Federal Register Vol. 83, No.85,

Federal Register Volume 83, Issue 85 (May 2, 2018)

Page Range19157-19426
FR Document

83_FR_85
Current View
Page and SubjectPDF
83 FR 19425 - National Small Business Week, 2018PDF
83 FR 19157 - Certification for Certain Records Related to the Assassination of President John F. KennedyPDF
83 FR 19284 - Farm Credit Administration Board; Sunshine Act MeetingPDF
83 FR 19289 - Statement of Organization, Functions, and Delegations of Authority; Office of the National Coordinator for Health Information TechnologyPDF
83 FR 19301 - Sunshine Act Meetings; National Science BoardPDF
83 FR 19176 - Airworthiness Directives; CFM International S.A. Turbofan EnginesPDF
83 FR 19284 - Incentive Auction Task Force and Media Bureau Extend Post Incentive Auction Special Displacement Window Through June 1, 2018PDF
83 FR 19288 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
83 FR 19261 - Agency Information Collection Activities; Comment Request; National Household Education Survey 2019 (NHES:2019)PDF
83 FR 19179 - Special Local Regulation; Atlantic City International Triathlon, Atlantic City, NJPDF
83 FR 19188 - Affordable Housing Program Amendments; Correction, Extension of Comment Period, and Further Request for CommentPDF
83 FR 19284 - Agency Information Collection Activities: Proposed Collection Renewal; Comment RequestPDF
83 FR 19285 - Agency Information Collection Activities: Proposed Collection Renewal; Comment RequestPDF
83 FR 19195 - Approval and Promulgation of State Plans for Designated Facilities and Pollutants; United States Virgin Islands; Commercial and Industrial Solid Waste Incineration UnitsPDF
83 FR 19282 - Ecology Control Industries, Inc. Removal Site, Torrance, CA; Notice of Proposed Settlement Agreement and Order on ConsentPDF
83 FR 19281 - Final 2016 Effluent Guidelines Program PlanPDF
83 FR 19191 - Air Plan Approval; Alaska; Interstate Transport Requirements for the 2012 PM2.5PDF
83 FR 19194 - Air Plan Approval; Indiana; Air Quality Standards Update for the 2015 Ozone StandardPDF
83 FR 19281 - Re-issuance of a General NPDES Permit (GP) for Small Suction Dredges in IdahoPDF
83 FR 19180 - Civil Monetary Penalty Inflation Adjustment RulePDF
83 FR 19261 - Proposed Collection; Comment RequestPDF
83 FR 19220 - Utility Scale Wind Towers From the People's Republic of China and the Socialist Republic of Vietnam: Final Results of Expedited First Sunset Reviews of Antidumping Duty OrdersPDF
83 FR 19215 - Initiation of Antidumping and Countervailing Duty Administrative ReviewsPDF
83 FR 19222 - Large Residential Washers From the Republic of Korea: Final Results of Expedited First Sunset Review of the Countervailing Duty OrderPDF
83 FR 19223 - Carbon and Certain Alloy Steel Wire Rod From Mexico: Notice of Correction to Final Results of Antidumping Duty Administrative Review and Final Determination of No Shipments; 2015-2016PDF
83 FR 19214 - Potassium Permanganate From People's Republic of China: Rescission of 2017 Antidumping Duty Administrative ReviewPDF
83 FR 19283 - Agency Information Collection Activities: Proposed Collection; Comment Request; Generic Clearance for the Collection of Qualitative Feedback on Agency Service DeliveryPDF
83 FR 19310 - Excepted Service; Consolidated Listing of Schedules A, B, and C ExceptionsPDF
83 FR 19340 - Excepted Service; Consolidated Listing of Schedules A, B, and C ExceptionsPDF
83 FR 19300 - Agency Information Collection Activities; Comment Request; Proposed Revision; Information Collections: Employment Information FormPDF
83 FR 19403 - Notice of OFAC Sanctions ActionsPDF
83 FR 19298 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Revision of a Currently Approved Collection Identification Markings Placed on FirearmsPDF
83 FR 19298 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Revision of a Currently Approved Collection; Identification of Imported Explosives MaterialsPDF
83 FR 19297 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Revision of a Currently Approved Collection; FFL Out of Business Records Request-ATF F 5300.3APDF
83 FR 19211 - Notice of Intent To Revise a Currently Approved Information CollectionPDF
83 FR 19179 - Defense Nuclear Agency (DNA) Freedom of Information Act ProgramPDF
83 FR 19186 - Elimination of Main Studio Rule; Petition for Partial ReconsiderationPDF
83 FR 19299 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Mental Health Parity and Addiction Equity Act NoticesPDF
83 FR 19395 - Application From the State of California To Participate in the Surface Transportation Project Delivery Program for Certain Railroad ProjectsPDF
83 FR 19293 - Notice of Issuance of Final Determination Concerning GyrocompassesPDF
83 FR 19296 - Accreditation and Approval of Saybolt LP (St. Rose, LA) as a Commercial GaugerPDF
83 FR 19292 - Quarterly IRS Interest Rates Used in Calculating Interest on Overdue Accounts and Refunds on Customs DutiesPDF
83 FR 19393 - Determination Pursuant to the Foreign Missions ActPDF
83 FR 19219 - Countervailing Duty Order on Certain Passenger Vehicle and Light Truck Tires From the People's Republic of China: Amended Final Results of Countervailing Duty Administrative Review; 2014-2015PDF
83 FR 19214 - Approval of Subzone Status; International Converter, Inc.; Caldwell, OhioPDF
83 FR 19405 - Proposed Collections; Comment RequestsPDF
83 FR 19212 - Census Scientific Advisory Committee Charter RenewalPDF
83 FR 19211 - National Advisory CommitteePDF
83 FR 19304 - Florida Power & Light Company; Turkey Point Nuclear Generating, Unit Nos. 3 and 4PDF
83 FR 19386 - Submission for OMB Review; Comment RequestPDF
83 FR 19393 - Indefinite Delivery and Indefinite Quantity Contracts for Federal-Aid ConstructionPDF
83 FR 19212 - Submission for OMB Review; Comment RequestPDF
83 FR 19213 - Submission for OMB Review; Comment RequestPDF
83 FR 19402 - Notice of Information Collection and Request for Public CommentPDF
83 FR 19370 - Submission for OMB Review; Comment RequestPDF
83 FR 19176 - Special Conditions: VT DRB Aviation Consultants, Boeing Model 777-200 Airplanes; Installation of an Airbag System in Shoulder BeltsPDF
83 FR 19402 - Agency Information Collection Activities; Comment Requested; Renewal Without Change to the Comprehensive Iran Sanctions, Accountability, and Divestment Act of 2010 Reporting Requirements Under Section 104(e)PDF
83 FR 19221 - North American Free Trade Agreement (NAFTA), Article 1904 Binational Panel Review: Notice of Request for Panel ReviewPDF
83 FR 19371 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Instituting Proceedings To Determine Whether To Approve or Disapprove a Proposed Rule Change To Adopt New NYSE Arca Rule 8.900-E and To List and Trade Shares of the Royce Pennsylvania ETF; Royce Premier ETF; and Royce Total Return ETF Under Proposed NYSE Arca Rule 8.900-EPDF
83 FR 19367 - Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Designation of Longer Period for Commission Action on Proposed Rule Change To Introduce the ATR Protection for Orders that are Routed to Away MarketsPDF
83 FR 19369 - Self-Regulatory Organizations; Nasdaq GEMX, LLC; Notice of Designation of Longer Period for Commission Action on Proposed Rule Change To Introduce the ATR Protection for Orders That Are Routed to Away MarketsPDF
83 FR 19382 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Section 902.11 of the Exchange's Listed Company Manual Concerning Fees Applicable to Acquisition Companies for Shares Issued Contingent on the Consummation of a Business CombinationPDF
83 FR 19369 - Self-Regulatory Organizations; Nasdaq MRX, LLC; Notice of Designation of Longer Period for Commission Action on Proposed Rule Change To Introduce the ATR Protection for Orders That Are Routed to Away MarketsPDF
83 FR 19384 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Certain Rules of the Rule 7000A Series To Make Conforming and Technical ChangesPDF
83 FR 19387 - Self-Regulatory Organizations; Cboe BZX Exchange, Inc.; Notice of Filing of Amendment No. 1 and Order Granting Accelerated Approval of a Proposed Rule Change, as Modified by Amendment No. 1 Thereto, To List and Trade Shares of the Cboe Vest S&P 500® Premium Income ETF Under Rule 14.11(c)(4)PDF
83 FR 19376 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change to Adopt Transaction Fees In Connection with the Exchange's Trading of UTP Securities on PillarPDF
83 FR 19365 - Self-Regulatory Organizations; Cboe Exchange, Inc.; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 24.6, Days and Hours of BusinessPDF
83 FR 19279 - Combined Notice of Filings #1PDF
83 FR 19278 - Transmission Planning Within the California Independent System Operator Corporation; California Public Utilities Commission, Northern California Power Agency, City and County of San Francisco, State Water Contractors, Transmission Agency of Northern California v. Pacific Gas and Electric Company; Southern California Edison Company; Second Supplemental Notice of Technical ConferencePDF
83 FR 19277 - Notice of Draft License Application (DLA) and Draft Preliminary Draft Environmental Assessment (PDEA) and Request for Preliminary Terms and Conditions: Oregon State UniversityPDF
83 FR 19277 - Loup River Public Power District; Notice of Application Accepted for Filing, Soliciting Comments, Motions To Intervene, and ProtestsPDF
83 FR 19273 - Commission Information Collection Activities (FERC-582); Comment Request; ExtensionPDF
83 FR 19276 - Notice of Revocation of Market-Based Rate Authority and Termination of Electric Market-Based Rate TariffPDF
83 FR 19273 - Combined Notice of Filings #1PDF
83 FR 19275 - Brainerd Public Utilities; Notice of Intent To File License Application, Filing of Pre-Application Document (PAD), Commencement of Pre-Filing Process, and Scoping; Request for Comments on the PAD and Scoping Document, and Identification of Issues and Associated Study RequestsPDF
83 FR 19279 - Steel Reef Pipelines US LLC; Notice of Schedule for Environmental Review of the Saskatchewan Pipeline ProjectPDF
83 FR 19279 - Combined Notice of FilingsPDF
83 FR 19276 - Combined Notice of FilingsPDF
83 FR 19159 - Federal Mortgage Disclosure Requirements Under the Truth in Lending Act (Regulation Z)PDF
83 FR 19224 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Cook Inlet Pipeline Cross Inlet Extension ProjectPDF
83 FR 19365 - Product Change-Priority Mail Express, Priority Mail, & First-Class Package Service Negotiated Service AgreementPDF
83 FR 19254 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Lighthouse Repair and Tour Operations at Northwest Seal Rock, CaliforniaPDF
83 FR 19236 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Seabird and Shorebird Research and Monitoring in MassachusettsPDF
83 FR 19243 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Astoria Waterfront Bridge Replacement ProjectPDF
83 FR 19260 - NTIA 2018 Spectrum Policy SymposiumPDF
83 FR 19306 - Duke Energy Florida, LLC; Levy Nuclear Plant, Units 1 and 2PDF
83 FR 19189 - Safety Zone; Fireworks, Delaware River, Philadelphia, PAPDF
83 FR 19367 - Redwood Investment Management, LLC and Two Roads Shared TrustPDF
83 FR 19308 - In the Matter of Qal-Tek Associates, LLCPDF
83 FR 19400 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel WIND; Invitation for Public CommentsPDF
83 FR 19401 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel WILDCAT TOO; Invitation for Public CommentsPDF
83 FR 19401 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel NEGOSEATOR; Invitation for Public CommentsPDF
83 FR 19397 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel METANI; Invitation for Public CommentsPDF
83 FR 19398 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel LUCKY BASTARD; Invitation for Public CommentsPDF
83 FR 19399 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel LIMERICK; Invitation for Public CommentsPDF
83 FR 19398 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel DULCINEA; Invitation for Public CommentsPDF
83 FR 19396 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel CHAINED UP; Invitation for Public CommentsPDF
83 FR 19399 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel BLUE ISLAND DREAMER; Invitation for Public CommentsPDF
83 FR 19288 - Appraisal Subcommittee; Notice of MeetingPDF
83 FR 19414 - Freedom of Information Act RegulationsPDF
83 FR 19302 - Exelon Generation Company, LLCPDF
83 FR 19408 - Privacy Act RegulationsPDF
83 FR 19280 - The National Drinking Water Advisory Council: Request for NominationsPDF
83 FR 19184 - Delegation of Authority to North Carolina and the Western North Carolina Regional Air Quality Agency of Federal Plan for Existing Sewage Sludge Incineration UnitsPDF
83 FR 19381 - Proposed Collection; Comment RequestPDF
83 FR 19196 - Protecting Against National Security Threats to the Communications Supply Chain Through FCC ProgramsPDF
83 FR 19262 - Proposed Revised Rules of Procedure and Opportunity for Public Review and CommentPDF
83 FR 19213 - Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment AssistancePDF

Issue

83 85 Wednesday, May 2, 2018 Contents Agriculture Agriculture Department See

National Institute of Food and Agriculture

Alcohol Tobacco Firearms Alcohol, Tobacco, Firearms, and Explosives Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: FFL Out of Business Records Request, 19297 2018-09297 Identification Markings Placed on Firearms, 19298-19299 2018-09299 Identification of Imported Explosives Materials, 19298 2018-09298 Army Army Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19261 2018-09315 Bonneville Bonneville Power Administration NOTICES Proposed Revised Rules of Procedure and Opportunity for Public Review and Comment, 19262-19273 2018-09085 Consumer Financial Protection Bureau of Consumer Financial Protection RULES Federal Mortgage Disclosure Requirements under the Truth in Lending Act (Regulation Z): Official Interpretation, 19159-19176 2018-09243 Census Bureau Census Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19212 2018-09275 Charter Renewals: Census Scientific Advisory Committee, 19212-19213 2018-09282 National Advisory Committee, 19211-19212 2018-09281 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19288-19289 2018-09329 Coast Guard Coast Guard RULES Special Local Regulations: Atlantic City International Triathlon, Atlantic City, NJ, 19179-19180 2018-09327 PROPOSED RULES Safety Zones: Fireworks, Delaware River, Philadelphia, PA, 19189-19191 2018-09233 Commerce Commerce Department See

Census Bureau

See

Economic Development Administration

See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

See

National Telecommunications and Information Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19213 2018-09274
Community Development Community Development Financial Institutions Fund NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19402 2018-09273 Defense Department Defense Department See

Army Department

See

Engineers Corps

RULES Defense Nuclear Agency Freedom of Information Act Program, 19179 2018-09295
Economic Development Economic Development Administration NOTICES Trade Adjustment Assistance Eligibility; Petitions, 19213-19214 2018-09081 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Household Education Survey 2019, 19261-19262 2018-09328 Energy Department Energy Department See

Bonneville Power Administration

See

Federal Energy Regulatory Commission

Engineers Engineers Corps RULES Civil Monetary Penalty Inflation Adjustment Rule, 19180-19184 2018-09316 Environmental Protection Environmental Protection Agency RULES Designated Facilities and Pollutants State Plans; Approvals and Promulgations: Delegation of Authority; North Carolina and Western North Carolina Regional Air Quality Agency of Federal Plan for Existing Sewage Sludge Incineration Units, 19184-19186 2018-09202 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Alaska; Interstate Transport Requirements for 2012 Annual Fine Particulate Matter National Ambient Air Quality Standard, 19191-19193 2018-09319 Indiana; Air Quality Standards Update for 2015 Ozone Standard, 19194-19195 2018-09318 Designated Facilities and Pollutants State Plans; Approval and Promulgations: United States Virgin Islands; Commercial and Industrial Solid Waste Incineration Units, 19195-19196 2018-09323 NOTICES Final 2016 Effluent Guidelines Program Plan, 19281-19282 2018-09320 National Pollutant Discharge Elimination System Permits: Small Suction Dredges in Idaho, 19281 2018-09317 Proposed Settlement Agreements: Ecology Control Industries, Inc. Removal Site, Torrance, CA, 19282-19283 2018-09322 Requests for Nominations: National Drinking Water Advisory Council, 19280-19281 2018-09204 Export Import Export-Import Bank NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Qualitative Feedback on Agency Service Delivery, 19283-19284 2018-09304 Farm Credit Farm Credit Administration NOTICES Meetings; Sunshine Act, 19284 2018-09370 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: CFM International S.A. Turbofan Engines, 19176-19179 2018-09338 Special Conditions: VT DRB Aviation Consultants, Boeing Model 777-200 Airplanes; Installation of an Airbag System in Shoulder Belts, 19176 2018-09269 Federal Communications Federal Communications Commission RULES Elimination of Main Studio Rule: Petition for Partial Reconsideration, 19186-19187 2018-09294 PROPOSED RULES Protecting Against National Security Threats to Communications Supply Chain through FCC Programs, 19196-19210 2018-09090 NOTICES Incentive Auction Task Force and Media Bureau Extend Post Incentive Auction Special Displacement Window through June 1, 2018, 19284 2018-09331 Federal Deposit Federal Deposit Insurance Corporation NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19284-19288 2018-09324 2018-09325 Federal Energy Federal Energy Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19273-19274 2018-09251 Applications: Loup River Public Power District, 19277 2018-09252 Combined Filings, 19273, 19276, 19279 2018-09245 2018-09246 2018-09249 2018-09255 Environmental Reviews: Steel Reef Pipelines US, LLC; Saskatchewan Pipeline Project, 19279-19280 2018-09247 License Applications: Brainerd Public Utilities, 19275-19276 2018-09248 Oregon State University, 19277-19278 2018-09253 Meetings: Transmission Planning within California Independent System Operator Corp.; California Public Utilities Commission, Northern California Power Agency, City and County of San Francisco, etc: Technical Conference, 19278-19279 2018-09254 Revocation of Market-Based Rate Authority and Termination of Electric Market-Based Rate Tariff: Electric Quarterly Reports; Fibrominn, LLC, et al., 19276 2018-09250 Federal Financial Federal Financial Institutions Examination Council NOTICES Meetings: Appraisal Subcommittee, 19288 2018-09214 Federal Highway Federal Highway Administration NOTICES Indefinite Delivery and Indefinite Quantity Contracts for Federal-aid Construction, 19393-19395 2018-09276 Federal Housing Finance Agency Federal Housing Finance Agency PROPOSED RULES Affordable Housing Program, 19188-19189 2018-09326 Federal Railroad Federal Railroad Administration NOTICES Applications: California; Participation in Surface Transportation Project Delivery Program for Certain Railroad Projects, 19395-19396 2018-09290 Financial Crimes Financial Crimes Enforcement Network NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19402-19403 2018-09267 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 19403-19405 2018-09300 Foreign Trade Foreign-Trade Zones Board NOTICES Subzone Status; Approvals: International Converter, Inc., Caldwell, OH, 19214 2018-09284 Health and Human Health and Human Services Department See

Centers for Medicare & Medicaid Services

NOTICES Statement of Organization, Functions, and Delegations of Authority, 19289-19292 2018-09361
Homeland Homeland Security Department See

Coast Guard

See

U.S. Customs and Border Protection

International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Carbon and Certain Alloy Steel Wire Rod from Mexico, 19223 2018-09309 Certain Passenger Vehicle and Light Truck Tires from the People's Republic of China, 19219-19220 2018-09285 Initiation of Administrative Reviews, 19215-19219 2018-09311 Large Residential Washers from Republic of Korea, 19222-19223 2018-09310 Potassium Permanganate from People's Republic of China, 19214-19215 2018-09308 Utility Scale Wind Towers from the People's Republic of China and Socialist Republic of Vietnam, 19220-19221 2018-09312 Request for Panel Review under North American Free Trade Agreement, 19221-19222 2018-09266 Justice Department Justice Department See

Alcohol, Tobacco, Firearms, and Explosives Bureau

Labor Department Labor Department See

Wage and Hour Division

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Mental Health Parity and Addiction Equity Act Notices, 19299-19300 2018-09291
Maritime Maritime Administration NOTICES Requests for Administrative Waivers of the Coastwise Trade Laws: Vessel BLUE ISLAND, 19399 2018-09220 Vessel CHAINED UP, 19396-19397 2018-09221 Vessel DULCINEA, 19398 2018-09222 Vessel LIMERICK, 19399-19400 2018-09223 Vessel LUCKY, 19398-19399 2018-09224 Vessel METANI, 19397 2018-09225 Vessel NEGOSEATOR, 19401 2018-09226 Vessel WILDCAT TOO, 19401-19402 2018-09227 Vessel WIND, 19400 2018-09228 NATIONAL COMMISSION National Commission on Military, National, and Public Service RULES Freedom of Information Act, 19414-19421 2018-09212 Privacy Act Regulations, 19408-19411 2018-09209 National Institute Food National Institute of Food and Agriculture NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19211 2018-09296 National Oceanic National Oceanic and Atmospheric Administration NOTICES Takes of Marine Mammals Incidental to Specified Activities: Astoria Waterfront Bridge Replacement Project, 19243-19254 2018-09238 Cook Inlet Pipeline Cross Inlet Extension Project, 19224-19236 2018-09242 Lighthouse Repair and Tour Operations at Northwest Seal Rock, CA, 19254-19260 2018-09240 Seabird and Shorebird Research and Monitoring in Massachusetts, 19236-19243 2018-09239 National Science National Science Foundation NOTICES Meetings; Sunshine Act, 19301-19302 2018-09346 National Telecommunications National Telecommunications and Information Administration NOTICES Meetings: 2018 Spectrum Policy Symposium, 19260 2018-09237 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Civil Monetary Penalties: Qal-Tek Associates, LLC, 19308-19310 2018-09229 License Renewals; Applications: Florida Power and Light Co., Turkey Point Nuclear Generating, Unit Nos. 3 and 4, 19304-19306 2018-09279 License Terminations: Duke Energy Florida, LLC Levy; Nuclear Plant, Units 1 and 2, 19306-19307 2018-09236 Petitions: Exelon Generation Co., LLC, 19302-19304 2018-09210 Personnel Personnel Management Office NOTICES Excepted Service, 19310-19365 2018-09302 2018-09303 Postal Service Postal Service NOTICES Product Changes: Priority Mail Express, Priority Mail, and First-Class Package Service Negotiated Service Agreement, 19365 2018-09241 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: National Small Business Week (Proc. 9730), 19423-19426 2018-09471 ADMINISTRATIVE ORDERS John F. Kennedy, Assassination of; Certification of Certain Related Records (Memorandum of April 26, 2018), 19157-19158 2018-09392 Securities Securities and Exchange Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19370-19371, 19381-19382, 19386-19387 2018-09093 2018-09270 2018-09271 2018-09272 2018-09278 Applications: Redwood Investment Management, LLC and Two Roads Shared Trust, 19367-19369 2018-09232 Self-Regulatory Organizations; Proposed Rule Changes: Cboe BZX Exchange, Inc., 19387-19393 2018-09259 Cboe Exchange, Inc., 19365-19367 2018-09257 Nasdaq GEMX, LLC, 19369-19370 2018-09263 Nasdaq ISE, LLC, 19367 2018-09264 Nasdaq MRX, LLC, 19369 2018-09261 Nasdaq Stock Market, LLC, 19384-19386 2018-09260 New York Stock Exchange, LLC, 19376-19384 2018-09258 2018-09262 NYSE Arca, Inc., 19371-19376 2018-09265 State Department State Department NOTICES Determinations Pursuant to Foreign Missions Act, 19393 2018-09286 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

Federal Railroad Administration

See

Maritime Administration

Treasury Treasury Department See

Community Development Financial Institutions Fund

See

Financial Crimes Enforcement Network

See

Foreign Assets Control Office

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19405-19406 2018-09283
Customs U.S. Customs and Border Protection NOTICES Commercial Gaugers and Laboratories; Accreditations and Approvals: Saybolt LP (St. Rose, LA), 19296-19297 2018-09288 Country of Origin Determinations: Gyrocompasses, 19293-19296 2018-09289 Quarterly IRS Interest Rates Used in Calculating Interest on Overdue Accounts and Refunds on Customs Duties, 19292-19293 2018-09287 Wage Wage and Hour Division NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Employment Information Form, 19300-19301 2018-09301 Separate Parts In This Issue Part II National Commission on Military, National, and Public Service, 19408-19411 2018-09209 Part III National Commission on Military, National, and Public Service, 19414-19421 2018-09212 Part IV Presidential Documents, 19423-19426 2018-09471 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 85 Wednesday, May 2, 2018 Rules and Regulations BUREAU OF CONSUMER FINANCIAL PROTECTION 12 CFR Part 1026 [Docket No. CFPB-2017-0018] RIN 3170-AA71 Federal Mortgage Disclosure Requirements Under the Truth in Lending Act (Regulation Z) AGENCY:

Bureau of Consumer Financial Protection.

ACTION:

Final rule; official interpretation.

SUMMARY:

The Bureau of Consumer Financial Protection (Bureau) is amending Federal mortgage disclosure requirements under the Real Estate Settlement Procedures Act (RESPA) and the Truth in Lending Act (TILA) that are implemented in Regulation Z. The amendments relate to when a creditor may compare charges paid by or imposed on the consumer to amounts disclosed on a Closing Disclosure, instead of a Loan Estimate, to determine if an estimated closing cost was disclosed in good faith.

DATES:

The final rule is effective June 1, 2018.

FOR FURTHER INFORMATION CONTACT:

Shaakira Gold-Ramirez, Paralegal Specialist, Pedro De Oliveira, David Friend, and Priscilla Walton-Fein, Senior Counsels, Office of Regulations, Bureau of Consumer Financial Protection, at 202-435-7700 or https://reginquiries.consumerfinance.gov/. If you require this document in an alternative electronic format, please contact [email protected].

SUPPLEMENTARY INFORMATION: I. Summary of the Final Rule

The TILA-RESPA Rule 1 requires creditors to provide consumers with good faith estimates of the loan terms and closing costs required to be disclosed on a Loan Estimate. Under the rule, an estimated closing cost is disclosed in good faith if the charge paid by or imposed on the consumer does not exceed the amount originally disclosed, subject to certain exceptions.2 In some circumstances, creditors may use revised estimates, instead of the estimate originally disclosed to the consumer, to compare to the charges actually paid by or imposed on the consumer for purposes of determining whether an estimated closing cost was disclosed in good faith. If the conditions for using such revised estimates are met, the creditor generally may provide revised estimates on a revised Loan Estimate or, in certain circumstances, on a Closing Disclosure. However, under the current rule, circumstances may arise in which a cost increases but the creditor is unable to use an otherwise permissible revised estimate on either a Loan Estimate or a Closing Disclosure for purposes of determining whether an estimated closing cost was disclosed in good faith. This situation, which may arise when the creditor has already provided a Closing Disclosure to the consumer when it learns about the cost increase, occurs because of the intersection of timing rules regarding the provision of revised estimates. This has been referred to in industry as a “gap” or “black hole” in the TILA-RESPA Rule.

1 In November 2013, pursuant to sections 1098 and 1100A of the Dodd-Frank Wall Street Reform and Consumer Protection Act (Dodd-Frank Act), the Bureau issued the Integrated Mortgage Disclosures under the Real Estate Settlement Procedures Act (Regulation X) and the Truth in Lending Act (Regulation Z) (2013 TILA-RESPA Final Rule), combining certain disclosures that consumers receive in connection with applying for and closing on a mortgage loan into two new forms: The Loan Estimate and Closing Disclosure. 78 FR 79730 (Dec. 31, 2013). The Bureau has since finalized amendments to the 2013 TILA-RESPA Final Rule, including in January and July of 2015 and in July of 2017. See 80 FR 8767 (Feb. 19, 2015) (January 2015 Amendments); 80 FR 43911 (July 24, 2015) (July 2015 Amendments); 82 FR 37656 (Aug. 11, 2017) (July 2017 Amendments). The 2013 TILA-RESPA Final Rule and subsequent amendments to that rule are referred to collectively herein as the TILA-RESPA Rule.

2 12 CFR 1026.19(e)(3)(i). Those exceptions are listed in § 1026.19(e)(3)(ii) through (iv).

The Bureau understands that these circumstances have led to uncertainty in the market and created implementation challenges that may have consequences for both consumers and creditors. If creditors cannot pass increased costs to consumers in the specific transactions where the costs arise, creditors may spread the costs across all consumers by pricing their loan products with added margins. The Bureau also understands that some creditors may be denying applications, even after providing the Closing Disclosure, in some circumstances where the creditor cannot pass otherwise permissible cost increases directly to affected consumers, which can have negative effects for those consumers. For these reasons, in July 2017, the Bureau proposed to address the issue by specifically providing that creditors may use Closing Disclosures to reflect changes in costs for purposes of determining if an estimated closing cost was disclosed in good faith, regardless of when the Closing Disclosure is provided relative to consummation (2017 Proposal or “the proposal”).3 The Bureau is finalizing those amendments as proposed, with minor clarifying changes.

3 82 FR 37794 (Aug. 11, 2017).

II. Background

In Dodd-Frank Act sections 1032(f), 1098, and 1100A, Congress directed the Bureau to integrate certain mortgage loan disclosures under TILA and RESPA.4 The Bureau issued proposed integrated disclosure forms and rules for comment on July 9, 2012 (2012 TILA-RESPA Proposal) 5 and issued the 2013 TILA-RESPA Final Rule on November 20, 2013. The rule included model forms, samples illustrating the use of those forms for different types of loans, and Official Interpretations, which provided authoritative guidance explaining the new disclosures. The 2013 TILA-RESPA Final Rule took effect on October 3, 2015.6

4 Public Law 111-203, 124 Stat. 1376, 2007, 2103-04, 2107-09 (2010).

5 77 FR 51116 (Aug. 23, 2012).

6 The rule had an initial effective date of August 1, 2015. 78 FR 79730, 80071 (Dec. 31, 2013). However, the Bureau ultimately extended that effective date another two months, to October 3, 2015, in a subsequent rulemaking. 80 FR 43911 (July 24, 2015).

The Bureau has provided resources to support implementation of the TILA-RESPA Rule.7 The Bureau has also stated its commitment to be sensitive to the good faith efforts made by institutions to come into compliance. In addition, since the promulgation of the 2013 TILA-RESPA Final Rule, the Bureau has made various amendments to facilitate compliance. Most recently, the Bureau finalized the July 2017 Amendments, which memorialized the Bureau's informal guidance on various issues, made clarifying and technical amendments, and also made a limited number of substantive changes where the Bureau identified discrete solutions to specific implementation challenges. Concurrently with the July 2017 Amendments, the Bureau issued the 2017 Proposal to address an additional implementation issue regarding when a creditor may compare charges paid by or imposed on the consumer to amounts disclosed on a Closing Disclosure to determine if an estimated closing cost was disclosed in good faith.

7 The Bureau's implementation resources can be found on the Bureau's website at www.consumerfinance.gov/regulatory-implementation/tila-respa.

III. Comments

The Bureau issued the 2017 Proposal on July 6, 2017, and it was published in the Federal Register on August 11, 2017. In response to the 2017 Proposal, the Bureau received 43 unique comments from industry commenters (including trade associations, creditors, and industry representatives), a consumer advocate group, and others. As discussed below, the Bureau has considered the comments in adopting this final rule.

IV. Legal Authority

The Bureau is issuing this final rule pursuant to its authority under TILA, RESPA, and the Dodd-Frank Act, including the authorities discussed below. In general, the provisions of Regulation Z that this final rule amends were previously adopted by the Bureau in the TILA-RESPA Rule. In doing so, the Bureau relied on one or more of the authorities discussed below, as well as other authority. The Bureau is issuing this final rule in reliance on the same authority and for the same reasons relied on in adopting the relevant provisions of the TILA-RESPA Rule, which are described in detail in the Legal Authority and Section-by-Section Analysis parts of the 2013 TILA-RESPA Final Rule and January 2015 Amendments, respectively.8

8 78 FR 79730, 79753-56, 79834-37 (Dec. 31, 2013); 80 FR 8767, 8768-70 (Feb. 19, 2015).

A. The Integrated Disclosure Mandate

Section 1032(f) of the Dodd-Frank Act required the Bureau to propose, for public comment, rules and model disclosures combining the disclosures required under TILA and sections 4 and 5 of RESPA into a single, integrated disclosure for mortgage loan transactions covered by those laws, unless the Bureau determined that any proposal issued by the Board of Governors of the Federal Reserve System (Board) and the Department of Housing and Urban Development (HUD) carried out the same purpose.9 In addition, the Dodd-Frank Act amended section 105(b) of TILA and section 4(a) of RESPA to require the integration of the TILA disclosures and the disclosures required by sections 4 and 5 of RESPA.10 The purpose of the integrated disclosure is to facilitate compliance with the disclosure requirements of TILA and RESPA and to improve borrower understanding of the transaction. The Bureau provided additional discussion of this integrated disclosure mandate in the 2013 TILA-RESPA Final Rule.11

9 Public Law 111-203, 124 Stat. 1376, 2007 (2010) (codified at 12 U.S.C. 5532(f)).

10 Public Law 111-203, 124 Stat. 1376, 2108 (2010) (codified at 15 U.S.C. 1604(b)); Public Law 111-203, 124 Stat. 1376, 2103 (2010) (codified at 12 U.S.C. 2603(a)).

11 78 FR 79730, 79753-54 (Dec. 31, 2013).

B. Truth in Lending Act

TILA section 105(a). As amended by the Dodd-Frank Act, TILA section 105(a) 12 directs the Bureau to prescribe regulations to carry out the purposes of TILA and provides that such regulations may contain additional requirements, classifications, differentiations, or other provisions and may further provide for such adjustments and exceptions for all or any class of transactions that the Bureau judges are necessary or proper to effectuate the purposes of TILA, to prevent circumvention or evasion thereof, or to facilitate compliance therewith. A purpose of TILA is to assure a meaningful disclosure of credit terms so that the consumer will be able to compare more readily the various available credit terms and avoid the uninformed use of credit.13 In enacting TILA, Congress found that economic stabilization would be enhanced and the competition among the various financial institutions and other firms engaged in the extension of consumer credit would be strengthened by the informed use of credit.14 Strengthened competition among financial institutions is a goal of TILA, achieved through the meaningful disclosure of credit terms.15 For the reasons discussed below and in the TILA-RESPA Rule, the Bureau finalizes these amendments pursuant to its authority under TILA section 105(a). The Bureau believes the finalized amendments effectuate the purpose of TILA under TILA section 102(a) of meaningful disclosure of credit terms to consumers and facilitate compliance with the statute by clarifying when particular disclosures may be provided. The Bureau also believes that the final rule furthers TILA's goals by ensuring more reliable estimates, which foster competition among financial institutions. In addition, the Bureau believes the final rule will prevent circumvention or evasion of TILA.

12 15 U.S.C. 1604(a).

13 15 U.S.C. 1601(a).

14Id.

15 The Bureau provided additional discussion of the history of TILA section 105(a) and its interaction with the provisions of TILA section 129 that apply to high-cost mortgages in the 2013 TILA-RESPA Final Rule. As the Bureau explained, the Bureau's authority under TILA section 105(a) to make adjustments and exceptions applies to all transactions subject to TILA, including high-cost mortgages, except with respect to the provisions of TILA section 129 that apply uniquely to such high-cost mortgages. 78 FR 79730, 79754 (Dec. 31, 2013).

TILA section 129B(e). Dodd-Frank Act section 1405(a) amended TILA to add new section 129B(e).16 That section authorizes the Bureau to prohibit or condition terms, acts, or practices relating to residential mortgage loans that the Bureau finds to be abusive, unfair, deceptive, predatory, necessary, or proper to ensure that responsible, affordable mortgage credit remains available to consumers in a manner consistent with the purposes of sections 129B and 129C of TILA, to prevent circumvention or evasion thereof, or to facilitate compliance with such sections, or are not in the interest of the borrower. In developing rules under TILA section 129B(e), the Bureau has considered whether the rules are in the interest of the borrower, as required by the statute. For the reasons discussed below and in the TILA-RESPA Rule, the Bureau finalizes these amendments pursuant to its authority under TILA section 129B(e). The Bureau believes this final rule is consistent with TILA section 129B(e).

16 Public Law 111-203, 124 Stat. 1376, 2141 (2010) (codified at 15 U.S.C. 1639B(e)).

C. Real Estate Settlement Procedures Act Section 19(a)

Section 19(a) of RESPA authorizes the Bureau to prescribe such rules and regulations and to make such interpretations and grant such reasonable exemptions for classes of transactions as may be necessary to achieve the purposes of RESPA.17 One purpose of RESPA is to effect certain changes in the settlement process for residential real estate that will result in more effective advance disclosure to home buyers and sellers of settlement costs.18 In addition, in enacting RESPA, Congress found that consumers are entitled to greater and more timely information on the nature and costs of the settlement process and to be protected from unnecessarily high settlement charges caused by certain abusive practices in some areas of the country.19 In developing rules under RESPA section 19(a), the Bureau has considered the purposes of RESPA, including to effect certain changes in the settlement process that will result in more effective advance disclosure of settlement costs. The Bureau finalizes these amendments pursuant to its authority under RESPA section 19(a). For the reasons discussed below and in the TILA-RESPA Rule, the Bureau believes the final rule is consistent with the purposes of RESPA by fostering more effective advance disclosure to home buyers and sellers of settlement costs.

17 12 U.S.C. 2617(a).

18 12 U.S.C. 2601(b).

19Id. at 2601(a). In the past, RESPA section 19(a) has served as a broad source of authority to prescribe disclosures and substantive requirements to carry out the purposes of RESPA.

D. Dodd-Frank Act

Dodd-Frank Act section 1032. Section 1032(a) of the Dodd-Frank Act provides that the Bureau may prescribe rules to ensure that the features of any consumer financial product or service, both initially and over the term of the product or service, are fully, accurately, and effectively disclosed to consumers in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances.20 The authority granted to the Bureau in section 1032(a) is broad and empowers the Bureau to prescribe rules regarding the disclosure of the features of consumer financial products and services generally. Accordingly, the Bureau may prescribe rules containing disclosure requirements even if other Federal consumer financial laws do not specifically require disclosure of such features. Dodd-Frank Act section 1032(c) provides that, in prescribing rules pursuant to section 1032, the Bureau shall consider available evidence about consumer awareness, understanding of, and responses to disclosures or communications about the risks, costs, and benefits of consumer financial products or services.21 Accordingly, in developing the TILA-RESPA Rule under Dodd-Frank Act section 1032(a), the Bureau considered available studies, reports, and other evidence about consumer awareness, understanding of, and responses to disclosures or communications about the risks, costs, and benefits of consumer financial products or services. Moreover, the Bureau considered the evidence developed through its consumer testing of the integrated disclosures as well as prior testing done by the Board and HUD regarding TILA and RESPA disclosures. See part III of the 2013 TILA-RESPA Final Rule for a discussion of the Bureau's consumer testing.22

20 Public Law 111-203, 124 Stat. 1376, 2006-07 (2010) (codified at 12 U.S.C. 5532(a)).

21 Public Law 111-203, 124 Stat. 1376, 2007 (2010) (codified at 12 U.S.C. 5532(c)).

22 78 FR 79730, 79743-50 (Dec. 31, 2013).

The Bureau finalizes these amendments pursuant to its authority under Dodd-Frank Act section 1032(a). For the reasons discussed below and in the TILA-RESPA Rule, the Bureau believes that the final rule is consistent with Dodd-Frank Act section 1032(a) because it promotes full, accurate, and effective disclosure of the features of consumer credit transactions secured by real property in a manner that permits consumers to understand the costs, benefits, and risks associated with the product or service, in light of the facts and circumstances.

Dodd-Frank Act section 1405(b). Section 1405(b) of the Dodd-Frank Act provides that, notwithstanding any other provision of title XIV of the Dodd-Frank Act, in order to improve consumer awareness and understanding of transactions involving residential mortgage loans through the use of disclosures, the Bureau may exempt from or modify disclosure requirements, in whole or in part, for any class of residential mortgage loans if the Bureau determines that such exemption or modification is in the interest of consumers and in the public interest.23 Section 1401 of the Dodd-Frank Act, which amends TILA section 103(cc)(5), generally defines a residential mortgage loan as any consumer credit transaction that is secured by a mortgage on a dwelling or on residential real property that includes a dwelling, other than an open-end credit plan or an extension of credit secured by a consumer's interest in a timeshare plan.24 Notably, the authority granted by section 1405(b) applies to disclosure requirements generally and is not limited to a specific statute or statutes. Accordingly, Dodd-Frank Act section 1405(b) is a broad source of authority to exempt from or modify the disclosure requirements of TILA and RESPA. In developing rules for residential mortgage loans under Dodd-Frank Act section 1405(b), the Bureau has considered the purposes of improving consumer awareness and understanding of transactions involving residential mortgage loans through the use of disclosures and the interests of consumers and the public. The Bureau finalizes these amendments pursuant to its authority under Dodd-Frank Act section 1405(b). For the reasons discussed below and in the TILA-RESPA Rule, the Bureau believes the final rule is in the interest of consumers and in the public interest, consistent with Dodd-Frank Act section 1405(b).

23 Public Law 111-203, 124 Stat. 1376, 2142 (2010) (codified at 15 U.S.C. 1601 note).

24 Public Law 111-203, 124 Stat. 1376, 2138 (2010) (codified at 15 U.S.C. 1602(cc)(5)).

V. Section-by-Section Analysis Section 1026.19 Certain Mortgage and Variable-Rate Transactions 19(e) Mortgage Loans—Early Disclosures 19(e)(4) Provision and Receipt of Revised Disclosures

The 2013 TILA-RESPA Final Rule combined certain disclosures that consumers receive in connection with applying for and closing on a mortgage loan into two new, integrated forms. The first new form, the Loan Estimate, replaced the RESPA Good Faith Estimate and the early Truth in Lending disclosure. The rule requires creditors to deliver or place in the mail the Loan Estimate no later than three business days after the consumer submits a loan application.25 The second form, the Closing Disclosure, replaced the HUD-1 Settlement Statement and the final Truth in Lending disclosure. The rule requires creditors to ensure that consumers receive the Closing Disclosure at least three business days before consummation.26

25 12 CFR 1026.19(e)(1)(iii).

26Id. at § 1026.19(f)(1)(ii).

Section 1026.19(e)(1)(i) of the 2013 TILA-RESPA Final Rule requires creditors to provide consumers with good faith estimates of the disclosures required in § 1026.37, which describes the loan terms and closing costs required to be disclosed on the Loan Estimate. Under § 1026.19(e)(3)(i), an estimated closing cost is disclosed in good faith if the charge paid by or imposed on the consumer does not exceed the amount originally disclosed, except as otherwise provided in § 1026.19(e)(3)(ii) through (iv). Section 1026.19(e)(3)(ii) provides that estimates for certain third-party services and recording fees are in good faith if the sum of all such charges paid by or imposed on the consumer does not exceed the sum of all such charges disclosed on the Loan Estimate by more than 10 percent.27 Section 1026.19(e)(3)(iii) further provides that certain other estimates are disclosed in good faith so long as they are consistent with the best information reasonably available to the creditor at the time they are disclosed, regardless of whether and by how much the amount paid by the consumer exceeds the disclosed estimate.28 The allowed variances between estimated closing costs and the actual amounts paid by or imposed on the consumer are referred to as tolerances.

27 This section also requires that, for the 10 percent tolerance to apply, the charge for the third-party service must not be paid to the creditor or an affiliate of the creditor and the creditor must permit the consumer to shop for the third-party service, consistent with § 1026.19(e)(1)(vi). See 12 CFR 1026.19(e)(3)(ii)(B)-(C).

28 Section 1026.19(e)(3)(iii) provides that an estimate of the following charges is in good faith if it is consistent with the best information reasonably available to the creditor at the time it is disclosed, regardless of whether the amount paid by the consumer exceeds the amount originally disclosed: (1) Prepaid interest; (2) property insurance premiums; (3) amounts placed into an escrow, impound, reserve, or similar account; (4) charges paid to third-party service providers selected by the consumer consistent with § 1026.19(e)(1)(vi)(A) that are not on the list provided pursuant to § 1026.19(e)(1)(vi)(C); and (5) property taxes and other charges paid for third-party services not required by the creditor.

Section 1026.19(e)(3)(iv) permits creditors, in certain limited circumstances, to use revised estimates of charges, instead of the estimate of charges originally disclosed to the consumer, to compare to the charges actually paid by or imposed on the consumer for purposes of determining whether an estimated closing cost was disclosed in good faith pursuant to § 1026.19(e)(3)(i) and (ii) (i.e., determining whether the actual charge exceeds the allowed tolerance).29 The provision of such revised estimates is referred to herein as resetting tolerances. The circumstances under which creditors may reset tolerances are: (1) A defined set of changed circumstances that cause estimated charges to increase or, in the case of certain estimated charges, cause the aggregate amount of such charges to increase by more than 10 percent; 30 (2) the consumer is ineligible for an estimated charge previously disclosed because of a changed circumstance that affects the consumer's creditworthiness or the value of the property securing the transaction; (3) the consumer requests revisions to the credit terms or the settlement that cause an estimated charge to increase; (4) points or lender credits change because the interest rate was not locked when the Loan Estimate was provided; (5) the consumer indicates an intent to proceed with the transaction more than 10 business days, or more than any additional number of days specified by the creditor before the offer expires, after the Loan Estimate was provided to the consumer; and (6) the loan is a construction loan that is not expected to close until more than 60 days after the Loan Estimate has been provided to the consumer and the creditor clearly and conspicuously states that a revised disclosure may be issued.

29 The creditor is required to retain evidence that it performed the required actions as well as made the required disclosures under Regulation Z, which includes evidence that the creditor properly documented the reasons for the use of revised estimates of charges. See § 1026.25(c)(1) and comment 25(c)(1)-1.

30 Changed circumstance means: (1) An extraordinary event beyond the control of any interested party or other unexpected event specific to the consumer or transaction; (2) information specific to the consumer or transaction that the creditor relied upon when providing the Loan Estimate and that was inaccurate or changed after the disclosures were provided; or (3) new information specific to the consumer or transaction that the creditor did not rely on when providing the original Loan Estimate. 12 CFR 1026.19(e)(3)(iv)(A).

Section 1026.19(e)(4) contains rules for the provision and receipt of revised estimates used to reset tolerances. Section 1026.19(e)(4)(i) provides the general rule that, subject to the requirements of § 1026.19(e)(4)(ii), if a creditor uses a revised estimate to determine good faith (i.e., to reset tolerances), the creditor shall provide a Loan Estimate reflecting the revised estimate within three business days of receiving information sufficient to establish that a permissible reason for revision applies. Section 1026.19(e)(4)(ii) imposes timing restrictions on the provision of revised Loan Estimates. Specifically, § 1026.19(e)(4)(ii) states that the creditor shall not provide a revised Loan Estimate on or after the date on which the creditor provides the Closing Disclosure. Section 1026.19(e)(4)(ii) also provides that the consumer must receive any revised Loan Estimate not later than four business days prior to consummation.

Regulation Z therefore limits creditors' ability to provide revised Loan Estimates relative to the provision of the Closing Disclosure and to consummation. In issuing the 2013 TILA-RESPA Final Rule, the Bureau explained that it was aware of cases where creditors provided revised RESPA Good Faith Estimates at the real estate closing, along with the HUD-1 settlement statement.31 The Bureau was concerned that the practice of providing both good faith estimates of closing costs and an actual statement of closing costs at the same time could be confusing for consumers and could diminish their awareness and understanding of the transaction. The Bureau was also concerned about consumers receiving seemingly duplicative disclosures that could contribute to information overload. For this reason, the Bureau adopted the provision of § 1026.19(e)(4)(ii) that prohibits creditors from providing revised Loan Estimates on or after the date the creditor provides the Closing Disclosure. The Bureau adopted the provision of § 1026.19(e)(4)(ii) that requires that consumers receive the revised Loan Estimate not later than four business days prior to consummation to ensure that consumers do not receive a revised Loan Estimate on the same date as the Closing Disclosure in cases where the revised Loan Estimate is not provided to the consumer in person.

31 78 FR 79730, 79836 (Dec. 31, 2013).

Comment 19(e)(4)(ii)-1 clarifies when creditors may reset tolerances with a Closing Disclosure instead of with a revised Loan Estimate. Specifically, the comment explains that if there are fewer than four business days between the time the revised version of the disclosures is required to be provided pursuant to § 1026.19(e)(4)(i) (i.e., within three business days of receiving information sufficient to establish a reason for revision) and consummation, creditors can reflect revised disclosures to reset tolerances on the Closing Disclosure. This is referred to herein as the “four-business day limit.”

Although the Bureau originally proposed commentary in 2012 that would have stated that creditors may reflect the revised disclosures on the Closing Disclosure, without regard to the timing of consummation, the 2013 TILA-RESPA Final Rule contained the four-business day limit.32 As stated in the 2017 Proposal, the Bureau now understands that there is significant confusion in the market and that the four-business day limit has caused situations where creditors cannot provide either a revised Loan Estimate or Closing Disclosure to reset tolerances even if a reason for revision under § 1026.19(e)(3)(iv) would otherwise permit the creditor to reset tolerances. In particular, the Bureau understands that this situation may occur if the creditor has already provided the Closing Disclosure and an event occurs or a consumer requests a change that causes an increase in closing costs that would be a reason for revision under § 1026.19(e)(3)(iv), but there are four or more days between the time the revised disclosures would be required to be provided pursuant to § 1026.19(e)(4)(i) and consummation. This situation may occur if there was also a delay in the scheduled consummation date after the initial Closing Disclosure is provided to the consumer.

32See proposed comment 19(e)(4)-2 at 77 FR 51116, 51426 (Aug. 23, 2012) (“Creditors comply with the requirements of § 1026.19(e)(4) if the revised disclosures are reflected in the disclosures required by § 1026.19(f)(1)(i).”).

This situation can arise because of the intersection of various timing rules regarding the provision of revised estimates to reset tolerances. As noted, § 1026.19(e)(4)(ii) prohibits creditors from providing Loan Estimates on or after the date on which the creditor provides the Closing Disclosure. In many cases, this limitation would not create issues for creditors because current comment 19(e)(4)(ii)-1 explains that creditors may reflect revised estimates on a Closing Disclosure to reset tolerances if there are less than four business days between the time the revised version of the disclosures is required to be provided pursuant to § 1026.19(e)(4)(i) and consummation. But there is no similar provision that explicitly provides that creditors may use a Closing Disclosure to reflect the revised estimates if there are four or more business days between the time the revised version of the disclosures is required to be provided pursuant to § 1026.19(e)(4)(i) and consummation.

The 2016 Proposal

On July 28, 2016, the Bureau proposed clarifications and technical amendments to the TILA-RESPA Rule, along with several proposed substantive changes (2016 Proposal).33 In the 2016 Proposal, the Bureau proposed comment 19(e)(4)(ii)-2 to clarify that creditors may use corrected Closing Disclosures provided under § 1026.19(f)(2)(i) or (ii) (in addition to the initial Closing Disclosure) to reflect changes in costs that will be used to reset tolerances.34 As discussed above, existing comment 19(e)(4)(ii)-1 clarifies that creditors may reflect revised estimates on the Closing Disclosure to reset tolerances if there are less than four business days between the time the revised version of the disclosures is required to be provided pursuant to § 1026.19(e)(4)(i) and consummation. Although comment 19(e)(4)(ii)-1 expressly references only the Closing Disclosure required by § 1026.19(f)(1)(i), the Bureau had stated in informal guidance that the provision also applies to corrected Closing Disclosures provided pursuant to § 1026.19(f)(2)(i) or (ii). The Bureau proposed comment 19(e)(4)(ii)-2 in the 2016 Proposal to clarify this point.

33 81 FR 54317 (Aug. 15, 2016).

34Id. at 54334.

However, some commenters to the 2016 Proposal interpreted proposed comment 19(e)(4)(ii)-2 as allowing creditors to use corrected Closing Disclosures to reset tolerances regardless of when consummation is expected to occur, as long as the creditor provides the corrected Closing Disclosure within three business days of receiving information sufficient to establish a reason for revision applies pursuant to § 1029.19(e)(4)(i). Under this interpretation, the four-business day limit would still apply to resetting tolerances with the initial Closing Disclosure, but would not apply to resetting tolerances with a corrected Closing Disclosure. Commenters were not uniform in their interpretation of proposed comment 19(e)(4)(ii)-2. Commenters who interpreted proposed comment 19(e)(4)(ii)-2 as removing the four-business day limit as it applies to corrected Closing Disclosures were generally supportive, citing uncertainty about the proper interpretation of current rules and stating that the timing rules regarding resetting tolerances with a Closing Disclosure are unworkable. Many commenters perceived that proposed comment 19(e)(4)(ii)-2 would resolve these issues because they interpreted it as allowing creditors to use corrected Closing Disclosures to reset tolerances even if there are four or more business days between the time the revised version of the disclosures is required to be provided pursuant to § 1026.19(e)(4)(i) and consummation. Some commenters who interpreted the proposed comment in this way supported it, but also cautioned about unintended consequences. For example, some commenters stated that eliminating the four-business day limit for corrected Closing Disclosures might remove a disincentive that currently exists under the rule from providing the initial Closing Disclosure extremely early in the mortgage origination process, which these commenters stated would not be consistent with the Bureau's intent that the Closing Disclosure be a statement of actual costs.

The 2017 Proposal

The Bureau did not finalize proposed comment 19(e)(4)(ii)-2 as part of the July 2017 Amendments. Instead, the Bureau issued the 2017 Proposal to amend § 1026.19(e)(4) and associated commentary to expressly remove the four-business day limit for providing Closing Disclosures for purposes of resetting tolerances and determining if an estimated closing cost was disclosed in good faith. The Bureau issued the 2017 Proposal in light of comments received in response to the 2016 Proposal and prior outreach indicating that timing rules regarding resetting tolerances with Closing Disclosures have led to uncertainty in the market and created implementation challenges that could have unintended consequences for both consumers and creditors, as explained above.

Consistent with current comment 19(e)(4)(ii)-1, the proposal would have allowed creditors to reset tolerances by providing a Closing Disclosure (including any corrected disclosures provided under § 1026.19(f)(2)(i) or (ii)) within three business days of receiving information sufficient to establish that a reason for revision applies. Unlike current comment 19(e)(4)(ii)-1, however, the proposal would not have restricted the creditor's ability to reset tolerances with a Closing Disclosure to the period of less than four business days between the time the revised version of the disclosures is required to be provided pursuant to § 1026.19(e)(4)(i) and consummation.

In the proposal, the Bureau explained that it believes that, in most cases in which a creditor learns about cost increases that are a permissible reason to reset tolerances, the creditor will not yet have provided a Closing Disclosure to the consumer. The proposal explained that, to the extent there is a cost increase of a type that would allow tolerances to be reset, the Bureau expects that creditors will typically provide a revised Loan Estimate (and not a Closing Disclosure) for the purpose of resetting tolerances and that these revised Loan Estimates will be used in determining good faith under § 1026.19(e)(3)(i) and (ii). However, there are circumstances in which creditors will instead reset tolerances with a Closing Disclosure. For example, the proposal noted that events that can affect closing costs may occur close to the time of consummation, even after the initial Closing Disclosure has been provided to the consumer. The proposal also noted that events may result in consummation being delayed past the time that was expected when the creditor provided the Closing Disclosure to the consumer. Some events can both affect closing costs and lead to a delay in consummation. These events may be outside the control of the creditor and, in some cases, requested by the consumer. The proposal cited as examples weather-related events that delay closing and lead to additional appraisal or inspection costs or illness by a buyer or seller that could delay closing and lead to the imposition of additional costs, such as a rate lock extension fee. In these circumstances, creditors may wish to reset tolerances with a Closing Disclosure even outside the time permitted by the four-business day limit. If creditors cannot pass these increased costs to consumers in the specific transactions where they arise, creditors may spread the costs across all consumers by pricing their loan products with added margins. The proposal also noted that some creditors may be seeking other ways to avoid absorbing these unexpected costs, such as denying applications from consumers, even after providing the consumer a Closing Disclosure.

For these reasons, the Bureau proposed to allow creditors to reset tolerances using a Closing Disclosure without regard to the four-business day limit. Under the proposal, as under the current rule, to reset tolerances with a Closing Disclosure, creditors would have been required to provide the Closing Disclosure to the consumer within three business days of receiving information sufficient to establish that a reason for revision applies. Further, as under the current rule, creditors would have been allowed to reset tolerances only under the limited circumstances described in § 1026.19(e)(3)(iv).

The proposal would have removed the four-business day limit for resetting tolerances with both initial and corrected Closing Disclosures. The proposal cited two reasons for this approach. First, the proposal noted a concern that applying the four-business day limit to initial Closing Disclosures but not corrected Closing Disclosures could incentivize creditors to provide consumers with initial Closing Disclosures very early in the lending process, which in some circumstances might be inconsistent with the description of the Closing Disclosure as a “statement of the final loan terms and closing costs,” 35 and the requirement under § 1026.19(f)(1)(i) that the disclosures on the Closing Disclosure are to be a statement of “the actual terms of the transaction.” Second, the proposal noted that applying the four-business day limit to initial Closing Disclosures but not corrected Closing Disclosures could create operational challenges and burden for creditors.

35 12 CFR 1026.38(a)(2).

Accordingly, the Bureau proposed to amend § 1026.19(e)(4)(i) to provide that, subject to the requirements of § 1026.19(e)(4)(ii), if a creditor uses a revised estimate pursuant to § 1026.19(e)(3)(iv) for the purpose of determining good faith under § 1026.19(e)(3)(i) and (ii), the creditor shall provide a revised version of the disclosures required under § 1026.19(e)(1)(i) or the disclosures required under § 1026.19(f)(1)(i) (including any corrected disclosures provided under § 1026.19(f)(2)(i) or (ii)) reflecting the revised estimate within three business days of receiving information sufficient to establish that one of the reasons for revision applies.

The Bureau also proposed to amend comment 19(e)(4)(ii)-1 to remove the reference to the four-business day limit, for consistency with the proposed amendments to § 1026.19(e)(4)(i). In addition, the proposal would have amended the comment to provide two additional examples that further clarify how creditors may provide revised estimates on Closing Disclosures in lieu of Loan Estimates for purposes of determining good faith. The Bureau also proposed conforming amendments to the heading of § 1026.19(e)(4)(ii) and to comments 19(e)(1)(ii)-1 and 19(e)(4)(i)-1 in light of these proposed amendments.

Finally, the proposal would have made several changes to § 1026.19(e)(4) and its commentary to reflect amendments to the rule made by the January 2015 Amendments regarding interest rate dependent charges. Section 1026.19(e)(3)(iv)(D), as adopted by the 2013 TILA-RESPA Final Rule, previously required creditors to provide the consumer with a revised disclosure with the revised interest rate, the points disclosed pursuant to § 1026.37(f)(1), lender credits, and any other interest rate dependent charges and terms on the date the interest rate is locked. The January 2015 Amendments changed § 1026.19(e)(3)(iv)(D) to provide creditors with more time (three business days) to provide the revised disclosures. This amendment harmonized the timing requirement in § 1026.19(e)(3)(iv)(D) with other timing requirements for providing a revised Loan Estimate adopted in the 2013 TILA-RESPA Final Rule and addressed operational challenges associated with the prior requirement that gave creditors less time to provide revised disclosures regarding interest rate dependent charges. To implement this change, the Bureau revised § 1026.19(e)(3)(iv)(D) to state that, no later than three business days after the date the interest rate is locked, the creditor shall provide a revised version of the disclosures required under § 1026.19(e)(1)(i) to the consumer with the revised interest rate, the points disclosed pursuant to § 1026.37(f)(1), lender credits, and any other interest rate dependent charges and terms. In the January 2015 Amendments, the Bureau also adopted modified versions of proposed comments 19(e)(3)(iv)(D)-1 and 19(e)(4)(i)-2 to reflect that change. To further reflect the changes made by the January 2015 Amendments to § 1026.19(e)(3)(iv)(D), the Bureau proposed to amend § 1026.19(e)(4)(i) and comment 19(e)(4)(i)-1. The Bureau also proposed to remove existing comment 19(e)(4)(i)-2, regarding the relationship to § 1026.19(e)(3)(iv)(D), which the proposal stated may no longer be necessary.

The Bureau solicited comment on several specific issues related to the proposal, including on the extent to which the four-business day limit has caused situations where creditors cannot provide either a revised Loan Estimate or Closing Disclosure to reset tolerances even if a reason for revision under § 1026.19(e)(3)(iv) would otherwise permit the creditor to reset tolerances. The Bureau requested information on the frequency and the cause of such occurrences and on the average costs and the nature of such costs associated with such occurrences.

The Bureau also requested information that would assist in evaluating potential consequences of the proposal. In particular, some commenters in response to the 2016 Proposal expressed concern that removal of the four-business day limit could result in some creditors providing Closing Disclosures very early in the lending process and that doing so could have negative effects on some consumers. The proposal noted the Bureau's understanding that some creditors currently provide the Closing Disclosure to consumers so early in the process that the terms and costs are nearly certain to be revised. Commenters stated in response to the 2016 Proposal that eliminating the four-business day limit for resetting tolerances with a Closing Disclosure could remove a disincentive to providing Closing Disclosures before final terms and costs are reliably available (i.e., under the current rule, waiting to provide the Closing Disclosure until close to the time of consummation decreases, to some extent, the likelihood of a timing issue arising with respect to resetting tolerances with corrected Closing Disclosures). Accordingly, the Bureau requested comment on the extent to which creditors are providing Closing Disclosures to consumers so that they are received substantially before the required three business days prior to consummation with terms and costs that are nearly certain to be revised. The Bureau requested comment on the number of business days before consummation consumers are receiving the Closing Disclosure and whether creditors are issuing corrected Closing Disclosures pursuant to § 1026.19(f)(2). In addition, the Bureau requested comment on the extent to which creditors might change their practices regarding provision of the Closing Disclosure if the proposal to remove the four-business day limit is adopted. The Bureau also requested comment on potential harms to consumers where creditors provide Closing Disclosures to consumers so that they are received more than the required three business days prior to consummation with terms and costs that are nearly certain to be revised. The Bureau additionally requested comment on whether it should consider adopting measures to prevent such harms in a future rulemaking.

The Bureau also requested comment on other potential consequences that might result from removing the four-business day limit that applies to resetting tolerances with a Closing Disclosure. For example, compared to current rules, the proposed changes could allow creditors to pass more costs on to consumers. The Bureau solicited comment on whether the circumstances for resetting tolerances in § 1026.19(e)(3)(iv) provide sufficient protection against potential consumer harm or whether additional limitations are appropriate for resetting tolerances after the issuance of a Closing Disclosure. For example, the Bureau requested comment on whether it would be appropriate to allow creditors to reset tolerances with a corrected Closing Disclosure in circumstances that are more limited than those described in § 1026.19(e)(3)(iv) (for example, only when the increased costs result from a consumer request or unforeseeable event, such as a natural disaster). The Bureau also requested comment on whether the rule should be more restrictive with respect to resetting tolerances with a corrected Closing Disclosure for certain third-party costs (such as appraisal fees) and creditor fees (such as interest rate lock extension fees) and the types of costs and fees that might be subject to any more restrictive rules. The Bureau also requested comment on whether removing the four-business day limit might result in confusion or information overload to the consumer as a result of receiving more corrected Closing Disclosures. The Bureau requested comment on additional consumer protections that might be appropriate to promote the purposes of the disclosures or prevent circumvention or evasion and additional potential consumer harms the Bureau had not identified.

Comments

The Bureau received 43 unique comments from industry commenters (including trade associations, creditors, and industry representatives), a consumer advocate group, and others. Most industry commenters supported the proposal to remove the four-business day limit. These commenters generally stated that the four-business day limit arbitrarily leads to situations where creditors must absorb costs that could otherwise be passed to consumers through resetting tolerances, and that those costs are passed to all consumers in the form of an increased cost of credit. Industry commenters also noted legal and compliance risks associated with the uncertainty around current rules, and stated that this uncertainty has had an adverse impact on the cost of credit. These commenters supported the proposal because it would address these issues by expressly permitting creditors to use either initial or corrected Closing Disclosures to reflect changes in costs for purposes of determining if an estimated closing cost was disclosed in good faith, regardless of when the Closing Disclosure is provided relative to consummation. Other industry commenters, while generally supportive of the proposal, expressed concerns about unintended consequences and some suggested additional parameters or guidance around the timing or accuracy rules that apply to Closing Disclosures. These comments are discussed more fully below.

Only one consumer advocate group commented on the proposal. That commenter urged the Bureau not to adopt the proposal, primarily citing concerns about consumer confusion and information overload. That commenter suggested that the proposal would lead to consumers receiving an increased number of disclosures, which the commenter believes would undermine the purpose of the Closing Disclosure and overwhelm consumers. The consumer advocate group commenter also stated that the proposal would remove the disincentive from providing Closing Disclosures to consumers very early, which the commenter believes would undermine the distinction between the Loan Estimate and the Closing Disclosure. Instead of finalizing the proposal, that commenter urged the Bureau to amend the rule to provide that a Closing Disclosure can only be given three business days before consummation, with redisclosure permitted thereafter only under the circumstances in § 1026.19(f)(2)(i) and (ii).

One individual commenter expressed opposition to the proposal and urged the Bureau to increase the four-business day limit to a seven-business day limit, rather than eliminating it altogether, so as to retain a deterrent against early Closing Disclosures. An industry commenter opposed such an approach, stating that simply extending the four-business day limit to a larger number of days would not fully address current issues.

Numerous commenters responded to the Bureau's specific requests for comment on issues related to the four-business day limit and the potential effects of the proposal. These comments are discussed below.

The Effect of the Four-Business Day Limit

As noted above, the proposal requested information on the extent to which the four-business day limit has created situations where creditors cannot provide either a revised Loan Estimate or a corrected Closing Disclosure to reset tolerances. The proposal requested information on the frequency and the cause of such occurrences and on the average costs and the nature of such costs associated with such occurrences.

Industry commenters generally stated that the four-business day limit has created compliance problems and imposed costs on creditors. One industry trade association commenter noted that a large creditor had reported tolerance cures of $60,000 in one month attributable to issues with the four-business day limit. That same commenter noted that a mid-sized creditor had reported that between 13 and 37 percent of its tolerance cures each month during a five-month period were attributable to the four-business day limit. The commenter also noted that absorbing such costs is more difficult for small creditors. Another commenter estimated costs incurred by creditors for some common events associated with the four-business day limit: $825 per affected loan for lock extension fees and a minimum of $150 per affected loan for property inspections due to weather events.

Other commenters provided specific examples of problems created by the four-business day limit. For example, one industry commenter described a delay in the final construction of a home and a corresponding rate lock extension fee being incurred after the initial Closing Disclosure had been sent to the consumer six days before the originally scheduled consummation date. That commenter noted another example of additional survey costs incurred due to a newly filed property lien during the six days before consummation. In both instances, the creditor absorbed the increased costs because of the four-business day limit. Another industry commenter provided other examples, including another instance of fees that were incurred due to issues discovered during a title search close to the consummation date.

An industry trade association commenter noted that its member banks did not report the frequent need to reset tolerances in close proximity to consummation, but said that its members reported isolated situations of absorbing costs from valid changed circumstances, denying requests for changes to loan terms, or starting the loan process over rather than accommodating the change. Another industry commenter stated that it typically works with the same title companies and other service providers and does not price its loans to absorb costs associated with the four-business day limit. That commenter has not denied applications because of the inability to reset tolerances, but stated that it has heard reports of such occurrences at other creditors from potential customers, including that some consumers have lost home purchase contracts where applications are denied late in the process. Another industry commenter stated that it believes most lenders absorb the additional costs associated with the four-business day limit, rather than denying applications, due to concerns about customer service and the risk of delay.

While not citing specific instances of problems with the four-business day limit, numerous other industry commenters stated that costs will frequently change after a Closing Disclosure has been provided to the consumer for reasons outside of the creditor's control, or due to consumer requests, even if the initial Closing Disclosure is provided close to the anticipated time of consummation. Rate lock extension fees were the fee type most frequently cited as being associated with such cost changes. Several industry commenters also noted that consumers may request changes to interest rates and lender credits or points after the initial Closing Disclosure has been provided to the consumer. Another commenter noted that the four-business day limit is especially problematic in new construction transactions when consumers submit change order requests to their builder that increase the loan amount. Commenters also noted that delays in anticipated closing dates frequently occur. These commenters cited numerous reasons that closings might be delayed, even close to the time of the initially scheduled closing, including home inspection issues that require correction, storm damage, title issues, late appraisals, and consumer requests for closing delays. The consumer advocate group that commented on the proposal did not comment on this aspect of it.

Closing Disclosure Timing Practices

The proposal also requested comment on the extent to which creditors are providing Closing Disclosures to consumers so that they are received substantially before the required three business days prior to consummation with terms and costs that are nearly certain to be revised (and, if so, the number of days before consummation). In addition, the proposal requested comment on the extent to which creditors might change their practices regarding provision of the Closing Disclosure if the proposal is finalized.

Numerous industry commenters responded to the Bureau's requests for comment related to Closing Disclosure timing. Several commenters noted that there are inconsistent approaches to Closing Disclosure timing across the industry, with some issuing the Closing Disclosure at an early point in the process and others waiting until closer to the time of consummation when final amounts are more likely to be known. Some commenters who noted this difference in approach also noted that providing Closing Disclosures very early does not seem consistent with the Bureau's intent that the Closing Disclosure act as a statement of final loan terms and closing costs. One industry commenter stated that it would be possible for a creditor to set up a process that would allow it to issue a Closing Disclosure earlier, while still containing accurate loan terms. That commenter suggested holding creditors responsible for having adequate policies and procedures to ensure that the disclosure is representative of the loan terms and actual costs known at the time of delivery.

Some commenters, including both industry commenters and the consumer advocate group commenter, expressed concern that the proposal could incentivize creditors to provide Closing Disclosures earlier in the process. One industry commenter stated that creditors who do provide Closing Disclosures very early may be at a competitive advantage to those that do not. Another industry commenter stated a concern that some creditors might issue Closing Disclosures very early to appear more efficient than their competitors. Another industry commenter indicated that some creditors issue Closing Disclosures very early to provide more flexibility with scheduling closing, and noted that the four-business day limit provides a disincentive against the practice. As discussed below, some commenters who stated that the proposal could incentivize creditors to provide Closing Disclosures earlier also expressed concern that such a practice could have a detrimental effect on consumer understanding of the transaction.

One industry commenter stated that it currently provides the Closing Disclosure three business days before consummation, but noted that it would likely provide the first Closing Disclosure a week earlier if the proposal is finalized. This commenter asserted that such a practice would give consumers additional time to review the Closing Disclosure and ask questions. Some commenters noted that they provide Closing Disclosures close to the time of consummation and did not express that their practices would change. Other industry commenters generally stated that concerns that removing the four-business day limit would incentivize creditors to provide Closing Disclosures early are unfounded because early provision of the Closing Disclosure would be difficult to accomplish while meeting the requirements to act in good faith and exercise due diligence, and would create additional work for creditors and cause confusion for consumers. One industry trade association commenter noted that some of its member banks had expressed that providing Closing Disclosures early does not provide any advantage, because there is a high likelihood that the disclosure will undergo revisions.

Closing Disclosure Timing and Consumer Understanding

The Bureau requested comment on potential harms to consumers when creditors provide Closing Disclosures so that they are received more than the required three business days prior to consummation with terms and costs that are nearly certain to be revised, including potential confusion or information overload to the consumer as a result of receiving more corrected Closing Disclosures. The Bureau also requested comment on whether it should consider adopting measures to prevent such harms in a future rulemaking.

Some commenters stated that the proposal could result in consumer confusion because it would remove the current disincentive to providing Closing Disclosures well before the required three business days prior to consummation, which they assert would result in earlier, and therefore more frequent, Closing Disclosures. For example, the consumer advocate group commenter expressed concern that the proposal would encourage creditors to provide Closing Disclosures very early in the lending process, which would result in more Closing Disclosures and be confusing for consumers. That commenter explained that creditors are permitted to issue multiple Loan Estimates, including Loan Estimates that do not reset tolerances. The commenter expressed concern that the proposal could increase consumer confusion by encouraging multiple Closing Disclosures, and that consumers will not know which versions of the disclosures to compare. The consumer advocate group commenter also stated that consumers may become desensitized to the need to read disclosures carefully if they receive frequent Closing Disclosures. The commenter stated that increases in costs may eventually exceed what the consumer is willing to pay, which would cause them to shop with other lenders. However, if consumers are desensitized to changes, the commenter argued that consumers will be less likely to withdraw from the transaction. The consumer advocate group commenter further stated that the proposal would encourage creditors to provide Closing Disclosures that are not intended to reset tolerances, which the commenter asserted will be confusing for consumers.

Several industry commenters also stated that the proposal could potentially increase consumer confusion by incentivizing earlier, and therefore more frequent, Closing Disclosures. Several commenters, including an industry trade association commenter, similarly stated that too many disclosure updates could work against consumer understanding, because consumers might ignore the disclosures and would not know which ones to use for comparison purposes.

An industry commenter stated that consumers would be confused when receiving a Closing Disclosure very early and that consumers could be confused by a Closing Disclosure that purports to be a statement of final loan terms and closing costs, but is only an estimate of costs. That commenter noted that not all changes to the loan will require creditors to reset tolerances and that consumers who receive Closing Disclosures very early may not receive corrected Closing Disclosures until consummation if there are no changes that occur that would cause the creditor to reset tolerances (or one of the triggering events in § 1026.19(f)(2)(ii) occurs, which would require a new disclosure and three-day waiting period). The commenter stated that this would be contrary to the purpose of the requirement to receive the Closing Disclosure three business days before consummation.

Other commenters stated that the proposal would not create consumer confusion. Some industry commenters stated that the proposal would not diminish consumer understanding because creditors would remain able to reset tolerances only as permitted under § 1026.19(e)(3)(iv) and that there would not be a large increase in the number of Closing Disclosures. One industry commenter stated that consumers should not experience confusion or information overload, as it would be no different from consumers receiving revised Loan Estimates. That commenter also stated that it expects lenders to communicate with consumers to address any confusion. Another industry commenter similarly suggested that consumers might benefit from earlier Closing Disclosures and the creditor's flexibility to issue corrected Closing Disclosures because it would facilitate a more transparent process. Some industry commenters asserted that consumers could benefit from receiving Closing Disclosures earlier in the process because they would have additional time to review the information that does not appear on the Loan Estimate.

With respect to additional protections to avoid potential consumer harms associated with removing the four-business day limit, several commenters who supported the proposal also suggested that the Bureau address Closing Disclosure timing or accuracy rules, because of concerns about potential effects of the proposed rule or to address uncertainty about current rules. With respect to timing, an industry commenter requested clarification as to whether creditors can reset tolerances using a Closing Disclosure after issuing an initial Loan Estimate but without ever issuing any revised Loan Estimate. To maintain the disincentive against providing Closing Disclosures very early, an individual commenter suggested that the Bureau expand the window of time prior to consummation during which a creditor can reset tolerances with a Closing Disclosure from four business days to seven business days. Another commenter noted that merely expanding that time window by a limited number of days would only partially address the problems discussed in the proposal, and did not favor that approach. The consumer advocate group commenter suggested that the rule should provide that the Closing Disclosure can only be given no more than three business days before consummation. An anonymous commenter advised that, in addition to removing the four-business day limit for resetting tolerances with a Closing Disclosure, the Bureau should also adopt a new prohibition on providing Closing Disclosures unless the creditor reasonably anticipates that the transaction will close within ten business days. An industry commenter stated that the Bureau's supervision process could emphasize scrutiny of potentially unnecessary iterations of corrected Closing Disclosures. The commenter suggested that, as an alternative, the Bureau create a new timing requirement for resetting tolerances with a corrected Closing Disclosure, whereby any and all changes to the Closing Disclosure for resetting tolerances would be made at only one specific point in time during a transaction. Meanwhile, several commenters supported removing the timing restriction on resetting tolerances with a Closing Disclosure and stated that the Bureau should not place new timing limitations on providing Closing Disclosures. One commenter noted that the rule's current accuracy standard is already a deterrent against providing very early Closing Disclosures because it requires that the creditor, acting in good faith, exercise due diligence in obtaining the information.

With respect to Closing Disclosure accuracy, one industry commenter stated that, in addition to removing the time limit for resetting tolerances with a Closing Disclosure, the Bureau should either apply a stricter accuracy standard to the Closing Disclosure or clarify the current accuracy standard to avoid very early Closing Disclosures. That commenter expressed concern that some creditors are providing initial Closing Disclosures to consumers using price quotes automatically generated by software vendors rather than requesting more accurate information from the settlement agent involved in the transaction. Another industry commenter similarly expressed concern about the adequacy of current accuracy standards and advised that the Bureau provide some specific expectation regarding Closing Disclosure timing in order to discern whether a creditor has provided disclosures on the Closing Disclosure in good faith. Another industry commenter recommended that the Bureau provide a complete summary of good faith under all of the operative provisions of the rule. Another industry commenter suggested that concerns about early Closing Disclosure issuance can be addressed through a warning that the practice violates the spirit of the disclosure rule.

Permissible Reasons To Reset Tolerances

The Bureau requested comment on whether the rule should allow creditors to reset tolerances with a Closing Disclosure in circumstances that are more limited than those that apply under the current rule (§ 1026.19(e)(3)(iv)) or whether the rule should be more restrictive with respect to resetting tolerances with a corrected Closing Disclosure for certain third-party costs and creditor fees. Most commenters who addressed this aspect of the proposal did not support applying a more restrictive set of circumstances or fees resetting tolerances with a Closing Disclosure. Specifically, one individual commenter and several industry commenters requested that the rule not restrict resetting tolerances with a Closing Disclosure in circumstances more limited than for a revised Loan Estimate. However, one individual commenter stated that interest rate lock fees should not be allowed for resetting tolerances with either revised Loan Estimates or Closing Disclosures unless the fee is clearly attributable to a consumer delay or exceptional event, such as a weather event. One industry commenter stated that two provisions under the current rule are inapplicable to resetting tolerances with a Closing Disclosure. Specifically, that commenter stated that the provisions that allow creditors to reset tolerances where a Loan Estimate expires (§ 1026.19(e)(3)(iv)(E)) and in a transaction involving a construction loan where closings are delayed (§ 1026.19(e)(3)(iv)(F)) are inapplicable to resetting tolerances with a Closing Disclosure.

The Final Rule

For the reasons discussed below, the Bureau is finalizing the amendments to § 1026.19(e)(4)(i) and (ii) as proposed. The Bureau is also finalizing the proposed changes to comment 19(e)(1)(ii)-1, including a minor technical revision for clarity, and to comments 19(e)(4)(i)-1 and -2. The Bureau is republishing comment 19(e)(1)(ii)-2 with no changes. In addition, the Bureau is finalizing the changes to comment 19(e)(4)(ii)-1 substantially as proposed, including minor technical and conforming revisions, and providing an additional example in response to commenter requests for further clarification.

The final rule removes the four-business day limit and permits creditors to reset tolerances with either an initial or corrected Closing Disclosure regardless of when the Closing Disclosure is provided relative to consummation. The Bureau finds that this change will benefit both consumers and creditors and facilitate compliance with the TILA-RESPA Rule and that it is appropriate under the legal authorities described in part IV above.

As noted above, once the creditor provides the initial Closing Disclosure to the consumer, the TILA-RESPA Rule distinguishes between cost increases that can be passed on to consumers and those that cannot be passed on based on when the creditor learns about the cost increase relative to consummation. As noted by numerous commenters, this aspect of the TILA-RESPA Rule imposes on the creditor the cost of unanticipated changes to the loan that could otherwise be passed to the specific consumer incurring the increased fee through resetting tolerances. However, the four-business day limit can also have negative effects on consumers. Costs that cannot be passed to the specific consumers who incur them are generally passed on to all consumers over time through an overall increase in the cost of credit. Further, some creditors may choose to deny applications to avoid absorbing the increased costs, which can have negative effects for the consumer even if the consumer immediately reapplies for credit (e.g., could result in additional fees to extend a rate lock, further delay closing, or result in the loss of a home sales contract). The Bureau also agrees with some commenters who stated that confusion over the current rules has the potential to create legal and compliance risks for creditors, which could have a negative impact on the cost and availability of credit.

As finalized, § 1026.19(e)(4)(i) provides that, subject to the requirements of § 1026.19(e)(4)(ii), if a creditor uses a revised estimate pursuant to § 1026.19(e)(3)(iv) for the purpose of determining good faith under § 1026.19(e)(3)(i) and (ii), the creditor shall provide a revised version of the disclosures required under § 1026.19(e)(1)(i) or the disclosures required under § 1026.19(f)(1)(i) (including any corrected disclosures provided under § 1026.19(f)(2)(i) or (ii)) reflecting the revised estimate within three business days of receiving information sufficient to establish that one of the reasons for revision applies.36

36 The final rule does not change the current Regulation Z requirement that, if the Closing Disclosure becomes inaccurate before consummation, the creditor must provide a corrected Closing Disclosure reflecting any changed terms to the consumer so that the consumer receives the corrected Closing Disclosure at or before consummation, § 1026.19(f)(2)(i), or, in some circumstances, must ensure that the consumer receives the corrected Closing Disclosure no later than three business days before consummation, § 1026.19(f)(2)(ii).

The Bureau considered concerns discussed in the proposal and expressed by some commenters about the potential effects of the proposal on the Closing Disclosure timing. As noted above, the timing restriction on resetting tolerances creates a disincentive to providing consumers with Closing Disclosures very early in the lending process. Once a creditor has provided a Closing Disclosure, it can reset tolerances only if there are less than four business days between the time the revised version of the disclosures is required to be provided pursuant to § 1026.19(e)(4)(i) (i.e., within three business days of the time the creditor received information sufficient to establish the reason for revision) and consummation. The Bureau agrees with commenters who stated that the practice of providing very early Closing Disclosures with terms that are nearly certain to be revised would be contrary to the underlying purpose of the Closing Disclosure. While the Bureau acknowledges that eliminating the timing restriction on resetting tolerances with a Closing Disclosure could potentially affect the Closing Disclosure timing for some creditors, the Bureau does not believe that retaining the four-business day limit is an effective way to address potential issues associated with early Closing Disclosures.

In particular, the four-business day limit is problematic where a scheduled closing date is delayed and additional costs are incurred after an initial Closing Disclosure has been provided to the consumer. As noted by numerous commenters, this situation can arise even when the initial Closing Disclosure is provided to the consumer very close to the time of the initially-scheduled consummation date, as closing dates can move at the last minute for a variety of reasons. The Bureau believes that the TILA-RESPA Rule should accommodate changes that occur as a result of delayed closings. Retaining the restriction on resetting tolerances with a Closing Disclosure would not accomplish that goal. In addition, while the Bureau agrees that the very early provision of Closing Disclosures is contrary to the underlying purpose of those disclosures, the Bureau does not believe that finalizing the proposal will have an overall negative effect on consumer understanding. The Bureau does not expect that removal of the four-business day limit will result in a significant increase in the number of disclosures provided to consumers because the final rule does not expand the circumstances in which creditors are allowed to reset tolerances. And, as further discussed below, the Bureau believes that current rules should prevent creditors from sending Closing Disclosures very early in the process before engaging in due diligence to ensure that any costs that are not finalized are estimated in good faith.

The Bureau also considered comments that suggested additional protections might be necessary to avoid consumer harm from removing the restriction on resetting tolerances with a Closing Disclosure. However, the Bureau is not adopting any additional substantive changes to the TILA-RESPA Rule's existing Closing Disclosure timing or accuracy provisions at this time. The Bureau concludes that the rule's existing provisions should prevent creditors from sending Closing Disclosures very early in the process before engaging in due diligence.

With respect to the accuracy standard that applies to the Closing Disclosure, the Bureau concludes that substantive changes to the TILA-RESPA Rule's existing provisions are not necessary to prevent creditors from sending Closing Disclosures very early in the process before engaging in due diligence. The Bureau believes the existing Closing Disclosure accuracy standard already accomplishes that objective. Existing § 1026.19(f)(1)(i) and comment 19(f)(1)(i)-1 require creditors to disclose on the Closing Disclosure the actual terms of the credit transaction. Existing comment 19(f)(1)(i)-2 also permits creditors to estimate disclosures on the Closing Disclosure using the best information reasonably available when the actual term is not reasonably available to the creditor at the time the disclosures are made. Comment 19(f)(1)(i)-2 provides that the “reasonably available” standard requires that the creditor, acting in good faith, exercise due diligence in obtaining the information. Further, comment 19(f)(1)(i)-2.i.A provides an example illustrating the “reasonably available” standard for purposes of § 1026.19(f)(1)(i). Specifically, comment 19(f)(1)(i)-2.i.A assumes that a creditor provides the Closing Disclosure for a transaction in which the title insurance company that is providing the title insurance policy is acting as the settlement agent in connection with the transaction, but the creditor does not request the actual cost of the lender's title insurance policy that the consumer is purchasing from the title insurance company and instead discloses an estimate based on information from a different transaction. Comment 19(f)(1)(i)-2.i.A provides that the creditor in the example has not exercised due diligence in obtaining the information about the cost of the lender's title insurance policy required under the “reasonably available” standard in connection with the estimate disclosed for the lender's title insurance policy. Regarding a commenter's request for clarification as to whether creditors can reset tolerances using a Closing Disclosure after issuing an initial Loan Estimate but without ever issuing any revised Loan Estimate, the rule does not prohibit creditors from doing so but creditors must otherwise comply with the rule, including its Closing Disclosure accuracy standard. The Bureau will continue to monitor the market for practices that do not comply with the rule's Closing Disclosure accuracy standard.

With respect to the timing of the Closing Disclosure, the Bureau is not adopting any substantive changes to the TILA-RESPA Rule's existing Closing Disclosure timing provisions, other than removing the four-business day limit as discussed above. For example, the Bureau considered a commenter's suggestion that the Bureau expand the window of time prior to consummation during which a creditor can reset tolerances with a Closing Disclosure (from four business days to seven business days). The commenter's suggested approach would mean that a creditor could reset tolerances with a Closing Disclosure when consummation is reasonably expected to occur no more than ten business days after the creditor learns about the valid justification (i.e., three business days from the time the creditor knows about the valid justification plus seven business days from the time the revised disclosure is required to be provided until consummation). The Bureau declines to adopt such approach. The Bureau agrees with another commenter who noted that merely expanding that time window by a limited number of days would only partially address the issue created by the four-business day limit under the current rule. In the example above, a creditor could not reset tolerances with a Closing Disclosure when consummation is reasonably expected to occur eleven business days or more after the creditor learns about the valid justification. As noted above, the Bureau concludes that the issues created by the four-business day limit have negative effects on both creditors and consumers and that the four-business day limit should be eliminated, not merely expanded by a limited number of days.

Similarly, the Bureau declines to set a new, specific timing requirement for Closing Disclosures. For example, the Bureau declines to place new limitations on providing Closing Disclosures such that an initial Closing Disclosure could only be given no more than three business days before consummation, as a consumer advocate group commenter advised. Such a new limitation would exacerbate rather than alleviate problems associated with the current rule. The Bureau also declines to follow the suggestion to adopt a new prohibition on providing Closing Disclosures unless the creditor reasonably anticipates that the transaction will close within 10 business days. The Bureau does not believe that there is an appropriate basis at this time for creating such a prohibition, including setting any such cutoff at 10 business days or any other particular number of days.

The Bureau also considered the commenter suggestion that the Bureau create a new timing requirement for resetting tolerances with a corrected Closing Disclosure, whereby any and all changes to the Closing Disclosure for resetting tolerances would be made at only one specific point in time during a transaction. The Bureau declines to adopt such a timing requirement because doing so would be inconsistent with the purpose articulated by the Bureau when it adopted the § 1026.19(e)(4)(i) timing requirements for resetting tolerances. Specifically, current § 1026.19(e)(4)(i) generally provides that, to reset tolerances, the creditor must provide revised disclosures within three business days of receiving information sufficient to establish a valid justification. In the 2013 TILA-RESPA Final Rule, the Bureau stated its view “that intermittent redisclosure of the integrated Loan Estimate is necessary under RESPA because settlement service provider costs typically fluctuate during the mortgage loan origination process” and “intermittent redisclosure is consistent with the purposes of TILA because it promotes the informed use of credit by keeping the consumer apprised of changes in costs.” 37 The Bureau similarly holds that view regarding intermittent redisclosure with the Closing Disclosure. For all these reasons, the Bureau is finalizing the proposal to remove the four-business day limit without adopting any further substantive changes to the rule's existing Closing Disclosure timing or accuracy provisions.

37 78 FR 79730, 79834 (Dec. 31, 2013).

The Bureau also declines to adopt changes to the rule that would restrict creditors' ability to reset tolerances with a Closing Disclosure to circumstances that are more limited than those that apply under § 1026.19(e)(3)(iv) or that would be more restrictive with respect to resetting tolerances with a Closing Disclosure for certain third-party costs and creditor fees. As noted above, most commenters who addressed this aspect of the proposal did not support applying a more restrictive set of circumstances or fees when resetting tolerances with a Closing Disclosure. The Bureau believes that the circumstances identified under § 1026.19(e)(3)(iv) are adequate to balance flexibility for creditors to reset tolerances due to unforeseen circumstances while also providing constraints to avoid arbitrary increases in costs to consumers in relation to revised Loan Estimates, and that those circumstances are also adequate with respect to resetting tolerances with a Closing Disclosure.

One individual commenter stated that interest rate lock extension fees should not be allowed for resetting tolerances with either revised Loan Estimates or Closing Disclosures unless the fee is clearly attributable to a consumer delay or exceptional event, such as a weather event. The Bureau does not believe that different treatment of interest rate lock extension fees with respect to resetting tolerances is warranted. Currently, when the consumer enters into a rate lock agreement for a previously floating interest rate, the creditor is required to provide a revised Loan Estimate that updates the interest-rate related charges, credits, and terms pursuant to § 1026.19(e)(3)(iv)(D).38 This disclosure sets the applicable baseline for the tolerance of those interest-rate related charges, credits, and terms subject to a good-faith tolerance. Subsequent changes to interest rate charges and terms would reset tolerances if the changes are the result of a changed circumstance that causes the applicable charge to exceed the applicable tolerance, or if the consumer requests a change that causes the interest-rate related charges, credits, and terms to increase.39 The same timing concerns related to the four-business day limit apply when either the initial rate lock occurs or an extension of the rate lock period is sought (i.e., once the Closing Disclosure has been issued, the creditor can reset tolerances only if there are less than four business days between the time the revised version of the disclosures is required to be provided pursuant to § 1026.19(e)(4)(i) and consummation). As noted by commenters, the most common charge that is incurred due to a changed circumstance or consumer request after the Closing Disclosure has been provided is a fee to extend the relevant time period of a rate lock.

38 Some commenters requested further clarification on the use of Closing Disclosures to reset tolerances when the interest rate is locked pursuant to § 1026.19(e)(3)(iv)(D). Guidance provided in the section-by-section analysis of the July 2017 Amendments explains that § 1026.19(e)(3)(iv)(D) is used in relation to providing revised Loan Estimates, not Closing Disclosures, and once a revised Loan Estimate is provided when a rate has been locked, § 1026.19(e)(3)(iv)(D) is not a basis to provide another revised Loan Estimate. If the interest rate has not been locked until after a Closing Disclosure has been provided, a corrected Closing Disclosure must be provided if the disclosures become inaccurate under § 1026.19(f)(2). 82 FR 37656, 37682 (Aug. 11, 2017).

39See § 1026.19(e)(3)(iv)(A), (B), and (C).

The Bureau does not believe it is appropriate to treat rate lock extension fees differently than other fees under the rule with respect to resetting tolerances. The Bureau does not believe that rate lock extension fees are fundamentally different from other creditor costs. Extending rate locks for consumers can create opportunity costs to creditors based on secondary market conditions for the delivery of the loans, or direct costs by requiring the renegotiation or acquisition of interest-rate swaps used to offset interest-rate risk. Further, the Bureau is concerned that treating rate lock extension fees differently in this regard would make it less likely that creditors would offer rate lock extensions, which could have unintended effects that could distort interest rate pricing and the mortgage market generally. The Bureau will monitor industry practices related to interest rate lock extensions to determine if additional rulemaking in this area is warranted in the future.

The Bureau also considered the comment that noted that the provisions that allow creditors to reset tolerances when a Loan Estimate expires and in transactions involving construction loans where closings are delayed are inapplicable to resetting tolerances with a Closing Disclosure. Although the Bureau agrees that those provisions are generally inapplicable to resetting tolerances with a Closing Disclosure, the Bureau does not believe it is necessary to amend the rule further to address the issue expressly.

The Bureau is also finalizing changes to the commentary to § 1026.19(e)(4). Consistent with the revisions to § 1026.19(e)(4)(i), the Bureau is finalizing the proposed changes to comment 19(e)(4)(ii)-1, which removes the reference to the four-business day limit, including a minor technical revision for clarity. As amended, comment 19(e)(4)(ii)-1 expressly states that, if a creditor uses a revised estimate pursuant to § 1026.19(e)(3)(iv) for the purpose of determining good faith under § 1026.19(e)(3)(i) and (ii), § 1026.19(e)(4)(i) permits the creditor to provide the revised estimate in the disclosures required under § 1026.19(f)(1)(i) (including any corrected disclosures provided under § 1026.19(f)(2)(i) or (ii)). In addition, and as explained below, the Bureau is: Making conforming revisions to existing comments 19(e)(4)(ii)-1.i and .ii; adopting proposed comment 19(e)(4)(ii)-1.iii with conforming and clarifying revisions; and adopting proposed comment 19(e)(4)(ii)-1.iv with conforming revisions and renumbering it as comment 19(e)(4)(ii)-1.v. The conforming revisions to final comments 19(e)(4)(ii)-1.i, .ii, .iii, and .v reflect the illustrative June dates used elsewhere in existing comments 19(e)(1)(iii)-2, 19(e)(1)(v)-2, 19(f)(1)(i)-1, and 19(f)(2)(ii)-1. Final comment 19(e)(4)(ii)-1.iii also includes a clarifying reference to existing § 1026.19(f)(2)(i) and its requirement that the creditor provide corrected disclosures reflecting any changed terms to the consumer so that the consumer receives the corrected disclosures at or before consummation. The Bureau is also adding new comment 19(e)(4)(ii)-1.iv to provide an additional illustrative example in response to commenters' requests for additional clarification.

Specifically, some industry commenters requested that the Bureau provide examples that illustrate the use of mail and electronic delivery of disclosures. One industry commenter requested that the Bureau provide an example of a situation where creditors may use a Closing Disclosure to reset tolerances when the consumer requests a rate lock extension. Several industry commenters recommended that the Bureau provide an example in which a Closing Disclosure is provided to the consumer and then a reason for revision under § 1026.19(e)(3)(iv) occurs more than four business days before consummation—and thus highlight the requirement in § 1026.19(e)(4)(i) that the creditor provide revised disclosures within three business days of receiving information sufficient to establish that a reason for revision under § 1026.19(e)(3)(iv) has occurred.

The new example in final comment 19(e)(4)(ii)-1.iv addresses these requests for clarification. Specifically, the new example in final comment 19(e)(4)(ii)-1.iv assumes consummation is originally scheduled for Wednesday, June 10. The example provides that the creditor hand delivers the disclosures required by §  1026.19(f)(1)(i) on Friday, June 5. On Monday, June 8, the consumer reschedules consummation for Wednesday, June 17. Also on Monday, June 8, the consumer requests a rate lock extension that would result in a revised disclosure pursuant to § 1026.19(e)(3)(iv)(C) but would not require a new waiting period pursuant to § 1026.19(f)(2)(ii). The example clarifies that the creditor complies with the requirements of § 1026.19(e)(4) by delivering or placing in the mail the disclosures required by § 1026.19(f)(2)(i) reflecting the consumer-requested changes on Thursday, June 11. The example references existing § 1026.19(f)(2)(i) and its requirement that the creditor provide corrected disclosures reflecting any changed terms to the consumer so that the consumer receives the corrected disclosures at or before consummation. The example clarifies that the creditor complies with § 1026.19(f)(2)(i) by hand delivering the disclosures on Thursday, June 11. The example further clarifies that, alternatively, the creditor complies with § 1026.19(f)(2)(i) by providing the disclosures to the consumer by mail, including by electronic mail, on Thursday, June 11, because the consumer is considered to have received the corrected disclosures on Monday, June 15 (unless the creditor relies on evidence that the consumer received the corrected disclosures earlier). The example refers to § 1026.19(f)(1)(iii) and comments 19(f)(1)(iii)-1 and -2 regarding receipt of disclosures that are not provided to the consumer in person. The example also refers to § 1026.38(t)(3) and comment 19(f)(1)(iii)-2 regarding providing disclosures in electronic form.

An industry commenter requested clarification regarding the § 1026.19(e)(4)(i) timing requirement where a reason for revision under § 1026.19(e)(3)(iv) occurs within three business days of consummation. Another industry commenter requested clarification that providing a Closing Disclosure to reset tolerances under § 1026.19(e)(4) does not necessarily require a new waiting period pursuant to § 1026.19(f)(2)(ii). The example in final comment 19(e)(4)(ii)-1.iii addresses these requests for clarification. Specifically, the example in final comment 19(e)(4)(ii)-1.iii assumes consummation is scheduled for Thursday, June 4. The example provides that the creditor hand delivers the disclosures required by § 1026.19(f)(1)(i) on Monday, June 1, and, on Tuesday, June 2, the consumer requests a change to the loan that would result in a revised disclosure pursuant to § 1026.19(e)(3)(iv)(C) but would not require a new waiting period pursuant to § 1026.19(f)(2)(ii). The example references existing § 1026.19(f)(2)(i) and its requirement that the creditor provide corrected disclosures reflecting any changed terms to the consumer so that the consumer receives the corrected disclosures at or before consummation. The example clarifies that the creditor complies with the requirements of § 1026.19(e)(4) by hand delivering the disclosures required by § 1026.19(f)(2)(i) reflecting the consumer-requested changes on Thursday, June 4.

The Bureau is finalizing proposed comment 19(e)(4)(ii)-1.iv with conforming revisions and renumbering it as comment 19(e)(4)(ii)-1.v. As finalized comment 19(e)(4)(ii)-1.v assumes that consummation is originally scheduled for Wednesday, June 10. The comment provides that the creditor hand delivers the disclosures required by § 1026.19(f)(1)(i) on Friday, June 5, and the APR becomes inaccurate on Monday, June 8, such that the creditor is required to delay consummation and provide corrected disclosures, including any other changed terms, so that the consumer receives them at least three business days before consummation under § 1026.19(f)(2)(ii). Consummation is rescheduled for Friday, June 12. The comment clarifies that the creditor complies with the requirements of § 1026.19(e)(4) by hand delivering the disclosures required by § 1026.19(f)(2)(ii) reflecting the revised APR and any other changed terms to the consumer on Tuesday, June 9. The comment references § 1026.19(f)(2)(ii) and associated commentary regarding changes before consummation requiring a new waiting period. The comment also references comment 19(e)(4)(i)-1 for further guidance on when sufficient information has been received to establish an event has occurred.

The Bureau notes that some commenters requested that the final rule incorporate other clarifications and examples. For example, an industry commenter requested clarification as to whether § 1026.19(e)(4)(ii) requires consumers to receive a Closing Disclosure not later than four business days prior to consummation. The commenter also requested that the Bureau permit creditors to reset tolerances after consummation when settlement occurs after consummation. Another industry commenter broadly requested clarification regarding how to reset tolerances with a Closing Disclosure under various scenarios, including when different communication channels are used for providing Loan Estimates and Closing Disclosures, there is a non-borrowing spouse, or there are multiple changed circumstances. The Bureau declines to make specific changes to the rule in response to these comments, because the existing regulation and commentary address these issues as outlined below.

Regarding a commenter's request for clarification as to whether § 1026.19(e)(4)(ii) requires consumers to receive a Closing Disclosure not later than four business days prior to consummation, the Bureau notes that § 1026.19(e)(4)(ii) provides that the consumer must receive any revised version of the disclosures required under § 1026.19(e)(1)(i) (i.e., the Loan Estimate) not later than four business days prior to consummation, but that timing requirement does not reference the Closing Disclosure.

Regarding a commenter's request to allow creditors to reset tolerances after consummation when settlement occurs after consummation, the Bureau declines to adopt this change because existing § 1026.2(a)(13) provides that, once consummation occurs, the consumer is already contractually obligated on the credit transaction. The Bureau also declines to further amend the rule in response to a commenter's broad request for clarification regarding how to reset tolerances with a Closing Disclosure under various scenarios, including when different communication channels are used for providing Loan Estimates and Closing Disclosures, there is a non-borrowing spouse, or there are multiple changed circumstances. The Bureau believes that the TILA-RESPA Rule already provides sufficient guidance on the topics identified by the commenter. Specifically, guidance for resetting tolerances with a Closing Disclosure can be found in § 1026.19(e)(4) and its associated commentary, as amended by this final rule. Guidance as to providing disclosures via different communication channels can be found in § 1026.19(e)(1)(iv) and § 1026.19(f)(1)(iii) and the associated commentary. Guidance as to providing disclosures for a non-borrowing spouse can be found in § 1026.17(d) and associated commentary. Guidance as to providing revised disclosures where there are multiple changed circumstances can be found in § 1026.19(e)(3)(iv) and § 1026.19(e)(4) and the associated commentary.

Finally, the Bureau notes that it is adopting as proposed the changes to § 1026.19(e)(4) and its commentary to reflect amendments to the TILA-RESPA Rule made by the January 2015 Amendments regarding interest rate dependent charges, for the reasons noted above in the discussion of the 2017 Proposal. Specifically, the Bureau is finalizing the amendments to § 1026.19(e)(4)(i) and comment 19(e)(4)(i)-1, and removing existing comment 19(e)(4)(i)-2, regarding the relationship to § 1026.19(e)(3)(iv)(D).

VI. Effective Date

The Bureau proposed an effective date of 30 days after publication in the Federal Register of any final rule based on the proposal. The Bureau also requested comment on when the changes proposed should be effective. In the proposal, the Bureau stated that it believed that the proposed changes should enable industry to implement the provisions set forth in the TILA-RESPA Rule more cost-effectively and that industry should be able to implement these changes relatively quickly. At the same time, the Bureau stated that it recognized that some of the proposed changes might require changes to systems or procedures.

The Bureau received several comments addressing the proposed effective date. One industry commenter agreed with the Bureau's proposed effective date of 30 days after publication. That commenter, as well as another industry commenter, noted that the proposed provisions would not impose new burdens on creditors. One commenter noted that a creditor would not be out of compliance if it continued to follow the current rule after the proposed changes take effect. Another industry commenter requested that the final rule become effective no sooner than 90 days after publication in the Federal Register to allow adequate time to implement the timing changes. The commenter also requested that the final rule apply to applications received on or after the effective date, or some specific date. Another industry commenter suggested that the Bureau adopt an optional early compliance approach, with an effective date 60 days after publication and a mandatory compliance date one year thereafter. An industry commenter requested that this final rule be effective for any transaction covered by the 2013 TILA-RESPA Final Rule. Another industry commenter encouraged the Bureau to heed recommendations from loan origination system vendors; however, the Bureau did not receive any such recommendations.

The amendments in the final rule will become effective 30 days after publication in the Federal Register.The Bureau believes the changes should enable industry to implement the provisions set forth in the TILA-RESPA Rule more cost-effectively and that industry should be able to implement these changes relatively quickly. Regarding some commenters' requests for a later effective date, an optional early compliance period, or an effective date that distinguishes among transactions based on when a loan application was received, the Bureau declines to adopt such approaches because the final rule does not impose any new burdens on creditors. Once the final rule becomes effective, the ability to reset tolerances prior to consummation for a given transaction will not be limited by when the application was received. The Bureau declines to make this final rule retroactive, as retroactive rulemaking is disfavored by the courts and the commenter has not established why it would be appropriate here.

VII. Dodd-Frank Act Section 1022(b)(2) Analysis A. Overview

In developing this final rule, the Bureau has considered the potential benefits, costs, and impacts.40 The Bureau has consulted, or offered to consult with, the prudential regulators, the Securities and Exchange Commission, the Department of Housing and Urban Development, the Federal Housing Finance Agency, the Federal Trade Commission, the Department of Veterans Affairs, the Department of Agriculture, and the Department of the Treasury, including regarding consistency with any prudential, market, or systemic objectives administered by such agencies.

40 Specifically, section 1022(b)(2)(A) of the Dodd-Frank Act calls for the Bureau to consider the potential benefits and costs of a regulation to consumers and covered persons, including the potential reduction of access by consumers to consumer financial products or services; the impact on depository institutions and credit unions with $10 billion or less in total assets as described in section 1026 of the Dodd-Frank Act; and the impact on consumers in rural areas.

This final rule makes a substantive change to the current TILA-RESPA Rule, by allowing creditors to reset tolerances with a Closing Disclosure (both initial and corrected), irrespective of the date of consummation. This new provision is restricted to circumstances where the TILA-RESPA Rule currently allows creditors to reset tolerances, such as changes in costs resulting from changed circumstances; new information regarding eligibility of the borrower; and borrower-requested change (for instance, rate lock extension). The potential benefits and costs of the provisions contained in the final rule are evaluated relative to the baseline where the current provisions of the TILA-RESPA Rule remain in place. Under the TILA-RESPA Rule, there is no specific provision that allows creditors to use a Closing Disclosure to reset tolerances if there are four or more days between the time the revised version of the disclosures is required to be provided pursuant to § 1026.19(e)(4)(i) and consummation. Consequently, a creditor may not be allowed to reset tolerances if it has already provided the Closing Disclosure to the consumer when it learns about the increase in cost. In such cases, some creditors, faced with the prospect of absorbing cost increases, may choose to deny the application.

The proposal solicited data that could inform the analysis of benefits, costs, and impacts of the proposal, but the Bureau did not receive any such data in response. In particular, the Bureau requested information on the extent to which the current rule has caused situations in which creditors cannot reset tolerances despite a valid changed circumstance. While some commenters reported such occurrences, none provided data to quantitatively assess the frequency of such occurrences or the associated costs and benefits. Since operational data at a level of detail to capture the date of the Closing Disclosure and the consummation date, or the application denial date, is not available for purchase or gathered in routine regulatory collections, the Bureau does not have, and is not aware of, data currently available that would allow it to quantify the frequency of instances of creditors being unable to issue Closing Disclosures to reset tolerances. As a result, this discussion of the potential benefits, costs, and impacts on consumers and covered persons, which takes the existing statutory and regulatory framework as the baseline, is largely qualitative.

B. Potential Benefits and Costs to Consumers and Covered Persons

The Bureau believes the final rule will benefit creditors by providing them with an option of resetting tolerances in situations where they currently do not have that option. The Bureau does not believe there would be any increased costs to creditors from this final rule compared to the baseline where the current provisions of the TILA-RESPA Rule remain in place, as the provisions of this final rule are less restrictive for creditors than the current provisions.

The Bureau believes consumers will generally benefit from this final rule. It is helpful to consider benefits and costs to consumers separately in the following scenarios.

First, there may be cases where an initial Closing Disclosure has been provided to the consumer well in advance of consummation where the creditor subsequently learns about a change in cost that would be a cause to reset tolerances. The creditor may be unable to reset tolerances currently due to the four-business day limit and may choose to absorb extra costs rather than deny the application. In these cases, this final rule will create costs for consumers because now any changes in costs due to unexpected events would in these cases likely be passed on to consumers. However, in some situations, such as cost increases due to a borrower-requested change, these extra costs might be avoidable. In addition, to the extent that creditors are currently pricing in the risk of having to absorb unexpected cost increases, this final rule will remove this extra layer of risk adjustment and create a benefit to consumers in the form of lower cost of credit.

Second, there may be cases where an initial Closing Disclosure already has been provided to the consumer well in advance of consummation and the creditor subsequently learns about a change in cost that would be a cause to reset tolerances. The creditor may be unable to reset tolerances currently due to the four-business day limit and may choose to deny the application for this reason. In such cases, this final rule will benefit borrowers by giving them an option of paying extra costs instead of having their applications denied; the Bureau believes that some borrowers may prefer to pay extra costs rather than have their applications denied.

Third, there are hypothetically situations where a creditor would prefer to provide the initial Closing Disclosure earlier, but is deterred from doing so by the risk of not being able to reset tolerances in case an unexpected change occurs. In such cases, the proposed change may result in more situations where the initial Closing Disclosure is provided well in advance of consummation; this may affect the accuracy of the disclosure if unexpected cost changes occur between the issuance and the consummation. The Bureau believes creditors themselves may generally prefer to provide the initial Closing Disclosure closer to the consummation date because it is a good customer service.

C. Impact on Covered Persons With No More Than $10 Billion in Assets

As discussed previously, the Bureau believes this final rule will not create costs for creditors, including those with no more than $10 billion in assets.

D. Impact on Access to Credit

The Bureau does not believe this final rule will have a negative effect on access to credit. On the contrary, the Bureau believes it may have a beneficial effect on access to credit. This may occur to the extent that the current restrictions on resetting tolerances using a Closing Disclosure are reflected in credit pricing, and to the extent that removing such restrictions would result in creditors reducing prices accordingly. Furthermore, this final rule will provide an option to consumers in situations where the creditor is unwilling to absorb the cost increase, and would have denied the application in the absence of this final rule.

E. Impact on Rural Areas

The Bureau does not believe this final rule will have an adverse impact on consumers in rural areas.

VIII. Regulatory Flexibility Act Analysis

The Regulatory Flexibility Act (the RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, requires each agency to consider the potential impact of its regulations on small entities, including small businesses, small governmental units, and small nonprofit organizations. The RFA defines a “small business” as a business that meets the size standard developed by the Small Business Administration pursuant to the Small Business Act.

The RFA generally requires an agency to conduct an initial regulatory flexibility analysis (IRFA) and a final regulatory flexibility analysis (FRFA) of any rule subject to notice-and-comment rulemaking requirements, unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. The Bureau also is subject to certain additional procedures under the RFA involving the convening of a panel to consult with small business representatives prior to proposing a rule for which an IRFA is required.

The Bureau believes this final rule will not create a significant economic impact on a substantial number of small entities. As described above, this final rule would reduce burden in a specific set of circumstances that an individual small entity would not frequently encounter. Therefore, a FRFA is not required.

Accordingly, the undersigned certifies that this final rule would not have a significant economic impact on a substantial number of small entities.

IX. Paperwork Reduction Act

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501 et seq.), Federal agencies are generally required to seek the Office of Management and Budget (OMB) approval for information collection requirements prior to implementation. The collections of information related to Regulations Z and X have been previously reviewed and approved by OMB in accordance with the PRA and assigned OMB Control Number 3170-0015 (Regulation Z) and 3170-0016 (Regulation X). Under the PRA, the Bureau may not conduct or sponsor, and, notwithstanding any other provision of law, a person is not required to respond to an information collection unless the information collection displays a valid control number assigned by OMB.

The Bureau has determined that this final rule does not contain any information collection requirements as defined by the PRA.

X. Congressional Review Act

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), the Bureau will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to the rule's published effective date. The Office of Information and Regulatory Affairs has designated this rule as not a “major rule” as defined by 5 U.S.C. 804(2).

List of Subjects in 12 CFR Part 1026

Advertising, Appraisal, Appraiser, Banking, Banks, Consumer protection, Credit, Credit unions, Mortgages, National banks, Reporting and recordkeeping requirements, Savings associations, Truth in lending.

Authority and Issuance

For the reasons set forth above, the Bureau amends Regulation Z, 12 CFR part 1026, as set forth below:

PART 1026—TRUTH IN LENDING (REGULATION Z) 1. The authority citation for part 1026 continues to read as follows: Authority:

12 U.S.C. 2601, 2603-2605, 2607, 2609, 2617, 3353, 5511, 5512, 5532, 5581; 15 U.S.C. 1601 et seq.

Subpart C—Closed-End Credit 2. Section 1026.19 is amended by revising paragraphs (e)(4)(i) and (ii) to read as follows:
§ 1026.19 Certain mortgage and variable-rate transactions.

(e) * * *

(4) * * *

(i) General rule. Subject to the requirements of paragraph (e)(4)(ii) of this section, if a creditor uses a revised estimate pursuant to paragraph (e)(3)(iv) of this section for the purpose of determining good faith under paragraphs (e)(3)(i) and (ii) of this section, the creditor shall provide a revised version of the disclosures required under paragraph (e)(1)(i) of this section or the disclosures required under paragraph (f)(1)(i) of this section (including any corrected disclosures provided under paragraph (f)(2)(i) or (ii) of this section) reflecting the revised estimate within three business days of receiving information sufficient to establish that one of the reasons for revision provided under paragraphs (e)(3)(iv)(A) through (F) of this section applies.

(ii) Relationship between revised Loan Estimates and Closing Disclosures. The creditor shall not provide a revised version of the disclosures required under paragraph (e)(1)(i) of this section on or after the date on which the creditor provides the disclosures required under paragraph (f)(1)(i) of this section. The consumer must receive any revised version of the disclosures required under paragraph (e)(1)(i) of this section not later than four business days prior to consummation. If the revised version of the disclosures required under paragraph (e)(1)(i) of this section is not provided to the consumer in person, the consumer is considered to have received such version three business days after the creditor delivers or places such version in the mail.

3. In Supplement I to Part 1026, under Section 1026.19—Certain Mortgage and Variable-Rate Transactions: A. 19(e)(1)(ii) Mortgage broker is revised. B. 19(e)(4)(i) General rule is revised. C. 19(e)(4)(ii) Relationship to disclosures required under § 1026.19(f)(1)(i) is revised.

The revisions read as follows:

Supplement I to Part 1026—Official Interpretations Section 1026.19—Certain Mortgage and Variable-Rate Transactions 19(e)(1)(ii) Mortgage broker.

1. Mortgage broker responsibilities. Section 1026.19(e)(1)(ii)(A) provides that if a mortgage broker receives a consumer's application, either the creditor or the mortgage broker must provide the consumer with the disclosures required under § 1026.19(e)(1)(i) in accordance with § 1026.19(e)(1)(iii). Section 1026.19(e)(1)(ii)(A) also provides that if the mortgage broker provides the required disclosures, it must comply with all relevant requirements of § 1026.19(e). This means that “mortgage broker” should be read in the place of “creditor” for all provisions of § 1026.19(e), except to the extent that such a reading would create responsibility for mortgage brokers under § 1026.19(f). To illustrate, § 1026.19(e)(4)(i) states that if a creditor uses a revised estimate pursuant to § 1026.19(e)(3)(iv) for the purpose of determining good faith under § 1026.19(e)(3)(i) and (ii), the creditor shall provide a revised version of the disclosures required under § 1026.19(e)(1)(i) or the disclosures required under § 1026.19(f)(1)(i) (including any corrected disclosures provided under § 1026.19(f)(2)(i) or (ii)) reflecting the revised estimate. “Mortgage broker” could not be read in place of “creditor” in reference to the disclosures required under § 1026.19(f)(1)(i), (f)(2)(i), or (f)(2)(ii) because mortgage brokers are not responsible for the disclosures required under § 1026.19(f)(1)(i), (f)(2)(i), or (f)(2)(ii). In addition, § 1026.19(e)(1)(ii)(A) provides that the creditor must ensure that disclosures provided by mortgage brokers comply with all requirements of § 1026.19(e), and that disclosures provided by mortgage brokers that do comply with all such requirements satisfy the creditor's obligation under § 1026.19(e). The term “mortgage broker,” as used in § 1026.19(e)(1)(ii), has the same meaning as in § 1026.36(a)(2). See also comment 36(a)-2. Section 1026.19(e)(1)(ii)(B) provides that if a mortgage broker provides any disclosure required under § 1026.19(e), the mortgage broker must also comply with the requirements of § 1026.25(c). For example, if a mortgage broker provides the disclosures required under § 1026.19(e)(1)(i), it must maintain records for three years, in compliance with § 1026.25(c)(1)(i).

2. Creditor responsibilities. If a mortgage broker issues any disclosure required under § 1026.19(e) in the creditor's place, the creditor remains responsible under § 1026.19(e) for ensuring that the requirements of § 1026.19(e) have been satisfied. For example, if a mortgage broker receives a consumer's application and provides the consumer with the disclosures required under § 1026.19(e)(1)(i), the creditor does not satisfy the requirements of § 1026.19(e)(1)(i) if it provides duplicative disclosures to the consumer. In the same example, even if the broker provides an erroneous disclosure, the creditor is responsible and may not issue a revised disclosure correcting the error. The creditor is expected to maintain communication with the broker to ensure that the broker is acting in place of the creditor.

19(e)(4)(i) General Rule

1. Three-business-day requirement. Section 1026.19(e)(4)(i) provides that, subject to the requirements of § 1026.19(e)(4)(ii), if a creditor uses a revised estimate pursuant to § 1026.19(e)(3)(iv) for the purpose of determining good faith under § 1026.19(e)(3)(i) and (ii), the creditor shall provide a revised version of the disclosures required under § 1026.19(e)(1)(i) or the disclosures required under § 1026.19(f)(1)(i) (including any corrected disclosures provided under § 1026.19(f)(2)(i) or (ii)) reflecting the revised estimate within three business days of receiving information sufficient to establish that one of the reasons for revision provided under § 1026.19(e)(3)(iv)(A) through (F) has occurred. The following examples illustrate these requirements:

i. Assume a creditor requires a pest inspection. The unaffiliated pest inspection company informs the creditor on Monday that the subject property contains evidence of termite damage, requiring a further inspection, the cost of which will cause an increase in estimated settlement charges subject to § 1026.19(e)(3)(ii) by more than 10 percent. The creditor must provide revised disclosures by Thursday to comply with § 1026.19(e)(4)(i).

ii. Assume a creditor receives information on Monday that, because of a changed circumstance under § 1026.19(e)(3)(iv)(A), the title fees will increase by an amount totaling six percent of the originally estimated settlement charges subject to § 1026.19(e)(3)(ii). The creditor had received information three weeks before that, because of a changed circumstance under § 1026.19(e)(3)(iv)(A), the pest inspection fees increased by an amount totaling five percent of the originally estimated settlement charges subject to § 1026.19(e)(3)(ii). Thus, on Monday, the creditor has received sufficient information to establish a valid reason for revision and must provide revised disclosures reflecting the 11 percent increase by Thursday to comply with § 1026.19(e)(4)(i).

iii. Assume a creditor requires an appraisal. The creditor receives the appraisal report, which indicates that the value of the home is significantly lower than expected. However, the creditor has reason to doubt the validity of the appraisal report. A reason for revision has not been established because the creditor reasonably believes that the appraisal report is incorrect. The creditor then chooses to send a different appraiser for a second opinion, but the second appraiser returns a similar report. At this point, the creditor has received information sufficient to establish that a reason for revision has, in fact, occurred, and must provide corrected disclosures within three business days of receiving the second appraisal report. In this example, in order to comply with §§ 1026.19(e)(3)(iv) and 1026.25, the creditor must maintain records documenting the creditor's doubts regarding the validity of the appraisal to demonstrate that the reason for revision did not occur upon receipt of the first appraisal report.

19(e)(4)(ii) Relationship Between Revised Loan Estimates and Closing Disclosures

1. Revised Loan Estimate may not be delivered at the same time as the Closing Disclosure. Section 1026.19(e)(4)(ii) prohibits a creditor from providing a revised version of the disclosures required under § 1026.19(e)(1)(i) on or after the date on which the creditor provides the disclosures required under § 1026.19(f)(1)(i). Section 1026.19(e)(4)(ii) also requires that the consumer must receive any revised version of the disclosures required under § 1026.19(e)(1)(i) no later than four business days prior to consummation, and provides that if the revised version of the disclosures are not provided to the consumer in person, the consumer is considered to have received the revised version of the disclosures three business days after the creditor delivers or places in the mail the revised version of the disclosures. See also comments 19(e)(1)(iv)-1 and -2. However, if a creditor uses a revised estimate pursuant to § 1026.19(e)(3)(iv) for the purpose of determining good faith under § 1026.19(e)(3)(i) and (ii), § 1026.19(e)(4)(i) permits the creditor to provide the revised estimate in the disclosures required under § 1026.19(f)(1)(i) (including any corrected disclosures provided under § 1026.19(f)(2)(i) or (ii)). See below for illustrative examples:

i. If the creditor is scheduled to meet with the consumer and provide the disclosures required by § 1026.19(f)(1)(i) on Wednesday, June 3, and the APR becomes inaccurate on Tuesday, June 2, the creditor complies with the requirements of § 1026.19(e)(4) by providing the disclosures required under § 1026.19(f)(1)(i) reflecting the revised APR on Wednesday, June 3. However, the creditor does not comply with the requirements of § 1026.19(e)(4) if it provides both a revised version of the disclosures required under § 1026.19(e)(1)(i) reflecting the revised APR on Wednesday, June 3, and also provides the disclosures required under § 1026.19(f)(1)(i) on Wednesday, June 3.

ii. If the creditor is scheduled to email the disclosures required under § 1026.19(f)(1)(i) to the consumer on Wednesday, June 3, and the consumer requests a change to the loan that would result in revised disclosures pursuant to § 1026.19(e)(3)(iv)(C) on Tuesday, June 2, the creditor complies with the requirements of § 1026.19(e)(4) by providing the disclosures required under § 1026.19(f)(1)(i) reflecting the consumer-requested changes on Wednesday, June 3. However, the creditor does not comply with the requirements of § 1026.19(e)(4) if it provides disclosures reflecting the consumer-requested changes using both the revised version of the disclosures required under § 1026.19(e)(1)(i) on Wednesday, June 3, and also the disclosures required under § 1026.19(f)(1)(i) on Wednesday, June 3.

iii. Consummation is scheduled for Thursday, June 4. The creditor hand delivers the disclosures required by § 1026.19(f)(1)(i) on Monday, June 1, and, on Tuesday, June 2, the consumer requests a change to the loan that would result in revised disclosures pursuant to § 1026.19(e)(3)(iv)(C) but would not require a new waiting period pursuant to § 1026.19(f)(2)(ii). Under § 1026.19(f)(2)(i), the creditor is required to provide corrected disclosures reflecting any changed terms to the consumer so that the consumer receives the corrected disclosures at or before consummation. The creditor complies with the requirements of § 1026.19(e)(4) by hand delivering the disclosures required by § 1026.19(f)(2)(i) reflecting the consumer-requested changes on Thursday, June 4.

iv. Consummation is originally scheduled for Wednesday, June 10. The creditor hand delivers the disclosures required by § 1026.19(f)(1)(i) on Friday, June 5. On Monday, June 8, the consumer reschedules consummation for Wednesday, June 17. Also on Monday, June 8, the consumer requests a rate lock extension that would result in revised disclosures pursuant to § 1026.19(e)(3)(iv)(C) but would not require a new waiting period pursuant to § 1026.19(f)(2)(ii). The creditor complies with the requirements of § 1026.19(e)(4) by delivering or placing in the mail the disclosures required by § 1026.19(f)(2)(i) reflecting the consumer-requested changes on Thursday, June 11. Under § 1026.19(f)(2)(i), the creditor is required to provide corrected disclosures reflecting any changed terms to the consumer so that the consumer receives the corrected disclosures at or before consummation. The creditor complies with § 1026.19(f)(2)(i) by hand delivering the disclosures on Thursday, June 11. Alternatively, the creditor complies with § 1026.19(f)(2)(i) by providing the disclosures to the consumer by mail, including by electronic mail, on Thursday, June 11, because the consumer is considered to have received the corrected disclosures on Monday, June 15 (unless the creditor relies on evidence that the consumer received the corrected disclosures earlier). See § 1026.19(f)(1)(iii) and comments 19(f)(1)(iii)-1 and -2. See also § 1026.38(t)(3) and comment 19(f)(1)(iii)-2 regarding providing the disclosures required by § 1026.19(f)(1)(i) (including any corrected disclosures provided under § 1026.19(f)(2)(i) or (ii)) in electronic form.

v. Consummation is originally scheduled for Wednesday, June 10. The creditor hand delivers the disclosures required by § 1026.19(f)(1)(i) on Friday, June 5, and the APR becomes inaccurate on Monday, June 8, such that the creditor is required to delay consummation and provide corrected disclosures, including any other changed terms, so that the consumer receives them at least three business days before consummation under § 1026.19(f)(2)(ii). Consummation is rescheduled for Friday, June 12. The creditor complies with the requirements of § 1026.19(e)(4) by hand delivering the disclosures required by § 1026.19(f)(2)(ii) reflecting the revised APR and any other changed terms to the consumer on Tuesday, June 9. See § 1026.19(f)(2)(ii) and associated commentary regarding changes before consummation requiring a new waiting period. See comment 19(e)(4)(i)-1 for further guidance on when sufficient information has been received to establish an event has occurred.

Dated: April 26, 2018. Mick Mulvaney, Acting Director, Bureau of Consumer Financial Protection.
[FR Doc. 2018-09243 Filed 5-1-18; 8:45 am] BILLING CODE 4810-AM-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2017-0190; Special Conditions No. 25-654-SC] Special Conditions: VT DRB Aviation Consultants, Boeing Model 777-200 Airplanes; Installation of an Airbag System in Shoulder Belts AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final special conditions; correction.

SUMMARY:

This document corrects an error that appeared in docket no. FAA-2017-0126, Special Conditions No. 25-654-SC, which was published in the Federal Register on April 7, 2017. The error occurs in the docket number of the final special conditions document.

DATES:

Effective Date: The effective date of this correction is May 2, 2018.

FOR FURTHER INFORMATION CONTACT:

John Shelden, FAA, Airframe and Cabin Safety Section, AIR-675, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, 2200 South 216th St., Des Moines, Washington 98198; telephone 206-231-3214; facsimile 206-231-3398.

SUPPLEMENTARY INFORMATION: Background

On April 7, 2017, the Federal Register published a document designated as docket no. FAA-2017-0126, Final Special Conditions No. 25-654-SC (82 FR 16893). The document, issued special conditions pertaining to the installation of an airbag system in shoulder belts. As published, the document contained an error, located in two places, in the Federal Docket assigned docket number.

Correction

In the final special conditions document FR Doc. 2017-06930, published on April 7, 2017 (82 FR 16893), make the following correction:

On Federal Register page no. 16893, second column, in two locations where it appears, change the document's docket no. from FAA-2017-0126 to FAA-2017-0190.

Issued in Renton, Washington, on April 24, 2018. Victor Wicklund, Manager, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service.
[FR Doc. 2018-09269 Filed 5-1-18; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0380; Product Identifier 2018-NE-14-AD; Amendment 39-19267; AD 2018-09-10] RIN 2120-AA64 Airworthiness Directives; CFM International S.A. Turbofan Engines AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule; request for comments.

SUMMARY:

We are adopting a new airworthiness directive (AD) for all CFM International S.A. (CFM) Model CFM56-7B engines. This AD requires initial and repetitive inspections of the concave and convex sides of the fan blade dovetail to detect cracking and replacement of any blades found cracked. This AD was prompted by a recent engine failure due to a fractured fan blade, that resulted in the engine inlet cowl disintegrating and debris penetrating the fuselage, causing a loss of pressurization, and prompting an emergency descent. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective May 14, 2018.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of May 14, 2018.

We must receive comments on this AD by June 18, 2018.

ADDRESSES:

You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

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

Fax: 202-493-2251.

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

Hand Delivery: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

For service information identified in this final rule, contact CFM International Inc., Aviation Operations Center, 1 Neumann Way, M/D Room 285, Cincinnati, OH 45125; phone: 877-432-3272; fax: 877-432-3329; email: [email protected]. You may view this service information at the FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7759. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0380.

Examining the AD Docket

You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0380; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations (phone: 800-647-5527) is listed above. Comments will be available in the AD docket shortly after receipt.

FOR FURTHER INFORMATION CONTACT:

Christopher McGuire, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7120; fax: 781-238-7199; email: [email protected].

SUPPLEMENTARY INFORMATION: Discussion

A recent event involving an engine failure due to a fractured fan blade resulted in the engine inlet cowl disintegrating and debris penetrating the fuselage, causing a loss of pressurization, and prompting an emergency descent. One passenger fatality occurred as a result. In response to this event, the FAA issued Emergency AD 2018-09-51 (“AD 2018-09-51”), to address certain high-time CFM56-7B engines, specifically including those with 30,000 or more total accumulated flight cycles since new. AD 2018-09-51 requires a one-time ultrasonic inspection (USI) of the concave and convex sides of the fan blade dovetail.

Since the issuance of AD 2018-09-51, the FAA has been working closely with CFM to develop an additional compliance plan to address the risk of fan blade failure for the entire CFM56-7B fleet. This AD addresses the unsafe condition affecting CFM56-7B engines by requiring initial and repetitive inspections of fan blades based on accumulated fan blade cycles. This condition, if not addressed, could result in fan blade failure due to cracking, which could lead to in an engine in-flight shutdown (IFSD), uncontained release of debris, damage to the airplane, and possible airplane decompression. We are issuing this AD to address the unsafe condition on these products.

Related Service Information Under 1 CFR part 51

We reviewed CFM Service Bulletin (SB) CFM56-7B S/B 72-1033, dated April 20, 2018, and Subtask 72-21-01-220-091, of Task 72-21-01-200-001, from the CFM56-7B Engine Shop Manual (ESM), Revision 57, dated January 15, 2018. CFM SB CFM56-7B S/B 72-1033 describes procedures for performing a USI of the affected fan blades. Subtask 72-21-01-220-091, of Task 72-21-01-200-001, from the CFM56-7B ESM, describes procedures for performing an eddy current inspection (ECI) of the affected fan blades. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Other Related Service Information

We also reviewed CFM SB CFM56-7B S/B 72-1019, dated March 24, 2017, and Revision 1, dated June 13, 2017; CFM SB CFM56-7B S/B 72-1024, dated July 26, 2017; and General Electric Field Support Technology (FST) procedure 2370, dated December 9, 2016. These SBs and the FST procedure provide information on performing the USI inspection.

Other Related Rulemaking

The FAA previously issued a Notice of Proposed Rulemaking (see Docket No. FAA-2017-0313 at http://www.regulations.gov), to address an unsafe condition based on a similar event that occurred in 2016. We will be withdrawing that proposal because this new action represents a more comprehensive corrective action plan than previously proposed.

FAA's Determination

We are issuing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

AD Requirements

This AD requires initial and repetitive USIs or ECIs of certain fan blades and, if they fail the inspection, their replacement with parts eligible for installation.

FAA's Justification and Determination of the Effective Date

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because certain fan blades must be inspected, and, if needed, replaced before further flight. Failure to inspect and replace these parts within the required compliance times could lead to failure of the fan blades, engine IFSD, uncontained release of debris, damage to the airplane, and possible airplane decompression. Therefore, we find good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reasons stated above, we find that good cause exists for making this amendment effective in less than 30 days.

Comments Invited

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2018-0380 and Product Identifier 2018-NE-14-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this final rule. We will consider all comments received by the closing date and may amend this final rule because of those comments.

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

Costs of Compliance

We estimate that this AD affects 3,716 engines installed on airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Inspect engine fan blade 2 work-hours × $85 per hour = $170 $0 $170 $631,720

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

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Replace fan blade 1 work-hour × $85 per hour = $85 $8,500 $8,585
    Authority for This Rulemaking

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

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

    This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-09-10 CFM International S.A.: Amendment 39-19267; Docket No. FAA-2018-0380; Product Identifier 2018-NE-14-AD. (a) Effective Date

    This AD is effective May 14, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to CFM International S.A. (CFM) CFM56-7B20, CFM56-7B22, CFM56-7B22/B1, CFM56-7B24, CFM56-7B24/B1, CFM56-7B26, CFM56-7B26/B2, CFM56-7B27, CFM56-7B27A, CFM56-7B26/B1, CFM56-7B27/B1, CFM56-7B27/B3, CFM56-7B20/2, CFM56-7B22/2, CFM56-7B24/2, CFM56-7B26/2, CFM56-7B27/2, CFM56-7B20/3, CFM56-7B22/3, CFM56-7B22/3B1, CFM56-7B24/3, CFM56-7B24/3B1, CFM56-7B26/3, CFM56-7B26/3B1, CFM56-7B26/3B2, CFM56-7B27/3, CFM56-7B27/3B1, CFM56-7B27/3B3, CFM56-7B27A/3, CFM56-7B26/3F, CFM56-7B26/3B2F, CFM56-7B27/3F, CFM56-7B27/3B1F, CFM56-7B20E, CFM56-7B22E, CFM56-7B22E/B1, CFM56-7B24E, CFM56-7B24E/B1, CFM56-7B26E, CFM56-7B26E/B1, CFM56-7B26E/B2, CFM56-7B27AE, CFM56-7B27E, CFM56-7B27E/B1, CFM56-7B27E/B3, CFM56-7B26E/F, CFM56-7B26E/B2F, CFM56-7B27E/F, and CFM56-7B27E/B1F engine models.

    (d) Subject

    Joint Aircraft System Component (JASC) Code 7230, Turbine Engine Compressor Section.

    (e) Unsafe Condition

    This AD was prompted by a recent engine failure due to a fan blade fracture that resulted in the engine inlet cowl disintegrating and debris penetrating the fuselage, causing a loss of pressurization, and prompting an emergency descent. We are issuing this AD to prevent failure of the fan blade. The unsafe condition, if not addressed, could result in failure of the fan blade, the engine inlet cowl disintegrating and debris penetrating the fuselage, causing a loss of pressurization, and prompting an emergency descent.

    (f) Compliance

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

    (g) Required Actions

    (1) Perform an ultrasonic inspection (USI) or eddy current inspection (ECI) of the concave and convex sides of the fan blade dovetail as follows:

    (i) Perform an initial inspection on each fan blade before the fan blade accumulates 20,000 cycles since new, or within 113 days from the effective date of this AD, whichever occurs later.

    (ii) If cycles since new on a fan blade is unknown, perform an initial inspection within 113 days from the effective date of this AD.

    (iii) Thereafter, repeat this inspection no later than 3,000 cycles since the last inspection.

    (iv) Use the Accomplishment Instructions, paragraphs 3.A.(3)(a) through (i), of CFM Service Bulletin (SB) CFM56-7B S/B 72-1033, dated April 20, 2018, to perform a USI or use the instructions in subtask 72-21-01-220-091, of task 72-21-01-200-001, from CFM CFM56-7B Engine Shop Manual, Revision 57, dated January 15, 2018, to perform an ECI.

    (2) If any unserviceable indication, as specified in the applicable service information in paragraph (g)(1)(iv) of this AD, is found during the inspections required by paragraph (g) of this AD, replace the fan blade before further flight with a part eligible for installation.

    (h) Installation Prohibition

    Do not install any replacement fan blade unless it meets one of the following criteria:

    (1) The replacement fan blade has fewer than 20,000 cycles since new, or;

    (2) The replacement fan blade has been inspected within the last 300 cycles in accordance with paragraph (g) of this AD.

    (i) Definition

    For the purpose of this AD, a “replacement fan blade” is a fan blade that is being installed into an engine from which it was not previously removed. Removing and reinstalling a fan blade for the purpose of relubrication is not subject to the Installation Prohibition of this AD.

    (j) Credit for Previous Actions

    (1) You may take credit for the USI required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using CFM SB CFM56-7B S/B 72-1019, dated March 24, 2017; or Revision 1, dated June 13, 2017; or CFM SB CFM56-7B S/B 72-1024, dated July 26, 2017; or General Electric Field Support Technology procedure 2370, dated December 9, 2016.

    (2) You may take credit for the ECI required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using the instructions in subtask 72-21-01-220-091, of task 72-21-01-200-001, from CFM56-7B Engine Shop Manual, earlier than Revision 57, dated January 15, 2018.

    (k) Alternative Methods of Compliance (AMOCs)

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

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

    (l) Related Information

    For more information about this AD, contact Christopher McGuire, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7120; fax: 781-238-7199; email: [email protected].

    (m) Material Incorporated by Reference

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

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

    (i) CFM International, S.A. (CFM) Service Bulletin CFM56-7B S/B 72-1033, dated April 20, 2018.

    (ii) Subtask 72-21-01-220-091, of Task 72-21-01-200-001, from the CFM CFM56-7B Engine Shop Manual, Revision 57, dated January 15, 2018.

    (3) For CFM service information identified in this AD, contact CFM International Inc., Aviation Operations Center, 1 Neumann Way, M/D Room 285, Cincinnati, OH 45125; phone: 877-432-3272; fax: 877-432-3329; email: [email protected].

    (4) You may view this service information at the FAA, Engine and Propeller Standards Branch, Policy and Innovation Division, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7759.

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

    Issued in Burlington, Massachusetts, on April 27, 2018. Robert J. Ganley, Manager, Engine & Propeller Standards Branch, Aircraft Certification Service.
    [FR Doc. 2018-09338 Filed 5-1-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF DEFENSE Office of the Secretary 32 CFR Part 291 [Docket ID: DOD-2017-OS-0021] RIN 0790-AJ62 Defense Nuclear Agency (DNA) Freedom of Information Act Program AGENCY:

    Defense Nuclear Agency, DoD.

    ACTION:

    Final rule.

    SUMMARY:

    This final rule removes DoD's regulation concerning the Defense Threat Reduction Agency (DTRA), formerly the Defense Nuclear Agency (DNA) Freedom of Information Act program. On February 6, 2018, the DoD published a revised FOIA program rule as a result of the FOIA Improvement Act of 2016. When the DoD FOIA program rule was revised, it included DoD component information and removed the requirement for component supplementary rules. The DoD now has one DoD-level rule for the FOIA program at 32 CFR part 286 that contains all the codified information required for the Department. Therefore, this part can be removed from the CFR.

    DATES:

    This rule is effective on May 2, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Pam Andrews at 703-767-6325.

    SUPPLEMENTARY INFORMATION:

    It has been determined that publication of this CFR part removal for public comment is impracticable, unnecessary, and contrary to public interest since it is based on removing DoD internal policies and procedures that are publically available on the Department's website.

    DTRA internal guidance concerning the implementation of the FOIA within DTRA will continue to be published in DTRA Instruction 5400.7 (available at http://www.dtra.mil/Home/Freedom-of-Information-Act-and-Privacy-Act/Electronic-Reading-Room/).

    This rule is one of 14 separate DoD FOIA rules. With the finalization of the DoD-level FOIA rule at 32 CFR part 286, the Department is eliminating the need for this separate FOIA rule and reducing costs to the public as explained in the preamble of the DoD-level FOIA rule published at 83 FR 5196-5197.

    This rule is not significant under Executive Order (E.O.) 12866, “Regulatory Planning and Review,” therefore, E.O. 13771, “Reducing Regulation and Controlling Regulatory Costs” does not apply.

    List of Subjects in 32 CFR Part 291

    Freedom of information.

    PART 291—[REMOVED]

    Accordingly, by the authority of 5 U.S.C. 301, 32 CFR part 291 is removed.

    Dated: April 27, 2018. Aaron T. Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2018-09295 Filed 5-1-18; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket No. USCG-2018-0369] Special Local Regulation; Atlantic City International Triathlon, Atlantic City, NJ AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation; change of enforcement date.

    SUMMARY:

    The Coast Guard will enforce the special local regulation on the waters of the New Jersey Intracoastal Waterway (ICW), near Atlantic City, New Jersey, from 6 a.m. to 8 p.m. on August 11, 2018. This action is necessary to ensure safety of life on the navigable waters of the United States during a triathlon event. The purpose of this notice is to announce a change in the date in which the event is being held.

    DATES:

    The regulations in 33 CFR 100.501 will be enforced from 6 a.m. to 8 p.m. on August 11, 2018, for the special local regulation listed as (a.)12 in the Table to § 100.501.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this notice of enforcement, you may call or email Petty Officer Edmund Ofalt, Waterways Management Branch, U.S. Coast Guard Sector Delaware Bay; telephone (215) 271-4814, email [email protected].

    SUPPLEMENTARY INFORMATION:

    From 6 a.m. to 8 p.m. on August 11, 2018, the Coast Guard will enforce the special local regulation at 33 CFR 100.501, table to § 100.501(a.)12 for the regulated area located in the New Jersey ICW in Atlantic City, NJ. The published enforcement periods for this event include “Aug—2nd or 3rd Sunday.” We are announcing a change of enforcement date for this year's event with this notice of enforcement because August 11, 2018 is the second Saturday in August.

    Coast Guard regulations for recurring marine events and regattas within Captain of the Port Delaware Bay Zone, appear in § 100.501, Coast Guard Sector Delaware Bay, COTP Zone which specifies the location of the regulated area for this regulated area as all waters of the New Jersey ICW bounded by a line connecting the following points: Latitude 39°21′20″ N, longitude 074°27′18″ W, thence northeast to latitude 39°21′27.47″ N, longitude 074°27′10.31″ W, thence northeast to latitude 39°21′33″ N, longitude 074°26′57″ W, thence northwest to latitude 39°21′37″ N, longitude 074°27′03″ W, thence southwest to latitude 39°21′29.88″ N, longitude 074°27′14.31″ W, thence south to latitude 39°21′19″ N, longitude 074°27′22″ W, thence east to latitude 39°21′18.14″ N, longitude 074°27′19.25″ W, thence north to point of origin, near Atlantic City, NJ.

    The Captain of the Port, Delaware Bay will be enforcing the Special Local Regulation as specified in §  100.501(c).

    This notice of enforcement is issued under authority of 33 CFR 100.501 and 33 U.S.C. 1233. The Coast Guard will provide the maritime community with advanced notice of enforcement of regulation by Broadcast Notice to Mariners (BNM), Local Notice to Mariners and on-scene notice by designated representative.

    Dated: April 26, 2018. Scott E. Anderson, Captain, U.S. Coast Guard, Captain of the Port Delaware Bay.
    [FR Doc. 2018-09327 Filed 5-1-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF DEFENSE Department of the Army, Corps of Engineers 33 CFR Part 326 RIN 0710-AA77 Civil Monetary Penalty Inflation Adjustment Rule AGENCY:

    U.S. Army Corps of Engineers, Department of Defense.

    ACTION:

    Final rule.

    SUMMARY:

    The U.S. Army Corps of Engineers (Corps) is issuing this final rule to adjust its civil monetary penalties under the Clean Water Act (CWA) and the National Fishing Enhancement Act to account for inflation. This action is mandated by the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (Inflation Adjustment Act), which requires agencies to adjust the levels of civil monetary penalties with an initial “catch-up” adjustment followed by annual adjustments for inflation. The Inflation Adjustment Act prescribes a formula for adjusting statutory civil penalties to reflect inflation, maintain the deterrent effect of statutory civil penalties, and promote compliance with the law. Using the adjustment criteria provided in the December 15, 2017, Office of Management and Budget Memorandum regarding the “Implementation of Penalty Inflation Adjustments for 2018, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015”, the 2018 annual adjustment for inflation will increase the Class I civil penalty under Section 309 of the Clean Water Act to $21,394 per violation, and the maximum civil penalty increases to $53,484. The judicial civil penalty under Section 404(s) of the Clean Water Act increases to $53,484 per day for each violation. Under the National Fishing Enhancement Act, the Class I civil penalty increases to $23,426 per violation.

    DATES:

    This final rule is effective on May 2, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Stacey M. Jensen at 202-761-5856 or by email at [email protected] or access the U.S. Army Corps of Engineers Regulatory Home Page at http://www.usace.army.mil/Missions/CivilWorks/RegulatoryProgramandPermits.aspx.

    SUPPLEMENTARY INFORMATION: Executive Summary

    The Corps is publishing this final rule to adjust its civil monetary penalties for inflation pursuant to the Inflation Adjustment Act. This law requires the Corps to publish annual adjustments for inflation. The purpose of the Inflation Adjustment Act is to maintain the deterrent effect of civil penalties by translating originally enacted statutory civil penalty amounts to today's dollars and rounding statutory civil penalties to the nearest dollar. The Inflation Adjustment Act required agencies to publish annual adjustments beginning no later than January 15 of each calendar year. Accordingly, the Corps is providing the second annual adjustment effective May 2, 2018, in this final rule. The rule will apply prospectively, to penalty assessments beginning on its effective date. Subsequently, the Corps intends to continue to publish annual adjustments as required by the Inflation Adjustment Act, no later than January 15 of each calendar year.

    The Inflation Adjustment Act does not require agencies to implement the required adjustments through a notice and comment process unless proposing an adjustment of less than the amount otherwise required, and the Corps is not exercising any discretion it may have to make a lesser adjustment. For the annual adjustments, the Inflation Adjustment Act provides a clear formula for adjustment of the civil penalties, and the Corps has no discretion to vary the amount of the adjustment to reflect any views or suggestions provided by commenters. The Inflation Adjustment Act further provides that the increased penalty levels apply to penalties assessed after the effective date of the increase. For these reasons, the Corps finds that notice and comment would be impracticable and unnecessary in this situation and contrary to the language of the Inflation Adjustment Act.

    Section 4 of the Inflation Adjustment Act directs federal agencies to publish annual penalty inflation adjustments. In accordance with Section 553 of the Administrative Procedures Act (APA), most rules are subject to notice and comment and are effective no earlier than 30 days after publication in the Federal Register. Section 4(b)(2) of the Inflation Adjustment Act further provides that each agency shall make the annual inflation adjustments “notwithstanding section 553” of the APA. According to the December 2017 OMB guidance issued to Federal agencies on the implementation of the 2018 annual adjustment, the phrase “notwithstanding section 553” means that “the public procedure the APA generally requires—notice, an opportunity for comment, and a delay in effective date—is not required for agencies to issue regulations implementing the annual adjustment.” Consistent with the language of the Inflation Adjustment Act and OMB's implementation guidance, this rule is not subject to notice and opportunity for public comment.

    Background

    On August 3, 2011, the Deputy Secretary of Defense delegated to the Secretary of the Army the authority and responsibility to adjust penalties administered by the U.S. Army Corps of Engineers. On August 29, 2011, the Secretary of the Army delegated that authority and responsibility to the Assistant Secretary of the Army for Civil Works.

    On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, Public Law 114-74, 701 (Inflation Adjustment Act), which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 as previously amended by the 1996 Debt Collection Improvement Act (DCIA; collectively, “prior inflation adjustment Acts”), to improve the effectiveness of civil monetary penalties and to maintain their deterrent effect. The Inflation Adjustment Act requires agencies to do the following: (1) Adjust the level of civil monetary penalties with an initial “catch-up” adjustment, through a final rule to be published by July 1, 2016; and (2) beginning no later than January 15, 2017, make subsequent annual adjustments for inflation. The Inflation Adjustment Act does not alter an agency's statutory authority, to the extent it exists, to assess penalties below the maximum level. The final rule implementing the initial “catch-up” adjustment mandated by the Inflation Adjustment Act as well as the 2017 annual inflation adjustment mandated by the Act was effective on December 12, 2017. This final rule fulfills the requirement for the 2018 annual inflation adjustment and is effective on May 2, 2018.

    The Inflation Adjustment Act amends prior inflation adjustment Acts by substantially revising the method of calculating inflation adjustments. Prior inflation adjustment Acts required adjustments to civil penalties to be rounded significantly. For example, a penalty increase that was greater than $1,000, but less than or equal to $10,000, would be rounded to the nearest multiple of $1,000. While this allowed penalties to be kept at round numbers, it meant that agencies often would not increase penalties at all if the inflation factor was not large enough. Furthermore, increases to penalties were capped at 10 percent, which meant that longer periods without an inflation adjustment could cause a penalty to rapidly lose value in real terms. Over time, this formula caused agency civil penalties to lose value relative to total inflation, thereby undermining Congress' original purpose in enacting statutory civil monetary penalties to be a deterrent and to promote compliance with the law. The Inflation Adjustment Act has removed these rounding rules. Penalties now are simply rounded to the nearest dollar. This rounding ensures that penalties will be increased each year to more effectively keep up with inflation.

    The Inflation Adjustment Act required a “catch-up” adjustment that reset the inflation calculations by excluding prior inflationary adjustments under prior inflation adjustment Acts, and subsequent, annual adjustments to all civil penalties under the laws implemented by that agency. With this rule, the new statutory maximum penalty levels listed in Table 1 will apply to all statutory civil penalties assessed on or after the effective date of this rule.

    Table 1 shows the calculation of the 2018 annual inflation adjustment based on the guidance provided by OMB (see December 15, 2017, Memorandum for the Heads of Executive Departments and Agencies, from Mick Mulvaney, Director, OMB, Subject: Implementation of Penalty Inflation Adjustments for 2018, Pursuant to the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015). The OMB provided to agencies the cost-of-living adjustment multiplier for 2018, based on the CPI-U for the month of October 2017, not seasonally adjusted, which is 1.02041. Agencies are to adjust “the maximum civil monetary penalty or the range of minimum and maximum civil monetary penalties, as applicable, for each civil monetary penalty by the cost-of-living adjustment.” For 2018, agencies multiply each applicable penalty by the multiplier, 1.02041, and round to the nearest dollar. The multiplier should be applied to the most recent penalty amount, i.e., the one that includes the initial catch-up adjustment mandated by the Inflation Adjustment Act as well as the 2017 annual inflation adjustment. Column (1) contains the United States Code citations for the penalty statute. Column (2) contains the dollar amount most recently established by law (other than prior inflation adjustment Acts) for each civil monetary penalty. Column (3) in Table 1 sets out the penalty levels which were in effect prior to this rulemaking. Column (4) in Table 1 sets out the 2018 Inflation Adjustment Multiplier while Column (5) sets out the new penalty levels which take effect upon publication of this final rule in the Federal Register.

    Table 1 Citation Current civil monetary
  • penalty (CMP) amount
  • established by law
  • Current CMP amount in
  • effect prior to this
  • rulemaking
  • 2018 inflation
  • adjustment
  • multiplier
  • CMP amount as of
  • May 2, 2018
  • CWA, 33 U.S.C. 1319(g)(2)(A) $10,000 per violation, with a maximum of $25,000 $20,966 per violation, with a maximum of $52,414 1.02041 $21,394 per violation, with a maximum of $53,484. CWA, 33 U.S.C. 1344(s)(4) Maximum of $25,000 per day for each violation Maximum of $52,414 per day for each violation 1.02041 Maximum of $53,484 per day for each violation. National Fishing Enhancement Act, 33 U.S.C. 2104(e) Maximum of $10,000 per violation Maximum of $22,957 per violation 1.02041 Maximum of $23,426 per violation.

    In summary, under this final rule the minimum Class I civil penalty for violations under CWA Section 309(g)(2)(A), 33 U.S.C. 1319(g)(2)A), will increase from $20,966 per violation to $21,394, and the maximum penalty will increase from $52,414 per violation to $53,484. Judicially-imposed civil penalties under CWA Section 404(s)(4), 33 U.S.C. 1344(s)(4), will increase from a maximum of $52,414 per day for each violation to $53,484. Finally, the Class I civil penalty for violations of Section 205(e) of the National Fishing Enhancement Act, 33 U.S.C. 2104(e), will increase from a maximum of $22,957 per violation to $23,426.

    This rule will not result in any additional costs to implement the Corps Regulatory Program because the Class I civil penalties and judicial civil penalties have been in effect since 1990 when the Corps first promulgated regulations regarding such penalties (Class I civil penalties were first established by statute in 1987). This rule merely adjusts the value of current statutory civil penalties to reflect and keep pace with the levels originally set by Congress when the statutes were enacted, as required by the Inflation Adjustment Act. This rule will result in additional costs to members of the regulated public who do not comply with the terms and conditions of issued Department of the Army permits and either receive a final Class I civil administrative penalty order from a District Engineer or are subject to a judicial civil penalty. The rule increases the minimum and maximum penalty amounts to $21,394 and $53,484 for Class I civil administrative penalties under the Clean Water Act, to a maximum of $53,484 for judicially-imposed civil penalties under the Clean Water Act, and to a maximum of $23,426 for Class I civil administrative penalties under the National Fishing Enhancement Act. The benefit of this rule will be to improve the effectiveness of Corps civil monetary penalties by maintaining their deterrent effect and promoting compliance with the law.

    Administrative Requirements Plain Language

    In compliance with the principles in the President's Memorandum of June 1, 1998, regarding plain language, this preamble is written using plain language. The use of “we” in this notice refers to the Corps and the use of “you” refers to the reader. We have also used the active voice, short sentences, and common everyday terms except for necessary technical terms.

    Paperwork Reduction Act

    This final rule will not impose any new information collection burden under the provisions of the Paperwork Production Act (44 U.S.C. 3501 et seq.). This action merely increases the level of statutory civil penalties that could be imposed in the context of a federal civil administrative enforcement action or civil judicial case for violations of Corps-administered statutes and their implementing regulations.

    Burden means the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. This includes the time needed to review instructions; develop, acquire, install, and utilize technology and systems for the purposes of collecting, validating, and verifying information, processing and maintaining information, and disclosing and providing information; adjust the existing ways to comply with any previously applicable instructions and requirements; train personnel to be able to respond to a collection of information; search data sources; complete and review the collection of information; and transmit or otherwise disclose the information.

    An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. For the Corps regulatory program under Section 10 of the Rivers and Harbors Act of 1899, Section 404 of the Clean Water Act, and Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972, the current OMB approval number for information requirements is maintained by the Corps of Engineers (OMB approval number 0710-0003). However, there are no new approval or application processes required as a result of this rulemaking that necessitate a new Information Collection Request (ICR). The regulation would not impose reporting or recordkeeping requirements. Therefore, this action is not subject to the Paperwork Reduction Act.

    Executive Order 12866 and Executive Order 13563, “Improving Regulation and Regulatory Review”

    The OMB has not designated this final rule a “significant regulatory action” under Executive Order 12866. Accordingly, OMB has not reviewed this rule. Moreover, this final rule makes nondiscretionary adjustments to existing civil monetary penalties in accordance with the Inflation Adjustment Act and OMB guidance. The Corps, therefore, did not consider alternatives and does not have the flexibility to alter the adjustments of the civil monetary penalty amounts as provided in this rule. To the extent this rule increases civil monetary penalties, it would result in an increase in transfers from persons or entities assessed a civil monetary penalty to the government.

    Executive Order 13132

    Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999), requires the Corps to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have Federalism implications.” The phrase “policies that have Federalism implications” is defined in the Executive Order to include regulations that have “substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

    This rule does not have Federalism implications. This nondiscretionary action is required by the Inflation Adjustment Act and will have no substantial direct effects on the States, on the relationship between the Federal government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, Executive Order 13132 does not apply to this rule.

    Regulatory Flexibility Act (RFA), as Amended by the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 601 et seq.

    The RFA generally requires an agency to prepare a regulatory flexibility analysis of any rule subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have a significant economic impact on a substantial number of small entities. Small entities include small businesses, small organizations and small governmental jurisdictions.

    The Regulatory Flexibility Act applies only to rules subject to notice-and-comment rulemaking requirements under the Administrative Procedure Act, 5 U.S.C. 553, or any other statute. See 5 U.S.C. 601-612. The Regulatory Flexibility Act does not apply to this final rule because a notice-and-comment rulemaking process is not required for the reasons stated above.

    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 agencies generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, and Tribal governments, in the aggregate, or to the private sector, of $100 million or more in any one year. Before promulgating a rule for which a written statement is needed, section 205 of the UMRA generally requires the agencies to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, most cost-effective, or least burdensome alternative that achieves the objectives of the rule. The provisions of section 205 do not apply when they are inconsistent with applicable law. Moreover, section 205 allows the Corps to adopt an alternative other than the least costly, most cost-effective, or least burdensome alternative if the agency publishes with the final rule an explanation why that alternative was not adopted. Before the Corps establishes any regulatory requirements that may significantly or uniquely affect small governments, including Tribal governments, they must have developed under Section 203 of the UMRA a small government agency plan. The plan must provide for notifying potentially affected small governments, enabling officials of affected small governments to have meaningful and timely input in the development of regulatory proposals with significant Federal intergovernmental mandates, and informing, educating, and advising small governments on compliance with the regulatory requirements.

    We have determined that this final rule does not impose new substantive requirements and therefore does not contain a Federal mandate that may result in expenditures of $100 million or more for State, local, and Tribal governments, in the aggregate, or the private sector in any one year. Therefore, this rule is not subject to the requirements of Sections 202 and 205 of the UMRA. For the same reasons, we have determined that this final rule contains no regulatory requirements that might significantly or uniquely affect small governments. Therefore, this final rule is not subject to the requirements of Section 203 of UMRA. Therefore, no actions are deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

    National Technology Transfer and Advancement Act

    Section 12(d) of the National Technology Transfer and Advancement Act of 1995 (NTTAA), Public Law 104-113, section 12(d) (15 U.S.C. 272 note) directs us to use voluntary consensus standards in our regulatory activities, unless to do so would be inconsistent with applicable law or otherwise impractical. Voluntary consensus standards are technical standards (e.g., materials specifications, test methods, sampling procedures, and business practices) that are developed or adopted by voluntary consensus standards bodies. The NTTAA directs us to provide Congress, through OMB, explanations when we decide not to use available and applicable voluntary consensus standards.

    This rule does not involve technical standards. Therefore, we did not consider the use of any voluntary consensus standards.

    Executive Order 13045

    Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997), applies to any rule that: (1) Is determined to be “economically significant” as defined under Executive Order 12866, and (2) concerns an environmental health or safety risk that we have reason to believe may have a disproportionate effect on children. If the regulatory action meets both criteria, we must evaluate the environmental health or safety effects of the rule on children, and explain why the regulation is preferable to other potentially effective and reasonably feasible alternatives.

    This rule is not subject to this Executive Order because it is not economically significant as defined in Executive Order 12866. In addition, it does not concern an environmental or safety risk that we have reason to believe may have a disproportionate effect on children.

    Executive Order 13175

    Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 6, 2000), requires agencies to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” The phrase “policies that have tribal implications” is defined in the Executive Order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes.”

    This rule does not have tribal implications. The rule imposes no new substantive obligations on tribal governments but instead merely adjusts the value of current statutory civil monetary penalties to reflect and keep pace with the levels originally set by Congress when the statutes were enacted. The calculation of the increases is formula-driven and prescribed by statute and OMB guidance, and the Corps has no discretion to vary the amount of the adjustment to reflect any views or suggestions provided by commenters. Therefore, Executive Order 13175 does not apply to this rule.

    Environmental Documentation

    The Corps prepares appropriate environmental documentation, including Environmental Impact Statements when required, for all permit decisions. Therefore, environmental documentation under the National Environmental Policy Act is not required for this rule. This final rule does not constitute a major Federal action significantly affecting the quality of the human environment because it merely increases the value of statutory civil monetary penalties to reflect and keep pace with the levels originally set by Congress when the statutes were enacted. The calculation of the increases is formula-driven and prescribed by statute and OMB guidance, and the Corps has no discretion to vary the amount of the adjustment.

    Appropriate environmental documentation has been, or will be, prepared for each permit action that is subject to the civil penalty process. Therefore, environmental documentation under the National Environmental Policy Act (NEPA) is not required for this final rule.

    Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. We will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule cannot take effect until 60 days after it is published in the Federal Register. This rule is not a “major rule” as defined by 5 U.S.C. 804(2).

    Executive Order 12898

    Executive Order 12898 requires that, to the greatest extent practicable and permitted by law, each Federal agency must make achieving environmental justice part of its mission. Executive Order 12898 provides that each Federal agency conduct its programs, policies, and activities that substantially affect human health or the environment in a manner that ensures that such programs, policies, and activities do not have the effect of excluding persons (including populations) from participation in, denying persons (including populations) the benefits of, or subjecting persons (including populations) to discrimination under such programs, policies, and activities because of their race, color, or national origin. This rule is not expected to negatively impact any community, and therefore is not expected to cause any disproportionately high and adverse impacts to minority or low-income communities. This rule relates solely to the adjustments to civil penalties to account for inflation.

    Executive Order 13211

    This rule is not a “significant energy action” as defined in Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. This rule relates only to the adjustments to civil penalties to account for inflation. This rule is consistent with current agency practice, does not impose new substantive requirements, and therefore will not have a significant adverse effect on the supply, distribution, or use of energy.

    List of Subjects in 33 CFR Part 326

    Administrative practice and procedure, Intergovernmental relations, Investigations, Law enforcement, Navigation (water), Water pollution control, Waterways.

    Dated: April 19, 2018. R.D. James, Assistant Secretary of the Army (Civil Works).

    For the reasons set forth in the preamble, the Corps amends 33 CFR part 326 as follows:

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

    33 U.S.C. 401 et seq.; 33 U.S.C. 1344; 33 U.S.C. 1413; 33 U.S.C. 2104; 33 U.S.C. 1319; 28 U.S.C. 2461 note.

    2. Amend § 326.6 by revising paragraph (a)(1) to read as follows:
    § 326.6 Class I administrative penalties.

    (a) Introduction. (1) This section sets forth procedures for initiation and administration of Class I administrative penalty orders under Section 309(g) of the Clean Water Act, judicially-imposed civil penalties under Section 404(s) of the Clean Water Act, and Section 205 of the National Fishing Enhancement Act. Under Section 309(g)(2)(A) of the Clean Water Act, Class I civil penalties may not exceed $21,394 per violation, except that the maximum amount of any Class I civil penalty shall not exceed $53,484. Under Section 404(s)(4) of the Clean Water Act, judicially-imposed civil penalties may not exceed $53,484 per day for each violation. Under Section 205(e) of the National Fishing Enhancement Act, penalties for violations of permits issued in accordance with that Act shall not exceed $23,426 for each violation.

    Environmental statute and U.S. Code citation Statutory civil monetary penalty amount for violations that occurred after November 2, 2015, and are assessed on or after May 2, 2018 Clean Water Act (CWA), Section 309(g)(2)(A), 33 U.S.C. 1319(g)(2)(A) $21,394 per violation, with a maximum of $53,484. CWA, Section 404(s)(4), 33 U.S.C. 1344(s)(4) Maximum of $53,484 per day for each violation. National Fishing Enhancement Act, Section 205(e), 33 U.S.C. 2104(e) Maximum of $23,426 per violation.
    [FR Doc. 2018-09316 Filed 5-1-18; 8:45 am] BILLING CODE 3720-58-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 62 [EPA-R04-OAR-2018-0119; FRL-9977-22—Region 4] Delegation of Authority to North Carolina and the Western North Carolina Regional Air Quality Agency of Federal Plan for Existing Sewage Sludge Incineration Units AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The EPA is providing notice of and is codifying its prior approval of requests submitted by the North Carolina Department of Environmental Quality (NCDEQ), through its Division of Air Quality, and the Western North Carolina Regional Air Quality Agency (WNCRAQA) for delegation of authority to implement and enforce the Federal plan for existing affected Sewage Sludge Incineration (SSI) units. The Federal plan establishes emission limits and monitoring, operating, and recordkeeping requirements for SSI units constructed on or before October 14, 2010. NCDEQ and WNCRAQA representatives have signed separate but similar Memoranda of Agreement (MOAs), each of which constitutes the mechanism for the transfer of authority from the EPA to each respective air pollution control agency. The MOAs and the corresponding delegations of authority were effective upon signature by the Regional Administrator on April 2, 2018. The MOAs delineate policies, responsibilities, and procedures by which the Federal plan will be administered and enforced by the NCDEQ and WNCRAQA, respectively, as well as the authorities retained by the EPA.

    DATES:

    This rule is effective on June 1, 2018.

    ADDRESSES:

    The EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2018-0119. The index to the docket for this action is available electronically at www.regulations.gov and in hard copy at EPA Region 4, 61 Forsyth St. SW, Atlanta, Georgia. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available at either location (e.g., confidential business information).

    FOR FURTHER INFORMATION CONTACT:

    Mark Bloeth, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency Region 4, 61 Forsyth Street SW, Atlanta, Georgia, 30303-8960. Mr. Bloeth can be reached via telephone at (404) 562-9013 and via electronic mail at [email protected].

    SUPPLEMENTARY INFORMATION: I. Background

    Section 129 of the Clean Air Act (the “CAA” or “Act”), titled “Solid Waste Combustion,” requires the EPA to develop and adopt standards for solid waste incineration units pursuant to sections 111(d) and 129 of the Act. On March 21, 2011, the EPA promulgated new source performance standards (NSPS) and emissions guidelines (EG) for SSI units located at wastewater treatment facilities designed to treat domestic sewage sludge. See 76 FR 15372. Codified at 40 CFR part 60, subparts LLLL and MMMM, these final rules set limits for nine pollutants under section 129 of the CAA: Cadmium (Cd), carbon monoxide (CO), hydrogen chloride (HCl), lead (Pb), mercury (Hg), nitrogen oxides (NOX), particulate matter (PM), polychlorinated dibenzo-p-dioxins and polychlorinated dibenzofurans (PCDDs/PCFDs), and sulfur dioxide (SO2). The EG apply to existing SSI units, which are those units that commenced construction on or before October 14, 2010. See 40 CFR 60.5060.

    CAA section 129 also requires each state in which SSI units are operating to submit a plan to implement and enforce the EG with respect to such units. State plan requirements must be “at least as protective” as the EG and become federally enforceable upon approval by the EPA. The procedures for adoption and submittal of state plans are codified in 40 CFR part 60, subpart B. The SSI EG include a model rule that states may use to develop their own plans.

    On April 29, 2016, the EPA finalized a Federal plan that implements the EG in states that do not have an approved state plan. 81 FR 26040. EPA implementation and enforcement of the Federal plan is viewed as an interim measure until states assume their role as the preferred implementers of the EG requirements stipulated in the Federal plan. Accordingly, the EPA encourages states to either develop their own plan (the EG model rule or the Federal plan can be used as a template to reduce the effort needed to develop a plan), or to request delegation of the Federal plan, as the NCDEQ and WNCRAQA have done. State plans and requests for delegations of authority that have been approved by EPA are reflected in the Code of Federal Regulations at 40 CFR part 62, subparts B through DDD.

    II. Submittal and EPA Approval of Requests for Delegation of the Federal Plan

    On December 9, 2016, and February 7, 2017, the NCDEQ and WNCRAQA, respectively, requested delegation of authority from EPA to implement and enforce the Federal plan for existing SSI units, codified at 40 CFR part 62 subpart LLL. The scope of the request from the NCDEQ included all affected facilities within the State of North Carolina, except Buncombe County and the City of Asheville. The WNCRAQA submitted a separate delegation request which included all affected facilities within Buncombe County and the City of Asheville. The delegation of authority does not apply to sources located in Indian Country.

    The EPA evaluates requests for delegation of the SSI Federal plan pursuant to the provisions of the SSI Federal plan and the EPA's Delegations Manual. Pursuant to the SSI Federal plan, a state may meet its CAA section 111(d)/129 obligations by submitting an acceptable written request for delegation of the Federal plan that includes the following elements: (1) A demonstration of adequate resources and legal authority to administer and enforce the Federal plan; (2) an inventory of affected SSI units, an inventory of emissions from affected SSI units, and provisions for state progress reports (see items under 40 CFR 60.5015(a)(1), (2) and (7) from the SSI EG); (3) certification that the hearing on the state delegation request, similar to the hearing for a state plan submittal, was held, a list of witnesses and their organizational affiliations, if any, appearing at the hearing, and a brief written summary of each presentation or written submission; and (4) a commitment to enter into a MOA with the Regional Administrator that sets forth the terms, conditions, and effective date of the delegation and that serves as the mechanism for the transfer of authority. 40 CFR 62.15865; see also 81 FR 26060-61. The NCDEQ and the WNCRAQA met delegation requirements (1) through (3) described above, as well as requirement (4), which is addressed below.

    Pursuant to the EPA's Delegations Manual, item 7-139, Implementation and Enforcement of 111(d)(2) and 111(d)(2)/129(b)(3) Federal Plans, a copy of which is included in the Supporting Documents for this action, the Regional Administrator is authorized to delegate authority to implement and enforce section 111(d)/129 Federal plans to states. Whereas a state plan implementing the EG must be submitted by the state, a local agency may directly request delegation of authority to implement the SSI Federal plan with respect to sources within its jurisdiction, provided it has authority under state law to do so and has met the delegation requirements identified above. See 81 FR 26054-55. The requirements and limitations of a delegation agreement are set forth in item 7-139. Consistent with those requirements, the EPA prepared MOAs between the EPA and the NCDEQ and between the EPA and the WNCRAQA, each of which defines policies, responsibilities, and procedures pursuant to the SSI Federal plan by which the Federal plan will be administered by each agency. Subsequently, on January 30, 2018, Michael S. Regan, Secretary of the NCDEQ, and on January 12, 2018, David A. Brigman, Director of the WNCRAQA, signed the respective MOAs, thus agreeing to the terms and conditions of the MOAs and accepting responsibility for implementation and enforcement of the policies and procedures of the Federal plan, except for certain authorities (e.g., approval of major alternatives to test methods or monitoring) retained by the EPA. The EPA continues to retain enforcement authority along with the NCDEQ and the WNCRAQA. The MOAs, and resulting delegation of authority, became effective upon signature by the Regional Administrator on April 2, 2018.

    III. EPA Action

    In this action, EPA is notifying the public of and is codifying its delegation of authority to implement and enforce the Federal plan to the NCDEQ and WNCRAQA. The Code of Federal Regulations is being amended as indicated below.

    IV. Good Cause Finding

    Section 553(b) of the Administrative Procedure Act (APA) requires publication of notice of proposed rulemaking and specifies what the notice shall include. See 5 U.S.C. 553(b). However, the APA provides an exception from this requirement “when the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest.” 5 U.S.C. 553(b)(3)(B).

    The EPA has found good cause for making today's action final without prior proposal and opportunity for comment because this ministerial action merely codifies EPA's delegation of authority to implement and enforce the SSI Federal plan to the NCDEQ and the WNCRAQA. This action does not alter the universe of sources regulated under the Federal plan, nor does it change the regulatory requirements applicable to those sources. In these circumstances, notice and comment procedures are unnecessary.

    V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator has the authority to delegate the authority to implement a Federal 111(d)/129 plan that complies with the provisions of the CAA and applicable Federal regulations. See 40 CFR 60.27. In reviewing 111(d)/129 Federal plan delegation requests, EPA's role is to approve state choices, provided that they meet the criteria of the CAA and of EPA's implementing regulations. Accordingly, this action merely codifies in the Code of Federal Regulations EPA's delegation of authority to implement the Federal plan and does not impose additional requirements beyond those imposed by the already-applicable Federal plan. For that reason, this action:

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

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

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

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

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

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

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

    In addition, this rule is not subject to requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) because application of those requirements would be inconsistent with the CAA. It also does not provide EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

    This action does not apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. As such, it does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

    List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, Air pollution control, Aluminum, Fertilizers, Fluoride, Intergovernmental relations, Manufacturing, Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, Waste treatment and disposal.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: April 2, 2018. Onis “Trey” Glenn, III, Regional Administrator, Region 4.

    40 CFR part 62 is amended as follows:

    PART 62—APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED FACILITIES AND POLLUTANTS 1. The authority citation for part 62 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart II—North Carolina 2. Add an undesignated center heading and §§ 62.8362 and 62.8363 to subpart II to read as follows: Air Emissions From Existing Sewage Sludge Incinerators (SSI)—Section 111(d)/129 Plan
    § 62.8362 Identification of plan—North Carolina Department of Environmental Quality.

    (a) Delegation of authority. On April 2, 2018, the EPA signed a Memorandum of Agreement (MOA) that defines policies, responsibilities, and procedures pursuant to 40 CFR part 62, subpart LLL (the “Federal plan”) by which the Federal plan will be administered by the North Carolina Department of Environmental Quality (NCDEQ).

    (b) Identification of sources. The MOA and related Federal plan apply to all affected SSI units for which construction commenced on or before October 14, 2010.

    (c) Effective date of delegation. The delegation became fully effective on April 2, 2018, the effective date of the MOA between the EPA and the NCDEQ.

    § 62.8363 Identification of plan—Western North Carolina Regional Air Quality Agency.

    (a) Delegation of authority. On April 2, 2018, the EPA signed a Memorandum of Agreement (MOA) that defines policies, responsibilities, and procedures pursuant to 40 CFR part 62, subpart LLL (the “Federal plan”) by which the Federal plan will be administered by the Western North Carolina Regional Air Quality Agency (WNCRAQA).

    (b) Identification of sources. The MOA and related Federal plan apply to all affected SSI units for which construction commenced on or before October 14, 2010.

    (c) Effective date of delegation. The delegation became fully effective on April 2, 2018, the effective date of the MOA between the EPA and the WNCRAQA.

    [FR Doc. 2018-09202 Filed 5-1-18; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1 and 73 [MB Docket No. 17-106; DA 18-326] Elimination of Main Studio Rule; Petition for Partial Reconsideration AGENCY:

    Federal Communications Commission.

    ACTION:

    Dismissal and denial of petition for partial reconsideration.

    SUMMARY:

    This document dismisses and otherwise denies the Petition for Reconsideration filed by De La Hunt Broadcasting Corp. The Commission's rules provide that a petition for reconsideration which relies on facts or arguments not previously presented to the Commission will only be granted if one of three circumstances is present, and the Media Bureau concludes that none of the specified circumstances is present here. Because this is a fact-specific inquiry, and not an issue of general applicability, a waiver request is the proper means for considering this issue, and De La Hunt states that it has already requested such a waiver from the Media Bureau.

    DATES:

    May 2, 2018.

    ADDRESSES:

    Federal Communications Commission, 445 12th Street SW, Washington, DC 20554.

    FOR FURTHER INFORMATION CONTACT:

    Diana Sokolow, [email protected], of the Policy Division, Media Bureau, (202) 418-2120.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Memorandum Opinion and Order, MB Docket No. 17-106, adopted and released on April 2, 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, 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. Copies of the materials can be obtained from the FCC's Reference Information Center at (202) 418-0270. 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). This document is not subject to the Congressional Review Act. The Commission is, therefore, not required to submit a copy of this Memorandum Opinion and Order to the General Accounting Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because the Petition for Reconsideration was dismissed and otherwise denied.

    Federal Communications Commission. Thomas Horan, Chief of Staff, Media Bureau.
    [FR Doc. 2018-09294 Filed 5-1-18; 8:45 am] BILLING CODE 6712-01-P
    83 85 Wednesday, May 2, 2018 Proposed Rules FEDERAL HOUSING FINANCE AGENCY 12 CFR Parts 1290 and 1291 RIN 2590-AA83 Affordable Housing Program Amendments; Correction, Extension of Comment Period, and Further Request for Comment AGENCY:

    Federal Housing Finance Agency.

    ACTION:

    Proposed rule; correction, extension of comment period, and further request for comment.

    SUMMARY:

    The Federal Housing Finance Agency (FHFA) is correcting an inadvertent error in the calculation of a proposed regulatory outcome requirement in the proposed rule published in the Federal Register on March 14, 2018, regarding the Federal Home Loan Banks' (Banks) Affordable Housing Program (AHP or Program). FHFA is requesting comment on the corrected calculation and is extending the comment period on all aspects of the proposed rule by an additional 30 days.

    DATES:

    The comment period for the proposed rule, published at 83 FR 11344 (March 14, 2018), is extended to June 12, 2018. Written comments must be received on or before this date.

    ADDRESSES:

    You may submit your comments, identified by Regulatory Information Number (RIN) 2590-AA83, by any one of the following methods:

    Agency Website: www.fhfa.gov/open-for-comment-or-input.

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. If you submit your comment to the Federal eRulemaking Portal, please also send it by email to FHFA at [email protected] to ensure timely receipt by FHFA. Include the following information in the subject line of your submission: Comments/RIN 2590-AA83.

    Hand Delivered/Courier: The hand delivery address is: Alfred M. Pollard, General Counsel, Attention: Comments/RIN 2590-AA83, Federal Housing Finance Agency, Eighth Floor, 400 Seventh Street SW, Washington, DC 20219. Deliver the package at the Seventh Street entrance Guard Desk, First Floor, on business days between 9 a.m. and 5 p.m.

    U.S. Mail, United Parcel Service, Federal Express, or Other Mail Service: The mailing address for comments is: Alfred M. Pollard, General Counsel, Attention: Comments/RIN 2590-AA83, Federal Housing Finance Agency, Eighth Floor, 400 Seventh Street SW, Washington, DC 20219. Please note that all mail sent to FHFA via U.S. Mail is routed through a national irradiation facility, a process that may delay delivery by approximately two weeks. For time-sensitive correspondence, please plan accordingly.

    FOR FURTHER INFORMATION CONTACT:

    Ted Wartell, Manager, Office of Housing and Community Investment, 202-649-3157, [email protected]; Marcea Barringer, Senior Policy Analyst, Office of Housing and Community Investment, 202-649-3275, [email protected]; Marshall Adam Pecsek, Senior Counsel, Office of General Counsel, 202-649-3380, [email protected]; or Sharon Like, Managing Associate General Counsel, Office of General Counsel, 202-649-3057, [email protected]. These are not toll-free numbers. The mailing address is: Federal Housing Finance Agency, 400 Seventh Street SW, Washington, DC 20219. The telephone number for the Telecommunications Device for the Hearing Impaired is (800) 877-8339.

    SUPPLEMENTARY INFORMATION: Comments

    FHFA invites comments on all aspects of the March 2018 proposed rule, including any new or supplemental comments on the corrected calculation of the proposed regulatory outcome requirement, and will take all comments into consideration before issuing a final rule including those filed prior to this notice. Copies of all comments will be posted without change, including any personal information you provide such as your name, address, email address, and telephone number, on the FHFA website at http://www.fhfa.gov. In addition, copies of all comments received will be available for examination by the public through the electronic rulemaking docket for this proposed rule also located on the FHFA website.

    Background

    On March 14, 2018, FHFA published in the Federal Register a proposed rule to amend its regulation governing the Banks' AHP, located at 12 CFR part 1291. See 83 FR 11344. The proposed rule, among other things, would provide the Banks authority to design and implement their own project selection scoring criteria and award AHP funds, subject to meeting certain FHFA-prescribed outcome requirements. The proposed rule contains an inadvertent error in the calculation of the regulatory outcome requirement in proposed § 1291.48(d), related rule text, and preamble discussions. The proposed rule states that: “Each year, each Bank shall ensure that at least 55 percent of the Bank's required annual AHP contribution is awarded under the Bank's General Fund and any Bank Targeted Funds to projects that, in the aggregate, meet at least two of the three regulatory priorities in this paragraph . . . .” See 83 FR 11361, 11386 (emphasis added).

    Under proposed § 1291.48(d), as drafted in the proposed rule, any AHP funds awarded to a household participating in a Homeownership Set-Aside Program would not count towards fulfillment of the outcome requirement. Therefore, were a Bank to allocate the maximum amount permitted under the proposed rule to its Homeownership Set-Aside Program(s)—40 percent of its required annual AHP contribution—it would be required to ensure that nearly 92 percent of its remaining annual contribution be awarded to projects that satisfy, in the aggregate, two of the three identified regulatory priorities.

    While not all subsidies awarded under a Homeownership Set-Aside Program will meet one of the prioritized housing needs identified under the regulatory priorities in proposed § 1291.48(d), some will, and FHFA believes that this should be reflected in the applicable outcome requirement.

    Correction

    Proposed § 1291.48(d), related rule text, and preamble discussions, therefore, should have included awards to households under a Bank's Homeownership Set-Aside Programs, if any, along with awards under the Bank's General Fund and any Bank Targeted Funds, in the calculation of whether the Bank achieved the regulatory outcome requirement. That is, the Bank's awards under its General Fund and any Targeted Funds and Homeownership Set-Aside Programs would be included in the numerator, and the Bank's required annual AHP contribution amount would be included in the denominator of the calculation.

    Accordingly, in the proposed rule FR Doc. 2018-04745, on page 11386, in the issue of March 14, 2018, in the left column, in paragraph (d) of § 1291.48, the correction should correctly read: “Each year, each Bank shall ensure that at least 55 percent of the Bank's required annual AHP contribution is awarded under the Bank's General Fund and any Bank Targeted Funds and Homeownership Set-Aside Programs to projects or households, as applicable, that, in the aggregate, meet at least two of the three regulatory priorities in this paragraph . . . .” (emphasis added) If the corrected language is adopted in a final rule, FHFA will also make any other conforming revisions to the rule text as necessitated by the correction.

    FHFA specifically requests comments on whether the calculation, as corrected, would provide the Banks sufficient flexibility to provide AHP funds to the housing needs in their districts. FHFA further requests comments on whether other changes to the outcome calculation would be appropriate, such as decreasing the percentage of the Bank's annual AHP contribution required to meet the regulatory priorities to less than 55 percent, provided that at least a majority of the Bank's annual AHP contribution is awarded to certain regulatory priorities established by FHFA.1 FHFA also requests comments on whether adding a regulatory priority that is specifically focused on homeownership would increase opportunities for the Banks to include awards made in their Homeownership Set-Aside Programs towards meeting the regulatory priorities.

    1 The Federal Home Loan Bank Act requires FHFA to establish priorities for the use of the AHP funds. 12 U.S.C. 1430(j)(9)(B).

    Extension of Comment Period

    The comment period for the proposed rule was originally set to expire on May 14, 2018. FHFA has received a number of requests from commenters for an extension of the comment period of varying lengths, with commenters citing the complexity and length of the proposed rule, the important issues addressed, and the high level of interest. In light of these requests, and FHFA's additional request for comment on the correction to the proposed outcome requirement calculation, FHFA is extending the comment period by an additional 30 days. This will result in a total comment period on the proposed rule of 90 days, expiring June 12, 2018.

    Dated: April 26, 2018. Melvin L. Watt, Director, Federal Housing Finance Agency.
    [FR Doc. 2018-09326 Filed 5-1-18; 8:45 am] BILLING CODE 8070-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2018-0286] RIN 1625-AA00 Safety Zone; Fireworks, Delaware River, Philadelphia, PA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Coast Guard proposes to establish a temporary safety zone for multiple fireworks events launched in the vicinity of Penn's Landing, Philadelphia, Pennsylvania, for waters of the Delaware River, Philadelphia, PA. Establishment of this safety zone is necessary to enhance safety of life on navigable waters immediately prior to, during, and immediately after these fireworks events. During the enforcement periods, no vessel may enter in or transit this regulated area without approval from the Captain of the Port Delaware Bay 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 9, 2018.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2018-0286 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 Petty Officer Edmund Ofalt, U.S. Coast Guard, Sector Delaware Bay, Waterways Management Division, Coast Guard; telephone (215) 271-4814, email [email protected].

    SUPPLEMENTARY INFORMATION: I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background, Purpose, and Legal Basis

    On March 1, 2018, the Coast Guard was notified of fireworks events planned for May 24, 25, 26, and 27, 2018. Hazards from fireworks displays include accidental discharge, dangerous projectiles and falling hot embers or other debris. The COTP Delaware Bay has determined that a temporary safety zone is necessary to provide safety on the navigable waters of the Delaware River during these fireworks events, and to enhance safety of the public, spectators, and vessels.

    The purpose of this rulemaking is to ensure the safety of vessels and navigable waters immediately prior to, during, and immediately after these fireworks events. The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231.

    III. Discussion of Proposed Rule

    The COTP Delaware Bay proposes to establish a safety zone on the Delaware River adjacent to Penns Landing in Philadelphia, PA, May 24, 2018, through May 27, 2018. The safety zone will be enforced from approximately 8 p.m. to 11 p.m. on nights on which fireworks are being displayed from a barge in the Delaware River. These fireworks displays may be held on May 24th, 25th, 26th, and 27th, or on only some of these dates. Notification of enforcement dates and times will be published in the Coast Guard District 5 Local Notice to Mariners and broadcast via Broadcast Notice to Mariners. The safety zone will include all navigable waters of Delaware River, adjacent to Penns Landing, Philadelphia, PA, bounded from shoreline to shoreline, bounded on the south by a line running east to west from points along the shoreline connecting at latitude 39°56′31.2″ N, longitude 075°08′28.1″ W; thence westward to latitude 39°56′29″.1 N, longitude 075°07′56.5″ W, and bounded on the north by the southern edge of the Benjamin Franklin Bridge where it crosses the Delaware River.

    Access to this safety zone will be restricted during the specified enforcement dates and time periods. Vessels may not take on bunkers or conduct lightering operations inside the zone during times of enforcement. Only vessels or persons specifically authorized by the COTP Delaware Bay or designated representative may enter or remain in the regulated area. Requests to enter or remain in the zone will be required to be submitted to the COTP Delaware Bay, or his designated representative via VHF-FM channel 16 or 217-271-4807. Vessels engaged in law enforcement, servicing of aids to navigation, and emergency response will be exempt from these requirements.

    The regulatory text we are proposing can be found 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. The proposed safety zone will impact waters affected by this rule on May 24, 25, 26, and 27, 2018 from 8 p.m. to 11 p.m. During this time of day commercial and recreational traffic is normally low. Notifications of enforcement dates and times will be made to the maritime community via Broadcast Notice to Mariners and Local Notice to Mariners so that plans may be adjusted accordingly. Notifications will be updated as necessary, to keep the maritime community informed of the status of the safety 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 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 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 that will only be enforced for a short duration and excludes vessels from entry into or remaining within a specified area on the Delaware River. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this 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 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.T05-0286 to read as follows:
    § 165.T05-0286 Safety Zone; Safety Zone; Fireworks, Delaware River, Philadelphia PA.

    (a) Location. The following area is a safety zone: All navigable waters of Delaware River, adjacent to Penn's Landing, Philadelphia, PA, bounded from shoreline to shoreline, bounded on the south by a line running east to west from points along the shoreline commencing at latitude 39°56′31.2″ N, longitude 075°08′28.1″ W; thence westward to latitude 39°56′29.1″ N, longitude 075°07′56.5″ W, and bounded on the north by the Benjamin Franklin Bridge where it crosses the Delaware River. These coordinates are based on the 1984 World Geodedic System (WGS 84).

    (b) Definitions. As used in this section, designated representative means a Coast Guard Patrol Commander, including a Coast Guard petty officer, warrant or commissioned officer on board a Coast Guard vessel or on board a federal, state, or local law enforcement vessel assisting the Captain of the Port, Delaware Bay in the enforcement of the safety zone.

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

    (2) To seek permission to enter or remain in the zone, contact the COTP or the COTP's representative via VHF-FM channel 16 or 215-271-4807. 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.

    (3) No vessel may take on bunkers or conduct lightering operations within the safety zone during its enforcement period(s).

    (4) This section applies to all vessels except those engaged in law enforcement, aids to navigation servicing, and emergency response operations.

    (d) Enforcement. The U.S. Coast Guard may be assisted in the patrol and enforcement of the safety zone by Federal, State, and local agencies.

    (e) Enforcement period. This zone will be enforced from approximately 8 p.m. to 11 p.m. on nights on which fireworks are being displayed from a barge beginning May 24 through May 27, 2018. Starting and ending times for the enforcement of the safety zone will be broadcast via Broadcast Notice to Mariners and published in the weekly Local Notice to Mariners.

    Dated: April 26, 2018. Scott E. Anderson, Captain, U.S. Coast Guard, Captain of the Port Delaware Bay.
    [FR Doc. 2018-09233 Filed 5-1-18; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R10-OAR-2017-0745; FRL-9977-43—Region 10] Air Plan Approval; Alaska; Interstate Transport Requirements for the 2012 PM2.5 NAAQS AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Clean Air Act (CAA) requires each State Implementation Plan (SIP) to contain adequate provisions prohibiting emissions that will have certain adverse air quality effects in other states. On March 10, 2016, the State of Alaska made a submission to the Environmental Protection Agency (EPA) to address these requirements. The EPA is proposing to approve the submission as meeting the requirement that each SIP contain adequate provisions to prohibit emissions that will contribute significantly to nonattainment or interfere with maintenance of the 2012 annual fine particulate matter (PM2.5) National Ambient Air Quality Standard (NAAQS).

    DATES:

    Comments must be received on or before June 1, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R10-OAR-2017-0745 at https://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 the disclosure of which 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 https://www.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Jeff Hunt, Air Planning Unit, Office of Air and Waste (OAW-150), Environmental Protection Agency, Region 10, 1200 Sixth Ave, Suite 900, Seattle, WA 98101; telephone number: (206) 553-0256; email address: [email protected].

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean the EPA. This supplementary information section is arranged as follows:

    Table of Contents I. What is the background of this SIP submission? II. What guidance is the EPA using to evaluate this SIP submission? III. EPA's review IV. What action is EPA taking? V. Statutory and Executive Order Reviews I. What is the background of this SIP submission?

    This rulemaking addresses a submission from the Alaska Department of Environmental Conservation (ADEC), describing its infrastructure SIP for the 2012 annual PM2.5 NAAQS, submitted March 10, 2016. Specifically, this rulemaking addresses the portion of the submission dealing with interstate pollution transport under CAA section 110(a)(2)(D)(i)(I), otherwise known as the “good neighbor” provision. The requirement for states to make a SIP submission of this type arises from section 110(a)(1) of the CAA. Pursuant to section 110(a)(1), states must submit “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” a plan that provides for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon the EPA taking any action other than promulgating a new or revised NAAQS. Section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address. The EPA commonly refers to such state plans as “infrastructure SIPs.”

    II. What guidance is the EPA using to evaluate this SIP submission?

    The EPA highlighted the statutory requirement to submit infrastructure SIPs within 3 years of promulgation of a new NAAQS in an October 2, 2007, guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5 National Ambient Air Quality Standards” (2007 guidance). The most recent relevant document was a memorandum published on March 17, 2016, titled “Information on the Interstate Transport “Good Neighbor” Provision for the 2012 Fine Particulate Matter National Ambient Air Quality Standards under Clean Air Act Section 110(a)(2)(D)(i)(I)” (memorandum). The memorandum describes the EPA's past approach to addressing interstate transport, and provides the EPA's general review of relevant modeling data and air quality projections as they relate to the 2012 annual PM2.5 NAAQS. The memorandum provides information relevant to the EPA Regional office review of the CAA section 110(a)(2)(D)(i)(I) “good neighbor” provision in infrastructure SIPs with respect to the 2012 annual PM2.5 NAAQS. This rulemaking considers information provided in that memorandum.

    The memorandum also provides states and the EPA Regional offices with future year annual PM2.5 design values for monitors in the United States based on quality assured and certified ambient monitoring data and air quality modeling. The memorandum further describes how these projected potential design values can be used to help determine which monitors should be further evaluated to potentially address whether emissions from other states significantly contribute to nonattainment or interfere with maintenance of the 2012 annual PM2.5 NAAQS at those sites. The memorandum explains that the pertinent year for evaluating air quality for purposes of addressing interstate transport for the 2012 PM2.5 NAAQS is 2021, the attainment deadline for 2012 PM2.5 NAAQS nonattainment areas classified as Moderate.

    Based on this approach, the potential receptors are outlined in the memorandum. Most of the potential receptors are in California, located in the San Joaquin Valley or South Coast nonattainment areas. However, there is also one potential receptor in Shoshone County, Idaho, and one potential receptor in Allegheny County, Pennsylvania. The memorandum also indicates that for certain states with incomplete ambient monitoring data, additional information including the latest available data, should be analyzed to determine whether there are potential downwind air quality problems that may be impacted by transported emissions.

    This rulemaking considers analysis in Alaska's submission, as well as additional analysis conducted by the EPA during review of its submission. For more information on how we conducted our analysis, please see the technical support document (TSD) included in the docket for this action.

    III. EPA's Review

    This rulemaking proposes action on the portion of Alaska's March 10, 2016, SIP submission addressing the good neighbor provision requirements of CAA section 110(a)(2)(D)(i)(I). State plans must address specific requirements of the good neighbor provisions (commonly referred to as “prongs”), including:

    —Prohibiting any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (prong one); and —Prohibiting any source or other type of emissions activity in one state from interfering with maintenance of the NAAQS in another state (prong two).

    The EPA has developed a consistent framework for addressing the prong one and two interstate transport requirements with respect to the PM2.5 NAAQS in several previous federal rulemakings. The four basic steps of that framework include: (1) Identifying downwind receptors that are expected to have problems attaining or maintaining the relevant NAAQS; (2) identifying which upwind states contribute to these identified problems in amounts sufficient to warrant further review and analysis; (3) for states identified as contributing to downwind air quality problems, identifying upwind emissions reductions necessary to prevent an upwind state from significantly contributing to nonattainment or interfering with maintenance of the relevant NAAQS downwind; and (4) for states that are found to have emissions that significantly contribute to nonattainment or interfere with maintenance of the relevant NAAQS downwind, reducing the identified upwind emissions through adoption of permanent and enforceable measures. This framework was most recently applied with respect to PM2.5 in the Cross-State Air Pollution Rule (CSAPR), designed to address both the 1997 and 2006 PM2.5 standards, as well as the 1997 ozone standard.1

    1 Alaska was not part of the CSAPR rulemaking. The EPA approved the Alaska SIP as meeting the CAA section 110(a)(2)(D)(i)(I) requirements for the 1997 ozone and 1997 PM2.5 NAAQS on October 15, 2008 (73 FR 60955) and the 2006 PM2.5 NAAQS on August 4, 2014 (79 FR 45103).

    ADEC's submission focused mainly on emissions inventories, geographic factors, and prevailing meteorological conditions to demonstrate that sources in Alaska are unlikely to significantly contribute to nonattainment or interfere with maintenance of the NAAQS in other states. ADEC evaluated emissions inventories by source category for direct PM2.5, as well as the precursors nitrogen oxides (NOX) and sulfur dioxide (SO2). ADEC noted that emissions of NOX in Alaska are small in comparison to national levels. Data from the 2011 National Emissions Inventory (NEI) presented in the submission show that total NOX emissions in Alaska are approximately 0.9 percent of national emissions. Similarly, data from the 2011 NEI show that total SO2 emissions in Alaska are approximately 0.4 percent of national emissions. With respect to direct PM2.5, ADEC noted that anthropogenic sources account for only 9 percent of Alaskan emissions, with the majority of PM2.5 emissions occurring due to natural wildfires. ADEC also highlighted the fact that approximately 600 miles of mountainous terrain in Canada's Province of British Columbia separate the southeastern border of Alaska from the nearest state, Washington. The highest emissions of regulated air pollutants occur even further away from the contiguous 48 states in the Municipality of Anchorage (1,435 miles from Seattle, WA) and the Fairbanks North Star Borough (2,244 miles from Seattle, WA). Lastly, ADEC stated that weather patterns make long range transport of air pollutants from Alaska to the 48 contiguous states, and Hawaii, unlikely. Wind patterns emanate from the western Gulf of Alaska and travel inland towards the east into Northern Canada. For these reasons, ADEC concluded that Alaska does not contribute to nonattainment or interfere with maintenance of the 2012 PM2.5 NAAQS in any other state.

    Alaska developed and submitted its technical analysis before March 17, 2016, when, as discussed earlier, the EPA released a memorandum with updated modeling projections for 2017 and 2025 annual PM2.5 design values meant to assist states in development of 2012 PM2.5 NAAQS interstate transport SIPs. As discussed in the TSD for this action, we used the information in the 2016 memorandum and supplemental information, as discussed below, and came to the same conclusion as the state. It is reasonable to conclude that emissions from Alaska do not significantly contribute to nonattainment or interfere with maintenance of the 2012 PM2.5 NAAQS in any other state.

    In our evaluation, potential downwind nonattainment and maintenance receptors were identified in other states. EPA evaluated these potential receptors to determine first if, based on review of relevant data and other information, there would be downwind nonattainment or maintenance problems, and if so, whether Alaska is likely to contribute to such problems in these areas. After reviewing air quality reports, modeling results, designation letters, designation technical support documents, attainment plans and other information for these areas, we are proposing to approve the Alaska SIP as meeting CAA section 110(a)(2)(i)(I) interstate transport requirements for the 2012 PM2.5 NAAQS.

    IV. What action is EPA taking?

    The EPA is proposing to approve a portion of Alaska's March 10, 2016, submission certifying that the current Alaska SIP is sufficient to meet the interstate transport requirements of CAA section 110(a)(2)(D)(i)(I), specifically prongs one and two, as set forth above. The EPA is requesting comments on the proposed approval.

    V. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Particulate matter, Reporting and recordkeeping requirements.

    Dated: April 23, 2018. Chris Hladick, Regional Administrator, Region 10.
    [FR Doc. 2018-09319 Filed 5-1-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2017-0535; FRL-9977-52 Region 5] Air Plan Approval; Indiana; Air Quality Standards Update for the 2015 Ozone Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a September 7, 2017, request by the Indiana Department of Environmental Management (IDEM) to revise the Indiana state implementation plan (SIP) for ozone. IDEM revised its ozone standard in order to be consistent with EPA's 2015 revisions to the 8-hour national ambient air quality standards (NAAQS). IDEM also revised the references to the monitoring test methods in its rules to the current EPA test methods. EPA is also proposing to approve administrative revisions to regulations addressing other ambient air quality standards.

    DATES:

    Comments must be received on or before June 1, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R05-OAR-2017-0535 at http://www.regulations.gov or via email to [email protected]. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, 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. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Matt Rau, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6524, [email protected].

    SUPPLEMENTARY INFORMATION:

    Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

    I. Background II. What is EPA's analysis? III. What action is EPA taking? IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. Background

    On October 26, 2015 (80 FR 65291), EPA revised the primary and secondary ozone NAAQS from 0.075 to 0.070 parts per million (ppm), daily maximum 8-hour concentration, codified at 40 CFR 50.19. The ozone NAAQS continues to use an 8-hour averaging time, calculated as the fourth-highest daily maximum averaged across three consecutive years. IDEM revised its ambient air quality primary and secondary standards for ozone to be consistent with EPA's 2015 revision, and codified that revision at 326 Indiana Administrative Code (IAC) 1-3-4, Ambient Air Quality Standards.

    On October 26, 2015 (80 FR 65291), EPA also revised the monitoring test methods for ozone, which are codified at 40 CFR part 50 appendices D and U, and at 40 CFR part 53. IDEM revised 326 IAC 1-3-4(4)(B) to update its references to those Federal monitoring test methods.

    Indiana also made administrative revisions throughout 326 IAC 1-3-4 for ambient air quality standards other than ozone. This includes changing “shall represent” to “represents” and “shall” to “must.”

    IDEM posted notice by March 3, 2017, for the Environmental Rules Board meeting on April 12, 2017, at which public comment was taken on the ambient air quality standard revisions. There were no public comments. On September 7, 2017, IDEM requested approval of 326 IAC 1-3-4 into the Indiana SIP.

    II. What is EPA's analysis?

    IDEM's revisions to 326 IAC 1-3-4(4) make its ambient air quality standards consistent with the federal 2015 8-hour ozone NAAQS. Aligning the ambient air quality standards ensures consistency between EPA's and IDEM's ozone standards. IDEM's updates to the monitoring test methods for ozone keep the state's test methods consistent with the federal test methods. EPA also finds that the administrative revisions made in 326 IAC 1-3-4 are minor and do not alter the state's ambient air quality standards, which remain consistent with the NAAQS.

    III. What action is EPA taking?

    EPA is proposing to approve revisions to Indiana's ambient air quality standards in 326 IAC 1-3-4 into the Indiana SIP. The revisions to 326 IAC 1-3-4 include aligning both IDEM's ozone standard with the 2015 8-hour ozone NAAQS as codified at 40 CFR part 50 and the monitoring test methods for ozone as codified at 40 CFR part 50 and 40 CFR part 53. Further, administrative revisions were made to IDEM's other ambient air quality standards in 326 IAC 1-3-4. This SIP revision request was submitted on September 7, 2017.

    IV. Incorporation by Reference

    In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference 326 IAC 1-3-4, effective August 11, 2017. EPA has made, and will continue to make, these documents generally available through www.regulations.gov, and at the EPA Region 5 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

    V. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

    In addition, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.

    Dated: April 25, 2018. Edward H. Chu, Acting Regional Administrator, Region 5.
    [FR Doc. 2018-09318 Filed 5-1-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 62 [EPA-R02-OAR-2017- 0712; FRL-9977-55—Region 2] Approval and Promulgation of State Plans for Designated Facilities and Pollutants; United States Virgin Islands; Commercial and Industrial Solid Waste Incineration Units AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) proposes to approve the Clean Air Act (CAA) section 111(d)/129 negative declaration for the United States Virgin Islands, for Commercial and Industrial Solid Waste Incineration (CISWI) units. This negative declaration certifies that CISWI units subject to sections 111(d) and 129 of the CAA do not exist within the jurisdiction of the United States Virgin Islands. The EPA is accepting the negative declaration in accordance with the requirements of the CAA.

    DATES:

    Comments must be received on or before June 1, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R02-OAR-2017-0712, 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:

    Edward J. Linky, Environmental Protection Agency, Air Programs Branch, 290 Broadway, New York, New York 10007-1866 at 212-637-3764 or by email at [email protected].

    SUPPLEMENTARY INFORMATION:

    Throughout this document “we,” “us,” or “our” refer to the EPA. This section provides additional information by addressing the following:

    I. Background II. Analysis of State Submittal III. Statutory and Executive Order Reviews I. Background

    The Clean Air Act (CAA) requires that state 1 regulatory agencies implement the emission guidelines and compliance times using a state plan developed under sections 111(d) and 129 of the CAA.

    1 Section 302(d) of the CAA includes the United States Virgin Islands in the definition of the term “State.”

    The general provisions for the submittal and approval of state plans are codified in 40 CFR part 60, subpart B and 40 CFR part 62, subpart A. Section 111(d) establishes general requirements and procedures on state plan submittals for the control of designated pollutants. Section 129 requires emission guidelines to be promulgated for all categories of solid waste incineration units, including commercial and industrial solid waste incineration (CISWI) units. A CISWI unit is defined, in general, as “any distinct operating unit of any commercial or industrial facility that combusts, or has combusted in the preceding 6 months, any solid waste as that term is defined at 40 CFR 241.” See 40 CFR 60.2875. Section 129 mandates that all plan requirements be at least as protective as the promulgated emission guidelines. This includes fixed final compliance dates, fixed compliance schedules, and Title V permitting requirements for all affected sources. Section 129 also requires that state plans be submitted to EPA within one year after EPA's promulgation of the emission guidelines and compliance times.

    States have options other than submitting a state plan in order to fulfill their obligations under CAA sections 111(d) and 129. If a state does not have any existing CISWI units for the relevant emission guidelines, a letter can be submitted certifying that no such units exist within the state (i.e., negative declaration) in lieu of a state plan. The negative declaration exempts the state from the requirements of subpart B that would otherwise require the submittal of a CAA section 111(d)/129 plan.

    On March 21, 2011 (76 FR 15704), the EPA established emission guidelines and compliance times for existing CISWI units (New Source Performance Standards (NSPS) and Emission Guidelines (EG)). The emission guidelines and compliance times are codified at 40 CFR 60, Subpart DDDD. Following promulgation of the 2011 CISWI rule, EPA received petitions for reconsideration requesting to reconsider numerous provisions in the 2011 CISWI rule. EPA granted reconsiderations on specific issues and promulgated a CISWI reconsideration rule on February 7, 2013. 78 FR 9112. EPA again received petitions to further reconsider certain provisions of the 2013 NSPS and EG for CISWI units. On January 21, 2015 EPA granted reconsideration of four specific issues and finalized reconsideration of the CISWI NSPS and EG on June 23, 2016 (81 FR 40956).

    In order to fulfill obligations under CAA sections 111(d) and 129, the Department of Planning and Natural Resources of the Government of the United States Virgin Islands submitted a negative declaration letter to the EPA on August 17, 2016. The submittal of this declaration exempts the United States Virgin Islands from the requirement to submit a state plan for existing CISWI units.

    II. Analysis of State Submittal

    In this proposed rule the EPA proposes to amend 40 CFR part 62 to reflect receipt of the negative declaration letter from the United States Virgin Islands, certifying that there are no existing CISWI units subject to 40 CFR part 60, subpart DDDD, in accordance with section 111(d) of the CAA.

    III. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a 111(d)/129 plan submission that complies with the provisions of the Act and applicable Federal regulations. 40 CFR 62.04. Thus, in reviewing 111(d)/129 plan submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA.

    Accordingly, this action, if finalized, would merely approve state law as meeting Federal requirements and would not impose additional requirements beyond those imposed by state law.

    For that reason, this action, if finalized:

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

    • Is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

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

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

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

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

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

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

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

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

    In addition, this proposed approval does not have tribal implications as specified by Executive Order 13175 because the United States Virgin Islands' section 111(d)/129 submittal is not approved to apply in Indian country located in the in the United States Virgin Islands and, if finalized, would not impose substantial direct costs on tribal governments or preempt tribal law. Thus, Executive Order 13175 does not apply to this proposed approval.

    List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, Air pollution control, Commercial and industrial solid waste incineration units, Intergovernmental relations, Reporting and recordkeeping requirements.

    Dated: April 19, 2018. Peter D. Lopez, Regional Administrator, Region 2.
    [FR Doc. 2018-09323 Filed 5-1-18; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 54 [WC Docket No. 18-89; FCC 18-42] Protecting Against National Security Threats to the Communications Supply Chain Through FCC Programs AGENCY:

    Federal Communications Commission.

    ACTION:

    Proposed rule.

    SUMMARY:

    In this document, the Federal Communications Commission (Commission) proposes and seeks comment on a targeted rule to ensure that Universal Service Fund (USF) funding is not spent on equipment or services from suppliers that pose a national security threat to the integrity of communications networks or the communications supply chain.

    DATES:

    Comments are due on or before June 1, 2018, and reply comments are due on or before July 2, 2018.

    ADDRESSES:

    You may submit comments, identified by WC Docket No. 18-89, by any of the following methods:

    Federal Communications Commission's Website: https://www.fcc.gov/ecfs/. Follow the instructions for submitting comments.

    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: 888-835-5322.

    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:

    John Visclosky, Competition Policy Division, Wireline Competition Bureau, at (202) 418-0825, [email protected].

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Notice of Proposed Rulemaking in WC Docket No. 18-89; FCC 18-42, adopted on April 17, 2018 and released on April 18, 2018. The full text of this document is available at https://transition.fcc.gov/Daily_Releases/Daily_Business/2018/db0418/FCC-18-42A1.pdf. The full text is also available for public inspection during regular business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW, Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities (e.g., braille, large print, electronic files, audio format, etc.) or to request reasonable accommodations (e.g., accessible format documents, sign language interpreters, CART, etc.), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice) or (202) 418-0432 (TTY). Pursuant to sections 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), http://www.fcc.gov/Bureaus/OGC/Orders/1998/fcc98056.pdf.

    Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: https://www.fcc.gov/ecfs/.

    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.

    People with Disabilities: To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (tty).

    Synopsis I. Introduction

    1. A critical element of our national security is the security of America's communications networks. Therefore, threats to the security of our nation's communications networks posed by certain communications equipment providers have long been a matter of concern in the Executive Branch and Congress. And as the supply chain for our nation's communications networks increasingly reaches far beyond U.S. borders, the need to address these threats has become more pressing.

    2. The Federal Communications Commission has a specific, but an important, supporting role to play in these efforts. In keeping with our obligation to be responsible stewards of the public funds used in the Universal Service Fund (USF or the Fund) programs, we propose and seek comment on a rule to prohibit, going forward, the use of USF funds to purchase equipment or services from any communications equipment or service providers identified as posing a national security risk to communications networks or the communications supply chain. Our action today is intended to ensure that universal service funds are not used in a way that undermines or poses a threat to our national security.

    II. Background

    3. Executive Action to Safeguard and Secure Telecommunications Networks. Over the last decade, the Executive Branch has repeatedly stressed the importance of identifying and eliminating potential security vulnerabilities in communications networks and their supply chains. Most recently, in May 2017, the White House released an Executive Order emphasizing the importance of the security of federal networks and critical communications infrastructure. This Executive Order built on the efforts of previous administrations to assess and alleviate weaknesses in the country's telecommunications networks. For example, in February 2013, the White House issued Presidential Policy Directive 21 (PPD 21), which directed federal agencies to exercise their authority and expertise to partner with other agencies to identify vulnerabilities in communications infrastructure and to work “to increase the security and resilience of critical infrastructure within the communications sector.” That same year, the U.S. Government Accountability Office (GAO) released a report assessing the potential security risks of foreign-manufactured equipment in commercial communications networks and detailing the efforts of the federal government to address the risks posed by such equipment.

    4. Congressional Concern About the Security of Telecommunications Networks. Congress has also repeatedly expressed concerns about the potential for supply chain vulnerability, including possible risks associated with certain foreign communications equipment providers, to undermine national security. In October 2012, the House Permanent Select Committee on Intelligence (HPSCI) released a bipartisan report assessing the counterintelligence and security threat posed by Chinese telecommunications companies operating in or providing equipment to customers in the United States. The report “focused on Huawei [Technologies Company (Huawei)] and ZTE [Corporation (ZTE)], the top two Chinese telecommunications equipment manufacturers.” The report noted that both companies have “histories that include connections to the Chinese government.” In addition to recommending that U.S. government agencies and federal contractors “should exclude ZTE or Huawei equipment in their systems,” the report “strongly encouraged” private-sector entities “to consider the long-term security risks associated with doing business with either Huawei or ZTE for equipment or services [and] . . . strongly encouraged [private entities] . . . to seek out other vendors for their projects.

    5. On December 20, 2017, a group of 18 Senators and Representatives reiterated these concerns in a letter to Chairman Pai, which highlighted the 2012 HPSCI report's finding that “Huawei . . . cannot be trusted to be free of foreign state influence and thus poses a security threat to the United States and to our systems.” They also echoed the report's recommendation that “the United States . . . view with suspicion the continued penetration of the U.S. telecommunications market by Chinese telecommunications companies,” and that U.S. government systems and contractors “should not include Huawei or ZTE equipment.”

    6. In response to continuing concerns over the purchase and use of communications equipment from certain foreign entities, Congress passed the National Defense Authorization Act for Fiscal Year 2018 (NDAA), which, among other things, bars the Department of Defense from using “[t]elecommunications equipment [or] services produced . . . [or] provided by Huawei Technologies Company or ZTE Corporation” for certain critical programs, including ballistic missile defense and nuclear command, control, and communications. The NDAA also bars all federal agencies, including the Commission, from using any products or services made “in whole or in part . . . by Kaspersky Lab,” a company with alleged ties to the Russian government. Reflecting its continued concern about this issue, Congress is also considering pending legislation that would, if adopted, build upon these targeted prohibitions and block all federal agencies, including the Commission, from contracting with any entity that uses “telecommunications equipment or services . . . produced by Huawei Technologies Company or ZTE Corporation” as “a substantial or essential component . . . or as critical technology as part of any system.”

    7. Targeted Commission Actions to Protect the Nation's Telecommunications Infrastructure. For more than 80 years, the Commission has been charged by Congress with promoting a “Nation-wide, and world-wide wire and radio communications service” for the purposes of the “national defense” and preserving the “safety of life and property.” Consistent with this mission, we have relied on our specific statutory authorities to take a number of targeted steps to protect the nation's telecommunications infrastructure from potential security threats. For example, pursuant to the Spectrum Act of 2012, the Commission adopted rules prohibiting persons and entities who have been, for reasons of national security, barred by any federal agency from bidding on a contract, participating in an auction, or receiving a grant, from participating in auctions under the Spectrum Act. The Commission also adopted rules prohibiting persons and entities who have been, for reasons of national security, barred by any federal agency from bidding on a contract, participating in an auction, or receiving a grant, from participating in incentive auctions conducted under 47 U.S.C. 309(j)(8)(G)(i).

    8. The Commission also considers “national security, law enforcement, [and] foreign policy” concerns in the course of reviewing applications under Section 214, under the Submarine Cable Landing License Act, and under Section 310(b) when an applicant has reportable foreign ownership. Recognizing that certain Executive Branch agencies have specific expertise in these areas, the Commission seeks input on these applications from Executive Branch agencies that have established an interest in their review. The agencies include the Department of Homeland Security, the Department of Justice (including the Federal Bureau of Investigations), the Department of Defense, the Department of State, the Department of Commerce and the National Telecommunications and Information Administration (NTIA), the United States Trade Representative, and the Office of Science and Technology Policy. After the agencies review the application, they may file comments requesting that the Commission condition grant of the application on compliance with a mitigation agreement or deny the application. The mitigation agreements often include a requirement that applicants submit a list of principal equipment they plan to use to the agencies for approval.

    9. Further, the Commission has established the Communications Security, Reliability and Interoperability Council (CSRIC), which is charged with providing recommendations to ensure the security and reliability of the nation's communications systems, including telecommunications, media, and public safety networks. The Commission chartered CSRIC VI on March 19, 2017. This latest iteration of the CSRIC includes a working group whose mission is to recommend mechanisms to reduce risks to network reliability and security, including mechanisms to best design and deploy 5G networks to mitigate risks to network reliability and security posed by, among other things, vulnerable supply chains.

    10. Oversight of Universal Service Fund. One of the Commission's central missions is to make “available . . . to all the people of the United States . . . a rapid, efficient, Nation-wide, and world-wide wire and radio communication service with adequate facilities at reasonable charges.” Since its inception, the USF has operated as a mechanism for achieving that mission. Today, the Commission provides universal service support through four separate programs: (1) The High-Cost Support Program, which provides support to eligible carriers that provide service to high-cost areas, thereby making voice and broadband service affordable for residents living in such regions; (2) the Low Income Support Program (Lifeline), which assists eligible low income customers by helping to pay for monthly telephone and broadband charges; (3) the Rural Health Care Support Program, which helps subsidize rates for telecommunications and broadband services to health care facilities in rural areas; and (4) the Schools and Libraries Support Program, also known as E-Rate, which provides support for telecommunications services, internet access, and internal connections to eligible schools and libraries. The Commission has on multiple occasions stated that the Lifeline program supports services, not end-user equipment, with the exception of temporary support for handsets in the months following Hurricane Katrina.

    11. The Commission has designated the Universal Service Administrative Company (USAC) as the entity responsible for administering the universal service support programs under the Commission's oversight. The Commission oversees the Fund consistent with the “[u]niversal service principles” set forth in Section 254(b), as well as “other principles” that we “determine are necessary and appropriate for the protection of the public interest, convenience, and necessity and are consistent with” the Communications Act of 1934, as amended.

    III. Discussion

    12. Given the Commission's oversight role with respect to the Fund and increasing concerns about ensuring communications supply chain integrity, we propose to take targeted action to ensure that USF funds are not used in a way that undermines or poses a threat to our national security. We seek comment on how best to implement such a rule, including the costs and benefits of doing so, as well as on alternative approaches and any other steps we should consider taking.

    A. Prohibition on Use of USF Funds

    13. We propose to adopt a rule that, going forward, no USF support may be used to purchase or obtain any equipment or services produced or provided by a company posing a national security threat to the integrity of communications networks or the communications supply chain. We believe we have a responsibility to ensure that the public funds used in the USF are not spent on equipment or services from companies that present a risk to the supply chain. We believe that this targeted action is therefore necessary. We seek comment on this view, on our proposal generally, and on any potential alternatives.

    14. We also seek comment on whether other federal agencies have rules that we should follow as a model for limiting USF recipients' purchase of equipment or services from companies that trigger national security concerns. Do other civilian agencies that regulate or provide grants, loans or other financial assistance for key components of the nation's infrastructure, such as the Federal Energy Regulatory Commission, the Nuclear Regulatory Commission, the Federal Housing Administration, the Department of Transportation, the Department of Agriculture's Rural Utilities Service, the National Telecommunications and Information Administration, the National Science Foundation, or financial regulatory bodies, have rules similar to the ones we have proposed? Would such existing rules serve as a model or be helpful in modifying our proposal? If so, which rules or regulations should we look to, and how should they inform our proposal? Are there any key differences that we should take into account in considering such rules in the context of telecommunications infrastructure? If so, please explain.

    15. Types of Equipment and Services. We seek comment on the types of equipment and services covered by our proposed rule. One bright-line approach would be to prohibit use of USF funds on any purchases whatsoever from companies that have been identified as raising national security risks. Would such a rule be most appropriate here? Another approach would be to limit the scope of the proposed rule to equipment and services that relate to the management of a network, data about the management of a network, or any system the compromise or failure of which could disrupt the confidentiality, availability, or integrity of a network. We seek comment on this approach. Alternatively, which components or services are most prone to supply chain vulnerabilities? Are there any reasons to exempt certain categories or types of equipment or services from the scope of the rule? For example, should the rule cover all software or only software that manages the communications network or devices used on the network? Are there any categories of services that would not pose a potential risk to communications networks or the communications supply chain, and for this or any other reasons, should not be covered by the scope of the rule? Additionally, are there existing processes or methods, such as supply chain risk management processes, through which equipment can be certified not to present a supply chain risk, thereby allowing that equipment to be exempted from coverage under our proposed rule? Does the Department of Homeland Security or another Federal entity test communications equipment for supply chain risk? Should the Commission convene an advisory group or voluntary industry panel that would be able to provide such certification? Further, we expect that the proposed rule would extend to upgrades of existing equipment or services, and we seek comment on this view. We also seek comment on any other issues commenters believe are relevant to identifying the types of equipment and services that should be covered by our proposal.

    16. Use of Funds. We expect that our proposed rule would limit use of USF funds both directly by the recipient of that funding as well as indirectly by any contractor or subcontractor of the recipient. We seek comment on this view. For example, should there be a limit on how many levels of subcontractors are subject to the proposed rule? Are there different practical or policy questions that necessitate crafting rules on a program-specific basis across the four separate USF programs? Or would an overarching rule for all USF programs better meet the goals of safeguarding USF-funded infrastructure and providing effective USF support? We seek comment on these issues and any related issues of application. Additionally, given the fact that projects supported through the Fund involve both USF funds and non-USF funds, and given that money is fungible, should our proposed rule prohibit the use of any USF funds on any project where equipment or services produced or provided by a company posing a national security threat to the integrity of communications networks or the communications supply chain is being purchased or obtained?

    17. Effective Date. We make clear that our proposed rule or any alternative to restricting the use of USF funds that we adopt in this proceeding would apply only prospectively and seek comment on when the proposed rule should become effective. How long would USF recipients need to begin compliance with the rule? Should we consider phasing in the proposed rule for certain USF programs before others? Are there special considerations for schools, libraries, and rural health care facilities, which may not be as well-positioned as a carrier receiving USF support to know whether the services and/or equipment they purchase with USF support are being provided by an entity that pose a supply chain integrity risk? Should we consider a later effective date for smaller USF recipients? Should we consider a phase-in period for certain programs, USF recipients, or equipment or services? If so, please describe. We seek comment on these and other issues we should consider in setting the effective date for our proposal.

    18. Multiyear Contracts. How should the proposed rule affect multiyear contracts or contracts with voluntary extensions between USF recipients and companies identified as posing a supply chain integrity risk, if any such contracts exist? Should we consider grandfathering contracts that are currently in place for legal, cost, or other reasons? Should the proposed rule apply if a USF recipient has entered into a contract to purchase equipment or services from a company identified as posing a supply chain integrity risk, but the USF recipient has not received installation of equipment at the time that the proposed rule would go into effect? Should these contracts be grandfathered? If we do grandfather contracts, should we only grandfather unexpired annual or multiyear contracts, or also grandfather one-year contracts with voluntary extensions? Do relevant contracts include change-of-law or similar provisions that would cover the new rule we are proposing? Would our adoption of the proposed rule trigger any such change-of-law provisions? While the proposed rule would not apply to equipment already in place, as discussed above, we anticipate that rule would extend to upgrades of existing equipment or services. We seek comment on this approach and whether, as a practical matter, USF recipients will be able to purchase equipment and services from non-covered companies that can interoperate with any existing, installed equipment from covered companies.

    B. Identifying Companies That Pose a National Security Threat to the Integrity of Communications Networks or the Communications Supply Chain

    19. We seek comment on how to identify companies that pose a national security threat to the integrity of communications networks or the communications supply chain for purposes of our proposed rule. How should we define the universe of companies covered by our proposed rule (i.e., a covered company)? We seek comment broadly on possible approaches to defining the universe of companies covered by our proposed rule.

    20. One approach is for the Commission to establish the criteria for identifying a covered company. How should the Commission determine such criteria? One possible option would be to draw from the Spectrum Act of 2012, the NDAA, and pending legislation, and define a company covered by our proposed rule as (1) any company that has been prohibited from bidding on a contract, participating in an auction, or receiving a grant by any agency of the Federal Government, for reasons of national security, or (2) any company from which any agency of the Federal Government has been prohibited by Congress from procuring or obtaining any equipment, system, or service that uses telecommunications equipment or services provided by that company as a substantial or essential component of any system, or as critical technology as part of any system. We seek comment on this potential approach and any alternatives. If we adopt this approach, how would USF recipients learn which companies are covered? Should the Commission or another federal agency maintain a list of companies that meet these criteria? Regardless of which agency maintains such a list, how can we ensure that other federal agencies inform the Commission when a company satisfies the criteria to be a covered company? Would other federal agencies inform the Commission when they prohibit a company from bidding on a contract, participating in an auction, or receiving a grant for national security reasons, or when they remove such a prohibition? Should we assume that such concerns sunset after some period of time (e.g., three years) unless prohibitions are renewed by a federal agency or by Congress? Or should we assume that such concerns remain indefinitely until the relevant agency or Congress has affirmatively reversed course?

    21. Another possible approach is for the Commission to rely on existing statutes listing companies barred from providing certain equipment or services to federal agencies for national security reasons. Under such an approach, for example, we could define covered companies as those specifically barred by the National Defense Authorization Act from providing a substantial or essential component, or critical technology, of any system, to any federal agency or component thereof. We note that the 2018 Act includes such a prohibition for certain entities. Or we could define covered companies as those that the National Defense Authorization Act specifically bars from developing or providing equipment or services, of any kind listed in the NDAA, to be used, obtained, or procured by any federal agency or component thereof. What are the advantages and disadvantages of relying on the terms of an existing statute rather than using an approach that necessitates a list of covered companies that may change over time? Does one approach entail lower compliance costs for recipients of USF funds, either in terms of effort or actual dollars spent? Which approach is best suited to ensuring that USF funds are not spent on equipment or services supplied by entities that pose a threat to the integrity of communications networks or the communications supply chain? Which approach best balances that goal with our mission to ensure that all Americans have access to communications services and our desire to minimize compliance costs for recipients of USF support?

    22. Another potential approach to identifying the universe of companies covered by our proposed rule is for a federal agency other than the Commission to maintain a list of communications equipment or service providers that raise national security concerns regarding the integrity of communications networks or the communications supply chain. We seek comment on whether a list specifying the companies that should be covered under our proposed rule is already available to the public. If not, we seek comment on which agency or agencies should develop and maintain a publicly available list of such suppliers. For example, should a federal agency within the Executive Branch that regularly deals with national security risks create and maintain such a list? As an alternative, should the Commission or USAC, under the direction of the Commission, do so? What are the benefits and drawbacks of the Commission or another federal agency creating and maintaining such a list?

    23. We note that it is not uncommon for federal agencies to maintain a list of prohibited providers. For example, the General Services Administration maintains a public System for Award Management (SAM) database, although it does not include some of the foreign telecommunications equipment providers that Congress has identified as potential threats to national security, and also includes companies barred from federal contracting for reasons other than national security. And while other agencies, including the State Department, the Commerce Department, and the Treasury Department, maintain publicly-accessible databases which may be more focused than the SAM on companies identified as threats to national security, the databases are generally designed for export controls, rather than for domestic considerations. Therefore, are there other sources that would be instructive here?

    24. Compliance Matters. Regardless of which approach we adopt, we seek comment on how to ensure that USF recipients (especially smaller USF recipients, including schools, libraries, and rural health care facilities) can learn which companies fall within the scope of our proposed rule. Are there other compliance issues we should consider, particularly for smaller USF recipients?

    25. Application of Proposed Rule to Subsidiaries, Parents, and/or Affiliates. Should a covered company's subsidiaries, parents, and/or affiliates be treated as covered, too? If so, how should we define parents, subsidiaries, and affiliates? What are the arguments for and against treating a covered company's subsidiaries, parents, and/or affiliates as covered by our proposed rule? How should we treat instances of “white labeling,” where a covered company may provide equipment or services to a third-party entity for sale under that third party's brand?

    C. Enforcement

    26. We seek comment on how to enforce our proposed rule. We expect that USF recipients would comply with the rule and that USAC, through periodic audits, would be able to confirm such compliance. We also note that all USF recipients are required to maintain records demonstrating that they use the support in the manner in which it is intended to be used. If a recipient of USF support is found to have violated our proposed rule, what steps should we take in response? Are there any mitigating factors we should consider when taking such responsive steps?

    27. We seek comment on how USAC should recover funds disbursed in violation of the proposed rule. While under the High-Cost, Lifeline, and Rural Health Care programs funds are always disbursed to service providers, support disbursed under the E-Rate program may be distributed to either a service provider or to an eligible school or library. When USAC determines that E-Rate funding has been improperly disbursed and should be recovered, USAC must consider which party was in a better position to prevent a violation of E-Rate program rules, and which party committed the act or omission that forms the basis for the violation. For some rule violations, the beneficiary and service provider may share responsibility. We seek comment on which party, in the E-Rate context, is in the best position to anticipate and prevent violations of our proposed rule, and thus, which party should be held liable for the recovery of disbursed funds should such a violation occur. Should providers be held liable for the recovery of disbursed funds in all instances when a violation of our proposed rule has occurred? How can non-provider recipients of USF support, such as school districts or libraries, determine whether their service provider has purchased prohibited services or equipment?

    28. Upon finding a violation, are there additional penalties we should impose beyond loss of funding and potential forfeitures under Section 503 of the Act? What form would such penalties take? For instance, should parties who are found to have violated our proposed rule be suspended or permanently barred from receiving USF support? What other considerations should we take into account in the context of enforcing our proposed rule?

    29. Notwithstanding these safeguards, we seek comment on any other steps we should take to ensure compliance with our proposed rule. For example, should we make changes to any of the relevant forms submitted by USF applicants or recipients (e.g., by adding a certification)? Or should we require a separate certification? Who should make the certification and how often should it be filed? In instances where an applicant for USF support is not a service provider—such as when eligible schools and libraries receive discounts under the E-Rate program, or when health care providers receive support via the Rural Health Care program—should the applicant be required to make such a certification, or should the certification be made by the service provider that has knowledge of and control over its network? Does it matter whether the applicant is seeking to purchase and install equipment itself or whether it is purchasing services from another entity?

    30. We also seek comment on how potential bidders complied with the national security certification required by the Spectrum Act and the Commission's implementing regulations. While those provisions do not apply here, the experience of potential bidders may nevertheless be instructive. Are there practical lessons to be learned from that process? How did the certification requirement affect smaller and first-time bidders? Should we require a certification by USF recipients that they are not using USF support to pay for services or equipment from covered sources, analogous to the Commission's certification requirements for bidders in the broadcast incentive auction?

    D. Other National Security Steps

    31. We also seek comment on other steps we should consider taking to the extent we identify companies that pose a national security threat to the integrity of communications networks or the communications supply chain. Should we consider actions targeted not only at the USF-funded equipment or services of those companies, but also non USF-funded equipment or services produced or provided by those companies that might pose the same or similar national security threats to the nation's communications networks? Should we consider actions in addition or as an alternative to restricting the use of USF support? For instance, do commenters believe that there are testing regimes, showings, or steps concerning the removal or prospective deployment of equipment that we should consider? If so, we seek comment on the scope and extent of our legal authority to take any such actions to address national security threats to the integrity of communications networks and the communications supply chain.

    E. Waiver

    32. We seek comment on whether and how applicants for USF support may seek a waiver of our proposed rule. In general, the Commission's rules may be waived for “good cause.” Should we establish a separate process from our general waiver provision for waivers of our proposed rule? If we provide such a waiver process, how should it function? Should we require a higher standard than good cause for granting waivers, such as “extraordinary circumstances?” The Commission has required a higher standard for waiver in certain circumstances. For example, the E-Rate program invoicing rules may only be waived “in extraordinary circumstances.” Who should have the authority to grant a waiver, and under what circumstances?

    F. Costs and Benefits

    33. We seek comment on the costs and benefits of our proposed rule. Does our proposed rule promote our goals of ensuring that USF funds are used consistently with our national security interests while simultaneously continuing our universal service mission of making communications services available to all Americans? Does this proposed rule improve our ability to safeguard the country's telecommunications networks from potential security risks? How can we quantify any such benefit to national security? Are there alternative approaches that would better protect the security of the nation's communications networks at a lower cost?

    34. What are the potential costs associated with our proposed rule to USF recipients, the Fund, end users, consumers, the public safety and law enforcement community, the Commission, or other federal agencies? Does this proposed rule affect our continuing goal of ensuring that all Americans have access to communications services? If so, how? How do covered companies' equipment and services perform relative to equipment and services of companies unaffected by the proposed rule? What is the cost difference to USF recipients between equipment and services that may be covered by the proposed rule and those that are not? How many USF recipients purchase equipment or services from companies that pose a threat to our national security? Do the potential benefits of our proposal to national security outweigh any possible costs? How can we achieve our goal of addressing national security threats to communications networks and the communications supply chain while minimizing the impact on carriers seeking to deploy broadband to unserved or underserved areas? Specifically, we seek comment on the impact of our proposed rule on small businesses, as well as any modifications or alternatives that might ease the burden of this proposed rule on small businesses. We seek comment on the impact of our proposed rule on small and rural carriers in particular. Commenters should discuss the effectiveness of the proposed rule or any alternative and provide any quantitative or qualitative data to demonstrate the potential impact of the proposed rule or any alternative on network deployment and services offered by small and rural carriers and on their subscribers. Additionally, one important element of our cost-benefit analysis is understanding how widely the equipment and services that may be covered by our proposed rule are deployed. Therefore, we seek comment on this issue. For example, to what extent have small and rural carriers relied on equipment or services from companies that may be covered by our proposed rule? If so, we seek comment on specific instances and details on the use of equipment or services from such companies.

    G. Legal Authority

    35. We believe that Sections 201(b) and 254 of the Act provide ample legal authority for the rule we propose today. Section 201(b) gives the Commission the authority to promulgate “such rules and regulations as may be necessary in the public interest to carry out the provisions of this Act.” And Section 254 requires that USF recipients “shall use that support only for the provision, maintenance, and upgrading of facilities and services for which the support is intended.” In the USF/ICC Transformation Order, the Commission interpreted this language as providing it with the authority to designate the services for which USF support will be provided and to “encourage the deployment of the types of facilities that will best achieve the principles set forth in section 254(b).” The Tenth Circuit affirmed this interpretation in In re FCC 11-161, 753 F.3d 1015, 1046-47 (10th Cir. 2014). Among these principles are “[q]uality services . . . available at just, reasonable, and affordable rates,” “[a]ccess to advanced telecommunications and information services . . . in all regions of the Nation,” and “other principles” that are “necessary and appropriate for the protection of the public interest, convenience, and necessity. . . .” Moreover, the Commission has the discretion to define the services supported by USF, and to “consider the extent to which such telecommunications services . . . are consistent with the public interest, convenience, and necessity.” As the Tenth Circuit has explained, “nothing in the statute limits the FCC's authority to place conditions . . . on the use of USF funds.” As such, we believe the condition on the use of USF funds that we propose here is within our authority. We seek comment on this view.

    36. We believe that the promotion of national security is consistent with the public interest, and that USF funds should be used to deploy infrastructure and provide services that do not undermine our national security. Indeed, Congress similarly determined that promoting the national defense is an important public interest in Section 1 of the Act, which describes the development of a “Nation-wide . . . wire and radio communication service, for the purpose of the national defense” as one of the reasons for establishing the Commission. Would adopting our proposed rule be equivalent to establishing a new definition of the “evolving level of telecommunications services” that are supported by USF mechanisms under Section 254(c)(1)? Are there other statutory provisions that affect USF recipients' obligations with respect to the security of their networks, or other sources of legal authority on which we should rely?

    IV. Initial Regulatory Flexibility Analysis

    37. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on a substantial number of small entities by the policies and rules proposed in the Notice of Proposed Rulemaking (NPRM). Written comments are requested on this IRFA. Comments must be identified as responses to the IRFA and must be filed by the deadlines for comments on the NPRM provided in the DATES section of the item. The Commission will send a copy of the NPRM, including this IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).

    A. Need for, and Objectives of, the Proposed Rules

    38. Consistent with our obligation to be responsible stewards of the public funds used in the Universal Service Fund (USF) programs and increasing concern about ensuring communications supply chain integrity, the NPRM proposes and seeks comment on a rule designed to ensure that USF support is not spent on equipment or services from companies that pose a national security threat to communications networks or the communications supply chain.

    B. Legal Basis

    39. The proposed action is authorized under Sections 1-4, 201(b), and 254 of the Communications Act of 1934, as amended, 47 U.S.C. 151-154, 201(b), and 254.

    C. Description and Estimate of the Number of Small Entities to Which the Proposed Rules Will Apply

    40. 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 that: (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).

    41. Small Businesses, Small Organizations, Small Governmental Jurisdictions. Our actions, over time, may affect small entities that are not easily categorized at present. We therefore describe 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.

    42. 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).

    43. 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 show that the majority of these governments have populations of less than 50,000. Based on this data we estimate that at least 49,316 local government jurisdictions fall in the category of “small governmental jurisdictions.”

    44. Small entities potentially affected by the proposals herein include eligible schools and libraries, eligible rural non-profit and public health care providers, and the eligible service providers offering them services, including telecommunications service providers, internet Service Providers (ISPs), and vendors of the services and equipment used for telecommunications and broadband networks.

    1. Schools and Libraries

    45. As noted, “small entity” includes non-profit and small government entities. Under the schools and libraries universal service support mechanism, which provides support for elementary and secondary schools and libraries, an elementary school is generally “a non-profit institutional day or residential school, that provides elementary education, as determined under state law.” A secondary school is generally defined as “a non-profit institutional day or residential school, that provides secondary education, as determined under state law,” and not offering education beyond grade 12. A library includes “(1) a public library, (2) a public elementary school or secondary school library, (3) an academic library, (4) a research library . . . , and (5) a private library, but only if the state in which such private library is located determines that the library should be considered a library for the purposes of this definition.” For-profit schools and libraries, and schools and libraries with endowments in excess of $50,000,000, are not eligible to receive discounts under the program, nor are libraries whose budgets are not completely separate from any schools. Certain other statutory definitions apply as well. The SBA has defined for-profit, elementary and secondary schools and libraries having $6 million or less in annual receipts as small entities. In funding year 2007, approximately 105,500 schools and 10,950 libraries received funding under the schools and libraries universal service mechanism. Although we are unable to estimate with precision the number of these entities that would qualify as small entities under SBA's size standard, we estimate that fewer than 105,500 schools and 10,950 libraries might be affected annually by our action, under current operation of the program.

    2. Healthcare Providers

    46. Offices of Physicians (except Mental Health Specialists). This U.S. industry comprises establishments of health practitioners having the degree of M.D. (Doctor of Medicine) or D.O. (Doctor of Osteopathy) primarily engaged in the independent practice of general or specialized medicine (except psychiatry or psychoanalysis) or surgery. These practitioners operate private or group practices in their own offices (e.g., centers, clinics) or in the facilities of others, such as hospitals or HMO medical centers. The SBA has created a size standard for this industry, which is annual receipts of $11 million or less. According to 2012 U.S. Economic Census, 152,468 firms operated throughout the entire year in this industry. Of that number, 147,718 had annual receipts of less than $10 million, while 3,108 firms had annual receipts between $10 million and $24,999,999. Based on this data, we conclude that a majority of firms operating in this industry are small under the applicable size standard.

    47. Offices of Physicians, Mental Health Specialists. This U.S. industry comprises establishments of health practitioners having the degree of M.D. (Doctor of Medicine) or D.O. (Doctor of Osteopathy) primarily engaged in the independent practice of psychiatry or psychoanalysis. These practitioners operate private or group practices in their own offices (e.g., centers, clinics) or in the facilities of others, such as hospitals or HMO medical centers. The SBA has established a size standard for businesses in this industry, which is annual receipts of $11 million dollars or less. The U.S. Economic Census indicates that 8,809 firms operated throughout the entire year in this industry. Of that number 8,791 had annual receipts of less than $10 million, while 13 firms had annual receipts between $10 million and $24,999,999. Based on this data, we conclude that a majority of firms in this industry are small under the applicable standard.

    48. Offices of Dentists. This U.S. industry comprises establishments of health practitioners having the degree of D.M.D. (Doctor of Dental Medicine), D.D.S. (Doctor of Dental Surgery), or D.D.Sc. (Doctor of Dental Science) primarily engaged in the independent practice of general or specialized dentistry or dental surgery. These practitioners operate private or group practices in their own offices (e.g., centers, clinics) or in the facilities of others, such as hospitals or HMO medical centers. They can provide either comprehensive preventive, cosmetic, or emergency care, or specialize in a single field of dentistry. The SBA has established a size standard for that industry of annual receipts of $7.5 million or less. The 2012 U.S. Economic Census indicates that 115,268 firms operated in the dental industry throughout the entire year. Of that number 114,417 had annual receipts of less than $5 million, while 651 firms had annual receipts between $5 million and $9,999,999. Based on this data, we conclude that a majority of businesses in the dental industry are small under the applicable standard.

    49. Offices of Chiropractors. This U.S. industry comprises establishments of health practitioners having the degree of DC (Doctor of Chiropractic) primarily engaged in the independent practice of chiropractic. These practitioners provide diagnostic and therapeutic treatment of neuromusculoskeletal and related disorders through the manipulation and adjustment of the spinal column and extremities, and operate private or group practices in their own offices (e.g., centers, clinics) or in the facilities of others, such as hospitals or HMO medical centers. The SBA has established a size standard for this industry, which is annual receipts of $7.5 million or less. The 2012 U.S. Economic Census statistics show that 33,940 firms operated throughout the entire year. Of that number 33,910 operated with annual receipts of less than $5 million per year, while 26 firms had annual receipts between $5 million and $9,999,999. Based on that data, we conclude that a majority of chiropractors are small.

    50. Offices of Optometrists. This U.S. industry comprises establishments of health practitioners having the degree of OD (Doctor of Optometry) primarily engaged in the independent practice of optometry. These practitioners examine, diagnose, treat, and manage diseases and disorders of the visual system, the eye and associated structures as well as diagnose related systemic conditions. Offices of optometrists prescribe and/or provide eyeglasses, contact lenses, low vision aids, and vision therapy. They operate private or group practices in their own offices (e.g., centers, clinics) or in the facilities of others, such as hospitals or HMO medical centers, and may also provide the same services as opticians, such as selling and fitting prescription eyeglasses and contact lenses. The SBA has established a size standard for businesses operating in this industry, which is annual receipts of $7.5 million or less. The 2012 Economic Census indicates that 18,050 firms operated the entire year. Of that number, 17,951 had annual receipts of less than $5 million, while 70 firms had annual receipts between $5 million and $9,999,999. Based on this data, we conclude that a majority of optometrists in this industry are small.

    51. Offices of Mental Health Practitioners (except Physicians). This U.S. industry comprises establishments of independent mental health practitioners (except physicians) primarily engaged in (1) the diagnosis and treatment of mental, emotional, and behavioral disorders and/or (2) the diagnosis and treatment of individual or group social dysfunction brought about by such causes as mental illness, alcohol and substance abuse, physical and emotional trauma, or stress. These practitioners operate private or group practices in their own offices (e.g., centers, clinics) or in the facilities of others, such as hospitals or HMO medical centers. The SBA has created a size standard for this industry, which is annual receipts of $7.5 million or less. The 2012 U.S. Economic Census indicates that 16,058 firms operated throughout the entire year. Of that number, 15,894 firms received annual receipts of less than $5 million, while 111 firms had annual receipts between $5 million and $9,999,999. Based on this data, we conclude that a majority of mental health practitioners who do not employ physicians are small.

    52. Offices of Physical, Occupational and Speech Therapists and Audiologists. This U.S. industry comprises establishments of independent health practitioners primarily engaged in one of the following: (1) Providing physical therapy services to patients who have impairments, functional limitations, disabilities, or changes in physical functions and health status resulting from injury, disease or other causes, or who require prevention, wellness or fitness services; (2) planning and administering educational, recreational, and social activities designed to help patients or individuals with disabilities, regain physical or mental functioning or to adapt to their disabilities; and (3) diagnosing and treating speech, language, or hearing problems. These practitioners operate private or group practices in their own offices (e.g., centers, clinics) or in the facilities of others, such as hospitals or HMO medical centers. The SBA has established a size standard for this industry, which is annual receipts of $7.5 million or less. The 2012 U.S. Economic Census indicates that 20,567 firms in this industry operated throughout the entire year. Of that number, 20,047 had annual receipts of less than $5 million, while 270 firms had annual receipts between $5 million and $9,999,999. Based on this data, we conclude that a majority of businesses in this industry are small.

    53. Offices of Podiatrists. This U.S. industry comprises establishments of health practitioners having the degree of D.P.M. (Doctor of Podiatric Medicine) primarily engaged in the independent practice of podiatry. These practitioners diagnose and treat diseases and deformities of the foot and operate private or group practices in their own offices (e.g., centers, clinics) or in the facilities of others, such as hospitals or HMO medical centers. The SBA has established a size standard for businesses in this industry, which is annual receipts of $7.5 million or less. The 2012 U.S. Economic Census indicates that 7,569 podiatry firms operated throughout the entire year. Of that number, 7,545 firms had annual receipts of less than $5 million, while 22 firms had annual receipts between $5 million and $9,999,999. Based on this data, we conclude that a majority of firms in this industry are small.

    54. Offices of All Other Miscellaneous Health Practitioners. This U.S. industry comprises establishments of independent health practitioners (except physicians; dentists; chiropractors; optometrists; mental health specialists; physical, occupational, and speech therapists; audiologists; and podiatrists). These practitioners operate private or group practices in their own offices (e.g., centers, clinics) or in the facilities of others, such as hospitals or HMO medical centers. The SBA has established a size standard for this industry, which is annual receipts of $7.5 million or less. The 2012 U.S. Economic Census indicates that 11,460 firms operated throughout the entire year. Of that number, 11,374 firms had annual receipts of less than $5 million, while 48 firms had annual receipts between $5 million and $9,999,999. Based on this data, we conclude the majority of firms in this industry are small.

    55. Family Planning Centers. This U.S. industry comprises establishments with medical staff primarily engaged in providing a range of family planning services on an outpatient basis, such as contraceptive services, genetic and prenatal counseling, voluntary sterilization, and therapeutic and medically induced termination of pregnancy. The SBA has established a size standard for this industry, which is annual receipts of $11 million or less. The 2012 Economic Census indicates that 1,286 firms in this industry operated throughout the entire year. Of that number 1,237 had annual receipts of less than $10 million, while 36 firms had annual receipts between $10 million and $24,999,999. Based on this data, we conclude that the majority of firms in this industry are small.

    56. Outpatient Mental Health and Substance Abuse Centers. This U.S. industry comprises establishments with medical staff primarily engaged in providing outpatient services related to the diagnosis and treatment of mental health disorders and alcohol and other substance abuse. These establishments generally treat patients who do not require inpatient treatment. They may provide a counseling staff and information regarding a wide range of mental health and substance abuse issues and/or refer patients to more extensive treatment programs, if necessary. The SBA has established a size standard for this industry, which is $15 million or less in annual receipts. The 2012 U.S. Economic Census indicates that 4,446 firms operated throughout the entire year. Of that number, 4,069 had annual receipts of less than $10 million while 286 firms had annual receipts between $10 million and $24,999,999. Based on this data, we conclude that a majority of firms in this industry are small.

    57. HMO Medical Centers. This U.S. industry comprises establishments with physicians and other medical staff primarily engaged in providing a range of outpatient medical services to the health maintenance organization (HMO) subscribers with a focus generally on primary health care. These establishments are owned by the HMO. Included in this industry are HMO establishments that both provide health care services and underwrite health and medical insurance policies. The SBA has established a size standard for this industry, which is $32.5 million or less in annual receipts. The 2012 U.S. Economic Census indicates that 14 firms in this industry operated throughout the entire year. Of that number, 5 firms had annual receipts of less than $25 million, while 1 firm had annual receipts between $25 million and $99,999,999. Based on this data, we conclude that approximately one-third of the firms in this industry are small.

    58. Freestanding Ambulatory Surgical and Emergency Centers. This U.S. industry comprises establishments with physicians and other medical staff primarily engaged in (1) providing surgical services (e.g., orthoscopic and cataract surgery) on an outpatient basis or (2) providing emergency care services (e.g., setting broken bones, treating lacerations, or tending to patients suffering injuries as a result of accidents, trauma, or medical conditions necessitating immediate medical care) on an outpatient basis. Outpatient surgical establishments have specialized facilities, such as operating and recovery rooms, and specialized equipment, such as anesthetic or X-ray equipment. The SBA has established a size standard for this industry, which is annual receipts of $15 million or less. The 2012 U.S. Economic Census indicates that 3,595 firms in this industry operated throughout the entire year. Of that number, 3,222 firms had annual receipts of less than $10 million, while 289 firms had annual receipts between $10 million and $24,999,999. Based on this data, we conclude that a majority of firms in this industry are small.

    59. All Other Outpatient Care Centers. This U.S. industry comprises establishments with medical staff primarily engaged in providing general or specialized outpatient care (except family planning centers, outpatient mental health and substance abuse centers, HMO medical centers, kidney dialysis centers, and freestanding ambulatory surgical and emergency centers). Centers or clinics of health practitioners with different degrees from more than one industry practicing within the same establishment (i.e., Doctor of Medicine and Doctor of Dental Medicine) are included in this industry. The SBA has established a size standard for this industry, which is annual receipts of $20.5 million or less. The 2012 U.S. Economic Census indicates that 4,903 firms operated in this industry throughout the entire year. Of this number, 4,269 firms had annual receipts of less than $10 million, while 389 firms had annual receipts between $10 million and $24,999,999. Based on this data, we conclude that a majority of firms in this industry are small.

    60. Blood and Organ Banks. This U.S. industry comprises establishments primarily engaged in collecting, storing, and distributing blood and blood products and storing and distributing body organs. The SBA has established a size standard for this industry, which is annual receipts of $32.5 million or less. The 2012 U.S. Economic Census indicates that 314 firms operated in this industry throughout the entire year. Of that number, 235 operated with annual receipts of less than $25 million, while 41 firms had annual receipts between $25 million and $49,999,999. Based on this data, we conclude that approximately three-quarters of firms that operate in this industry are small.

    61. All Other Miscellaneous Ambulatory Health Care Services. This U.S. industry comprises establishments primarily engaged in providing ambulatory health care services (except offices of physicians, dentists, and other health practitioners; outpatient care centers; medical and diagnostic laboratories; home health care providers; ambulances; and blood and organ banks). The SBA has established a size standard for this industry, which is annual receipts of $15 million or less. The 2012 U.S. Economic Census indicates that 2,429 firms operated in this industry throughout the entire year. Of that number, 2,318 had annual receipts of less than $10 million, while 56 firms had annual receipts between $10 million and $24,999,999. Based on this data, we conclude that a majority of the firms in this industry are small.

    62. Medical Laboratories. This U.S. industry comprises establishments known as medical laboratories primarily engaged in providing analytic or diagnostic services, including body fluid analysis, generally to the medical profession or to the patient on referral from a health practitioner. The SBA has established a size standard for this industry, which is annual receipts of $32.5 million or less. The 2012 U.S. Economic Census indicates that 2,599 firms operated in this industry throughout the entire year. Of this number, 2,465 had annual receipts of less than $25 million, while 60 firms had annual receipts between $25 million and $49,999,999. Based on this data, we conclude that a majority of firms that operate in this industry are small.

    63. Diagnostic Imaging Centers. This U.S. industry comprises establishments known as diagnostic imaging centers primarily engaged in producing images of the patient generally on referral from a health practitioner. The SBA has established size standard for this industry, which is annual receipts of $15 million or less. The 2012 U.S. Economic Census indicates that 4,209 firms operated in this industry throughout the entire year. Of that number, 3,876 firms had annual receipts of less than $10 million, while 228 firms had annual receipts between $10 million and $24,999,999. Based on this data, we conclude that a majority of firms that operate in this industry are small.

    64. Home Health Care Services. This U.S. industry comprises establishments primarily engaged in providing skilled nursing services in the home, along with a range of the following: Personal care services; homemaker and companion services; physical therapy; medical social services; medications; medical equipment and supplies; counseling; 24-hour home care; occupation and vocational therapy; dietary and nutritional services; speech therapy; audiology; and high-tech care, such as intravenous therapy. The SBA has established a size standard for this industry, which is annual receipts of $15 million or less. The 2012 U.S. Economic Census indicates that 17,770 firms operated in this industry throughout the entire year. Of that number, 16,822 had annual receipts of less than $10 million, while 590 firms had annual receipts between $10 million and $24,999,999. Based on this data, we conclude that a majority of firms that operate in this industry are small.

    65. Ambulance Services. This U.S. industry comprises establishments primarily engaged in providing transportation of patients by ground or air, along with medical care. These services are often provided during a medical emergency but are not restricted to emergencies. The vehicles are equipped with lifesaving equipment operated by medically trained personnel. The SBA has established a size standard for this industry, which is annual receipts of $15 million or less. The 2012 U.S. Economic Census indicates that 2,984 firms operated in this industry throughout the entire year. Of that number, 2,926 had annual receipts of less than $15 million, while 133 firms had annual receipts between $10 million and $24,999,999. Based on this data, we conclude that a majority of firms in this industry are small.

    66. Kidney Dialysis Centers. This U.S. industry comprises establishments with medical staff primarily engaged in providing outpatient kidney or renal dialysis services. The SBA has established a size standard for this industry, which is annual receipts of $38.5 million or less. The 2012 U.S. Economic Census indicates that 396 firms operated in this industry throughout the entire year. Of that number, 379 had annual receipts of less than $25 million, while 7 firms had annual receipts between $25 million and $49,999,999. Based on this data, we conclude that a majority of firms in this industry are small.

    67. General Medical and Surgical Hospitals. This U.S. industry comprises establishments known and licensed as general medical and surgical hospitals primarily engaged in providing diagnostic and medical treatment (both surgical and nonsurgical) to inpatients with any of a wide variety of medical conditions. These establishments maintain inpatient beds and provide patients with food services that meet their nutritional requirements. These hospitals have an organized staff of physicians and other medical staff to provide patient care services. These establishments usually provide other services, such as outpatient services, anatomical pathology services, diagnostic X-ray services, clinical laboratory services, operating room services for a variety of procedures, and pharmacy services. The SBA has established a size standard for this industry, which is annual receipts of $38.5 million or less. The 2012 U.S. Economic Census indicates that 2,800 firms operated in this industry throughout the entire year. Of that number, 877 has annual receipts of less than $25 million, while 400 firms had annual receipts between $25 million and $49,999,999. Based on this data, we conclude that approximately one-quarter of firms in this industry are small.

    68. Psychiatric and Substance Abuse Hospitals. This U.S. industry comprises establishments known and licensed as psychiatric and substance abuse hospitals primarily engaged in providing diagnostic, medical treatment, and monitoring services for inpatients who suffer from mental illness or substance abuse disorders. The treatment often requires an extended stay in the hospital. These establishments maintain inpatient beds and provide patients with food services that meet their nutritional requirements. They have an organized staff of physicians and other medical staff to provide patient care services. Psychiatric, psychological, and social work services are available at the facility. These hospitals usually provide other services, such as outpatient services, clinical laboratory services, diagnostic X-ray services, and electroencephalograph services. The SBA has established a size standard for this industry, which is annual receipts of $38.5 million or less. The 2012 U.S. Economic Census indicates that 404 firms operated in this industry throughout the entire year. Of that number, 185 had annual receipts of less than $25 million, while 107 firms had annual receipts between $25 million and $49,999,999. Based on this data, we conclude that more than one-half of the firms in this industry are small.

    69. Specialty (Except Psychiatric and Substance Abuse) Hospitals. This U.S. industry consists of establishments known and licensed as specialty hospitals primarily engaged in providing diagnostic, and medical treatment to inpatients with a specific type of disease or medical condition (except psychiatric or substance abuse). Hospitals providing long-term care for the chronically ill and hospitals providing rehabilitation, restorative, and adjustive services to physically challenged or disabled people are included in this industry. These establishments maintain inpatient beds and provide patients with food services that meet their nutritional requirements. They have an organized staff of physicians and other medical staff to provide patient care services. These hospitals may provide other services, such as outpatient services, diagnostic X-ray services, clinical laboratory services, operating room services, physical therapy services, educational and vocational services, and psychological and social work services. The SBA has established a size standard for this industry, which is annual receipts of $38.5 million or less. The 2012 U.S. Economic Census indicates that 346 firms operated in this industry throughout the entire year. Of that number, 146 firms had annual receipts of less than $25 million, while 79 firms had annual receipts between $25 million and $49,999,999. Based on this data, we conclude that more than one-half of the firms in this industry are small.

    70. Emergency and Other Relief Services. This industry comprises establishments primarily engaged in providing food, shelter, clothing, medical relief, resettlement, and counseling to victims of domestic or international disasters or conflicts (e.g., wars). The SBA has established a size standard for this industry which is annual receipts of $32.5 million or less. The 2012 U.S. Economic Census indicates that 541 firms operated in this industry throughout the entire year. Of that number, 509 had annual receipts of less than $25 million, while 7 firms had annual receipts between $25 million and $49,999,999. Based on this data, we conclude that a majority of firms in this industry are small.

    3. Providers of Telecommunications and Other Services a. Telecommunications Service Providers

    71. Incumbent Local Exchange Carriers (LECs). Neither the Commission nor the SBA has developed a small business size standard specifically for incumbent local exchange services. The closest applicable NAICS Code category is Wired Telecommunications Carriers and under the SBA size standard, such a business is small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2012 indicates that 3,117 firms operated during that year. Of this total, 3,083 operated with fewer than 1,000 employees. Consequently, the Commission estimates that most providers of incumbent local exchange service are small businesses that may be affected by our actions. According to Commission data, one thousand three hundred and seven (1,307) Incumbent Local Exchange Carriers reported that they were incumbent local exchange service providers. Of this total, an estimated 1,006 have 1,500 or fewer employees. Thus using the SBA's size standard the majority of Incumbent LECs can be considered small entities.

    72. Interexchange Carriers (IXCs). Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to providers of interexchange services (IXCs). The closest NAICS Code category is Wired Telecommunications Carriers and the applicable size standard under SBA rules consists of all such companies having 1,500 or fewer employees. U.S. Census Bureau data for 2012 indicates that 3,117 firms operated during that year. Of that number, 3,083 operated with fewer than 1,000 employees. According to internally developed Commission data, 359 companies reported that their primary telecommunications service activity was the provision of interexchange services. Of this total, an estimated 317 have 1,500 or fewer employees. Consequently, the Commission estimates that the majority of interexchange service providers that may be affected are small entities.

    73. Competitive Access Providers. Neither the Commission nor the SBA has developed a definition of small entities specifically applicable to competitive access services providers (CAPs). The closest applicable definition under the SBA rules is Wired Telecommunications Carriers and under the size standard, such a business is small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2012 indicates that 3,117 firms operated during that year. Of that number, 3,083 operated with fewer than 1,000 employees. Consequently, the Commission estimates that most competitive access providers are small businesses that may be affected by our actions. According to Commission data the 2010 Trends in Telephone Report, 1,442 CAPs and competitive local exchange carriers (competitive LECs) reported that they were engaged in the provision of competitive local exchange services. Of these 1,442 CAPs and competitive LECs, an estimated 1,256 have 1,500 or fewer employees and 186 have more than 1,500 employees. Consequently, the Commission estimates that most providers of competitive exchange services are small businesses.

    74. Operator Service Providers (OSPs). Neither the Commission nor the SBA has developed a small business size standard specifically for operator service providers. The appropriate category for Operator Service Providers is the category Wired Telecommunications Carriers. Under that size standard, such a business is small if it has 1,500 or fewer employees. Census Bureau data for 2012 show that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small. According to Commission data, 33 carriers have reported that they are engaged in the provision of operator services. Of these, an estimated 31 have 1,500 or fewer employees and two have more than 1,500 employees. Consequently, the Commission estimates that the majority of OSPs are small entities that may be affected by the rules proposed.

    75. Local Resellers. The SBA has not developed a small business size standard specifically for Local Resellers. The SBA category of Telecommunications Resellers is the closest NAICs code category for local resellers. The Telecommunications Resellers industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. Mobile virtual network operators (MVNOs) are included in this industry. Under the SBA's size standard, such a business is small if it has 1,500 or fewer employees. 2012 Census Bureau data show that 1,341 firms provided resale services during that year. Of that number, all operated with fewer than 1,000 employees. Thus, under this category and the associated small business size standard, the majority of these resellers can be considered small entities. According to Commission data, 213 carriers have reported that they are engaged in the provision of local resale services. Of these, an estimated 211 have 1,500 or fewer employees and two have more than 1,500 employees. Consequently, the Commission estimates that the majority of local resellers are small entities that may be affected by the rules adopted.

    76. Toll Resellers. The Commission has not developed a definition for Toll Resellers. The closest NAICS Code Category is Telecommunications Resellers. The Telecommunications Resellers industry comprises establishments engaged in purchasing access and network capacity from owners and operators of telecommunications networks and reselling wired and wireless telecommunications services (except satellite) to businesses and households. Establishments in this industry resell telecommunications; they do not operate transmission facilities and infrastructure. MVNOs are included in this industry. The SBA has developed a small business size standard for the category of Telecommunications Resellers. Under that size standard, such a business is small if it has 1,500 or fewer employees. 2012 Census Bureau data show that 1,341 firms provided resale services during that year. Of that number, 1,341 operated with fewer than 1,000 employees. Thus, under this category and the associated small business size standard, the majority of these resellers can be considered small entities. According to Commission data, 881 carriers have reported that they are engaged in the provision of toll resale services. Of this total, an estimated 857 have 1,500 or fewer employees. Consequently, the Commission estimates that the majority of toll resellers are small entities.

    77. Wired Telecommunications Carriers. The U.S. Census Bureau defines this industry as “establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired communications networks. Transmission facilities may be based on a single technology or a combination of technologies. Establishments in this industry use the wired telecommunications network facilities that they operate to provide a variety of services, such as wired telephony services, including VoIP services, wired (cable) audio and video programming distribution, and wired broadband internet services. By exception, establishments providing satellite television distribution services using facilities and infrastructure that they operate are included in this industry.” The SBA has developed a small business size standard for Wired Telecommunications Carriers, which consists of all such companies having 1,500 or fewer employees. U.S. Census data for 2012 show that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Thus, under this size standard, the majority of firms in this industry can be considered small.

    78. Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services. The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census Bureau data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1,000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities.

    79. The Commission's own data—available in its Universal Licensing System—indicate that, as of October 25, 2016, there are 280 Cellular licensees that will be affected by our actions today. The Commission does not know how many of these licensees are small, as the Commission does not collect that information for these types of entities. Similarly, according to internally developed Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service (PCS), and Specialized Mobile Radio (SMR) Telephony services. Of this total, an estimated 261 have 1,500 or fewer employees, and 152 have more than 1,500 employees. Thus, using available data, we estimate that the majority of wireless firms can be considered small.

    80. Common Carrier Paging. As noted, since 2007 the Census Bureau has placed paging providers within the broad economic census category of Wireless Telecommunications Carriers (except Satellite).

    81. In addition, in the Paging Second Report and Order, the Commission adopted a size standard for “small businesses” for purposes of determining their eligibility for special provisions such as bidding credits and installment payments. A small business is an entity that, together with its affiliates and controlling principals, has average gross revenues not exceeding $15 million for the preceding three years. The SBA has approved this definition. An initial auction of Metropolitan Economic Area (“MEA”) licenses was conducted in the year 2000. Of the 2,499 licenses auctioned, 985 were sold. Fifty-seven companies claiming small business status won 440 licenses. A subsequent auction of MEA and Economic Area (“EA”) licenses was held in the year 2001. Of the 15,514 licenses auctioned, 5,323 were sold. One hundred thirty-two companies claiming small business status purchased 3,724 licenses. A third auction, consisting of 8,874 licenses in each of 175 EAs and 1,328 licenses in all but three of the 51 MEAs, was held in 2003. Seventy-seven bidders claiming small or very small business status won 2,093 licenses.

    82. Currently, there are approximately 74,000 Common Carrier Paging licenses. According to the most recent Trends in Telephone Service, 291 carriers reported that they were engaged in the provision of “paging and messaging” services. Of these, an estimated 289 have 1,500 or fewer employees and two have more than 1,500 employees. We estimate that the majority of common carrier paging providers would qualify as small entities under the SBA definition.

    83. Wireless Telephony. Wireless telephony includes cellular, personal communications services, and specialized mobile radio telephony carriers. The closest applicable SBA category is Wireless Telecommunications Carriers (except Satellite) and the appropriate size standard for this category under the SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census Bureau data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had fewer than 1,000 employees and 12 firms has 1,000 employees or more. Thus under this category and the associated size standard, the Commission estimates that a majority of these entities can be considered small. According to Commission data, 413 carriers reported that they were engaged in wireless telephony. Of these, an estimated 261 have 1,500 or fewer employees and 152 have more than 1,500 employees. Therefore, more than half of these entities can be considered small.

    84. Satellite Telecommunications. This category comprises firms “primarily engaged in providing telecommunications services to other establishments in the telecommunications and broadcasting industries by forwarding and receiving communications signals via a system of satellites or reselling satellite telecommunications.” Satellite telecommunications service providers include satellite and earth station operators. The category has a small business size standard of $32.5 million or less in average annual receipts, under SBA rules. For this category, U.S. Census Bureau data for 2012 show that there were a total of 333 firms that operated for the entire year. Of this total, 299 firms had annual receipts of less than $25 million. Consequently, we estimate that the majority of satellite telecommunications providers are small entities.

    85. All Other Telecommunications. The “All Other Telecommunications” category is comprised of establishments that are primarily engaged in providing specialized telecommunications services, such as satellite tracking, communications telemetry, and radar station operation. This industry also includes establishments primarily engaged in providing satellite terminal stations and associated facilities connected with one or more terrestrial systems and capable of transmitting telecommunications to, and receiving telecommunications from, satellite systems. Establishments providing internet services or voice over internet protocol (VoIP) services via client-supplied telecommunications connections are also included in this industry. The SBA has developed a small business size standard for “All Other Telecommunications,” which consists of all such firms with gross annual receipts of $32.5 million or less. For this category, U.S. Census Bureau data for 2012 show that there were 1,442 firms that operated for the entire year. Of these firms, a total of 1,400 had gross annual receipts of less than $25 million and 42 firms had gross annual receipts of $25 million to $49, 999,999. Thus, the Commission estimates that a majority of “All Other Telecommunications” firms potentially affected by our action can be considered small.

    b. Internet Service Providers

    86. Internet Service Providers (Broadband). Broadband internet service providers include wired (e.g., cable, DSL) and VoIP service providers using their own operated wired telecommunications infrastructure fall in the category of Wired Telecommunication Carriers. Wired Telecommunications Carriers are comprised of establishments primarily engaged in operating and/or providing access to transmission facilities and infrastructure that they own and/or lease for the transmission of voice, data, text, sound, and video using wired telecommunications networks. Transmission facilities may be based on a single technology or a combination of technologies. The SBA size standard for this category classifies a business as small if it has 1,500 or fewer employees. U.S. Census Bureau data for 2012 show that there were 3,117 firms that operated that year. Of this total, 3,083 operated with fewer than 1,000 employees. Consequently, under this size standard the majority of firms in this industry can be considered small.

    87. Internet Service Providers (Non-Broadband). internet access service providers such as Dial-up internet service providers, VoIP service providers using client-supplied telecommunications connections and internet service providers using client-supplied telecommunications connections (e.g., dial-up ISPs) fall in the category of All Other Telecommunications. The SBA has developed a small business size standard for All Other Telecommunications which consists of all such firms with gross annual receipts of $32.5 million or less. For this category, U.S. Census Bureau data for 2012 show that there were 1,442 firms that operated for the entire year. Of these firms, a total of 1,400 had gross annual receipts of less than $25 million. Consequently, under this size standard a majority of firms in this industry can be considered small.

    c. Vendors and Equipment Manufacturers

    88. Vendors of Infrastructure Development or “Network Buildout.” The Commission has not developed a small business size standard specifically directed toward manufacturers of network facilities. There are two applicable SBA categories in which manufacturers of network facilities could fall and each have different size standards under the SBA rules. The SBA categories are “Radio and Television Broadcasting and Wireless Communications Equipment” with a size standard of 1,250 employees or less and “Other Communications Equipment Manufacturing” with a size standard of 750 employees or less.” U.S. Census Bureau data for 2012 show that for Radio and Television Broadcasting and Wireless Communications Equipment firms 841 establishments operated for the entire year. Of that number, 828 establishments operated with fewer than 1,000 employees, 7 establishments operated with between 1,000 and 2,499 employees and 6 establishments operated with 2,500 or more employees. For Other Communications Equipment Manufacturing, U.S. Census Bureau data for 2012 show that 383 establishments operated for the year. Of that number 379 firms operated with fewer than 500 employees and 4 had 500 to 999 employees. Based on this data, we conclude that the majority of Vendors of Infrastructure Development or “Network Buildout” are small.

    89. Telephone Apparatus Manufacturing. This industry comprises establishments primarily engaged in manufacturing wire telephone and data communications equipment. These products may be standalone or board-level components of a larger system. Examples of products made by these establishments are central office switching equipment, cordless telephones (except cellular), PBX equipment, telephones, telephone answering machines, LAN modems, multi-user modems, and other data communications equipment, such as bridges, routers, and gateways.” The SBA size standard for Telephone Apparatus Manufacturing is all such firms having 1,250 or fewer employees. According to U.S. Census Bureau data for 2012, there were a total of 266 establishments in this category that operated for the entire year. Of this total, 262 had employment of under 1,000, and an additional 4 had employment of 1,000 to 2,499. Thus, under this size standard, the majority of firms can be considered small.

    90. Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by these establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment. The SBA has established a small business size standard for this industry of 1,250 employees or less. U.S. Census Bureau data for 2012 show that 841 establishments operated in this industry in that year. Of that number, 828 establishments operated with fewer than 1,000 employees, 7 establishments operated with between 1,000 and 2,499 employees and 6 establishments operated with 2,500 or more employees. Based on this data, we conclude that a majority of manufacturers in this industry are small.

    91. Other Communications Equipment Manufacturing. This industry comprises establishments primarily engaged in manufacturing communications equipment (except telephone apparatus, and radio and television broadcast, and wireless communications equipment). Examples of such manufacturing include fire detection and alarm systems manufacturing, Intercom systems and equipment manufacturing, and signals (e.g., highway, pedestrian, railway, traffic) manufacturing. The SBA has established a size for this industry as all such firms having 750 or fewer employees. U.S. Census Bureau data for 2012 show that 383 establishments operated in that year. Of that number 379 operated with fewer than 500 employees and 4 had 500 to 999 employees. Based on this data, we conclude that the majority of Other Communications Equipment Manufacturers are small.

    D. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements for Small Entities

    92. The NPRM proposes a rule that no universal service support may be used to purchase or obtain any equipment or services produced or provided by any company posing a national security threat to the integrity of communications networks or the communications supply chain. We seek comment on this proposal, and its likely costs and benefits, as well as on alternative approaches and any other steps we should consider taking. The NPRM also seeks comment on how broadly this proposed rule should apply, and how it should be implemented. We seek comment on how to enforce the proposed rule, including who should be held liable for the recovery of disbursed funds, and whether and how applicants for USF support may seek a waiver to purchase or continue to use equipment or services provided by a covered entity. Lastly, we seek comment on whether Sections 201(b) and 254 provide legal authority for the proposed rule.

    E. Steps Taken To Minimize the Significant Economic Impact on Small Entities, and Significant Alternatives Considered

    93. The RFA requires an agency to describe any significant, specifically small business, alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) the establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance and reporting requirements under the rule for such small entities; (3) the use of performance rather than design standards; and (4) an exemption from coverage of the rule, or any part thereof, for such small entities.”

    94. In this NPRM, we propose to adopt a rule that no universal service support may be used to purchase or obtain any equipment or services produced or provided by any company posing a national security threat to the integrity of communications networks or the communications supply chain.

    95. The NPRM specifically seeks comment on the impact of such a rule on small entities, particularly small and rural carriers. The NPRM also seeks comment on whether there are any compliance issues we should consider, particularly for smaller USF recipients. The NPRM seeks comment on whether, as a practical matter, USF recipients will be able to purchase equipment and services from non-covered companies that can interoperate with any existing, installed equipment from covered companies.

    96. As the Spectrum Act and its implementing regulations included similar provisions, the NPRM seeks comment on how small businesses complied with those regulations in the context of spectrum auctions administered by the Commission.

    97. The NPRM asks whether there are modifications to our proposed rules that would achieve similar national security objectives, while reducing burdens on small entities. For example, the NPRM asks whether there should be a later effective date for the rule as applied to smaller recipients of USF support. We seek comment on any potential modifications and alternatives that would ease the burden of our proposed rules on small entities.

    98. We expect to take into account the economic impact on small entities, as identified in comments filed in response to the NPRM and this IRFA, in reaching our final conclusions and promulgating rules in this proceeding.

    F. Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rules

    99. None.

    V. Procedural Matters

    100. Ex Parte Rules.—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.

    101. Initial Regulatory Flexibility Analysis.—Pursuant to the Regulatory Flexibility Act (RFA), the Commission has prepared an Initial Regulatory Flexibility Analysis (IRFA) of the possible significant economic impact on small entities of the policies and actions considered in this NPRM. The text of the IRFA is set forth above. 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 on the NPRM. The Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, will send a copy of the NPRM, including the IRFA, to the Chief Counsel for Advocacy of the Small Business Administration.

    102. Paperwork Reduction Act.—This document contains proposed new information collection requirements. The Commission, as part of its continuing effort to reduce paperwork burdens, invites the general public and the Office of Management and Budget 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.

    VI. Ordering Clauses

    104. Accordingly, it is ordered that, pursuant to the authority contained in Sections 1-4, 201(b), and 254 of the Communications Act of 1934, as amended, 47 U.S.C. 151-54, 201(b), and 254, this Notice of Proposed Rulemaking is adopted.

    105. It is further ordered that the Commission's Consumer & 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 54

    Communications common carriers, Reporting and recordkeeping requirements, Telecommunications.

    Federal Communications Commission. Marlene Dortch, Secretary. Office of the Secretary. Proposed Rule

    For the reasons discussed in the preamble, the Federal Communications Commission proposes to amend 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. Add § 54.9 to read as follows:
    § 54.9 Prohibition on use of funds.

    No universal service support may be used to purchase or obtain any equipment or services produced or provided by any company posing a national security threat to the integrity of communications networks or the communications supply chain.

    [FR Doc. 2018-09090 Filed 5-1-18; 8:45 am] BILLING CODE 6712-01-P
    83 85 Wednesday, May 2, 2018 Notices DEPARTMENT OF AGRICULTURE National Institute of Food and Agriculture [Docket No. NIFA-2018-002] Notice of Intent To Revise a Currently Approved Information Collection AGENCY:

    National Institute of Food and Agriculture, USDA.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995 and Office of Management and Budget (OMB) regulations, this notice announces the National Institute of Food and Agriculture's (NIFA's) intention to request approval for an extension of the currently approved information collection for the NIFA proposal review process.

    DATES:

    Written comments on this notice must be received by July 2, 2018 to be assured of consideration. Comments received after that date will be considered to the extent practicable.

    ADDRESSES:

    Written comments concerning this notice and requests for copies of the information collection may be submitted by any of the following methods: Email: rmartin.usda.gov; Fax: 202-720-0857; Mail: Office of Information Technology (OIT), NIFA, USDA, STOP 2216, 1400 Independence Avenue SW, Washington, DC 20250-2216.

    FOR FURTHER INFORMATION CONTACT:

    Robert Martin, eGovernment Program Leader; Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Title of Collection: NIFA Proposal Review Process.

    OMB Control Number: 0524-0041.

    Expiration Date of Current Approval: November 30, 2018.

    Type of Request: Revision of a currently approved information collection for three years.

    Abstract: The National Institute of Food and Agriculture (NIFA) is responsible for performing a review of proposals submitted to NIFA competitive award programs in accordance with section 103(a) of the Agricultural Research, Extension, and Education Reform Act of 1998, 7 U.S.C. 7613(a). Reviews are undertaken to ensure that projects supported by NIFA are of high quality, and are consistent with the goals and requirements of the funding program. Proposals submitted to NIFA undergo a programmatic evaluation to determine worthiness of Federal support. The evaluations consist of a peer panel review and may also entail an assessment by Federal employees and electronically submitted (ad-hoc) reviews in the Peer Review System.

    Need and Use of the Information: As part of our panel process NIFA is required to “maintain a balanced composition of reviewers with regard to minority and female representation and an equitable age distribution”, 7 CFR 3430.33. In addition, the information collected from the form is necessary to show compliance with nondiscrimination laws such as 7 CFR 15. Currently, we do not have a vehicle to collect this information for panelists, as the approved Research & Related Personal Data form, OMB number 4040-0001, is specific to applicants. Thus, we are seeking a revision of the currently approved Research & Related Personal Data form, OMB Number 4040-0001, tailoring it for panelists.

    Once collected, the information would be stored in a secure data base and referenced when recruiting panelists to ensure panels meet diversity requirements as stated in 7 CFR 3430.33. The information would also be aggregated for use in an annual report on the demographics of NIFA's applicants and panelists to ensure compliance and referenced as needed in cases of a discrimination complaint. The data would remain strictly confidential and would only be available to NIFA staff.

    Estimate of Burden: NIFA estimates that between one minute to ten minutes may be required to fill out the form. It is estimated that approximately five minutes are required to fill out the form on average. NIFA estimates it has 2,000 panelists each year. The total annual burden on panelists is 167 hours.

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (b) the accuracy of the Agency's estimate of the burden of the proposed collection of information; (c) ways to enhance the quality, utility and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    All responses to this notice will be summarized and included in the request to OMB for approval. All comments will become a matter of public record.

    Done at Washington, DC, this 25th day of April, 2018. Sonny Ramaswamy, Director, National Institute of Food and Agriculture.
    [FR Doc. 2018-09296 Filed 5-1-18; 8:45 am] BILLING CODE 3410-22-P
    DEPARTMENT OF COMMERCE Bureau of the Census National Advisory Committee AGENCY:

    Bureau of the Census, Department of Commerce.

    ACTION:

    Notice of Advisory Committee charter renewal.

    SUMMARY:

    The Bureau of the Census (U.S. Census Bureau) hereby gives notice that the Secretary of the U.S. Department of Commerce has determined that the charter renewal of the National Advisory Committee on Racial, Ethnic, and Other Populations (NAC) is necessary and in the public interest. The renewed charter can be found on the Census Advisory Committee website at the following URL link: https://www2.census.gov/cac/nac/nac-charter.pdf.

    FOR FURTHER INFORMATION CONTACT:

    Tara Dunlop Jackson, Chief, Advisory Committee Branch, U.S. Census Bureau, 4600 Silver Hill Road, Room 8H177, Washington, DC 20233, 301-763-5222, [email protected]

    SUPPLEMENTARY INFORMATION:

    The NAC advises the Census Bureau's Director on the full range of Census Bureau programs and activities. The NAC provides expertise from the following disciplines: Economic, housing, demographic, socioeconomic, linguistic, technological, methodological, geographic, and behavioral and operational variables affecting the cost, accuracy, and implementation of Census Bureau programs and surveys, including the decennial census.

    The NAC will function solely as an advisory body and in compliance with provisions of the Federal Advisory Committee Act. Pursuant to subsection 9(c) of the Federal Advisory Committee Act, 5 U.S.C., App., as amended, copies of this charter were furnished to the Library of Congress and to the following committees of Congress:

    • Senate Committee on Appropriations;

    • Senate Committee on Commerce, Science and Transportation;

    • Senate Committee on Finance;

    • Senate Committee on Homeland Security and Governmental Affairs;

    • House Committee on Appropriations; and,

    • House Committee on Oversight and Government Reform.

    Dated: April 26, 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. 2018-09281 Filed 5-1-18; 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.

    Agency: U.S. Census Bureau.

    Title: Quarterly Survey of Plant Capacity Utilization.

    OMB Control Number: 0607-0175.

    Form Number(s): MQ-C2.

    Type of Request: Extension of a currently approved collection.

    Number of Respondents: 7,500.

    Average Hours Per Response: 2 hours and 5 minutes.

    Burden Hours: 62,500.

    Needs and Uses: The U.S. Census Bureau, on behalf of the Federal Reserve Board (FRB) and the Defense Logistics Agency (DLA), within the Department of Defense (DOD), requests an extension of approval for the Quarterly Survey of Plant Capacity Utilization (QPC). The survey provides information on use of industrial capacity in manufacturing and publishing plants as defined by the North American Industry Classification System (NAICS). The survey is the only governmental source of capacity utilization rates at industry levels. Changes in capacity utilization are considered important indicators of investment demand and inflationary pressure. For these reasons, the estimates of capacity utilization are closely monitored by government policy makers and private sector decision makers.

    The survey collects the value of quarterly production, the value of production that could be achieved if operating under “full production” capability, and the value of production that could be achieved if operating under “emergency production” capability. The ratio of the actual to the full is the basis of the estimates for full capacity utilization rates and similarly, the actual to the emergency for the emergency capacity utilization rates. The survey also collects information by shift, on work patterns at the actual production level.

    The FRB is the primary user of the current QPC data and expressed the need for these quarterly data. FRB publishes measures of industrial production (IP), capacity, and capacity utilization in its G.17 statistical release, which has been designated by the federal government as a Principal Federal Economic Indicator. Utilization rates from the QPC survey are a principle source for the measures of capacity and capacity utilization. The indexes of IP are either estimated from physical product data or estimated from monthly data on inputs to the production process, specifically production worker hours and an indicator of capital input. For many years, data on electric power use was used as the indicator of industry capital input. The deregulation of electricity markets led to the deterioration in the coverage and quality of the electricity data. As a result, in November 2005, the FRB discontinued its use of the industrial electric power data in the current estimates of IP. In order to maintain the quality of the IP index, the collection of these quarterly data, including the utilization rate data and the workweek of capital, is critical to the indicators of capital input use and industry output.

    The FRB uses these data in several ways. First, the QPC data are the primary source of information for the capacity indexes and utilization rates published by the FRB. Second, the QPC utilization rate data are used as indicators of output for some industries in the estimation of monthly IP. Third, the QPC utilization rate data and the workweek data are used to improve the projections of labor productivity that are used to align IP with comprehensive benchmark information from the Economic Census covering the Manufacturing sector and the Annual Survey of Manufactures. Finally, utilization rate data will assist in the assessment of recent changes in IP, as most of the high-frequency movement in utilization rates reflect production changes rather than capacity changes.

    The DLA uses the data to assess industrial base readiness and ramp-up time to meet demand for goods under selected national emergency scenarios.

    In addition to the FRB and DLA uses, these data are published on the Census Bureau's website, https://www.census.gov/programs-surveys/qpc.html.

    Affected Public: Business or other for-profit.

    Frequency: Quarterly.

    Respondent's Obligation: Voluntary.

    Legal Authority: Title 13, United States Code, Section 8(b) (Census authority); 50 U.S.C., Section 98, et seq. (FRB authority); and 12 U.S.C., Section 244 (DOD authority).

    This information collection request may be viewed at www.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. 2018-09275 Filed 5-1-18; 8:45 am] BILLING CODE 3510-07-P
    DEPARTMENT OF COMMERCE Bureau of the Census Census Scientific Advisory Committee Charter Renewal AGENCY:

    Bureau of the Census, Department of Commerce.

    ACTION:

    Notice of Advisory Committee charter renewal.

    SUMMARY:

    The Bureau of the Census (U.S. Census Bureau) hereby gives notice that the Secretary of the U.S. Department of Commerce has determined that the charter renewal of the Census Scientific Advisory Committee (CSAC) is necessary and in the public interest. The renewed charter can be found on the Census Advisory Committee website at the following URL link: https://www2.census.gov/cac/sac/sac-charter.pdf.

    FOR FURTHER INFORMATION CONTACT:

    Tara Dunlop Jackson, Chief, Advisory Committee Branch, U.S. Census Bureau, 4600 Silver Hill Road, Room 8H177, Washington, DC 20233, 301-763-5222, [email protected]

    SUPPLEMENTARY INFORMATION:

    The CSAC advises the Census Bureau's Director on the full range of Census Bureau programs and activities. The CSAC provides scientific and technical expertise from the following disciplines: Demography, economics, geography, psychology, statistics, survey methodology, social and behavioral sciences, information technology and computing, marketing, and other fields of expertise, as appropriate, to address Census Bureau program needs and objectives.

    The CSAC will function solely as an advisory body and in compliance with provisions of the Federal Advisory Committee Act. Pursuant to subsection 9(c) of the Federal Advisory Committee Act, 5 U.S.C., App., as amended, copies of this charter were furnished to the Library of Congress and to the following committees of Congress:

    • Senate Committee on Appropriations;

    • Senate Committee on Commerce, Science and Transportation;

    • Senate Committee on Finance;

    • Senate Committee on Homeland Security and Governmental Affairs;

    • House Committee on Appropriations; and,

    • House Committee on Oversight and Government Reform.

    Dated: April 26, 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. 2018-09282 Filed 5-1-18; 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: Minority Business Development Agency.

    Title: National Minority Business Awards Program.

    OMB Control Number: 0640-0025.

    Form Number: None.

    Type of Request: Regular Submission.

    Number of Respondents: 100.

    Average Hours per Response: 2 hours.

    Burden Hours: The estimate is an annual average of 200 hours.

    Needs and Uses: The collection of information is necessary MBDA is soliciting public comments to permit the agency to receive nominations from the public for the following awards to minority businesses: Minority Construction Firm of the Year, Minority Export Firm of the Year, Minority Manufacturing Firm of the Year, Minority Health Products and Services Firm of the Year, Minority Innovative Technology Firm of the Year, Minority Marketing and Communications Firm of the Year, Minority Professional Services Firm of the Year, Minority Veteran-Owned Firm of the Year, Minority “Under 30” Firm of the Year and MBDA Minority Business Enterprise of the Year award. In addition, MBDA may recognize trailblazers and champions through the Access to Capital Award, Advocate of the Year Award, Distinguished Supplier Diversity Award, Ronald H. Brown Leadership Award, and Abe Venable Legacy Award for Lifetime Achievement.

    MBDA must collect two kinds of information to make award nominations: (a) Information identifying the nominee and nominator; and (b) information explaining why the nominee should be given the award. The information will be used to determine those applicants that best meet the preannounced selection criteria. Participation in the MED Week Awards program is voluntary and the awards are strictly honorary.

    Affected Public: Individuals, businesses and other for-profit organizations, not-for-profit organizations, and federal, state, local, or tribal governments.

    Frequency: Annually.

    Respondent's Obligation: Voluntary.

    This information collection request may be viewed at www.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. 2018-09274 Filed 5-1-18; 8:45 am] BILLING CODE 3510-21-P
    DEPARTMENT OF COMMERCE Economic Development Administration Notice of Petitions by Firms for Determination of Eligibility To Apply for Trade Adjustment Assistance AGENCY:

    Economic Development Administration, U.S. Department of Commerce.

    ACTION:

    Notice and opportunity for public comment.

    SUMMARY:

    The Economic Development Administration (EDA) has received petitions for certification of eligibility to apply for Trade Adjustment Assistance from the firms listed below. Accordingly, EDA has initiated investigations to determine whether increased imports into the United States of articles like or directly competitive with those produced by each of the firms contributed importantly to the total or partial separation of the firms' workers, or threat thereof, and to a decrease in sales or production of each petitioning firm.

    SUPPLEMENTARY INFORMATION:

    List of Petitions Received by EDA for Certification of Eligibility To Apply for Trade Adjustment Assistance [04/04/2018 through 04/15/2018] Firm name Firm address Date

  • accepted for
  • investigation
  • Product(s) Horizontal Machining and Manufacturing, Inc 640 Arizona Avenue NW, Huron, SD 57350 4/4/2018 The firm manufactures large-scale weldments, including mountings for industrial machinery. Ballco Manufacturing Company, Inc 2375 East Liberty Street, Aurora, IL 60502 4/13/2018 The firm manufactures precision metal parts for valves, including balls, bodies, stems, and pipes. Tepuy Apparel Designs, Inc 502 West Forsyth Street, Americus, GA 31709 4/13/2018 The firm manufactures women's apparel, including sportswear, active wear, leggings, capris, sport bras and tank tops.

    Any party having a substantial interest in these proceedings may request a public hearing on the matter. A written request for a hearing must be submitted to the Trade Adjustment Assistance Division, Room 71030, Economic Development Administration, U.S. Department of Commerce, Washington, DC 20230, no later than ten (10) calendar days following publication of this notice. These petitions are received pursuant to section 251 of the Trade Act of 1974, as amended.

    Please follow the requirements set forth in EDA's regulations at 13 CFR 315.9 for procedures to request a public hearing. The Catalog of Federal Domestic Assistance official number and title for the program under which these petitions are submitted is 11.313, Trade Adjustment Assistance for Firms.

    Irette Patterson, Program Analyst.
    [FR Doc. 2018-09081 Filed 5-1-18; 8:45 am] BILLING CODE 3510-WH-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [S-45-2018] Approval of Subzone Status; International Converter, Inc.; Caldwell, Ohio

    On March 7, 2018, the Executive Secretary of the Foreign-Trade Zones (FTZ) Board docketed an application submitted by the Columbus Regional Airport Authority, grantee of FTZ 138, requesting subzone status subject to the existing activation limit of FTZ 138, on behalf of International Converter, Inc., in Caldwell, Ohio.

    The application was processed in accordance with the FTZ Act and Regulations, including notice in the Federal Register inviting public comment (83 FR 10839, March 13, 2018). The FTZ staff examiner reviewed the application and determined that it meets the criteria for approval. Pursuant to the authority delegated to the FTZ Board Executive Secretary (15 CFR Sec. 400.36(f)), the application to establish Subzone 138H was approved on April 26, 2018, subject to the FTZ Act and the Board's regulations, including Section 400.13, and further subject to FTZ 138's 2,000-acre activation limit.

    Dated: April 26, 2018. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2018-09284 Filed 5-1-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-001] Potassium Permanganate From People's Republic of China: Rescission of 2017 Antidumping Duty Administrative Review AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) is rescinding the administrative review of the antidumping duty (AD) order on potassium permanganate from the People's Republic of China (China) for the period of review (POR) January 1, 2017, through December 31, 2017.

    DATES:

    Applicable May 2, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Trenton Duncan or Annathea Cook, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3539 or (202) 482-0250, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    On January 2, 2018, Commerce published in the Federal Register a notice of opportunity to request an administrative review of the AD order on potassium permanganate from China for the period January 1, 2017, through December 31, 2017.1 On January 26, 2018, in accordance with section 751(a) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.213(b), Carus Corporation (the petitioner), requested a review of the AD order with respect to the following two companies: (1) Chongqing Changyuan Group Limited; and (2) Pacific Accelerator Ltd.2 On March 16, 2018, in accordance with section 751(a) of the Act and 19 CFR 351.221(c)(1)(i), Commerce initiated an administrative review of the AD order on potassium permanganate from China with respect to these companies.3 On March 28, 2018, the petitioner timely withdrew its request for an administrative review of both companies, Chongqing Changyuan Group Limited and Pacific Accelerator Ltd, named in the petitioner's Review Request.4 No other party requested a review.

    1See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 83 FR 98 (January 2, 2018).

    2See the petitioner's request for administrative review, “Potassium Permanganate from the People's Republic of China: Request for Antidumping Duty Administrative Review,” dated January 26, 2018 (Review Request).

    3See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 83 FR 11685 (March 16, 2018).

    4See the petitioner's withdrawal of administrative review request, “Potassium Permanganate from the People's Republic of China: Withdrawal of Request for Antidumping Duty Administrative Review,” dated March 28, 2018.

    Rescission of Review

    Pursuant to 19 CFR 351.213(d)(1), Commerce will rescind an administrative review, in whole or in part, if the party that requested the review withdraws its request within 90 days of the publication date of the notice of initiation of the requested review. The petitioner withdrew its request for review within the 90-day deadline. Because Commerce received no other requests for review of the above-referenced companies, and no other requests were made for a review of the AD order on potassium permanganate from China with respect to other companies, we are rescinding the administrative review covering the period January 1, 2017, through December 31, 2018, in full, in accordance with 19 CFR 351.213(d)(1).

    Assessment

    Commerce will instruct U.S. Customs and Border Protection (CBP) to assess antidumping duties on all appropriate entries of potassium permanganate from China during the POR at rates equal to the cash deposit rate for estimated antidumping duties required at the time of entry, or withdrawal from warehouse, for consumption, in accordance with 19 CFR 351.212(c)(1)(i). Commerce intends to issue appropriate assessment instructions to CBP 15 days after publication of this notice in the Federal Register.

    Notification to Importers

    This notice serves as the only reminder to importers of their responsibility under 19 CFR 351.402(f)(2) to file a certificate regarding the reimbursement of antidumping duties prior to liquidation of the relevant entries during this review period. Failure to comply with this requirement could result in the presumption that reimbursement of antidumping duties occurred and the subsequent assessment of doubled antidumping duties.

    Notification Regarding Administrative Protective Order

    This notice also serves as the only reminder to parties subject to administrative protective orders (APO) of their responsibility concerning the disposition of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3), which continues to govern business proprietary information in this segment of the proceeding. Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and the terms of an APO is a sanctionable violation.

    This notice is issued and published in accordance with sections 751(a)(1) and 777(i)(1) of the Act and 19 CFR 351.213(d)(4).

    Dated: April 26, 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. 2018-09308 Filed 5-1-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration Initiation of Antidumping and Countervailing Duty Administrative Reviews AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) has received requests to conduct administrative reviews of various antidumping and countervailing duty orders and findings with March anniversary dates. In accordance with Commerce's regulations, we are initiating those administrative reviews.

    DATES:

    Applicable May 2, 2018.

    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.

    SUPPLEMENTARY INFORMATION:

    Background

    Commerce has received timely requests, in accordance with 19 CFR 351.213(b), for administrative reviews of various antidumping and countervailing duty orders and findings with March anniversary dates.

    All deadlines for the submission of various types of information, certifications, or comments or actions by Commerce discussed below refer to the number of calendar days from the applicable starting time.

    Notice of No Sales

    If a producer or exporter named in this notice of initiation had no exports, sales, or entries during the period of review (POR), it must notify Commerce within 30 days of publication of this notice in the Federal Register. All submissions must be filed electronically at http://access.trade.gov in accordance with 19 CFR 351.303.1 Such submissions are subject to verification in accordance with section 782(i) of the Tariff Act of 1930, as amended (the Act). Further, in accordance with 19 CFR 351.303(f)(1)(i), a copy must be served on every party on Commerce's service list.

    1See Antidumping and Countervailing Duty Proceedings: Electronic Filing Procedures; Administrative Protective Order Procedures, 76 FR 39263 (July 6, 2011).

    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 place the CBP data on the record within five days of publication of the initiation notice and to make our decision regarding respondent selection within 30 days of publication of the initiation Federal Register notice. Comments regarding the CBP data and respondent selection should be submitted seven days after the placement of the CBP data on the record of this review. Parties wishing to submit rebuttal comments should submit those comments five days after the deadline for the initial comments.

    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 has found that determinations concerning whether particular companies should be “collapsed” (e.g., 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 this 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 (e.g., investigation, administrative review, new shipper review or changed circumstances review). For any company subject to this 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 the Quantity and Value (Q&V) 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 this proceeding where Commerce considered collapsing that entity, complete Q&V data for that collapsed entity must be submitted.

    Revised Respondent Selection—Multilayered Wood Flooring From the People's Republic of China

    The respondent selection procedures outlined in the February 23, 2018 notice initiating the sixth administrative review of the antidumping duty order on multilayered wood flooring (MLWF) from the People's Republic of China (China) covering the period 12/01/2016-11/30/2017,2 are revised as follows. With respect to the sixth administrative review of MLWF from China, the February 23, 2018 notice indicated that, in the event Commerce limits the number of respondents for individual examination, Commerce intended to select respondents based on CBP data for U.S. imports of MLWF from China during the period of review. Subsequently, Commerce placed the CBP data on the record of the sixth administrative review of MLWF from China, and solicited and received comments. However, as noted below, the China-wide entity, which is under review,3 was inadvertently excluded from the February 23, 2018 notice. Therefore, upon further consideration, to ensure parties are not disadvantaged by this inadvertent omission at this stage of the review, and in the event Commerce limits the number of respondents for individual examination, Commerce finds it appropriate to select respondents based on volume data contained in responses to quantity and value questionnaires. Further, Commerce intends to limit the number of Q&V questionnaires issued in the review based on the CBP data for U.S. imports already on the record. Parties will be given an additional period of time to comment on the CBP data used by Commerce to limit the number of Q&V questionnaires issued. Commerce invites comments regarding the CBP data and our intended respondent selection procedures within five days of the publication of this notice in the Federal Register. Commerce intends to issue the Q&V questionnaire to the top ten companies listed in the CBP data by volume, and additionally intends to issue a Q&V questionnaire to the China-wide entity, care of the Embassy of China in the United States. Parties subject to the review to which Commerce does not issue a Q&V questionnaire may file a response to the Q&V questionnaire if they desire to be included in the pool of companies from which Commerce will select mandatory respondents. The Q&V questionnaire will also be available on Commerce's website at http://trade.gov/enforcement/news.asp on the date of publication of this notice in the Federal Register. All responses to the Q&V questionnaire must be submitted by the applicable deadline noted therein.

    2See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 83 FR 8058 (February 23, 2018).

    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).

    Deadline for Withdrawal of Request for Administrative Review

    Pursuant to 19 CFR 351.213(d)(1), a party that has requested 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 Commerce does not intend to extend the 90-day deadline unless the requestor demonstrates that an extraordinary circumstance has 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.

    Separate Rates

    In proceedings involving non-market economy (NME) countries, Commerce begins with a rebuttable presumption that all companies within the country are subject to government control and, thus, should be assigned a single antidumping duty deposit rate. It is Commerce's policy to assign all exporters of merchandise subject to an administrative review in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate.

    To establish whether a firm is sufficiently independent from government control of its export activities to be entitled to a separate rate, Commerce analyzes each entity exporting the subject merchandise. In accordance with the separate rates criteria, Commerce assigns separate rates to companies in NME cases only if respondents can demonstrate the absence of both de jure and de facto government control over export activities.

    All firms listed below that wish to qualify for separate rate status in the administrative reviews involving NME countries must complete, as appropriate, either a separate rate application or certification, as described below. For these administrative reviews, in order to demonstrate separate rate eligibility, Commerce requires entities for whom a review was requested, that were assigned a separate rate in the most recent segment of this proceeding in which they participated, to certify that they continue to meet the criteria for obtaining a separate rate. The Separate Rate Certification form will be available on Commerce's website at http://enforcement.trade.gov/nme/nme-sep-rate.html on the date of publication of this Federal Register notice. In responding to the certification, please follow the “Instructions for Filing the Certification” in the Separate Rate Certification. Separate Rate Certifications are due to Commerce no later than 30 calendar days after publication of this Federal Register notice. The deadline and requirement for submitting a Certification applies equally to NME-owned firms, wholly foreign-owned firms, and foreign sellers who purchase and export subject merchandise to the United States.

    Entities that currently do not have a separate rate from a completed segment of the proceeding 4 should timely file a Separate Rate Application to demonstrate eligibility for a separate rate in this proceeding. In addition, companies that received a separate rate in a completed segment of the proceeding that have subsequently made changes, including, but not limited to, changes to corporate structure, acquisitions of new companies or facilities, or changes to their official company name,5 should timely file a Separate Rate Application to demonstrate eligibility for a separate rate in this proceeding. The Separate Rate Status Application will be available on Commerce's website at http://enforcement.trade.gov/nme/nme-sep-rate.html on the date of publication of this Federal Register notice. In responding to the Separate Rate Status Application, refer to the instructions contained in the application. Separate Rate Status Applications are due to Commerce no later than 30 calendar days of publication of this Federal Register notice. The deadline and requirement for submitting a Separate Rate Status Application applies equally to NME-owned firms, wholly foreign-owned firms, and foreign sellers that purchase and export subject merchandise to the United States.

    4 Such entities include entities that have not participated in the proceeding, entities that were preliminarily granted a separate rate in any currently incomplete segment of the proceeding (e.g., an ongoing administrative review, new shipper review, etc.) and entities that lost their separate rate in the most recently completed segment of the proceeding in which they participated.

    5 Only changes to the official company name, rather than trade names, need to be addressed via a Separate Rate Application. Information regarding new trade names may be submitted via a Separate Rate Certification.

    For exporters and producers who submit a separate-rate status application or certification and subsequently are selected as mandatory respondents, these exporters and producers will no longer be eligible for separate rate status unless they respond to all parts of the questionnaire as mandatory respondents.

    Initiation of Reviews

    In accordance with 19 CFR 351.221(c)(1)(i), we are initiating administrative reviews of the following antidumping and countervailing duty orders and findings. We intend to issue the final results of these reviews not later than March 31, 2019.

    Period to be
  • Reviewed
  • Antidumping Duty Proceedings Brazil: Certain Uncoated Paper, A-351-842 3/1/17-2/28/18 Suzano Papel e Celulose S.A. India: Certain New Pneumatic Off-the-Road Tires, A-533-869 2/2/17-2/28/18 ATC Tires Private Limited Indonesia: Certain Uncoated Paper, A-560-828 3/1/17-2/28/18 PT Anugerah Kertas Utama (AKU), PT Riau Andalan Kertas (RAK) and APRIL Fine Paper Macao Offshore Limited (AFPM), (collectively, APRIL) Portugal: Certain Uncoated Paper, A-471-807 3/1/17-2/28/18 The Navigator Company, S.A. Spain: Stainless Steel Bar, A-469-805 3/1/17-2/28/18 Sidenor Aceros Especiales S.L. Thailand: Circular Welded Carbon Steel Pipes and Tubes, A-549-502 3/1/17-2/28/18 Apex International Logistics Aquatec Maxcon Asia Asian Unity Part Co., Ltd. CSE Technologies Co., Ltd. Expeditors Ltd. K Line Logistics Pacific Pipe Public Company Limited (also known as Pacific Pipe Company) Pacific Pipe and Pump Panalpina World Transport Ltd. Polypipe Engineering Co., Ltd. Saha Thai Steel Pipe (Public) Company, Ltd. Siam Fittings Co., Ltd. Siam Steel Pipe Co., Ltd. Thai Malleable Iron and Steel Thai Oil Group Thai Premium Pipe Co., Ltd. Vatana Phaisal Engineering Company The People's Republic of China: Glycine, A-570-836 3/1/17-2/28/18 Avid Organics Pvt. Ltd. Baoding Mantong Fine Chemistry Co., Ltd. Kumar Industries Rudraa International Salvi Chemical Industries The People's Republic of China: Multilayered Wood Flooring, A-570-970 12/1/16-11/30/17 The China-Wide Entity 6 Countervailing Duty Proceedings India: Certain New Pneumatic Off-the-Road Tires, C-533-870 6/20/16-12/31/17 ATC Tires Private Limited Balkrishna Industries Limited Indonesia: Certain Uncoated Paper, C-560-829 1/1/17-12/31/17 PT Anugerah Kertas Utama (AKU), PT Riau Andalan Kertas (RAK) and APRIL Fine Paper Macao Offshore Limited (AFPM), (collectively, APRIL) Turkey: Circular Welded Carbon Steel Pipes and Tubes, C-489-502 1/1/17-12/31/17 Borusan Mannesmann Boru Sanayi ve Ticaret A.S. Borusan Birlesik Boru Fabrikalair San ve Tic. Borusan Istikbal Ticaret T.A.S. Borusan Gemlik Boru Tesisleri A.S. Borusan Ihacat Ithalat ve Dagitim A.S. Borusan Ithicat ve Dagitim A.S. Tubeco Pipe and Steel Corporation, Borusan Holding Borusan Holding Borusan Mannesmann Yatirim Holding Cagil Makina Sanayi ve Ticaret A.S. Cayirova Boru Sanayi ve Ticaret A.S. Cimtas Boru Imalatlari ve Ticaret Sirketi Eksen Makina Erbosan Erciyas Boru Sanayi ve Ticaret A.S. Guner Eksport Guven Steel Pipe (also known as Guven Celik Born San. Ve Tic. Ltd.) MTS Lojistik ve Tasimacilik Hizmetleri TIC A.S. Istanbul Net Boru Sanayi ve Dis Ticaret Koll. Sti. Toscelik Metal Ticaret A.S. Toscelik Profil ve Sac Endustrisi A.S. Toscelik Metal Ticaret A.S. Tosyali Dis Ticaret A.S. Umran Celik Born Sanayii A.S., also known as Umran Steel Pipe Inc. Yucel Boru ve Profil Endustrisi A.S. Yucelboru Ihracat Ithalat ve Pazarlama A.S. Suspension Agreements Mexico: Fresh Tomatoes, A-201-820 3/1/17-2/28/18
    Duty Absorption Reviews

    During any administrative review covering all or part of a period falling between the first and second or third and fourth anniversary of the publication of an antidumping duty order under 19 CFR 351.211 or a determination under 19 CFR 351.218(f)(4) to continue an order or suspended investigation (after sunset review), the Secretary, if requested by a domestic interested party within 30 days of the date of publication of the notice of initiation of the review, will determine whether antidumping duties have been absorbed by an exporter or producer subject to the review if the subject merchandise is sold in the United States through an importer that is affiliated with such exporter or producer. The request must include the name(s) of the exporter or producer for which the inquiry is requested.

    6 Commerce inadvertently omitted the China-Wide Entity from the Initiation Notice which published on February 23, 2018 (83 FR 8058).

    Gap Period Liquidation

    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 POR.

    Administrative Protective Orders and Letters of Appearance

    Interested parties must submit applications for disclosure under administrative protective orders in accordance with the procedures outlined in Commerce's regulations at 19 CFR 351.305. Those procedures apply to administrative reviews included in this notice of initiation. Parties wishing to participate in any of these administrative reviews should ensure that they meet the requirements of these procedures (e.g., the filing of separate letters of appearance as discussed at 19 CFR 351.103(d)).

    Factual Information Requirements

    Commerce's regulations identify five categories of factual information in 19 CFR 351.102(b)(21), which are summarized as follows: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by Commerce; and (v) evidence other than factual information described in (i)-(iv). These regulations require any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct. The regulations, at 19 CFR 351.301, also provide specific time limits for such factual submissions based on the type of factual information being submitted. Please review the final rule, available at http://enforcement.trade.gov/frn/2013/1304frn/2013-08227.txt, prior to submitting factual information in this segment.

    Any party submitting factual information in an antidumping duty or countervailing duty proceeding must certify to the accuracy and completeness of that information.7 Parties are hereby reminded that revised certification requirements are in effect for company/government officials as well as their representatives. All segments of any antidumping duty or countervailing duty proceedings initiated on or after August 16, 2013, should use the formats for the revised certifications provided at the end of the Final Rule. 8 Commerce intends to reject factual submissions in any proceeding segments if the submitting party does not comply with applicable revised certification requirements.

    7See section 782(b) of the Act.

    8See Certification of Factual Information To Import Administration During Antidumping and Countervailing Duty Proceedings, 78 FR 42678 (July 17, 2013) (Final Rule); see also the frequently asked questions regarding the Final Rule, available at http://enforcement.trade.gov/tlei/notices/factual_info_final_rule_FAQ_07172013.pdf.

    Extension of Time Limits Regulation

    Parties may request an extension of time limits before a time limit established under Part 351 expires, or as otherwise specified by the Secretary. See 19 CFR 351.302. In general, an extension request will be considered untimely if it is filed after the time limit established under Part 351 expires. For submissions which are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. on the due date. Examples include, but are not limited to: (1) Case and rebuttal briefs, filed pursuant to 19 CFR 351.309; (2) factual information to value factors under 19 CFR 351.408(c), or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2), filed pursuant to 19 CFR 351.301(c)(3) and rebuttal, clarification and correction filed pursuant to 19 CFR 351.301(c)(3)(iv); (3) comments concerning the selection of a surrogate country and surrogate values and rebuttal; (4) comments concerning U.S. Customs and Border Protection data; and (5) quantity and value questionnaires. Under certain circumstances, Commerce may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, Commerce will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. This modification also requires that an extension request must be made in a separate, stand-alone submission, and clarifies the circumstances under which Commerce will grant untimely-filed requests for the extension of time limits. These modifications are effective for all segments initiated on or after October 21, 2013. Please review the final rule, available at http://www.thefederalregister.org/fdsys/pkg/FR-2013-09-20/html/2013-22853.htm, prior to submitting factual information in these segments.

    These initiations and this notice are in accordance with section 751(a) of the Act (19 U.S.C. 1675(a)) and 19 CFR 351.221(c)(1)(i).

    Dated: April 26, 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. 2018-09311 Filed 5-1-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-570-017] Countervailing Duty Order on Certain Passenger Vehicle and Light Truck Tires From the People's Republic of China: Amended Final Results of Countervailing Duty Administrative Review; 2014-2015 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) is amending the final results of the countervailing duty administrative review of certain passenger vehicle and light truck tires (passenger tires) from the People's Republic of China (China) to correct ministerial errors. The period of review (POR) is December 1, 2014, through December 31, 2015.

    DATES:

    Applicable May 2, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Andrew Huston, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone (202) 482-4261.

    Background

    In accordance with section 751(a)(1) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.221(b)(5), on March 16, 2018, Commerce published its final results of the countervailing duty administrative review of passenger tires from China.1 On March 15, 2018, Shandong Shuangwang Rubber Co., Ltd. (Shandong Shuangwang) submitted a request to correct a clerical error in the Final Results. 2 On March 28, 2018, GITI Tire Global Trading Pte. Ltd./GITI Tire (USA) Ltd./GITI Radial Tire (Anhui) Company Ltd. (GITI Anhui Radial)/GITI Tire (Fujian) Company Ltd (GITI Fujian)/GITI Tire (Hualin) Company Ltd. (GITI Hualin) (collectively, GITI) timely alleged that Commerce made four ministerial errors in the Final Results. 3 No other parties submitted ministerial error allegations or comments on Shandong Shuangwang's or GITI's allegations.

    1See Countervailing Duty Order on Certain Passenger Vehicle and Light Truck Tires from the People's Republic of China: Final Results of Countervailing Duty Administrative Review; 2014-2015, 83 FR 11694 (March 16, 2018) (Final Results).

    2See Shandong Shuangwang's Letter, “Certain Passenger Vehicle and Light Truck Tires from the People's Republic of China—Request to Correct Clerical Error in Final Results of Countervailing Duty Administrative Review,” dated March 15, 2018 (Shandong Shuangwang Ministerial Comments).

    3See GITI's Letter, “Passenger Vehicle and Light Truck Tires from the People's Republic of China: Ministerial Error Comments—Giti Tire Global Trading Pte. Ltd.” dated March 28, 2018 (GITI Ministerial Comments).

    Scope of the Order

    The products covered by the order are certain passenger vehicle and light truck tires from China. A full description of the scope of the order is contained in the Ministerial Errors Memorandum.4

    4See Memorandum “Administrative Review of the Countervailing Duty Order on Certain Passenger Vehicle and Light Truck Tires from the People's Republic of China: Decision Memorandum for Amended Final Results,” dated concurrently and herby adopted by this notice (Decision Memorandum) for a full description of the scope of the order.

    Ministerial Errors

    Section 751(h) of the Act and 19 CFR 351.224(f) define a “ministerial error” as an error in addition, subtraction, or other arithmetic function, clerical error resulting from inaccurate copying, duplication, or the like, and any other similar type of unintentional error which the Secretary considers ministerial. As discussed in Commerce's Ministerial Error Memorandum, Commerce finds that the error alleged by Shandong Shuangwang and certain errors alleged by GITI constitute ministerial errors within the meaning of 19 CFR 351.224(f).5

    5See Decision Memorandum.

    With regard to Shandong Shuangwang, in the Final Results, the company's name, as listed in Appendix II, the list of Non-Selected Companies Under Review, contained a misspelling of “Shandong” as “Shangong.” The correct full name of the company without the misspelling is “Shandong Shuangwang Rubber Co., Ltd.” This notice serves to correct the incorrect exporter company name listed as a non-selected company in the Final Results.

    With regard to GITI, we made ministerial errors with regard to calculating the sales denominator for GITI Tire (China) Investment Co., Ltd., calculating government grants, and applying the Adverse Facts Available Rate to the Export Buyer's Credits program.6

    6Id. for a full discussion of these alleged errors.

    In accordance with section 751(h) of the Act and 19 CFR 351.224(e), we are amending the Final Results to correct the ministerial errors. Specifically, we are amending the net subsidy rates for GITI, Cooper (Kunshan) Tire Co., Ltd. (Cooper), Zhongce Rubber Group Company Limited, and for the non-selected companies.7 The revised net subsidies rates are provided below.

    7Id. at 8. Because we relied on GITI's and Cooper's subsidy rates to calculate the rate for non-selected companies under review, we are revising the rate for non-selected companies under review in these amended final results.

    Amended Final Results

    As result of correcting the ministerial errors, we determine that that the countervailable subsidy rates for the producers/exporters under review to be as follows:

    Company Subsidy rate
  • (percent ad valorem)
  • GITI Tire Global Trading Pte. Ltd./GITI Tire (USA) Ltd./GITI Radial Tire (Anhui) Company Ltd. (GITI Anhui Radial)/GITI Tire (Fujian) Company Ltd (GITI Fujian)/GITI Tire (Hualin) Company Ltd. (GITI Hualin) (collectively, GITI) 15.75 Cooper (Kunshan) Tire Co., Ltd. (Cooper) 15.10 Zhongce Rubber Group Company Limited 114.48 Non-Selected Companies Under Review 15.53
    Assessment Rates

    Commerce intends to issue assessment instructions to U.S. Customs and Border Protection (CBP) 15 days after the date of publication of these amended final results of review, to liquidate shipments of subject merchandise entered, or withdrawn from warehouse, for consumption, on or after December 1, 2014, through December 31, 2015, at the ad valorem rates listed above.

    Commerce also intends to instruct CBP to collect cash deposits of estimated countervailing duties, in the amounts shown above for the companies listed above on shipments of subject merchandise entered, or withdrawn from warehouse, for consumption on or after March 16, 2018, the date of publication of the Final Results. For all non-reviewed firms, we will instruct CBP to collect cash deposits at the most-recent company specific or all-others rate applicable to the company, as appropriate. These cash deposit requirements, when imposed, shall remain in effect until further notice.

    Administrative Protective Order

    This notice also serves as a reminder to parties subject to administrative protective order (APO) of their responsibility concerning the destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.

    Disclosure

    We intend to disclose the calculations performed for these amended final results to interested parties within five business days of the date of the publication of this notice in accordance with 19 CFR 351.224(b).

    We are issuing and publishing these results in accordance with sections 751(h) and 777(i)(1) of the Act, and 19 CFR 351.224(e).

    Dated: April 25, 2018. Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2018-09285 Filed 5-1-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-981, A-552-814] Utility Scale Wind Towers From the People's Republic of China and the Socialist Republic of Vietnam: Final Results of Expedited First Sunset Reviews of Antidumping Duty Orders AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    As a result of these sunset reviews, the Department of Commerce (Commerce) finds that revocation of the antidumping duty orders on utility scale wind towers (wind towers) from the People's Republic of China (China) and the Socialist Republic of Vietnam (Vietnam) would be likely to lead to continuation or recurrence of dumping at the level identified in the “Final Results of Review” section of this notice.

    DATES:

    Applicable May 2, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Ariela Garvett, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3609.

    SUPPLEMENTARY INFORMATION:

    On February 15, 2013, Commerce published the antidumping duty orders on wind towers from China and Vietnam.1 On January 2, 2018, Commerce published the initiation of the first sunset review of the Orders, pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act).2 On January 17, 2018, Commerce received timely notices of intent to participate in these reviews from the Wind Tower Trade Coalition (WTTC), a domestic interested party, within the deadline specified in 19 CFR 351.218(d)(1)(i).3 WTTC claimed interested party status under section 771(9)(C) and (F) of the Act as a coalition of manufacturers in the United States of a domestic like product. On February 5, 2018, Commerce received complete and adequate substantive responses from WTTC within 30-day deadline specified in 19 CFR 351.218(d)(3)(i).4 Commerce received no substantive responses from respondent interested parties. As a result, pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2), Commerce conducted expedited (120-day) sunset reviews of the AD Orders. Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018. If the new deadline falls on a non-business day, in accordance with Commerce's practice, the deadline will become the next business day. The revised deadline for the final results is now May 7, 2018.5

    1See Utility Scale Wind Towers from the People's Republic of China: Antidumping Duty Order, 78 FR 11146 (February 15, 2013); and Utility Scale Wind Towers from the Socialist Republic of Vietnam: Amended Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order, 78 FR 11150 (February 15, 2013) (Orders).

    2See Initiation of Five-Year (Sunset) Reviews, 83 FR 142 (January 2, 2018).

    3See WTTC's Letter, “Utility Scale Wind Towers from the People's Republic of China: Notice of Intent to Participate in Sunset Review” (January 17, 2018). See also Letter from WTTC to Commerce, “Utility Scale Wind Towers from the Socialist Republic of Vietnam: Notice of Intent to Participate in Sunset Review,” (January 17, 2018).

    4See WTTC's Letter, “Utility Scale Wind Towers from the People's Republic of China: Substantive Response to Notice of Initiation of Sunset Review” (February 5, 2018). See also WTTC's Letter, “Utility Scale Wind Towers from the Socialist Republic of Vietnam: Substantive Response to Notice of Initiation of Sunset Review” (February 5, 2018).

    5See Memorandum for The Record from Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance, “Deadlines Affected by the Shutdown of the Federal Government” (Tolling Memorandum), dated January 23, 2018. All deadlines in this segment of the proceeding have been extended by 3 days. In addition, because the deadline falls on a non-business day (i.e., the weekend), pursuant to Commerce's practice, the deadline will become the next business day. The revised deadline is May 7, 2018.

    Scope of the Orders

    The merchandise covered by these orders is certain wind towers, whether or not tapered, and sections thereof. Certain wind towers are designed to support the nacelle and rotor blades in a wind turbine with a minimum rated electrical power generation capacity in excess of 100 kilowatts and with a minimum height of 50 meters measured from the base of the tower to the bottom of the nacelle (i.e., where the top of the tower and nacelle are joined) when fully assembled.

    A wind tower section consists of, at a minimum, multiple steel plates rolled into cylindrical or conical shapes and welded together (or otherwise attached) to form a steel shell, regardless of coating, end-finish, painting, treatment, or method of manufacture, and with or without flanges, doors, or internal or external components (e.g., flooring/decking, ladders, lifts, electrical buss boxes, electrical cabling, conduit, cable harness for nacelle generator, interior lighting, tool and storage lockers) attached to the wind tower section. Several wind tower sections are normally required to form a completed wind tower.

    Wind towers and sections thereof are included within the scope whether or not they are joined with nonsubject merchandise, such as nacelles or rotor blades, and whether or not they have internal or external components attached to the subject merchandise.

    Specifically excluded from the scope are nacelles and roto blades, regardless of whether they are attached to the wind tower. Also excluded are any internal or external components which are not attached to the wind towers or sections thereof.

    Merchandise covered by the orders is currently classified in the Harmonized Tariff System of the United States (HTSUS) under subheadings 7308.20.0020 6 or 8502.31.0000.7 Prior to 2011, merchandise covered by this review was classified in the HTSUS under subheading 7308.20.0000 and may continue to be to some degree. While HTSUS subheadings are provided for convenience and customs purposes, the written description of the subject merchandise is dispositive.

    6 Wind towers are classified under HTSUS 7308.20.0020 when imported as a tower or tower section(s) alone.

    7 Wind towers may also be classified under HTSUS 8502.31.0000 when imported as part of a wind turbine (i.e., accompanying nacelles and/or rotor blades).

    Analysis of Comments Received

    A complete discussion of all issues raised in these reviews, including the likelihood of continuation or recurrence of dumping in the event of revocation of the Orders and the magnitude of the margins likely to prevail if the Orders were revoked, is provided in the accompanying Issues and Decision Memorandum, which is hereby adopted by this notice.8 A list of the topics discussed in the Issues and Decision Memorandum is attached to this notice as Appendix. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov and to all parties in the Central Records Unit, Room B8024 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the internet at http://enforcement.trade.gov/frn/. The signed Issues and Decision Memorandum and the electronic version of the Issues and Decision Memorandum are identical in content.

    8See Memorandum, “Issues and Decision Memorandum for the Expedited First Sunset Reviews of the Antidumping Duty Orders on Utility Scale Wind Towers from the People's Republic of China and the Socialist Republic of Vietnam,” dated concurrently with this notice (Issues and Decision Memorandum).

    Final Results of Sunset Reviews

    Pursuant to sections 751(c)(1) and 752(c)(1) and (3) of the Act, Commerce determines that revocation of the Orders would be likely to lead to continuation or recurrence of dumping, and that the magnitude of the dumping margins likely to prevail would be weighted-average margins up to 60.02 percent for China and up to 58.54 percent for Vietnam.

    Notification to Interested Parties

    This notice serves as the only reminder to parties subject to administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely written notification of the return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a violation which is subject to sanction.

    We are issuing and publishing these results and notice in accordance with sections 751(c), 752(c), and 777(i)(1) of the Act, 19 CFR 351.218, and 19 CFR 351.221(c)(5)(ii).

    Dated: April 26, 2018. Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance. Appendix List of Topics Discussed in the Issues and Decision Memorandum I. Summary II. Background III. Scope of the Orders IV. History of the Orders V. Legal Framework VI. Discussion of the Issues 1. Likelihood of Continuation or Recurrence of Dumping 2. Magnitude of the Dumping Margins Likely to Prevail VII. Final Results of Sunset Reviews VIII. Recommendation
    [FR Doc. 2018-09312 Filed 5-1-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration North American Free Trade Agreement (NAFTA), Article 1904 Binational Panel Review: Notice of Request for Panel Review AGENCY:

    United States Section, NAFTA Secretariat, International Trade Administration, Department of Commerce.

    ACTION:

    Notice of NAFTA Request for Panel Review in the matter of Large Residential Washers from Mexico: Final results of antidumping duty administrative review (Secretariat File Number: USA-MEX-2018-1904-04).

    SUMMARY:

    A Request for Panel Review was filed on behalf of Electrolux Home Products, Inc., Electrolux Home Products Corp. N.V., and Electrolux Home Products de Mexico, S.A. de C.V. (collectively “Electrolux”) with the United States Section of the NAFTA Secretariat on April 18, 2018, pursuant to NAFTA Article 1904. Panel Review was requested of the Department of Commerce's final antidumping duty determination regarding Large Residential Washers from Mexico. The final determination was published in the Federal Register on March 19, 2018 (83 FR 11,963). The NAFTA Secretariat has assigned case number USA-MEX-2018-1904-04 to this request.

    FOR FURTHER INFORMATION CONTACT:

    Paul E. Morris, United States Secretary, NAFTA Secretariat, Room 2061, 1401 Constitution Avenue NW, Washington, DC 20230, (202) 482-5438.

    SUPPLEMENTARY INFORMATION:

    Chapter 19 of Article 1904 of NAFTA provides a dispute settlement mechanism involving trade remedy determinations issued by the Government of the United States, the Government of Canada, and the Government of Mexico. Following a Request for Panel Review, a Binational Panel is composed to review the trade remedy determination being challenged and issue a binding Panel Decision. There are established NAFTA Rules of Procedure for Article 1904 Binational Panel Reviews, which were adopted by the three governments for panels requested pursuant to Article 1904(2) of NAFTA which requires Requests for Panel Review to be published in accordance with Rule 35. For the complete Rules, please see https://www.nafta-sec-alena.org/Home/Texts-of-the-Agreement/Rules-of-Procedure/Article-1904.

    The Rules provide that:

    (a) A Party or interested person may challenge the final determination in whole or in part by filing a Complaint in accordance with Rule 39 within 30 days after the filing of the first Request for Panel Review (the deadline for filing a Complaint is May 18, 2018);

    (b) A Party, investigating authority or interested person that does not file a Complaint but that intends to appear in support of any reviewable portion of the final determination may participate in the panel review by filing a Notice of Appearance in accordance with Rule 40 within 45 days after the filing of the first Request for Panel Review (the deadline for filing a Notice of Appearance is June 4, 2018); and

    (c) The panel review shall be limited to the allegations of error of fact or law, including challenges to the jurisdiction of the investigating authority, that are set out in the Complaints filed in the panel review and to the procedural and substantive defenses raised in the panel review.

    Dated: April 26, 2018. Paul E. Morris, U.S. Secretary, NAFTA Secretariat.
    [FR Doc. 2018-09266 Filed 5-1-18; 8:45 am] BILLING CODE 3510-GT-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-580-869] Large Residential Washers From the Republic of Korea: Final Results of Expedited First Sunset Review of the Countervailing Duty Order AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) finds that revocation of the countervailing duty (CVD) order on large residential washers (washing machines) from the Republic of Korea (Korea) would be likely to lead to continuation or recurrence of countervailable subsidies at the levels indicated in the “Final Results of Sunset Review” section of this notice.

    DATES:

    Applicable May 2, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Kaitlin Wojnar at (202) 482-3857, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.

    SUPPLEMENTARY INFORMATION:

    Background

    Commerce published the CVD order on washing machines from Korea on February 15, 2013.1 On January 2, 2018, Commerce initiated this review, the first five-year (sunset) review of the Order, in accordance with section 751(c)(2) of the Tariff Act of 1930, as amended (the Act).2 Whirlpool Corporation, a domestic producer of washing machines and the petitioner in the underlying CVD investigation, subsequently filed a timely notice of intent to participate.3

    1See Large Residential Washers from the Republic of Korea: Countervailing Duty Order, 78 FR 11154 (February 15, 2013) (Order).

    2See Initiation of Five-Year (Sunset) Reviews, 83 FR 100 (January 2, 2018).

    3See Letter from the petitioner, “Five-Year (`Sunset') Review of Antidumping and Countervailing Duty Orders on Large Residential Washers from Mexico and the Republic of Korea: Notice of Intent to Participate,” January 17, 2018. As a domestic producer of washing machines, the petitioner is an interested party to this proceeding pursuant to section 771(9)(C) of the Act.

    Commerce received an adequate and timely substantive response from the petitioner on February 5, 2018.4 Neither the Government of Korea (GOK) nor any other respondent interested party to this proceeding submitted a substantive response. Therefore, pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(B)(2) and (C)(2), Commerce conducted an expedited sunset review of the Order. As a result of the tolling of deadlines for the closure of the Federal Government from January 20 through January 22, 2018, the deadline for this expedited sunset review was extended to May 7, 2018.5

    4See Letter from the petitioner, “Five-Year (`Sunset') Review of the Countervailing Duty Order on Large Residential Washers from Korea: Substantive Response of Whirlpool Corporation to the Notice of Initiation of First Sunset Review,” February 5, 2018. The petitioner's response was filed in accordance with 19 CFR 351.218(d).

    5See Commerce Memorandum, “Deadlines Affected by the Shutdown of the Federal Government,” January 23, 2018.

    Scope of the Order

    The product covered by the Order is washing machines from Korea. For a complete description of the scope of the Order, see the Appendix to this notice.

    Analysis of Comments Received

    All issues raised in this review are addressed in the accompanying Issues and Decision Memorandum.6 These issues include the likelihood of continuation or recurrence of countervailable subsidies, the net countervailable subsidy rate likely to prevail upon revocation of the Order, and the nature of the subsidies. The Issues and Decision Memorandum is a public document and is available electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov and to all parties in the Central Records Unit in Room B8024 of the main Commerce building. In addition, a complete electronic version of the Issues and Decision Memorandum can be accessed at http://enforcement.trade.gov/frn/. The signed and electronic versions of the Issues and Decision Memorandum are identical in content.

    6See Commerce Memorandum, “Countervailing Duty Order on Large Residential Washers from the Republic of Korea: Issues and Decision Memorandum for the Final Results of the Expedited First Sunset Review,” dated concurrently with, and hereby adopted by, this Federal Register notice (Issues and Decision Memorandum).

    Final Results of Sunset Review

    Pursuant to sections 752(b)(1) and (3) of the Act, we determine that revocation of the Order would be likely to lead to continuation or recurrence of net countervailable subsidies at the rates listed below:

    Exporter/producer Net
  • countervailable
  • subsidy rate
  • (percent)
  • Daewoo Electronics Corporation 80.25 Samsung Electronics Co., Ltd. 20.75 All-Others 15.28
    Notification Regarding Administrative Protective Order

    This notice also serves as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of the return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a violation subject to sanction.

    Commerce is issuing and publishing these final results in accordance with sections 751(c), 752(b), and 777(i)(1) of the Act and 19 CFR 351.218.

    Dated: April 26, 2018. Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance. Appendix Scope of the Order

    The products covered by this order are all large residential washers and certain subassemblies thereof from Korea.

    For purposes of this order, the term “large residential washers” denotes all automatic clothes washing machines, regardless of the orientation of the rotational axis, except as noted below, with a cabinet width (measured from its widest point) of at least 24.5 inches (62.23 cm) and no more than 32.0 inches (81.28 cm).

    Also covered are certain subassemblies used in large residential washers, namely: (1) All assembled cabinets designed for use in large residential washers which incorporate, at a minimum: (a) At least three of the six cabinet surfaces; and (b) a bracket; (2) all assembled tubs 1 designed for use in large residential washers which incorporate, at a minimum: (a) A tub; and (b) a seal; (3) all assembled baskets 2 designed for use in large residential washers which incorporate, at a minimum: (a) A side wrapper; 3 (b) a base; and (c) a drive hub; 4 and (4) any combination of the foregoing subassemblies.

    1 A “tub” is the part of the washer designed to hold water.

    2 A “basket” (sometimes referred to as a “drum”) is the part of the washer designed to hold clothing or other fabrics.

    3 A “side wrapper” is the cylindrical part of the basket that actually holds the clothing or other fabrics.

    4 A “drive hub” is the hub at the center of the base that bears the load from the motor.

    Excluded from the scope are stacked washer-dryers and commercial washers. The term “stacked washer-dryers” denotes distinct washing and drying machines that are built on a unitary frame and share a common console that controls both the washer and the dryer. The term “commercial washer” denotes an automatic clothes washing machine designed for the “pay per use” market meeting either of the following two definitions:

    (1) (a) It contains payment system electronics; 5 (b) it is configured with an externally mounted steel frame at least six inches high that is designed to house a coin/token operated payment system (whether or not the actual coin/token operated payment system is installed at the time of importation); (c) it contains a push button user interface with a maximum of six manually selectable wash cycle settings, with no ability of the end user to otherwise modify water temperature, water level, or spin speed for a selected wash cycle setting; and (d) the console containing the user interface is made of steel and is assembled with security fasteners; 6   or

    5 “Payment system electronics” denotes a circuit board designed to receive signals from a payment acceptance device and to display payment amount, selected settings, and cycle status. Such electronics also capture cycles and payment history and provide for transmission to a reader.

    6 A “security fastener” is a screw with a non-standard head that requires a non-standard driver. Examples include those with a pin in the center of the head as a “center pin reject” feature to prevent standard Allen wrenches or Torx drivers from working.

    (2) (a) it contains payment system electronics; (b) the payment system electronics are enabled (whether or not the payment acceptance device has been installed at the time of importation) such that, in normal operation,7 the unit cannot begin a wash cycle without first receiving a signal from a bona fide payment acceptance device such as an electronic credit card reader; (c) it contains a push button user interface with a maximum of six manually selectable wash cycle settings, with no ability of the end user to otherwise modify water temperature, water level, or spin speed for a selected wash cycle setting; and (d) the console containing the user interface is made of steel and is assembled with security fasteners.

    7 “Normal operation” refers to the operating mode(s) available to end users (i.e., not a mode designed for testing or repair by a technician).

    Also excluded from the scope are automatic clothes washing machines with a vertical rotational axis and a rated capacity of less than 3.70 cubic feet, as certified to the U.S. Department of Energy pursuant to 10 CFR 429.12 and 10 CFR 429.20, and in accordance with the test procedures established in 10 CFR part 430.

    The products subject to this order are currently classifiable under subheading 8450.20.0090 of the Harmonized Tariff System of the United States (HTSUS). Products subject to this order may also enter under HTSUS subheadings 8450.11.0040, 8450.11.0080, 8450.90.2000, and 8450.90.6000. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise subject to this scope is dispositive.

    [FR Doc. 2018-09310 Filed 5-1-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-201-830] Carbon and Certain Alloy Steel Wire Rod From Mexico: Notice of Correction to Final Results of Antidumping Duty Administrative Review and Final Determination of No Shipments; 2015-2016 AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    FOR FURTHER INFORMATION CONTACT:

    Keith Haynes, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-5139.

    SUPPLEMENTARY INFORMATION:

    On April 17, 2018, the Department of Commerce (Commerce) published the final results of the 2015-2016 antidumping duty administrative review of carbon and certain alloy steel wire rod from Mexico.1 In that notice, Commerce inadvertently listed an incorrect weighted-average dumping margin of 12.57 percent for Deacero S.A.P.I. de C.V. (Deacero), a producer and exporter of wire rod.2 The correct weighted-average dumping margin for Deacero is 12.56 percent.

    1See Carbon and Certain Alloy Steel Wire Rod From Mexico: Final Results of Antidumping Duty Administrative Review and Final Determination of No Shipments; 2015-2016, 83 FR 16832 (April 17, 2018) (Final Results).

    2Id., 83 FR at 16833.

    This correction to the Final Results is issued and published in accordance with sections 751(a)(1) and 777(i)(l) of the Tariff Act of 1930, as amended.

    Dated: April 26, 2018. Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2018-09309 Filed 5-1-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF957 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to the Cook Inlet Pipeline Cross Inlet Extension Project AGENCY:

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

    ACTION:

    Notice; issuance of incidental harassment authorization.

    SUMMARY:

    In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA), as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to Harvest Alaska, LLC (Harvest), to incidentally take, by Level B harassment, eight species of marine mammals incidental to oil and gas pipeline installation activities associated with the Cook Inlet Pipeline Cross Inlet Extension Project (CIPL), Cook Inlet, Alaska.

    DATES:

    The IHA is valid from April 25, 2018, through April 24, 2019.

    FOR FURTHER INFORMATION CONTACT:

    Jaclyn Daly, Office of Protected Resources, NMFS, (301) 427-8401.

    SUPPLEMENTARY INFORMATION:

    Availability

    An electronic copy of the IHA and supporting documents, as well as a list of the references cited in this document, may be obtained online at https://www.fisheries.noaa.gov/node/23111. In case of problems accessing these documents, please call the contact listed above (see FOR FURTHER INFORMATION CONTACT).

    Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.

    NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.

    NMFS has defined “unmitigable adverse impact” in 50 CFR 216.103 as an impact resulting from the specified activity:

    (1) That is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by: (i) Causing the marine mammals to abandon or avoid hunting areas; (ii) directly displacing subsistence users; or (iii) placing physical barriers between the marine mammals and the subsistence hunters; and

    (2) That cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.

    The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.

    Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our proposed action (i.e., the issuance of an incidental harassment authorization) with respect to potential impacts on the human environment.

    Accordingly, NMFS prepared an Environmental Assessment (EA) to consider the environmental impacts associated with the issuance of the proposed IHA and, on April 25, 2018, issued an associated Finding of No Significant Impact. NMFS' EA and FONSI are available at https://www.fisheries.noaa.gov/node/23111.

    Description of Proposed Activity

    The proposed CIPL project includes the installation of two new steel subsea pipelines in the waters of Cook Inlet. Work includes moving subsea obstacles out of the pipeline corridor, pulling two pipelines (one oil, one gas) into place on the seafloor, securing pipelines with sandbags, and connecting the pipelines to the existing Tyonek platform. The positioning and installation of the offshore pipeline would be accomplished using a variety of pipe pulling, positioning, and securing methods supported by dive boats, tug boats, and/or barges and winches. Work would be limited to the pipeline corridor from Ladd Landing to the Tyonek Platform and could occur for up to 108 days. The installation of the subsea pipelines, specifically presence of and noise generated from work vessels, has the potential to take marine mammals by harassment. NMFS has authorized Harvest to take small numbers of eight species of marine mammals incidental to the project.

    Dates and Duration

    The CIPL project will take place for approximately 108 days if able to work without interruption (e.g., weather delays). Work will be staged with repositioning of obstacles (e.g., boulders) lasting approximately 15 days, pipe pulling lasting approximately 11 days (weather permitting) and the remainder of the project, including equipment mobilization, pipeline securing, pipeline connection to the Tyonek platform, and demobilization constituting the remainder of the 108 day project.

    Specific Geographic Region

    Cook Inlet is a complex Gulf of Alaska estuary (as described in BOEM 2016) that covers roughly 7,700 square miles (mi2; 20,000 square kilometers (km2)), with approximately 840 miles (mi) (1,350 linear kilometer (km)) of coastline (Rugh et al., 2000). Cook Inlet is generally divided into upper and lower regions by the East and West Forelands (see Figure 1-1 in Harvest's application). Northern Cook Inlet bifurcates into Knik Arm to the north and Turnagain Arm to the east. Overall, Cook Inlet is shallow, with an area-weighted mean depth of 148 feet (ft) (44.7 meters (m)). The physical oceanography of Cook Inlet is characterized by complex circulation with variability at tidal, seasonal, annual, and inter-annual timescales (Musgrave and Statscewich, 2006). This region has the fourth largest tidal range in the world and as a result, extensive tidal mudflats that are exposed at low tides occur throughout Cook Inlet, especially in the upper reaches. These tides are also the driving force of surface circulation. Strong tidal currents drive the circulation in the greater Cook Inlet area with average velocities ranging from 1.5 to 3 m per second (3 to 6 knots).

    The project area is located a few km north of the village of Tyonek between Ladd Landing and the Tyonek Platform (see Figure 1-2 of Harvest's application). On April 11, 2011, NMFS designated beluga whale (Delphinapterus leucas) critical habitat in the action area. Critical habitat includes known fall and winter Cook Inlet beluga whale foraging and transiting areas (see Figure 4-1 in Harvest's application).

    Detailed Description of Specific Activity

    A complete description of the specified activity may be found in our notice of the proposed IHA (83 FR 8437; February 27, 2018) and a summary is provided below. No changes to the proposed project have occurred since publication of that notice.

    The project includes the installation of two new steel subsea pipelines in the waters of Cook Inlet: A 10-inch (in) nominal diameter gas pipeline (Tyonek W 10) between the Tyonek Platform and the Beluga Pipeline (BPL) Junction, and the 8-in nominal diameter oil pipeline (Tyonek W 8) between the existing Tyonek Platform and Ladd Landing. Pipelines installation activities would be conducted in phases and include moving subsea obstacles out of the pipeline corridor, pulling two pipelines (one oil, one gas) into place on the seafloor, securing pipelines with sandbags, and connecting the pipelines to the existing Tyonek platform. The positioning and installation of the offshore pipeline would be accomplished using a variety of pipe pulling, positioning, and securing methods supported by dive boats, tug boats, and/or barges and winches. The barge would be relocated approximately two to three times per day. Work would be limited to the pipeline corridor from Ladd Landing to the Tyonek Platform and could occur for up to 108 days. Table 1 contains construction scenarios during the phased project and associated use duration.

    Table 1—Construction Scenarios, Associated Equipment and Estimated Source Levels During the 108-Day CIPL Project Project component/scenario Noise source Approximate
  • duration
  • (days)
  • Approximate
  • hours per day
  • Obstruction Removal and Pipeline pulling (subtidal) Tug (120 ft) × 2 68 10-12 Dive boat 1 28 9 Sonar boat 2 9 12 Work boat (120 ft) 1 68 9 Crew boat (48 ft) 1 68 9 Barge anchoring 3 Pipeline pulling (intertidal) Tug × 2 16 10-12 Barge anchoring Crew boat 16 Trenching (transition zone) Tug × 2 10 12 Backhoe/bucket dredge 4 (beach-based) 10 12 Mid-line Pipeline Tie-In Work Tug × 2 7 10-12 Dive boat 4 9 Work boat 7 12 Barge anchoring 7 6 Connections of Tyonek Platform Tug × 2 7 10-12 Work boat 7 8 Dive boat 7 9 Underwater tools (hydraulic wrench, pneumatic grinder, and pressure washer) 7 30 minutes Total Duration 5 Tug × 2 108 Dive boat 39 Sonar boat 9 Work/crew boat 108 1 The dive boat, crew boat, and work boat durations are shorter than tugs because they would be tied to the barge most of the time. Main engines would not be running while tied up, but a generator and compressors would be running to support diving operations. 2 Sonar boat engine noise only. Sonar equipment would operate at frequencies over 200 kHz. 3 Barge is equipped with four anchors. 4 Backhoe and tug will be used approximately 2-4 hours per low/slack tide to complete transition zone installation. 5 Total time does not include allowance of 6 weather days because vessels would not operating during those days.
    Comments and Responses

    A notice of proposed IHA was published in the Federal Register on February 27, 2018 (83 FR 8437) for public comment. During the 30-day public comment period, NMFS received comment letters from the Marine Mammal Commission (Commission) and a group of students from the University of Arizona (Students). The public comment letters received on the notice of proposed IHA are available on the internet at: https://www.fisheries.noaa.gov/node/23111. Following is a summary of the public comments and NMFS' responses.

    Comment 1: The Commission acknowledged that the activities will likely have lesser impacts than other sound-producing activities but indicated that NMFS should explain why the activities, in combination with ongoing and other planned activities in Cook Inlet, would affect only a small number of Cook Inlet beluga whales and have no more than a negligible impact on the population.

    NMFS Response: In accordance with the MMPA and our implementing regulations at 50 CFR 216.104(c), and as described in this notice, we use the best available scientific evidence to determine whether the taking of marine mammals by the specified activity within the specified geographic region will have a negligible impact on the affected species or stock. The MMPA requires these findings be made with respect to the specified activity contained within an applicant's request for authorization. However, our negligible impact finding considers the potential impact of the specified activity in consideration of the status of the stock and existing threats. That is, the impacts from other past and ongoing anthropogenic activities are incorporated into the negligible impact analysis via their impacts on the environmental baseline (e.g., density/distribution and status of the species, population size and growth rate, and ambient noise). Here, as acknowledged by the Commission, the potential impact of the specified activity is low. Moreover, the IHA contains a number of mitigation and monitoring measures designed to minimize, reducing both frequency of take and intensity of take (which is already low). Further, as described here, we have compared the number of take to the stock abundance and determined that we are authorizing take of a small number of marine mammals per stock.

    NMFS has made the necessary findings to issue the IHA to Harvest for take of marine mammals incidental to their pipeline installation activities. Nonetheless, NMFS agrees that caution is appropriate in the management of impacts on this small resident beluga population with declining abundance and constricted range. Accordingly, NMFS is requiring that Harvest submit weekly and monthly reports on their daily marine mammal monitoring efforts. Consistent with our implementing regulations, if NMFS determines that the level of taking is having or may have a more than negligible impact on a species or stock, NMFS may suspend or modify an LOA, as appropriate, following notice and comment.

    Comment 2: The Commission recommends that NMFS include take authorization for California sea lions, increase the number of authorized takes of harbor porpoises from 10 to at least 72, and require Harvest to notify NMFS immediately if the numbers of takes approach the authorized limits for any species.

    NMFS Response: NMFS has reviewed a suite of industry monitoring reports, NMFS marine mammal survey data, and NMFS anecdotal sighting database in consideration of the Commission's comments with respect to all species proposed for authorization and determined that an adjustment of take numbers for almost all species was warranted to ensure the numbers of authorized takes for the project was sufficient given the nature of the project (i.e., some activities cannot be stopped once begun). We refer the reader to the “Estimated Take” section below for details on how the new take numbers were calculated. Specific to the Commission's comment on harbor porpoise, NMFS authorized the take of 100 individuals in the IHA based on 2012 industry survey reports (which NMFS notes indicate an unusually large number of sightings compared to multiple and more recent survey years). NMFS has also added takes and associated analysis of California sea lions and gray whales included the recommended notification measure should Harvest approach take limits for any marine mammal species.

    Comment 3: The Commission recommended, after reviewing proposed changes to the monitoring plan (see Monitoring and Reporting section), that NMFS require Harvest to deploy an additional protected species observer (PSO) on an alternate vessel located on the opposite side of the Level B harassment zone from the proposed land- or platform-based observer.

    NMFS Response: The Commission's comment reflect a concern for marine mammal detectability during the time activities are occurring in the middle of the project corridor between land and the Tyonek Platform. NMFS agrees detection at these distances is problematic; however, we disagree that placing another vessel on the water (which introduces additional underwater noise) is the appropriate response to addressing this issue. Instead, NMFS is requiring Harvest to place an observer at Ladd Landing and the Tyonek platform (concurrently) when pipelines installation activities occur 2 to 6.5 km from shore. Further, the PSO(s) would be in constant contact with vessel captains and crew and NMFS has included an additional monitoring measure requiring vessel-based crew to report any marine mammal sighting to the PSO.

    Comment 4: The Commission requested clarification of certain issues associated with NMFS's notice that one-year renewals could be issued in certain limited circumstances and expressed concern that the process would bypass the public notice and comment requirements. The Commission also suggested that NMFS should discuss the possibility of renewals through a more general route, such as a rulemaking, instead of notice in a specific authorization. The Commission further recommended that if NMFS did not pursue a more general route, that the agency provide the Commission and the public with a legal analysis supporting our conclusion that this process is consistent with the requirements of 101(a)(5)(D) of the MMPA.

    NMFS Response: The process of issuing a renewal IHA does not bypass the public notice and comment requirements of the MMPA. The notice of the proposed IHA expressly notifies the public that under certain, limited conditions an applicant could seek a renewal IHA for an additional year. The notice describes the conditions under which such a renewal request could be considered and expressly seeks public comment in the event such a renewal is sought. Importantly, such renewals would be limited to where the activities are identical or nearly identical to those analyzed in the proposed IHA, monitoring does not indicate impacts that were not previously analyzed and authorized, and the mitigation and monitoring requirements remain the same, all of which allow the public to comment on the appropriateness and effects of a renewal at the same time the public provides comments on the initial IHA. NMFS has modified the language for future proposed IHAs to clarify that all IHAs, including renewal IHAs, are valid for no more than one year and that the agency would consider only one renewal for a project at this time (the latter accomplished by using the word “second”). In addition, notice of issuance or denial of a renewal IHA would be published in the Federal Register, as are all IHAs. Lastly, NMFS will publish on our website a description of the renewal process before any renewal is issued utilizing the new process.

    Comment 5: The Students were concerned marine mammals access may be blocked by the project provided pipe segments, which are 2.5 mi long, and requested more information on mitigation measures designed to ensure animals have access to important foraging areas in the northern inlet.

    NMFS Response: The project would not create physical barriers to accessing locations north and south of the project area. The pipelines would be pulled along the sea floor and the presence of the limited number of vessels involved in the project would not block access. Acoustically, we anticipate the highest noise levels to occur at the vessel and barge locations, not within an entire 2.5 mi stretch in any particular moment in time. As described in our Federal Register notice, we believe animals will detour around the project site but more specifically, around the work vessels generating the most amount of noise. Furthermore, the noise levels are not particularly high, and belugas are accustomed to industrial noises such as at the Port of Anchorage. There is ample evidence that construction noise at the Port of Anchorage, including impact pile driving, does not deter belugas from accessing critical foraging area higher in Knik Arm. Through the IHA, Harvest is also required to implement a number of mitigation measures designed to minimize both the frequency and degree of impact. These include lowering source levels of vessels at all times when full engine engagement is not required (e.g., idle, tie up to barge and shut-down) and to delay the onset of activities if animals are observed within or entering the Level B harassment zone. Lastly, Harvest is required to submit weekly monitoring reports to NMFS for the duration of the project. Should monitoring by Harvest indicate marine mammals are experiencing anything more than the expected impacts, NMFS would employ an adaptive management approach to ensure impacts are not beyond those anticipated.

    Comment 6: The Students expressed concern that information in the EA is not adequate to estimate amount of take and, specifically, harbor porpoise sightings have increased in recent years and should be considered.

    NMFS Response: NMFS refers the reader to our response to the Commission's comment regarding amount of take (Comment 2) and the “Estimated Take” section.

    Comment 7: The Students indicated coordination with other agencies, local organizations, Inuit communities, US Fish and Wildlife Service, or other interest groups during development of the draft Environmental Assessment NMFS prepared for the project could result in a more effective project plan that could lessen the level B harassment on the marine mammals and allow for improved completion of the project.

    NMFS Response: NMFS provided both the proposed IHA and draft EA for public comment. The agencies, communities, and interest groups referenced had opportunity to comment during this time and, as indicated in the Federal Register notice for the proposed IHA, NMFS considered all comments prior to issuing the IHA and finalizing the EA. Moreover, the MMPA requires NMFS to prescribe mitigation measures that effect the least practicable impact on marine mammal species and stocks, which we believe has been achieved.

    Description of Marine Mammals in the Area of Specified Activities

    In the Federal Register notice announcing our proposed IHA (83 FR 8437; February 27, 2018), we summarized available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of six of the potentially affected species. We have determined two additional species, the gray whale and California sea lion, have the potential, albeit unlikely, to enter into the project area. Due to the nature of the activities and the inability to stop some of the operational activities once they commence (e.g., pipe pulling or pushing the barge), we are including, in an abundance of caution, these species in the final IHA. Table 2 provides a summary of the status of these species.

    Table 2—Species With Potential Occurrence Within the Action Area Common name Scientific name Stock ESA/MMPA
  • status;
  • Strategic
  • (Y/N) 1
  • Stock abundance (CV, Nmin, most
  • recent abundance
  • survey) 2
  • PBR 3 Annual M/SI 4
    Order Cetartiodactyla—Cetacea—Superfamily Mysticeti (baleen whales) Family Eschrichtiidae: Gray whale Eschrichtius robustus Eastern North Pacific - 20,990 (0.05, 20125, 2011) 624 132 Family Balaenopteridae (rorquals): Humpback whale Megaptera novaeangliae Central North Pacific E;Y 10,103 (0.3, 7890, 2006) 83 24 Superfamily Odontoceti (toothed whales, dolphins, and porpoises) Family Delphinidae: Beluga whale Delphinapterus leucas Cook Inlet E;Y 312 (0.1, 287, 2014) UND 0 Killer whale Orcinus orca Alaska Resident - 2,347 (unk, 2,347, 2012) 24 1 Killer whale Orcinus orca Gulf of Alaska, Aleutian, Bering Sea Transient - 587 (unk, 587, 2012) 5.9 1 Family Phocoenidae (porpoises): Harbor porpoise Phocoena phocoena Gulf of Alaska N;Y 31,046 (0.214, N/A, 1998) UND 72 Order Carnivora—Superfamily Pinnipedia Family Otariidae (eared seals and sea lions): Steller sea lion Eumetopias jubatus Western U.S. E;Y 50,983 (unk, 50,983, 2015) 306 236 California sea lion Zalophus californianus U.S. - 296,750 (n/a, 153,337, 2014) 9,200 389 Family Phocidae (earless seals): Harbor seal Phoca vitulina Cook Inlet/Shelikof Strait - 27,386 (unk, 25,651, 2011) 770 234 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 3 UND is an undetermined Potential Biological Removal (PBR) 4 These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.

    In summary, eight marine mammal species, including five cetaceans and three pinnipeds, may be found within Cook Inlet during the project (Table 2). These are the Cook Inlet beluga whale, humpback whale, gray whale, killer whale, harbor porpoise, harbor seal, Steller sea lion and California sea lion. We refer the reader to the Federal Register notice for information regarding species previously considered. We provide a summary of the relevant information for the additional species (gray whale and California sea lion) below. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SAR; www.nmfs.noaa.gov/pr/sars/) and more general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS's website (https://www.fisheries.noaa.gov/about/office-protected-resources).

    Gray whales

    Each spring, the Eastern North Pacific stock of gray whale migrates 8,000 km (5,000 mi) northward from breeding lagoons in Baja California to feeding grounds in the Bering and Chukchi seas, reversing their travel again in the fall (Rice and Wolman, 1971). Their migration route is for the most part coastal until they reach the feeding grounds. A small portion of whales do not annually complete the full circuit, as small numbers can be found in the summer feeding along the Oregon, Washington, British Columbia, and Alaskan coasts (Rice et al., 1984, Moore et al., 2007).

    Most gray whales migrate past the mouth of Cook Inlet to and from northern feeding grounds. However, small numbers of summering gray whales have been observed within Cook Inlet, mostly in the lower inlet (e.g., Owl Ridge, 2014). Gray whales have not been observed in the upper inlet; however, seismic surveys encompassing the middle and upper inlet (including the project area) have observed gray whales. On June 1, 2012, there were three gray whale sightings during marine mammal monitoring for a seismic survey; the survey area included the pipeline project area (SAE, 2012). It is not known if this was the same animal observed multiple times or multiple individuals. A lone gray whale was also observed near the middle inlet in 2014 and in May 2015, what was believed to be a gray whale based on blow shape was observed during marine mammal monitoring conducted for seismic surveys (SAE 2014, 2015).

    Threats to this species include ship strike, entanglement in fishing gear, and increased human use of more northern latitudes as ice melts (Caretta et al., 2015).

    California Sea Lions

    California sea lions (Zalophus californianus) are distributed along the North Pacific waters from central Mexico to southeast Alaska, with breeding areas restricted primarily to island areas off southern California (the Channel Islands), Baja California, and in the Gulf of California (Wright et al., 2010). The population is comprised of five genetically distinct populations: The United States population that breeds on offshore islands in California; the western Baja California population that breeds offshore along the west coast of Baja California, Mexico; and three populations (southern, central and northern) that breed in the Gulf of California, Mexico. Males migrate long distances from the colonies during the winter whereas females and juveniles remain close the breeding areas. The approximate growth rate for this species is 5.4 percent annually (Caretta et al., 2004).

    California sea lions are very rare in Cook Inlet and typically are not observed farther north than southeast Alaska. However, NMFS' anecdotal sighting database contains four California sea lion sightings in Seward and Kachemak Bay (pers. comm., Kate Savage, NMFS, March 27, 2018). In addition, an industry survey report contains a sighting of two California sea lions in lower Cook Inlet; however, it is unclear if these animals were indeed California sea lions or a mis-identified Steller sea lions (SAE, 2012). Regardless, in an abundance of caution, we have included take for California sea lions in the final IHA.

    Threats to this species include incidental catch and entanglement in fishing gear, such as gillnets; biotoxins, as a result of harmful algal blooms; and gunshot wounds and other human-caused injuries, as California sea lions are sometimes viewed as a nuisance by commercial fishermen (NOAA 2016).

    Potential Effects of Specified Activities on Marine Mammals and Their Habitat

    In the “Potential Effects of the Specified Activity on Marine Mammals and Their Habitat” section of the notice of proposed IHA (83 FR 8437, February 27, 2018), NMFS included a qualitative discussion of the different ways that Harvest's pipelines installation activities may potentially affect marine mammals. The information contained in the notice has not changed. Please refer to that notice for the full discussion. Below we provide a summary.

    The CIPL project has the potential to harass marine mammals from exposure to noise from working vessels (e.g., tugs pushing barges) and construction activities such as removing obstacles from the pipeline path, pulling pipelines, anchoring the barge, divers working underwater with noise-generating equipment, trenching, etc. In this case, NMFS considers potential harassment from the collective use of vessels working in a concentrated area for an extended period of time and noise created when moving obstacles, pulling pipelines, trenching in the intertidal transition zone, and moving the barge two to three times per day using two tugs. Essentially, the project area will become be a concentrated work area in an otherwise non-industrial, serene setting. In addition, the presence of the staging area on land and associated work close to shore may harass hauled-out seals and sea lions.

    We anticipate effects of the project to be limited to masking and behavioral disturbance (e.g., avoidance, cessation of vocalizations, increased swim speeds, etc.). We do not anticipate auditory threshold shift, permanent (PTS) or temporary (TTS), to occur due to low source levels and the fact marine mammals species are unlikely to be exposed for periods of time needed to incur the potential for PTS or TTS from the sources involved with pipeline installation. We also do not anticipate marine mammals transiting to an intended destination to abandon the effort; we expect the length of any detour around working vessels to be minimal.

    Estimated Take

    This section provides the number of incidental takes authorized through the IHA, which informed both NMFS' consideration of “small numbers” and the negligible impact determination.

    Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    Authorized takes would be by Level B harassment only, in the form of disruption of behavioral patterns individual marine mammals resulting from exposure to multiple working vessels and construction activities in a concentrated area. For reasons described in the Federal Register notice for the proposed IHA, Level A harassment is not anticipated or authorized. No mortality is anticipated or authorized for this activity. Below we describe how the take was quantified.

    Described in the most basic way, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. Below, we describe these components in more detail and present the authorized take estimate.

    Acoustic Thresholds

    Using the best available science, NMFS uses acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).

    Level B Harassment for non-explosive sources—Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source (e.g., frequency, predictability, duty cycle), the environment (e.g., bathymetry), and the receiving animals (hearing, motivation, experience, demography, behavioral context) and can be difficult to predict (Southall et al., 2007, Ellison et al., 2011). Based on what the available science indicates and the practical need to use a threshold based on a factor that is both predictable and measurable for most activities, NMFS uses a generalized acoustic threshold based on received level to estimate the onset of behavioral harassment. NMFS predicts that marine mammals are likely to be behaviorally harassed in a manner we consider Level B harassment when exposed to underwater anthropogenic noise above received levels of 120 decibels (dB) re 1 micro pascal (μPa) (root means square (rms)) for continuous (e.g. vibratory pile-driving, drilling) and above 160 dB re 1 μPa (rms) for non-explosive impulsive (e.g., seismic airguns) or intermittent (e.g., scientific sonar) sources.

    Harvest's activity includes the use of multiple continuous sources and activities (e.g., vessels, pipe pulling) and therefore the 120 dB re 1 μPa (rms) threshold is applicable. As described above, in this case we believe it is not any one of these single sources alone that is likely to harass marine mammals, but a combination of sources and the physical presence of the equipment. We use this cumulative assessment approach below to identify ensonified areas and take estimates.

    Level A harassment for non-explosive sources—NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (NMFS, 2016b) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). Harvest's activity includes the use of non-impulsive (e.g., tugs pushing a barge, pipe pulling) sources.

    These thresholds are provided in the Table 3. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2016 Technical Guidance, which may be accessed at: http://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm.

    BILLING CODE 3510-22-P EN02MY18.000 BILLING CODE 3510-22-C Ensonified Area

    Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds.

    When NMFS Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced will typically be overestimates of some degree, which will result in some degree of overestimate of Level A harassment. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available. NMFS will continue to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. Although vessels are mobile, we are considering them stationary for purposes of this project due to the confined area of work. For stationary sources, NMFS' User Spreadsheet predicts the closest distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would not incur PTS. Inputs used in the User Spreadsheet and the resulting isopleths are reported below.

    The sources and activities involved with the CIPL project are relatively low compared to other activities for which NMFS typically authorizes take (e.g., seismic surveys, impact pile driving). However, these sources will be operating for extended periods and NMFS' PTS thresholds now incorporate a time component. That time component is based on both the duration of the activity and the likely amount of time an animal would be exposed. To determine if there is potential for PTS from the CIPL project, we considered operations may occur throughout the day and night, and despite tugs being on stand-by for much of the time, a full day (24 hours) was the most conservative approach for estimating potential for PTS. Therefore, we used a source level of 170 dB measured at 1 m (estimated tug noise), a practical spreading loss model (15logR), and the weighting factor adjustment (WFA) for vibratory pile driving as a proxy for vessels (2.5 kHz). The distances to PTS thresholds considering a 24 hour exposure duration is provided in Table 4. Based on these results, we do not anticipate the nature of the work has the potential to cause PTS in any marine mammal hearing group; therefore, we do not anticipate auditory injury (Level A harassment) will occur.

    Table 4—Distances to NMFS PTS Thresholds Hearing group Distance to
  • PTS threshold
  • (m)
  • Low-frequency cetaceans 22.6 Mid-frequency cetaceans 2.0 High-frequency cetaceans 33.4 Phocids 13.8 Otarids 1.0

    Each construction phase involves multiple pieces of equipment that provide physical and acoustic sources of disturbance. For this project, we anticipate the ensonified area to shift as the project progresses along the pipeline corridor. That is, at the onset of the project, work will be concentrated in the intertidal zone close to shore and, as work continues, moving offshore towards the Tyonek platform. We also anticipate that the sound field generated by the combination of several sources will expand and contract as various construction related activities are occurring. For example, pushing the barge may require tugs to use increased thruster power, which would likely result in greater distances to the 120 dB re 1 μPa threshold in comparison to general movement around the area. Therefore, calculating an ensonified area for the entire pipeline corridor would be a gross overestimate and we offer an alternative here.

    Because we consider the potential for take from the combination of multiple sources (and not any given single source), we estimate the ensonified area to be a rectangle centered along the pipeline corridor which encompasses all in-water equipment and a buffer around the outside of the cluster of activities constituting the distance calculated to the 120 dB threshold from one tug (i.e., 2,200 m). NMFS determined a tug source level (170 dB re: 1 μPa) for the duration of the project would be a reasonable step in identifying an ensonified zone since tugs would be consistently operating in some manner, and other sources of noise (e.g., trenching, obstacle removal, underwater tools) are all expected to produce less noise. Anchor handling during barge relocation is also a source of noise during the project; however, we believe using the tug is most appropriate. NMFS is aware of anchor handling noise measurements made in the Arctic during a Shell Oil exploratory drilling program that produced a noise level of 143 dB re 1 μPa at 860 m (LGL et al., 2014). However, that measurement was during deployment of 1 of 12 anchors in an anchor array system associated with a large drill rig and it would be overly conservative to adopt here.

    Although vessels and equipment (e.g., tugs, support vessels, barge) spacing would vary during the course of operations, a single layout must be assumed for modeling purposes. We assume the barge used for pipe pulling and supporting trenching and stabilization is placed in the middle of a group of vessels and directly in line with the pipeline corridor. The sonar and dive boats would also be concentrated along the pipeline corridor path. We conservatively assume tugs would be spaced approximately 0.5 km from the barge/pipeline corridor during stand-by mode and could be on opposite sides of the corridor. Also, vessels and equipment would shift from nearshore to offshore as the project progresses. For simplicity, we divided the pipeline corridor (8.9 km) in half for our ensonified area model because each pipe pulled would be approximately 4.45 km each. We then considered the estimated distance to the 120 dB threshold from the tug (2.2 km). We then doubled that distance and adjusted for a 0.5 km distance from the pipeline corridor to account for noise propagating on either side of a tug. We used those distances to calculate the area of the rectangle centered around the pipeline corridor (Area = length × width or A = 4.45 km × ((2.2 km + 0.5km) × 2) for a Level B ensonified area of 24.03 km2. As the work continues, this area would gradually shift from nearshore to farther offshore, terminating at the Tyonek platform.

    Marine Mammal Occurrence

    In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.

    There are eight marine mammal species that have the potential to occur within the action area from April through October. The NMFS National Marine Mammal Laboratory (NMML) maintains a database of Cook Inlet marine mammal observations collected by NOAA and U.S. Coast Guard personnel, fisheries observers, fisheries personnel, ferry operators, tourists, or other private boat operators. NMFS also collects anecdotal accounts of marine mammal sightings and strandings in Alaska from fishing vessels, charter boat operators, aircraft pilots, NMFS enforcement officers, Federal and state scientists, environmental monitoring programs, and the general public. These data were used to inform take estimates.

    Empirical estimates of beluga density in Cook Inlet are difficult to produce. One of the most robust is the Goetz et al. (2012) model based on beluga sighting data from NMFS aerial surveys from 1994 to 2008. The model incorporated several habitat quality covariates (e.g., water depth, substrate, proximity to salmon streams, proximity to anthropogenic activity, etc.) and related the probability of a beluga sighting (presence/absence) and the group size to these covariates. The probability of beluga whale presence within the project area from April through September is 0.001 belugas per km2. Moving into October and the winter, density is likely to increase; however, Harvest anticipates all work will be completed no later than September.

    Harvest provided density estimates for all other species with likely occurrence in the action area in their IHA application; however, data used to generate those densities do not incorporate survey efforts beyond 2011. Therefore, we developed new density estimates based on data collected during NMFS aerial surveys conducted from 2001 to 2016 (Rugh et al. 2005; Shelden et al. 2013, 2015, 2017). The numbers of animals observed over the 14 survey years were summed for each species. The percent area of survey effort for each year (range 25 to 40 percent) was used to calculate the area surveyed which was summed for all years (Rugh et al. 2005; Shelden et al. 2013, 2015, 2017). Density estimates were then derived by dividing the total number of each species sighted during the survey by the total area of survey coverage (Table 5).

    Table 5—Density Estimates for Marine Mammals Potentially Present Within the Action Area Based on Cook Inlet-Wide NMFS Aerial Surveys 2001-2016 Species Number of
  • animals
  • Area (km2) Estimated density
  • (number
  • animals/km2)
  • CI beluga whale - - 1 0.001 Humpback whale 204 87,123 0.0023 Killer whale 70 87,123 0.0008 Harbor porpoise 377 87,123 0.004 Harbor seal 23,912 87,123 0.2745 Steller sea lion 2 74.1 87,123 0.00085 Gray whale 10 87,123 0.00011 California sea lion 3 0 87,123 0 1 CI beluga whale density based on Goetz et al. (2012). 2 Actual counts of Steller sea lions was 741; however, it is well documented this species almost exclusively inhabits the lower inlet south of the Forelands with rare sightings in the northern inlet. Therefore, we adjusted the number of animals observed during the NMFS surveys (which cover the entire inlet) by 1/10 to account for this skewed concentration. 3 This species has not been documented in the project area during the referenced surveys; however, an occasional, rare sighting has been made during industry-supported surveys.
    Take Calculation and Estimation

    The method for calculating take was described in the Federal Register notice for the proposed IHA and is summarized here with a description of modifications. Take was first calculated using a density-based method (Take = density × ensonified area × project days). As an example, for beluga whales, the estimated take is calculated as 24.03 km2 × 0.001 × 108 days for a total of 2.59 belugas. However, for this and other species, we also consider additional sighting data (e.g., industry surveys, anecdotal sightings), anticipated residency time, and group size. From that analysis, we derived an authorized take level. In general, the amount of authorized take is an increase from the proposed numbers. In consideration of the nature of project activities (inability to shut down for some activities), we determined an increase in take numbers was warranted. Table 6 provides the results from our final take analysis.

    Table 6—Quantitative Assessment of Authorized Take, by Level B Harassment Species Density Calculated take1 Average group size Authorized take
  • (Level B)
  • CI beluga whale 0.001 2.59 8 2 40 Humpback whale 0.0023 5.07 1-2 5 Killer whale 0.0008 1.77 5 3 10 Harbor porpoise 0.004 8.83 4 1-3 4 100 Harbor seal 0.2745 605.67 5 1-10 6 972 Steller sea lion 0.00085 1.88 1-2 7 6 Gray whale 0.00011 0.285 1 8 5 California sea lion 0 0 1 9 5 1 Calculated Take = density × ensonifed area (24.03 km2) × # of project days (108). 2 The proposed take amount was 29 beluga whales which reflected the potential for one group of eight belugas per month or two groups of four animals per month. We increased to 40 authorized takes to account for possibility animals may be more frequent than originally assessed and to account for potential for one to two large group (up to 20 whales) to come within ensonified area during activities. 3 Adjusted take is based on two groups of five animals. 4 Average group size from Sheldon et al. 2014. Authorized take adjusted to account for known increase in harbor porpoise occurrence in upper Cook Inlet in recent years and is approximately 50% of the number of harbor porpoise observed during industry marine mammal surveys (n=190) near the action area. 5 Represents range of group sizes observed during a seismic survey in the middle Inlet from May 6 through September 30, 2012 (Lomac-MacNair et al., 2012). 6 The proposed IHA used density-based method for proposed take; however, we have adjusted based on the maximum of 9 harbor seals observed during aerial surveys in the project area based on NMFS aerial surveys from 1997-2011 (9 seals/day × 108 days = 972). 7 As in the proposed IHA, we consider the potential for 1-2 Steller sea lions to remain in the area for multiple days. 8 We have authorized five takes of gray whales in the rare chance they enter the ensonified area and operations cannot be shut down. 9 We have authorized five takes of California sea lions in the rare chance they enter the ensonified area and operations cannot be shut down.

    Cook Inlet beluga whales are expected to be transiting through the action area in group sizes ranging from 3 to 14 animals with an average of 8 animals/group. These group sizes are based on NMFS aerial surveys and anecdotal reports near Tyonek from April through October (pers comm. K Sheldon, January 25, 2018). Harvest requested take for up to 29 beluga whales in anticipation that one group of 8 animals may pass through the action area once per month for the duration of the project (i.e., 8 animals/group × 1 group/month × 3.6 months). However, during the public comment period, we considered, in more detail, the number of animals that could pass through the action area during operations that could result in take. Specifically, a 2012 June monitoring report (SAE 2012) reported an unusually high number of sightings are marine mammals, including many at river mouths south of the project area. If we consider the potential for those groups to move north to the Beluga River/Susitna, Knik and Turnigan Arm areas, there is a possibility animals could enter Harvest's ensonified zone. If operations (e.g., pile pulling, barge moving) has already begun, these activities are not able to cease due to operational and safety concerns. Therefore, in the IHA, we have authorized up to 40 beluga whales to be taken by Level B harassment.

    We also considered group size for other cetaceans. Killer whales have the potential to travel through the project area in groups exceeding the take calculated based on density. Because sighting data indicates killer whales are not common in the Upper Inlet, we anticipated one group to pass through the project area in the proposed IHA but have increased this to two groups for a total authorized take of 10 killer whales. For harbor porpoise, we considered the density-based take calculation to be great enough to encompass their small group size (n=8); however, harbor porpoise sightings in the mid- to upper inlet have increased in recent years. Despite them typically occurring in the lower inlet, we have increased the authorized amount of take to 100 individuals, which is approximately 50 percent of the individuals observed during the 2012 industry survey (n = 190). We did not authorize the same amount of individuals observed considering the industry survey area was much larger than the harassment zone for the CIPL project and extended lower in the inlet where harbor porpoise are more common.

    Harbor seals and Steller sea lions are expected to occur as solitary animals or in small groups and may linger in the action area moreso than transiting cetaceans. Harbor seal takes estimates based on density reflect a likely occurrence, so we did not adjust authorized take levels. However, Steller sea lion density calculations produce an estimated take of one animal during the entire project. While Steller sea lions are rare in the action area, this species may not be solitary and may also remain in the action area for multiple days. In 2009, a Steller sea lion was observed three times during Port of Anchorage construction (ICRC 2009). During seismic survey marine mammal monitoring, Steller sea lions were observed in groups of one to two animals during two of three years of monitoring (Lomac-MacNair 2013, 2015). Therefore, we increased the amount of take to six Steller sea lions to account for up to two animals to be observed over the course of three days (i.e., two animals exposed three times).

    Harvest did not request, and we did not propose, take for any other species in our proposed IHA notice. However, we have included take for gray whales and California sea lions in the final IHA. It is unlikely these species would come within the project area; however, in the Description of Marine Mammals in the Area of Specified Activities section, we describe sightings of these species during industry surveys and anecdotal sightings. Because some activities may not be able to cease once they begin, we have authorized take for these species (Table 6).

    Effects of Specified Activities on Subsistence Uses of Marine Mammals

    The availability of the affected marine mammal stocks or species for subsistence uses may be impacted by this activity. The subsistence uses that may be affected and the potential impacts of the activity on those uses are described below. Measures included in this IHA to reduce the impacts of the activity on subsistence uses are described in the Mitigation section. The information from this section and the Mitigation section is analyzed to determine whether the necessary findings may be made in the Unmitigable Adverse Impact Analysis and Determination section.

    The villages of Tyonek, Ninilchik, Anchor Point, and Kenai use the upper Cook Inlet area for subsistence activities. These villages regularly harvest harbor seals (Wolfe et al., 2009). Based on subsistence harvest data, Kenai hunters harvested an about 13 harbor seals on average per year, between 1992 and 2008, while Tyonek hunters only harvested about 1 seal per year (Wolfe et al., 2009). Traditionally Tyonek hunters harvest seals at the Susitna River mouth (located approximately 20 mi from the project area) incidental to salmon netting, or during boat-based moose hunting trips (Fall et al., 1984). Alaska Natives are permitted to harvest Steller sea lions; however, this species is rare in mid- and upper Cook Inlet, as is reflected in the subsistence harvest data. For example, between 1992 and 2008, Kenai hunters reported only two sea lions harvested and none were reported by Tyonek hunters (Wolfe et al., 2008). Sea lions are more common in lower Cook Inlet and are regularly harvested by villages well south of the project area, such as Seldovia, Port Graham, and Nanwalek.

    Cook Inlet beluga subsistence harvest has been placed under a series of moratoriums beginning 1999. Only five beluga whales have been harvested since 1999. Future subsistence harvests are not planned until after the 5-year population average has grown to at least 350 whales. Based on the most recent population estimates, no beluga harvest will be authorized in 2018.

    Harvest's proposed pipeline construction activities would not impact the availability of marine mammals for subsistence harvest in Cook Inlet due to the proximity of harvest locations to the project (for harbor seals) and the general lack of Steller sea lion harvest. Beluga subsistence harvest is currently under moratorium. Further, animals that are harassed from the project are expected to elicit behavioral changes that are short-term, mild, and localized.

    Mitigation

    In order to issue an IHA under Section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses. NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).

    In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:

    (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat, as well as subsistence uses. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned) and;

    (2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.

    NMFS anticipates the project will create an acoustic footprint above baseline of approximately 24 km2 around the concentration of vessels and operational activities. There is a discountable potential for marine mammals to incur PTS from the project as source levels are relatively low, non-impulsive, and animals would have to remain at very close distances for multiple hours, to accumulate acoustic energy at levels which could damage hearing. Therefore, we do not believe there is potential for Level A harassment and there is no designated shut-down/exclusion zone established for this project. However, Harvest will implement a number of mitigation measures designed to reduce the potential for and severity of Level B harassment and minimize the acoustic footprint of the project.

    Harvest will establish a 2,200 m safety zone from working vessels and along the pipeline corridor and employ NMFS-approved protected species observers (PSOs) to conduct marine mammal monitoring for the duration of the project. Prior to commencing activities for the day or if there is a 30-minute lapse in operational activities, the PSO will monitor the safety zone for marine mammals for 30 minutes. If no marine mammals are observed, operations may commence. If a marine mammal(s) is observed within the safety zone during the clearing, the PSO will continue to watch until either: (1) The animal(s) is outside of and on a path away from the safety zone; or (2) 15 minutes have elapsed. Once the PSO has determined one of those conditions are met, operations may commence.

    Should a marine mammal be observed during pipe-pulling, the PSO will monitor and carefully record any reactions observed until the pipe is secure. No new operational activities would be started until the animal leaves the area. PSOs will also collect behavioral information on marine mammals beyond the safety zone.

    Other measures to minimize the acoustic footprint of the project include: The dive boat, sonar boat, work boat, and crew boat will be tied to the barge or anchored with engines off when practicable; all vessel engines will be placed in idle when not working if they cannot be tied up to the barge or anchored with engines off; and all sonar equipment will operate at or above 200 kHz.

    Finally, Harvest would abide by NMFS marine mammal viewing guidelines while operating vessels or land-based personnel (for hauled-out pinnipeds); including not actively approaching marine mammals within 100 yards (in-water or on land) and slowing vessels to the minimum speed necessary. NMFS Alaska Marine Mammal Viewing Guidelines may be found at https://alaskafisheries.noaa.gov/pr/mm-viewing-guide.

    The mitigation measures are designed to minimize Level B harassment by avoiding starting work while marine mammals are in the project area, lowering noise levels released into the environment through vessel operation protocol (e.g., tying vessels to barges, operating sonar equipment outside of marine mammal hearing ranges) and following NMFS marine mammal viewing guidelines. There are no known marine mammal feeding areas, rookeries, or mating grounds in the project area that would otherwise potentially warrant increased mitigation measures for marine mammals or their habitat. The proposed project area is within beluga whale critical habitat; however, use of the habitat is higher in fall and winter when the project would not occur nor would habitat be permanently impacted other than the presence of the pipelines on the seafloor. Thus mitigation to address beluga whale critical habitat is not warranted. Finally, the mitigation measures are practicable for the applicant to implement. NMFS has determined that the mitigation measures provide the means of effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.

    Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:

    • Occurrence of marine mammal species or stocks in the area in which take is anticipated (e.g., presence, abundance, distribution, density);

    • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas);

    • Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;

    • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;

    • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat); and

    • Mitigation and monitoring effectiveness.

    Harvest will abide by all monitoring and reporting measures contained within their Marine Mammal Monitoring and Mitigation Plan, dated March 15, 2018, with the additional condition described below regarding number and location of observers. This plan was revised from the original that was available for public comment. During the public comment period, Harvest found that there was limited space on the vessels and safety issues prevented a PSO from being placed on the barge. In the revised plan, Harvest moved the PSO from vessel-based to land- or Tyonek Platform- based. Harvest proposed that during the beginning of the project when activities are occurring close to shore, a PSO will be positioned on a 100-foot high bluff at Ladd Landing, which provides a marine mammal sighting distance of approximately 3 mi. As work progresses toward the Tyonek Platform, the PSO shall be stationed on the Tyonek platform which also provides for an approximately 100-foot high observation point. The elevation of both these observation points provides advantages than working aboard a single vessel. However, NMFS determined that a single land-based observer was not sufficient and is therefore requiring monitoring based on where along the pipeline corridor activities are occurring. That is, a PSO shall be stationed at Ladd Landing when activities are occurring 0-2 km from shore. A PSO shall be stationed at the Tyonek Platform when activities are occurring greater than 6.5 km from shore. When project activities are occurring from 2 to 6.5 km from shore, a PSO shall be stationed at both Ladd Landing and the Tyonek Platform. All other monitoring measures included in the proposed IHA and in Harvest's monitoring plan remain in effect. NMFS has also included a provision in the IHA that PSOs will report on detectability and estimated range of observer coverage during all marine mammal monitoring shifts. Please see the IHA, posted at https://www.fisheries.noaa.gov/node/23111, for the complete set of reporting requirements.

    In recognition of the status of Cook Inlet beluga whales, Harvest is required to submit weekly reports to NMFS documenting marine mammal observations, behavior, and ability to detect marine mammals within the monitoring zone. If Harvest fails to abide by the mitigation, monitoring and/or reporting conditions contained within the IHA or NMFS determines the authorized taking is having more than a negligible impact on the species or stock of affected marine mammals, NMFS may modify the mitigation or monitoring measures if doing so creates a reasonable likelihood of more mitigation and monitoring leading to reduced impacts. Possible sources of new data that could contribute to the decision to modify the mitigation or monitoring measures include: results from Harvest's marine mammal monitoring report, information from beluga whale researchers, and information from subsistence users or local community residents.

    Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through harassment, NMFS considers other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS's implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels). To avoid repetition, our analysis applies to all the species listed in Table 6, given that NMFS expects the anticipated effects of the pipeline installation activities to be similar in nature. Where there are meaningful differences between species or stocks, or groups of species, in anticipated individual responses to activities, impact of expected take on the population due to differences in population status, or impacts on habitat, NMFS has identified species-specific factors to inform the analysis.

    Marine mammal habitat may be impacted by elevated sound levels, but these impacts would be temporary. In addition to being temporary and short in overall duration, the acoustic footprint of the pipeline installation activities is small relative to the overall distribution of the animals in the area and their use of the area. Feeding behavior is not likely to be significantly impacted, as no areas of biological significance for marine mammal feeding are known to exist in the survey area. For beluga whales, there are no major river outfalls which provide prey within the action area.

    The proposed project would create an acoustic footprint around the project area for an extended period time (3.6 months) from April through September. Noise levels within the footprint would reach or exceed 120 dB rms. We anticipate the 120 dB footprint to be limited to 20km2 around the cluster of vessels and equipment used to install the pipelines. The habitat within the footprint is not heavily used by marine mammals during the project time frame (e.g., Critical Habitat Area 2 is designated for beluga fall and winter use) and marine mammals are not known to engage in critical behaviors associated with this portion of Cook Inlet (e.g., no known breeding grounds, foraging habitat, etc.). Most animals will likely be transiting through the area; therefore, exposure would be brief. Animals may swim around the project area but we do not expect them to abandon any intended path. We also expect the number of animals exposed to be small relative to population sizes. Finally, Harvest will minimize potential exposure of marine mammals to elevated noise levels by not commencing operational activities if marine mammals are observed within the ensonified area.

    In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:

    • No mortality is anticipated or authorized;

    • The project does not involve noise sources capable of inducing PTS and no injury is anticipated or authorized;

    • Exposure would likely be brief given transiting behavior of marine mammals in the action area, resulting in, at most, temporary avoidance and modification to vocalization behavior, and diverting around the project area;

    • The project area does not contain concentrated foraging, mating, or breeding habitat;

    • Marine mammal densities are low in the project area and the number of marine mammals potentially taken is small compared to the population size; and

    • Harvest would monitor for marine mammals daily and minimize exposure to operational activities as required in the IHA.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.

    Small Numbers

    As noted above, only small numbers of incidental take may be authorized under Section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.

    Table 7 provides the quantitative analysis informing our small numbers determination. For most species, the amount of take proposed is less than 3.5 percent of all stocks except beluga whales. For beluga whales, the amount of take proposed represents 12.8 percent of the population.

    Table 7—Percent of Stock Proposed To Be Taken by Level B Harassment Species Stock Abundance
  • (Nbest)
  • Proposed take
  • (Level B)
  • % of
  • population
  • Beluga whale Cook Inlet 312 2 40 12.8 Humpback whale Central North Pacific 10,103 5 0.04 Killer whale Alaska Resident 2,347 0.4 Gulf of Alaska, Aleutian, Bering Sea Transient 587 3 10 1.7 Harbor porpoise Gulf of Alaska 31,046 100 0.3 Harbor seal Cook Inlet/Shelikof Strait 27,386 972 3.5 Steller sea lion Western U.S. 50,983 6 0.01 Gray whale Eastern North Pacific 20,990 5 0.02 California sea lion U.S. 296,750 5 0.001

    Based on the analysis contained herein of the proposed activity (including the mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.

    Unmitigable Adverse Impact Analysis and Determination

    In order to issue an IHA, NMFS must find that the specified activity will not have an “unmitigable adverse impact” on the subsistence uses of the affected marine mammal species or stocks by Alaskan Natives. NMFS has defined “unmitigable adverse impact” in 50 CFR 216.103 as an impact resulting from the specified activity (1) that is likely to reduce the availability of the species to a level insufficient for a harvest to meet subsistence needs by (i) causing the marine mammals to abandon or avoid hunting areas; (ii) directly displacing subsistence users; or (iii) placing physical barriers between the marine mammals and the subsistence hunters; and (2) that cannot be sufficiently mitigated by other measures to increase the availability of marine mammals to allow subsistence needs to be met.

    The village of Tyonek engages in subsistence harvests; however, these efforts are concentrated in areas such as the Susitna Delta where marine mammals are known to occur in greater abundance. Harbor seals are the only species taken by Alaska Natives that may also be harassed by the proposed project. However, any harassment to harbor seals is anticipated to be short-term, mild, and not result in any abandonment or behaviors that would make the animals unavailable to Alaska Natives.

    Based on the description of the specified activity, the measures described to minimize adverse effects on the availability of marine mammals for subsistence purposes, and the mitigation and monitoring measures, NMFS has determined there will not be an unmitigable adverse impact on subsistence uses from Harvest's proposed activities.

    Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults internally, in this case with Alaska Regional Office, whenever we propose to authorize take for endangered or threatened species.

    On April 25, 2018, NMFS Alaska Region issued a Biological Opinion to NMFS Office of Protected Resources which concluded Harvest's CIPL project is not likely to jeopardize the continued existence of Cook Inlet beluga whales, the WDPS Steller sea lions, or Mexico and Western North Pacific humpback whales DPSs or destroy or adversely modify critical habitat.

    Authorization

    NMFS has issued an IHA to Harvest for the harassment of small numbers of eight marine mammal species incidental to pipeline installation activities in Cook Inlet, provided the previously mentioned mitigation, monitoring and reporting requirements are incorporated.

    Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2018-09242 Filed 5-1-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF933 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Seabird and Shorebird Research and Monitoring in Massachusetts AGENCY:

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

    ACTION:

    Notice; issuance of an incidental harassment authorization.

    SUMMARY:

    In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to the U.S. Fish and Wildlife Service (USFWS) to incidentally harass, by Level B harassment only, marine mammals during survey activities associated with the seabird and shorebird monitoring project at the Eastern Massachusetts National Wildlife Refuge Complex (Complex).

    DATES:

    This authorization is effective from April 1, 2018 through March 31, 2019.

    FOR FURTHER INFORMATION CONTACT:

    Amy Fowler, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the IHA and supporting documents, as well as a list of the references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-research-and-other-activities. In case of problems accessing these documents, please call the contact listed above.

    SUPPLEMENTARY INFORMATION:

    Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a authorization is provided to the public for review.

    An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.

    NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.

    The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.

    Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our action (i.e., the issuance of an incidental harassment authorization) with respect to potential impacts on the human environment.

    This action is consistent with categories of activities identified in CE B4 of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has determined that the issuance of the IHA qualifies to be categorically excluded from further NEPA review.

    Summary of Request

    On December 5, 2017, NMFS received a request from the USFWS for an IHA to take marine mammals incidental to seabird and shorebird monitoring and research activities within the Complex. NMFS determined the application adequate and complete on December 18, 2017. The USFWS's request was for take of gray seals and harbor seals by Level B harassment only. Neither the USFWS nor NMFS expect mortality to result from this activity and, therefore, an IHA is appropriate.

    NMFS previously issued an IHA to the USFWS for similar work (82 FR 12342, March 2, 2017). The USFWS complied with all the requirements (e.g., mitigation, monitoring, and reporting) of the previous IHA and information regarding their monitoring may be found in the Estimated Take section.

    Description of Activity

    The USFWS plans to conduct biological tasks for refuge purposes at Monomoy National Wildlife Refuge (NWR), Nantucket NWR, and Nomans Land Island NWR in Massachusetts. These three refuges are managed through the Complex as part of the NWR System of the USFWS. Complex staff census and monitor the presence and productivity of breeding and migrating shorebirds using the beaches of Monomoy, Nantucket, and Nomans Land Island NWRs from April 1-November 30, annually. Monitoring activities occur daily (on Monomoy and Nantucket) from April-August and are necessary to document the productivity (number of chicks fledged per pair) and population of protected shorebird and seabird species. Monomoy NWR also participates in several less frequent, but equally important, high priority conservation tasks to monitor for threatened and endangered species, including censusing northeastern beach tiger beetles (Cicindela dorsalis) and participating in a red knot (Calidris canutus) migration study during southward migration. Additionally, both Monomoy and Nantucket NWRs serve as vital staging grounds for migrating roseate terns (Sterna dougallii), where USFWS staff resight and stage counts.

    A detailed description of the planned monitoring and research project is provided in the Federal Register notice for the proposed IHA (83 FR 9463; March 6, 2018). Since that time, no changes have been made to the planned activities. Therefore, a detailed description is not provided here. Please refer to that Federal Register notice for the description of the specific activity.

    Comments and Responses

    A notice of NMFS's proposal to issue an IHA to the USFWS was published in the Federal Register on March 6, 2018 (83 FR 9483). That notice described, in detail, the USFWS's activities, the marine mammal species that may be affected, and the anticipated effects on marine mammals. During the 30-day public comment period, the Marine Mammal Commission (Commission) provided comments as described below and concurred with NMFS's finding that recommended the issuance of an IHA, subject to the inclusion of the mitigation, monitoring, and reporting measures.

    Comment: The Commission requested clarification of certain issues associated with NMFS's notice that one-year renewals could be issued in certain limited circumstances and expressed concern that the process would bypass the public notice and comment requirements. The Commission also suggested that NMFS should discuss the possibility of renewals through a more general route, such as a rulemaking, instead of notice in a specific authorization. The Commission further recommended that if NMFS did not pursue a more general route, that the agency provide the Commission and the public with a legal analysis supporting our conclusion that this process is consistent with the requirements of 101(a)(5)(D) of the MMPA.

    Response: The process of issuing a renewal IHA does not bypass the public notice and comment requirements of the MMPA. The notice of the proposed IHA expressly notifies the public that under certain, limited conditions an applicant could seek a renewal IHA for an additional year. The notice describes the conditions under which such a renewal request could be considered and expressly seeks public comment in the event such a renewal is sought. Importantly, such renewals would be limited to where the activities are identical or nearly identical to those analyzed in the proposed IHA, monitoring does not indicate impacts that were not previously analyzed and authorized, and the mitigation and monitoring requirements remain the same, all of which allow the public to comment on the appropriateness and effects of a renewal at the same time the public provides comments on the initial IHA. NMFS has, however, modified the language for future proposed IHAs to clarify that all IHAs, including renewal IHAs, are valid for no more than one year and that the agency would consider only one renewal for a project at this time. In addition, notice of issuance or denial of a renewal IHA would be published in the Federal Register, as are all IHAs. Last, NMFS will publish a description of the renewal process on our website before any renewal is issued utilizing the new process.

    Description of Marine Mammals in the Area of Specified Activities

    A detailed description of the species likely to be affected by the research and monitoring project, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the Federal Register notice for the proposed IHA (83 FR 9463; March 6, 2018). Since that time, we are not aware of any changes in the status of these species and stocks; therefore, detailed descriptions are not provided here. Please refer to that Federal Register notice for these descriptions as well as to NMFS' website (https://www.fisheries.noaa.gov/topic/population-assessments/marine-mammals) for generalized species accounts.

    Table 1—General Information on Marine Mammals in the Vicinity of Eastern Massachusetts National Wildlife Refuge, Massachusetts Common name Scientific name Stock ESA/
  • MMPA
  • status;
  • strategic
  • (Y/N) 1
  • Stock abundance
  • (CV, Nmin, most recent
  • abundance survey) 2
  • PBR Annual
  • M/SI 3
  • Order Carnivora—Superfamily Pinnipedia Family Phocidae (earless seals): Gray seal Halichoerus grypus atlantica Western North Atlantic -, N 27,131 (N/A, 27,131, 2016) 1,554 5,207 Harbor seal Phoca vitulina concolor Western North Atlantic -, N 75,834 (0.15, 66,884, 2012) 2,006 368 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 3 These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.
    Sound Sources and Sound Characteristics

    NMFS does not expect acoustic stimuli to result from human presence, and will therefore not have the potential to harass marine mammals, incidental to the conduct of the activities. One activity (cannon nets) may have an acoustic component, but we believe take from this activity can be avoided.

    This section includes a brief explanation of the sound measurements frequently used in the discussions of acoustic effects in this notice. Sound pressure is the sound force per unit area, and is usually measured in micropascals (µPa), where 1 pascal (Pa) is the pressure resulting from a force of one newton exerted over an area of one square meter. Sound pressure level (SPL) is the ratio of a measured sound pressure and a reference level. The commonly used reference pressure is 1 µPa for underwater, and the units for SPLs are dB re: 1 µPa. The commonly used reference pressure is 20 µPa for in air, and the units for SPLs are dB re: 20 µPa.

    SPL (in decibels (dB)) = 20 log (pressure/reference pressure).

    SPL is an instantaneous measurement expressed as the peak, the peak-peak, or the root mean square (rms). Root mean square is the square root of the arithmetic average of the squared instantaneous pressure values. All references to SPL in this document refer to the root mean square unless otherwise noted. SPL does not take into account the duration of a sound.

    Research Activities Sound Characteristics

    Activities that may have an acoustic component (e.g., cannon nets) are not expected to reach the thresholds for Level B harassment. Cannon nets could be an airborne source of noise, and have a measured SL of 128 dB at one meter (m) (estimated based on a measurement of 98.4 dB at 30 m; L. Niles, pers. comm., December 2016); however, the SPL is expected to be less than the thresholds for airborne pinniped disturbance (e.g., 90 dB for harbor seals, and 100 dB for all other pinnipeds) at 80 meters from the source. The USFWS proposes to stay at least 100 meters from all pinnipeds if cannon nets are to be used for research purposes.

    Potential Effects of Specified Activities on Marine Mammals and Their Habitat

    The effects of airborne noise and visual disturbance from monitoring and research activities for the USFWS's project have the potential to result in behavioral harassment of marine mammals in the vicinity of the action area. The Federal Register notice for the proposed IHA (83 FR 9463; March 6, 2018) included a discussion of the effects of anthropogenic noise and visual disturbance on marine mammals, therefore that information is not repeated here; please refer to that Federal Register notice for that information.

    Estimated Take

    This section provides an estimate of the number of incidental takes authorized through this IHA, which will inform both NMFS' consideration of whether the number of takes is “small” and the negligible impact determination.

    Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    Authorized takes are by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to USFWS research and monitoring surveys. NMFS expects that the presence of the USFWS personnel could disturb animals hauled out on beaches near research activities and that the animals may alter their behavior or attempt to move away from the USFWS personnel. Based on the nature of the activity, Level A harassment is neither anticipated nor authorized.

    As described previously, no mortality is anticipated or authorized for this activity. Below we describe how the take is estimated.

    Behavior of seals is recorded on a three point scale (1 = alert reaction, not considered harassment; 2 = moving at least two body lengths, or change in direction >90 degrees; and 3 = flushing) (Table 2). Only levels 2 and 3 are considered take.

    Table 2— Disturbance Scale of Pinniped Responses to In-Air Sources To Determine Take Level Type of
  • response
  • Definition
    1 Alert Seal head orientation or brief movement in response to disturbance, which may include turning head towards the disturbance, craning head and neck while holding the body rigid in a u-shaped position, changing from a lying to a sitting position, or brief movement of less than twice the animal's body length. 2 Movement Movements in response to the source of disturbance, ranging from short withdrawals at least twice the animal's body length to longer retreats over the beach, or if already moving a change of direction of greater than 90 degrees. 3 Flush All retreats (flushes) to the water.
    Marine Mammal Occurrence

    In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations. Take estimates are based on historical marine mammal observations at each site from previous USFWS survey activities.

    Gray Seal—Little information is known about gray seal age and sex distribution at the Complex. Gray seals may use Complex sites for pupping but research and monitoring activities are not performed during the breeding season, so no newborn pups will be disturbed. Group composition of individuals present at activity sites are likely to be of mixed age and sex classes.

    The greatest disturbance to gray seals is expected to occur during the beach nesting bird breeding season from April to August. During April and May, when seals are hauled out in very large numbers on the refuge, they may be present at beaches of varying widths, between 30 m and 300 m. In narrower areas, all of the seals may be disturbed; in mid-width areas, some of the younger and smaller seals may flush, but large males may remain on the beach; and in the widest area, USFWS activities may have no impact on the hauled out seals. USFWS staff conduct research and monitoring work outside of the season of highest gray seal numbers.

    Harbor Seal—Peak pupping for harbor seals is in June and occurs elsewhere, mainly on the coasts of Maine and maritime Canada. Prior to a 2001 study, it was thought that the majority of migrating harbor seals moving into New England waters were sub-adults and juveniles. The study revealed that adult seals also migrate to waters around Cape Cod (NOAA 2015b). However, data on harbor seal sex and age distribution is still insufficient to report. Harbor seals are only noted in gray seal haulouts if they are spotted by USFWS staff or researchers. USFWS staff estimate that gray seal haulouts are comprised of five percent or less harbor seals based on field observations, as harbor seals are not always seen mixed in with every gray seal haulout. Harbor seal numbers taper during the summer time when the highest level of seal disturbance occurs.

    Take Calculation and Estimation

    Here we describe how the information provided above is brought together to produce a quantitative take estimate. As discussed earlier, NMFS assumes that pinnipeds that move greater than two body lengths or make longer retreats over the beach, or if already moving, make a change of direction of greater than 90 degrees or flush into the water in response to the presence of surveyors, are behaviorally harassed, and thus subject to Level B taking. Take estimation is based on the number of seals observed in past research years that have been flushed during research activities.

    This estimate is based on the number of seals observed in past research years that have been flushed during research activities. USFWS used their knowledge of the number of seals that use the haulouts near their research activities, and how many of these may be taken (Levels 2 and 3 on the disturbance scale). The majority of takes will occur on Monomoy NWR, which is one of the main haulouts for gray seals in the country. While the average number of gray seals present (in regards to Monomoy NWR) is less than observed counts (B. Josephson, NOAA, pers. comm.), not every hauled-out seal on the beach is impacted from each activity and not all seals are impacted from every activity event. This is especially true for Monomoy NWR because the seal haulout stretches across over four miles of beach. For example, the gray seal counts on Monomoy NWR are very high, but the beaches are very large, and most of the work takes place on the upper berm close to the dune (farther away from seals). During April and May when seals are hauled out in very large numbers on the refuge, they may be present at beaches of varying width, between 30 m and 300 m. In narrower areas, all of the seals may be flushed; in mid-width areas, some of the younger and smaller seals may flush, but large males may remain on the beach; and in the widest area, USFWS activities may have no impact at all on the hauled out seals. Also, the amount of disturbance to seals may vary based on staff activities (e.g., if project activities require staff to walk quickly through an area versus spending more time in one area close to seals). Take numbers were estimated from the number of seals using the refuge and the times that the activity might overlap with seal use areas. For example, most of the staging counts are not done in areas where seals haul out so the number of disturbances is very low during this task. Group size also played into the estimates. USFWS staff would impact a smaller number of seals during times of the year when group sizes are smaller (e.g., outside of April and May). USFWS staff who have conducted these activities for multiple years provided the best information available to us about the number of takes these activities may cause. In this IHA, we have included monitoring requirements that should inform our take numbers in future years.

    The take numbers for gray seals is thought to be conservative, and likely an overestimate. USFWS staff believe these estimates are realistic and do not expect to exceed the take numbers.

    Table 3—Estimated Number of Gray Seal Takes per Activity at Monomoy, Nantucket, and Nomans Land Island NWRs Gray seal Age: all Number
  • takes/event
  • Sex: male and female Number
  • events/activity
  • Total takes
    Shorebird and Seabird Monitoring and Research 1,000 (Monomoy) 34 (Monomoy) 34,430 50 (Nantucket) 8 (Nantucket). 10 (Nomans) 3 (Nomans). Roseate Tern Staging Counts and Resighting 10 (Monomoy) 6 (Monomoy) 100 10 (Nantucket) 4 (Nantucket). Red Knot Stopover Study 250 (Monomoy) 5 (Monomoy) 2,000 150 (Cape Cod) 5 (Cape Cod). Northeastern Beach Tiger Beetle Census 750 (Monomoy) 3 (Monomoy) 2,250 Coastal Shoreline Change Survey 500 (Monomoy) 1 (Monomoy) 500 Total 39,280

    It is unclear exactly how many harbor seals occur at the Complex, therefore it is difficult to determine how many takes occur since harbor seals are mainly present during the off season when research and monitoring is limited. Harbor seals are not present at all gray seal haulouts but at haulouts where both species are present, USFWS staff estimate that gray seal haulouts during the summer are comprised of 5 percent or less harbor seals. Due to the lack of available data on presence, harbor seal takes are not broken down by activity or site. Rather, the number of harbor seal Level B takes requested was calculated by taking 5 percent of the total gray seal take estimate. USFWS is requesting 1,964 Level B takes of harbor seals incidental to research and monitoring activities.

    Mitigation Measures

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).

    In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:

    (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned); and

    (2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.

    Mitigation for Marine Mammals and Their Habitat

    Time and Frequency—The USFWS plans to conduct research activities throughout the course of the year between April 1 and November 30, 2018, outside of the seasons of highest seal abundance and pupping at the Complex.

    Vessel Approach and Timing Techniques—The USFWS shall ensure that its vessel approaches to beaches with pinniped haulouts would be conducted so as to not disturb marine mammals as most practicable. To the extent possible, the vessel shall approach the beaches in a slow and controlled approach, as far away as possibly from haulouts to prevent or minimize flushing. Staff shall also avoid or proceed cautiously when operating boats in the direct path of swimming seals that may be present in the area.

    Avoidance of Acoustic Impacts from Cannon Nets—Cannon nets have a measured SL of 128 dB at one meter (m) (estimated based on a measurement of 98.4 dB at 30 m; L. Niles, pers. comm., December 2016); however, the SPL is expected to be less than the thresholds for airborne pinniped disturbance (e.g., 90 dB for harbor seals, and 100 dB for all other pinnipeds) at 80 yards from the source. The USFWS shall stay at least 100 meters from all pinnipeds if cannon nets are to be used for research purposes.

    Avoidance of Visual and Acoustic Contact with People—The USFWS shall instruct its members and research staff to avoid making unnecessary noise and not expose themselves visually to pinnipeds whenever practicable. USFWS staff shall stay at least 50 yards from hauled out pinnipeds, unless it is absolutely necessary to approach seals closer, or potentially flush a seal, in order to continue conducting endangered species conservation work. When disturbance is unavoidable, staff shall work quickly and efficiently to minimize the length of disturbance. Researchers and staff will do so by proceeding in a slow and controlled manner, which allows for the seals to slowly flush into the water. Staff shall also maintain a quiet working atmosphere, avoiding loud noises, and using hushed voices in the presence of hauled out pinnipeds. Pathways of approach to the desired study or nesting site shall be chosen to minimize seal disturbance if an activity event may result in the disturbance of seals. USFWS staff shall scan the surrounding waters near the haulouts, and if predators (i.e., sharks) are seen, seals shall not be flushed by USFWS staff.

    Researchers, USFWS staff, and volunteers shall be properly informed about the MMPA take prohibitions, and shall educate the public on the importance of not disturbing marine mammals, when applicable. Staff at Nantucket NWR shall remain present on the beaches utilized by pinnipeds to prevent anthropogenic disturbance during times of high public use (late spring to early fall). Staff at Monomoy NWR shall also be present on beaches utilized by seals during the same time of year, and will inform the public to keep a distance from haulouts if an issue is noticed. Similar to the USFWS, the NPS also takes precautionary mitigation to help prevent seal take by the public. In August and on the weekends in September, staff and volunteers are present on the National Seashore beaches to share with the public the importance of preventing disturbance to seals by keeping people at a proper viewing distance of at least 50 yards.

    The presence/proximity of seal haulouts and the loud sound created by the firing of cannon nets are taken into consideration when selecting trapping sites for the Red Knot Stopover Study. Trapping sites are decided based on the presence of red knots, the number of juveniles located within roosts, and the observation of birds with attached geolocators and flags. Sites are not trapped on if there is a strong possibility of disturbing seals (i.e., closer than 100 meters). The Red Knot Stopover Study occurs during the time of year (July to September) when the least number of seals are present at the activity sites.

    The mitigation measures are designed to minimize the potential for behavioral harassment of pinnipeds hauled out near the survey sites. The research and monitoring surveys occur outside of the period of highest seal abundance at the Complex. While the survey timing overlaps with harbor seal pupping season, pupping is not known to occur at the Complex. Gray seal pupping has been documented at the Complex but generally occurs between December and February, when USFWS staff will not be conducting surveys. We believe the previously stated mitigation measures are practicable for the applicant to implement.

    Based on our evaluation of the applicant's planned measures, NMFS has determined that the mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Monitoring and Reporting Monitoring

    In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104 (a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.

    Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:

    • Occurrence of marine mammal species or stocks in the area in which take is anticipated (e.g., presence, abundance, distribution, density);

    • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas);

    • Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;

    • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;

    • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat); and

    • Mitigation and monitoring effectiveness.

    The USFWS shall conduct marine mammal monitoring, in order to implement the mitigation measures that require real-time monitoring, and satisfy the monitoring requirements of the IHA. These include:

    Monitoring seals as project activities are being conducted. Monitoring requirements in relation to the USFWS's activities include species counts, numbers of observed disturbances, and descriptions of the disturbance behaviors during the research activities, including location, date, and time of the event. In addition, the USFWS shall record observations regarding the number and species of any marine mammals either observed in the water or hauled out. Behavior of seals shall be recorded on a three point scale: (1) Alert reaction, not considered harassment; (2) moving at least two body lengths, or change in direction greater than 90 degrees; (3) flushing (Table 2). USFWS staff shall also record and report all observations of sick, injured, or entangled marine mammals to the Greater Atlantic Regional Stranding Coordinator. Tagged or marked marine mammals shall also be recorded and reported to the appropriate research organization or Federal agency, as well as any rare or unusual species of marine mammal. Photographs shall be taken when possible. This information shall be incorporated into a report for NMFS at the end of the season. The USFWS shall also coordinate with any university, state, or Federal researchers to attain additional data or observations that may be useful for monitoring marine mammal usage at the activity sites.

    If at any time injury, serious injury, or mortality of the species for which take is authorized should occur, or if take of any kind of other marine mammal occurs, and such action may be a result of the USFWS's activities, the USFWS shall suspend research activities and contact NMFS immediately to determine how best to proceed to ensure that another injury or death does not occur and to ensure that the applicant remains in compliance with the MMPA.

    Reporting

    The USFWS shall submit a draft report to NMFS Office of Protected Resources no later than 90 days after the conclusion of research and monitoring activities in the 2018 season. The report shall include a summary of the information gathered pursuant to the monitoring requirements set forth in the IHA. The USFWS shall submit a final report to NMFS within 30 days after receiving comments from NMFS on the draft report. If the USFWS receives no comments from NMFS on the draft report, NMFS will consider the draft report to be the final report.

    The report shall describe the operations conducted and sightings of marine mammals near the project. The report shall provide full documentation of methods, results, and interpretation pertaining to all monitoring. The report shall provide:

    1. A summary and table of the dates, times, and weather during all research activities;

    2. Species, number, location, and behavior of any marine mammals observed throughout all monitoring activities;

    3. An estimate of the number (by species) of marine mammals exposed to human presence associated with the USFWS's activities; and

    4. A description of the implementation and effectiveness of the monitoring and mitigation measures of the IHA and full documentation of methods, results, and interpretation pertaining to all monitoring.

    In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the authorization, such as an injury (Level A harassment), serious injury, or mortality (e.g., stampede), USFWS personnel shall immediately cease the specified activities and immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the Northeast Regional Stranding Coordinator. The report must include the following information:

    • Time, date, and location (latitude/longitude) of the incident;

    • Description and location of the incident (including water depth, if applicable);

    • Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);

    • Description of all marine mammal observations in the 24 hours preceding the incident;

    • Species identification or description of the animal(s) involved;

    • Fate of the animal(s); and

    • Photographs or video footage of the animal(s) (if equipment is available).

    The USFWS shall not resume its activities until NMFS is able to review the circumstances of the prohibited take. We will work with the USFWS to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The USFWS may not resume their activities until notified by us via letter, email, or telephone.

    In the event that the USFWS discovers an injured or dead marine mammal, and the marine mammal observer determines that the cause of injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as we describe in the next paragraph), the USFWS shall immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the Northeast Regional Stranding Coordinator. The report must include the same information identified in the paragraph above this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS would work with the USFWS to determine whether modifications in the activities are appropriate.

    In the event that the USFWS discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the USFWS shall report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the Northeast Regional Stranding Coordinator within 24 hours of the discovery. The USFWS personnel shall provide photographs or video footage (if available) or other documentation of the stranded animal sighting to us. The USFWS can continue their survey activities while NMFS reviews the circumstances of the incident.

    Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through harassment, NMFS considers other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS's implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels).

    Although the USFWS's survey activities may disturb a small number of marine mammals hauled out on beaches in the Complex, NMFS expects those impacts to occur to a localized group of animals. Marine mammals would likely become alert or, at most, flush into the water in reaction to the presence of the USFWS personnel during the activities. Much of the disturbance will be limited to a short duration, allowing marine mammals to reoccupy haulouts within a short amount of time. Thus, the action is unlikely to result in long-term impacts such as permanent abandonment of the area because of the availability of alternate areas for pinnipeds to avoid the resultant acoustic and visual disturbances from the research activities.

    The USFWS's activities would occur during the least sensitive time (e.g., April through November, outside of the pupping season) for hauled out pinnipeds in the Complex. Thus, pups or breeding adults would not be present during the activity days.

    Moreover, the USFWS's mitigation measures regarding vessel approaches and procedures that attempt to minimize the potential to harass the seals would minimize the potential for flushing and large-scale movements. Thus, the potential for large-scale movements and flushing leading to injury, serious injury, or mortality is low.

    In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:

    • No injury (Level A harassment) or serious injury is anticipated or authorized;

    • No mortality is anticipated or authorized;

    • Impacts will occur to a localized group of animals;

    • Disturbance will be limited to a short duration, allowing marine mammals to reoccupy haulouts within a short amount of time;

    • Activities will occur during the least sensitive time (e.g., April through November, outside of pupping season) for pinnipeds hauled out in the Complex, therefore no pups or breeding adults would be present during the activity days; and

    • The USFWS's mitigation measures regarding visual and acoustic disturbance to hauled out pinnipeds would minimize the potential for flushing and large-scale movements, therefore the potential for large-scale movements and flushing leading to injury, serious injury, or mortality is low;

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from the activity will have a negligible impact on all affected marine mammal species or stocks.

    Small Numbers

    As noted above, only small numbers of incidental take may be authorized under section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.

    These incidental harassment take numbers represent less than three percent of the affected stocks of harbor seals.

    Under the 2017 draft SARs, the take number of gray seals exceeds the stock abundance estimate in U.S. waters. However, actual take may be slightly less if animals decide to haul out at a different location for the day or if animals are foraging at the time of the survey activities. The number of individual seals taken is also assumed to be less than the take estimate since these species show high philopatry (Waring et al., 2016; Wood et al., 2011). We expect the take numbers to represent the number of exposures, but assume that the same seals may be behaviorally harassed over multiple days, and the likely number of individual seals that may be harassed would be less. In addition, this project occurs in a small portion of the overall range of the Northwest Atlantic population of gray seals. While there is evidence of haulout site philopatry, resights of tagged and branded animals and satellite tracks of tagged animals show movement of individuals between the United States and Canada (Puryear et al., 2016). The percentage of time that individuals are resident in U.S. waters is unknown (NMFS 2017). Genetic evidence provides a high degree of certainty that the Western North Atlantic stock of gray seals is a single stock (Boskovic et al., 1996; Wood et al., 2011). Thus, although the U.S. stock estimate is only 27,131, the overall stock abundance is 451,131. The gray seal take estimate for this project represents less than nine percent of the overall Western North Atlantic stock abundance in U.S. and Canadian waters (Table 4).

    Based on the analysis contained herein of the activity (including the mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.

    Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.

    Endangered Species Act (ESA)

    No incidental take of ESA-listed species is authorized or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.

    Authorization

    As a result of these determinations, NMFS has issued an IHA to the USFWS for the harassment of small numbers of gray and harbor seals incidental to seabird and shorebird research activities at the Eastern Massachusetts National Wildlife Refuge Complex, Massachusetts, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.

    Dated: April 26, 2018. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2018-09239 Filed 5-1-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF882 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Astoria Waterfront Bridge Replacement Project AGENCY:

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

    ACTION:

    Notice; Issuance of an Incidental Harassment Authorization.

    SUMMARY:

    In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to the City of Astoria, Oregon, to incidentally harass, by Level B harassment only, marine mammals during construction activities associated with a waterfront bridges replacement project in Astoria, Oregon.

    DATES:

    This authorization is effective from October 1, 2018 through September 30, 2019.

    FOR FURTHER INFORMATION CONTACT:

    Amy Fowler, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the IHA and supporting documents, as well as a list of the references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/node/23111. In case of problems accessing these documents, please call the contact listed above.

    SUPPLEMENTARY INFORMATION: Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a proposed authorization is provided to the public for review.

    An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.

    NMFS has defined “negligible impact” in 50 CFR 216.103 as “. . . an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.”

    The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our proposed action (i.e., the issuance of an incidental harassment authorization) with respect to potential impacts on the human environment.

    This action is consistent with categories of activities identified in CE B4 of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has preliminarily determined that the issuance of the proposed IHA qualifies to be categorically excluded from further NEPA review.

    Summary of Request

    On October 17, 2017, NMFS received a request from the City of Astoria (City), Oregon, for an IHA to take marine mammals incidental to replacement of bridges in downtown Astoria along the Columbia River. The application was considered adequate and complete on January 17, 2018. The City's request was for take of California sea lions (Zalophus californianus), Steller sea lions (Eumetopias jubatus), and harbor seals (Phoca vitulina richardii) by Level B harassment only. Neither the City nor NMFS expect mortality to result from this activity and, therefore, an IHA is appropriate.

    Description of the Specified Activity

    The City of Astoria is planning to replace three bridges connecting city streets to waterfront piers in the Columbia River. The bridges are currently supported by deteriorated timber piles, which will be removed and replaced with steel piles. Bridge replacement is scheduled to begin with above-water work to remove the superstructures of the bridges in October 2018. In-water pile removal and installation will occur over 80 days between November 1, 2018 and February 28, 2019. Vibratory removal of 255 timber piles is expected to take 26 days while impact driving of 74 permanent steel piles and installation and subsequent removal of 10 temporary steel piles is expected to take 42 days. The remaining 12 days of in-water work will be used to remove concrete footings and a concrete retaining wall along the riverbank. Additional above-water construction to replace the bridge superstructures will occur in March and April 2019.

    A detailed description of the planned bridge replacement project is provided in the Federal Register notice for the proposed IHA (83 FR 7680; February 22, 2018). Since that time, no changes have been made to the planned construction activities. Therefore, a detailed description is not provided here. Please refer to that Federal Register notice for the description of the specific activity.

    Comments and Responses

    A notice of NMFS' proposal to issue an IHA was published in the Federal Register on February 22, 2018 (83 FR 7680). During the 30-day public comment period, the Marine Mammal Commission (Commission) submitted a letter on March 21, 2018. The Commission provided comments as described below and concurred with NMFS's finding that recommended the issuance of an IHA to the City, subject to the inclusion of the mitigation, monitoring, and reporting measures.

    Comment 1: The Commission commented that NMFS' method of estimating takes from this project was inappropriate. Rather than multiplying the average count of pinnipeds from the South Jetty by months of activity, NMFS should have multiplied by days of activity. As a result, the take numbers proposed in the Federal Register notice (83 FR 7680; February 22, 2018) were underestimated. The Commission recommended revising the take estimates to better reflect the likelihood of pinniped occurrence in the project area.

    Response 1: NMFS concurs with the Commission recommendation and has modified the authorized take limits to account for newly available site-specific data. These changes are described further in the “Marine Mammal Occurrence” and “Take Calculation and Estimation” sections in this notice. As a result of this modification, NMFS authorized the take of 33,736 California sea lions, 5,360 Steller sea lions, and 4,560 harbor seals.

    Comment 2: The Commission requested clarification of certain issues associated with NMFS's notice that one-year renewals could be issued in certain limited circumstances and expressed concern that the process would bypass the public notice and comment requirements. The Commission also suggested that NMFS should discuss the possibility of renewals through a more general route, such as a rulemaking, instead of notice in a specific authorization. The Commission further recommended that if NMFS did not pursue a more general route, that the agency provide the Commission and the public with a legal analysis supporting our conclusion that this process is consistent with the requirements of 101(a)(5)(D) of the MMPA.

    Response 2: The process of issuing a renewal IHA does not bypass the public notice and comment requirements of the MMPA. The notice of the proposed IHA expressly notifies the public that under certain, limited conditions an applicant could seek a renewal IHA for an additional year. The notice describes the conditions under which such a renewal request could be considered and expressly seeks public comment in the event such a renewal is sought. Importantly, such renewals would be limited to where the activities are identical or nearly identical to those analyzed in the proposed IHA, monitoring does not indicate impacts that were not previously analyzed and authorized, and the mitigation and monitoring requirements remain the same, all of which allow the public to comment on the appropriateness and effects of a renewal at the same time the public provides comments on the initial IHA. NMFS has, however, modified the language for future proposed IHAs to clarify that all IHAs, including renewal IHAs, are valid for no more than one year and that the agency would consider only one renewal for a project at this time. In addition, notice of issuance or denial of a renewal IHA would be published in the Federal Register, as are all IHAs. Last, NMFS will publish on our website a description of the renewal process before any renewal is issued utilizing the new process.

    Description of Marine Mammals in the Area of Specified Activities

    A detailed description of the species likely to be affected by the City's actions, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, are provided in the City's application and the Federal Register notice for the proposed IHA (83 FR 7680; February 22, 2018). We are not aware of any changes in the status of these species and stocks; therefore, detailed descriptions are not provided here. Please refer to that Federal Register notice for these descriptions. Please refer to additional species information available in the NMFS stock assessment reports for the Pacific and Alaska at http://www.nmfs.noaa.gov/pr/sars/region.htm.

    Table 1—Marine Mammals Potentially Present in the Vicinity of Astoria Common name Scientific name Stock ESA/MMPA status;
  • strategic
  • (Y/N) 1
  • Stock abundance
  • (CV, Nmin, most recent
  • abundance
  • survey) 2
  • PBR Annual M/SI 3 Relative
  • occurrence
  • near Astoria
  • Order Carnivora—Superfamily Pinnipedia Family Otariidae (eared seals and sea lions): California sea lion Zalophus californianus U.S. -; N 296,750 (N/A, 153,337, 2011) 9,200 389 Likely. Steller sea lion Eumetopias jubatus Eastern U.S. -; N 41,638 (N/A, 41,638, 2015) 2,498 108 Likely. Family Phocidae (earless seals): Pacific harbor seal Phoca vitulina richardii Oregon/Washington Coast -; N Unknown (0.12, 24,732, 1999) undet. 10.6 Likely. 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. For certain stocks, abundance estimates are actual counts of animals and there is no associated CV. 3 These values, found in NMFS's SARs, represent annual levels of human-caused mortality plus serious injury from all sources combined (e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.
    Potential Effects of Specified Activities on Marine Mammals and Their Habitat

    The effects of underwater noise from vibratory and impact pile driving and airborne noise from superstructure construction for the bridge replacement project have the potential to result in behavioral harassment of marine mammals in the vicinity of the action area. The Federal Register notice for the proposed IHA (83 FR 7680; February 22, 2018) included a discussion of the effects of the project and anthropogenic noise on marine mammals, therefore that information is not repeated here; please refer to the Federal Register notice (83 FR 7680; February 22, 2018) for that information. We provide a summary here.

    The main impact associated with the bridge replacement project would be exposure to temporarily elevated sound levels and the associated direct effects on marine mammals (e.g., temporary hearing impairment, behavioral disturbance, and stress). The new bridges will be installed within the footprint of the existing bridges, therefore no new permanent impacts to habitats used by marine mammals would result from the project. Some short-term impacts to prey availability (e.g., fish) and minor impacts to the immediate substrate may occur as a result of increased turbidity from pile installation and removal but the effects are expected to be minimal. No critical habitat for any marine mammal species occurs in the project area.

    Estimated Take

    This section provides an estimate of the number of incidental takes authorized by this IHA, which informs both NMFS' consideration of whether the number of takes is “small” and the negligible impact determination.

    Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    Authorized takes are by Level B harassment only, for individual marine mammals resulting from exposure to pile driving and construction activities. Based on the nature of the activity and the anticipated effectiveness of the mitigation measures (i.e., shutdown—discussed in detail below in Proposed Mitigation section), Level A harassment is neither anticipated nor proposed to be authorized. As described previously, no mortality is anticipated or proposed to be authorized for this activity. Below we describe how the take is estimated.

    Described in the most basic way, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. Below, we describe these components in more detail and present the proposed take estimate.

    Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment). Thresholds have also been developed identifying the received level of in-air sound above which exposed pinnipeds would likely be behaviorally harassed.

    Level B Harassment for non-explosive sources—Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source (e.g., frequency, predictability, duty cycle), the environment (e.g., bathymetry), and the receiving animals (hearing, motivation, experience, demography, behavioral context) and can be difficult to predict (Southall et al., 2007, Ellison et al., 2011). Based on what the available science indicates and the practical need to use a threshold based on a factor that is both predictable and measurable for most activities, NMFS uses a generalized acoustic threshold based on received level to estimate the onset of behavioral harassment. NMFS predicts that marine mammals are likely to be behaviorally harassed in a manner we consider Level B harassment when exposed to underwater anthropogenic noise above received levels of 120 decibels (dB) re 1 micro pascal (μPa) root mean square (rms) for continuous (e.g., vibratory pile-driving, drilling) and above 160 dB re 1 μPa (rms) for non-explosive impulsive (e.g., seismic airguns) or intermittent (e.g., scientific sonar) sources. For in-air sounds, NMFS predicts that pinnipeds exposed above received levels of 100 dB re 20 μPa (rms) will be behaviorally harassed.

    The City's activities include the use of continuous (vibratory pile driving) and impulsive (impact pile driving) sources, and therefore the 120 and 160 dB re 1 μPa (rms) are applicable.

    Level A harassment for non-explosive sources—NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Technical Guidance, 2016) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). The City's activities include the use of impulsive (impact pile driving) and non-impulsive (vibratory pile driving) sources.

    These thresholds were developed by compiling and synthesizing the best available science and soliciting input multiple times from both the public and peer reviewers to inform the final product, and are provided in Table 2 below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS 2016 Technical Guidance, which may be accessed at: https://www.fisheries.noaa.gov/resource/document/underwater-acoustic-thresholds-onset-permanent-and-temporary-threshold-shifts.

    Table 2—Thresholds Identifying the Onset of Permanent Threshold Shift Hearing group PTS onset thresholds Impulsive Non-impulsive Low-Frequency (LF) Cetaceans L pk,flat: 219 dB; L E, LF,24h: 183 dB L E, LF,24h: 199 dB. Mid-Frequency (MF) Cetaceans L pk,flat: 230 dB; L E, MF,24h: 185 dB L E, MF,24h: 198 dB. High-Frequency (HF) Cetaceans L pk,flat: 202 dB; L E, HF,24h: 155 dB L E, HF,24h: 173 dB. Phocid Pinnipeds (PW); (Underwater) L pk,flat: 218 dB; L E, PW,24h: 185 dB L E, PW,24h: 201 dB. Otariid Pinnipeds (OW) (Underwater) L pk,flat: 232 dB; L E, OW,24h: 203 dB L E, OW,24h: 219 dB. * Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be considered. Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s. In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript “flat” is being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be exceeded. Ensonified Area

    Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds.

    Level B Harassment

    In-Air Disturbance during General Construction Activities—Level B behavioral disturbance may occur incidental to the use of construction equipment during general construction that is proposed in the dry, above water, or inland within close proximity to the river banks. These construction activities are associated with the removal and construction of the rail superstructures, and the removal of the existing concrete foundations and the 9th Street retaining wall. Possible equipment includes an excavator, crane, dump truck, and chain saw. It is estimated that the sound levels during these activities will range from 78 to 93 dB (rms) at 20 meters (m) from the sound source, with the loudest airborne noise produced by the use of a concrete saw (Hanan & Associates, 2014). These noise levels are based on acoustic data collected during the City of San Diego Lifeguard Station Demolition and Construction Monitoring project. Using the Spherical Spreading Loss Model (20logR), a maximum sound source level of 93 dB (rms) at 20 m, sound levels in-air would attenuate below the 90dB (rms) Level B harassment threshold for harbor seals at 28 m, and below the 100 dB (rms) threshold for all other pinnipeds at 9 m. Harbor seals are only present in the main river channel and are not expected to occur within 28 m of the activity and are therefore not expected to be harassed by in-air sound. Additionally, the city will implement a 10 m shutdown zone for all general construction work to prevent injury from physical interaction with equipment. The City would therefore shut down equipment before hauled out sea lions could be acoustically harassed by the sound produced. No Level B harassment is expected to occur due to increased sounds from railway and roadway construction. However, sea lions may be disturbed by the presence of construction equipment and increased human presence during above-water construction.

    Although some piles may potentially be driven or removed in the dry due to tidal conditions, the City assumed all pile driving and removal will occur in water. The Level B harassment zone for in-water pile driving and removal is greater than the airborne Level B harassment zone so no airborne harassment is requested from pile driving or removal. All harassment due to pile driving and removal is assumed to be in-water.

    In-Water Disturbance during Vibratory Pile Removal—Level B behavioral disturbance may occur incidental to the use of a vibratory hammer due to propagation of underwater noise during the removal of the existing timber substructures. An estimated 255 timber piles will need to be removed to facilitate construction of the three new crossings. It is anticipated that the contractor will need to utilize a vibratory hammer during extraction. Removal via vibratory hammer will result in the greatest amount of underwater noise during construction and will be the farthest reaching extent of aquatic impacts during pile removal activities. We note that some pile removal will occur in the dry (depending on tidal stage); however, we conservatively assumed all work would occur in-water since it is not feasible to determine how many piles would be removed in the dry. When piles are removed at lower tidal stages, we do not anticipate sound to propagate as far or, in the case of no water, at all.

    Washington State Department of Transportation (WSDOT) monitored underwater noise during the removal of three 12-in timber dolphin piles at Port Townsend (Laughlin 2011a). Most of the timber piles to be removed in this project are 12-in but some may be up to 14-in. Average noise levels during vibratory removal of the wood piles were measured at 150 dB (rms) at 16 m from the source. The Practical Spreading Loss Model (15logR) was used to calculate the in-water Level B harassment zone during vibratory pile removal. Using a measurement of 150dB at 16 m, a 1,600 m Level B harassment zone (120 dB rms threshold) is expected for vibratory pile removal activities. Based on the contours of the shoreline and 1,600 m Level B harassment zone, a total of 4.5 square kilometers (km2) is expected to be ensonified due to vibratory pile removal (see Figure 10 in application) (Table 7).

    In-Water Disturbance during Impact Pile Driving—Level B behavioral disturbance may occur incidental to the use of an impact hammer due to the propagation of underwater noise during the installation of permanent and temporary steel piles. The City will install a total of 74 24-in and 10 16-in steel piles. The City used the sound source levels from 24-in piles only to estimate the Level B harassment zone due to pile driving as the sound source levels from 24-in piles are greater than those of 16-in piles. The City will use the Level B harassment zone created by installation of 24-in piles during the installation of 16-in piles to be conservative.

    Based on the most recent WSDOT data, the unmitigated sound pressure level associated with impact pile driving 24-in steel piles is 194 dB RMS at 10 m (WSDOT 2016). The contractor will be required to use a bubble curtain device during impact pile driving in compliance with the Federal Aid Highway Program (FAHP) Programmatic Biological Opinion, which will be utilized for ESA coverage for listed salmonids. Use of a bubble curtain device was assumed to decrease initial sound levels by 10 dB (Reyff, 2007), resulting in an initial sound pressure level (SPL) of 184 dB RMS at 10 m from the source. Using the values from WSDOT in the Practical Spreading Loss Model (15logR), the distance to the 160 dB behavioral disturbance threshold is calculated to be 398 m from the pile when a noise attenuation device is used (Table 3) as opposed to 1,848 m when a device is not used. The use of a noise attenuation device would shrink the distance at which noise exceeds the thresholds by approximately 80 percent, resulting in a significantly smaller area of potential impact. With a 398 m Level B harassment zone, a total of 0.40 km2 is expected to be ensonified by impact pile driving (Figure 11 in application).

    Table 3—Inputs and Resulting Distances to Level B Harassment Isopleths Activity SL
  • (distance measured)
  • Threshold level Propagation
  • loss
  • coefficient
  • Level B
  • isopleth
  • (m)
  • Level B
  • area
  • (km2)
  • Vibratory pile driving/removal 150 dB (16 m) 120 dB re 1 µPa 15 1,600 4.5 Impact pile driving (24-in piles) 184 dB (10 m) a 160 dB re 1 µPa 15 398 0.4 General Construction (in-air) 93 dB (20 m) 100 dB re 20 µPa b 20 9 m n/a a Proxy SL with 10 dB reduction due to bubble curtain. b 100 dB re 20 µPa airborne threshold applies only to sea lions. The distance to the 90 dB re 20µPa applicable to harbor seals is 28 m but harbor seals are not expected to be harassed by airborne sound, as described above.
    Level A Harassment

    When NMFS Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of some degree, which will result in some degree of overestimate of Level A take. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D-modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate. For stationary sources (such as impact and vibratory pile driving), NMFS User Spreadsheet predicts the closest distance at which, if a marine mammal remained at that distance the whole duration of the activity, it would not incur permanent threshold shift (PTS). Inputs used in the User Spreadsheet, and the resulting isopleths are reported below.

    Table 4—PTS Isopleth Data for Vibratory Pile Removal Source Level (RMS SPL) 150 Activity Duration (hours) within 24-hr period 8 Activity Duration (seconds) 28,800 10 Log (Duration) 44.59 Propagation (xLogR) 15 Distance of source level measurement (m) 16 Table 5—Resulting PTS Isopleths for Vibratory Pile Driving Phocid
  • pinnipeds
  • Otariid
  • pinnipeds
  • SELcum Threshold 210 219 PTS Isopleth to Threshold (meters) 4.9 0.3
    Table 6—PTS Isopleth Data for Impact Pile Driving Source Level (Single Strike/shot SEL) 168 (a) Number of strikes in 1 h OR (b) Number of strikes per pile 250 (a) Activity Duration (h) within 24-h period OR (b) Number of piles per day 4 Propagation (xLogR) 15 Distance of single strike SEL measurement (meters) 10 Table 7—Resulting PTS Isopleths for Impact Pile Driving Phocid
  • pinnipeds
  • Otariid
  • pinnipeds
  • SELcum Threshold 185 203 PTS Isopleth to Threshold (m) 53.4 3.9

    The resulting small PTS isopleths assume an animal would remain stationary at that distance for the duration of the activity. Given the extended durations and due to the relatively small distances to PTS onset from each activity, and the mitigation measures (See “Mitigation”) proposed by the City, Level A take is neither expected nor authorized.

    Marine Mammal Occurrence

    In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.

    In the Federal Register notice of proposed IHA (83 FR 7680; February 22, 2018), takes of marine mammals were estimated using counts from 2000-2014 by WDFW at the South Jetty at the mouth of the Columbia River. At the time of publication, these counts were believed to be the best available data on pinniped occurrence in the lower Columbia River. After publication of the Federal Register notice (83 FR 7680; February 22, 2018), NMFS learned of Oregon Department of Fish and Wildlife (ODFW) aerial surveys of pinnipeds at the East Mooring Basin (approximately one mile upstream from the project site) and Desdemona Sands (approximately one mile downstream from the project site). Estimated takes of California sea lions were recalculated using data generated by those surveys (ODFW; Bryan Wright, pers. comm., March 2018).

    Aerial surveys of the East Mooring Basin in Astoria from 2011 to 2017 were used to calculate take of California sea lions. Maximum daily counts of California sea lions at the East Mooring Basin ranged from 3 in July 2016 to 3,834 in March 2016. In addition to ODFW aerial surveys, the City conducted opportunistic surveys of pinnipeds at the bridge sites in December 2017. A maximum of four California sea lions were observed in the water surrounding the bridges and piers. Additional California sea lions were heard vocalizing from the riverbanks under the bridges but the number of sea lions could not be determined. A conservative estimate of 16 California sea lions per day may be hauled out on the riverbanks and subject to harassment from above-water construction work.

    Counts of Steller sea lions at the East Mooring Basin typically numbered in the single digits (B. Wright, pers. comm., March 2018). However, there are typically dozens of Steller sea lions at the Bonneville Dam and a few individuals at Willamette Falls. While the sea lions observed at Bonneville and Willamette are often the same individuals seen daily, these animals must transit past Astoria at some point in their travels from the Pacific to the upper Columbia River (B. Wright, pers. comm., March 2018).

    Numbers of harbor seals hauled out at Desdemona Sands have been reported to reach into the thousands (Profita 2015) but specific counts were unavailable. Without counts of harbor seals closer to the project site, the maximum average count of harbor seals at the South Jetty (57 seals; WDFW 2014) is used to calculate take.

    Take Calculation and Estimation

    Here we describe how the information provided above is brought together to produce a quantitative take estimate.

    In the Federal Register notice for the proposed IHA (83 FR 7680; February 22, 2018), take of each species was calculated using average counts of pinnipeds at the South Jetty (WDFW 2014). Average monthly counts were multiplied by months of activity to determine the total take estimation. During the public comment period, we received information that although the WDFW counts were presented as average number of pinnipeds per month, the numbers were actually daily counts and therefore should have been multiplied by days of activity. The take limits in the final authorization were calculated by multiplying maximum counts of pinnipeds by days of activity.

    Although three species of pinniped occur in the vicinity of the project, they do not occur in equal numbers. Harbor seals and Steller sea lions do not haul-out near the project area and would only be harassed if they are transiting through the in-water Level B harassment zone (1,600 m for vibratory pile removal, 398 m for impact pile driving) at the time of pile driving. Because harbor seals and Steller sea lions do not have the potential to be harassed when hauled-out (in-air), they would only be harassed during the in-water work period (November through February).

    California sea lions are the most commonly observed marine mammal in the area, and are known to haul out on the riverbanks and structures near the bridges. California sea lions may be harassed by underwater sound resulting from vibratory pile removal and impact pile driving (at the distances listed above) as well as airborne sound resulting from roadway and railway demolition and construction. As such, California sea lions may be subject to both in-water and in-air sources of harassment (October through April).

    Using the highest sound source (concrete saw, 93 dBrms re: 20 µPa at 20 m), the isopleth to Level B harassment from airborne noise (100 dB re: 20 µPa) is 9 m. The City is proposing a 10 m shutdown zone during all railway and roadway above-water construction to prevent injury from physical interaction with equipment (see “Mitigation”). The City would therefore shut down equipment before sea lions would be acoustically harassed by the sound produced and no Level B acoustic harassment would occur. However, the City anticipates that California sea lions hauled out on the banks of the river in the vicinity of the construction work may be visually disturbed by the presence of construction equipment and may flush, resulting in Level B take. Therefore, we have authorized take of California sea lions during the above-water work period (October 2018 and March-April 2019).

    While harbor seals and Steller sea lions would only be harassed during the in-water work period (November through February), California sea lions may be harassed over the entire duration of the project (October through April). To determine the estimated exposure and take of harbor seals, the maximum average daily count of harbor seals at the South Jetty (57 seals) was multiplied by planned days of in-water work (80 days). Similarly, the maximum number of Steller sea lions observed at the Bonneville Dam (63; USACE 2017) and Willamette Falls (4; ODFW 2017) were multiplied by 80 days of in-water work to account for the maximum number of Steller sea lions likely to be in the Columbia River transiting past Astoria each day (Table 8).

    Table 8—Take Calculation of Harbor Seals and Steller Sea Lions Species Maximum
  • daily count
  • Days of
  • activity
  • Total take
  • (Level B)
  • Harbor seal 1 57 80 4,560 Steller sea lion 2 67 80 5,360 1 WDFW 2014. 2 63 sea lions at Bonneville Dam + 4 sea lions at Willamette Falls (USACE 2017; ODFW 2017).

    Take of California sea lions was calculated by multiplying the average maximum daily count per month by the days of activity in each month (Table 9).

    Table 9—Take Calculation of California Sea Lions Month Daily average maximum 1 Days of work in month 2 Total takes per month
  • (Level B)
  • October 16 22 352 November 141 20 2,817 December 135 20 2,690 January 408 21 8,577 February 980 19 18,612 March 16 21 336 April 16 22 352 Total Takes 33,736 1 B. Wright, pers. comm. 2 Days of work excludes weekends and holidays.
    Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).

    In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:

    (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned); and

    (2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.

    Mitigation for Marine Mammals and Their Habitat

    General Construction Measures—All construction activities shall be performed in accordance with the current Oregon Department of Transportation (ODOT) Standard Specifications for Construction, the Contract Plans, and the Project Special Provisions. In addition, the following general construction measures shall be adhered to:

    • All work below the highest measured tide shall be completed during the ODFW prescribed in-water work period of November 1 through February 28;

    • All work shall be performed according to the requirements and conditions of the regulatory permits issued by federal, state, and local governments. Seasonal restrictions, i.e., work windows, shall be applied to the Project to avoid or minimize potential impacts to listed or proposed species based on agreement with, and the regulatory permits issued by Department of State Lands, and U.S. Army Corps of Engineers (USACE) in consultation with NMFS. The City shall comply with all stipulations from the FAHP Biological Opinion for salmonids (i.e., using air bubble curtains);

    • The City shall have an inspector onsite during construction. The role of the inspector is to ensure compliance with the construction contract and other permits and regulations. The onsite inspector shall also perform marine mammal monitoring duties when protected species observers (PSOs) are not onsite (See Proposed Monitoring section);

    • To ensure no contaminants enter the water, mobile heavy equipment shall be stored in a staging area at least 150 ft from the river or in an isolated hard zone. Equipment shall be inspected daily for fluid leaks before leaving the staging area. Stationary equipment operated within 150 ft of the river shall be maintained and protected to prevent leaks and spills. Erosion and sediment control BMPs shall be installed prior to initiating and construction activities; and

    • The contractor shall be responsible for the preparation of a Pollution Control Plan (PCP). The PCP shall designate a professional on-call spill response team, and identify all contractor activities, hazardous substances used, and wastes generated. The PCP shall describe how hazardous substances and wastes will be stored, used, contained, monitored, disposed of, and documented.

    Pile Removal and Installation BMPs—The following mitigation measures shall be implemented to minimize disturbance during pile removal and installation activities:

    • An air bubble system shall be employed during impact installation unless the piles are driven on dry areas;

    • The contractor shall implement a soft-start procedure for impact pile driving activities. The objective of a soft-start is to provide a warning and/or give animals in close proximity to pile driving a chance to leave the area prior to an impact driver operating at full capacity, thereby exposing fewer animals to loud underwater and airborne sounds. A soft-start procedure shall be used at the beginning of each day that pile installation activities are conducted (i.e., for impact driving, an initial set of three strikes would be made by the hammer at 40 percent energy, followed by a one minute wait period, then two subsequent 3-strike sets at 40 percent energy, with one minute waiting periods, before initiating continuous driving);

    • Monitoring of marine mammals shall take place starting 30 minutes before construction begins until 30 minutes after construction ends (See Proposed Monitoring);

    • Before beginning vibratory pile removal activities, the City shall establish a 15 m shutdown zone to protect marine mammals from Level A harassment;

    • Before beginning impact pile driving activities, the City shall establish a 55 m shutdown zone to protect marine mammals from Level A harassment;

    • Before beginning any in-water work (not including pile driving/removal) and any above-water construction activities, the City shall establish a 10 m Level A shutdown zone to prevent injury from physical interaction with construction equipment;

    • The City shall shut down operations if a marine mammal is sighted within or approaching the shutdown zone until the marine mammal is sighted moving away from the shutdown zone, or if not sighted for 15 minutes after the shutdown;

    • If a species for which authorization has been not been granted or for which authorization has been granted but the take limit has been met approaches or enters the Level B harassment zone, construction activity must cease and the City shall contact the Office of Protected Resources, NMFS;

    • If the shutdown zone is obscured by poor lighting conditions, pile driving shall not be initiated until the entire zone is visible; and

    • In-water work shall only commence once observers have declared the shutdown zone clear of marine mammals.

    Based on our evaluation of the applicant's proposed measures, NMFS has determined that the mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance and to ensuring that the most value is obtained from the required monitoring.

    Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:

    • Occurrence of marine mammal species or stocks in the area in which take is anticipated (e.g., presence, abundance, distribution, density);

    • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas);

    • Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;

    • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;

    • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat); and

    • Mitigation and monitoring effectiveness.

    Monitoring

    The following marine mammal monitoring measures are included in the IHA.

    (1) Protected Species Observers: The City shall employ two qualified PSOs to monitor the extent of the Region of Activity for marine mammals. Qualifications for marine mammal observers include:

    a. Visual acuity in both eyes (correction is permissible) sufficient for discerning moving targets at the water's surface with ability to estimate target size and distance. Use of binoculars is necessary to correctly identify the target;

    b. Advanced education (at least some college level course work) in biological science, wildlife management, mammalogy, or related fields (bachelor's degree or higher is preferred but not required);

    c. Experience or training in the field identification of marine mammals (cetaceans and pinnipeds);

    d. Sufficient training, orientation, or experience with the construction operation to provide for personal safety during observations;

    e. Ability to communicate orally, by radio or in person, with project personnel to provide real time information on marine mammals observed in the area as necessary;

    f. Experience and ability to conduct field observations and collect data according to assigned protocols (this may include academic experience); and

    g. Writing skills sufficient to prepare a report of observations that would include such information as the number and type of marine mammals observed; the behavior of marine mammals in the project area; dates and times when observations were conducted; dates and times when in-water construction activities were conducted; and dates and times when marine mammals were present at or within the defined Region of Activity.

    (2) Monitoring Schedule: PSOs shall be present onsite during IWW construction activities as follows:

    a. During vibratory pile removal activities:

    i. Two NMFS qualified observers shall be onsite the first day of removal at each bridge, one NMFS qualified observer shall be onsite every third day thereafter.

    ii. One NMFS qualified observer shall be stationed at the best practicable land-based vantage point to observe the downstream portion of the disturbance zone, and the other positioned at the best practicable land-based vantage point to monitor the upstream portion of the disturbance zone.

    iii. When PSOs are not onsite, the contractor's onsite inspector shall be trained in species identification and monitoring protocol, and shall be onsite during all pile removal activities to ensure that no species enter the 15 m shutdown zone.

    b. During pile driving activities:

    i. Two NMFS qualified observers shall be onsite the first two days of pile driving at each bridge, and every third day thereafter.

    ii. One NMFS observer shall be stationed at the best practicable land-based vantage point to observe the downstream portion of the disturbance and exclusion zones, and the other positioned at the best practicable land-based vantage point to monitor the upstream portion of the disturbance and exclusion zones.

    iii. When PSOs are not onsite, the contractor's onsite inspector shall be trained in species identification and monitoring protocol, and shall be onsite during all pile driving activities to ensure that no species enter the shutdown zone.

    c. During in-water substructure demolition activities (not including pile driving/removal) and above-water superstructure demolition and construction activities:

    i. One NMFS qualified observer shall be onsite once a week to monitor the shutdown zone within 10 m of the construction site.

    ii. When PSO is not on-site, the contractor's inspector shall be trained in species identification and monitoring protocol, and shall be onsite during all construction activities to ensure that no species enter the 10 m shutdown zone during superstructure demolition and construction activities.

    (3) Monitoring Protocols: PSOs shall monitor marine mammal presence within the shutdown zone and Level B harassment zones per the following protocols:

    a. A range finder or hand-held global positioning system device shall be used by PSOs to ensure that the defined shutdown zones are fully monitored and the Level B ZOIs monitored to the best extent practicable.

    b. A 30-minute pre-construction marine mammal monitoring period shall be required before the first pile driving or pile removal of the day. A 30-minute post-construction marine mammal monitoring period shall be required after the last pile driving or pile removal of the day. If the contractor's personnel take a break between subsequent pile driving or pile removal for more than 30 minutes, then additional pre-construction marine mammal monitoring shall be required before the next start-up of pile driving or pile removal.

    c. If marine mammals are observed, the following information shall be documented:

    i. Species of observed marine mammals;

    ii. Number of observed marine mammal individuals;

    iii. Life stages of marine mammals observed;

    iv. Behavioral habits, including feeding, of observed marine mammals, in both presence and absence of activities;

    v. Location within the Region of Activity; and

    vi. Animals' reaction (if any) to pile driving activities or other construction-related stressors including:

    1. Impacts to the long-term fitness of the individual animal, if any

    2. Long-term impacts to the population, species, or stock (e.g., through effects on annual rates of recruitment or survival), if any

    vii. Overall effectiveness of mitigation measures

    d. During vibratory pule removal and impact driving, qualified PSOs shall monitor the Level B harassment zones from the best practicable land-based vantage point to observe the downstream and upstream portions of the disturbance zone according to the above schedule.

    e. PSOs shall use binoculars to monitor the Level B harassment zone.

    f. PSOs shall keep a running tally of takes of each marine mammal species authorized by extrapolating the observed takes to the days when monitoring did not occur. The City shall notify the Office of Protected Resources, NMFS if takes of any species come with five percent of the take limits established in the IHA.

    Reporting

    (1) The City shall provide NMFS with a draft monitoring report within 90 days of the conclusion of the construction work. This report shall detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed.

    (2) If comments are received from the NMFS West Coast Regional Administrator or NMFS Office of Protected Resources on the draft report, a final report shall be submitted to NMFS within 30 days thereafter. If no comments are received from NMFS, the draft report will be considered to be the final report.

    (3) In the unanticipated event that the construction activities clearly cause the take of a marine mammal in a manner prohibited by the NMFS authorization, such as an injury, serious injury, or mortality), the City shall immediately cease all operations and immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, and the West Coast Regional Stranding Coordinator, (206) 526-4747. The report must include the following information:

    a. Time, date, and location (latitude/longitude) of the incident;

    b. Description of the incident;

    c. Status of all sound source use in the 24 hours preceding the incident;

    d. Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, visibility, and water depth);

    e. Description of marine mammal observations in the 24 hours preceding the incident;

    f. Species identification or description of the animal(s) involved, including life stage and the fate of the animal(s); and

    g. Photographs or video footage of the animal(s) (if equipment is available).

    Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with the City to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. Activities may not be resumed until notified by NMFS via letter, email, or telephone.

    (4) In the event that the City discovers an injured or dead marine mammal, and the lead PSO determines that the cause of injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decay as described in the next paragraph), the City shall immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinators. The report must contain the same information identified above. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with the City to determine whether modifications in the activities are appropriate.

    (5) In the event that the City discovers an injured or dead marine mammal, and the lead PSO determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the City shall report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinators, within 24 hours of the discovery. The City shall provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. The City can continue its operations under such a case.

    Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through harassment, NMFS considers other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS's implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels).

    To avoid repetition, the discussion of our analyses applies to all three species authorized to be taken by this project (California sea lion, Steller sea lion, and harbor seal), given that the anticipated effects of this activity on these different marine mammal stocks are expected to be similar. There is little information about the nature or severity of the impacts, or the size, status, or structure of any of these species or stocks that would lead to a different analysis for this activity.

    Authorized takes are expected to be limited to short-term Level B harassment. Marine mammals present in the vicinity of the action area and taken by Level B harassment would most likely show overt brief disturbance (e.g., startle reaction, flushing) and avoidance of the area from elevated noise levels during pile removal and installation and railway superstructure construction. The project is not expected to have a significant adverse effect on affected marine mammal habitat, as discussed in detail in the “Anticipated Effects on Marine Mammal Habitat” section. There is no critical habitat in the vicinity of the project and the project activities would not permanently modify existing marine mammal habitat. The impacts to marine mammal habitat from the construction actions are expected to be temporary and include increased human activity and noise levels, minimal impacts to water quality, and negligible changes in prey availability near the individual bridge sites. The project may benefit marine mammal habitat by removing several hundred treated timber piles from the Columbia River.

    Impacts to pinnipeds are expected to be minor and temporary. The area likely impacted by the construction is relatively small compared to the available habitat in the river. Pinnipeds in the vicinity are likely habituated to high levels of human activity as the Astoria waterfront is a highly developed area. Exposures to elevated sound levels produced during pile driving and removal activities may cause behavioral responses by an animal, but they are expected to be minor and temporary. Animals may become alert, avoid the area, leave the area, or show no observable response. Given the short daily duration of noise-generating activities and the limited season of in-water work, any harassment would be temporary. For California and Steller sea lions, sub-adult and adult males could be harassed during construction activities. For harbor seals, sub-adult and adult males and/or females could be harassed during construction activities. The project occurs outside of known pupping periods for all species, and there are no known rookeries within the region of activity. Therefore, no pups or breeding adults are expected to be affected by the project activities.

    In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:

    • No injury is anticipated or authorized;

    • No serious injury or mortality is anticipated or authorized;

    • In-water work is limited to a four-month period, and likely only 80 days within that time;

    • No permanent effects to marine mammal habitat or prey is expected;

    • Marine mammals are currently exposed to high human use area and are likely habituated to disturbance;

    • Any impacts from the project are expected to result in short-term, mild behavioral reactions such as avoidance or flushing;

    • There are no known important feeding, pupping, or other areas of biological significance in the project area; and

    • The project affects only a small percentage of each stock of marine mammal affected, and only in a limited portion of their overall range.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS finds that the total marine mammal take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.

    Small Numbers

    As noted above, only small numbers of incidental take may be authorized under section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.

    Table 10—Authorized Pinniped Take, by Level B Harassment Authorized take Percent
  • of stock
  • California Sea Lion 33,736 11.4 Steller Sea Lion 5,360 12.9 Harbor Seal 4,560 18.4

    The number of instances of take of each stock proposed to be taken as a result of this project is less than 20 percent of the total stock (Table 10). Additionally, the number of takes requested is based on the number of estimated exposures, not necessarily the number of individuals exposed. Pinnipeds may remain in the general area of the project sites and the same individuals may be harassed multiple times over multiple days, rather than numerous individuals harassed once. Therefore, the percent of stock may be less since the numbers represented in Table 10 assume distinct individuals.

    Based on the analysis contained herein of the proposed activity (including the proposed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.

    Unmitigable Adverse Impact Analysis and Determination

    There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.

    Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults internally, in this case with the NMFS West Coast Region Protected Resources Division Office, whenever we propose to authorize take for endangered or threatened species.

    No incidental take of ESA-listed species is authorized or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.

    Authorization

    As a result of these determinations, NMFS has issued an IHA to the City for the harassment of small numbers of California sea lions, Steller sea lions, and Pacific harbor seals incidental to construction activities related to bridge replacements in Astoria, Oregon, provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.

    Dated: April 26, 2018. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2018-09238 Filed 5-1-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF831 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Lighthouse Repair and Tour Operations at Northwest Seal Rock, California AGENCY:

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

    ACTION:

    Notice; issuance of an incidental harassment authorization.

    SUMMARY:

    In accordance with the regulations implementing the Marine Mammal Protection Act (MMPA) as amended, notification is hereby given that NMFS has issued an incidental harassment authorization (IHA) to the St. George Reef Lighthouse Preservation Society (Society) to incidentally harass, by Level B harassment only, marine mammals during aircraft operations, lighthouse renovations, and tour operations associated with preservation of the St. George Reef Lighthouse Station on Northwest Seal Rock (NWSR) in the northeast Pacific Ocean.

    DATES:

    This authorization is effective from February 19, 2018 through February 18, 2019.

    FOR FURTHER INFORMATION CONTACT:

    Amy Fowler, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the IHA and supporting documents, as well as a list of the references cited in this document, may be obtained online at: https://www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-research-and-other-activities. In case of problems accessing these documents, please call the contact listed above.

    SUPPLEMENTARY INFORMATION:

    Background

    Sections 101(a)(5)(A) and (D) of the MMPA (16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (as delegated to NMFS) to allow, upon request, the incidental, but not intentional, taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region if certain findings are made and either regulations are issued or, if the taking is limited to harassment, a notice of a authorization is provided to the public for review.

    An authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such takings are set forth.

    NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.

    The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal.

    Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    Summary of Request

    On October 18, 2017, NMFS received a request from the Society for an IHA to take marine mammals incidental to restoration, maintenance, and tour operations at St. George Reef Lighthouse (Station) located on Northwest Seal Rock (NWSR) offshore of Crescent City, California in the northeast Pacific Ocean. NMFS determined the application adequate and complete on January 17, 2018. The Society's request was for take of California sea lions (Zalophus californianus), Steller sea lions (Eumetopias jubatus), northern fur seals (Callorhinus ursinus) and Pacific harbor seals (Phoca vitulina richardii) by Level B harassment only. Neither the Society nor NMFS expects serious injury or mortality to result from this activity and, therefore, an IHA is appropriate.

    NMFS has previously issued seven IHA's to the Society for similar work between 2010 and 2017 (75 FR 4774, January 29, 2010; 76 FR 10564, February 25, 2011; 77 FR 8811, February 15, 2012; 78 FR 71576, November 29, 2013; 79 FR 6179, February 3, 2014; 81 FR 9440, February 23, 2016; and 82 FR 11005, February 17, 2017). The Society complied with all the requirements (e.g., mitigation, monitoring, and reporting) of the previous IHAs and information regarding their monitoring results may be found in the Estimated Take section.

    Description of Specified Activity

    The Station, listed in the National Park Service's National Register of Historic Places, is located on NWSR offshore of Crescent City, California in the northeast Pacific Ocean. The Station, built in 1892, rises 45.7 meters (m) (150 feet (ft)) above sea level. The structure consists of hundreds of granite blocks topped with a cast iron lantern room and covers much of the surface of the islet. The purpose of the project is to restore the lighthouse, to conduct tours, and to conduct annual and emergency maintenance on the Station's optical light system.

    The Society proposes to conduct aircraft operations, lighthouse renovation, and periodic maintenance on the Station's optical light system on a monthly basis. The Society's activity will occur on a monthly basis over one weekend, November through April. The following specific aspects of the activities will likely result in the take of marine mammals: Acoustic and visual stimuli from (1) helicopter landings/takeoffs; (2) noise generated during restoration activities (e.g., painting, plastering, welding, and glazing); (3) maintenance activities (e.g., bulb replacement and automation of the light system); and (4) human presence.

    A detailed description of the planned activities is provided in the Federal Register notice (83 FR 8841, March 1, 2018). Since that time, no changes have been made to the planned activities. Therefore, a detailed description is not provided here. Please refer to that Federal Register notice for the description of the specific activity.

    Comments and Responses

    A notice of NMFS's proposal to issue an IHA was published in the Federal Register on March 1, 2018 (83 FR 8841). During the 30-day public comment period, the Marine Mammal Commission (Commission) submitted a letter on March 7, 2018. The Commission provided comments as described below and concurred with NMFS's findings that the recommended issuance of an IHA to the Society, subject to the inclusion of the mitigation, monitoring, and reporting measures.

    Comment: The Commission requested clarification of certain issues associated with NMFS's notice that one-year renewals could be issued in certain limited circumstances and expressed concern that the process would bypass the public notice and comment requirements. The Commission also suggested that NMFS should discuss the possibility of renewals through a more general route, such as a rulemaking, instead of notice in a specific authorization. The Commission further recommended that if NMFS did not pursue a more general route, that the agency provide the Commission and the public with a legal analysis supporting our conclusion that this process is consistent with the requirements of 101(a)(5)(D) of the MMPA.

    Response: The process of issuing a renewal IHA does not bypass the public notice and comment requirements of the MMPA. The notice of the proposed IHA expressly notifies the public that under certain, limited conditions an applicant could seek a renewal of an IHA for an additional year. The notice describes the conditions under which such a renewal request could be considered and expressly seeks public comment in the event such a renewal is sought. Importantly, such renewals would be limited to where the activities are identical or nearly identical to those analyzed in the proposed IHA, monitoring does not indicate impacts that were not previously analyzed and authorized, and the mitigation and monitoring requirements remain the same, all of which allow the public to comment on the appropriateness and effects of a renewal at the same time the public provides comments on the initial IHA. NMFS has, however, modified the language for future proposed IHAs to clarify that all IHAs, including renewal IHAs, are valid for no more than one year and that the agency would consider only one renewal for a project at this time. In addition, notice of issuance or denial of a renewal IHA would be published in the Federal Register, as are all IHAs. Last, NMFS will publish on our website a description of the renewal process before any renewal is issued utilizing the new process.

    Description of Marine Mammals in the Area of Specified Activities

    A detailed description of the species likely to be affected by the planned activities, including brief introductions to the species and relevant stocks as well as available information regarding population trends and threats, and information regarding local occurrence, were provided in the Federal Register notice for the proposed IHA (83 FR 8841, March 1, 2018). Since that time, we are not aware of any changes in the status of these species and stocks; therefore, detailed descriptions are not provided here. Please refer to that Federal Register notice for these descriptions as well as to NMFS's website (www.nmfs.noaa.gov/pr/species/mammals/) for generalized species accounts.

    Table 1—Marine Mammals in the Vicinity of Northwest Seal Rock Common name Scientific name Stock ESA/
  • MMPA
  • status;
  • strategic
  • (Y/N) 1
  • Stock abundance
  • (CV, Nmin, most recent
  • abundance survey) 2
  • PBR Annual
  • M/SI 3
  • Order Carnivora—Superfamily Pinnipedia Family Otariidae (eared seals and sea lions): California sea lion Zalophus californianus U.S. -; N 296,750 (n/a; 153,337; 2011) 9,200 389 Steller sea lion Eumetopias jubatus Eastern U.S. -; N 41,638 (n/a; 41,638; 2015) 2,498 108 Northern fur seal Callorhinus ursinus California Breeding -; N 14,050 (n/a; 7,524; 2013) 451 1.8 Family Phocidae (earless seals): Pacific harbor seal Phoca vitulina richardii California -; N 30,968 (n/a; 27,348; 2012) 1,641 43 1 Endangered Species Act (ESA) status: Endangered (E), Threatened (T)/MMPA status: Depleted (D). A dash (-) indicates that the species is not listed under the ESA or designated as depleted under the MMPA. Under the MMPA, a strategic stock is one for which the level of direct human-caused mortality exceeds PBR or which is determined to be declining and likely to be listed under the ESA within the foreseeable future. Any species or stock listed under the ESA is automatically designated under the MMPA as depleted and as a strategic stock. 2 NMFS marine mammal stock assessment reports online at: www.nmfs.noaa.gov/pr/sars/. CV is coefficient of variation; Nmin is the minimum estimate of stock abundance. In some cases, CV is not applicable. 3 These values, found in NMFS's SARs, represent annual levels of human-caused mortality (M) plus serious injury (SI) from all sources combined (e.g., commercial fisheries, ship strike). Annual M/SI often cannot be determined precisely and is in some cases presented as a minimum value or range. A CV associated with estimated mortality due to commercial fisheries is presented in some cases.
    Potential Effects of Specified Activities on Marine Mammals and Their Habitat

    The effect of stressors associated with the specified activities (e.g., helicopter operations) has the potential to result in behavioral harassment of marine mammals in the vicinity of the action areas. The Federal Register notice for the proposed IHA (83 FR 8841, March 1, 2018) included a discussion of the effects of such disturbance on marine mammals, therefore that information is not repeated here.

    NMFS described potential impacts to marine mammal habitat in detail in our Federal Register notice of proposed authorization (83 FR 8841, March 1, 2018). In summary, the project activities will not modify existing marine mammal habitat. Because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences for individual marine mammals or their populations.

    Estimated Take

    This section provides an estimate of the number of incidental takes authorized through this IHA, which will inform both NMFS's consideration of “small numbers” and the negligible impact determination.

    Harassment is the only type of take expected to result from these activities. Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    Authorized takes will be by Level B harassment only, in the form of disruption of behavioral patterns for individual marine mammals resulting from exposure to aircraft operations and lighthouse maintenance activities. Based on the nature of the activity, Level A harassment is neither anticipated nor authorized.

    Table 2—Disturbance Scale of Pinniped Responses to In-Air Sources To Determine Take Level Type of
  • response
  • Definition
    1 Alert Seal head orientation or brief movement in response to disturbance, which may include turning head towards the disturbance, craning head and neck while holding the body rigid in a u-shaped position, changing from a lying to a sitting position, or brief movement of less than twice the animal's body length. 2 * Movement Movements in response to the source of disturbance, ranging from short withdrawals at least twice the animal's body length to longer retreats over the beach, or if already moving a change of direction of greater than 90 degrees. 3 * Flush All retreats (flushes) to the water. * Only Levels 2 and 3 are considered take, whereas Level 1 is not.

    NMFS assumes that pinnipeds that move greater than two body lengths to longer retreats over the beach, or if already moving, a change of direction of greater than 90 degrees in response to the presence of surveyors, or pinnipeds that flush into the water, are behaviorally harassed, and thus subject to Level B taking (Table 2).

    Below we describe how the take is estimated.

    Marine Mammal Occurrence

    In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.

    For the 2010 season, the Society reported that no Steller sea lions were present in the vicinity of NWSR during restoration activities (SGRLPS 2010). Based on the monitoring report for the 2011 season, the maximum numbers of Steller sea lions present during the April and November 2011, work sessions were 2 and 155 animals, respectively (SGRLPS 2012). During the 2012 season, the Society did not observe any Steller sea lions present on NWSR during restoration activities. The Society did not conduct any operations for the 2013-2014, 2014-2015, and 2015-2016 seasons. The Society reported no Steller sea lions observed in the 2016-2017 and 2017-2018 work seasons (T. McNamara, pers. comm., 2018).

    Based on the monitoring report for the 2011 season, the maximum numbers of California sea lions present during the April and November, 2011 work sessions were 2 and 160 animals, respectively (SGRLPS 2012). There were no California sea lions present during the March, 2012 work session (SGRLPS 2012). The Society reported 16 California sea lions observed in March 2017 and no California sea lions present in April 2017. The Society also reported that 16 California sea lions were observed in November 2017 (Terry McNamara, pers. comm., 2018).

    For the 2010, 2011, and 2012 work seasons, the Society did not observe any northern fur seals present on NWSR during restoration activities (SGRLPS 2010; 2011; 2012). No northern fur seals were observed during the 2016-2017 and 2017-2018 work seasons (Terry McNamara, pers. comm., 2018).

    For the 2010 and 2011 seasons, the Society did not observe any Pacific harbor seals present on NWSR during restoration activities (SGRLPS 2010; 2011). During the 2012 season, the Society reported sighting a total of two harbor seals present on NWSR (SGRLPS 2012). No harbor seals were observed during the 2016-2017 and 2017-2018 work seasons (Terry McNamara, pers. comm., 2018).

    Take Calculation and Estimation

    Here we describe how the information provided above is brought together to produce a quantitative take estimate.

    Based on the Society's previous monitoring reports, NMFS estimates that approximately 2,880 California sea lions (calculated by multiplying the maximum single-day count of California sea lions present on NWSR (160) by 18 days of the restoration, maintenance, and touring activities), 2,790 Steller sea lions (calculated by multiplying the maximum single-day count of Steller sea lions that could be present (155) by 18 days of the restoration, maintenance, and touring activities), 36 Pacific harbor seals (calculated by multiplying the maximum single-day count of harbor seals present on NWSR (2) by 18 days), and 18 Northern fur seals (calculated by multiplying the maximum number of northern fur seals present on NWSR (1) by 18 days) could be potentially affected by Level B behavioral harassment over the course of the IHA (Table 3). NMFS bases these estimates of the numbers of marine mammals that might be affected on consideration of the number of marine mammals that could be disturbed appreciably by approximately 75 hours of aircraft operations over the course of the 18 days of activity.

    Mitigation

    In order to issue an IHA under section 101(a)(5)(D) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).

    In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:

    (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned); and

    (2) The practicability of the measures for applicant implementation, which may consider such things as cost, impact on operations, and, in the case of a military readiness activity, personnel safety, practicality of implementation, and impact on the effectiveness of the military readiness activity.

    Mitigation for Marine Mammals and Their Habitat

    Time and Frequency—The Society shall conduct restoration and touring activities at a maximum of once per month over the course of the year, with the exception of between May 1, 2018 through October 31, 2018 (barring potential emergency light repairs during this time). Each restoration session shall last no more than three days. Maintenance of the light beacon shall occur only in conjunction with restoration activities (except if an emergency light repair is needed from May 1, 2018 through October 31, 2018).

    Helicopter Approach and Timing Techniques—The Society shall ensure that its helicopter approach patterns to the Station and timing techniques shall be conducted at times when marine mammals are less likely to be disturbed. To the extent possible, the helicopter will approach NWSR when the tide is too high for the marine mammals to haul out on NWSR. Additionally, since the most severe impacts (stampede) precede rapid and direct helicopter approaches, the Society's initial approach to the station must be offshore from the island at a relatively high altitude (e.g., 800-1,000 ft, or 244-305 m). Before the final approach, the helicopter shall circle lower and approach from area with the lowest pinniped density. If for any safety reasons (e.g., wind condition) the Society cannot conduct these types of helicopter approach and timing techniques, they must postpone the restoration and maintenance activities for that day.

    Avoidance of Visual and Acoustic Contact with People on Island—The Society shall instruct its members and restoration crews to avoid making unnecessary noise and not expose themselves visually to pinnipeds around the base of the station. Although CCR reported no impacts from these activities in the 2001 study, it is relatively simple for the Society to avoid this potential impact. The door to the lower platform shall remain closed and barricaded to all tourists and other personnel since the lower platform is used at times by pinnipeds.

    NMFS has determined that the above mentioned mitigation measures provide the means effecting the least practicable impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Monitoring and Reporting

    In order to issue an IHA for an activity, section 101(a)(5)(D) of the MMPA states that NMFS must set forth, requirements pertaining to the monitoring and reporting of such taking. The MMPA implementing regulations at 50 CFR 216.104(a)(13) indicate that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the action area. Effective reporting is critical both to compliance and to ensuring that the most value is obtained from the required monitoring.

    Monitoring and reporting requirements prescribed by NMFS will contribute to improved understanding of one or more of the following:

    • Occurrence of marine mammal species or stocks in the area in which take is anticipated (e.g., presence, abundance, distribution, density);

    • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas);

    • Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors

    • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;

    • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat); and

    • Mitigation and monitoring effectiveness.

    Monitoring

    As part of its IHA application, the Society shall sponsor marine mammal monitoring, in order to implement the mitigation measures that require real-time monitoring, and to satisfy the monitoring requirements of the IHA. These requirements include:

    • A NMFS approved, experienced biologist will be present on the first flight of each day of the activity. This observer must be able to identify all species of pinnipeds expected to use the island, and qualified to determine age and sex classes when viewing conditions allow. The observer shall record data including species counts, numbers of observed disturbances, and descriptions of the disturbance behaviors during the activities, including location, date, and time of the event. In addition, the Society shall record observations regarding the number and species of any marine mammals either observed in the water or hauled out; and

    • Aerial photographic surveys to provide an accurate means of documenting species composition, age and sex class of pinnipeds using the project site during human activity periods. The Society shall complete aerial photo coverage from the same helicopter used to transport the Society's personnel to the island during restoration trips. The Society shall take photographs of all marine mammals hauled out on the island from an altitude greater than 300 m (984 ft) by a skilled photographer, on the first flight of each day of activities. These photographs will be forwarded to a biologist capable of discerning marine mammal species. Data shall be provided to us in the form of a report with a data table, any other significant observations related to marine mammals, and a report of restoration activities (see Reporting). The original photographs will be made available to us or other marine mammal experts for inspection and further analysis.

    As detailed above, the monitoring requirements in relation to the Society's activities include species counts, numbers of observed disturbances, and descriptions of the disturbance behaviors during the restoration activities, including location, date, and time of the event. In addition, the Society shall record observations regarding the number and species of any marine mammals either observed in the water or hauled out.

    By completing the requirements mentioned above, the Society will add to the knowledge of pinnipeds in the action area by noting observations of: (1) Unusual behaviors, numbers, or distributions of pinnipeds, enabling appropriate personnel to conduct future follow-up research; (2) tag-bearing carcasses of pinnipeds, allowing transmittal of the information to appropriate agencies and personnel; and (3) rare or unusual species of marine mammals for agency follow-up.

    If at any time injury, serious injury, or mortality of the species for which take is authorized occurs, or if take of any other kind of marine mammal occurs, and such action is believed to be a result of the Society's activities, the Society shall suspend restoration and tour activities and contact NMFS immediately. NMFS will then determine how best to proceed to ensure another injury or death does not occur and to guarantee the applicant remains in compliance with the MMPA.

    Monitoring requirements in relation to the Society's restoration activities shall include observations made by the Society. Information recorded shall include species counts (with age/sex classes when possible) of animals present before approaching, numbers of observed disturbances, and descriptions of the disturbance behaviors during the helicopter operations, including relative location, date, and time of the event. For consistency, any reactions by pinnipeds to researchers shall be recorded according to the three-point scale shown in Table 2. Note that only observations of disturbance Levels 2 and 3 should be recorded as takes.

    Reporting

    A draft final report must be submitted to NMFS Office of Protected Resources within 90 days of conclusion of restoration activities in April. The report must include a summary of the information gathered pursuant to the monitoring requirements set forth in the IHA. The Society must submit a final report to NMFS within 30 days after receiving comments from NMFS on the draft report. If the Society receives no comments from NMFS on the report, NMFS will consider the draft report to be the final report.

    The report must describe the operations conducted and sightings of marine mammals near the project. The report must provide full documentation of methods, results, and interpretation pertaining to all monitoring. The report must provide:

    1. A summary and table of the dates, times, and weather during all activities.

    2. Species, number, location, and behavior of any marine mammals observed throughout all monitoring activities.

    3. An estimate of the number (by species) of marine mammals exposed to human presence associated with the Society's activities.

    4. A description of the implementation and effectiveness of the monitoring and mitigation measures of the IHA and full documentation of methods, results, and interpretation pertaining to all monitoring.

    In the unanticipated event that the specified activity clearly causes the take of a marine mammal in a manner prohibited by the authorization, such as an injury (Level A harassment), serious injury, or mortality (e.g., stampede), society personnel shall immediately cease the specified activities and immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the Assistant West Coast Regional Stranding Coordinator. The report must include the following information:

    • Time, date, and location (latitude/longitude) of the incident;

    • Description and location of the incident (including water depth, if applicable);

    • Environmental conditions (e.g., wind speed and direction, Beaufort sea state, cloud cover, and visibility);

    • Description of all marine mammal observations in the 24 hours preceding the incident;

    • Species identification or description of the animal(s) involved;

    • Fate of the animal(s); and

    • Photographs or video footage of the animal(s) (if equipment is available)

    The Society shall not resume its activities until NMFS is able to review the circumstances of the prohibited take. We will work with the Society to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The Society shall not resume their activities until notified by us via letter, email, or telephone.

    In the event that the Society discovers an injured or dead marine mammal, and the marine mammal observer determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as we describe in the next paragraph), the Society shall immediately report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the West Coast Regional Stranding Coordinator, (562) 980-3230. The report must include the same information identified in the paragraph above this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with the Society to determine whether modifications in the activities are appropriate.

    In the event that the Society discovers an injured or dead marine mammal, and the lead visual observer determines that the injury or death is not associated with or related to the authorized activities (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the Society shall report the incident to the Chief, Permits and Conservation Division, Office of Protected Resources, NMFS, and the Assistant West Coast Regional Stranding Coordinator within 24 hours of the discovery. Society personnel shall provide photographs or video footage (if available) or other documentation of the stranded animal sighting to us. The Society shall continue their survey activities while NMFS reviews the circumstances of the incident.

    Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through harassment, NMFS considers other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS's implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels).

    Although the Society's survey activities may disturb a small number of marine mammals hauled out on NWSR, NMFS expects those impacts to occur to a small, localized group of animals for a limited duration (e.g., six hours in one day). Marine mammals will likely become alert or, at most, flush into the water in reaction to the presence of the Society's personnel during the activities. Disturbance will be limited to a short duration, allowing marine mammals to reoccupy NWSR within a short amount of time. Thus, the authorized action is unlikely to result in long-term impacts such as permanent abandonment of the area because of the availability of alternate areas for pinnipeds to avoid the resultant acoustic and visual disturbances from the restoration activities and helicopter operations. Results from previous monitoring reports also show that the pinnipeds returned to NWSR and did not permanently abandon haulout sites after the Society conducted their activities.

    With the exception of emergency repairs, which are unlikely to occur, the Society's activities occur during the least sensitive time (e.g., November through April, outside of the pupping season) for hauled out pinnipeds on NWSR. Thus, pups or breeding adults will likely not be present during the activity days.

    Moreover, the Society's mitigation measures regarding helicopter approaches and restoration site ingress and egress minimize the potential for stampedes and large-scale movements. Thus, the potential for large-scale movements and stampede leading to injury, serious, injury, or mortality is low.

    Any noise attributed to the Society's helicopter operations on NWSR will be short-term (approximately six minutes per trip). We expect the ambient noise levels to return to a baseline state when helicopter operations have ceased for the day. As the helicopter lands and takes off from the station, sound levels are below the thresholds for airborne pinniped disturbance at the landing pad which is 15 m (48 ft) above the rocks. Additionally, the pinnipeds will likely flush before the helicopter approached NWSR, further increasing the distance between the pinnipeds and the received sound levels on NWSR.

    If pinnipeds are present on NWSR, Level B behavioral harassment of pinnipeds may occur during helicopter landing and takeoff from NWSR due to the pinnipeds temporarily moving from the rocks and lower structure of the Station into the sea due to the noise and appearance of a helicopter during approaches and departures. It is expected that all or a portion of the marine mammals hauled out on NWSR will depart the rock and slowly move into the water upon initial helicopter approaches. The movement to the water will likely be gradual due to the required controlled helicopter approaches (see Mitigation for more details), the small size of the aircraft, the use of noise-attenuating blade tip caps on the rotors, and behavioral habituation on the part of animals as helicopter trips continue throughout the day. During the sessions of helicopter activity, if present on NWSR, some animals may be temporarily displaced from the island and either raft in the water or relocate to other haulouts.

    Sea lions have shown habituation to helicopter flights within a day at the project site and most animals are expected to return soon after helicopter activities cease for that day. By clustering helicopter arrivals/departures within a short time period, we expect animals present to show less response to subsequent landings. NMFS anticipates no impact on the population size or breeding stock of Steller sea lions, California sea lions, Pacific harbor seals, or Northern fur seals.

    In summary and as described above, the following factors primarily support our determination that the impacts resulting from this activity are not expected to adversely affect the species or stock through effects on annual rates of recruitment or survival:

    • The impacts to animals present will be of limited duration (i.e., at maximum three days a month);

    • The impacts will be of limited intensity (i.e., temporary flushing at most); and

    • No injury or mortality is anticipated or authorized.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the monitoring and mitigation measures, NMFS finds that the total marine mammal take from the activity will have a negligible impact on all affected marine mammal species or stocks.

    Small Numbers

    As noted above, only small numbers of incidental take may be authorized under section 101(a)(5)(D) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, where estimated numbers are available, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals. Additionally, other qualitative factors may be considered in the analysis, such as the temporal or spatial scale of the activities.

    As mentioned previously, NMFS estimates that the Society's activities could potentially affect, by Level B harassment only, four species of marine mammals under our jurisdiction. For each species, these estimates are small numbers (less than one percent of the affected stocks of California sea lions, Pacific harbor seals, and Northern fur seals, and less than seven percent of the stock of Steller sea lions) relative to the population size (Table 3). However, actual take may be slightly less if animals decide to haul out at a different location for the day or if animals are foraging at the time of the survey activities.

    Table 3—The Percentage of Stock Affected by the Number of Takes per Species Species Maximum
  • number
  • per day
  • Days of
  • activity
  • Take number Stock
  • abundance
  • Percent
  • of stock
  • California sea lion Zalophus californianus 160 18 2,880 296,750 0.97 Steller sea lion Eumetopias jubatus 155 18 2,790 41,638 6.7 Pacific harbor seal Phoca vitulina 2 18 36 30,968 0.35 Northern fur seal Callorhinus ursinus 1 18 18 14,050 0.12

    Based on the analysis contained herein of the activity (including the mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.

    Unmitigable Adverse Impact Analysis and Determination

    There are no subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks will not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.

    Endangered Species Act (ESA)

    Section 7(a)(2) of the Endangered Species Act of 1973 (ESA: 16 U.S.C. 1531 et seq.) requires that each Federal agency insure that any action it authorizes, funds, or carries out is not likely to jeopardize the continued existence of any endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. To ensure ESA compliance for the issuance of IHAs, NMFS consults internally, in this case with the West Coast Region Protected Resources Division Office, whenever we propose to authorize take for endangered or threatened species.

    No incidental take of ESA-listed species is authorized or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.

    National Environmental Policy Act

    To comply with the National Environmental Policy Act of 1969 (NEPA; 42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, NMFS must review our action (i.e., the issuance of an incidental harassment authorization) with respect to potential impacts on the human environment. This action is consistent with categories of activities identified in Categorical Exclusion B4 (incidental harassment authorizations with no anticipated serious injury or mortality) of the Companion Manual for NOAA Administrative Order 216-6A, which do not individually or cumulatively have the potential for significant impacts on the quality of the human environment and for which we have not identified any extraordinary circumstances that would preclude this categorical exclusion. Accordingly, NMFS has determined that the issuance of the IHA qualifies to be categorically excluded from further NEPA review.

    Authorization

    As a result of these determinations, we have issued an IHA to the Society for conducting the described activities related to lighthouse station restoration, maintenance, and tours from February 19, 2018 through February 18, 2019 provided the previously described mitigation, monitoring, and reporting requirements are incorporated.

    Dated: April 26, 2018. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2018-09240 Filed 5-1-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Telecommunications and Information Administration NTIA 2018 Spectrum Policy Symposium AGENCY:

    National Telecommunications and Information Administration, U.S. Department of Commerce.

    ACTION:

    Notice of public meeting.

    SUMMARY:

    The National Telecommunications and Information Administration (NTIA), U.S. Department of Commerce, will host a symposium on June 12, 2018, focusing on the development and implementation of national spectrum policies to support continuing U.S. leadership and innovation in wireless telecommunications and other spectrum-dependent technologies.

    DATES:

    The symposium will be held on June 12, 2018, from 8:30 a.m. to 11:00 a.m., Eastern Daylight Time (EDT).

    ADDRESSES:

    The symposium will be held at The National Press Club, 529 14th Street NW, 13th Floor, Washington, DC 20045.

    FOR FURTHER INFORMATION CONTACT:

    John Alden, Telecommunications Specialist, Office of Spectrum Management, NTIA, at (202) 482-8046 or [email protected] Please direct media inquiries to NTIA's Office of Public Affairs, (202) 482-7002; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    NTIA serves as the President's principal adviser on telecommunications policies pertaining to the Nation's economic and technological advancement and establishes policies concerning use of the radio spectrum by federal agencies. NTIA is hosting a symposium that will focus on developing, implementing and maintaining spectrum management policies that enable the United States to strengthen its global leadership role in the introduction of wireless telecommunications technology, services, and innovation, while also supporting the expansion of existing technologies and the Nation's homeland security, national defense, and other critical government missions.

    The keynote address will be delivered by David J. Redl, Assistant Secretary of Commerce for Communications and Information and NTIA Administrator. Additional speakers from Congress and the Executive Office of the President have been invited. Policy panel sessions are expected to include participants from the Federal Communications Commission, other federal agencies, and private sector and other non-government organizations. Prior to the event, NTIA will post a detailed agenda on its website at: https://www.ntia.doc.gov/other-publication/2018/2018-ntia-spectrum-policy-symposium.

    The symposium is open to the public and members of the press. Pre-registration is requested due to limited seating capacity. Registration will be accepted on a first come, first served basis. NTIA asks registrants to provide their first and last names, email addresses, and their organization (optional) for both registration purposes and to receive updates on the symposium. Registration information, the agenda, and meeting updates, if any, and other relevant documents will be available on NTIA's website at https://www.ntia.doc.gov/other-publication/2018/2018-ntia-spectrum-policy-symposium.

    The meeting will be physically accessible to people with disabilities. Individuals requiring accommodations, such as sign language interpretation or other ancillary aids, should notify Mr. Alden at the contact information listed above at least ten (10) business days before the event.

    Dated: April 26, 2018. Kathy Smith, Chief Counsel, National Telecommunications and Information Administration.
    [FR Doc. 2018-09237 Filed 5-1-18; 8:45 am] BILLING CODE 3510-60-P
    DEPARTMENT OF DEFENSE Department of the Army [Docket ID: USA-2018-HQ-0010] Proposed Collection; Comment Request AGENCY:

    Department of the Army Corps of Engineers, DoD.

    ACTION:

    Information collection notice.

    SUMMARY:

    In compliance with s the Paperwork Reduction Act of 1995, the Department of the Army announces a proposed revision of a public information collection and seeks public comment on the provisions thereof. 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 information collection; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.

    DATES:

    Consideration will be given to all comments received by July 2, 2018.

    ADDRESSES:

    You may submit comments, identified by docket number and title, by any of the following methods:

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

    Mail: Department of Defense, Office of the Chief Management Officer, Directorate for Oversight and Compliance, 4800 Mark Center Drive, Mailbox #24 Suite 08D09, Alexandria, VA 22350-1700.

    Instructions: All submissions received must include the agency name, docket number and title for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

    FOR FURTHER INFORMATION CONTACT:

    To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to U.S. Army Corps of Engineers, 441 G Street NW, Washington, DC 20314-1000, Attn: CECW-CO-R, or call the Department of the Army Reports clearance officer at (703) 428-6440.

    SUPPLEMENTARY INFORMATION:

    Title; Associated Form; and OMB Number: Application for Department of the Army Permit; ENG 4345 and Nationwide Permit (NWP) Pre-Construction Notification form, ENG Form 6082; OMB Control Number 0710-0003.

    Needs and Uses: Information collected is used to evaluate, as required by law, proposed construction or filing in waters of the United States that result in impacts to the aquatic environment and nearby properties, and to determine which type of permit would be required if one was needed. Respondents are private landowners, businesses, non-profit organizations, and government agencies. Respondents also include sponsors of proposed and approved mitigation banks and in-lieu fee programs.

    Affected Public: Individuals or households; business or other for-profit; not-for-profit institutions; farms; Federal government; state, local, or tribal government.

    Annual Burden Hours: 880,000.

    Number of Respondents: 80,000.

    Responses per Respondent: 1.

    Average Burden per Response: 11 hours.

    Frequency: On occasion.

    The Corps of Engineers is required by three federal laws, passed by Congress, to regulate construction-related activities in waters of the United States. This is accomplished through the review of applications for permits to do this work. There are five types of permits that may be used. The ENG 4345 form used for standard permit applications has been in use since the 1970s and the request to extend the expiration date is being provided in this notice. In addition, the Corps is now proposing a form specific to their nationwide permit program. Nationwide Permits (NWPs) are one type of permit authorization that involves a streamlined review process to ensure that no more than minimal individual or cumulative adverse environmental effect result from construction of the proposed activity. NWPs authorize discharges of dredged or fill material into waters of the United States pursuant to Section 404 of the Clean Water Act and structures or work in navigable waters under Section 10 of the Rivers and Harbors Act of 1899.

    This form is optional, but allows the Corps to collect the information needed to evaluate the applicants' proposal to determine eligibility for authorization. The Corps will provide outreach materials to guide the public in which of the forms should be used and how using the form and providing the information requested can reduce the time it takes to review whether an application is complete.

    Dated: April 27, 2018. Shelly E. Finke, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2018-09315 Filed 5-1-18; 8:45 am] BILLING CODE P
    DEPARTMENT OF EDUCATION [Docket No.: ED-2018-ICCD-0052] Agency Information Collection Activities; Comment Request; National Household Education Survey 2019 (NHES:2019) AGENCY:

    Department of Education (ED), National Center for Education Statistics (NCES)

    ACTION:

    Notice

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, ED is proposing a revision of an existing information collection.

    DATES:

    Interested persons are invited to submit comments on or before July 2, 2018.

    ADDRESSES:

    To access and review all the documents related to the information collection listed in this notice, please use http://www.regulations.gov by searching the Docket ID number ED-2018-ICCD-0052. Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at http://www.regulations.gov by selecting the Docket ID number or via postal mail, commercial delivery, or hand delivery. Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted. Written requests for information or comments submitted by postal mail or delivery should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW, LBJ, Room 216-44, Washington, DC 20202-4537.

    FOR FURTHER INFORMATION CONTACT:

    For specific questions related to collection activities, please contact Kashka Kubzdela, 202-245-7377.

    SUPPLEMENTARY INFORMATION:

    The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

    Title of Collection: National Household Education Survey 2019 (NHES:2019).

    OMB Control Number: 1850-0768.

    Type of Review: A revision of an existing information collection.

    Respondents/Affected Public: Individuals or Households.

    Total Estimated Number of Annual Responses: 123,177.

    Total Estimated Number of Annual Burden Hours: 12,964.

    Abstract: The National Household Education Survey (NHES) is a data collection program of the National Center for Education Statistics (NCES) designed to provide descriptive data on the education activities of the U.S. population, with an emphasis on topics that are appropriate for household surveys rather than institutional surveys. Such topics have covered a wide range of issues, including early childhood care and education, children's readiness for school, parents' perceptions of school safety and discipline, before- and after-school activities of school-age children, participation in adult and career education, parents' involvement in their children's education, school choice, homeschooling, and civic involvement. This request is to conduct the NHES:2019 full scale data collection, from December 2018 through September 2019, in conjunction with an In-Person Study of Nonresponding Households, designed to provide insight about nonresponse that can help plan future survey administrations. NHES 2019 will use mail and web data collection modes and will field two surveys: The Early Childhood Program Participation survey (ECPP) and the Parent and Family Involvement in Education survey (PFI).

    Dated: April 27, 2018. Tomakie Washington, Acting Director, Information Collection Clearance Division, Office of the Chief Privacy Officer, Office of Management.
    [FR Doc. 2018-09328 Filed 5-1-18; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF ENERGY Bonneville Power Administration [BPA File No.: RP-18] Proposed Revised Rules of Procedure and Opportunity for Public Review and Comment AGENCY:

    Bonneville Power Administration (BPA or Bonneville), Department of Energy (DOE).

    ACTION:

    Notice of proposed revised rules of procedure.

    SUMMARY:

    Bonneville is proposing to revise the rules of procedure that govern its hearings conducted pursuant to section 7(i) of the Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power Act), 16 U.S.C. 839e(i).

    DATES:

    Anyone wishing to comment on the proposed revised rules of procedure must file such comments no later than 5:00 p.m. PDT on June 4, 2018.

    ADDRESSES:

    Comments should be submitted through Bonneville's website at www.bpa.gov/comment. Comments may also be submitted to BPA Public Involvement, Bonneville Power Administration, P.O. Box 14428, Portland, Oregon 97293. Bonneville requests that all comments contain the designation RP-18 in the subject line.

    FOR FURTHER INFORMATION CONTACT:

    Heidi Helwig, DKE-7, BPA Communications, Bonneville Power Administration, P.O. Box 3621, Portland, Oregon 97208; by phone toll free at 1-800-622-4520; or by email to [email protected]

    Responsible Official: Mary K. Jensen, Executive Vice President, General Counsel, is the official responsible for the development of Bonneville's rules of procedure.

    SUPPLEMENTARY INFORMATION:

    Table of Contents Part I Introduction and Background Part II Summary of Proposed Revised Rules of Procedure Part III Proposed Revised Rules of Procedure Part I—Introduction and Background

    The Northwest Power Act provides that Bonneville must establish and periodically review and revise its rates so that they recover, in accordance with sound business principles, the costs associated with the acquisition, conservation, and transmission of electric power, including amortization of the Federal investment in the Federal Columbia River Power System over a reasonable number of years, and Bonneville's other costs and expenses. 16 U.S.C. 839e(a)(1). Section 7(i) of the Northwest Power Act, 16 U.S.C. 839e(i), requires that Bonneville's rates be established according to certain procedures, including notice of the proposed rates; one or more hearings conducted as expeditiously as practicable by a hearing officer; opportunity for both oral presentation and written submission of views, data, questions, and arguments related to the proposed rates; and a decision by the Administrator based on the record.

    In addition, section 212(i)(2)(A) of the Federal Power Act, 16 U.S.C. 824k(i)(2)(A), provides in part that the Administrator may conduct a section 7(i) hearing to determine the terms and conditions for transmission service on the Federal Columbia River Transmission System under certain circumstances. Such a hearing must adhere to the procedural requirements of paragraphs (1) through (3) of section 7(i) of the Northwest Power Act, except that the hearing officer makes a recommended decision to the Administrator before the Administrator's final decision.

    Bonneville last revised its procedures to govern hearings under section 7(i) of the Northwest Power Act in 1986. See “Procedures Governing Bonneville Power Administration Rate Hearings,” 51 Federal Register 7611 (1986). Since the establishment of those procedures, there have been significant advancements in the technology available to conduct the hearings. The proposed revised rules of procedure incorporate changes to reflect the manner in which Bonneville has applied these advancements. In addition, through conducting numerous hearings over the past few decades, Bonneville has gained insight regarding the strengths and weaknesses of the current procedures. The proposed revisions incorporate changes to make the hearings more efficient and procedures that were regularly adopted by order of the hearing officer in previous hearings. Finally, the proposed revisions explicitly provide that the rules apply to any proceeding under section 212(i)(2)(A) of the Federal Power Act (“section 212 proceedings”).

    In order to encourage public involvement and assist Bonneville in the development of the proposed revised procedures, Bonneville met with customers and other interested parties on February 13, 2018, in Portland, Oregon, to discuss how the current rules might be revised. Bonneville also solicited written comments over a two-week period ending February 28, 2018. After reviewing the comments, Bonneville incorporated a number of revisions to its proposed rules.

    Although rules of agency procedure are exempt from notice and comment rulemaking requirements under the Administrative Procedure Act, 5 U.S.C. 553(b)(3)(A), Bonneville is nevertheless publishing notice of the proposed revisions to its procedural rules in the Federal Register to promote transparency and public participation. Bonneville will accept written comments on the proposed revisions until the deadline stated above. After considering the written comments, Bonneville will publish the final rules in Federal Register later this year.

    Part II—Summary of Proposed Revised Rules of Procedure

    The statements below provide general summaries of some of the proposed revisions in each section of the rules.

    Section 1010.1 General Provisions

    • The proposed revisions specify that the rules apply to wholesale power and transmission rate case proceedings and section 212 proceedings.

    • A provision has been added to clarify that the rules do not establish substantive standards for the Administrator's final decisions.

    Section 1010.2 Definitions

    • Various definitions were added or revised in this section.

    Section 1010.3 Hearing Officer

    • A provision has been added to clarify that parties should contact the hearing clerk with procedural questions rather than Bonneville counsel or rates staff.

    • A provision has been added to recognize that the hearing officer can establish special rules of practice that are consistent with the proposed rules.

    Section 1010.4 Initiation of Proceeding

    • A provision has been added to require the Federal Register notice initiating the proceeding to include the proposed new or revised terms and conditions of transmission service for section 212 proceedings.

    • A provision has been added to require the Federal Register notice to include procedures for requesting access to the secure website for purposes of filing petitions to intervene.

    • A provision has been added to require the Federal Register notice to state that the scope of a proceeding may include new issues that arise as a result of circumstances or events occurring outside of the proceeding.

    Section 1010.5 Ex Parte Communications

    • Proposed revisions more clearly prohibit ex parte communications with the hearing officer.

    • A provision has been added to clarify that communications between the hearing officer and the hearing clerk (or other staff providing administrative support to the hearing officer) are not ex parte.

    • The procedures for addressing ex parte communications have been revised to provide that written ex parte communications and written summaries of oral ex parte communications will be posted on Bonneville's website rather than being made available in Bonneville's Public Involvement Office.

    Section 1010.6 Intervention

    • The procedures for intervention were modified to provide prospective intervenors access to the secure website before filing a petition to intervene. Once access has been granted, a petition to intervene can be filed through the secure website.

    Section 1010.7 Joint Parties

    • A provision has been added to encourage parties with similar interests to establish joint parties and describes how to form joint parties.

    Section 1010.8 Participants

    • A provision has been added to describe the manner in which members of the general public, who are not parties, can submit comments.

    Section 1010.9 Prehearing Conference

    • A provision has been added to recognize that the hearing officer will hold a prehearing conference to adopt a procedural schedule and any special rules of practice that are consistent with the proposed rules.

    Section 1010.10 Filing and Service of Documents

    • Provisions have been added to require that litigants file all documents through the secure website and that such filings will constitute service on all parties.

    Section 1010.11 Pleadings

    • Provisions were added to specify the types of pleadings, establish format and content requirements, and clarify rights and procedures for filing responsive pleadings.

    • Procedures have been added to govern interlocutory appeal of an order of the hearing officer to the Administrator.

    Section 1010.12 Clarification Sessions and Data Requests

    • The scope of permissible data requests has been revised. Data requests must seek information that is relevant to an issue in the proceeding and proportional to the needs of the case according to a variety of factors listed in the rule.

    • Provisions have been added to require litigants to be reasonable in the number and breadth of data requests.

    • Provisions have been added to govern the treatment of information that is privileged, commercially sensitive, or pertains to critical electric infrastructure.

    • Provisions have been added to govern the process for filing and responding to motions to compel. In deciding a motion to compel, the hearing officer will consider a variety of factors, including the potential impact of the decision on completing the proceeding according to the procedural schedule.

    Section 1010.13 Prefiled Testimony and Exhibits

    • The proposed revisions establish format and content requirements for prefiled testimony and exhibits and specify that litigants will have the opportunity to rebut the direct testimony of other litigants.

    • The proposed revisions clarify that materials incorporated into prefiled testimony by reference or by providing a link to a website will not be considered part of the record even if the prefiled testimony is accepted into the record. Any materials that a litigant wants included in the record should be submitted as an exhibit and subsequently moved in to evidence.

    • The proposed revisions specify that prefiled testimony and exhibits are not part of the record until they have been admitted into evidence by the hearing officer and provide procedures for moving those materials into the record.

    Section 1010.14 Cross-Examination

    • The proposed revisions specify the procedures for filing cross-examination statements and provide that witnesses generally will be cross-examined as a panel.

    • The proposed revisions clarify that witnesses are not required to perform calculations on the stand or answer questions about calculations that they did not perform.

    • Friendly cross-examination is prohibited, except that counsel for a litigant with a position that is not adverse to the witnesses may seek leave from the hearing officer to ask limited follow-up questions of a witness after any redirect testimony. Any follow-up questions are limited to the scope of the cross-examination.

    • The proposed revisions broadly define cross-examination exhibits and require litigants to file all cross-examination exhibits for a witness two business days before the witness is scheduled to appear.

    • Litigants must provide physical copies of cross-examination exhibits at the beginning of cross-examination.

    Section 1010.15 Stipulations

    • A provision has been added to provide that the hearing officer may admit into evidence stipulations on any issue of fact.

    Section 1010.16 Official Notice

    • A provision has been added to recognize that the hearing officer or the Administrator may take official notice of certain matters, and provides guidelines for litigants requesting official notice.

    Section 1010.17 Briefs

    • The proposed revisions include a standard outline and format for briefs in order to help Bonneville identify parties' specific issues and recommendations and prepare the records of decision in a more orderly manner.

    • The briefing provisions specify that Bonneville may file briefs in section 212 proceedings and that the Administrator may allow additional briefing opportunities in such proceedings.

    Section 1010.18 Oral Argument

    • Provisions have been added to permit oral argument and establish procedures for providing notice of intent to present oral argument.

    Section 1010.19 Telephone Conferences

    • A provision has been added to provide guidelines for telephone conferences.

    Section 1010.20 Hearing Officer's Recommended Decision

    • A provision has been added to address the hearing officer's recommended decision in section 212 proceedings.

    Section 1010.21 Final Record of Decision

    • A provision has been added to note that the Administrator will issue a Final Record of Decision in all ratemaking and section 212 proceedings.

    Section 1010.22 Expedited Proceedings

    • Expedited proceedings are defined as extending 90-120 days from the date the Federal Register Notice is published.

    Part III—Proposed Revised Rules of Procedure Bonneville Power Administration United States Department of Energy Rules of Procedure Section 1010.1 General Provisions (a) General rule of applicability (b) Exceptions to general rule of applicability (c) Effective date (d) Scope of rules (e) Waiver (f) Computation of time Section 1010.2 Definitions Section 1010.3 Hearing Officer Section 1010.4 Initiation of Proceeding Section 1010.5 Ex Parte Communications (a) General rule (b) Exceptions (c) Application (d) Notice of meetings (e) Written communications (f) Oral communications (g) Notice and opportunity for rebuttal Section 1010.6 Intervention (a) Filing (b) Contents (c) Time (d) Opposition Section 1010.7 Joint Parties Section 1010.8 Participants Section 1010.9 Prehearing Conference Section 1010.10 Filing and Service Section 1010.11 Pleadings (a) Types of pleadings (b) Content (c) Format (d) Answers to pleadings (e) Replies to answers (f) Interlocutory appeal Section 1010.12 Clarification Sessions and Data Requests (a) Clarification sessions (b) Data Requests and responses (c) Information that is attorney-client privileged or attorney work product (d) Commercially Sensitive Information and CEII (e) Disputes regarding responses to Data Requests (f) Sanctions (g) Moving responses to Data Requests into Evidence Section 1010.13 Prefiled Testimony and Exhibits (a) General rule (b) Items by reference (c) Moving Prefiled Testimony and Exhibits into Evidence (d) Motions to strike Section 1010.14 Cross-Examination Section 1010.15 Stipulations Section 1010.16 Official Notice Section 1010.17 Briefs (a) General rule (b) Initial brief (c) Brief on exceptions (d) Additional briefing rule for proceedings pursuant to Section 1010.1(a)(2) (e) Optional brief and memorandum of law (f) Waiver of issues or arguments Section 1010.18 Oral Argument Section 1010.19 Telephone Conferences Section 1010.20 Hearing Officer's Recommended Decision Section 1010.21 Final Record of Decision Section 1010.22 Expedited Proceedings (a) General rule (b) Extensions Attachment A—Brief Template Section 1010.1 General Provisions

    (a) General rule of applicability. These rules apply to all proceedings conducted under the procedural requirements contained in Section 7(i) of the Pacific Northwest Electric Power Planning and Conservation Act (Northwest Power Act), 16 U.S.C. 839e(i), for the purpose of:

    (1) Revising or establishing rates under Section 7 of the Northwest Power Act;

    (2) revising or establishing terms and conditions of general applicability for transmission service on the Federal Columbia River Transmission System pursuant to Section 212(i)(2)(A) of the Federal Power Act, 16 U.S.C. 824k(i)(2)(A); or

    (3) addressing other matters the Administrator determines are appropriate for such rules.

    (b) Exceptions to general rule of applicability. These rules do not apply to:

    (1) Proceedings regarding implementation of rates or formulae previously adopted by the Administrator and approved, on either an interim or final basis, by the Federal Energy Regulatory Commission;

    (2) Proceedings required by statute or by contract, in which the Administrator does not propose either (a) a new rate, formula rate, discount, credit, surcharge or other rate change, or (b) any new terms and conditions of transmission service or revisions thereto; or

    (3) Contract negotiations unless otherwise provided by paragraph (a) of this section.

    (c) Effective date. These rules will become effective 30 days after publication of the final rules in the Federal Register.

    (d) Scope of rules. These rules are intended to establish procedures and processes for all proceedings described in paragraph (a) of this section. These rules do not establish substantive standards for the Administrator's final decisions on issues in such proceedings.

    (e) Waiver. To the extent permitted by law, the Administrator may waive any section of these rules or prescribe any alternative procedures the Administrator determines to be appropriate.

    (f) Computation of time. Except as otherwise required by law, any period of time specified in these rules or by order of the Hearing Officer is computed to exclude the day of the event from which the time period begins to run and any day that is not a Business Day. The last day of any time period is included in the time period, unless it is not a Business Day. If the last day of any time period is not a Business Day, the period does not end until the close of business on the next Business Day.

    Section 1010.2 Definitions

    Capitalized terms not otherwise defined in these rules have the meaning specified below.

    (a) “Administrator” means the BPA Administrator or the acting Administrator.

    (b) “Bonneville” or “BPA” means the Bonneville Power Administration.

    (c) “Business Day” means any day that is not a Saturday, Sunday, day on which Bonneville closes and does not reopen prior to its official close of business, or legal public holiday as designated in 5 U.S.C. 6103.

    (d) “Commercially Sensitive Information” means information in the possession of a Litigant (including its officers, employees, agents, or experts) that is not otherwise publicly available and has economic value or could cause economic harm if disclosed, including but not limited to information that is copyrighted, licensed, proprietary, subject to a confidentiality obligation, or contains trade secrets or similar information that could provide a risk of competitive disadvantage or other business injury.

    (e) “Counsel” means any member in good standing of the bar of the highest court of any state, commonwealth, possession, territory, or the District of Columbia. Counsel appearing in a proceeding must conform to the standards of ethical conduct required of practitioners in the Federal courts of the United States.

    (f) “Critical Energy/Electric Infrastructure Information” or “CEII” means information related to (1) a system or asset of the bulk-power system, whether physical or virtual, the incapacity or destruction of which would negatively affect national security, economic security, public health or safety, or any combination of such matters; or (2) specific engineering, vulnerability, or detailed design information about proposed or existing critical infrastructure that (i) relates details about the production, generation, transportation, transmission, or distribution of energy; (ii) could be useful to a person in planning an attack on critical infrastructure; (iii) is exempt from mandatory disclosure under the Freedom of Information Act, 5 U.S.C. 552; and (iv) does not simply give the general location of the critical infrastructure.

    (g) “Cross-examination Exhibit” means any document or other material to be presented to a witness for any purpose on cross-examination.

    (h) “Data Request(s)” means a written request for information in any form, including documents, or an admission submitted in accordance with Section 1010.12(b).

    (i) “Draft Record of Decision” means the document that sets forth the Administrator's proposed decision on each issue in the pending proceeding.

    (j) “Ex Parte Communication” means an oral or written communication (1) relevant to the merits of any issue in the pending proceeding; (2) that is not on the Record; and (3) with respect to which reasonable prior notice to Parties has not been given.

    (k) “Evidence” means any material admitted into the Record by the Hearing Officer.

    (l) “Federal Register Notice” means the notice identified under Section 1010.4.

    (m) “Final Record of Decision” means the document that sets forth the Administrator's final decision on each issue in the pending proceeding.

    (n) “Hearing Clerk” means the individual(s) assisting the Hearing Officer as designated in the Federal Register Notice.

    (o) “Hearing Officer” means the official designated by the Administrator to conduct a proceeding under these rules.

    (p) “Hearing Officer's Recommended Decision” means the document that sets forth the Hearing Officer's recommendation to the Administrator on each issue in a proceeding pursuant to Section 1010.1(a)(2).

    (q) “Litigant(s)” means Bonneville and all Parties to the pending proceeding.

    (r) “Participant” means any Person who is not a Party and who submits oral or written comments pursuant to Section 1010.8.

    (s) “Party” means any Person whose intervention is effective under Section 1010.6. A Party may be represented by its Counsel or other qualified representative, provided that such representative conforms to the ethical standards prescribed in Section 1010.2(e).

    (t) “Person” means an individual; partnership; corporation; limited liability company; association; an organized group of persons; municipality, including a city, county, or any other political subdivision of a state; state, including any agency, department, or instrumentality of a state; a province, including any agency, department, or instrumentality of a province; the United States or other nation, or any officer, or agent of any of the foregoing acting in the course of his or her employment or agency.

    (u) “Prefiled Testimony and Exhibits” means any testimony, exhibits, studies, documentation, or other materials in a Litigant's direct or rebuttal case submitted in accordance with the procedural schedule. Prefiled Testimony and Exhibits do not include pleadings, briefs, or Cross-examination Exhibits.

    (v) “Rate” means the monetary charge, discount, credit, surcharge, pricing formula, or pricing algorithm for any electric power or transmission service provided by Bonneville, including charges for capacity and energy. The term excludes, but such exclusions are not limited to, transmission line losses, leasing fees or charges from Bonneville for operation and maintenance of customer-owned facilities. A rate may be set forth in a contract; however, other portions of a contract do not thereby become part of the rate for purposes of these rules.

    (w) “Record” means (1) Evidence; (2) transcripts, notices, briefs, pleadings, and orders from the proceeding; (3) comments submitted by Participants; (4) the Hearing Officer's Recommended Decision, if applicable; (5) the Draft Record of Decision, if any; and (6) such other materials and information as may have been submitted to, or developed by, the Administrator.

    (x) “Secure website” means the website established and maintained by Bonneville for proceedings under these rules.

    Section 1010.3 Hearing Officer

    (a) The Hearing Officer is responsible for conducting the proceeding, managing the development of the Record, and resolving procedural matters. In addition, in a proceeding pursuant to Section 1010.1(a)(2), the Hearing Officer is responsible for making a Recommended Decision to the Administrator as set forth in Section 1010.20.

    (b) The Hearing Officer shall not expand the scope of the proceeding beyond the scope established in the Federal Register Notice. If the Hearing Officer is uncertain whether a potential action would improperly allow information outside the scope to be entered into Evidence, the Hearing Officer shall certify the question directly to the Administrator for a determination.

    (c) The Hearing Officer may, in his or her discretion, issue special rules of practice to implement these rules, provided that such special rules are consistent with these rules.

    (d) Except as provided in Section 1010.12(c), the Hearing Officer may issue protective orders or make other arrangements for the review of information requested in a Data Request.

    (e) The Hearing Officer may reject or exclude all or part of any document or materials not submitted in accordance with these rules or order a Litigant to conform such document or materials to the requirements of these rules.

    (f) Litigants shall direct communications regarding procedural issues to the Hearing Clerk. The Hearing Clerk's contact information will be provided in the Federal Register Notice.

    Section 1010.4 Initiation of Proceeding

    (a) Any proceeding conducted under these rules will be initiated on the day a notice of Bonneville's initial proposal is published in the Federal Register.

    (b) The Federal Register Notice will:

    (1) State, as applicable, the proposed rates and/or the proposed new or revised terms and conditions of transmission service, a statement of the justification and reasons supporting such proposals, and any additional information required by law;

    (2) State the procedures for requesting access to the Secure website for purposes of filing petitions to intervene and the deadline for filing such petitions;

    (3) State the deadline and the procedures for Participants to submit comments;

    (4) If applicable, state that the proceeding is an expedited proceeding under Section 1010.22 and explain the reasons for the expedited proceeding;

    (5) State the date on which the Hearing Officer will conduct the prehearing conference;

    (6) In a proceeding pursuant to Section 1010.1(a)(2), state the date on which the Hearing Officer will issue the Hearing Officer's Recommended Decision, which date shall be used by the Hearing Officer in establishing the procedural schedule for the proceeding;

    (7) State the date(s) on which the Administrator expects to issue the Draft Record of Decision, if any, and the Final Record of Decision, which date(s) shall be used by the Hearing Officer in establishing the procedural schedule for the proceeding;

    (8) Define the scope of the proceeding and specify:

    (i) Issues that are not within the scope of the proceeding;

    (ii) That only Bonneville may prescribe or revise the scope of the proceeding;

    (iii) That Bonneville may revise the scope of the proceeding to include new issues that arise as a result of circumstances or events occurring outside the proceeding that are substantially related to the rates or terms and conditions under consideration in the proceeding; and

    (iv) That, if Bonneville revises the scope of the proceeding to include new issues, Bonneville will provide public notice, a reasonable opportunity to intervene, testimony or other information regarding such issues, and an opportunity for Parties to respond to Bonneville's testimony or other information.

    (9) Provide other information that is pertinent to the proceeding.

    Section 1010.5 Ex Parte Communications

    (a) General Rule. No Party or Participant in any proceeding under these rules shall make Ex Parte Communications to the Administrator, other Bonneville executives, any Bonneville staff member, the Hearing Officer, or the Hearing Clerk. In addition, no Bonneville staff member shall make Ex Parte Communications to the Hearing Officer or the Hearing Clerk. The Administrator, other Bonneville executives, Bonneville staff members, and the Hearing Officer shall not initiate or entertain Ex Parte Communications; however, communications among the Administrator, other Bonneville executives, and Bonneville staff members are not Ex Parte Communications.

    (b) Exceptions. The following communications will not be considered Ex Parte Communications subject to paragraph (a) of this section:

    (1) Relating to matters of procedure only;

    (2) If otherwise authorized by law or other portions of these rules;

    (3) From or to the Federal Energy Regulatory Commission;

    (4) Which all Litigants agree may be made on an ex parte basis;

    (5) Relating to communications in the ordinary course of business, information required to be exchanged pursuant to contracts, or information that Bonneville provides in response to a Freedom of Information Act request;

    (6) Relating to a request for supplemental information necessary for an understanding of factual materials contained in documents filed in a proceeding under these rules and which is made after coordination with Counsel for Bonneville;

    (7) Relating to a topic that is only secondarily the object of a proceeding, for which Bonneville is statutorily responsible under provisions other than Northwest Power Act Section 7, or which is eventually decided other than through a Section 7(i) proceeding; or

    (8) Between the Hearing Officer and Hearing Clerk or other staff supporting the Hearing Officer.

    (c) Application. The prohibitions contained in this Section 1010.5 apply from the day on which Bonneville publishes the Federal Register Notice and continue until the day the Administrator issues the Final Record of Decision in the proceeding.

    (d) Notice of meetings. Bonneville will give reasonable notice to all Parties of any meeting that it intends to hold with any customer group or member of the public when it reasonably appears that matters relevant to any issue in the pending proceeding will be discussed.

    (e) Written communications. Any written Ex Parte Communication received by the Administrator, other Bonneville executives, any Bonneville staff member, the Hearing Officer, or the Hearing Clerk will be promptly delivered to Counsel for Bonneville. The document will be posted for public review in a section of Bonneville's website for ex parte materials. The Ex Parte Communication will not become part of the Record.

    (f) Oral communications. If the Administrator, other Bonneville executives, any Bonneville staff member, the Hearing Officer, or the Hearing Clerk receives an oral offer of any Ex Parte Communication, they shall decline to listen to such communication and explain that such communication is prohibited by this Section 1010.5. If unsuccessful in preventing such communication, the recipient thereof shall advise the communicator that he or she will not consider the communication. The recipient shall promptly prepare a statement setting forth the substance of the communication and the circumstances thereof and deliver the statement to Counsel for Bonneville. The statement will be posted for public review on the ex parte website identified in paragraph (e) of this section.

    (g) Notice and opportunity for rebuttal. Bonneville will notify Parties when any Ex Parte Communication has been posted on the ex parte website identified in paragraph (e) of this section. A motion seeking the opportunity to rebut any facts or contentions in an Ex Parte Communication must be filed within five Business Days of Bonneville's notification that the communication has been posted on the ex parte website. The Hearing Officer will grant such a motion if he or she finds that providing the opportunity to rebut the Ex Parte Communication is necessary to prevent substantial prejudice to a Litigant.

    Section 1010.6 Intervention

    (a) Filing. A Person seeking to become a Party in a proceeding under these rules must request access to the Secure website pursuant to the procedures set forth in the Federal Register Notice initiating the proceeding. After being granted access, such Person shall file a petition to intervene through the Secure website.

    (b) Contents. A petition to intervene must state the name, address, and email address of the Person and the Person's interests in the outcome of the proceeding. Petitioners may designate no more than eight individuals on whom service will be made. If the petitioner requires additional individuals to be added to the service list, it may request such relief from the Hearing Officer. Entities that directly purchase power or transmission services under Bonneville's rate schedules, or trade organizations representing those entities, will be granted intervention, based on a petition filed in conformity with this Section 1010.6. Other petitioners must explain their interests in sufficient detail to permit the Hearing Officer to determine whether they have a relevant interest in the proceeding.

    (c) Time.

    (1) Petitions must be filed by the deadline specified in the Federal Register Notice, unless Bonneville provides a subsequent opportunity to intervene pursuant to Section 1010.4(b)(8)(iv).

    (2) Late interventions are strongly disfavored. Granting an untimely petition to intervene must not be a basis for delaying or deferring any procedural schedule. A late intervenor must accept the Record developed prior to its intervention. In acting on an untimely petition, the Hearing Officer shall consider whether:

    (i) The petitioner has a good reason for filing out of time;

    (ii) Any disruption of the proceeding might result from granting a late intervention;

    (iii) The petitioner's interest is adequately represented by existing Parties; and

    (iv) Any prejudice to, or extra burdens on, existing Parties might result from permitting the intervention.

    (d) Opposition. Any opposition to a timely petition to intervene must be filed within two Business Days after the deadline for filing petitions to intervene. Any opposition to a late-filed petition to intervene must be filed within two Business Days after service of the petition.

    Section 1010.7 Joint Parties

    (a) Parties with common interests or positions in a pending proceeding are encouraged to form a Joint Party for purposes of filing pleadings, Prefiled Testimony and Exhibits, and briefs and for conducting cross-examination. Such grouping will be without derogation to the right of any Party to represent a separate point of view where its position differs from that of the Joint Party in which it is participating.

    (b) To form a Joint Party, one member of the proposed Joint Party must email a list of proposed Joint Party members to the Hearing Clerk and to Counsel for each proposed member and represent that all of the named members are in concurrence with the formation of the Joint Party. The Hearing Clerk will form the Joint Party, assign a Joint Party code, and email notice to all Litigants, stating the Joint Party code and listing the Joint Party members.

    Section 1010.8 Participants

    (a) Any Participant may submit written comments for the Record or present oral comments in legislative-style hearings, if any, for the purpose of receiving such comments. The Federal Register Notice will set forth the procedures and deadline for Participant comments. In the event new issues arise after such deadline due to unforeseen circumstances, the Hearing Officer may extend the deadline for Participant comments. Participant comments will be made available on Bonneville's website.

    (b) The Hearing Officer may allow reasonable questioning of a Participant by Counsel for any Litigant if the Participant presents oral comments at a legislative-style hearing.

    (c) Participants do not have the rights of Parties. The procedures in Sections 1010.6, 1010.7, and 1010.9 through 1010.19 are not available to Participants.

    (d) Parties may not submit Participant comments. Employees of organizations that have intervened may submit Participant comments as private individuals (that is, not speaking for their organizations) but may not use the comment procedures to further promote specific issues raised by their intervenor organizations.

    Section 1010.9 Prehearing Conference

    A prehearing conference will be held on the date specified in the Federal Register Notice. During the conference, the Hearing Officer shall establish (1) a procedural schedule, and (2) any special rules of practice in accordance with Section 1010.3(c).

    Section 1010.10 Filing and Service

    (a) Unless otherwise specified, a Litigant shall make any filing provided for by these rules with the Hearing Officer through the Secure website. Such filing will constitute service on all Litigants. If the Secure website is unavailable for filing, a Litigant shall serve the document to be filed on the Hearing Officer, Hearing Clerk, and all Litigants through email and thereafter file the document on the Secure website as soon as practicable when the Secure website becomes available.

    (b) In addition to Parties whose petitions to intervene are granted by the Hearing Officer, the Administrator may designate additional Persons upon whom service will be made.

    (c) Except as provided in paragraph (b) of this section, service will not be made upon Participants.

    (d) Submission of Data Requests and responses to such requests is governed by Section 1010.12(b), except that paragraph (e) of this section governs the timing of such requests and responses.

    (e) All filings provided for by these rules must be made, and Data Requests and responses must be submitted, on Business Days no later than 4:30 p.m., Pacific Time, in accordance with the procedural schedule adopted by the Hearing Officer. Filings made outside of these times are deemed to have been filed on the next Business Day and, if such day is after an applicable deadline, may be rejected by the Hearing Officer.

    Section 1010.11 Pleadings

    (a) Types of pleadings. Pleadings include petitions to intervene, motions, answers, and replies to answers. Pleadings do not include Prefiled Testimony and Exhibits, Cross-examination Exhibits, Data Requests and responses, or briefs.

    (b) Content. Pleadings must include the docket number and title of the proceeding, the name of the Litigant filing the pleading, the specific relief sought, any relevant facts and law, and an electronic signature (typed as “/s/Name”) of the Litigant's representative. Pleadings must follow the document numbering system established by the Hearing Officer and display the document number in the footer of the pleading.

    (c) Format. Pleadings must be filed as text-recognized PDFs converted directly from a word processing software and conform to the following format: (1) Page size must be 81/2 by 11 inches; in portrait orientation; (2) margins must be at least 1 inch on all sides; (3) text must be double-spaced, with the exception of headings, block quotes, and footnotes; and (4) font size must be comparable to 12 points Times New Roman (10 points Times New Roman for footnotes) or larger. Parties are encouraged to conform legal citations to the most current edition of The Bluebook: A Uniform System of Citation, published by The Harvard Law Review Association.

    (d) Answers to pleadings. Unless otherwise determined by the Hearing Officer, answers to pleadings must be filed within four Business Days of service of the pleading.

    (e) Replies to answers. Unless otherwise determined by the Hearing Officer, replies to answers are not allowed.

    (f) Interlocutory appeal. Interlocutory appeal to the Administrator of an order issued by the Hearing Officer is discouraged. Such an appeal will only be permitted upon a motion filed within five Business Days of the order being appealed and an order by the Hearing Officer certifying the ruling to the Administrator. The Hearing Officer shall certify the ruling to the Administrator upon finding that:

    (1) The order terminates a Party's participation in the proceeding and the Party's inability to participate thereafter could cause it substantial and irreparable harm;

    (2) Review is necessary to prevent substantial prejudice to a Litigant; or

    (3) Review could save the Administrator, Bonneville, and the Parties substantial effort or expense, or some other factor is present that outweighs the costs in time and delay of exercising review.

    The Administrator may accept or reject the Hearing Officer's certification of a ruling at his or her discretion. An answer to a motion for interlocutory appeal must be filed in accordance with paragraph (d) of this section.

    Section 1010.12 Clarification Sessions and Data Requests

    (a) Clarification sessions.

    (1) The Hearing Officer may schedule one or more informal clarification sessions for the purpose of allowing Litigants to question witnesses about the contents of their Prefiled Testimony and Exhibits and the derivation of their recommendations and conclusions. The Hearing Officer will not attend the clarification sessions. Clarification sessions will not be used to conduct cross-examination, and discussions in clarification sessions will not be transcribed or become part of the Record. Litigants may participate in clarification sessions by phone or other technology made available by Bonneville.

    (2) If a Litigant does not make any witness available for a clarification session, the witness's Prefiled Testimony and Exhibits may be subject to a motion to strike.

    (b) Data Requests and responses. All Data Requests and responses to Data Requests must be submitted according to the rules in this Section 1010.12(b) and Section 1010.10(e). For purposes of this Section 1010.12(b), “Requesting Litigant” means the Litigant that submitted the Data Request at issue, and “Responding Litigant” means the Litigant that received the Data Request.

    (1) Scope in general. Except as otherwise provided in this Section 1010.12(b), a Data Request may seek information or an admission relevant to any issue in the proceeding; provided, however, such requests must be proportional to the needs of the proceeding considering the importance of the issues at stake, the amount in controversy, the Litigants' relative access to relevant information, the Litigants' resources, the extent of the Responding Litigant's testimony on the subject and participation in the proceeding, the importance of the information sought to develop Evidence on the issue, and whether the burden or expense of responding to the request outweighs the likely benefit if the response were admitted into Evidence.

    (i) Each Litigant shall be reasonable in the number and breadth of its Data Requests in consideration of the factors listed in paragraph (b)(1) of this section. A Litigant that believes it has received one or more unreasonable Data Request(s) from another Litigant may object to the request(s) on that basis. Any dispute over such an objection will be resolved in accordance with the procedures in paragraph (e) of this section.

    (ii) A Litigant shall not be required to perform any new study or analysis, but a Litigant may, in its sole discretion and without waiving any objection to any Data Request, agree to perform such study or analysis.

    (iii) A Litigant shall not be required to produce publicly available information.

    (iv) A Litigant shall not be required to produce information that is unduly burdensome to provide or produce the same information multiple times in response to cumulative or duplicative Data Requests.

    (v) A Litigant shall not be required to produce any information that is protected from disclosure by the attorney-client privilege or attorney work product doctrine.

    (vi) Bonneville shall not be required to produce documents that, in the opinion of Counsel for Bonneville, may be exempt from production under the Freedom of Information Act, 5 U.S.C. 552, or the Trade Secrets Act, 18 U.S.C. 1905.

    (2) Submitting Data Requests. All Data Requests must be submitted through the Secure website.

    (i) A Data Request must identify the Prefiled Testimony and Exhibits (page and line numbers) or other material addressed in the request.

    (ii) A Litigant shall not submit a Data Request seeking the response to another Data Request.

    (iii) During the period established in the procedural schedule for submitting Data Requests immediately following the filing of Bonneville's Initial Proposal, Parties may submit Data Requests only to Bonneville.

    (iv) A multi-part Data Request must include a reasonably limited number of subparts, and all subparts must address only one section or other discrete portion of a Litigant's Prefiled Testimony and Exhibits. Each subpart of a multi-part Data Request will be considered a separate Data Request for purposes of this Section 1010.12(b).

    (3) Responding to Data Requests. All Responses to Data Requests, except responses containing Commercially Sensitive Information or CEII, must be submitted through the Secure website.

    (i) Except as otherwise provided by the Hearing Officer, a Litigant must provide a response to each Data Request no later than five Business Days after the day that the Data Request is submitted through the Secure website. The Hearing Officer may specify exceptions to this rule and establish alternative deadlines, for example, for periods spanning holidays.

    (ii) An objection to a data request will be considered a response for purposes of this Section 1010.12(b). In any response that includes one or more objections, the Litigant must state the grounds for the objection(s) and why any information or admission is being withheld.

    (iii) As soon as a Responding Litigant estimates that it will not be able to respond to one or more Data Requests by the due dates because of the volume of or other burden caused by the request(s), the Responding Litigant shall contact the Requesting Litigant and confer about a possible delay in the due date. If the Litigants have not resolved the matter by the due date, the Responding Litigant shall file an objection on the due date and supplement the objection with a response in good faith as soon as possible thereafter. Any dispute over such an objection will be resolved in accordance with the procedures in paragraph (e) of this section.

    (c) Information that is attorney-client privileged or attorney work product. If a Responding Litigant withholds information from a response to a Data Request on the basis of attorney-client privilege or the attorney work product doctrine, it must object and so state in its response. Upon written request by Counsel for the Requesting Litigant, the Responding Litigant must submit a supplemental response to the Data Request that includes a declaration made by Counsel for such Litigant in accordance with 28 U.S.C. 1746 stating that the information withheld is protected from disclosure by attorney-client privilege or the attorney work product doctrine, and identifying, without revealing information that itself is privileged or protected, the information withheld. The Hearing Officer may not order in camera review or release of information that a Litigant has withheld from a response to a Data Request on the basis of attorney-client privilege or the attorney work product doctrine.

    (d) Commercially Sensitive Information and CEII.

    (1) When a Responding Litigant has determined that responding to a Data Request will require it to produce Commercially Sensitive Information or CEII that is otherwise discoverable, the Litigant shall notify and confer with the Requesting Litigant to attempt to agree to the terms of a proposed protective order, including a non-disclosure certificate, to govern exchange and use of the Commercially Sensitive Information or CEII. If the conferring Litigants agree to the terms of a proposed protective order, they must file the proposed order with the Hearing Officer along with a motion seeking adoption of the order. If the conferring Litigants are unable to agree to the terms of a protective order within three Business Days of starting to confer, each Litigant shall file a proposed protective order, and the Hearing Officer shall enter an order adopting a protective order to govern the exchange and use of Commercially Sensitive Information or CEII. Such protective order may be, but is not required to be, based upon the proposed protective orders filed by the Litigants and must be consistent with the requirements in paragraph (d)(2) of this section. Once the Hearing Officer has adopted a protective order, and the Requesting Litigant has filed its signed non-disclosure certificate(s), the Responding Litigant must provide the Commercially Sensitive Information or CEII to the Requesting Litigant within three Business Days.

    (2) Any protective order proposed by a Litigant or adopted by the Hearing Officer must be consistent with the following requirements but is not limited to these requirements:

    (i) Prior to receiving any Commercially Sensitive Information or CEII, a Litigant that wants access to such information must file on the Secure website signed non-disclosure certificate(s) for any individual that the Litigant intends to have access to such information.

    (ii) Any documents or other materials that include Commercially Sensitive Information or CEII, including any copies or notes of such documents, must be plainly marked on each page with the following text: “Commercially Sensitive Information [or CEII]—Subject to Protective Order No. _____.” Any electronic files must include the same text in the file name. The requirements of this paragraph do not preclude any additional marking required by law.

    (iii) Responses to Data Requests that contain Commercially Sensitive Information or CEII must not be submitted via the Secure website. The protective order must prescribe a secure manner for providing such a response to any Litigant that files a signed non-disclosure certificate(s).

    (iv) Any Prefiled Testimony and Exhibits, Cross-examination Exhibits, briefs, or other documents that include Commercially Sensitive Information or CEII must not be filed via the Secure website. The protective order must prescribe a secure manner for making such a filing directly with the Hearing Officer such as via encrypted email or on physical media (CD, USB stick, etc.) and for simultaneously serving the document on all Litigants that have filed signed non-disclosure certificates. Any Litigant that makes a filing with Commercially Sensitive Information or CEII must simultaneously file a redacted or public version of the document via the Secure website.

    (v) The protective order must authorize Bonneville to file or otherwise submit any Commercially Sensitive Information or CEII from a proceeding under these rules with the Federal Energy Regulatory Commission or any other administrative or judicial body in accordance with any applicable requirements of that body.

    (vi) The protective order must authorize Bonneville to retain any Commercially Sensitive Information or CEII from a proceeding under these rules until the decision in the proceeding is no longer subject to judicial review.

    (vii) The protective order must include provisions that govern the return or destruction of Commercially Sensitive Information and CEII.

    (viii) A protective order may include a “Highly Confidential” designation for Commercially Sensitive Information or CEII that is of such a sensitive nature that the producing Litigant is able to justify a heightened level of protection. The Hearing Officer shall determine the appropriate level or means of protection for such information, including the possible withholding of such information altogether.

    (3) Notwithstanding the requirement in paragraph (d)(2)(iv) of this section that a protective order must provide a secure manner of filing documents that include Commercially Sensitive Information or CEII, Litigants are discouraged from making filings with such information because of the administrative burden that would result from the inclusion of such information in the Record. A Litigant should not file a document with such information unless it believes in good faith that its ability to present its argument would be significantly hindered by the absence of the information from the Record. Instead, Litigants are encouraged to summarize, describe, or aggregate Commercially Sensitive Information or CEII in filings in a manner that does not result in the inclusion of the information itself or otherwise effectively disclose the information.

    (4) The rules governing CEII in this Section 1010.12(b) do not preclude the application of any federal regulations regarding CEII that apply to Bonneville and are adopted after the effective date of these rules.

    (e) Disputes regarding responses to Data Requests. Litigants are strongly encouraged to informally resolve disputes regarding Data Requests and responses.

    (1) Duty to Confer. Before filing a motion to compel a response to a Data Request, the Requesting Litigant must confer with the Responding Litigant to attempt to informally resolve any dispute. Each Litigant must confer in good faith to attempt to informally resolve the dispute.

    (2) Motion to Compel. If a dispute is not resolved informally, the Requesting Litigant may file a motion to compel no more than four Business Days after the earlier of the date a response to the Data Request is provided or the due date for the response. A motion to compel must demonstrate that the Data Request(s) at issue are within the scope described in paragraph (b)(1) of this section, and the Requesting Litigant must certify in the motion that it attempted to informally resolve the dispute in accordance with paragraph (e)(1) of this section.

    (3) Answer to motion to compel. Any answer to a motion to compel must be filed in accordance with Section 1010.11(d).

    (4) Resolution of dispute by the Hearing Officer. The Hearing Officer may hold a telephone conference to discuss and attempt to resolve a dispute regarding a response to a Data Request. In ruling on any motion to compel, the Hearing Officer shall consider, among other things, the factors listed in paragraph (b)(1) of this section, whether the Responding Litigant filed testimony related to the Data Request(s) before it received the Data Request(s), and the potential impact of the decision on completing the proceeding according to the procedural schedule.

    (f) Sanctions. The Hearing Officer may remedy any refusal to comply with an order compelling a response to a Data Request or a violation of a protective order by:

    (1) Striking the Prefiled Testimony and Exhibits to which the Data Request relates;

    (2) Limiting Data Requests or cross-examination by the Litigant refusing to comply with the order; or

    (3) Recommending to the Administrator that an appropriate adverse inference be drawn against the Litigant refusing to comply with the order.

    (g) Moving responses to Data Requests into Evidence. A response to a Data Request must be admitted into Evidence to be considered part of the Record. A Litigant that intends to introduce a response to a Data Request into Evidence must either: (1) Attach the full text of each such response as an exhibit in the Litigant's Prefiled Testimony and Exhibits; or (2) submit a motion to that effect, by the deadline(s) established by the Hearing Officer.

    Section 1010.13 Prefiled Testimony and Exhibits

    (a) General rule.

    (1) All Prefiled Testimony and Exhibits must identify the witness(es) sponsoring the testimony and exhibits. Each Litigant that submits Prefiled Testimony and Exhibits must separately file a qualification statement for each witness sponsoring the testimony and exhibits. The qualification statement must describe the witness's education and professional experience as it relates to the subject matter of the Prefiled Testimony and Exhibits.

    (2) Except as otherwise allowed by the Hearing Officer, all prefiled testimony must be in written form and conform to the format of pleadings in Section 1010.11(c). Each section of prefiled testimony must include a heading setting forth its subject matter. Prefiled testimony must include line numbers in the left-hand margin of each page.

    (3) If prefiled testimony is based on the witness's understanding of the law, the witness shall so state in the testimony and, in order to provide context for the testimony, describe the witness's understanding of the law as it applies to the witness's position. In all other cases, legal arguments and opinions must not be included in Prefiled Testimony and Exhibits.

    (4) A witness qualified as an expert may testify in the form of an opinion. Any conclusions by the witness should, if applicable, be supported by data and explanation.

    (5) Litigants shall be provided an adequate opportunity to offer refutation or rebuttal of any material submitted by any other Party or by Bonneville. Any rebuttal to Bonneville's direct case must be included in a Party's direct testimony, along with any affirmative case that Party wishes to present. Any subsequent rebuttal testimony must be limited to rebuttal of the Parties' direct cases. New affirmative material may be submitted in rebuttal testimony only if in reply to another Party's direct case. No other new affirmative material may be introduced in rebuttal testimony. Rebuttal testimony must refer to the specific material being addressed (pages, lines, topic).

    (6) For documents or materials of excessive length that a Litigant wants to include in its Prefiled Testimony and Exhibits, the Litigant should create and include an excerpt of the document or materials that excludes irrelevant or redundant material.

    (b) Items by reference. Any materials that are incorporated by reference or referred to via electronic link in Prefiled Testimony and Exhibits will not be considered part of the testimony and exhibits for purposes of introducing the materials into Evidence. Only materials included as an exhibit to Prefiled Testimony and Exhibits will be considered part of the testimony and exhibits for purposes of introducing the materials into Evidence.

    (c) Moving Prefiled Testimony and Exhibits into Evidence. Prefiled Testimony and Exhibits must be admitted into Evidence to be considered part of the Record. If a Litigant's witness(es) sponsoring Prefiled Testimony and Exhibits are cross-examined, the Litigant shall move the witnesses' Prefiled Testimony and Exhibits into Evidence at the conclusion of the cross-examination. If there is no cross-examination of a Litigant's witness(es), a Litigant that intends to introduce the witness(es)'s Prefiled Testimony and Exhibits into Evidence shall, by any deadline established by the Hearing Officer, file a declaration of the witness(es) made in accordance with 28 U.S.C. 1746 that lists the Prefiled Testimony and Exhibits and certifies that the material is the same material previously filed in the proceeding and is true and correct to the best of their knowledge and belief. Upon filing of the declaration, the witnesses' Prefiled Testimony and Exhibits will be admitted into Evidence.

    (d) Motions to strike. Motions to strike Prefiled Testimony and Exhibits must be filed by the deadlines established in the procedural schedule. An answer to a motion to strike must be filed in accordance with Section 1010.11(d). If the Hearing Officer grants a motion to strike, the Litigant sponsoring the stricken material shall file conformed copies with strikethrough deletions of such material within five Business Days of the Hearing Officer's order. Conformed copies must be filed with the same document number as the original exhibit, but with the designation “-CC” at the end (e.g., BP-20-E-BPA-16-CC). Material struck by the Hearing Officer shall not be admitted into Evidence but will be considered part of the Record for purposes of reference regarding whether the motion should have been granted.

    Section 1010.14 Cross-Examination

    (a) Except as otherwise provided by the Hearing Officer, witnesses generally shall be cross-examined as a panel for Prefiled Testimony and Exhibits that they co-sponsor, provided that each panel member (1) has submitted a qualification statement, and (2) is under oath.

    (b) At the time specified in the procedural schedule, a Litigant intending to cross-examine a witness shall file a cross-examination statement. The statement shall:

    (1) Identify the witnesses the Litigant intends to cross-examine and the Prefiled Testimony and Exhibits sponsored by the witnesses that will be the subject of the cross-examination;

    (2) Briefly describe the subject matter and portions of the Prefiled Testimony and Exhibits for cross-examination;

    (3) Specify the amount of time requested for cross-examination of each witness; and

    (4) Provide any other information required in an order issued by the Hearing Officer.

    (c) A Litigant waives cross-examination for any witnesses not listed in its cross-examination statement, except that any Litigant may ask follow-up questions of witnesses appearing at the request of another Litigant.

    (d) After the Litigants file cross-examination statements, the Hearing Officer shall issue a schedule setting forth the order of witnesses to be cross-examined.

    (e) Cross-examination is limited to issues relevant to the Prefiled Testimony and Exhibits that (1) are identified in the Litigant's cross-examination statement, or (2) arise in the course of the cross-examination.

    (f) Witnesses are not required to perform calculations on the stand or answer questions about calculations that they did not perform. Witnesses appearing as a panel shall determine in good faith which witness will respond to a cross-examination question.

    (g) A Litigant may only cross-examine witnesses whose position is adverse to the Litigant seeking to cross-examine. Notwithstanding the preceding sentence, a Litigant whose position is not adverse to the witnesses subject to cross-examination may, immediately following any redirect testimony by those witnesses, seek leave from the Hearing Officer to ask limited follow-up questions of the witnesses. Any such follow-up questions allowed by the Hearing Officer must be limited to the scope of the cross-examination of the witnesses.

    (h) Only a Litigant's Counsel may conduct cross-examination. Only Counsel for the witnesses being cross-examined may object to questions asked during cross-examination, except that Counsel for any Litigant may object to friendly cross-examination.

    (i) To avoid duplicative cross-examination, the Hearing Officer may impose reasonable limitations if the Litigants conducting cross-examination have substantially similar positions.

    (j) The Hearing Officer may impose reasonable time limitations on the cross-examination of any witness.

    (k) Cross-examination Exhibits.

    (1) A Litigant must file each Cross-examination Exhibit to be presented to a witness for any purpose two Business Days before the witness is scheduled to appear. For example, for a witness appearing on a Monday, the due date for documents is the preceding Thursday at 4:30 p.m.

    (2) A Litigant must provide physical copies of each Cross-examination Exhibit to the Hearing Officer, the Hearing Clerk, each panel witness, witness's Counsel, and the court reporter at the beginning of cross-examination on the day the witness is scheduled to appear.

    (3) A Cross-examination Exhibit must be limited to material the Litigant intends to introduce into Evidence.

    (4) If a document is introduced into Evidence during cross-examination, and only part of the document is admitted into Evidence, the document must be conformed by the Litigant to include only that part of the document admitted into Evidence. The conformed document must be filed through the Secure website.

    (l) All other matters relating to conduct of cross-examination are left to the Hearing Officer's discretion.

    Section 1010.15 Stipulations

    The Hearing Officer may admit into Evidence stipulations on any issue of fact.

    Section 1010.16 Official Notice

    The Administrator or the Hearing Officer may take official notice of any matter that may be judicially noticed by federal courts or any matter about which Bonneville is an expert. A Litigant requesting official notice shall provide a precise citation for the material for which official notice is requested and file the material on the Secure Website at the time the request is granted or as soon as practicable thereafter. The Hearing Officer may afford any Litigant making a timely request an opportunity to show the contrary of an officially noticed fact.

    Section 1010.17 Briefs

    (a) General rule. Briefs must be filed at times specified in the procedural schedule. All evidentiary arguments in briefs must be based on cited material admitted into Evidence. Material not admitted into Evidence must not be attached to or relied upon in any brief, except to address disputes regarding the admissibility of specific material into Evidence. Incorporation by reference is not permitted. The Hearing Officer may impose page limitations on any brief. All briefs must comply with the format requirements in Section 1010.11(c) and the template provided in Attachment A, as may be amended.

    (b) Initial brief. At the conclusion of the evidentiary portion of a proceeding, each Party may file an initial brief. The purpose of an initial brief is to identify separately each legal, factual, and policy issue to be resolved by the Administrator and present all arguments in support of a Party's position on each of these issues. The initial brief should also rebut contentions made by adverse witnesses in their Prefiled Testimony and Exhibits. The initial brief must contain a final revised exhibit list reflecting the status of all of the Party's Prefiled Testimony and Exhibits, Cross-examination Exhibits, and any other exhibits, including those admitted, withdrawn, conformed, and rejected.

    (c) Brief on exceptions. After issuance of Bonneville's Draft Record of Decision, each Party may file a brief on exceptions. The purposes of the brief on exceptions are to (1) raise any alleged legal, policy, or evidentiary errors in the Draft Record of Decision; or (2) provide additional support for draft decisions contained in the Draft Record of Decision. All arguments raised by a Party in its initial brief will be deemed to have been raised in the Party's brief on exceptions, regardless of whether such arguments are included in the brief on exceptions.

    (d) Additional briefing rule for proceedings pursuant to Section 1010.1(a)(2). In a proceeding pursuant to Section 1010.1(a)(2), Bonneville is considered a Party for purposes of filing briefs in accordance with this Section 1010.17, except that Section 1010.17(f) does not apply to Bonneville. In addition, in such a proceeding, the Hearing Officer or the Administrator may provide Litigants with additional briefing opportunities not otherwise set forth in these rules. Such additional briefing opportunities may include briefs on exceptions in addition to those set forth in Section 1010.17(c), above.

    (e) Optional brief and memorandum of law. The Hearing Officer may allow the filing of a brief and memorandum of law not expressly provided for by this section.

    (f) Waiver of issues or arguments. A Party whose briefs do not raise and fully develop the Party's position on any issue shall be deemed to take no position on such issue. Arguments or alleged errors not raised in initial briefs in accordance with Section 1010.17(b), briefs on exceptions in accordance with Section 1010.17(c), or briefs permitted by Section 1010.17(d) are deemed to be waived.

    Section 1010.18 Oral Argument

    (a) An opportunity for each Litigant to present oral argument will be provided in proceedings conducted under these rules.

    (b) At the time specified in the procedural schedule, each Litigant that intends to present oral argument shall file a notice of intent to present oral argument. The notice must identify the speaker(s), a brief description of the subject matter to be addressed, and the amount of time requested.

    (c) After Litigants file notices of intent to present oral argument, the Hearing Officer shall issue an order setting forth the schedule of oral argument.

    Section 1010.19 Telephone Conferences

    Telephone conferences may be permitted in appropriate circumstances, provided that: (1) There is a proposed agenda for the conference concerning the points to be considered and the relief, if any, to be requested during the conference; and (2) Litigants are provided notice and given an opportunity to be represented on the line. If the Hearing Officer schedules a telephone conference, the Hearing Officer may require that a court reporter be present on the line.

    Section 1010.20 Hearing Officer's Recommended Decision

    In a proceeding pursuant to Section 1010.1(a)(2), the Hearing Officer shall, unless he or she becomes unavailable, issue the Hearing Officer's Recommended Decision stating the Hearing Officer's findings and conclusions, and the reasons or basis thereof, on all material issues of fact, law, or discretion.

    Section 1010.21 Final Record of Decision

    (a) The Administrator will make a decision adopting final proposed rates for submission to the Federal Energy Regulatory Commission for confirmation and approval based on the Record.

    (b) In a proceeding pursuant to Section 1010.1(a)(2), the Administrator will make a determination in a Final Record of Decision on any terms and conditions of transmission service, or revisions thereto, at issue in the proceeding.

    (c) Any Final Record of Decision will be uploaded to the Secure Website and made available to Participants through Bonneville's external website.

    Section 1010.22 Expedited Proceedings

    (a) General rule. The Administrator will determine, in his or her discretion, whether to conduct an expedited proceeding. The Final Record of Decision in a proceeding conducted under this section will be issued on an expedited basis in 90-120 days from the date of the Federal Register Notice. The Hearing Officer may establish procedures or special rules as set forth in Section 1010.3(c) necessary for the expedited schedule.

    (b) Extensions. The Hearing Officer may extend the schedule in response to a written motion by a Litigant showing good cause for the extension.

    Attachment A—Brief Template I. CATEGORY [all issues pertaining to a particular category, for example: POWER RATES, TRANSMISSION RATES, TRANSMISSION TERMS AND CONDITIONS, JOINT ISSUES, PROCEDURAL ISSUES] A. General Topic Area [for example: Secondary Sales]

    Issue 1: The specific issue to be addressed [for example: Whether Bonneville's forecast of energy prices should be revised upward].

    Summary of Party's Position

    A brief statement summarizing the party's position.

    [For example: Bonneville staff's forecast of energy prices for secondary sales is too conservative. The record demonstrates that the trend in market prices is upward. The Administrator should revise the forecast for the price of secondary energy upward consistent with Party X's proposal.]

    Party's Position and Argument

    Statements of argument, including citations to the record.

    Requested Action or Decision

    A brief description of the requested action or decision the party wants the Administrator to make.

    [For example: The projection of energy prices for Bonneville's secondary sales should be revised consistent with Party's X's proposal.]

    Issue 2: The specific issue to be addressed [for example: [Whether Bonneville's surplus power sales forecast is reasonable.]

    Summary of Party's Position

    [For example: Bonneville's surplus power sales forecast is flawed because it does not account for extraregional power sales.]

    Party's Position and Argument

    Statements of argument, including citations to the record.

    Requested Action or Decision

    [For example: Bonneville's surplus power sales forecast should be increased to reflect extraregional power sales.]

    Post-Hearing List of Exhibits Filing code Title Date filed Status XX-XX-E-XX-01 Direct Testimony mm/dd/yyyy Admitted. XX-XX-E-XX-02 Rebuttal Testimony mm/dd/yyyy Rejected. Issued this 23rd day of April 2018. Elliot E. Mainzer, Administrator and Chief Executive Officer.
    [FR Doc. 2018-09085 Filed 5-1-18; 8:45 am] BILLING CODE 6450-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following electric corporate filings:

    Docket Numbers: EC18-89-000.

    Applicants: CSOLAR IV South, LLC, CSOLAR IV WEST, LLC, CD Global Solar II CSolar Holdings, LLC.

    Description: Joint Application for Approval Under Section 203 of the Federal Power Act and Request for Expedited Approval of CSOLAR IV South, LLC, et al.

    Filed Date: 4/26/18.

    Accession Number: 20180426-5174.

    Comments Due: 5 p.m. ET 5/17/18.

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER12-1266-009.

    Applicants: Midcontinent Independent System Operator, Inc.

    Description: Clean-up filing regarding Order 745 to be effective 6/12/2012.

    Filed Date: 4/26/18.

    Accession Number: 20180426-5073.

    Comments Due: 5 p.m. ET 5/17/18.

    Docket Numbers: ER18-926-001.

    Applicants: Southern California Edison Company.

    Description: Tariff Amendment: Amended GIA Stanton Energy Reliability Center Project SA No. 999 to be effective 2/8/2018.

    Filed Date: 4/26/18.

    Accession Number: 20180426-5002.

    Comments Due: 5 p.m. ET 5/17/18.

    Docket Numbers: ER18-1294-001.

    Applicants: Woomera Energy, LLC.

    Description: Compliance filing: Woomera Market Based Rate Tariff to be effective 12/31/9998.

    Filed Date: 4/26/18.

    Accession Number: 20180426-5120.

    Comments Due: 5 p.m. ET 5/17/18.

    Docket Numbers: ER18-1441-000.

    Applicants: Southern California Edison Company.

    Description: § 205(d) Rate Filing: GIA and Distribution Service Agmt SCEBESS-017 Project to be effective 4/26/2018.

    Filed Date: 4/25/18.

    Accession Number: 20180425-5204.

    Comments Due: 5 p.m. ET 5/16/18.

    Docket Numbers: ER18-1442-000.

    Applicants: Citizens Sycamore-Penasquitos Transmission LLC.

    Description: Baseline eTariff Filing: Initial Transmission Owner Tariff Filing to be effective 12/31/9998.

    Filed Date: 4/25/18.

    Accession Number: 20180425-5211.

    Comments Due: 5 p.m. ET 5/16/18.

    Docket Numbers: ER18-1443-000.

    Applicants: Midcontinent Independent System Operator, Inc., Michigan Electric Transmission Company, LLC.

    Description: § 205(d) Rate Filing: 2018-04-25_SA 1756 METC-Consumers Energy 11th Rev GIA (G479B) to be effective 5/1/2018.

    Filed Date: 4/25/18.

    Accession Number: 20180425-5220.

    Comments Due: 5 p.m. ET 5/16/18.

    Docket Numbers: ER18-1444-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Amendment to WMPA SA No. 4648; Queue No. AB2-057 (Consent to Assign) to be effective 3/2/2017.

    Filed Date: 4/26/18.

    Accession Number: 20180426-5074.

    Comments Due: 5 p.m. ET 5/17/18.

    Docket Numbers: ER18-1445-000.

    Applicants: Idaho Power Company.

    Description: Compliance filing: LGIA, LGIP, SGIA, and SGIP Modifications to be effective 6/25/2018.

    Filed Date: 4/26/18.

    Accession Number: 20180426-5102.

    Comments Due: 5 p.m. ET 5/17/18.

    Docket Numbers: ER18-1446-000.

    Applicants: Avista Corporation.

    Description: Tariff Cancellation: Avista Corp NITSA cancel to re-file to be effective 4/27/2018.

    Filed Date: 4/26/18.

    Accession Number: 20180426-5149.

    Comments Due: 5 p.m. ET 5/17/18.

    Docket Numbers: ER18-1447-000.

    Applicants: Avista Corporation.

    Description: § 205(d) Rate Filing: Avista Corp NITSA Re-filing to be effective 4/27/2018.

    Filed Date: 4/26/18.

    Accession Number: 20180426-5160.

    Comments Due: 5 p.m. ET 5/17/18.

    Docket Numbers: ER18-1448-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: Compliance filing: Notice of Cancellation of ISA, Service Agreement No. 2381, NQ30 re: Deactivation to be effective N/A.

    Filed Date: 4/26/18.

    Accession Number: 20180426-5192.

    Comments Due: 5 p.m. ET 5/17/18.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: April 26, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-09249 Filed 5-1-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. IC18-4-000] Commission Information Collection Activities (FERC-582); Comment Request; Extension AGENCY:

    Federal Energy Regulatory Commission, Department of Energy.

    ACTION:

    Notice of information collection and request for comments.

    SUMMARY:

    In compliance with the Paperwork Reduction Act of 1995, the Federal Energy Regulatory Commission (Commission or FERC) is soliciting public comment on the currently approved information collection, FERC-582 (Electric Fees, Annual Charges, Waivers, and Exemptions) and submitting the information collection to the Office of Management and Budget (OMB) for review. Any interested person may file comments directly with OMB and should address a copy of those comments to the Commission as explained below. The Commission published a 60-day Notice in the Federal Register in Docket No. IC18-4-000 requesting public comments. FERC received no comments in response to the Notice and is indicating that in its submittal to the OMB.

    DATES:

    Comments on the collection of information are due June 1, 2018.

    ADDRESSES:

    Comments filed with OMB, identified by OMB Control No. 1902-0132, should be sent via email to the Office of Information and Regulatory Affairs: [email protected] Attention: Federal Energy Regulatory Commission Desk Officer. The Desk Officer may also be reached via telephone at 202-395-8528.

    A copy of the comments should also be sent to the Commission, in Docket No. IC18-4-000 by either of the following methods:

    eFiling at Commission's Website: http://www.ferc.gov/docs-filing/efiling.asp.

    Mail/Hand Delivery/Courier: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE, Washington, DC 20426.

    Instructions: All submissions must be formatted and filed in accordance with submission guidelines at: http://www.ferc.gov/help/submission-guide.asp. For user assistance, contact FERC Online Support by email at [email protected], or by phone at: (866) 208-3676 (toll-free), or (202) 502-8659 for TTY.

    Docket: Users interested in receiving automatic notification of activity in this docket or in viewing/downloading comments and issuances in this docket may do so at http://www.ferc.gov/docs-filing/docs-filing.asp.

    FOR FURTHER INFORMATION CONTACT:

    Ellen Brown may be reached by email at [email protected], telephone at (202) 502-8663, and fax at (202) 273-0873.

    SUPPLEMENTARY INFORMATION:

    Title: FERC-582, Electric Fees, Annual Charges, Waivers, and Exemptions.

    OMB Control No.: 1902-0132.

    Type of Request: Three-year extension of the FERC-582 information collection requirements with no changes to the current reporting requirements.

    Abstract: The information required by FERC-582 is contained in Title 18 Code of Federal Regulations (CFR) Parts 381 1 and 382.2

    1 18 CFR, Sections 381.105, 381.106, 381.108, 381.302, and 381.305.

    2 18 CFR, Sections 382.102, 382.103, 382.105, 382.106, and 382.201.

    The Commission uses the FERC-582 to implement the statutory provisions of the Independent Offices Appropriation Act of 1952 (IOAA) 3 which authorizes the Commission to establish fees for its services. In addition, the Omnibus Budget Reconciliation Act of 1986 (OBRA) 4 authorizes the Commission to assess and collect fees and annual charges in any fiscal year in amounts equal to all the costs incurred by the Commission in that fiscal year.

    3 31 U.S.C. 9701.

    4 42 U.S.C. 7178.

    To comply with the FERC-582, respondents submit to the Commission the sum of the megawatt-hours (MWh) of all unbundled transmission (including MWh delivered in wheeling transactions and MWh delivered in exchange transactions) and the megawatt-hours of all bundled wholesale power sales (to the extent the bundled wholesale power sales were not separately reported as unbundled transmission). The data collected in the FERC-582 are drawn directly from the FERC Form 1 5 transmission data. The Commission sums the costs of its electric regulatory program and subtracts all electric regulatory program filing fee collections to determine the total collectible electric regulatory program costs. Then, the Commission uses the data submitted under FERC-582 to determine the total megawatt-hours of transmission of electric energy in interstate commerce. Respondents (public utilities and power marketers) subject to these annual charges must submit FERC-582 data to the Commission by April 30 of each year.6 The Commission issues bills for annual charges to respondents. Then, respondents must pay the charges within 45 days of the Commission's issuance of the bill.

    5 Annual Report of Major Electric Utilities, Licensees and Others (OMB Control No. 1902-0021), described in 18 CFR 141.1.

    6 18 CFR 382.201.

    Respondents file requests for waivers and exemptions of fees and charges 7 based on need. The Commission's staff uses the filer's financial information to evaluate the request for a waiver or exemption of the obligation to pay a fee or an annual charge.

    7 18 CFR parts 381 and 382.

    Estimate of Annual Burden8 : The Commission estimates the burden and cost 9 for this information collection as follows.

    8 Burden is defined as the total time, effort, or financial resources expended by persons to generate, maintain, retain, or disclose or provide information to or for a Federal agency. For further explanation of what is included in the information collection burden, refer to 5 CFR part 1320.

    9 The Commission staff thinks that the average respondent for this collection is similarly situated to the Commission, in terms of salary plus benefits. Based on FERC's 2017 annual average of $158,754 (for salary plus benefits), the average hourly cost is $76.50/hour.

    10 This includes requirements of 18 CFR 381.105 (methods of payment), 381.106 (waiver), 381.108 (exemption), 381.302 (declaratory order), 381.303 (review of DOE remedial order), 381.304 (DOE denial of adjustment), and 381.305 (OGC interpretation).

    FERC-582, Electric Fees, Annual Charges, Waivers, and Exemptions 10 Number of respondents Annual
  • number of
  • responses per
  • respondent
  • Total number of responses Average
  • burden & cost
  • per response
  • Total annual burden hrs. & cost Cost per
  • respondent
  • (1) (2) (1) × (2) = (3) (4) (3) * (4) = (5) (5) / (1) = (5) 67 1 67 1 hr.; $76.50 67 hrs.; $5,125.50 $76.50

    Comments: Comments are invited on: (1) Whether the collection of information is necessary for the proper performance of the functions of the Commission, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of the burden and cost of the collection of information, including the validity of the methodology and assumptions used;

    (3) ways to enhance the quality, utility and clarity of the information collection; and (4) ways to minimize the burden of the collection of information on those who are to respond, including the use of automated collection techniques or other forms of information technology. Dated: April 25, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-09251 Filed 5-1-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 2533-061] Brainerd Public Utilities; Notice of Intent To File License Application, Filing of Pre-Application Document (PAD), Commencement of Pre-Filing Process, and Scoping; Request for Comments on the PAD and Scoping Document, and Identification of Issues and Associated Study Requests

    a. Type of Filing: Notice of Intent to File License Application for a New License and Commencing Pre-filing Process.

    b. Project No.: 2533-061.

    c. Dated Filed: February 28, 2018.

    d. Submitted By: Brainerd Public Utilities.

    e. Name of Project: Brainerd Hydroelectric Project (Brainerd Project).

    f. Location: The Brainerd Project is located on the Mississippi River in the City of Brainerd, Crow Wing Country, Minnesota. The project does not occupy United States lands.

    g. Filed Pursuant to: 18 CFR part 5 of the Commission's Regulations.

    h. Potential Applicant Contact: Scott Magnuson, Superintendent, Brainerd Public Utilities, 8027 Highland Scenic Road, P.O. Box 273, Brainerd, MN 56401. Phone 218-825-3213 or email at [email protected]

    i. FERC Contact: Patrick Ely at (202) 502-8598 or email at [email protected]

    j. Cooperating agencies: Federal, state, local, and tribal agencies with jurisdiction and/or special expertise with respect to environmental issues that wish to cooperate in the preparation of the environmental document should follow the instructions for filing such requests described in item o below. Cooperating agencies should note the Commission's policy that agencies that cooperate in the preparation of the environmental document cannot also intervene. See 94 FERC ¶ 61,076 (2001).

    k. With this notice, we are initiating informal consultation with: (a) The U.S. Fish and Wildlife Service and/or NOAA Fisheries under section 7 of the Endangered Species Act and the joint agency regulations thereunder at 50 CFR, Part 402; and (b) the State Historic Preservation Officer, as required by section 106, National Historic Preservation Act, and the implementing regulations of the Advisory Council on Historic Preservation at 36 CFR 800.2.

    l. With this notice, we are designating Brainerd Public Utilities as the Commission's non-federal representative for carrying out informal consultation, pursuant to section 7 of the Endangered Species Act and section 106 of the National Historic Preservation Act.

    m. Brainerd Public Utilities filed with the Commission a Pre-Application Document (PAD; including a proposed process plan and schedule), pursuant to 18 CFR 5.6 of the Commission's regulations.

    n. A copy of the PAD is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website (http://www.ferc.gov), using the eLibrary link. Enter the docket number, excluding the last three digits in the docket number field to access the document. For assistance, contact FERC Online Support at [email protected], (866) 208-3676 (toll free), or (202) 502-8659 (TTY). A copy is also available for inspection and reproduction at the address in paragraph h.

    Register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filing and issuances related to this or other pending projects. For assistance, contact FERC Online Support.

    o. With this notice, we are soliciting comments on the PAD and Commission's staff Scoping Document 1 (SD1), as well as study requests. All comments on the PAD and SD1, and study requests should be sent to the address above in paragraph h. In addition, all comments on the PAD and SD1, study requests, requests for cooperating agency status, and all communications to and from Commission staff related to the merits of the potential application must be filed with the Commission.

    The Commission strongly encourages electronic filing. Please file all documents using the Commission's eFiling system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can submit brief comments up to 6,000 characters, without prior registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information at the end of your comments. For assistance, please contact FERC Online Support at [email protected] In lieu of electronic filing, please send a paper copy to: Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. The first page of any filing should include docket number P-2533-061.

    All filings with the Commission must bear the appropriate heading: Comments on Pre-Application Document, Study Requests, Comments on Scoping Document 1, Request for Cooperating Agency Status, or Communications to and from Commission Staff. Any individual or entity interested in submitting study requests, commenting on the PAD or SD1, and any agency requesting cooperating status must do so by June 28, 2018.

    p. Although our current intent is to prepare an environmental assessment (EA), there is the possibility that an Environmental Impact Statement (EIS) will be required. Nevertheless, this meeting will satisfy the NEPA scoping requirements, irrespective of whether an EA or EIS is issued by the Commission.

    Scoping Meetings

    Commission staff will hold two scoping meetings in the vicinity of the project at the time and place noted below. The daytime meeting will focus on resource agency, Indian tribes, and non-governmental organization concerns, while the evening meeting is primarily for receiving input from the public. We invite all interested individuals, organizations, and agencies to attend one or both of the meetings, and to assist staff in identifying particular study needs, as well as the scope of environmental issues to be addressed in the environmental document. The times and locations of these meetings are as follows:

    Evening Scoping Meeting

    Date: Wednesday, May 16, 2018.

    Time: 6:00 p.m.

    Location: Brainerd City Fire Department, 23 Laurel Street, Brainerd, MN 56401.

    Phone Number: (212) 828-2312.

    Daytime Scoping Meeting

    Date: Thursday, May 17, 2018.

    Time: 9:00 a.m.

    Location: Brainerd City Fire Department, 23 Laurel Street, Brainerd, MN 56401.

    Phone Number: (212) 828-2312.

    Scoping Document 1 (SD1), which outlines the subject areas to be addressed in the environmental document, was mailed to the individuals and entities on the Commission's mailing list. Copies of SD1 will be available at the scoping meetings, or may be viewed on the web at http://www.ferc.gov, using the eLibrary link. Follow the directions for accessing information in paragraph n. Based on all oral and written comments, a Scoping Document 2 (SD2) may be issued. SD2 may include a revised process plan and schedule, as well as a list of issues, identified through the scoping process.

    Environmental Site Review

    The potential applicant and Commission staff will conduct an Environmental Site Review of the project on Wednesday, May 16, 2018, starting at 10:00 a.m. All participants should meet at Brainerd Industrial Center, 1801 Mill Ave., Brainerd, MN 56401. Participants will be met at the entrance gate prior to entering the property. Participants must wear closed toe shoes and be 16 years or older. Please notify Adele Braun at (952) 842-3703, or [email protected], by May 9, 2018, if you plan to attend the environmental site review.

    Meeting Objectives

    At the scoping meetings, staff will: (1) Initiate scoping of the issues; (2) review and discuss existing conditions and resource management objectives; (3) review and discuss existing information and identify preliminary information and study needs; (4) review and discuss the process plan and schedule for pre-filing activity that incorporates the time frames provided for in Part 5 of the Commission's regulations and, to the extent possible, maximizes coordination of federal, state, and tribal permitting and certification processes; and (5) discuss the appropriateness of any federal or state agency or Indian tribe acting as a cooperating agency for development of an environmental document.

    Meeting participants should come prepared to discuss their issues and/or concerns. Please review the PAD in preparation for the scoping meetings. Directions on how to obtain a copy of the PAD and SD1 are included in item n. of this document.

    Meeting Procedures

    The meetings will be recorded by a stenographer and will be placed in the public records of the project.

    Dated: April 26, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-09248 Filed 5-1-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings

    Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:

    Filings Instituting Proceedings

    Docket Numbers: RP18-738-000.

    Applicants: WBI Energy Transmission, Inc.

    Description: § 4(d) Rate Filing: 2018 Housekeeping Filing to be effective 5/25/2018.

    Filed Date: 4/24/18.

    Accession Number: 20180424-5065.

    Comments Due: 5 p.m. ET 5/7/18.

    Docket Numbers: RP18-739-000.

    Applicants: Texas Eastern Transmission, LP.

    Description: § 4(d) Rate Filing: Negotiated Rate NRG Power Marketing 910616 to be effective 5/1/2018.

    Filed Date: 4/24/18.

    Accession Number: 20180424-5223.

    Comments Due: 5 p.m. ET 5/7/18.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: April 25, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-09245 Filed 5-1-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Notice of Revocation of Market-Based Rate Authority and Termination of Electric Market-Based Rate Tariff Docket No. Electric Quarterly Reports ER02-2001-020 Fibrominn LLC ER12-1161-002 BluCo Energy LLC ER12-1279-000 Alternate Power Source Inc., ER11-4550-000 Atlantic Coast Energy Corporation ER13-734-000

    On March 19, 2018, the Commission issued an order announcing its intent to revoke the market-based rate authority of the public utilities listed in the caption of that order, which included the companies listed in the caption above, which had failed to file their required Electric Quarterly Reports.1 The Commission directed those public utilities to file the required Electric Quarterly Reports within 15 days of the date of issuance of the order or face revocation of their authority to sell power at market-based rates and termination of their electric market-based rate tariffs.2

    1Electric Quarterly Reports, 162 FERC 61,249 (2018) (March 19 Order).

    2Id. at Ordering Paragraph A.

    The time period for compliance with the March 19 Order has elapsed. The above-captioned companies failed to file their delinquent Electric Quarterly Reports. The Commission hereby revokes, effective as of the date of issuance of this notice, the market-based rate authority and terminates the electric market-based rate tariff of each of the companies who are named in the caption of this order.

    Dated: April 25, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-09250 Filed 5-1-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 1256-036] Loup River Public Power District; Notice of Application Accepted for Filing, Soliciting Comments, Motions To Intervene, and Protests

    Take notice that the following hydroelectric application has been filed with the Commission and is available for public inspection:

    a. Type of Application: Revised Recreation Plan.

    b. Project No.: 1256-036.

    c. Date Filed: February 15, 2018.

    d. Applicant: Loup River Public Power District.

    e. Name of Project: Loup River Hydroelectric Project.

    f. Location: Loup and Platte Rivers in Nance and Platte Counties, Nebraska.

    g. Filed Pursuant to: Federal Power Act, 16 U.S.C. 791a-825r.

    h. Applicant Contact: Neal D. Suess, President/CEO, Loup River Public Power District, 2404 Fifteenth Street, P.O. Box 988, Columbus, NE 68602, (402) 564-3171, ext. 268.

    i. FERC Contact: Shana High, (202) 502-8674, [email protected]

    j. Deadline for filing comments, motions to intervene, and protests, is 30 days from the issuance date of this notice by the Commission. The Commission strongly encourages electronic filing. Please file comments, motions to intervene, and protests using the Commission's eFiling system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can submit brief comments up to 6,000 characters, without prior registration, using the eComment system at http://www.ferc.gov/doc-sfiling/ecomment.asp. You must include your name and contact information at the end of your comments. For assistance, please contact FERC Online Support at [email protected], (866) 208-3676 (toll free), or (202) 502-8659 (TTY). In lieu of electronic filing, please send a paper copy to: Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. The first page of any filing should include docket number P-1256-036.

    k. Description of Request: Article 413 of the project license required Loup River Public Power District (licensee) to make specific revisions to the Recreation Plan filed as part of its license application. These revisions include: provisions to continue operating and maintaining five parks and three trails, and remove playground equipment from Tailrace Park; drawings of the restroom at Headworks OHV Park, the volleyball court at Park Camp, the fishing pier at Lake North Park, and the trail segment along the southeast shore of Lake Babcock; procedures to ensure continued operation and maintenance of the Headworks OHV Park; a discussion about how the needs of the disabled will be considered; and an implementation schedule. The licensee's revised Recreation Plan generally incorporates these revisions. Regarding continued operation and maintenance of the Headworks Off-Highway Vehicle (OHV) Park, after the Nebraska OHV Association dissolved in September of 2016, the licensee closed the Headworks OHV Park, as OHV riding has unique challenges that are beyond the expertise of its staff. The revised Recreation Plan states that the licensee is committed to reopening the Headworks OHV area when it has the assistance of a third-party to provide the necessary expertise and liability insurance. The licensee states that it has been contacted by several organizations that are interested in filling this role.

    l. Locations of the Application: A copy of the application is available for inspection and reproduction at the Commission's Public Reference Room, located at 888 First Street NE, Room 2A, Washington, DC 20426, or by calling (202) 502-8371. This filing may also be viewed on the Commission's website at http://www.ferc.gov/docs-filing/elibrary.asp. Enter the docket number excluding the last three digits in the docket number field to access the document. You may also register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filings and issuances related to this or other pending projects. For assistance, call 1-866-208-3676 or email [email protected], for TTY, call (202) 502-8659. A copy is also available for inspection and reproduction at the address in item (h) above.

    m. Individuals desiring to be included on the Commission's mailing list should so indicate by writing to the Secretary of the Commission.

    n. Comments, Motions to Intervene, or Protests: Anyone may submit comments, a motion to intervene, or a protest in accordance with the requirements of Rules of Practice and Procedure, 18 CFR 385.210, .211, .214. In determining the appropriate action to take, the Commission will consider all protests or other comments filed, but only those who file a motion to intervene in accordance with the Commission's Rules may become a party to the proceeding. Any comments, motions to intervene, or protests must be received on or before the specified comment date for the particular application.

    o. Filing and Service of Responsive Documents: Any filing must (1) bear in all capital letters the title COMMENTS, MOTION TO INTERVENE, or PROTEST as applicable; (2) set forth in the heading the name of the applicant and the project number(s) of the application to which the filing responds; (3) furnish the name, address, and telephone number of the person intervening or protesting; and (4) otherwise comply with the requirements of 18 CFR 385.2001 through 385.2005. All comments, motions to intervene, or protests must set forth their evidentiary basis and otherwise comply with the requirements of 18 CFR 4.34(b). All comments, motions to intervene, or protests should relate to project works which are the subject of the application. Agencies may obtain copies of the application directly from the applicant. A copy of any motion to intervene or protest must be served upon each representative of the applicant specified in the particular application. If an intervener files comments or documents with the Commission relating to the merits of an issue that may affect the responsibilities of a particular resource agency, they must also serve a copy of the document on that resource agency. A copy of all other filings in reference to this application must be accompanied by proof of service on all persons listed in the service list prepared by the Commission in this proceeding, in accordance with 18 CFR 4.34(b) and 385.2010.

    Dated: April 25, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-09252 Filed 5-1-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Project No. 14616-000] Notice of Draft License Application (DLA) and Draft Preliminary Draft Environmental Assessment (PDEA) and Request for Preliminary Terms and Conditions: Oregon State University

    Take notice that the following Draft License Application (DLA) and Draft Preliminary Draft Environmental Assessment (PDEA) have been filed with the Commission and are available for public inspection.

    a. Type of Application: Major Unconstructed Project.

    b. Project No.: 14616-000.

    c. Date Filed: April 20, 2018.

    d. Applicant: Oregon State University.

    e. Name of Project: Pacific Marine Energy Center—South Energy Test Site.

    f. Location: On the Pacific Ocean, 6 nautical miles off the central Oregon coast near the city of Newport, and in Lincoln County, Oregon. The project occupies 1,695 acres of submerged lands on the Outer Continental Shelf administered by the U.S. Department of the Interior, Bureau of Ocean Energy Management.

    g. Filed Pursuant to: Federal Power Act 16 U.S.C. 791(a)-825(r).

    h. Applicant Contact: Dr. Burke Hales, College of Earth, Ocean and Atmospheric Sciences, Oregon State University, 104 CEOAS Administration Building, Corvallis, OR 97331-5503; 541-737-5452; email: [email protected]

    i. FERC Contact: Jim Hastreiter at (503) 552-2760; or email at [email protected]

    j. Status of Project: With this notice the Commission is soliciting (1) preliminary terms, conditions, and recommendations on the draft PDEA, and (2) comments on the DLA.

    k. Deadline for filing: July 20, 2018.

    All comments on the draft PDEA and DLA should be sent to the addresses noted above in Item (h), and filed with FERC.

    The Commission strongly encourages electronic filing. Please file comments using the Commission's eFiling system at http://www.ferc.gov/docs-filing/efiling.asp. Commenters can submit brief comments up to 6,000 characters, without prior registration, using the eComment system at http://www.ferc.gov/docs-filing/ecomment.asp. You must include your name and contact information at the end of your comments. For assistance, please contact FERC Online Support at [email protected], (866) 208-3676 (toll free), or (202) 502-8659 (TTY). In lieu of electronic filing, please send a paper copy to: Secretary, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426. The first page of any filing should include docket number P-14616-000.

    All comments must bear the heading Preliminary Comments, Preliminary Recommendations, Preliminary Terms and Conditions, or Preliminary Prescriptions.

    l. A copy of the application is available for review at the Commission in the Public Reference Room or may be viewed on the Commission's website at http://www.ferc.gov using the eLibrary link. Enter the docket number excluding the last three digits in the docket number field to access the document. For assistance, contact FERC Online Support.

    Register online at http://www.ferc.gov/docs-filing/esubscription.asp to be notified via email of new filings and issuances related to this or other pending projects. For assistance, contact FERC Online Support.

    Oregon State University has mailed a copy of the draft PDEA and DLA to interested entities and parties. Copies of these documents are available for review at Oregon State University, 370 Strand Agricultural Hall, Corvallis, OR 97331-5503.

    m. With this notice, we are initiating consultation with the OREGON STATE HISTORIC PRESERVATION OFFICER (SHPO), as required by section 106, National Historic Preservation Act, and the regulations of the Advisory Council on Historic Preservation, 36 CFR 800.4.

    Dated: April 25, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-09253 Filed 5-1-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. AD18-12-000, Docket No. EL17-45-000, Docket No. ER18-370-000] Transmission Planning Within the California Independent System Operator Corporation; California Public Utilities Commission, Northern California Power Agency, City and County of San Francisco, State Water Contractors, Transmission Agency of Northern California v. Pacific Gas and Electric Company; Southern California Edison Company; Second Supplemental Notice of Technical Conference

    As announced in the Notice of Technical Conference issued on March 23, 2018, and the Supplemental Notice of Technical Conference issued on April 10, 2018 (April 10 Supplemental Notice), the Federal Energy Regulatory Commission staff will hold a technical conference on May 1, 2018, at the Commission's headquarters at 888 First Street NE, Washington, DC 20426, between 9:00 a.m. and 4:00 p.m. (Eastern Time).

    The April 10 Supplemental Notice provided a list of questions that Commission staff intends to use to guide the discussion at the conference. These questions are narrowly focused on the processes used by participating transmission owners in the California Independent System Operator Corporation (CAISO) to determine which transmission-related maintenance and compliance activities/facilities, including, but not limited to, transmission-related capital additions, are subject to the CAISO Transmission Planning Process. We note that discussions at the conference may involve issues raised in proceedings that are currently pending before the Commission. These proceedings include, but are not limited to:

    California Public Utilities Commission, Transmission Agency of Northern California, Sacramento Municipal Utility District, M-S-R Public Power Agency, City of Santa Clara, California, State Water Contractors, Modesto Irrigation District, and Northern California Power Agency v. Pacific Gas and Electric Company, Docket No. EL17-95-000;

    Joint California Complainants v. Pacific Gas and Electric Company, Docket No. EL17-59-001;

    Pacific Gas and Electric Company, Docket Nos. ER16-2320-000, -002, -003;

    Pacific Gas and Electric Company, Docket No. ER17-2154-000, -001; and

    Southern California Edison Company, Docket Nos. ER18-169-000, -001 and EL18-44-000, -001.

    For Further Information, Please Contact Individuals Identified for Each Topic:

    Technical Information: Laura Switzer, Office of Energy Markets Regulation, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6231, [email protected]

    Legal Information for Docket Nos. AD18-12-000 and EL17-45-000: Linda Kizuka, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-8773, [email protected]

    Legal Information for Docket Nos. AD18-12-000 and ER18-370-000: Susanna Ehrlich, Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6260, [email protected]

    Logistical Information: Sarah McKinley, Office of External Affairs, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-8368, [email protected]

    Dated: April 25, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-09254 Filed 5-1-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings

    Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:

    Filings Instituting Proceedings

    Docket Numbers: RP18-740-000.

    Applicants: Iroquois Gas Transmission System, L.P.

    Description: § 4(d) Rate Filing: 042518 Negotiated Rates—Uniper Global Commodities R-7650-02 to be effective 5/1/2018.

    Filed Date: 4/25/18.

    Accession Number: 20180425-5094.

    Comments Due: 5 p.m. ET 5/7/18.

    Docket Numbers: RP18-741-000.

    Applicants: Saltville Gas Storage Company L.L.C.

    Description: § 4(d) Rate Filing: April 2018 Cleanup Filing—NRA and Contact Update to be effective 5/26/2018.

    Filed Date: 4/26/18.

    Accession Number: 20180426-5018.

    Comments Due: 5 p.m. ET 5/8/18.

    Docket Numbers: RP18-742-000.

    Applicants: Midcontinent Express Pipeline LLC.

    Description: § 4(d) Rate Filing: Fuel Tracker Filing 04/26/18 to be effective 6/1/2018.

    Filed Date: 4/26/18.

    Accession Number: 20180426-5019.

    Comments Due: 5 p.m. ET 5/8/18.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: April 26, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-09246 Filed 5-1-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER13-2483-002.

    Applicants: Old Dominion Electric Cooperative.

    Description: Report Filing: Refund Report of Old Dominion Electric Cooperative to be effective N/A.

    Filed Date: 4/24/18.

    Accession Number: 20180424-5169.

    Comments Due: 5 p.m. ET 5/15/18.

    Docket Numbers: ER17-2508-001.

    Applicants: RE Gaskell West 1 LLC.

    Description: Notice of Non-Material Change in Status of RE Gaskell West 1 LLC.

    Filed Date: 4/24/18.

    Accession Number: 20180424-5280.

    Comments Due: 5 p.m. ET 5/15/18.

    Docket Numbers: ER18-913-001.

    Applicants: Northern States Power Company, a Minnesota corporation, a Wisconsin corporation.

    Description: Tariff Amendment: Theoretical Reserve Amortization Supplement to be effective 1/1/2017.

    Filed Date: 4/25/18.

    Accession Number: 20180425-5119.

    Comments Due: 5 p.m. ET 5/16/18.

    Docket Numbers: ER18-1436-000.

    Applicants: C.P. Crane LLC.

    Description: Tariff Cancellation: Cancellation notice to be effective 6/1/2018.

    Filed Date: 4/24/18.

    Accession Number: 20180424-5267.

    Comments Due: 5 p.m. ET 5/15/18.

    Docket Numbers: ER18-1437-000.

    Applicants: C.P. Crane LLC.

    Description: Request for Waiver of C.P. Crane LLC.

    Filed Date: 4/24/18.

    Accession Number: 20180424-5278.

    Comments Due: 5 p.m. ET 5/15/18.

    Docket Numbers: ER18-1438-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: Tariff Cancellation: Notice of Cancellation of ISA, Service Agreement No. 3639, Queue No. W4-038 to be effective 6/1/2018.

    Filed Date: 4/25/18.

    Accession Number: 20180425-5155.

    Comments Due: 5 p.m. ET 5/16/18.

    Docket Numbers: ER18-1439-000.

    Applicants: Northern Indiana Public Service Company.

    Description: § 205(d) Rate Filing: NIPSCO/IMTCO CIAC Agreement (Marshall Upgrades) to be effective 4/24/2018.

    Filed Date: 4/25/18.

    Accession Number: 20180425-5178.

    Comments Due: 5 p.m. ET 5/16/18.

    Docket Numbers: ER18-1440-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: Tariff Cancellation: PJM SA No. 4740 among, PJM, O2 EMC and Virginia Electric and Power Company to be effective 6/1/2018.

    Filed Date: 4/25/18.

    Accession Number: 20180425-5191.

    Comments Due: 5 p.m. ET 5/16/18.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: April 25, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-09255 Filed 5-1-18; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. CP18-24-000] Steel Reef Pipelines US LLC; Notice of Schedule for Environmental Review of the Saskatchewan Pipeline Project

    On December 8, 2017, Steel Reef Pipelines US LLC (Steel Reef) filed an application in Docket No. CP18-24-000 requesting permission pursuant to Section 3 of the Natural Gas Act to construct, operate, and maintain certain natural gas pipeline border crossing facilities to export natural gas from the United States to Canada. The proposed project is known as the Saskatchewan Pipeline Project (Project) and is located at the Canadian border in Burke County, North Dakota. Additionally, Steel Reef requested a Presidential Permit for the Project's facilities.

    On November 20, 2017, the Federal Energy Regulatory Commission (Commission or FERC) issued its Notice of Application for the Project. Among other things, that notice alerted agencies issuing federal authorizations of the requirement to complete all necessary reviews and to reach a final decision on a request for a federal authorization within 90 days of the date of issuance of the Commission staff's Environmental Assessment (EA) for the Project. This instant notice identifies the FERC staff's planned schedule for the completion of the EA for the Project.

    Schedule for Environmental Review Issuance of EA—June 8, 2018 90-day Federal Authorization Decision Deadline—September 6, 2018

    If a schedule change becomes necessary, additional notice will be provided so that the relevant agencies are kept informed of the Project's progress.

    Project Description

    Steel Reef's proposed Project includes border crossing facilities consisting of a 250-foot-long, 10.75-inch-diameter pipeline, a meter station, and associated appurtenant aboveground facilities. The Project would transport up to 30 million standard cubic feet per day of sour natural gas gathered from existing oil wells owned and operated by Petro Harvester Oil & Gas, LLC in Burke County, North Dakota.

    Background

    On January 11, 2018, the Commission issued a Notice of Intent to Prepare an Environmental Assessment for the proposed Saskatchewan Pipeline Project and Request for Comments on Environmental Issues (NOI). The NOI was sent to affected landowners; federal, state, and local government agencies; elected officials; environmental and public interest groups; other interested parties; and local libraries and newspapers.1 In response to the NOI, the Commission received comments from the U.S. Department of Interior's Bureau of Indian Affairs regarding tribal consultation, and the North Dakota State Water Commission regarding waterbody/wetland crossing permits.

    1 Through an administrative error, the NOI was not mailed to interested Indian Tribes. On April 9, 2018, we subsequently sent the NOI to the Three Affiliated Tribes.

    Additional Information

    In order to receive notification of the issuance of the EA and to keep track of all formal issuances and submittals in specific dockets, the Commission offers a free service called eSubscription. This can reduce the amount of time you spend researching proceedings by automatically providing you with notification of these filings, document summaries, and direct links to the documents. Go to www.ferc.gov/docs-filing/esubscription.asp.

    Additional information about the Project is available from the Commission's Office of External Affairs at (866) 208-FERC or on the FERC website (www.ferc.gov). Using the eLibrary link, select General Search from the eLibrary menu, enter the selected date range and Docket Number excluding the last three digits (i.e., CP18-24), and follow the instructions. For assistance with access to eLibrary, the helpline can be reached at (866) 208-3676, TTY (202) 502-8659, or at [email protected] The eLibrary link on the FERC website also provides access to the texts of formal documents issued by the Commission, such as orders, notices, and rule makings.

    Dated: April 26, 2018. Kimberly D. Bose, Secretary.
    [FR Doc. 2018-09247 Filed 5-1-18; 8:45 am] BILLING CODE 6717-01-P
    ENVIRONMENTAL PROTECTION AGENCY [FRL-9977-36-OW] The National Drinking Water Advisory Council: Request for Nominations AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Request for nominations.

    SUMMARY:

    The Environmental Protection Agency (EPA) invites nominations of qualified candidates to be considered for a three-year appointment to the National Drinking Water Advisory Council (NDWAC or Council). The 15-member Council was established by the Safe Drinking Water Act (SDWA) to provide practical and independent advice, consultation, and recommendations to the EPA Administrator on the activities, functions, policies, and regulations required by the SDWA. This notice solicits nominations to fill four vacancies from August 2018 through December 2020 and five vacancies from December 2018 through December 2021. To maintain the representation required by statute, nominees will be selected to represent state and local agencies concerned with water hygiene and public water supply (two vacancies); private organizations or groups demonstrating an active interest in the field of water hygiene and public water supply (two vacancies)—of which one such member shall be associated with small, rural public water systems; and the general public (five vacancies).

    DATES:

    Nominations should be submitted on or before May 31, 2018.

    ADDRESSES:

    Submit nominations to Tracey M. Ward, Designated Federal Officer (DFO), The National Drinking Water Advisory Council, U.S. Environmental Protection Agency, Office of Ground Water and Drinking Water, Mail Code 4601-M, 1200 Pennsylvania Avenue NW, Washington, DC, 20460. You may also email nominations, with the subject line: “NDWAC Resume 2018,” to [email protected].

    FOR FURTHER INFORMATION CONTACT:

    Email your questions to Tracey Ward at [email protected], or call (202) 564-3796.

    SUPPLEMENTARY INFORMATION:

    National Drinking Water Advisory Council: The Council was created by Congress on December 16, 1974, as part of the Safe Drinking Water Act of 1974, Public Law 93-523, 42 U.S.C. 300j-5, and is operated in accordance with the provisions of the Federal Advisory Committee Act (FACA), 5 U.S.C. App. 2. The Council consists of 15 members, including the chairperson, all of whom are appointed by the EPA Administrator. Five members represent appropriate state and local agencies concerned with water hygiene and public water supply; five members represent private organizations or groups demonstrating an active interest in the field of water hygiene and public water supply—of which two such members shall be associated with small, rural public water systems; and five members represent the general public. The current list of members is available on the EPA's NDWAC website at https://www.epa.gov/ndwac, under “NDWAC Roster.”

    The Council will meet in person once each year and may hold a second meeting, either in person or by video/teleconference, during the year. These meetings generally occur in the spring and fall. Additionally, members may be asked to participate in ad hoc workgroups to develop policy recommendations, advice letters, and reports to address specific program issues.

    Member Nominations: Any interested person and/or organization may nominate qualified individuals for membership. The EPA values and welcomes diversity.

    In an effort to obtain nominations of diverse candidates, the Agency encourages nominations of women and men of all racial and ethnic groups.

    All nominations will be fully considered, but applicants need to be aware of the specific representation required by the SDWA for the upcoming vacancies: State and local agencies concerned with water hygiene and public water supply (two vacancies); private organizations or groups demonstrating an active interest in the field of water hygiene and public water supply (two vacancies)—of which one such member shall be associated with small, rural public water systems; and the general public (five vacancies). Other criteria used to evaluate nominees will include:

    • Demonstrated experience with drinking water issues at the national, state, or local level;

    • Excellent interpersonal, oral, and written communication and consensus-building skills;

    • Willingness to commit time to the Council and demonstrated ability to work constructively on committees;

    • Absence of financial conflicts of interest;

    • Absence of appearance of a lack of impartiality; and

    • Background and experience that would help members contribute to the diversity of perspectives on the Council, e.g., geographic, economic, social, cultural, educational backgrounds, professional affiliations, and other considerations.

    Nominations must include a resume, which provides the nominee's background, experience, and educational qualifications, as well as a brief statement (one page or less) describing the nominee's interest in serving on the Council and addressing the other criteria previously described. Nominees are encouraged to provide any additional information that they think would be useful for consideration, such as: Availability to participate as a member of the Council; how the nominee's background, skills, and experience would contribute to the diversity of the Council; and any concerns the nominee has regarding membership. Nominees should be identified by name, occupation, position, current business address, email, and telephone number. Interested candidates may self-nominate. The DFO will acknowledge receipt of nominations.

    Persons selected for membership will receive compensation for travel and a nominal, daily compensation (if appropriate) while attending meetings. Additionally, all selected candidates will be designated as Special Government Employees (SGEs) and will be required to submit the “Confidential Financial Disclosure Form for Environmental Protection Agency Special Government Employees” (EPA Form 3110-48). This confidential form provides information to the EPA's ethics officials, to determine whether there is a conflict between the SGE' s public duties and their private interests, including an appearance of a loss of impartiality as defined by federal laws and regulations. The form may be viewed and downloaded through the “Ethics Requirements” link on the EPA's NDWAC website at https://www.epa.gov/ndwac.

    Other sources, in addition to this Federal Register notice, may also be utilized in the solicitation of nominees. To help the EPA in evaluating the effectiveness of its outreach efforts, please tell us how you learned of this opportunity.

    Dated: April 24, 2018. Jennifer McLain, Acting Director, Office of Ground Water and Drinking Water.
    [FR Doc. 2018-09204 Filed 5-1-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [FRL-9977-57—Region 10] Re-issuance of a General NPDES Permit (GP) for Small Suction Dredges in Idaho AGENCY:

    Environmental Protection Agency, Region 10.

    ACTION:

    Final reissuance of a general permit.

    SUMMARY:

    The EPA is reissuing a National Pollutant Discharge Elimination System (NPDES) General Permit (IDG370000) for small suction dredge operations in Idaho (intake nozzle size of 5 inches in diameter or a diametric equivalent or less and with equipment rated at 15 horsepower or less). EPA provided a public comment period from December 13, 2017, through January 29, 2018. EPA received many comments suggesting that the requirements of the GP are not stringent enough to meet the State of Idaho's WQS while other comments challenged EPA's authority to issue a permit for this activity. Additional comments questioned the meaning of some permit requirements. A Response to Comments document was prepared to address the comments received and explains any changes made to the draft to produce the final permit.

    DATES:

    The final CWA § 401 Certification from the Idaho Department of Environmental Quality is dated April 11, 2018.

    The GP will be effective May 2, 2018.

    ADDRESSES:

    Copies of the general permit, Fact Sheet and Response to Comments are available upon request. Written requests may be submitted to EPA, Region 10, 1200 Sixth Avenue, Suite 155, OWW-191, Seattle, WA 98101.

    FOR FURTHER INFORMATION CONTACT:

    The above documents may be found on the EPA Region 10 website at https://www.epa.gov/npdes-permits/npdes-general-permit-small-suction-dredge-placer-miners-idaho. Requests may also be made to Cindi Godsey at (206) 553-1676. Requests may also be electronically mailed to: godsey.c[email protected]

    SUPPLEMENTARY INFORMATION:

    Executive Order 12866: This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget for review.

    Dated: April 25, 2018. Daniel D. Opalski, Director, Office of Water & Watersheds, Region 10.
    [FR Doc. 2018-09317 Filed 5-1-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OW-2015-0665; FRL-9977-38-OW] RIN 2040-ZA25 Final 2016 Effluent Guidelines Program Plan AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of availability.

    SUMMARY:

    This notice announces the availability of the Environmental Protection Agency's (EPA) Final 2016 Effluent Guidelines Program Plan (Final 2016 Plan). Section 304(m) of the Clean Water Act (CWA) requires the EPA to biennially publish a plan for new and revised effluent limitations guidelines, after public review and comment. The Final 2016 Plan identifies any new or existing industrial categories selected for effluent guidelines or pretreatment standards and provides a schedule for their development. The information and analyses from the EPA's 2015 and 2016 Annual Reviews, in addition to input from public comments on the Preliminary 2016 Plan, were used in developing the Final 2016 Plan.

    FOR FURTHER INFORMATION CONTACT:

    Phillip Flanders, Engineering and Analysis Division, Office of Water, 4303T, U.S. EPA, 1200 Pennsylvania Avenue NW, Washington, DC 20460; telephone number: (202) 566-8323; fax number: (202) 566-1053; email address: [email protected]

    SUPPLEMENTARY INFORMATION: I. General Information

    A. Supporting Documents—A key document that provides additional information for this notice is the Final 2016 Effluent Guidelines Program Plan.

    B. How Can I Get Copies of This Document and Other Related Information?

    1. Docket. The EPA has established official public dockets for these actions under Docket ID No. EPA-HQ-OW-2015-0665. The official public docket is the collection of materials that are available for public viewing at the Water Docket in the EPA Docket Center, (EPA/DC) EPA West, Room 3334, 1301 Constitution Ave. NW, Washington, DC 20460.

    2. Electronic access. You can access this Federal Register document electronically through the United States government online source for Federal regulations at http://www.regulations.gov.

    3. Internet access. Copies of the supporting documents are available at http://www.epa.gov/eg/effluent-guidelines-plan.

    II. How is this document organized?

    The outline of this notice follows.

    A. Legal Authority.

    B. Summary of the Final 2016 Effluent Guidelines Program Plan.

    A. Legal Authority

    This notice is published under the authority of the CWA, 33 U.S.C. 1251, et seq., and in particular sections 301(d), 304(b), 304(g), 304(m), 306, 307(b), and 308 of the Act, 33 U.S.C. 1311(d), 1314(b), 1314(g), 1314(m), 1316, 1317(b), and 1318.

    B. Summary of the Final 2016 Effluent Guidelines Program Plan

    The EPA prepared the Final 2016 Plan pursuant to CWA section 304(m). The Final 2016 Plan provides a summary of the EPA's review of effluent guidelines and pretreatment standards, consistent with CWA sections 301(d), 304(b), 304(g), 304(m), and 307(b). From these reviews and considering public comment, the Final 2016 Plan identifies any new or existing industrial categories selected for effluent guidelines or pretreatment standards rulemakings, and provides a schedule for such rulemakings. In addition, the Final 2016 Plan presents any new or existing categories of industry selected for further review and analysis.

    The Final 2016 Plan identifies one new rulemaking (and the associated schedule) for the Steam Electric Power Generating Point Source Category. The EPA has concluded that no additional industries warrant new or revised effluent guidelines at this time. The Final 2016 Plan also announces that the EPA is initiating a new study to look holistically at the management of oil and gas extraction wastewater from onshore facilities. The focus of this study is not to look specifically at any one existing effluent guideline. Rather, the EPA intends to engage with stakeholders to evaluate approaches to manage both conventional and unconventional oil and gas extraction wastewater from onshore facilities including, but not limited to, an assessment of technologies for facilities that treat and discharge oil and gas extraction wastewater. Lastly, the Final 2016 Plan announces that the EPA is initiating a new study of the Electrical and Electronic Components Point Source Category. The focus of this study will be on changes within the industry since the 1983 rulemaking, particularly as these changes pertain to wastewater characteristics and wastewater treatment technologies.

    The Final 2016 Plan and the 2015 and 2016 Annual Effluent Guidelines Review Reports can be found at http://www.epa.gov/eg/effluent-guidelines-plan.

    Dated: April 24, 2018. David P. Ross, Assistant Administrator, Office of Water.
    [FR Doc. 2018-09320 Filed 5-1-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-R09-SFUND-2018-07; FRL-9977-39—Region 9] Ecology Control Industries, Inc. Removal Site, Torrance, CA; Notice of Proposed Settlement Agreement and Order on Consent AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of proposed settlement.

    SUMMARY:

    This notice announces the availability for review and comment of a proposed administrative settlement agreement under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (“CERCLA”), between the U.S. Environmental Protection Agency (“EPA”), and Bridge Point South Bay II, LLC (“Bridge Point LLC”), regarding the Ecology Control Industries, Inc. Removal Site (“ECI Site”) in Torrance, California. The Settlement Agreement requires the purchaser to conduct a removal action to address soil contamination at the ECI Site.

    DATES:

    Comments must be received on or before June 1, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R09-SFUND-2018-07, to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or withdrawn. 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:

    Xiao Zhang, Assistant Regional Counsel, Office of Regional Counsel (ORC-3), Environmental Protection Agency, Region 9, 75 Hawthorne Street, San Francisco, CA 94105; tel: (415) 972-3266; fax: (415) 947-3570; [email protected]

    SUPPLEMENTARY INFORMATION:

    Bridge Point LLC is agreeing to perform a removal action to address soils contaminated with the pesticide dichlorodiphenyl-trichloroethane (DDT). The removal action will reduce the risk to future users of the property and the surrounding community from exposure to contamination primarily caused by historical DDT manufacturing operations at a nearby plant. Under the terms of the settlement, Bridge Point LLC will complete the removal action and pay EPA's costs for oversight of the cleanup activities. In exchange, Bridge Point LLC will receive a covenant not to sue from the United States. EPA will consider all comments submitted by the date set forth above and may modify or withdraw its consent to the settlement if comments received disclose facts or considerations that indicate the proposed settlement is inappropriate, improper, or inadequate.

    Dated: April 10, 2018. Enrique Manzanilla, Director, Superfund Division, U.S. Environmental Protection Agency, Region 9.
    [FR Doc. 2018-09322 Filed 5-1-18; 8:45 am] BILLING CODE 6560-50-P
    EXPORT-IMPORT BANK [Public Notice: 2018-3009] Agency Information Collection Activities: Proposed Collection; Comment Request; Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery AGENCY:

    Export-Import Bank of the United States.

    ACTION:

    Notice of submission of information collection approval from the Office of Management and Budget and request for comments.

    SUMMARY:

    As part of a Federal Government-wide effort to streamline the process to seek feedback from the public on service delivery, Export-Import Bank of the United States has submitted a Generic Information Collection Request (Generic ICR): “Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery” to OMB for approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et. seq.).

    DATES:

    Comments must be received on or before June 1, 2018 to be assured of consideration.

    ADDRESSES:

    Comments may be submitted electronically on WWW.REGULATIONS.GOV (EIB 11-01) or by mail to Office of Information and Regulatory Affairs, 725 17th Street NW, Washington, DC 20038 Attn: OMB 3048-0036.

    FOR FURTHER INFORMATION CONTACT:

    To request additional information, please contact Mia Johnson, [email protected], or by mail to Mia L. Johnson, Export-Import Bank of the United States, 811 Vermont Ave. NW, Washington, DC 20571.

    SUPPLEMENTARY INFORMATION:

    Title and Form Number: EIB 11-01, Generic Clearance for the Collection of Qualitative Feedback on Agency Service Delivery.

    Abstract: The proposed information collection activity provides a means to garner qualitative customer and stakeholder feedback in an efficient, timely manner, in accordance with the Administration's commitment to improving service delivery. By qualitative feedback we mean information that provides useful insights on perceptions and opinions, but are not statistical surveys that yield quantitative results that can be generalized to the population of study. This feedback will provide insights into customer or stakeholder perceptions, experiences and expectations, provide an early warning of issues with service, or focus attention on areas where communication, training or changes in operations might improve delivery of products or services. These collections will allow for ongoing, collaborative and actionable communications between the Agency and its customers and stakeholders. It will also allow feedback to contribute directly to the improvement of program management.

    The solicitation of feedback will target areas such as: Timeliness, appropriateness, accuracy of information, courtesy, efficiency of service delivery, and resolution of issues with service delivery. Responses will be assessed to plan and inform efforts to improve or maintain the quality of service offered to the public. If this information is not collected, vital feedback from customers and stakeholders on the Agency's services will be unavailable. The Agency will only submit a collection for approval under this generic clearance if it meets the following conditions:

    • The collections are voluntary;

    • The collections are low-burden for respondents (based on considerations of total burden hours, total number of respondents, or burden-hours per respondent) and are low-cost for both the respondents and the Federal Government;

    • The collections are non-controversial and do not raise issues of concern to other Federal agencies;

    • Any collection is targeted to the solicitation of opinions from respondents who have experience with the program or may have experience with the program in the near future;

    • Personally identifiable information (PII) is collected only to the extent necessary and is not retained;

    • Information gathered will be used only internally for general service improvement and program management purposes and is not intended for release outside of the agency;

    • Information gathered will not be used for the purpose of substantially informing influential policy decisions; and

    • Information gathered will yield qualitative information; the collections will not be designed or expected to yield statistically reliable results or used as though the results are generalizable to the population of study.

    Feedback collected under this generic clearance provides useful information, but it does not yield data that can be generalized to the overall population. This type of generic clearance for qualitative information will not be used for quantitative information collections that are designed to yield reliably actionable results, such as monitoring trends over time or documenting program performance. Such data uses require more rigorous designs that address: The target population to which generalizations will be made, the sampling frame, the sample design (including stratification and clustering), the precision requirements or power calculations that justify the proposed sample size, the expected response rate, methods for assessing potential non-response bias, the protocols for data collection, and any testing procedures that were or will be undertaken prior to fielding the study. Depending on the degree of influence the results are likely to have, such collections may still be eligible for submission for other generic mechanisms that are designed to yield quantitative results.

    As a general matter, information collections will not result in any new system of records containing privacy information and will not ask questions of a sensitive nature, such as sexual behavior and attitudes, religious beliefs, and other matters that are commonly considered private.

    The Agency received no comments in response to the 60-day notice published in the Federal Register of January 23, 2018 (Vol. 83, No. 15).

    Current Actions: Renewal of approval for a collection of information.

    Type of Review: Regular

    Survey Type: Web based/email based survey; Feedback/Comment Evaluation Form; Detailed Mail Evaluation Form; Telephone; Focus Group.

    Affected Public: Individuals and Households, Businesses and Organizations, State, Local or Tribal Government.

    Estimated Number of Respondents in the Three Year Interval: 14,010.

    Below we provide projected average estimates for the next three years:

    Average Expected Annual Number of Activities: 10.

    Average Number of Respondents per Activity: 467.

    Annual Responses: 4,670.

    Frequency of Response: Once per request.

    Average Minutes per Response: 8.

    Annual Burden Hours: 623.

    An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid Office of Management and Budget control number.

    Bassam Doughman, IT Specialist.
    [FR Doc. 2018-09304 Filed 5-1-18; 8:45 am] BILLING CODE 6690-01-P
    FARM CREDIT ADMINISTRATION Sunshine Act Meeting Farm Credit Administration Board AGENCY:

    Farm Credit Administration.

    ACTION:

    Notice, regular meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the Government in the Sunshine Act, of the regular meeting of the Farm Credit Administration Board (Board).

    DATES:

    The regular meeting of the Board will be held at the offices of the Farm Credit Administration in McLean, Virginia, on May 10, 2018, from 9:00 a.m. until such time as the Board concludes its business.

    ADDRESSES:

    Farm Credit Administration, 1501 Farm Credit Drive, McLean, Virginia 22102-5090. Submit attendance requests via email to [email protected] See SUPPLEMENTARY INFORMATION for further information about attendance requests.

    FOR FURTHER INFORMATION CONTACT:

    Dale L. Aultman, Secretary to the Farm Credit Administration Board, (703) 883-4009, TTY (703) 883-4056, [email protected]

    SUPPLEMENTARY INFORMATION:

    Parts of this meeting of the Board will be open to the public (limited space available) and parts will be closed to the public. Please send an email to [email protected] at least 24 hours before the meeting. In your email include: Name, postal address, entity you are representing (if applicable), and telephone number. You will receive an email confirmation from us. Please be prepared to show a photo identification when you arrive. If you need assistance for accessibility reasons, or if you have any questions, contact Dale L. Aultman, Secretary to the Farm Credit Administration Board, at (703) 883-4009. The matters to be considered at the meeting are:

    Open Session A. Approval of Minutes • April 12, 2018 B. New Business • Standards of Conduct—Proposed Rule • Investment Eligibility—Final Rule Closed Session* • Office of Secondary Market Oversight Periodic Report Dated: April 30, 2018. Dale L. Aultman, Secretary, Farm Credit Administration Board. * Session Closed-Exempt pursuant to 5 U.S.C. 552b(c)(8) and (9).
    [FR Doc. 2018-09370 Filed 4-30-18; 11:15 am] BILLING CODE 6705-01-P
    FEDERAL COMMUNICATIONS COMMISSION [DA 18-389] Incentive Auction Task Force and Media Bureau Extend Post Incentive Auction Special Displacement Window Through June 1, 2018 AGENCY:

    Federal Communications Commission.

    ACTION:

    Notice.

    SUMMARY:

    The Federal Communications Commission's Incentive Auction Task Force and Media Bureau announce that the displacement application filing window for low power television, TV translator, and analog-to-digital replacement translator stations that were displaced by the incentive auction and repacking process (Special Displacement Window).

    DATES:

    The Special Displacement Window opened April 10, 2018 and will close on June 1, 2018 at 11:59 p.m. EDT.

    FOR FURTHER INFORMATION CONTACT:

    Shaun Maher, Video Division, Media Bureau, Federal Communications Commission, [email protected], (202) 418-2324.

    SUPPLEMENTARY INFORMATION:

    The Incentive Auction Task Force and the Media Bureau hereby announce that the displacement application filing window for low power television, TV translator, and analog-to-digital replacement translator stations that were displaced by the incentive auction and repacking process (Special Displacement Window), currently scheduled to close May 15, 2018, is hereby extended to June 1, 2018 at 11:59 p.m. EDT. This brief extension of the Special Displacement Window will allow applicants further time to analyze data and other information and to prepare or make changes to their applications accordingly.

    For additional information or questions, please contact Hossein Hashemzadeh (technical), [email protected], (202) 418-1658 or Shaun Maher (legal), [email protected], (202) 418-2324 of the Video Division, Media Bureau. Press contact: Charles Meisch, [email protected], (202) 418-2943.

    Barbara Kreisman, Chief, Video Division, Media Bureau.
    [FR Doc. 2018-09331 Filed 5-1-18; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL DEPOSIT INSURANCE CORPORATION [OMB No. 3064-0124] Agency Information Collection Activities: Proposed Collection Renewal; Comment Request AGENCY:

    Federal Deposit Insurance Corporation (FDIC).

    ACTION:

    Notice and request for comment.

    SUMMARY:

    The FDIC, 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 the renewal of an existing information collection, as required by the Paperwork Reduction Act of 1995 (PRA). Currently, the FDIC is soliciting comment on renewal of the information collection described below.

    DATES:

    Comments must be submitted on or before July 2, 2018.

    ADDRESSES:

    Interested parties are invited to submit written comments to the FDIC by any of the following methods:

    https://www.FDIC.gov/regulations/laws/federal.

    Email: [email protected] Include the name and number of the collection in the subject line of the message.

    Mail: Manny Cabeza (202-898-3767), Counsel, MB-3007, Federal Deposit Insurance Corporation, 550 17th Street NW, Washington, DC 20429.

    Hand Delivery: Comments may be hand-delivered to the guard station at the rear of the 17th Street Building (located on F Street), on business days between 7:00 a.m. and 5:00 p.m.

    All comments should refer to OMB control number 3064-0124. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.

    FOR FURTHER INFORMATION CONTACT:

    Manny Cabeza, Counsel, 202-898-3767, [email protected], MB-3007, Federal Deposit Insurance Corporation, 550 17th Street NW, Washington, DC 20429.

    SUPPLEMENTARY INFORMATION:

    Proposal to renew the following currently approved collection of information:

    Title: Notification of Change of Insured Status.

    OMB Number: 3064-0124.

    Form Number: None.

    Affected Public: Insured depository institutions.

    Burden Estimate:

    Summary of Annual Burden Type of burden Obligation
  • to respond
  • Estimated number
  • of respondents
  • Estimated time
  • per response
  • (hours)
  • Frequency
  • of response
  • Average total
  • annual
  • estimated
  • burden
  • (hours)
  • Certification Reporting Mandatory 150 .25 On Occasion 37.5 Notification Disclosure Mandatory 2 1 On Occasion 3 Total Estimated Annual Burden 39.5

    General Description of Collection: This information collection consists of two parts: (1) A certification that insured depository institutions provide the FDIC when all deposit liabilities from one insured depository institution are assumed from another insured depository institution, with the latter institution responsible for providing the certification; and (2) a notification that an insured depository institution provides to its depositors when it seeks to voluntarily terminate its insured status. The certification is necessary to implement the provisions of section 8(q) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(q), regarding termination of the insured status of the transferring institution and termination of the separate deposit insurance coverage provided on deposit accounts assumed by the assuming institution. The depositor notification is required by section 8(a)(6) of the Federal Deposit Insurance Act, 12 U.S.C. 1818(a)(6). This provision ensures that the institution's depositors receive appropriate information regarding the institution's intent to terminate its insured status and that, prior to the termination of the institution's insured status, depositors receive appropriate information concerning federal deposit insurance coverage of their accounts once the institution's insured status is terminated.

    There is no change in the methodology or substance of this information collection. The number of certifications submitted under this information collection is closely related to the number of insured depository institutions that are acquired by another depository institution through mergers or as a result of the closing of the institution by its chartering authority. The number of depositor notifications is driven by the number of institutions that elect to voluntarily terminate its insured status without having its deposits assumed by another insured depository institution. The change in burden is due to economic fluctuation reflected in a lower number of certifications following mergers or closures and a reduction in the number of notifications due to voluntary terminations of insured status.

    Request for Comment: Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.

    Dated at Washington, DC, on April 27, 2018. Federal Deposit Insurance Corporation. Robert E. Feldman, Executive Secretary.
    [FR Doc. 2018-09325 Filed 5-1-18; 8:45 am] BILLING CODE 6714-01-P
    FEDERAL DEPOSIT INSURANCE CORPORATION [OMB No. 3064-0195] Agency Information Collection Activities: Proposed Collection Renewal; Comment Request AGENCY:

    Federal Deposit Insurance Corporation (FDIC).

    ACTION:

    Notice and request for comment.

    SUMMARY:

    The FDIC, 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 the renewal of an existing information collection, as required by the Paperwork Reduction Act of 1995 (PRA). Currently, the FDIC is soliciting comment on renewal of the information collection described below.

    DATES:

    Comments must be submitted on or before July 2, 2018.

    ADDRESSES:

    Interested parties are invited to submit written comments to the FDIC by any of the following methods:

    https://www.FDIC.gov/regulations/laws/federal.

    Email: [email protected] Include the name and number of the collection in the subject line of the message.

    Mail: Manny Cabeza (202-898-3767), Counsel, MB-3007, Federal Deposit Insurance Corporation, 550 17th Street NW, Washington, DC 20429.

    Hand Delivery: Comments may be hand-delivered to the guard station at the rear of the 17th Street Building (located on F Street), on business days between 7:00 a.m. and 5:00 p.m.

    All comments should refer to OMB control number 3064-0195. A copy of the comments may also be submitted to the OMB desk officer for the FDIC: Office of Information and Regulatory Affairs, Office of Management and Budget, New Executive Office Building, Washington, DC 20503.
    FOR FURTHER INFORMATION CONTACT:

    Manny Cabeza, Counsel, 202-898-3767, [email protected], MB-3007, Federal Deposit Insurance Corporation, 550 17th Street NW, Washington, DC 20429.

    SUPPLEMENTARY INFORMATION:

    Proposal to renew the following currently approved collection of information:

    Title: Minimum requirements for appraisal management companies.

    OMB Number: 3064-0195.

    Form Number: None.

    Affected Public: Participating States and Appraisal Management Companies that are subsidiaries owned and controlled by insured depository institutions.

    Burden Estimate:

    Summary of Annual Burden Type of burden Estimated number of
  • respondents
  • Estimated number of
  • responses
  • Estimated time
  • per response
  • (hours)
  • Frequency of response Total annual
  • estimated
  • burden hours
  • FDIC, FRB and OCC share FHFA share
    IC #1—AMC Written Notice of Appraiser Removal from Network or Panel (323.10) Record Keeping 9,881 1 0,08 On Occasion 790 237 79 IC #2—State Recordkeeping Requirements (323.11(a) & (b) Record Keeping 5 1 40 On Occasion 200 50 50 IC #3—AMC Reporting Requirements (State and Federal AMCs) (323.12 & 13(c)) Reporting 200 2 1 On Occasion 400 120 40 IC #4—State Reporting Requirements to the Appraisal Sub Committee (323.14) Reporting 55 1 1 On Occasion 55 14 14 Total Estimated Annual Burden 1,445 421 hours 183 hours.

    General Description of Collection: The FDIC, the Office of the Comptroller of the Currency (OCC), The Board of Governors of the Federal Reserve System (FRB) and the Federal Home Finance Agency (FHFA) (collectively, the Agencies) issued regulations to implement the requirements of section 1473 of the Dodd-Frank Wall Street Reform and Consumer Protection Act to be applied by States in the registration and supervision of appraisal management companies (AMCs). The regulations also implement the requirement in section 1473 of the Dodd-Frank Act for States to report to the Appraisal Subcommittee (ASC) of the Federal Financial Institutions Examination Council (FFIEC) the information required by the Appraisal Subcommittee (ASC) to administer the new national registry of appraisal management companies (AMC National Registry or Registry). The FDIC's regulation is found at 12 CFR part 323 (the Regulation) and contains the following PRA recordkeeping and reporting requirements:

    AMC Recordkeeping Requirements (IC #1). Section 323.10 of the Regulation provides that an appraiser in an AMC's network or panel is deemed to remain on the network or panel until: (i) The AMC sends a written notice to the appraiser removing the appraiser with an explanation; or (ii) receives a written notice from the appraiser asking to be removed or a notice of the death or incapacity of the appraiser. The AMC would retain these notices in its files.

    State Recordkeeping Requirements (IC #2). States seeking to register AMCs must have an AMC registration and supervision program. Section 323.11(a) of the Regulation requires each participating State to establish and maintain within its appraiser certifying and licensing agency a registration and supervision program with the legal authority and mechanisms to: (i) Review and approve or deny an application for initial registration; (ii) periodically review and renew, or deny renewal of, an AMC's registration; (iii) examine an AMC's books and records and require the submission of reports, information, and documents; (iv) verify an AMC's panel members' certifications or licenses; (v) investigate and assess potential violations of laws, regulations, or orders; (vi) discipline, suspend, terminate, or deny registration renewals of, AMCs that violate laws, regulations, or orders; and (vii) report violations of appraisal-related laws, regulations, or orders, and disciplinary and enforcement actions to the ASC.

    Section 323.11(b) requires each participating State to impose requirements on AMCs not regulated by a Federal financial institutions regulatory agency nor owned and controlled by an insured depository institution to: (i) Register with and be subject to supervision by a State appraiser certifying and licensing agency in each State in which the AMC operates; (ii) use only State-certified or State-licensed appraisers for Federally-regulated transactions in conformity with any Federally-regulated transaction regulations; (iii) establish and comply with processes and controls reasonably designed to ensure that the AMC, in engaging an appraiser, selects an appraiser who is independent of the transaction and who has the requisite education, expertise, and experience necessary to competently complete the appraisal assignment for the particular market and property type; (iv) direct the appraiser to perform the assignment in accordance with the Uniform Standards of Professional Appraisal Practice; and (v) establish and comply with processes and controls reasonably designed to ensure that the AMC conducts its appraisal management services in accordance with section 129E(a)-(i) of the Truth-in-Lending Act.

    AMC Reporting Requirements (IC #3). Section 323.13(c) requires that a Federally-regulated AMC report to the State or States in which it operates the information required to be submitted by the State pursuant to the ASC's policies, including: (i) Information regarding the determination of the AMC National Registry fee; and (ii) the information listed in section 323.12 of the Regulation. Section 323.12 provides that an AMC may not be registered by a State or included on the AMC National Registry if such company is owned, directly or indirectly, by any person who has had an appraiser license or certificate refused, denied, cancelled, surrendered in lieu of revocation, or revoked in any State. Each person that owns more than 10 percent of an AMC is required to submit to a background investigation carried out by the State appraiser certifying and licensing agency. While section 323.12 does not authorize States to conduct background investigations of Federally-regulated AMCs, it would allow a State to do so if the Federally-regulated AMC chooses to register voluntarily with the State.

    State Reporting Requirements (IC #4). Section 323.14 requires that each State electing to register AMCs for purposes of permitting AMCs to provide appraisal management services relating to covered transactions in the State must submit to the ASC the information concerning such AMCs required to be submitted under the Regulation and any additional information required by the ASC.

    Burden Estimate Methodology and Assumptions:

    There is no change in the methodology or substance of this information collection. For the information collections described above, the general methodology is to compute the industry wide burden hours for States and appraisal management companies (AMCs) and then assign a share of the burden hours to each of the regulatory agencies for each information collection. The Agencies are revising their burden estimates based on the following assumptions:

    IC #1: AMC Written Notice of Appraiser Removal from Network or Panel. The burden for written notices of appraiser removal from a network or panel is estimated to be equal to the number of appraisers who leave the profession per year multiplied by the estimated percentage of appraisers who work for AMCs, then multiplied by burden hours per notice. The number of appraisers who leave is calculated by adding the number of appraisers who are laid off or resign to the number of appraisers that have had their licenses revoked or surrendered. The total burden hours are then split between the Federal Reserve Board (FRB), the Office of the Comptroller of the Currency (OCC), the Federal Deposit Insurance Corporation (FDIC), and the Federal Housing Finance Agency (FHFA) in a ratio of 3:3:3:1 in accordance with the burden sharing agreement among the Agencies. Finally, the burden hours are calculated by multiplying the estimated number of written notices of appraiser removal (9,881) by the estimated burden per notice (0.08 hours) for a total of 790 burden hours.1 As previously mentioned, the total burden hours are then split between the FDIC, FRB, OCC, and the FHFA such that the FHFA is responsible for 79 hours and the other three agencies are responsible for 237 hours each.

    1 The “per notice” burden estimate of 0.08 hours is unchanged from the estimate provided for the currently-approved ICR. The subject matter experts at the FDIC do not believe this estimate needs to be updated for this renewal.

    IC #2: Develop and Maintain a State Licensing Program. The burden on the States for developing and maintaining an AMC licensing program is calculated by multiplying the number of states without a registration and licensing program by the hour burden to develop the system. The total burden hours are then equally divided among the FDIC, FRB, OCC, and FHFA. According to the Appraisal Institute as of July 26, 2017, there are 5 states that have not developed a system to register and oversee AMCs.2 The 2015 ICR estimate of the hour burden per state without a registration system was 40 hours. The FDIC does not believe this estimate needs to be updated for this renewal. Therefore, the total hour burden is 200 hours: 5 States × 40 hours/state = 200 hours. Finally, the total hour burden is divided among the four agencies such that each agency is responsible for 50 burden hours.3

    2 Appraisal Institute “Enacted State AMC Laws”. https://www.appraisalinstitute.org/advocacy/enacted-state-amc-laws1/.

    3 The assumption to divide the burden hours between the agencies is based on a burden-sharing agreement among the FDIC, FRB, OCC, and FHFA. The burden hours are shared in the same ratio as the 2015 ICR.

    IC #3: AMC Reporting Requirements (State and Federal AMCs). The burden for AMC reporting requirements is calculated by multiplying the number of AMCs by the frequency of response then by the burden per response. The burden hours are then divided between the FDIC, FRB, OCC, and FHFA at a ratio of 3:3:3:1.4 FDIC estimates there are approximately 400 entities that provide appraisal management services as defined by section 323.9(d). Of these 400 entities, FDIC estimates approximately 200 entities meet the definition of an AMC as defined by section 323.9(c).5

    4 Id.

    5 The FDIC anticipates more definitive information will become available when AMC registration requirements become effective on August 10, 2018.

    The frequency of response is estimated as the number of states that do not have an AMC registration program in which the average AMC operates.6 According to the Appraisal Institute, Five (5) states do not have AMC registration or oversight programs.7 According to the Consumer Financial Protection Bureau (CFPB), the average AMC operates in 19.56 states.8 Therefore, the average AMC operates in approximately 2 states that do not have AMC registration systems: (5 States/55 states) × 19.56 states = 1.778 states ~ 2 states. Therefore the total hour burden for IC #3 is 400 hours: 200 AMCs × 2 states (frequency) × 1 hour = 400 hours. The burden hours are then divided such that the FDIC, FRB, and OCC are each responsible for 120 burden hours and the FHFA is responsible for 40 burden hours.9

    6 The number of states includes all U.S. states, territories, and districts to include: The Commonwealth of the Northern Mariana Islands, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands.

    7 Appraisal Institute “Enacted State AMC Laws”. https://www.appraisalinstitute.org/advocacy/enacted-state-amc-laws1/. Date accessed: February 27, 2018.

    8 The CFPB conducted a survey of 9 AMCs in 2013 regarding the provisions in the rule and the related PRA burden.

    9 See footnote 9.

    IC #4: State Reporting Requirements to the Appraisal Subcommittee. The burden hours for State reporting to the ASC are estimated by multiplying the number of states by the hour burden per state.10 Then the burden hours are divided equally among the FDIC, FRB, OCC, and the FHFA. The total burden hour for state reporting is 50 hours: 55 states x 1 hour/state = 55 hours. This is then equally divided across the 4 agencies for 14 burden hours each, with rounding.11

    10 The number of states includes all U.S. states, territories, and districts to include: The Commonwealth of the Northern Mariana Islands, the District of Columbia, Guam, Puerto Rico, and the U.S. Virgin Islands. The burden estimate of 1 hour per report is unchanged from the estimate provided for the currently-approved ICR. The subject matter experts at the FDIC do not believe this estimate needs to be updated for this renewal.

    11 See footnote 9.

    Request for Comment

    Comments are invited on: (a) Whether the collection of information is necessary for the proper performance of the FDIC's functions, including whether the information has practical utility; (b) the accuracy of the estimates of the burden of the information collection, including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology. All comments will become a matter of public record.

    Dated at Washington, DC, on April 27, 2018. Federal Deposit Insurance Corporation. Robert E. Feldman, Executive Secretary.
    [FR Doc. 2018-09324 Filed 5-1-18; 8:45 am] BILLING CODE 6714-01-P
    FEDERAL FINANCIAL INSTITUTIONS EXAMINATION COUNCIL [Docket No. AS18-06] Appraisal Subcommittee; Notice of Meeting AGENCY:

    Appraisal Subcommittee of the Federal Financial Institutions Examination Council.

    ACTION:

    Notice of meeting.

    Description: In accordance with Section 1104 (b) of Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989, as amended, notice is hereby given that the Appraisal Subcommittee (ASC) will meet in open session for its regular meeting:

    Location: Federal Reserve Board—International Square location, 1850 K Street NW, Washington, DC 20006.

    Date: May 9, 2018.

    Time: 10:00 a.m.

    Status: Open.

    Reports Chairman Executive Director Delegated State Compliance Reviews Financial Report Action and Discussion Items February 14, 2018 Open Session Minutes Reprogramming Request for State Investigator Training Grant Revisions to ASC Delegations of Authority State Requests for Extension of Implementation Period to establish AMC Program Selection of ASC Vice Chair How To Attend and Observe an ASC Meeting

    If you plan to attend the ASC Meeting in person, we ask that you send an email to [email protected] You may register until close of business four business days before the meeting date. You will be contacted by the Federal Reserve Law Enforcement Unit on security requirements. You will also be asked to provide a valid government-issued ID before being admitted to the Meeting. The meeting space is intended to accommodate public attendees. However, if the space will not accommodate all requests, the ASC may refuse attendance on that reasonable basis. The use of any video or audio tape recording device, photographing device, or any other electronic or mechanical device designed for similar purposes is prohibited at ASC meetings.

    Dated: April 25, 2018. James R. Park, Executive Director.
    [FR Doc. 2018-09214 Filed 5-1-18; 8:45 am] BILLING CODE 6700-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services [Document Identifiers: CMS-10669] Agency Information Collection Activities: Proposed Collection; Comment Request AGENCY:

    Centers for Medicare & Medicaid Services.

    ACTION:

    Notice.

    SUMMARY:

    The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (the PRA), federal agencies are required to publish notice in the Federal Register concerning each proposed collection of information (including each proposed extension or reinstatement of an existing collection of information) and to allow 60 days for public comment on the proposed action. Interested persons are invited to send comments regarding our burden estimates or any other aspect of this collection of information, including the necessity and utility of the proposed information collection for the proper performance of the agency's functions, the accuracy of the estimated burden, ways to enhance the quality, utility, and clarity of the information to be collected, and the use of automated collection techniques or other forms of information technology to minimize the information collection burden.

    DATES:

    Comments must be received by July 2, 2018.

    ADDRESSES:

    When commenting, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be submitted in any one of the following ways:

    1. Electronically. You may send your comments electronically to http://www.regulations.gov. Follow the instructions for “Comment or Submission” or “More Search Options” to find the information collection document(s) that are accepting comments.

    2. By regular mail. You may mail written comments to the following address: CMS, Office of Strategic Operations and Regulatory Affairs, Division of Regulations Development, Attention: Document Identifier/OMB Control Number ___, Room C4-26-05, 7500 Security Boulevard, Baltimore, Maryland 21244-1850.

    To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:

    1. Access CMS' website address at https://www.cms.gov/Regulations-and-Guidance/Legislation/PaperworkReductionActof1995/PRA-Listing.html.

    2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to [email protected]

    3. Call the Reports Clearance Office at (410) 786-1326.

    FOR FURTHER INFORMATION CONTACT:

    William Parham at (410) 786-4669.

    SUPPLEMENTARY INFORMATION:

    Contents

    This notice sets out a summary of the use and burden associated with the following information collections. More detailed information can be found in each collection's supporting statement and associated materials (see ADDRESSES).

    CMS-10669 Health Equity Technical Assistance Monitoring and Tracking

    Under the PRA (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA requires federal agencies to publish a 60-day notice in the Federal Register concerning each proposed collection of information, including each proposed extension or reinstatement of an existing collection of information, before submitting the collection to OMB for approval. To comply with this requirement, CMS is publishing this notice.

    Information Collection

    1. Type of Information Collection Request: New collection (Request for a new OMB control number); Title of Information Collection: Health Equity Technical Assistance Monitoring and Tracking; Use: The Centers for Medicare & Medicaid Services (CMS) Office of Minority Health (OMH) developed the CMS Equity Plan for Improving Quality in Medicare (CMS Equity Plan for Medicare). The Plan outlines CMS' path to help advance health equity by improving the quality of care provided to minority and other underserved Medicare beneficiaries, particularly those with disparities in chronic diseases. CMS identified six high-impact priority areas based on a review of the evidence base and stakeholder input. These priorities encompass both system- and community-level approaches to achieve equity in Medicare. Priority 2: Evaluate Disparities Impacts and Integrate Equity Solutions Across CMS Programs, focuses on increasing understanding of the impact CMS programs have on health disparities and on identifying, developing and integrating proven solutions to improve their impact on vulnerable populations.

    CMS created a Health Equity Technical Assistance (TA) email ([email protected]) to support CMS programs as they integrate health equity into their programs. This TA offers guidance from health equity subject matter experts on a variety of topics including reviewing data to identify health disparities, identifying root causes of health disparities, gaining an organizational champion, building organizational capacity to address health disparities, implementing interventions, tracking success of intervention, and serves as a portal to access health equity resources. Form Number: CMS-10669 (OMB control number: 0938-New); Frequency: Occasionally; Affected Public: Private sector (Business or other For-profits); Number of Respondents: 274; Total Annual Responses 274; Total Annual Hours: 23. (For policy questions regarding this collection contact Alexandra Bryden at 410-786-2076).

    Dated: April 27, 2018. William N. Parham, III, Director, Paperwork Reduction Staff, Office of Strategic Operations and Regulatory Affairs.
    [FR Doc. 2018-09329 Filed 5-1-18; 8:45 am] BILLING CODE 4120-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Office of the Secretary Statement of Organization, Functions, and Delegations of Authority; Office of the National Coordinator for Health Information Technology

    Part A, Office of the Secretary, Statement of Organization, Functions, and Delegations of Authority for the Department of Health and Human Services, Chapter AR, Office of the National Coordinator for Health Information Technology (ONC), as last amended at 79 FR 31941 (June 3, 2014), 77 FR 29349-50 (May 17, 2012), 76 FR 65196 (Oct. 20, 2011), 76 FR 6795 (Feb. 8, 2011), 75 FR 49494 (Aug. 13, 2010), 74 FR 62785-86 (Dec. 1, 2009), 70 FR 48718-20 (Aug. 19, 2005) is amended as follows:

    I. Under AR.10, Organization, delete all of components and replace with the following:

    A. Immediate Office of the National Coordinator (ARA) B. Office of Policy (ARI) C. Office of Technology (ARC) D. Office of the Chief Operating Officer (ARE)

    II. Delete AR.20, Functions, in its entirety and replace with the following:

    Section AR.20, Functions.

    A. Immediate Office of the National Coordinator: The Immediate Office of the National Coordinator (IO/ONC) is headed by the National Coordinator, who provides leadership and executive and strategic direction for the ONC organization. The National Coordinator is responsible for carrying out ONC's mission and implementing the functions of ONC. The IO/ONC (1) ensures the interoperability of health information, as central and foundational to the core mission of HHS to enhance and protect the health and well-being of all Americans; (2) ensures that health information technology initiatives are coordinated across HHS programs; (3) ensures that health information technology policy and programs of HHS are coordinated with those of relevant executive branch agencies (including Federal commissions and advisory committees) with a goal of avoiding duplication of effort and of helping to ensure that each agency undertakes activities primarily within the areas of its greatest expertise and technical capability; (4) reviews Federal health information technology investments to ensure Federal health information programs are meeting the objectives of the strategic plan required under Executive Order 13335, to create a national interoperable health information technology infrastructure; (4) provides comments and advice regarding specific Federal health information technology programs; and (5) develops, maintains, and reports on measurable outcome goals for health information technology to assess progress within HHS and other executive branch agencies.

    The Deputy National Coordinator, a part of the IO/ONC, works with and reports directly to the National Coordinator, and is responsible for supporting the National Coordinator in day-to-day operations and strategy for ONC, and for management of such ONC staff that report to the Deputy or as requested by the National Coordinator. The Deputy, in conjunction with the National Coordinator, provides executive oversight for the activities of ONC offices.

    The Deputy National Coordinator for Operations works with, and reports directly to, the National Coordinator and is responsible for day-to-day operations and strategy for ONC agency-wide support functions as well as providing executive oversight in conjunction with the National Coordinator.

    The Chief Privacy Officer, a part of the IO/ONC, advises the National Coordinator on privacy, security, and data stewardship of electronic health information and coordinates with other Federal agencies, with State and regional efforts, and with foreign countries with regard to the privacy, security, and data stewardship of electronic individually identifiable health information.

    B. Office of Policy: The Office of Policy is headed by an Executive Director. This office is responsible for: (1) Policy and rulemaking activities, including implementation of provisions included in the Health Information Technology for Economic and Clinical Health (HITECH) Act, the 21st Century Cures Act, and Executive Order 13335: Incentives for the Use of Health Information Technology and Establishing the Position of the National Health Information Technology Coordinator; (2) ONC's domestic policy initiatives; (3) coordination with executive branch agencies, Federal commissions, advisory committees, and external partners; (4) advanced analysis and evaluation of health information technology policies for ONC and the Department, including in the areas of interoperability, information blocking, care transformation, privacy and security, and quality improvement; and (5) operation of the Health Information Technology Advisory Committee established in the 21st Century Cures Act.

    C. Office of Technology: The Office of Technology is headed by an Executive Director. This office is responsible for (1) executing provisions of law including those in Title XXX of the Public Health Service Act as well as those mandated under the HITECH Act and the 21st Century Cures Act; (2) providing technical leadership and coordination within the health IT community to identify, evaluate, and influence the development of standards, implementation guidance, and best practices for representing and exchanging electronic health information; (3) coordinating with Federal agencies and other public and private partners to implement and advance interoperability nationwide; (4) leading the development of electronic testing tools, resources, and data to achieve interoperability, enhanced usability, and aid in the optimization of health IT; (5) administering the ONC Health IT Certification Program, including the Certified Health IT Product List (CHPL); and (6) leading ONC's technical interoperability interests and investments to advance the development of innovative solutions for interoperability.

    D. Office of the Chief Operating Officer: The Office of the Chief Operating Officer is headed by the Deputy National Coordinator for Operations/Chief Operating Officer and fulfills the administrative (i.e., executive secretariat) reporting, infrastructure, and budget support needs of the office. The Office of the Chief Operating Officer is responsible for:

    (1) Managing enterprise risk and formulating solutions to ensure ONC has the resources to achieve its mission and goals; (2) ensuring fiscal integrity and adherence to Federal laws and regulations; (3) providing centralized, agency-wide strategy and services including: Budget and financial management; full lifecycle grants management; procurement management; human capital; information technology; facilities management; ethics; and records management.

    III. Delegation of Authority.

    Pending further delegation, directives or orders by the Secretary or by the National Coordinator for Health Information Technology, all delegations and redelegations of authority made to officials and employees of affected organizational components will continue in them or their successors pending further redelegations, provided they are consistent with this reorganization.

    Alex M. Azar II, Secretary of Health and Human Services. BILLING CODE 4150-24-P EN02MY18.003 EN02MY18.004
    [FR Doc. 2018-09361 Filed 4-30-18; 4:15 pm] BILLING CODE 4150-24-C
    DEPARTMENT OF HOMELAND SECURITY U.S. Customs and Border Protection Quarterly IRS Interest Rates Used in Calculating Interest on Overdue Accounts and Refunds on Customs Duties AGENCY:

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

    ACTION:

    General notice.

    SUMMARY:

    This notice advises the public that the quarterly Internal Revenue Service interest rates used to calculate interest on overdue accounts (underpayments) and refunds (overpayments) of customs duties will increase from the previous quarter. For the calendar quarter beginning April 1, 2018, the interest rates for overpayments will be 4 percent for corporations and 5 percent for non-corporations, and the interest rate for underpayments will be 5 percent for both corporations and non-corporations. This notice is published for the convenience of the importing public and U.S. Customs and Border Protection personnel.

    DATES:

    The rates announced in this notice are applicable as of April 1, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Bruce W. Ingalls, Revenue Division, Collection and Refunds Branch, 6650 Telecom Drive, Suite #100, Indianapolis, Indiana 46278; telephone (317) 298-1107.

    SUPPLEMENTARY INFORMATION:

    Background

    Pursuant to 19 U.S.C. 1505 and Treasury Decision 85-93, published in the Federal Register on May 29, 1985 (50 FR 21832), the interest rate paid on applicable overpayments or underpayments of customs duties must be in accordance with the Internal Revenue Code rate established under 26 U.S.C. 6621 and 6622. Section 6621 provides different interest rates applicable to overpayments: One for corporations and One for non-corporations.

    The interest rates are based on the Federal short-term rate and determined by the Internal Revenue Service (IRS) on behalf of the Secretary of the Treasury on a quarterly basis. The rates effective for a quarter are determined during the first-month period of the previous quarter.

    In Revenue Ruling 2018-07, the IRS determined the rates of interest for the calendar quarter beginning April 1, 2018, and ending on June 30, 2018. The interest rate paid to the Treasury for underpayments will be the Federal short-term rate (2%) plus three percentage points (3%) for a total of five percent (5%) for both corporations and non-corporations. For corporate overpayments, the rate is the Federal short-term rate (2%) plus two percentage points (2%) for a total of four percent (4%). For overpayments made by non-corporations, the rate is the Federal short-term rate (2%) plus three percentage points (3%) for a total of five percent (5%). These interest rates used to calculate interest on overdue accounts (underpayments) and refunds (overpayments) of customs duties are the same from the previous quarter. These interest rates are subject to change for the calendar quarter beginning July 1, 2018, and ending September 30, 2018.

    For the convenience of the importing public and U.S. Customs and Border Protection personnel the following list of IRS interest rates used, covering the period from July of 1974 to date, to calculate interest on overdue accounts and refunds of customs duties, is published in summary format.

    Beginning date Ending date Under
  • payments
  • (percent)
  • Over
  • payments
  • (percent)
  • Corporate
  • overpayments
  • (eff. 1-1-99)
  • (percent)
  • 070174 063075 6 6 070175 013176 9 9 020176 013178 7 7 020178 013180 6 6