks associated with potential increased use of HFO-1336mzz-Z are adequately managed by SNAP. The EPA does not expect significant use of HFO-1336mzz-Z in applications not covered by the SNAP program. To the extent that the compound is used in other applications not already reviewed under SNAP or under the New Chemicals Program under TSCA, the SNUR in place under TSCA requires that any significant new use of a chemical be reported to the EPA using a Significant New Use Notice (SNUN). Any significant new use of HFO-1336mzz-Z would, thus, need to be evaluated by the EPA, and the EPA will continually review the availability of acceptable substitute chemicals under the SNAP program.

    IV. Proposed Rule

    The EPA is responding to the petition by proposing to revise its regulatory definition of VOC at 40 CFR 51.100(s) to add HFO-1336mzz-Z to the list of compounds that are exempt from the regulatory definition of VOC because it is less reactive than ethane based on a comparison of mass-based MIR, and molar-based MIR metrics and is, therefore, considered negligibly reactive. If finalized, then for an entity which uses or produces any of this compound and is subject to EPA regulations limiting the use of VOC in a product, limiting the VOC emissions from a facility, or otherwise controlling the use of VOC for purposes related to attaining the O3 NAAQS, this compound will not be counted as a VOC in determining whether these regulatory obligations have been met. Also if finalized, this action would affect whether this compound is considered a VOC for state regulatory purposes to reduce O3 formation, if a state relies on the EPA's regulatory definition of VOC. States are not obligated to exclude from control as a VOC those compounds that the EPA has found to be negligibly reactive. However, no state may take credit for controlling this compound in its O3 control strategy. Consequently, reductions in emissions for this compound will not be considered or counted in determining whether states have met the rate of progress requirements for VOC in State Implementation Plans (SIPs) or in demonstrating attainment of the O3 NAAQS.

    V. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was, therefore, not submitted to the Office of Management and Budget (OMB) for review.

    B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

    This action is expected to be an Executive Order 13771 deregulatory action. This proposed rule is expected to provide meaningful burden reduction by exempting HFO-1336mzz-Z from the VOC regulatory definition and relieving manufacturers, distributers, and users from recordkeeping or reporting requirements. This action is voluntary in nature and has non-quantifiable cost savings given unpredictability in who or how much of it will be used.

    C. Paperwork Reduction Act (PRA)

    This action does not impose an information collection burden under the PRA. It does not contain any recordkeeping or reporting requirements.

    D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. This action, if finalized, removes HFO-1336mzz-Z from the regulatory definition of VOC and, thereby, would relieve manufacturers, distributers, and users of the compound from tropospheric ozone requirements to control emissions of the compound.

    E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. This action imposes no enforceable duty on any state, local or tribal governments, or the private sector.

    F. Executive Order 13132: Federalism

    This action does not have federalism implications. It 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.

    G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications, as specified in Executive Order 13175. This action proposes to remove HFO-1336mzz-Z from the regulatory definition of VOC and, if finalized, would relieve manufacturers, distributers and users from tropospheric ozone requirements to control emissions of the compound. Thus, Executive Order 13175 does not apply to this action.

    H. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

    This action is not subject to Executive Order 13045, because it is not economically significant as defined in Executive Order 12866, and because EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. Since HFO-1336mzz-Z is utilized in specific industrial applications where children are not present and dissipates quickly (e.g., lifetime of 22 days) with short-lived end products, there is no exposure or disproportionate risk to children. This action proposes to remove HFO-1336mzz-Z from the regulatory definition of VOC and, if finalized, would relieve manufacturers, distributers and users from tropospheric ozone requirements to control emissions of the compound.

    I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution or Use

    This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

    J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

    K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). This action proposes to remove HFO-1336mzz-Z from the regulatory definition of VOC and, if finalized, would relieve manufacturers, distributers, and users of the compound from tropospheric ozone requirements to control emissions of the compound.

    L. Judicial Review

    Section 307(b)(1) of the CAA indicates which Federal Courts of Appeal have venue for petitions of review of final actions by EPA. This section provides, in part, that petitions for review must be filed in the Courts of Appeals for the District of Columbia Circuit if (i) the agency action consists of “nationally applicable regulations promulgated, or final action taken, by the Administrator,” or (ii) such action is locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.”

    The EPA proposes to find that any final action related to this rulemaking is “nationally applicable” or of “nationwide scope and effect” within the meaning of CAA section 307(b)(1). Through this rulemaking action, the EPA interprets section 302 of the CAA, a provision which has nationwide applicability. The EPA's proposed change to the regulatory definition of VOC would affect implementation plans and national regulatory programs implicating this pollutant. For this reason, the Administrator proposes to determine that any final action related to the proposed rule is of nationwide scope and effect for purposes of CAA section 307(b)(1). Thus, pursuant to CAA section 307(b) any petitions for review of any final actions regarding the rulemaking would be filed in the United States Court of Appeals for the District of Columbia Circuit within 60 days from the date of any final action published in the Federal Register.

    VI. References Atkinson, R., Baulch, D.L., Cox, R.A., Crowley, J.N., Hampson, Jr., R.F., Hynes, R.G., Jenkin, M. E., Kerr, J.A., Rossi, M.J., and Troe, J. (2006) Evaluated kinetic and photochemical data for atmospheric chemistry: Volume II—gas phase reactions of organic species. Atmos. Chem. Phys. 6: 3625-4055. Baasandorj, M., Ravishankara, A.R., Burkholder, J.B. (2011) Atmospheric chemistry of (Z)-CF3CH═CHCF3: OH radical reaction rate coefficient and global warming potential. J Phys Chem A. 2011 Sep 29;115(38):10539-49. doi: 10.1021/jp206195g. Carter, W.P.L. (1994) Development of ozone reactivity scales for volatile organic compounds. J. Air Waste Manage, 44: 881-899. Carter, W.P.L. (2008) Reactivity Estimates for Selected Consumer Product Compounds, Final Report to California Air Resources Board Contract No. 06-408, February 19, 2008. http://www.arb.ca.gov/research/reactivity/consumer_products.pdf. Carter, W.P.L. (2011) SAPRC Atmospheric Chemical Mechanisms and VOC Reactivity Scales, at http://www.engr.ucr.edu/~carter/SAPRC/. Last updated in Sept. 14, 2013. Tables of Maximum Incremental Reactivity (MIR) Values available at http://www.arb.ca.gov/regact/2009/mir2009/mir2009.htm. May 11, 2011. Carter, W.P.L. (2011a) Estimation of the ground-level atmospheric ozone formation potentials of Cis 1,1,1,4,4,4-HexaFluoro-2-Butene, August 8, 2011. DuPont Haskell. FEA-1100: 90-day inhalation toxicity study in rats; Unpublished Report DuPont-17453-785-1; Haskell Laboratory of Industrial Toxicology: Newark, DE, 2011. IPCC, 2007: Climate Change 2007: The Physical Science Basis. Contribution of Working Group I to the Fourth Assessment Report of the Intergovernmental Panel on Climate Change [Solomon, S., D. Qin, M. Manning, Z. Chen, M. Marquis, K.B. Averyt, M. Tignor and H.L. Miller (eds.)]. Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA, 996 pp. IPCC, 2013: Climate Change 2013: The Physical Science Basis. Contribution of Working Group I to the Fifth Assessment Report of the Intergovernmental Panel on Climate Change [Stocker, T.F., D. Qin, G.-K. Plattner, M. Tignor, S.K. Allen, J. Boschung, A. Nauels, Y. Xia, V. Bex and P.M. Midgley (eds.)]. Cambridge University Press, Cambridge, United Kingdom and New York, NY, USA, 1535 pp. Pitts, J.N. Jr., Winer, A.M., Aschmann, S.M., Carter, W.P.L., and Atkinson, K. (1983), Experimental Protocol for Determining Hydroxyl Radical Reaction Rate Constants Environmental Science Research Laboratory, ORD, USEPA. EPA600/3-82-038. USEPA, 2014. Significant New Alternatives Policy Program; Foam Blowing Sector; Risk Screen on Substitutes in Rigid Polyurethane Appliance Foam; Rigid Polyurethane and Polyisocyanurate Laminated Boardstock; Rigid Polyurethane Commercial Refrigeration and Sandwich Panels; Rigid Polyurethane Slabstock and Other; Flexible Polyurethane; Integral Skin Polyurethane; and Phenolic Insulation Board and Bunstock. Substitute: HFO-1336mzz(Z) (Formacel® 1100); October 10, 2014. Available online at: https://www.thefederalregister.org/fdsys/pkg/FR-2014-10-21/pdf/2014-24989.pdf. USEPA, 2016. Significant New Alternatives Policy Program; Refrigeration and Air Conditioning Sector; Risk Screen on Substitutes for Use in Chillers and Industrial Process Air Conditioning Substitute: HFO-1336mzz(Z) (Opteon® MZ); May 23, 2016. Available online at: https://www.thefederalregister.org/fdsys/pkg/FR-2016-05-23/pdf/2016-12117.pdf. List of Subjects in 40 CFR Part 51

    Environmental protection, Administrative practice and procedure, Air pollution control, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: April 23, 2018. E. Scott Pruitt, Administrator.

    For reasons set forth in the preamble, EPA proposes to amend part 51 of chapter I of title 40 of the Code of Federal Regulations as follows:

    PART 51—REQUIREMENTS FOR PREPARATION, ADOPTION, AND SUBMITTAL OF IMPLEMENTATION PLANS 1. The authority citation for part 51 continues to read as follows: Authority:

    3 U.S.C. 101; 42 U.S.C. 7401-7671q.

    Subpart F—Procedural Requirements 2. Section 51.100 is amended by revising paragraph (s)(1) introductory text to read as follows:
    § 51.100 Definitions.

    (s)(1) This includes any such organic compound other than the following, which have been determined to have negligible photochemical reactivity: methane; ethane; methylene chloride (dichloromethane); 1,1,1-trichloroethane (methyl chloroform); 1,1,2-trichloro-1,2,2-trifluoroethane (CFC-113); trichlorofluoromethane (CFC-11); dichlorodifluoromethane (CFC-12); chlorodifluoromethane (HCFC-22); trifluoromethane (HFC-23); 1,2-dichloro 1,1,2,2-tetrafluoroethane (CFC-114); chloropentafluoroethane (CFC-115); 1,1,1-trifluoro 2,2-dichloroethane (HCFC-123); 1,1,1,2-tetrafluoroethane (HFC-134a); 1,1-dichloro 1-fluoroethane (HCFC-141b); 1-chloro 1,1-difluoroethane (HCFC-142b); 2-chloro-1,1,1,2-tetrafluoroethane (HCFC-124); pentafluoroethane (HFC-125); 1,1,2,2-tetrafluoroethane (HFC-134); 1,1,1-trifluoroethane (HFC-143a); 1,1-difluoroethane (HFC-152a); parachlorobenzotrifluoride (PCBTF); cyclic, branched, or linear completely methylated siloxanes; acetone; perchloroethylene (tetrachloroethylene); 3,3-dichloro-1,1,1,2,2-pentafluoropropane (HCFC-225ca); 1,3-dichloro-1,1,2,2,3-pentafluoropropane (HCFC-225cb); 1,1,1,2,3,4,4,5,5,5-decafluoropentane (HFC 43-10mee); difluoromethane (HFC-32); ethylfluoride (HFC-161); 1,1,1,3,3,3-hexafluoropropane (HFC-236fa); 1,1,2,2,3-pentafluoropropane (HFC-245ca); 1,1,2,3,3-pentafluoropropane (HFC-245ea); 1,1,1,2,3-pentafluoropropane (HFC-245eb); 1,1,1,3,3-pentafluoropropane (HFC-245fa); 1,1,1,2,3,3-hexafluoropropane (HFC-236ea); 1,1,1,3,3-pentafluorobutane (HFC-365mfc); chlorofluoromethane (HCFC-31); 1 chloro-1-fluoroethane (HCFC-151a); 1,2-dichloro-1,1,2-trifluoroethane (HCFC-123a); 1,1,1,2,2,3,3,4,4-nonafluoro-4-methoxy-butane (C4F9OCH3 or HFE-7100); 2-(difluoromethoxymethyl)-1,1,1,2,3,3,3-heptafluoropropane ((CF3)2CFCF2OCH3); 1-ethoxy-1,1,2,2,3,3,4,4,4-nonafluorobutane (C4F9OC2H5 or HFE-7200); 2-(ethoxydifluoromethyl)-1,1,1,2,3,3,3-heptafluoropropane ((CF3)2CFCF2OC2H5); methyl acetate; 1,1,1,2,2,3,3-heptafluoro-3-methoxy-propane (n-C3F7OCH3, HFE-7000); 3-ethoxy-1,1,1,2,3,4,4,5,5,6,6,6-dodecafluoro-2-(trifluoromethyl) hexane (HFE-7500); 1,1,1,2,3,3,3-heptafluoropropane (HFC 227ea); methyl formate (HCOOCH3); 1,1,1,2,2,3,4,5,5,5-decafluoro-3-methoxy-4-trifluoromethyl-pentane (HFE-7300); propylene carbonate; dimethyl carbonate; trans-1,3,3,3-tetrafluoropropene; HCF2OCF2H (HFE-134); HCF2OCF2OCF2H (HFE-236cal2); HCF2OCF2CF2OCF2H (HFE-338pcc13); HCF2OCF2OCF2CF2OCF2H (H-Galden 1040x or H-Galden ZT 130 (or 150 or 180)); trans 1-chloro-3,3,3-trifluoroprop-1-ene; 2,3,3,3-tetrafluoropropene; 2-amino-2-methyl-1-propanol; t-butyl acetate; 1,1,2,2-Tetrafluoro-1-(2,2,2-trifluoroethoxy) ethane; cis-1,1,1,4,4,4-hexafluorobut-2-ene (HFO-1336mzz-Z); and perfluorocarbon compounds which fall into these classes:

    [FR Doc. 2018-09079 Filed 4-30-18; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 76 [MB Docket Nos. 18-92 and 17-105; FCC 18-47] Channel Lineup Requirements—Modernization of Media Regulation Initiative AGENCY:

    Federal Communications Commission.

    ACTION:

    Proposed rule.

    SUMMARY:

    In this document, the Federal Communications Commission (Commission) proposes to eliminate the requirement that cable operators maintain at their local office a current listing of the cable television channels that each cable system delivers to its subscribers. In addition, the Commission invites comment on whether we should also eliminate the requirement that certain cable operators make their channel lineup available via their online public inspection file. In response to a Public Notice launching the Commission's Modernization of Media Regulation Initiative, commenters asked the Commission to consider eliminating both of these requirements because channel lineup information is available from other sources and the requirements are therefore unnecessary. With this proceeding, the Commission continues its efforts to modernize its rules and eliminate outdated and unnecessary regulatory burdens that can impede competition and innovation in the media marketplace.

    DATES:

    Comments may be filed on or before May 31, 2018, and reply comments may be filed on or before June 15, 2018.

    ADDRESSES:

    Interested parties may submit comments and reply comments, identified by MB Docket Nos. 18-92 and 17-105, by any of the following methods:

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

    Federal Communications Commission's website: http://fjallfoss.fcc.gov/ecfs2/. 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. 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:

    Kim Matthews, Media Bureau, Policy Division, 202-418-2154, or email at [email protected].

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Notice of Proposed Rulemaking, MB Docket Nos. 18-92 and 17-105; FCC 18-47, adopted and released on April 17, 2018. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW, Room CY-A257, Washington, DC 20554. The complete text may be purchased from the Commission's copy contractor, 445 12th Street SW, Room CY-B402, Washington, DC 20554. This document will also be available via ECFS at http://fjallfoss.fcc.gov/ecfs/. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format) by sending an email to [email protected] or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

    Synopsis

    1. In this Notice of Proposed Rulemaking (NPRM), we propose to eliminate the requirement in § 76.1705 of the Commission's rules that cable operators maintain at their local office a current listing of the cable television channels that each cable system delivers to its subscribers. We tentatively conclude that this requirement is unnecessary and outdated. In addition, we invite comment on whether we should also eliminate the requirement in § 76.1700(a)(4) that certain cable operators make their channel lineup available via their online public inspection file. In response to a Public Notice launching the Commission's Modernization of Media Regulation Initiative, commenters asked the Commission to consider eliminating both of these requirements because channel lineup information is available from other sources and the requirements are therefore unnecessary. With this proceeding, we continue our efforts to modernize our rules and eliminate outdated and unnecessary regulatory burdens that can impede competition and innovation in the media marketplace.

    2. We propose to eliminate § 76.1705 of our rules, which requires every cable operator “to maintain at its local office a current listing of the cable television channels” delivered by the system to its subscribers. This requirement was originally adopted in 1972 as part of the Commission's technical standard performance rules for cable. Among the Commission's goals in the 1972 Cable Order was to ensure that the “channels delivered to subscribers conform to the capability of the television broadcast receiver.” While the Commission did not explain in its order exactly why it believed it was necessary for a system to maintain at its local office a list of the channels it delivers, it appears that the requirement was designed to help the Commission verify compliance with technical performance standards that applied to certain cable channels at that time.

    3. We tentatively conclude that the requirement to maintain a channel lineup locally is outdated, unnecessary, and inconsistent with the Commission's recent efforts to improve access to information about regulated entities by making this information available online. See Standardized and Enhanced Disclosure Requirements for Television Broadcast Licensee Public Interest Obligations, Second Report and Order, 77 FR 27631 (May 11, 2012) (Television Online Public File Order); Expansion of Online Public File Obligations to Cable and Satellite TV Operators and Broadcast and Satellite Radio Licensees, Report and Order, 81 FR 10105 (Reb. 29, 2016) (“Expanded Online Public File Order”). Regardless of the original purpose of the rule, information about the channel lineups of individual cable operators is now available through other sources, including, in many cases, the websites of the operator, on-screen electronic program guides, paper guides, and the Commission-hosted online public inspection file (OPIF). We therefore believe that few, if any, consumers interested in channel lineup information currently access this information by visiting an operator's local office as other sources of channel lineup information can be viewed far more quickly and easily.

    4. We invite comment on our tentative conclusion. How often do consumers visit a cable operator's local office to view its channel lineup? Is Commission regulation in this area unnecessary because cable operators have the economic incentive to ensure that customers and prospective customers are able to find out which channels they deliver? Is there any benefit to retaining the requirement in § 76.1705 that we should consider? For example, is there any benefit to regulators, including local franchising authorities, to having this information continue to be available locally, or can regulators easily access this information from other sources, including directly from the cable operator, without § 76.1705? Commenters who advocate in favor of or against retaining this rule should discuss whether and how the benefits of doing so outweigh any costs.

    5. We also invite comment on whether we should eliminate the requirement that cable operators make channel lineup information available for public inspection pursuant to § 76.1700(a)(4) through the online public file. In the Expanded Online Public File Order, the Commission expanded to cable operators of systems with at least 1,000 subscribers, as well as broadcast and satellite radio licensees and DBS providers, the requirement that public inspection files be posted to the Commission-hosted online public file database. In that order, the Commission also required cable operators subject to the new online file requirements to comply with § 76.1700(a)(4) either by uploading to the online public file information regarding their current channel lineup, and keeping this information up-to-date, or providing a link in the online file to the channel lineup maintained by the operator at another online location. While the Commission recognized that cable operators may provide channel lineup information to subscribers in other ways, and that they have an incentive to present this information on their own websites, it declined to exclude this information from the list of material cable operators were required to include in the online public file as advocated by cable commenters. In doing so, the Commission noted that its focus in the Expanded Online Public File proceeding was on adapting its existing public file requirements to an online format rather than considering substantive changes to the public file rules.

    6. Several commenters in the Media Modernization proceeding have asked the Commission to eliminate the channel lineup public file requirement on the ground that consumers have multiple other sources of information about a cable system's current channel lineup, including cable operator and third-party websites, on-screen electronic programming guides, and copies of lineups provided by cable operators. NCTA argues that “[t]here is no indication in the record or elsewhere that consumers find the channel lineups in public inspection files to be useful at all, or that they would look to the Commission's website to locate such information.” NCTA also notes that the Commission does not require channel lineup information to be included in the public files of DBS providers, who provide video programming options similar to cable operators.

    7. We seek comment on whether there are sufficient other sources of information, apart from the online public file, available to consumers regarding cable channel lineups. In this regard, we note that § 76.1602(b) of the Commission's rules separately requires cable operators to provide information to subscribers regarding the “channel positions of programming carried on the system” and “products and services offered” at the time of installation, at least annually, and at any time upon request. Is this requirement, combined with other sources of information regarding a cable system's channel lineup, sufficient to ensure that consumers have access to information regarding the programming provided by cable operators? Is there a benefit to having information about cable systems, including channel lineup information, available all in one place in the system's online public file? How frequently do consumers use the online public file to access channel lineup information? How do consumers currently access the channel lineup information of DBS providers who are not subject to this online posting requirement? Is such information easily accessible?

    8. Absent an online public file requirement, would channel lineup information be available to consumers and others who are not subscribers to the cable system, including those interested in comparing channel offerings by competing providers? Is Commission regulation in this area unnecessary because cable operators have the economic incentive to ensure that customers and prospective customers are able to find out which channels they deliver? For example, would this information be posted conspicuously on the website of a cable provider? Should we require operators subject to § 76.1700(a)(4) to instead put channel lineup information on their own website? If we adopt such a website requirement, should operators “maintain a current listing of the cable television channels which that systems delivers to its subscribers” on their website as our public file rule requires? What is the cost associated with the existing requirement that operators either upload channel lineup information to the online public file and keep this information current or provide a link in the online file to the channel lineup maintained by the operator at another online location? Would regulators benefit from access to channel lineup information via the online public file, particularly if we eliminate 76.1705 as proposed above? If so, how? We request that commenters address how the potential benefits of their proposal would outweigh any potential costs.

    9. Operators of cable systems with fewer than 1,000 subscribers are exempt from all online public file requirements, including the requirement to make channel lineup information available via the online file, but they must maintain local public inspection files and are subject to the requirement in § 76.1705 that they maintain a copy of their current channel lineup locally. If we eliminate § 76.1705, as proposed above, will there continue to be adequate access to information about the channels delivered by these smaller cable systems? To what extent do small operators make channel lineup information available via the internet or electronic programming guides? How often do consumers visit small operators' local inspection files to view channel lineups? Is Commission regulation in this area unnecessary because operators of small cable systems have the economic incentive to ensure that customers and prospective customers are able to find out which channels they deliver? We note that all cable systems regardless of size are subject to the notification requirements in § 76.1602(b), discussed above. Alternatively, if we eliminate § 76.1705 but retain the requirement that cable systems subject to the online public file make channel lineup information available there, should we require that cable systems with fewer than 1,000 subscribers continue to retain channel lineup information locally, if they do not voluntarily use the online public file? Should we instead require small cable operators to put channel lineup information on their own website? If so, should small cable operators “maintain a current listing of the cable television channels which that systems delivers to its subscribers” on their website?

    Procedural Matters A. Initial Regulatory Flexibility Analysis

    10. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared an Initial Regulatory Flexibility Act Analysis (IRFA) relating to this NPRM. The IRFA is set forth in Appendix B.

    B. Initial Paperwork Reduction Act Analysis

    11. This document contains proposed modified 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), we seek specific comment on how we might further reduce the information collection burden for small business concerns with fewer than 25 employees.

    C. Ex Parte Presentations

    12. Permit-But-Disclose. This proceeding shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable.pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

    D. Comment Filing Procedures

    13. Comments and Replies. Pursuant to §§ 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

    Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: http://fjallfoss.fcc.gov/ecfs2/.

    Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number.

    Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

    • All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

    • Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.

    • U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.

    14. Availability of Documents. Comments, reply comments, and ex parte submissions will be available for public inspection during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street, SW, CY-A257, Washington, DC 20554. These documents will also be available via ECFS. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat.

    15. People with Disabilities. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the FCC's Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY).

    E. Additional Information

    16. For additional information on this proceeding, please contact Kim Matthews of the Media Bureau, Policy Division, [email protected], (202) 418-2154.

    Initial Regulatory Flexibility Act Analysis

    17. As required by the Regulatory Flexibility Act of 1980, as amended (“RFA”), the Commission has prepared this Initial Regulatory Flexibility Analysis (“IRFA”) concerning the possible significant economic impact on small entities of the policies and rules proposed in the Notice of Proposed Rulemaking (NPRM). Written public comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments provided on the first page of the NPRM. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA). In addition, the NPRM and IRFA (or summaries thereof) will be published in the Federal Register.

    A. Need for, and Objectives of, the Proposed Rule Changes

    18. The NPRM proposes to eliminate the requirement in § 76.1705 of the Commission's rules that cable operators maintain at their local office a current listing of the cable television channels that each cable system delivers to its subscribers. We tentatively conclude that this requirement is unnecessary, outdated, and inconsistent with our recent efforts to make licensee information available online. The NPRM also seeks comment on whether the Commission should eliminate the requirement in § 76.1700(a)(4) that cable operators of systems with 1,000 or more subscribers make a current copy of their channel lineup available via their online public inspection file. These operators may either upload information regarding their channel lineup to the online file, and keep that information current, or provide a link in their online file to the channel lineup maintained by the operator at another online location. The NPRM also asks if we should instead require operators subject to § 76.1700(a)(4) to put channel lineup information on their own website and, if so, whether we should require these operators to “maintain a current listing of the cable television channels which that systems delivers to its subscribers” on their website as our public file rules currently require.

    19. Operators of cable systems with fewer than 1,000 subscribers are exempt from all online public file requirements, including the requirement to make channel lineup information available via the online file, but they must maintain local public inspection files and are subject to the requirement in § 76.1705 that they maintain a copy of their current channel lineup locally. The NPRM asks whether, if we eliminate § 76.1705, there will continue to be adequate access to channel lineup information for systems with fewer than 1,000 subscribers, or whether we should instead continue to require these small operators to maintain current channel lineup information in their local public inspection files if they do not voluntarily use the online public file. The NPRM also asks if we should instead require small cable operators to put channel lineup information on their own website and, if so, we should require these operators to “maintain a current listing of the cable television channels which that systems delivers to its subscribers” on their website. Our goal is to ensure that consumers have sufficient access to channel lineup information and to continue our efforts to modernize our rules and reduce regulatory burdens on cable operators by eliminating unnecessary requirements in our rules.

    B. Legal Basis

    20. The proposed action is authorized pursuant to sections 1, 2, 4(i), 4(j), 303, 601 and 624(e) of the Communications Act, 47 U.S.C. 151, 152, 154(i), 154(j), 303, 521 and 624(e).

    C. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply

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

    22. Cable Companies and Systems (Rate Regulation). The Commission has developed its own small business size standards for the purpose of cable rate regulation. Under the Commission's rules, a “small cable company” is one serving 400,000 or fewer subscribers nationwide. Industry data indicate that all but nine cable operators nationwide are small under the 400,000 subscriber size standard. In addition, under the Commission's rate regulation rules, a “small system” is a cable system serving 15,000 or fewer subscribers. Of the 4,197 active cable systems nationwide, we estimate that approximately 85 percent have 15,000 or fewer subscribers, and the rest have more than 15,000 subscribers. Thus, under this standard as well, we estimate that most cable systems are small entities.

    23. Cable System Operators (Telecom Act Standard). The Communications Act of 1934, as amended, also contains a size standard for small cable system operators, which is “a cable operator that, directly or through an affiliate, serves in the aggregate fewer than one percent of all subscribers in the United States and is not affiliated with any entity or entities whose gross annual revenues in the aggregate exceed $250,000,000.” There are approximately 52,403,705 cable video subscribers in the United States today. Accordingly, an operator serving fewer than 524,037 subscribers shall be deemed a small operator if its annual revenues, when combined with the total annual revenues of all its affiliates, do not exceed $250 million in the aggregate. Based on available data, we find that all but nine incumbent cable operators are small entities under this size standard. We note that the Commission neither requests nor collects information on whether cable system operators are affiliated with entities whose gross annual revenues exceed $250 million. Although it seems certain that some of these cable systems operators are affiliated with entities whose gross annual revenues exceed $250 million, we are unable at this time to estimate with greater precision the number of cable system operators that would qualify as small cable operators under the definition in the Communications Act.

    D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

    24. The NPRM proposes to eliminate the requirement in § 76.1705 of the Commission's rules that cable operators maintain at their local office a current listing of the cable television channels that each cable system delivers to its subscribers. This rule change would reduce reporting, recordkeeping, and other compliance requirements for cable operators which are currently required to maintain a current channel lineup for each system in the cable operator's local office. In addition, the NPRM seeks comment on whether to eliminate the requirement in § 76.1700(a)(4) of the Commission's rules that cable systems with 1,000 or more subscribers make a current copy of their channel lineup available via their online public inspection file. If the Commission eliminated this requirement, it would further reduce reporting, recordkeeping, and other compliance requirements for these cable operators. Alternatively, the NPRM asks whether cable operators subject to § 76.1700(a)(4) should instead be required to put channel lineup information on their own website and, if so, whether we should require these operators to “maintain a current listing of the cable television channels which that systems delivers to its subscribers” on their website as our public file rules currently require.

    25. Operators of cable systems with fewer than 1,000 subscribers are exempt from all online public file requirements, including the requirement to make channel lineup information available via the online file, but they must maintain local public inspection files and are subject to the requirement in § 76.1705 that they maintain a copy of their current channel lineup locally. The NPRM asks whether, if we eliminate § 76.1705, there will continue to be adequate access to channel lineup information for systems with fewer than 1,000 subscribers, or whether we should instead continue to require these small operators to maintain current channel lineup information in their local public inspection files or put this information on their own websites if they do not voluntarily use the online public file. If we adopt a website requirement, the NPRM asks if we should require these operators to “maintain a current listing of the cable television channels which that systems delivers to its subscribers” on their website.

    E. Steps Taken To Minimize Significant Impact on Small Entities and Significant Alternatives Considered

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

    27. The NPRM proposes to eliminate the requirement that cable operators maintain a current channel lineup in the cable operator's local office, and invites comment on this proposal and whether there are reasons why this requirement should be retained. Eliminating this requirement would eliminate the costs of maintaining this information locally and making it available to those asking to view it, including any related managerial, administrative, and operational costs. The Commission considered the alternative of not eliminating this requirement but has tentatively concluded the requirement is unnecessary and outdated and should be eliminated.

    28. In addition, the NPRM invites comment on whether to eliminate the requirement that cable systems with 1,000 or more subscribers make a current copy of their channel lineup available via their online public inspection file, or whether this requirement should be retained to ensure that consumers have sufficient access to channel lineup information. Alternatively, the NPRM asks whether cable operators subject to § 76.1700(a)(4) should instead be required to put channel lineup information on their own website and, if so, whether we should require these operators to “maintain a current listing of the cable television channels which that systems delivers to its subscribers” on their website as our public file rules currently require.

    29. Operators of cable systems with fewer than 1,000 subscribers are exempt from all online public file requirements, including the requirement to make channel lineup information available via the online file, but they must maintain local public inspection files and are subject to the requirement in § 76.1705 that they maintain a copy of their current channel lineup locally. The NPRM asks whether, if we eliminate § 76.1705, there will continue to be adequate access to channel lineup information for systems with fewer than 1,000 subscribers, or whether we should instead continue to require these small operators to maintain current channel lineup information in their local public inspection files if they do not voluntarily use the online public file. The NPRM also asks if we should instead require small cable operators to put channel lineup information on their own website and, if so, we should require these operators to “maintain a current listing of the cable television channels which that systems delivers to its subscribers” on their website.

    F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule

    30. None.

    Ordering Clauses

    31. Accordingly, it is ordered that, pursuant to the authority contained in sections 1, 4(i), 4(j), 303(r), 601, and 624(e) of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 154(j), 303(r), 521, and 544(e) this Notice of Proposed Rulemaking is adopted.

    32. It is further ordered that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Notice of Proposed Rulemaking, including the Initial Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

    List of Subjects in 47 CFR Part 76

    Cable television operators.

    Federal Communications Commission. Marlene Dortch, Secretary, Office of the Secretary. Proposed Rules

    For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 76 as follows:

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

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

    2. Section 76.1700 is amended by revising paragraph (a)(4) to read as follows:
    § 76.1700 Records to be maintained by cable system operators

    (a) * * *

    (4) Channels delivered. The operator of each cable television system shall maintain a current listing of the cable television channels which that system delivers to its subscribers;

    § 76.1705 [Removed and Reserved]
    3. Section 76.1705 is removed and reserved.
    [FR Doc. 2018-09065 Filed 4-30-18; 8:45 am] BILLING CODE 6712-01-P
    83 84 Tuesday, May 1, 2018 Notices DEPARTMENT OF AGRICULTURE Food and Nutrition Service Agency Information Collection Activities: Proposed Collection; Comment Request—Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) Infant and Toddler Feeding Practices Study-2 (WIC ITFPS-2) Age 6 Extension Study AGENCY:

    Food and Nutrition Service (FNS), USDA.

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, this notice invites the general public and other public agencies to comment on this proposed information collection. This collection is a revision of the currently approved Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) Infant and Toddler Feeding Practices 2 Study (ITFPS-2) [OMB Control Number 0584-0580]. The revision is to extend data collection on the original cohort of study participants by an additional year, to their 6th birthdays and therefore one year after the end of their period of eligibility for WIC services. The data will be used to estimate the type and prevalence of various feeding practices among children who received WIC program benefits, after their program eligibility ends. This study will also examine the circumstances and influences that shape caregivers' feeding decisions for their children, and will describe the impact of childhood WIC participation on subsequent dietary and health outcomes.

    DATES:

    Written comments must be received on or before July 2, 2018.

    ADDRESSES:

    Comments may be sent to: Courtney Paolicelli, DrPH, RDN, Social Science Research Analyst, Office of Policy Support, Food and Nutrition Service, USDA, 3101 Park Center Drive, Room 1014, Alexandria, VA 22302. Comments may also be submitted via fax to the attention of Danielle Berman at 703-305-2698 or via email to [email protected]. Comments will also be accepted through the Federal eRulemaking Portal. Go to http://www.regulations.gov and follow the online instructions for submitting comments electronically.

    All responses to this notice will be summarized and included in the request for Office of Management and Budget approval. All comments will be a matter of public record.

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of this information collection should be directed to Danielle Berman at 703-305-2698.

    SUPPLEMENTARY INFORMATION:

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions that were used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    Title: Special Supplemental Nutrition Program for Women, Infants, and Children (WIC) Infant and Toddler Feeding Practices Study-2 (ITFPS-2) Age 6 Extension.

    Form Number: N/A.

    OMB Number: 0584-0580.

    Expiration Date of Approval: 07/31/2019.

    Type of request: Revision of a currently approved collection.

    Abstract: The USDA Food and Nutrition Service's (FNS) WIC ITFPS-2 will provide information on the feeding practices of children who received WIC benefits, from birth up to 5 years of age. The proposed revision will extend the longitudinal data collection of the current cohort of study participants up to 6 years of age, one year after the end of their eligibility for WIC services. This proposed extension is needed to understand the nutrition, health outcomes, and family feeding practices of children in this key period after WIC program eligibility ends. The results will assist in the development of appropriate and effective prevention strategies to improve the health of young children. With nearly 50 percent of US infants participating in WIC, it is hoped that prevention strategies implemented in WIC will have a substantial impact on the growth and health of U.S. infants and children.

    The study activities subject to this notice include: Informing 27 WIC State Agencies and 80 local WIC sites that the study has been extended for an additional year, and their role in the study's extension; contacting 4,046 caregivers between the 60 and 72 month interviews, to notify them of the extension and provide consent and study reminders; administering an additional telephone interview to caregivers of children enrolled in the study when their child is 72-months old; administering a second dietary intake interview to a subsample of caregivers who complete the first interview; and obtaining their child's height and weight measurements at 72 months from caregiver's provision to the study of health care provider measurements, or from direct measurements taken at WIC sites.

    The WIC State Agency and local WIC site staff will be invited to participate in a webinar that will highlight key study findings to date (from reports approved and published by FNS) and describe the study extension to age 6. The 27 State Agencies and 80 sites will participate in conference calls to discuss the follow-up activities.

    Each study participant will receive a letter about the study extension. Prior to being contacted for the 72-month telephone interview, the caregiver for each child in the cohort will be mailed an advance letter that includes a toll-free number to call for questions or to complete the interview. Participants will receive periodic mailings, calls, emails, and text messages reminding them of the upcoming 72 month interview and height and weight (H/W) measurement. Children's H/W measures will come from provider records supplied by caregivers, or WIC site staff will weigh and measure study children at age 72 months. WIC site staff will also provide updated contact information on study participants who are still in contact with WIC when requested.

    Affected Public: Respondent groups identified include: (1) Individuals/Households, including caregivers of children formerly on WIC; and (2) State, Local, or Tribal government, including WIC State Agency staff from 27 states and territories, and local site staff from 80 WIC sites.

    Estimated Number of Respondents: The total estimated number of respondents is 5,220. This includes 2,969 caregivers of children formerly receiving WIC who originally enrolled in the study; 27 WIC State Agency points-of-contact; 80 local WIC site staff members; and 2,144 non-respondents.

    Estimated Number of Responses per Respondent: Caregivers of former WIC children will be asked to respond to: 1 study extension letter; 1 informed consent; 1 advance letter; 1 main telephone survey; 1 replicate dietary intake telephone survey; 1 child height/weight measurement; 2 interview reminders; 1 height and weight measurement reminder; 1 thank-you message; 2 birthday cards, for a total of 9 responses. WIC State Agency points-of-contact will respond to 1 study extension webinar; 1 conference call; and 1 written summary of the study extension and agreed upon activities, for a total of 3 responses. WIC local site points-of-contact will respond to 1 study extension webinar; 1 conference call; 1 written summary of the study extension and agreed upon activities; 15 requests for contact information for caregivers; and 9 child height/weight measurements, for a total of 27 responses. The estimated number of responses per respondent across the entire collection, including the non-respondents, is 7 responses.

    Estimated Total Annual Responses: 36,664 total responses (total responses from respondents and non-respondents).

    Estimated Time per Response: The estimated time per response varies from less than one minute to 60 minutes, depending on the activity and respondent type. The average estimated time per response is .11 hours for all participants.

    Estimated Total Annual Burden on Respondents: 3,983.36 hours. See Table 1 below for estimated burden by respondent type.

    Dated: April 18, 2018. Brandon Lipps, Administrator, Food and Nutrition Service. EN01MY18.011
    [FR Doc. 2018-09216 Filed 4-30-18; 8:45 am] BILLING CODE 3410-30-P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Kentucky Advisory Committee; Correction AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Correction: Announcement of meeting.

    SUMMARY:

    The Commission on Civil Rights published a document April 16, 2018, announcing an upcoming Kentucky Advisory Committee. The document contained an incorrect date of the meeting.

    FOR FURTHER INFORMATION CONTACT:

    Jeff Hinton, DFO, at jhin[email protected] or 404-562-7706.

    Correction: In the Federal Register of April 16, 2018, in FR Doc. 2018-07841, on page 16285, in the first and second columns, correct the DATES caption to read:

    DATES:

    The meeting will be held on Monday, May 17, 2018 at 12:00 EST.

    Dated: April 26, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-09192 Filed 4-30-18; 8:45 am] BILLING CODE P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Illinois Advisory Committee to the U.S. Commission on Civil Rights AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Announcement of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the Illinois Advisory Committee (Committee) will hold a meeting on Wednesday June 13, 2018, at 12:00 p.m. CDT for the purpose of discussing civil rights concerns in the state.

    DATES:

    The meeting will be held on Wednesday, June 13, 2018, at 12:00 p.m. CDT.

    ADDRESSES:

    Public call information: Dial: 888-220-8670, Conference ID: 9601222.

    FOR FURTHER INFORMATION CONTACT:

    Melissa Wojnaroski, DFO, at [email protected] or 312-353-8311.

    SUPPLEMENTARY INFORMATION:

    Members of the public may listen to the discussion. This meeting is available to the public through the call in information listed above. Any interested member of the public may call this number and listen to the meeting. An open comment period will be provided to allow members of the public to make a statement to the Committee as time allows. The conference call operator will ask callers to identify themselves, the organization they are affiliated with (if any), and an email address prior to placing callers into the conference room. Callers can expect to incur regular charges for calls they initiate over wireless lines, according to their wireless plan. The Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.

    Members of the public are also entitled to submit written comments; the comments must be received in the regional office within 30 days following the meeting. Written comments may be mailed to the Midwestern Regional Office, U.S. Commission on Civil Rights, 230 South Dearborn St., Suite 2120, Chicago, IL 60604. They may also be faxed to the Commission at 312-353-8324, or emailed to Carolyn Allen at [email protected] Persons who desire additional information may contact the Midwestern Regional Office at 312-353-8311.

    Records generated from this meeting may be inspected and reproduced at the Midwestern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via www.facadatabase.gov under the Commission on Civil Rights, Illinois Advisory Committee link (http://www.facadatabase.gov/committee/meetings.aspx?cid=246). Select “meeting details” and then “documents” to download. Persons interested in the work of this Committee are directed to the Commission's website, http://www.usccr.gov, or may contact the Midwestern Regional Office at the above email or street address.

    Agenda Welcome and Roll Call Discussion: Civil Rights in Illinois Public Comment Future Plans and Actions Adjournment Dated: April 26, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-09191 Filed 4-30-18; 8:45 am] BILLING CODE P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the North Carolina Advisory Committee for a Meeting To Discuss Potential Project Topics AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Notice of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act that the North Carolina (State) Advisory Committee will hold a meeting on Thursday, May 24, 2018, to discuss potential project topics.

    DATES:

    The meeting will be held on Thursday May 24, 2018 at 12:00 p.m. EST.

    ADDRESSES:

    The meeting will be by teleconference. Toll-free call-in number: 888-572-7034, conference ID: 2516963.

    FOR FURTHER INFORMATION CONTACT:

    Jeff Hinton, DFO, at [email protected] or 404-562-7006.

    SUPPLEMENTARY INFORMATION:

    Members of the public can listen to the discussion. This meeting is available to the public through the following toll-free call-in number: 888-572-7034, conference ID: 2516963. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-977-8339 and providing the Service with the conference call number and conference ID number.

    Members of the public are also entitled to submit written comments; the comments must be received in the regional office by January 27, 2016. Written comments may be mailed to the Southern Regional Office, U.S. Commission on Civil Rights, 61 Forsyth Street, Suite 16T126, Atlanta, GA 30303. They may also be faxed to the Commission at (404) 562-7005, or emailed to Regional Director, Jeffrey Hinton at [email protected] Persons who desire additional information may contact the Southern Regional Office at (404) 562-7000.

    Records generated from this meeting may be inspected and reproduced at the Southern Regional Office, as they become available, both before and after the meeting. Records of the meeting will be available via www.facadatabase.gov under the Commission on Civil Rights, North Carolina Advisory Committee link. Persons interested in the work of this Committee are directed to the Commission's website, http://www.usccr.gov, or may contact the Southern Regional Office at the above email or street address.

    Agenda Welcome and Introductions Thea Monet, Chair North Carolina Advisory Committee discussion of potential project topics Thea Monet, Chair Open Comment Staff/Advisory Committee Public Participation Adjournment Dated: April 26, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-09193 Filed 4-30-18; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE Bureau of the Census [Docket Number 180319296-8296-01] Final Content Design for the Prototype 2020 Census Redistricting Data File AGENCY:

    Bureau of the Census, Department of Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Bureau of the Census (U.S. Census Bureau) hereby provides notification of the final design for the Prototype 2020 Census Redistricting Data File to be produced from the 2018 End-to-End Census Test. In addition, this notice contains a summary of the comments received in response to the November 8, 2017 Federal Register notice as well as the Census Bureau's responses to those comments. We are issuing this notice to inform the public of the expected data tables being produced from the 2018 End-to-End Census Test as part of Phase 3 (Data Delivery phase) of the 2020 Census Redistricting Data Program.

    DATES:

    The Final Content Design for the Prototype 2020 Census Redistricting Data File in this notice will be official May 31, 2018.

    FOR FURTHER INFORMATION CONTACT:

    James Whitehorne, Chief, Census Redistricting and Voting Rights Data Office, U.S. Census Bureau, 4600 Silver Hill Road, Room 4H057, Washington, DC 20233, telephone (301) 763-4039, or email [email protected].

    SUPPLEMENTARY INFORMATION:

    Under the provisions of Public Law 94-171, as amended (Title 13, United States Code (U.S.C.), Section 141(c)), the Director of the Census Bureau is required to provide the “officers or public bodies with initial responsibility for legislative apportionment or districting of each state . . .” with the opportunity to specify small geographic areas (e.g., census blocks, voting districts, wards, and election precincts) for which they wish to receive decennial census population totals for the purpose of reapportionment and redistricting.

    By April 1 of the year following the census, the Secretary of Commerce is required to furnish those state officials or their designees with population counts for counties, cities, census blocks, and state-specified congressional districts, legislative districts, and voting districts.

    The 2020 Census Redistricting Data Program was initially announced on July 15, 2014, in the Federal Register (79 FR 41258). This notice described the program that the Census Bureau proposed to adopt for the 2020 Census. As seen in the 1990, 2000, and 2010 censuses, the 2020 Census Redistricting Data Program is partitioned into several phases. Phase 1, the Block Boundary Suggestion Project, was announced in a Federal Register notice on June 26, 2015 (80 FR 36765). This notice described the procedures for the states to provide the Census Bureau with their suggestions for the 2020 Census tabulation block inventory. Phase 2, the Voting District Project, was announced in a Federal Register notice on June 28, 2017 (82 FR 29276). This second phase specifically provides states the opportunity to provide the Census Bureau with their voting district boundaries (election precincts, wards, etc.). Phase 3 of the 2020 Redistricting Data Program is data delivery.

    The 2020 Census Redistricting Data Program provides states the opportunity to specify the small geographic areas for which they wish to receive 2020 Census population totals for the purpose of reapportionment and redistricting. This notice pertains to Phase 3, the Data Delivery phase of the program, and the content of the Prototype 2020 Census Redistricting Data File that will be produced from the 2018 End-to-End Census Test.

    Summary of Comments Received in Response to the “Proposed Content for the Prototype 2020 Census Redistricting Data File”

    On November 8, 2017, the Census Bureau published a notice in the Federal Register asking for public comment on the “Proposed Content for the Prototype 2020 Census Redistricting Data File” (82 FR 51805). The Census Bureau received three comments.

    Comment 1: The comment expressed support for keeping separate questions on Hispanic origin and race.

    Response to Comment 1: As this Federal Register notice pertains to data product format and not data collection methods, this comment is considered outside the scope of this notice.

    Comment 2: The comment expressed support for including the group quarters tabulation as a part of the data product.

    Response to Comment 2: The group quarters tabulation will be included as a part of the Prototype 2020 Redistricting Data File.

    Comment 3: The comment expressed support for a Middle East North African race or ethnicity category for data collection.

    Response to Comment 3: As this Federal Register notice pertains to data product format and not data collection methods, this comment is considered outside the scope of this notice.

    The Census Bureau will continue to communicate with each state to ensure all are well informed of the benefits of working with the Census Bureau toward a successful 2020 Census. In addition, the Census Redistricting and Voting Rights Data Office will continue to work with each state to ensure that all are prepared to participate in every phase of the Redistricting Data Program. As required by Public Law 94-171, every state, regardless of its participation in Phase 1 or Phase 2, will receive the official redistricting data in Phase 3.

    Final Content Design for the Prototype 2020 Census Redistricting Data File

    This final content design takes into account that the Census Bureau has now determined that planned race and ethnicity questions for the 2020 Census will follow a two-question format. The decision to use separate questions is detailed in the 2020 Census Memorandum Series as Memorandum 2018.02. It is available at: https://www.census.gov/programs-surveys/decennial-census/2020-census/planning-management/memo-series/2020-memo-2018_02.html.

    While the decision to use separate questions means the final content design announced here differs from what was proposed in the previous notice, the possibility of using separate questions for race and ethnicity and its effect on the prototype file design was addressed in that notice. Using separate questions follows the most current race and ethnicity collection guidance set by the Office of Management and Budget, which remains unchanged since 1997.

    In accordance with the provisions of Title 13, U.S.C., Section 141(c), and on behalf of the Secretary of Commerce, the U.S. Census Bureau Director previously requested comments on the proposed content of the required population counts being produced as part of Phase 3 of the 2020 Census Redistricting Data Program.

    The proposed content stated that should the Census Bureau use separate questions on race and ethnicity, then the prototype file would revert to the same design as that used for the 2010 Census. In addition, the proposed content stated that regardless of whether a separate or combined question format is used in the 2020 Census, a group quarters table will be added to assist those states that reallocate populations before redistricting. This table will include the group quarters categories of: Institutionalized populations (correctional facilities for adults, juvenile facilities, nursing facilities/skilled nursing facilities, and other institutional facilities) and noninstitutionalized populations (college/university student housing, military quarters, and other non-institutionalized facilities). The group quarters table will include state, county, county subdivision, voting district, tract, and block geographic levels for the total population in the group quarters count. Thus, the final design of the Prototype 2020 Census Redistricting Data File will be the same design as that used for the 2010 Census Redistricting Data File, with the addition of a group quarters table.

    A schematic of the tables planned for the Prototype 2020 Census Redistricting File is available at the Census Bureau's FTP site at: https://www2.census.gov/programs-surveys/decennial/rdo/about/2020-census-program/Phase3/Phase3_prototype_schematic_final.pdf.

    Dated: April 24, 2018. Ron S. Jarmin, Associate Director for Economic Programs Performing the Non-Exclusive Functions and Duties of the Director Bureau of the Census.
    [FR Doc. 2018-09189 Filed 4-30-18; 8:45 am] BILLING CODE 3510-07-P
    DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. chapter 35).

    Agency: International Trade Administration.

    Title: Export Trade Certificate of Review.

    OMB Control Number: 0625-0125.

    Form Number(s): ITA-4093P.

    Type of Request: Regular Submission.

    Number of Respondents: 9.

    Average Hours per Response: 32 hours (application); 2 hours (annual report).

    Burden Hours: 440 hours.

    Needs and Uses: The collection of information is necessary for both the Departments of Commerce and Justice to conduct an analysis, in order to determine whether the applicant and its members are eligible to receive the protection of an Export Trade Certificate of Review and whether the applicant's proposed export-related conduct meets the standards in Section 303(a) of the Act. The collection of information constitutes the essential basis of the statutory determinations to be made by the Secretary of Commerce and the Attorney General.

    Affected Public: Business or other for profit organizations; not-for-profit institutions, and state, local or tribal government.

    Frequency: Submission of an application form is required each time an entity of the affected public applies for a new or amended Export Trade Certificate of Review. Completion of an annual report is required one time per year from existing Certificate holders.

    Respondent's Obligation: Voluntary.

    This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Sheleen Dumas, Departmental Lead PRA Officer, Office of the Chief Information Officer.
    [FR Doc. 2018-09116 Filed 4-30-18; 8:45 am] BILLING CODE 3510-DR-P
    DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

    Agency: International Trade Administration.

    Title: Survey of International Air Travelers (SIAT).

    OMB Control Number: 0625-0227.

    Form Number(s): None.

    Type of Request: Regular submission (extension and revision of a currently approved information collection).

    Number of Respondents: 300,000.

    Average Hours per Response: 15 minutes.

    Burden Hours: 75,000.

    Needs and Uses: The Survey of International Air Travelers (SIAT) program, administered by the National Travel and Tourism Office (NTTO) of the International Trade Administration provides source data required to: (1) Estimate international travel and passenger fare exports, imports and the trade balance for the United States, (2) comply with the U.S. Travel Promotion Act of 2009 (Pub. L. 111-145), collect, analyze and report information to the Corporation for Travel Promotion (CTP), and support the National Export Initiative (NEI-NEXT) to double U.S. exports, (3) comply with the 1945, 1961, 1981, and 1996 travel and tourism related acts to collect and publish comprehensive international travel and tourism statistics and other marketing information, and (4) support the continuation of the Travel & Tourism Satellite Accounts for the United States, which provide the only spending and employment figures for the industry. The SIAT program contains the core data that is analyzed and communicated by NTTO with other government agencies, associations and businesses that share the same objective of increasing U.S. international travel exports.

    The SIAT assists NTTO in assessing the economic impact of international travel on state and local economies, providing visitation estimates, key market intelligence, and identifying traveler and trip characteristics. The U.S. Department of Commerce assists travel industry enterprises to increase international travel and passenger fare exports for the country as well as outbound travel on U.S. carriers. The Survey program provides the only available estimates of nonresident visitation to the states and cities within the United States, as well as U.S. resident travel abroad.

    The SIAT also assists NTTO in producing in-depth statistical reports, fact sheets and briefings on economic factors and policy issues affecting U.S. industries. With the SIAT statistical data not replicable by private sector trade associations or by private firms, Federal agencies, Congress and international organizations rely on these statistic-based tools, as do American businesses, state and local governments, and news organizations.

    Affected Public: Individuals or households: International travelers departing the United States 18 years or older which includes U.S. and non-U.S. residents for all countries except Canada.

    Frequency: Monthly.

    Respondent's Obligation: Voluntary.

    This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Sheleen Dumas, Departmental Lead PRA Officer, Office of the Chief Information Officer.
    [FR Doc. 2018-09117 Filed 4-30-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-03-2018] Foreign-Trade Zone (FTZ) 40—Cleveland, Ohio Authorization of Production Activity; Swagelok Company; (Valve Component Parts); Solon, Willoughby Hills, Highland Heights, and Strongsville, Ohio

    On December 26, 2017, the Cleveland-Cuyahoga County Port Authority, grantee of FTZ 40, submitted a notification of proposed production activity to the FTZ Board on behalf of Swagelok Company, within Subzone 40I, in Solon, Willoughby Hills, Highland Heights, and Strongsville, Ohio.

    The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the Federal Register inviting public comment (83 FR 1607-1608, January 12, 2018). On April 25, 2018, the applicant was notified of the FTZ Board's decision that no further review of the activity is warranted at this time. The production activity described in the notification was authorized, subject to the FTZ Act and the FTZ Board's regulations, including Section 400.14.

    Dated: April 25, 2018. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2018-09154 Filed 4-30-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security Proposed Information Collection; Comment Request; Procedures for Submitting Requests for Objections From the Section 232 National Security Adjustments of Imports of Steel and Aluminum AGENCY:

    Bureau of Industry and Security, U.S. Department of Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    To ensure consideration, written comments must be submitted on or before July 2, 2018.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Mark Crace, BIS ICB Liaison, (202) 482-8093 or at [email protected]

    SUPPLEMENTARY INFORMATION: I. Abstract Presidential Proclamations 9705 Adjusting Imports of Steel Mill Articles Into the United States and 9704 Adjusting Imports of Aluminum Into the United States

    On March 8, 2018, the President issued Proclamations 9704 and 9705 concurring with the findings of the two reports and determining that adjusting imports through the imposition of duties on steel and aluminum is necessary so that imports of steel and aluminum will no longer threaten to impair the national security. The Proclamations also authorized the Secretary of Commerce, in consultation with the Secretary of Defense, the Secretary of the Treasury, the Secretary of State, the United States Trade Representative, the Assistant to the President for Economic Policy, the Assistant to the President for National Security Affairs, and other senior executive branch officials as appropriate, to grant exclusions from the duties for domestic parties affected by the duties. This could take place if the Secretary determines the steel or aluminum for which the exclusion is requested is not produced in the United States in a sufficient and reasonably available amount or of a satisfactory quality or should be excluded based upon specific national security considerations. The President directed the Secretary to promulgate regulations as may be necessary to implement an exclusion process. The purpose of this information collection is to allow for submission of objections requests from the remedies instituted in presidential proclamations adjusting imports of steel into the United States and adjusting imports of aluminum into the United States.

    II. Method of Collection

    Submitted electronically.

    III. Data

    OMB Control Number: 0694-0138.

    Form Number(s):

    Type of Review: Regular submission.

    Affected Public: Business or other for-profit organizations.

    Estimated Number of Respondents: 1,500.

    Estimated Time per Response: 4 hours.

    Estimated Total Annual Burden Hours: 6,000.

    Estimated Total Annual Cost to Public: $0. (This is not the cost of respondents' time, but the indirect costs respondents may incur for such things as purchases of specialized software or hardware needed to report, or expenditures for accounting or records maintenance services required specifically by the collection.)

    Respondent's Obligation: Voluntary.

    Legal Authority: Section 232 of the Trade Expansion Act of 1962, Presidential Proclamations 9704 and 9705.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Sheleen Dumas, Departmental Lead PRA Officer, Office of the Chief Information Officer.
    [FR Doc. 2018-09139 Filed 4-30-18; 8:45 am] BILLING CODE 3510-07-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security Proposed Information Collection; Comment Request; Procedures for Submitting Request for Exclusions From the Section 232 National Security Adjustments of Imports of Steel and Aluminum AGENCY:

    Bureau of Industry and Security, U.S. Department of Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    To ensure consideration, written comments must be submitted on or before July 2, 2018.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Mark Crace, BIS ICB Liaison, (202) 482-8093 or at [email protected].

    SUPPLEMENTARY INFORMATION: I. Abstract Presidential Proclamations 9705 Adjusting Imports of Steel Mill Articles Into the United States and 9704 Adjusting Imports of Aluminum Into the United States

    On March 8, 2018, the President issued Proclamations 9704 and 9705 concurring with the findings of the two reports and determining that adjusting imports through the imposition of duties on steel and aluminum is necessary so that imports of steel and aluminum will no longer threaten to impair the national security. The Proclamations also authorized the Secretary of Commerce, in consultation with the Secretary of Defense, the Secretary of the Treasury, the Secretary of State, the United States Trade Representative, the Assistant to the President for Economic Policy, the Assistant to the President for National Security Affairs, and other senior executive branch officials as appropriate, to grant exclusions from the duties for domestic parties affected by the duties. This could take place if the Secretary determines the steel or aluminum for which the exclusion is requested is not produced in the United States in a sufficient and reasonably available amount or of a satisfactory quality or should be excluded based upon specific national security considerations. The President directed the Secretary to promulgate regulations as may be necessary to implement an exclusion process. The purpose of this information collection is to allow for submission of exclusions requests from the remedies instituted in presidential proclamations adjusting imports of steel into the United States and adjusting imports of aluminum into the United States.

    II. Method of Collection

    Submitted electronically.

    III. Data

    OMB Control Number: 0694-0139.

    Form Number(s):

    Type of Review: Regular submission.

    Affected Public: Business or other for-profit organizations.

    Estimated Number of Respondents: 4,500.

    Estimated Time per Response: 4 hours.

    Estimated Total Annual Burden Hours: 18,000.

    Estimated Total Annual Cost to Public: $0. (This is not the cost of respondents' time, but the indirect costs respondents may incur for such things as purchases of specialized software or hardware needed to report, or expenditures for accounting or records maintenance services required specifically by the collection.)

    Respondent's Obligation: Voluntary.

    Legal Authority: Section 232 of the Trade Expansion Act of 1962, Presidential Proclamations 9704 and 9705.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Sheleen Dumas, Departmental Lead PRA Officer, Office of the Chief Information Officer.
    [FR Doc. 2018-09140 Filed 4-30-18; 8:45 am] BILLING CODE 3510-07-P
    DEPARTMENT OF COMMERCE International Trade Administration Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Advance Notification of Sunset Review AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    Background

    Every five years, pursuant to the Tariff Act of 1930, as amended (the Act), the Department of Commerce (Commerce) and the International Trade Commission automatically initiate and conduct reviews to determine whether revocation of a countervailing or antidumping duty order or termination of an investigation suspended under section 704 or 734 of the Act would be likely to lead to continuation or recurrence of dumping or a countervailable subsidy (as the case may be) and of material injury.

    Upcoming Sunset Reviews for June 2018

    Pursuant to section 751(c) of the Act, the following Sunset Review are scheduled for initiation in June 2018 and will appear in that month's Notice of Initiation of Five-Year Sunset Reviews (Sunset Review).

    Department contact Antidumping Duty Proceedings Steel Concrete Reinforcing Bars from Belarus (A-822-804) (3rd Review) James Terpstra, (202) 482-3965. Steel Concrete Reinforcing Bars from China (A-570-860) (3rd Review) James Terpstra, (202) 482-3965. Sodium Hexametaphosphate from China (A-570-908) (2nd Review) Matthew Renkey, (202) 482-2312. Xanthan Gum from China (A-570-985) (1st Review) Matthew Renkey, (202) 482-2312. Steel Concrete Reinforcing Bars from Indonesia (A-560-811) (3rd Review) James Terpstra, (202) 482-3965. Steel Concrete Reinforcing Bars from Latvia (A-449-804) (3rd Review) James Terpstra, (202) 482-3965. Steel Concrete Reinforcing Bars from Moldova (A-841-804) (3rd Review) James Terpstra, (202) 482-3965. Steel Concrete Reinforcing Bars from Poland (A-455-803) (3rd Review) James Terpstra, (202) 482-3965. Steel Concrete Reinforcing Bars from Ukraine (A-823-809) (3rd Review) James Terpstra, (202) 482-3965. Countervailing Duty Proceedings

    No Sunset Review of countervailing duty orders is scheduled for initiation in June 2018.

    Suspended Investigations

    No Sunset Review of suspended investigations is scheduled for initiation in June 2018.

    Commerce's procedures for the conduct of Sunset Review are set forth in 19 CFR 351.218. The Notice of Initiation of Five-Year (Sunset) Review provides further information regarding what is required of all parties to participate in Sunset Review.

    Pursuant to 19 CFR 351.103(c), Commerce will maintain and make available a service list for these proceedings. To facilitate the timely preparation of the service list(s), it is requested that those seeking recognition as interested parties to a proceeding contact Commerce in writing within 10 days of the publication of the Notice of Initiation.

    Please note that if Commerce receives a Notice of Intent to Participate from a member of the domestic industry within 15 days of the date of initiation, the review will continue.

    Thereafter, any interested party wishing to participate in the Sunset Review must provide substantive comments in response to the notice of initiation no later than 30 days after the date of initiation.

    This notice is not required by statute but is published as a service to the international trading community.

    Dated: April 24, 2018. James Maeder, Associate Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations performing the duties of Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations.
    [FR Doc. 2018-09151 Filed 4-30-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [Application No. 94-6A007] Export Trade Certificate of Review ACTION:

    Notice of application to amend the Export Trade Certificate of Review issued to Florida Citrus Exports, L.C. (“FCE”), Application No. 94-6A007.

    SUMMARY:

    The Office of Trade and Economic Analysis (“OTEA”) of the International Trade Administration, Department of Commerce, has received an application to amend an Export Trade Certificate of Review (“Certificate”). This notice summarizes the proposed amendment and requests comments relevant to whether the amended Certificate should be issued.

    FOR FURTHER INFORMATION CONTACT:

    Joseph Flynn, Director, Office of Trade and Economic Analysis, International Trade Administration, (202) 482-5131 (this is not a toll-free number) or email at [email protected]

    SUPPLEMENTARY INFORMATION:

    Title III of the Export Trading Company Act of 1982 (15 U.S.C. Sections 4001-21) (“the Act”) authorizes the Secretary of Commerce to issue Export Trade Certificates of Review. An Export Trade Certificate of Review protects the holder and the members identified in the Certificate from State and Federal government antitrust actions and from private treble damage antitrust actions for the export conduct specified in the Certificate and carried out in compliance with its terms and conditions. Section 302(b)(1) of the Export Trading Company Act of 1982 and 15 CFR 325.6(a) require the Secretary to publish a notice in the Federal Register identifying the applicant and summarizing its application.

    Request for Public Comments

    Interested parties may submit written comments relevant to the determination whether an amended Certificate should be issued. If the comments include any privileged or confidential business information, it must be clearly marked and a non-confidential version of the comments (identified as such) should be included. Any comments not marked as privileged or confidential business information will be deemed to be non-confidential.

    An original and five (5) copies, plus two (2) copies of the non-confidential version, should be submitted no later than 20 days after the date of this notice to: Office of Trade and Economic Analysis, International Trade Administration, U.S. Department of Commerce, Room 21028, Washington, DC 20230.

    Information submitted by any person is exempt from disclosure under the Freedom of Information Act (5 U.S.C. 552). However, non-confidential versions of the comments will be made available to the applicant if necessary for determining whether or not to issue the amended Certificate. Comments should refer to this application as “Export Trade Certificate of Review, application number 94-6A007.”

    Summary of the Application

    Applicant: Florida Citrus Exports, L.C., 7355 SW 9th Street, Vero Beach, FL 32968.

    Contact: William M. Stainton, Attorney, Telephone: (813) 273-4325.

    Application No.: 94-6A007.

    Date Deemed Submitted: April 17, 2018.

    Proposed Amendment: FCE seeks to amend its Certificate as follows:

    • Add the following new Member of the Certificate within the meaning of section 325.2(1) of the Regulations (15 CFR 325.2(1)): Egan Fruit Packing, LLC.

    FCE's proposed amendment would result in the following list of Members under the Certificate:

    Egan Fruit Packing, LLC, Ft. Pierce, Florida Golden River Fruit Co., Vero Beach, Florida Hogan and Sons, Inc., Vero Beach, Florida Indian River Exchange Packers, Inc., Vero Beach, Florida Leroy E. Smith's Sons, Inc., Vero Beach, Florida The Packers of lndian River, Ltd., Ft. Pierce, Florida Premier Citrus Marketing, LLC, Vero Beach, Florida River One International Marketing, Inc., Vero Beach, Florida Riverfront Packing Co. LLC, Vero Beach, Florida Seald Sweet LLC, Vero Beach, Florida Dated: April 26, 2018. Joseph Flynn, Director, Office of Trade and Economic Analysis, International Trade Administration, U.S. Department of Commerce.
    [FR Doc. 2018-09149 Filed 4-30-18; 8:45 am] BILLING CODE 3510-DR-P
    DEPARTMENT OF COMMERCE International Trade Administration Proposed Information Collection; Comment Request; Surveys for User Satisfaction, Impact and Needs AGENCY:

    International Trade Administration, Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    Written comments must be submitted on or before July 2, 2018.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Joe Carter—Office of Strategic Planning, 1999 Broadway—Suite 2205, Denver, CO 80220, (303) 844-5656, [email protected].

    SUPPLEMENTARY INFORMATION: I. Abstract

    The International Trade Administration provides a multitude of international trade related programs to help U.S. businesses. These programs include information products, services, and trade events. To accomplish its mission effectively, ITA needs ongoing feedback on its programs. This information collection item allows ITA to solicit clients' opinions about the use of ITA products, services, and trade events. To promote optimal use and provide focused and effective improvements to ITA programs, we are requesting approval for this clearance package; including: Use of Comment Cards (i.e. transactional-based surveys) to collect feedback immediately after ITA assistance is provided to clients; use of annual surveys (i.e. relationship-based surveys) to gauge overall satisfaction, impact and needs for clients with ITA assistance provided over a period time; use of multiple data collection methods (i.e. web-enabled surveys sent via email, telephone interviews, automated telephone surveys, and in-person surveys via mobile devices/laptops/tablets at trade events/shows) to enable clients to conveniently respond to requests for feedback; and a forecast of burden hours. Without this information, ITA is unable to systematically determine the actual and relative levels of performance for its programs and products/services and to provide clear, actionable insights for managerial intervention. This information will be used for program evaluation and improvement, strategic planning, allocation of resources and stakeholder reporting.

    II. Method of Collection

    The International Trade Administration is seeking approval for the following data collection methods to provide flexibility in conducting customer satisfaction surveys and to reduce the burden on respondents: (1) An email message delivering a hot link to a web enabled survey with an email reminder sent if the client does not respond to the survey within two weeks; (2) a telephone survey/interview; and (3) a web-enabled survey conducted in-person at trade shows/events via a laptop, tablet or mobile phone so participants can immediately respond without having to provide their email address.

    III. Data

    OMB Control Number: 0625-0275.

    Form Number(s): ITA-XXXX.

    Type of Review: Regular.

    Affected Public: Business or other for-profit organizations; Not-for-profit institutions; State, Local, or Tribal government; and Federal government.

    Estimated Number of Respondents: 50,000.

    Estimated Time per Response: 5-30 minutes.

    Estimated Total Annual Burden Hours: 25,000 hours.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Sheleen Dumas, Departmental Lead PRA Officer, Office of the Chief Information Officer.
    [FR Doc. 2018-09119 Filed 4-30-18; 8:45 am] BILLING CODE 3510-FP-P
    DEPARTMENT OF COMMERCE International Trade Administration Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity To Request Administrative Review AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    FOR FURTHER INFORMATION CONTACT:

    Brenda E. Brown, Office of AD/CVD Operations, Customs Liaison Unit, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, telephone: (202) 482-4735.

    Background

    Each year during the anniversary month of the publication of an antidumping or countervailing duty order, finding, or suspended investigation, an interested party, as defined in section 771(9) of the Tariff Act of 1930, as amended (the Act), may request, in accordance with 19 CFR 351.213, that the Department of Commerce (Commerce) conduct an administrative review of that antidumping or countervailing duty order, finding, or suspended investigation.

    All deadlines for the submission of comments or actions by Commerce discussed below refer to the number of calendar days from the applicable starting date.

    Respondent Selection

    In the event Commerce limits the number of respondents for individual examination for administrative reviews initiated pursuant to requests made for the orders identified below, Commerce intends to select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports during the period of review. We intend to release the CBP data under Administrative Protective Order (APO) to all parties having an APO within five days of publication of the initiation notice and to make our decision regarding respondent selection within 21 days of publication of the initiation Federal Register notice. Therefore, we encourage all parties interested in commenting on respondent selection to submit their APO applications on the date of publication of the initiation notice, or as soon thereafter as possible. Commerce invites comments regarding the CBP data and respondent selection within five days of placement of the CBP data on the record of the review.

    In the event Commerce decides it is necessary to limit individual examination of respondents and conduct respondent selection under section 777A(c)(2) of the Act:

    In general, Commerce finds that determinations concerning whether particular companies should be “collapsed” (i.e., treated as a single entity for purposes of calculating antidumping duty rates) require a substantial amount of detailed information and analysis, which often require follow-up questions and analysis. Accordingly, Commerce will not conduct collapsing analyses at the respondent selection phase of a review and will not collapse companies at the respondent selection phase unless there has been a determination to collapse certain companies in a previous segment of this antidumping proceeding (i.e., investigation, administrative review, new shipper review or changed circumstances review). For any company subject to a review, if Commerce determined, or continued to treat, that company as collapsed with others, Commerce will assume that such companies continue to operate in the same manner and will collapse them for respondent selection purposes. Otherwise, Commerce will not collapse companies for purposes of respondent selection. Parties are requested to (a) identify which companies subject to review previously were collapsed, and (b) provide a citation to the proceeding in which they were collapsed. Further, if companies are requested to complete a Quantity and Value Questionnaire for purposes of respondent selection, in general each company must report volume and value data separately for itself. Parties should not include data for any other party, even if they believe they should be treated as a single entity with that other party. If a company was collapsed with another company or companies in the most recently completed segment of a proceeding where Commerce considered collapsing that entity, complete quantity and value data for that collapsed entity must be submitted.

    Deadline for Withdrawal of Request for Administrative Review

    Pursuant to 19 CFR 351.213(d)(1), a party that requests a review may withdraw that request within 90 days of the date of publication of the notice of initiation of the requested review. The regulation provides that Commerce may extend this time if it is reasonable to do so. In order to provide parties additional certainty with respect to when Commerce will exercise its discretion to extend this 90-day deadline, interested parties are advised that, with regard to reviews requested on the basis of anniversary months on or after May 2018, Commerce does not intend to extend the 90-day deadline unless the requestor demonstrates that an extraordinary circumstance prevented it from submitting a timely withdrawal request. Determinations by Commerce to extend the 90-day deadline will be made on a case-by-case basis.

    Commerce is providing this notice on its website, as well as in its “Opportunity to Request Administrative Review” notices, so that interested parties will be aware of the manner in which Commerce intends to exercise its discretion in the future.

    Correction

    In the Opportunity to Request Administrative Review Notice that published on December 4, 2017 (82 FR 57219) Commerce listed the incorrect case number for Circular Welded Carbon-Quality Steel Pipe from Pakistan. The correct case number is A-535-903.

    Opportunity to Request a Review: Not later than the last day of May 2018,1 interested parties may request administrative review of the following orders, findings, or suspended investigations, with anniversary dates in May for the following periods:

    1 Or the next business day, if the deadline falls on a weekend, federal holiday or any other day when the Commerce is closed.

    Period of review Antidumping Duty Proceedings AUSTRIA: Carbon and Alloy Steel Cut-To-Length Plate, A-433-812 11/14/16-4/30/18 BELGIUM: Carbon and Alloy Steel Cut-To-Length Plate, A-423-812 11/14/16-4/30/18 Stainless Steel Plate in Coil, A-423-808 5/1/17-4/30/18 BRAZIL: Iron Construction Castings, A-351-503 5/1/17-4/30/18 CANADA: Citric Acid and Citrate Salt, A-122-853 5/1/17-4/30/18 Polyethylene Terephthalate Resin, A-122-855 5/1/17-4/30/18 FRANCE: Carbon and Alloy Steel Cut-To-Length Plate, A-427-828 11/14/16-4/30/18 GERMANY: Carbon and Alloy Steel Cut-To-Length Plate, A-429-844 11/14/16-4/30/18 INDIA: Polyethylene Terephthalate Resin, A-533-861 5/1/17-4/30/18 Silicomanganese, A-533-823 5/1/17-4/30/18 Certain Welded Carbon Steel Standard Pipes and Tubes, A-533-502 5/1/17-4/30/18 INDONESIA: Polyethylene Retail Carrier Bags, A-560-822 5/1/17-4/30/18 ITALY: Carbon and Alloy Steel Cut-To-Length Plate, A-475-834 11/14/16-4/30/18 JAPAN: Carbon and Alloy Steel Cut-To-Length Plate, A-588-875 11/14/16-4/30/18 Diffusion-Annealed Nickel-Plated Flat-Rolled Steel Products, A-588-869 5/1/17-4/30/18 Gray Portland Cement and Cement Clinker, A-588-815 5/1/17-4/30/18 KAZAKHSTAN: Silicomanganese, A-834-807 5/1/17-4/30/18 OMAN: Polyethylene Terephthalate Resin, A-523-810 5/1/17-4/30/18 REPUBLIC OF KOREA: Carbon and Alloy Steel Cut-To-Length Plate, A-580-887 11/14/16-4/30/18 Ferrovanadium, A-580-886 11/1/16-4/30/18 Polyester Staple Fiber, A-580-839 5/1/17-4/30/18 SOCIALIST REPUBLIC OF VIETNAM: Polyethylene Retail Carrier Bags, A-552-806 5/1/17-4/30/18 SOUTH AFRICA: Stainless Steel Plate in Coils, A-791-805 5/1/17-4/30/18 TAIWAN: Carbon and Alloy Steel Cut-To-Length Plate, A-583-858 11/14/16-4/30/18 Certain Circular Welded Carbon Steel Pipes and Tubes, A-583-008 5/1/17-4/30/18 Polyester Staple Fiber, A-583-833 5/1/17-4/30/18 Polyethylene Retail Carrier Bags, A-583-843 5/1/17-4/30/18 Stainless Steel Plate in Coil, A-583-830 5/1/17-4/30/18 Stilbenic Optical Brightening Agents, A-583-848 5/1/17-4/30/18 THE PEOPLE'S REPUBLIC OF CHINA: 1-Hydroxyethylidene-1, 1-Diphoshonic Acid (Hedp), A-570-045 11/4/16-4/30/18 Aluminum Extrusions, A-570-967 5/1/17-4/30/18 Circular Welded Carbon Quality Steel Line Pipe, A-570- 935 5/1/17-4/30/18 Citric Acid and Citrate Salt, A-570-937 5/1/17-4/30/18 Iron Construction Castings, A-570-502 5/1/17-4/30/18 Oil Country Tubular Goods, A-570-943 5/1/17-4/30/18 Polyethylene Terephthalate Resin, A-570-024 5/1/17-4/30/18 Pure Magnesium, A-570-832 5/1/17-4/30/18 Stilbenic Optical Brightening Agents, A-570-972 5/1/17-4/30/18 TURKEY: Circular Welded Carbon Steel Pipes and Tubes, A-489-501 5/1/17-4/30/18 Light-Walled Rectangular Pipe and Tube, A-489-815 5/1/17-4/30/18 UNITED ARAB EMIRATES: Steel Nails, A-520-804 5/1/17-4/30/18 VENEZUELA: Silicomanganese, A-307-820 5/1/17-4/30/18 Countervailing Duty Proceedings BRAZIL: Iron Construction Castings, C-351-504 1/1/17-12/31/17 INDIA: Polyethylene Terephthalate Resin, C-533-862 1/1/17-12/31/17 REPUBLIC OF KOREA: Carbon and Alloy Steel Cut-To-Length Plate, C-580-888 9/14/16-12/31/17 SOCIALIST REPUBLIC OF VIETNAM: Polyethylene Retail Carrier Bags, C-552-805 1/1/17-12/31/17 SOUTH AFRICA: Stainless Steel Plate in Coils, C-791-806 1/1/17-12/31/17 THE PEOPLE'S REPUBLIC OF CHINA: 1-Hydroxyethylidene-1, 1-Diphoshonic Acid (Hedp), C-570-046 9/8/16-12/31/17 Aluminum Extrusions, C-570-968 1/1/17-12/31/17 Citric Acid and Citrate Salt, C-570-938 1/1/17-12/31/17 Polyethylene Terephthalate Resin, C-570-025 1/1/17-12/31/17 Suspension Agreements

    None.

    In accordance with 19 CFR 351.213(b), an interested party as defined by section 771(9) of the Act may request in writing that the Secretary conduct an administrative review. For both antidumping and countervailing duty reviews, the interested party must specify the individual producers or exporters covered by an antidumping finding or an antidumping or countervailing duty order or suspension agreement for which it is requesting a review. In addition, a domestic interested party or an interested party described in section 771(9)(B) of the Act must state why it desires the Secretary to review those particular producers or exporters. If the interested party intends for the Secretary to review sales of merchandise by an exporter (or a producer if that producer also exports merchandise from other suppliers) which was produced in more than one country of origin and each country of origin is subject to a separate order, then the interested party must state specifically, on an order-by-order basis, which exporter(s) the request is intended to cover.

    Note that, for any party Commerce was unable to locate in prior segments, Commerce will not accept a request for an administrative review of that party absent new information as to the party's location. Moreover, if the interested party who files a request for review is unable to locate the producer or exporter for which it requested the review, the interested party must provide an explanation of the attempts it made to locate the producer or exporter at the same time it files its request for review, in order for the Secretary to determine if the interested party's attempts were reasonable, pursuant to 19 CFR 351.303(f)(3)(ii).

    As explained in Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties, 68 FR 23954 (May 6, 2003), and Non-Market Economy Antidumping Proceedings: Assessment of Antidumping Duties, 76 FR 65694 (October 24, 2011), Commerce clarified its practice with respect to the collection of final antidumping duties on imports of merchandise where intermediate firms are involved. The public should be aware of this clarification in determining whether to request an administrative review of merchandise subject to antidumping findings and orders.2

    2See also the Enforcement and Compliance website at http://trade.gov/enforcement/.

    Commerce no longer considers the non-market economy (NME) entity as an exporter conditionally subject to an antidumping duty administrative reviews.3 Accordingly, the NME entity will not be under review unless Commerce specifically receives a request for, or self-initiates, a review of the NME entity.4 In administrative reviews of antidumping duty orders on merchandise from NME countries where a review of the NME entity has not been initiated, but where an individual exporter for which a review was initiated does not qualify for a separate rate, Commerce will issue a final decision indicating that the company in question is part of the NME entity. However, in that situation, because no review of the NME entity was conducted, the NME entity's entries were not subject to the review and the rate for the NME entity is not subject to change as a result of that review (although the rate for the individual exporter may change as a function of the finding that the exporter is part of the NME entity). Following initiation of an antidumping administrative review when there is no review requested of the NME entity, Commerce will instruct CBP to liquidate entries for all exporters not named in the initiation notice, including those that were suspended at the NME entity rate.

    3See Antidumping Proceedings: Announcement of Change in Department Practice for Respondent Selection in Antidumping Duty Proceedings and Conditional Review of the Nonmarket Economy Entity in NME Antidumping Duty Proceedings, 78 FR 65963 (November 4, 2013).

    4 In accordance with 19 CFR 351.213(b)(1), parties should specify that they are requesting a review of entries from exporters comprising the entity, and to the extent possible, include the names of such exporters in their request.

    All requests must be filed electronically in Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS) on Enforcement and Compliance's ACCESS website at http://access.trade.gov.5 Further, in accordance with 19 CFR 351.303(f)(l)(i), a copy of each request must be served on the petitioner and each exporter or producer specified in the request.

    5See Antidumping and Countervailing Duty Proceedings: Electronic Filing Procedures; Administrative Protective Order Procedures, 76 FR 39263 (July 6, 2011).

    Commerce will publish in the Federal Register a notice of “Initiation of Administrative Review of Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation” for requests received by the last day of May 2018. If Commerce does not receive, by the last day of May 2018, a request for review of entries covered by an order, finding, or suspended investigation listed in this notice and for the period identified above, Commerce will instruct CBP to assess antidumping or countervailing duties on those entries at a rate equal to the cash deposit of estimated antidumping or countervailing duties required on those entries at the time of entry, or withdrawal from warehouse, for consumption and to continue to collect the cash deposit previously ordered.

    For the first administrative review of any order, there will be no assessment of antidumping or countervailing duties on entries of subject merchandise entered, or withdrawn from warehouse, for consumption during the relevant provisional-measures “gap” period of the order, if such a gap period is applicable to the period of review.

    This notice is not required by statute but is published as a service to the international trading community.

    Dated: April 24, 2018. James Maeder, Associate Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations performing the duties of Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations.
    [FR Doc. 2018-09152 Filed 4-30-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-071] Sodium Gluconate, Gluconic Acid, and Derivative Products From the People's Republic of China: Postponement of Preliminary Determination in the Less-Than-Fair-Value Investigation AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    DATES:

    Applicable May 1, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Magd Zalok at (202) 482-4162; Stephen Bailey at (202) 482-0193, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.

    SUPPLEMENTARY INFORMATION: Background

    On December 20, 2017, the Department of Commerce (Commerce) initiated a less-than-fair-value (LTFV) investigation of imports of sodium gluconate, gluconic acid, and derivative products from the People's Republic of China.1 Currently, the preliminary determination is due no later than May 14, 2018.

    1See Sodium Gluconate, Gluconic Acid, and Derivative Products from France and the People's Republic of China: Initiation of Less-Than-Fair-Value Investigations, 83 FR 516 (January 4, 2018) (Initiation Notice).

    Postponement of Preliminary Determination

    Section 733(b)(1)(A) of the Tariff Act of 1930, as amended (the Act), requires Commerce to issue the preliminary determination in an LTFV investigation within 140 days after the date on which Commerce initiated the investigation. However, section 733(c)(1) of the Act permits Commerce to postpone the preliminary determination until no later than 190 days after the date on which Commerce initiated the investigation if: (A) The petitioner 2 makes a timely request for a postponement; or (B) Commerce concludes that the parties concerned are cooperating, and determines that the investigation is extraordinarily complicated such that additional time is necessary to make a preliminary determination. Under 19 CFR 351.205(e), the petitioner must submit a request for postponement 25 days or more before the scheduled date of the preliminary determination and must state the reasons for the request. Commerce will grant the request unless it finds compelling reasons to deny the request.

    2 The petitioner is PMP Fermentation Products, Inc.

    On April 4, 2018, the petitioner submitted a timely request that Commerce postpone the preliminary determination in the LTFV investigation.3 The petitioner stated that it requests the postponement in order to provide Commerce with sufficient time to develop the record in this proceeding through additional questionnaires and gather information from the interested parties on the surrogate values used to value the mandatory respondents' factors of production.4

    3See Letter from the petitioner titled “Antidumping Duty Investigation of Sodium Gluconate, Gluconic Acid, and Derivative Products from the People's Republic of China: Petitioner's Request for Postponement of the Preliminary Determination,” dated April 4, 2018.

    4Id.

    For the reasons stated above and because there are no compelling reasons to deny the request, Commerce, in accordance with section 733(c)(1)(A) of the Act, is postponing the deadline for the preliminary determination by 50 days (i.e., 190 days after the date on which this investigation was initiated). As a result, Commerce will issue its preliminary determination no later than July 2, 2018.5 In accordance with section 735(a)(1) of the Act and 19 CFR 351.210(b)(1), the deadline for the final determination of this investigation will continue to be 75 days after the date of the preliminary determination, unless postponed at a later date.

    5See Memorandum, “Deadlines Affected by the Shutdown of the Federal Government,” dated January 23, 2018. All deadlines in this segment of the proceeding have been extended by 3 days. If the new deadline falls on a non-business day, in accordance with Commerce's practice, the deadline will become the next business day. See Notice of Clarification: Application of “Next Business Day” Rule for Administrative Determination Deadlines Pursuant to the Tariff Act of 1930, as Amended, 70 FR 24533 (May 10, 2005).

    This notice is issued and published pursuant to section 733(c)(2) of the Act and 19 CFR 351.205(f)(1).

    Dated: April 23, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2018-08899 Filed 4-30-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration Initiation of Five-Year (Sunset) Review AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    In accordance with the Tariff Act of 1930, as amended (the Act), the Department of Commerce (Commerce) is automatically initiating the five-year reviews (Sunset Review) of the antidumping and countervailing duty (AD/CVD) order(s) listed below. The International Trade Commission (the Commission) is publishing concurrently with this notice its notice of Institution of Five-Year Reviews which covers the same order(s).

    DATES:

    Applicable May 1, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Commerce official identified in the Initiation of Review section below at AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230. For information from the Commission, contact Mary Messer, Office of Investigations, U.S. International Trade Commission at (202) 205-3193.

    SUPPLEMENTARY INFORMATION: Background

    Commerce's procedures for the conduct of Sunset Reviews are set forth in its Procedures for Conducting Five-Year (“Sunset”) Reviews of Antidumping and Countervailing Duty Orders, 63 FR 13516 (March 20, 1998) and 70 FR 62061 (October 28, 2005). Guidance on methodological or analytical issues relevant to Commerce's conduct of Sunset Reviews is set forth in Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin and Assessment Rate in Certain Antidumping Duty Proceedings; Final Modification, 77 FR 8101 (February 14, 2012).

    Initiation of Review

    In accordance with section 751(c) of the Act and 19 CFR 351.218(c), we are initiating the Sunset Review of the following antidumping and countervailing duty order(s):

    DOC Case No. ITC Case No. Country Product Department contact A-823-810 731-TA-894 Ukraine Ammonium Nitrate (3rd Review) James Terpstra (202) 482-3965. Filing Information

    As a courtesy, we are making information related to sunset proceedings, including copies of the pertinent statute and Commerce's regulations, Commerce's schedule for Sunset Reviews, a listing of past revocations and continuations, and current service lists, available to the public on Commerce's website at the following address: http://enforcement.trade.gov/sunset/. All submissions in these Sunset Reviews must be filed in accordance with Commerce's regulations regarding format, translation, and service of documents. These rules, including electronic filing requirements via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS), can be found at 19 CFR 351.303.1

    1See also Antidumping and Countervailing Duty Proceedings: Electronic Filing Procedures; Administrative Protective Order Procedures, 76 FR 39263 (July 6, 2011).

    Any party submitting factual information in an AD/CVD proceeding must certify to the accuracy and completeness of that information.2 Parties must use the certification formats provided in 19 CFR 351.303(g).3 Commerce intends to reject factual submissions if the submitting party does not comply with applicable revised certification requirements.

    2See section 782(b) of the Act.

    3See also Certification of Factual Information to Import Administration During Antidumping and Countervailing Duty Proceedings, 78 FR 42678 (July 17, 2013) (Final Rule). Answers to frequently asked questions regarding the Final Rule are available at http://enforcement.trade.gov/tlei/notices/factual_info_final_rule_FAQ_07172013.pdf.

    On April 10, 2013, Commerce modified two regulations related to AD/CVD proceedings: the definition of factual information (19 CFR 351.102(b)(21)), and the time limits for the submission of factual information (19 CFR 351.301).4 Parties are advised to review the final rule, available at http://enforcement.trade.gov/frn/2013/1304frn/2013-08227.txt, prior to submitting factual information in these segments. To the extent that other regulations govern the submission of factual information in a segment (such as 19 CFR 351.218), these time limits will continue to be applied. Parties are also advised to review the final rule concerning the extension of time limits for submissions in AD/CVD proceedings, available at http://enforcement.trade.gov/frn/2013/1309frn/2013-22853.txt, prior to submitting factual information in these segments.5

    4See Definition of Factual Information and Time Limits for Submission of Factual Information: Final