Federal Register Vol. 83, No.87,

Federal Register Volume 83, Issue 87 (May 4, 2018)

Page Range19603-19904
FR Document

83_FR_87
Current View
Page and SubjectPDF
83 FR 19903 - Loyalty Day, 2018PDF
83 FR 19901 - National Physical Fitness and Sports Month, 2018PDF
83 FR 19899 - Older Americans Month, 2018PDF
83 FR 19897 - National Mental Health Awareness Month, 2018PDF
83 FR 19895 - National Foster Care Month, 2018PDF
83 FR 19893 - Asian American and Pacific Islander Heritage Month, 2018PDF
83 FR 19842 - Sunshine Act Meeting NoticePDF
83 FR 19811 - Notice of Proposed Withdrawal and Availability of an Associated Environmental Assessment, and Notification of Public Meeting; NevadaPDF
83 FR 19806 - Notice of Amended Application for Withdrawal Expansion and Opportunity for Public Meeting; NevadaPDF
83 FR 19855 - Notice of Determinations; Culturally Significant Objects Imported for Exhibition Determinations: “Canova's George Washington” ExhibitionPDF
83 FR 19821 - Government in the Sunshine Act Meeting NoticePDF
83 FR 19822 - Government in the Sunshine Act Meeting NoticePDF
83 FR 19853 - 1112 Partners, LLCPDF
83 FR 19647 - On-Time Performance Under Section 213 of The Passenger Rail Investment and Improvement Act of 2008PDF
83 FR 19757 - Protection of Stratospheric Ozone: Notice of Data Availability; Information Concerning HCFC-123 and HCFC-124 Production, Consumption, and UsePDF
83 FR 19791 - National Heart, Lung, and Blood Institute; Notice of Closed MeetingsPDF
83 FR 19789 - National Cancer Institute; Notice of Closed MeetingsPDF
83 FR 19789 - Center for Scientific Review; Notice of Closed MeetingsPDF
83 FR 19857 - Veterans' Rural Health Advisory Committee, Notice of Meeting AmendedPDF
83 FR 19682 - Grand Mesa, Uncompahgre and Gunnison National Forests; Colorado; Revision of the Land and Resource Management Plan for the Grand Mesa, Uncompahgre, and Gunnison National ForestsPDF
83 FR 19710 - Marine Mammals; File No. 22049PDF
83 FR 19764 - Amneal Holdings, LLC, and Impax Laboratories, Inc.; Analysis to Aid Public CommentPDF
83 FR 19762 - BLU Products, Inc.; Analysis to Aid Public CommentPDF
83 FR 19681 - Information Collection: Post-Hurricane Research and Assessment of Agriculture, Forestry, and Rural Communities in the U.S. CaribbeanPDF
83 FR 19846 - New Postal ProductsPDF
83 FR 19686 - Proposed Information Collection; Comment Request; Property ManagementPDF
83 FR 19682 - Proposed Information Collection; Comment Request; Comprehensive Economic Development StrategiesPDF
83 FR 19687 - Proposed Information Collection; Comment Request; Application for Investment AssistancePDF
83 FR 19685 - Proposed Information Collection; Comment Request; Requirements for Approved Construction InvestmentsPDF
83 FR 19701 - Submission for OMB Review; Comment RequestPDF
83 FR 19683 - Proposed Information Collection; Comment Request; Request To Amend an Investment Award and Project Service MapsPDF
83 FR 19787 - Ferndale Laboratories, Inc., et al.; Withdrawal of Approval of Nine Abbreviated New Drug ApplicationsPDF
83 FR 19787 - Sun Pharmaceutical Industries, Ltd.; Withdrawal of Approval of Three Abbreviated New Drug ApplicationsPDF
83 FR 19785 - Medicare Program: Announcement of the Advisory Panel on Hospital Outpatient Payment (the Panel) Meeting on August 20-21, 2018PDF
83 FR 19659 - Drawbridge Operation Regulation; Delaware River, Pennsauken Township, NJPDF
83 FR 19737 - Procurement List; Proposed AdditionsPDF
83 FR 19736 - Procurement List; Proposed Additions and DeletionsPDF
83 FR 19809 - Notice of Proposed Reinstatement of Terminated Oil and Gas Lease WYW180624, WyomingPDF
83 FR 19810 - Notice of Proposed Reinstatement of Terminated Oil and Gas Lease WYW175931, WyomingPDF
83 FR 19803 - Notice of Availability of the Utah Draft Resource Management Plan Amendment and Environmental Impact Statement for Greater Sage-Grouse ConservationPDF
83 FR 19804 - Notice of Availability of the Oregon Draft Resource Management Plan Amendment and Environmental Impact Statement for Greater Sage-Grouse ConservationPDF
83 FR 19810 - Notice of Availability of the Wyoming Draft Resource Management Plan Amendment and Draft Environmental Impact Statement for Greater Sage-Grouse ConservationPDF
83 FR 19808 - Notice of Availability of the Colorado Draft Resource Management Plan Amendment and Draft Environmental Impact Statement for Greater Sage-Grouse ConservationPDF
83 FR 19801 - Notice of Availability of the Idaho Draft Resource Management Plan Amendment and Draft Environmental Impact Statement for Greater Sage-Grouse ConservationPDF
83 FR 19694 - Polyethylene Terephthalate Resin From the Republic of Korea: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional MeasuresPDF
83 FR 19800 - Notice of Availability of the Nevada and Northeastern California Draft Resource Management Plan Amendment and Draft Environmental Impact Statement for Greater Sage-Grouse ConservationPDF
83 FR 19761 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
83 FR 19761 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
83 FR 19761 - Notice of Proposals To Engage in or To Acquire Companies Engaged in Permissible Nonbanking ActivitiesPDF
83 FR 19699 - Polyethylene Terephthalate Resin From Brazil: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional MeasuresPDF
83 FR 19696 - Polyethylene Terephthalate Resin From Taiwan: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional MeasuresPDF
83 FR 19759 - Information Collection Being Submitted for Review and Approval to the Office of Management and BudgetPDF
83 FR 19760 - Information Collection Being Submitted for Review and Approval to the Office of Management and BudgetPDF
83 FR 19689 - Polyethylene Terephthalate Resin From Pakistan: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional MeasuresPDF
83 FR 19691 - Polyethylene Terephthalate Resin From Indonesia: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional MeasuresPDF
83 FR 19837 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Employee Retirement Income Security Act RegulationPDF
83 FR 19842 - Excepted Service; January 2018PDF
83 FR 19788 - Planning Cooperative Agreement; Correction of Due DatePDF
83 FR 19788 - Office of Tribal Self-Governance; Negotiation Cooperative Agreement; Correction of Due DatePDF
83 FR 19680 - Council for Native American Farming and RanchingPDF
83 FR 19751 - Combined Notice of FilingsPDF
83 FR 19754 - Combined Notice of Filings #1PDF
83 FR 19738 - Agency Information Collection Activities; Comment Request; Fast Response Survey System (FRSS) 109: Teachers' Use of Technology for School and Homework AssignmentsPDF
83 FR 19693 - Proposed Information Collection; Comment Request; Surveys for User Satisfaction, Impact and Needs; CorrectionPDF
83 FR 19701 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Confined Blasting Operations in the East Channel by the U.S. Army Corps of Engineers During the Tampa Harbor Big Bend Channel Expansion Project in Tampa Harbor, Tampa, FloridaPDF
83 FR 19795 - Agency Information Collection Activities; Extension, Without Change, of a Currently Approved Collection: Petition for Alien Fiance(e)PDF
83 FR 19628 - Special Local Regulation: Fort Lauderdale Air Show; Atlantic Ocean, Fort Lauderdale, FLPDF
83 FR 19630 - Special Local Regulation: Fort Lauderdale Air Show; Atlantic Ocean, Fort Lauderdale, FLPDF
83 FR 19797 - Agency Information Collection Activities; Revision of a Currently Approved Collection: Application for Certificate of CitizenshipPDF
83 FR 19739 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and approval; Comment Request; Reaffirmation AgreementPDF
83 FR 19798 - Agency Information Collection Activities; Extension, Without Change, of a Currently Approved Collection: Immigrant Petition by Alien EntrepreneurPDF
83 FR 19856 - Notice of Funding Opportunity; CorrectionPDF
83 FR 19641 - Defense Federal Acquisition Regulation Supplement: Amendments Related to Sources of Electronic Parts (DFARS Case 2016-D013)PDF
83 FR 19645 - Defense Federal Acquisition Regulation Supplement: Promoting Voluntary Post-Award Disclosure of Defective Pricing (DFARS Case 2015-D030)PDF
83 FR 19641 - Defense Federal Acquisition Regulation Supplement: Statement of Purpose for Department of Defense Acquisition (DFARS Case 2018-D005)PDF
83 FR 19677 - Defense Federal Acquisition Regulation Supplement: Mentor-Protégé Program Modifications (DFARS Case 2017-D016)PDF
83 FR 19755 - Erie Boulevard Hydropower, L.P.; 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 19753 - Southern Power Company; Notice Shortening Comment PeriodPDF
83 FR 19751 - Cole Rhoten; Notice of Declaration of Intention and Soliciting Comments, Protests, and Motions To IntervenePDF
83 FR 19794 - Agency Information Collection Activities; Revision of a Currently Approved Collection: Interagency Record of Request-A, G, or NATO Dependent Employment Authorization or Change/Adjustment To/From A, G, or NATO StatusPDF
83 FR 19796 - Agency Information Collection Activities: Revision of a Currently Approved Collection: Application for Certificate of CitizenshipPDF
83 FR 19711 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off of Rhode Island and MassachusettsPDF
83 FR 19737 - Joint Notice of Availability for the Draft Matagorda Ship Channel Project Integrated Feasibility Report and Environmental Impact StatementPDF
83 FR 19841 - Proposal Review Panel for Computing and Communication Foundations; Notice of MeetingPDF
83 FR 19819 - National Register of Historic Places; Notification of Pending Nominations and Related ActionsPDF
83 FR 19740 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Comment Request; Impact Study of Federally-Funded Magnet SchoolsPDF
83 FR 19619 - Food Labeling: Revision of the Nutrition and Supplement Facts Labels and Serving Sizes of Foods That Can Reasonably Be Consumed at One Eating Occasion; Dual-Column Labeling; Updating, Modifying, and Establishing Certain Reference Amounts Customarily Consumed; Serving Size for Breath Mints; and Technical Amendments; Extension of Compliance DatesPDF
83 FR 19768 - Notice of Closed MeetingPDF
83 FR 19769 - Interagency Committee on Smoking and Health (ICSH)PDF
83 FR 19767 - Board of Scientific Counselors, National Center for Health Statistics (BSC, NCHS)PDF
83 FR 19680 - Notice of Intent To Renew an Information CollectionPDF
83 FR 19839 - National Environmental Policy Act; Wallops Flight Facility; Site-WidePDF
83 FR 19842 - Proposal Review; Notice of MeetingsPDF
83 FR 19841 - Committee on Equal Opportunities in Science and Engineering; Notice of MeetingPDF
83 FR 19821 - Certain Portable Gaming Console Systems With Attachable Handheld Controllers and Components Thereof; Institution of InvestigationPDF
83 FR 19758 - Environmental Impact Statements; Notice of AvailabilityPDF
83 FR 19603 - Modified Small Quantities ProtocolPDF
83 FR 19837 - Department of Justice's Initiative to Seek Termination of Legacy Antitrust JudgmentsPDF
83 FR 19836 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Node.js FoundationPDF
83 FR 19836 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-ODPi, Inc.PDF
83 FR 19822 - United States v. Martin Marietta Materials, Inc. et al.; Proposed Final Judgment and Competitive Impact StatementPDF
83 FR 19752 - Combined Notice of Filings #1PDF
83 FR 19838 - Notice of Stakeholder MeetingPDF
83 FR 19746 - Participation of Distributed Energy Resource Aggregations in Markets Operated by Regional Transmission Organizations and Independent System Operators; Notice Inviting Post-Technical Conference CommentsPDF
83 FR 19744 - Kipp, Mary E.; Notice of FilingPDF
83 FR 19744 - Louisiana Public Service Commission v. System Energy Resources, Inc. and Entergy Services, Inc.; Notice of ComplaintPDF
83 FR 19750 - Midcontinent Independent System Operator, Inc., ALLETE, Inc., Montana-Dakota Utilities Co., Northern Indiana Public Service Company, Otter Tail Power Company, Southern Indiana Gas & Electric Company; Notice of Institution of Section 206 Proceeding and Refund Effective DatePDF
83 FR 19753 - Combined Notice of Filings #2PDF
83 FR 19745 - Distributed Energy Resources-Technical Considerations for the Bulk Power System; Notice Inviting Post-Technical Conference CommentsPDF
83 FR 19820 - Final Environmental Impact Statement/Mountain Goat Management Plan, Olympic National Park, Clallam, Grays Harbor, Jefferson and Mason County, WashingtonPDF
83 FR 19847 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 4702(b)(5), Rule 4703(d), Rule 4752(d)(2)(B), and Rule 4754(b)(2)(B)PDF
83 FR 19856 - Twenty Seventh RTCA SC-223 IPS and AeroMACS Joint Plenary With WG-108PDF
83 FR 19799 - Endangered Species; Receipt of Permit ApplicationsPDF
83 FR 19768 - Draft-National Occupational Research Agenda for Respiratory Health; Extension of Comment PeriodPDF
83 FR 19850 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending Rule 13PDF
83 FR 19817 - Notice of Availability of the Saline Valley Warm Springs Draft Environmental Impact Statement at Death Valley National Park, California and NevadaPDF
83 FR 19845 - Submission for Review: Financial Resources Questionnaire (RI 34-1, RI 34-17, and RI 34-18) and Notice of Amount Due Because of Annuity Overpayment (RI 34-3, RI 34-19, and RI 34-20)PDF
83 FR 19846 - Submission for Review: OPM 1655, Application for Senior Administrative Law Judge, and OPM 1655-A, Geographic Preference Statement for Senior Administrative Law Judge ApplicantPDF
83 FR 19787 - Agency Information Collection Activities; Announcement of Office of Management and Budget Approvals; CorrectionPDF
83 FR 19656 - Special Local Regulations for Marine Events, Delaware River; Philadelphia, PAPDF
83 FR 19856 - Notice of OFAC Sanctions ActionPDF
83 FR 19626 - General Hospital and Personal Use Devices; Reclassification of Sharps Needle Destruction DevicePDF
83 FR 19855 - Presidential Declaration of a Major Disaster for the State of ALABAMAPDF
83 FR 19630 - Drawbridge Operation Regulation; San Leandro Bay, Between Alameda and Bay Farm Island, CAPDF
83 FR 19854 - Presidential Declaration of a Major Disaster for Public Assistance Only for the State of AlabamaPDF
83 FR 19769 - Medicare and Medicaid Programs; Quarterly Listing of Program Issuances-January Through March 2018PDF
83 FR 19740 - Request for Information on the Future Direction of the Rehabilitation Training ProgramPDF
83 FR 19790 - National Institute of General Medical Sciences; Notice of Closed MeetingsPDF
83 FR 19791 - National Institute of General Medical Sciences; Notice of Closed MeetingsPDF
83 FR 19788 - National Institute on Aging; Notice of Closed MeetingPDF
83 FR 19791 - National Eye Institute; Notice of MeetingPDF
83 FR 19790 - National Cancer Institute; Notice of Charter RenewalPDF
83 FR 19792 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
83 FR 19822 - Carton-Closing Staples From ChinaPDF
83 FR 19660 - Auctions of Upper Microwave Flexible Use Licenses for Next-Generation Wireless Services; Comment Sought on Competitive Bidding Procedures for Auctions 101 (28 GHz) and 102 (24 GHz); Bidding in Auction 101 Scheduled To Begin November 14, 2018PDF
83 FR 19637 - Air Plan Approval; Georgia; Regional Haze Plan and Prong 4 (Visibility) for the 2012 PM2.5PDF
83 FR 19860 - National Bioengineered Food Disclosure StandardPDF
83 FR 19756 - Environmental Laboratory Advisory Board (ELAB) MembershipPDF
83 FR 19648 - Airworthiness Directives; Airbus AirplanesPDF
83 FR 19615 - Airworthiness Directives; The Boeing Company AirplanesPDF
83 FR 19631 - Air Plan Approval; Arizona; Stationary Sources; New Source ReviewPDF
83 FR 19655 - Proposed Establishment of Class E Airspace; Hoonah, AKPDF
83 FR 19617 - Amendment of Class D and E Airspace and Revocation of Class E Airspace; Pocatello, IDPDF
83 FR 19653 - Proposed Amendment of Class D and Class E Airspace, and Revocation of Class E Airspace; Juneau, AKPDF
83 FR 19650 - Proposed Amendment of Class D and Class E Airspace; Moses Lake, WAPDF
83 FR 19794 - Proposed Flood Hazard Determinations for Marion County, Oregon and Incorporated AreasPDF

Issue

83 87 Friday, May 4, 2018 Contents Agricultural Marketing Agricultural Marketing Service PROPOSED RULES National Bioengineered Food Disclosure Standard, 19860-19889 2018-09389 Agricultural Research Agricultural Research Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19680 2018-09472 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Agricultural Research Service

See

Forest Service

NOTICES Meetings: Council for Native American Farming and Ranching, 19680-19681 2018-09505
Antitrust Division Antitrust Division NOTICES Changes under the National Cooperative Research and Production Act: Node.js Foundation, 19836-19837 2018-09460 ODPi, Inc., 19836 2018-09459 Proposed Final Judgment and Competitive Impact Statement: United States v. Martin Marietta Materials, Inc. et al., 19822-19836 2018-09458 Termination of Legacy Antitrust Judgments, 19837 2018-09461 Centers Disease Centers for Disease Control and Prevention NOTICES Draft--National Occupational Research Agenda for Respiratory Health, 19768 2018-09442 Meetings: Board of Scientific Counselors, National Center for Health Statistics, 19767-19768 2018-09473 Disease, Disability, and Injury Prevention and Control Special Emphasis Panel, 19768 2018-09475 Interagency Committee on Smoking and Health, 19769 2018-09474 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Medicare and Medicaid Programs: Quarterly Listing of Program Issuances--January through March 2018, 19769-19785 2018-09430 Meetings: Medicare Program; Advisory Panel on Hospital Outpatient Payment, 19785-19787 2018-09532 Coast Guard Coast Guard RULES Drawbridge Operations: San Leandro Bay, between Alameda and Bay Farm Island, CA, 19630-19631 2018-09432 Special Local Regulations: Fort Lauderdale Air Show, Atlantic Ocean, Fort Lauderdale, FL, 19628-19630 2018-09496 2018-09497 PROPOSED RULES Drawbridge Operations: Delaware River, Pennsauken Township, NJ, 19659-19660 2018-09531 Special Local Regulations: Marine Events, Delaware River; Philadelphia, PA, 19656-19659 2018-09436 Commerce Commerce Department See

Economic Development Administration

See

International Trade Administration

See

National Institute of Standards and Technology

See

National Oceanic and Atmospheric Administration

Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 19736-19737 2018-09529 2018-09530 Defense Acquisition Defense Acquisition Regulations System RULES Defense Federal Acquisition Regulation Supplement: Amendments Related to Sources of Electronic Parts, 19641-19645 2018-09491 Promoting Voluntary Post-Award Disclosure of Defective Pricing, 19645-19647 2018-09489 Statement of Purpose for Department of Defense Acquisition, 19641 2018-09488 PROPOSED RULES Defense Federal Acquisition Regulation Supplement: Mentor-Protege Program Modifications, 19677-19679 2018-09487 Defense Department Defense Department See

Defense Acquisition Regulations System

See

Engineers Corps

Economic Development Economic Development Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Investment Assistance, 19687-19689 2018-09538 Comprehensive Economic Development Strategies, 19682-19683 2018-09539 Property Management, 19686-19687 2018-09540 Request to Amend an Investment Award and Project Service Maps, 19683-19684 2018-09535 Requirements for Approved Construction Investments, 19685-19686 2018-09537 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Fast Response Survey System 109: Teachers' Use of Technology for School and Homework Assignments, 19738-19739 2018-09502 Impact Study of Federally-Funded Magnet Schools, 19740 2018-09477 Reaffirmation Agreement, 19739-19740 2018-09494 Requests for Information: Future Direction of the Rehabilitation Training Program, 19740-19744 2018-09429 Energy Department Energy Department See

Federal Energy Regulatory Commission

Engineers Engineers Corps NOTICES Environmental Impact Statements; Availability, etc.: Matagorda Ship Channel Project Integrated Feasibility Report, 19737-19738 2018-09480 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Arizona; Stationary Sources; New Source Review, 19631-19637 2018-09205 Georgia; Regional Haze Plan and Prong 4 (Visibility) for the 2012 Fine Particulate Matter, 2010 Nitrogen Dioxide, 2010 Sulfur Dioxide, and 2008 Ozone National Ambient Air Quality Standards, 19637-19641 2018-09412 NOTICES Environmental Impact Statements; Availability, etc.: Weekly Receipts, 19758-19759 2018-09463 Protection of Stratospheric Ozone: HCFC-123 and HCFC-124 Production, Consumption, and Use, 19757-19758 2018-09557 Requests for Nominations: Environmental Laboratory Advisory Board, 19756-19757 2018-09321 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: The Boeing Company Airplanes, 19615-19617 2018-09218 Class D and E Airspace and Revocation of Class E Airspace; Amendments: Pocatello, ID, 19617-19619 2018-09107 PROPOSED RULES Airworthiness Directives: Airbus Airplanes, 19648-19650 2018-09277 Class D and Class E Airspace, and Revocation of Class E Airspace; Amendments: Juneau, AK, 19653-19655 2018-09106 Class D and Class E Airspace; Amendments: Moses Lake, WA, 19650-19653 2018-09105 Class E Airspace; Establishments: Hoonah, AK, 19655-19656 2018-09108 NOTICES Meetings: Twenty Seventh RTCA SC-223 IPS and AeroMACS Joint Plenary with WG-108, 19856 2018-09446 Federal Communications Federal Communications Commission PROPOSED RULES Auctions of Upper Microwave Flexible Use Licenses for Next-Generation Wireless Services; Comment Sought on Competitive Bidding Procedures for Auctions 101 (28 GHz) and 102 (24 GHz); Bidding in Auction 101 Scheduled to Begin November 14, 2018, 19660-19677 2018-09415 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19759-19761 2018-09513 2018-09514 Federal Emergency Federal Emergency Management Agency NOTICES Flood Hazard Determinations; Proposals, 19794 2018-08590 Federal Energy Federal Energy Regulatory Commission NOTICES Applications: Cole Rhoten, 19751 2018-09484 Combined Filings, 19751-19755 2018-09451 2018-09457 2018-09503 2018-09504 Complaints: Louisiana Public Service Commission v. System Energy Resources, Inc. and Entergy Services, Inc., 19744 2018-09453 Filings: Mary E. Kipp, 19744 2018-09454 Institution of Section 206 Proceeding: Midcontinent Independent System Operator, Inc., et al., 19750 2018-09452 License Applications: Erie Boulevard Hydropower, L.P., 19755-19756 2018-09486 Post-Technical Conference Comments: Distributed Energy Resources—Technical Considerations for the Bulk Power System, 19745-19746 2018-09450 Participation of Distributed Energy Resource Aggregations in Markets Operated by Regional Transmission Organizations and Independent System Operators, 19746-19750 2018-09455 Waiver Petitions: Southern Power Co., 19753 2018-09485 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control Notices: Acquisitions of Shares of a Bank or Bank Holding Company, 19761 2018-09518 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 19761 2018-09519 Proposals to Engage in or to Acquire Companies Engaged in Permissible Nonbanking Activities, 19761-19762 2018-09517 Federal Trade Federal Trade Commission NOTICES Proposed Consent Agreements: Amneal Holdings, LLC, and Impax Laboratories, Inc., 19764-19767 2018-09546 BLU Products, Inc., 19762-19764 2018-09545 Fish Fish and Wildlife Service NOTICES Endangered and Threatened Species: Permit Applications, 19799-19800 2018-09443 Food and Drug Food and Drug Administration RULES Food Labeling: Revision of the Nutrition and Supplement Facts Labels and Serving Sizes of Foods That Can Reasonably Be Consumed At One Eating Occasion; Dual-Column Labeling; Updating, Modifying, and Establishing Certain Reference Amounts Customarily Consumed; Serving Size for Breath Mints; and Technical Amendments; Extension of Compliance Dates, 19619-19626 2018-09476 General Hospital and Personal Use Devices: Reclassification of Sharps Needle Destruction Device, 19626-19628 2018-09434 NOTICES Abbreviated New Drug Applications; Approval Withdrawals: Sun Pharmaceutical Industries, Ltd., 19787 2018-09533 Agency Information Collection Activities; Proposals, Submissions, and Approvals; Correction, 19787 2018-09437 Withdrawal of Approval of Nine Abbreviated New Drug Applications: Ferndale Laboratories, Inc., et al., 19787-19788 2018-09534 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 19856-19857 2018-09435 Forest Forest Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Post-Hurricane Research and Assessment of Agriculture, Forestry, and Rural Communities in the U.S. Caribbean, 19681-19682 2018-09544 Environmental Impact Statements; Availability, etc.: Revision of the Land and Resource Management Plan for the Grand Mesa, Uncompahgre, and Gunnison National Forests, CO, 19682 2018-09548 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

Indian Health Service

See

National Institutes of Health

See

Substance Abuse and Mental Health Services Administration

Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

See

U.S. Citizenship and Immigration Services

Indian Health Indian Health Service NOTICES Negotiation Cooperative Agreement; Correction, 19788 2018-09506 Planning Cooperative Agreement; Correction, 19788 2018-09507 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

See

National Park Service

International Trade Adm International Trade Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Surveys for User Satisfaction, Impact and Needs; Correction, 19693-19694 2018-09500 Determinations of Sales at Less than Fair Value: Polyethylene Terephthalate Resin from Brazil, 19699-19701 2018-09516 Polyethylene Terephthalate Resin from Indonesia, 19691-19693 2018-09510 Polyethylene Terephthalate Resin from Pakistan, 19689-19691 2018-09511 Polyethylene Terephthalate Resin from Taiwan, 19696-19699 2018-09515 Polyethylene Terephthalate Resin from the Republic of Korea, 19694-19696 2018-09521 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Carton-Closing Staples from China, 19822 2018-09422 Certain Portable Gaming Console Systems with Attachable Handheld Controllers and Components Thereof, 19821-19822 2018-09464 Meetings; Sunshine Act, 19821-19822 2018-09585 2018-09586 Justice Department Justice Department See

Antitrust Division

Labor Department Labor Department See

Occupational Safety and Health Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Employee Retirement Income Security Act Regulation, 19837-19838 2018-09509
Land Land Management Bureau NOTICES Applications for Withdrawal Expansion: Nevada; Opportunity for Public Meeting, 19806-19808 2018-09665 Environmental Impact Statements; Availability, etc.: Colorado Draft Resource Management Plan for Greater Sage-Grouse Conservation, 19808-19809 2018-09523 Greater Sage-Grouse Conservation; Nevada and Northeastern California Draft Resource Management Plan Amendment, 19800-19801 2018-09520 Greater Sage-Grouse Conservation; Oregon Draft Resource Management Plan Amendment, 19804-19805 2018-09525 Idaho Draft Resource Management Plan; Greater Sage-Grouse Conservation, 19801-19803 2018-09522 Utah Draft Resource Management Plan Amendment and Environmental Impact Statement for Greater Sage-Grouse Conservation, 19803-19804 2018-09526 Wyoming Draft Resource Management Plan Amendment and Draft Environmental Impact Statement for Greater Sage-Grouse Conservation, 19810-19811 2018-09524 Proposed Reinstatement of Terminated Oil and Gas Leases: WYW175931, Wyoming, 19810 2018-09527 WYW180624, Wyoming, 19809-19810 2018-09528 Proposed Withdrawal and Availability of an Associated Environmental Assessment, and Notification of Public Meeting; Nevada, 19811-19817 2018-09670 NASA National Aeronautics and Space Administration NOTICES Environmental Impact Statements; Availability, etc.: Wallops Flight Facility; Site-wide, 19839-19841 2018-09469 National Institute National Institute of Standards and Technology NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19701 2018-09536 National Institute National Institutes of Health NOTICES Charter Renewals: National Cancer Institute, 19790 2018-09424 Meetings: Center for Scientific Review, 19789-19790 2018-09551 National Cancer Institute, 19789 2018-09552 National Eye Institute, 19791 2018-09425 National Heart, Lung, and Blood Institute, 19791 2018-09553 National Institute of General Medical Sciences, 19790-19792 2018-09427 2018-09428 National Institute on Aging, 19788-19789 2018-09426 National Oceanic National Oceanic and Atmospheric Administration NOTICES Permit Applications: Marine Mammals; File No. 22049, 19710-19711 2018-09547 Takes of Marine Mammals Incidental to Specified Activities: Marine Site Characterization Surveys off of Rhode Island and Massachusetts, 19711-19736 2018-09481 Takes of Marine Mammals: Incidental to Confined Blasting Operations in the East Channel by the U.S. Army Corps of Engineers During the Tampa Harbor Big Bend Channel Expansion Project in Tampa Harbor, Tampa, FL, 19701-19710 2018-09499 National Park National Park Service NOTICES Environmental Impact Statements; Availability, etc.: Mountain Goat Management Plan, Olympic National Park, Clallam, Grays Harbor, Jefferson and Mason County, WA, 19820-19821 2018-09449 Saline Valley Warm Springs at Death Valley National Park, California and Nevada, 19817-19819 2018-09440 National Register of Historic Places: Pending Nominations and Related Actions, 19819-19820 2018-09478 National Science National Science Foundation NOTICES Meetings: Committee on Equal Opportunities in Science and Engineering, 19841-19842 2018-09467 Proposal Review, 19842 2018-09468 Proposal Review Panel for Computing and Communication Foundations, 19841 2018-09479 Nuclear Regulatory Nuclear Regulatory Commission RULES Modified Small Quantities Protocol, 19603-19614 2018-09462 NOTICES Meetings; Sunshine Act, 19842 2018-09682 Occupational Safety Health Adm Occupational Safety and Health Administration NOTICES Meetings: Stakeholders, 19838-19839 2018-09456 Personnel Personnel Management Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application for Senior Administrative Law Judge, and Geographic Preference Statement for Senior Administrative Law Judge Applicant, 19846 2018-09438 Financial Resources Questionnaire and Notice of Amount Due Because Of Annuity Overpayment, 19845-19846 2018-09439 Excepted Service: January 2018, 19842-19845 2018-09508 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 19846-19847 2018-09543 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: Asian American and Pacific Islander Heritage Month (Proc. 9733), 19891-19894 2018-09726 Loyalty Day (Proc. 9738), 19903-19904 2018-09739 National Foster Care Month (Proc. 9734), 19895-19896 2018-09727 National Mental Health Awareness Month (Proc. 9735), 19897-19898 2018-09730 National Physical Fitness and Sports Month (Proc. 9737), 19901-19902 2018-09737 Older Americans Month (Proc. 9736), 19899-19900 2018-09733 Securities Securities and Exchange Commission NOTICES Applications: 1112 Partners, LLC, 19853-19854 2018-09559 Self-Regulatory Organizations; Proposed Rule Changes: New York Stock Exchange, LLC, 19850-19853 2018-09441 The Nasdaq Stock Market, LLC, 19847-19850 2018-09448 Small Business Small Business Administration NOTICES Disaster Declarations: Alabama, 19854-19855 2018-09431 2018-09433 State Department State Department NOTICES Culturally Significant Objects Imported for Exhibition: Canova's George Washington, 19855 2018-09639 Substance Substance Abuse and Mental Health Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 19792-19794 2018-09423 Surface Transportation Surface Transportation Board RULES On-Time Performance under the Passenger Rail Investment and Improvement Act, 19647 2018-09558 Transportation Department Transportation Department See

Federal Aviation Administration

NOTICES Funding Availability: National Infrastructure Investments under the Consolidated Appropriations Act, 2018; Correction, 19856 2018-09492
Treasury Treasury Department See

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83 87 Friday, May 4, 2018 Rules and Regulations NUCLEAR REGULATORY COMMISSION 10 CFR Part 75 [NRC-2015-0263] RIN 3150-AJ70 Modified Small Quantities Protocol AGENCY:

Nuclear Regulatory Commission.

ACTION:

Final rule.

SUMMARY:

The U.S. Nuclear Regulatory Commission (NRC) is amending its regulations to collect information on nuclear material possessed by entities in the U.S. Caribbean Territories, as well as to allow for International Atomic Energy Agency (IAEA) inspection access, if requested by the IAEA. This final rule implements the requirements of “The Agreement between the United States of America and the IAEA for the application of safeguards in connection with the Treaty for the Prohibition of Nuclear Weapons in Latin America” (INFCIRC/366 or U.S.-IAEA Caribbean Territories Safeguards Agreement), that apply to the United States (U.S.) based on modifications to this Agreement's small quantities protocol.

DATES:

Effective date: This final rule is effective June 4, 2018. Compliance date: Compliance with this final rule is required by July 3, 2018.

ADDRESSES:

Please refer to Docket ID NRC-2015-0263 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

Federal Rulemaking Website: Go to http://www.regulations.gov and search for Docket ID NRC-2015-0263. Address questions about NRC dockets to Carol Gallagher; telephone: 301-415-3463; email: [email protected] For technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document.

NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [email protected] The ADAMS accession number for each document referenced (if it is available in ADAMS) is provided the first time that it is mentioned in the SUPPLEMENTARY INFORMATION section.

NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

FOR FURTHER INFORMATION CONTACT:

Gregory R. Trussell, Office of Nuclear Material Safety and Safeguards, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-415-6445; email: [email protected]

SUPPLEMENTARY INFORMATION:

I. Background

The Agreement between the U.S. and the IAEA for the application of safeguards in connection with the Treaty for the Prohibition of Nuclear Weapons in Latin America (U.S.-IAEA Caribbean Territories Safeguards Agreement (ADAMS Accession No. ML17065A218)) entered into force on April 6, 1989. When the U.S.-IAEA Caribbean Territories Safeguards Agreement was signed, the U.S. and the IAEA also concluded a “Small Quantities Protocol” (SQP) to the agreement that held in abeyance almost all reporting and access requirements. The SQPs are designed for countries with minimal or no nuclear material and activities to minimize the burden of international safeguards implementation. The IAEA, as a part of its efforts to strengthen international safeguards in 2005, identified proliferation concerns associated with holding certain provisions of the U.S.-IAEA Caribbean Territories Safeguards Agreement in abeyance through an SQP, and has since urged countries with an original SQP, including the U.S., to adopt a “modified SQP” that would have the effect of taking out of abeyance certain reporting and inspection requirements of the U.S.-IAEA Caribbean Territories Safeguards Agreement. The U.S. and the IAEA have agreed on the text for a modified SQP, which will be brought into force upon an exchange of diplomatic letters between the U.S. and the IAEA.

When the U.S.-IAEA Caribbean Territories Safeguards Agreement and its SQP was brought into force in 1989, no revisions were made to part 75 of title 10 of the Code of Federal Regulations (10 CFR), “Safeguards on Nuclear Material—Implementation of U.S.-IAEA Agreement,” as most of the provisions were held in abeyance by the original SQP. In light of the modified SQP, which takes certain reporting and inspection provisions of the U.S.-IAEA Caribbean Territories Safeguards Agreement out of abeyance, the scope and requirements of 10 CFR part 75 need to be revised to include these reporting and inspection requirements. The applicable requirements of the U.S.-IAEA Caribbean Territories Safeguards Agreement, as captured in the amendments to 10 CFR part 75, impact all entities that possess source material and special nuclear material within the U.S. Caribbean Territories.

II. Discussion A. General Overview

The scope and requirements of 10 CFR part 75 need to be expanded to include the provisions of the U.S.-IAEA Caribbean Territories Safeguards Agreement under the modified SQP. The applicable requirements of the U.S.-IAEA Caribbean Territories Safeguards Agreement, as captured in the amendments to 10 CFR part 75, impact all entities that possess source material and special nuclear material within the U.S. Caribbean Territories, which are defined in the amended 10 CFR part 75 as: Puerto Rico, the U.S. Virgin Islands, Navassa Island, Serranilla Bank, Baja Nuevo (Petrel Island), and the Guantanamo Bay Naval Base.

This final rule requires affected entities to:

• Provide basic information about the user (e.g., user's name and address), including organizational structure, geographic location, use of the nuclear material, and other relevant information requested pursuant to the safeguards agreement.

• Provide an initial inventory report of all source and special nuclear material possessed, and an annual inventory report thereafter. This reporting requirement will also include source material that is contained in non-nuclear end use applications (e.g., depleted uranium shielding).

• Provide annual Material Status Reports for nuclear materials covered by the applicable provisions of the U.S.-IAEA Caribbean Territories Safeguards Agreement.Provide an inventory change report when possessors import or export nuclear material (including shipments between U.S. Territories as well as to and from the 50 States) and provide advance notification, as specified in §§ 75.43, 75.44, and 75.45, of such an import or export exceeding one effective kilogram, as defined in § 75.4.

• Provide access for IAEA inspections. These inspections are expected to occur on an infrequent basis. The scope of IAEA inspections may include several activities, such as examination of records; verifying the functioning and calibration of instruments; and utilizing IAEA equipment for independent measurement, containment (such as a seal), and/or surveillance.

The regulations in 10 CFR part 75 already contain requirements for the existing IAEA safeguards agreements to which the U.S. is a party, i.e., the U.S.-IAEA Safeguards Agreement (INFCIRC/288) (ADAMS Accession No. ML17065A211) and its associated Additional Protocol. The revised regulations will clearly delineate which entities are subject to the requirements under each particular safeguards agreement. It should be noted that those entities subject to the provisions of the U.S.-IAEA Caribbean Territories Safeguards Agreement are not subject to the provisions of the U.S.-IAEA Safeguards Agreement and its associated Additional Protocol as defined in § 75.4.

B. IAEA Inspections

Possessors of source and special nuclear material in the U.S. Caribbean Territories will be subject to special and ad hoc inspections by the IAEA pursuant to the modified SQP. Articles 69, 71, 72, 73, 74, and 87 of U.S.-IAEA Caribbean Territories Safeguards Agreement that pertain to IAEA inspections were previously held in abeyance. Through the modification of the SQP, these Articles will be newly applicable to possessors of “nuclear material outside facilities,” as that term is defined in revised § 75.4, which means “nuclear material in the U.S. Caribbean Territories that is not in a facility, and is customarily used in amounts of one effective kilogram or less.” In order to accommodate these new requirements, the NRC is revising existing sections of 10 CFR part 75 that pertain to IAEA inspections. Under existing regulations, IAEA inspections were only applicable to “facilities,” under the U.S.-IAEA Safeguards Agreement. However, through the inclusion of the U.S.-IAEA Caribbean Territories Safeguards Agreement in the scope of 10 CFR part 75, the NRC is expanding the applicability of inspection-related sections to include possessors of nuclear material outside facilities.

C. Records and Reports

Possessors of nuclear material outside facilities in the U.S. Caribbean Territories will be subject to new recordkeeping and reporting requirements pursuant to the modified SQP. Articles 7, 12, 32, 47, 60, 66, 67, and 93 of the U.S.-IAEA Caribbean Territories Safeguards Agreement were either held in abeyance or not applicable; however, through the modification of the SQP, these Articles will now be applicable to possessors of nuclear material outside facilities. In order to accommodate these new requirements, the NRC revised existing sections of 10 CFR part 75 that pertain to records and reports. Under existing regulations, recordkeeping and reporting requirements were only applicable to “facilities” and “locations” (as defined in § 75.4). However, through the inclusion of the U.S.-IAEA Caribbean Territories Safeguards Agreement in the scope of 10 CFR part 75, the NRC is expanding the applicability of recordkeeping and reporting-related sections to include possessors of nuclear material outside facilities.

D. Terminations and Exemptions

The U.S. Government may request termination and exemption from IAEA safeguards for declared source or special nuclear material under Articles 11, 13, 33, 34, 35, and 36 of the U.S.-IAEA Caribbean Territories Safeguards Agreement. Previously, the U.S. Government had not utilized the termination and exemption provisions under the U.S.-IAEA Safeguards Agreement, therefore these provisions were not in the existing regulations in 10 CFR part 75. Due to the anticipated material types, quantities, and uses of nuclear material in the U.S. Caribbean Territories, as well as the fact that this safeguards agreement mimics a comprehensive safeguards agreement for a non-nuclear weapon state, the U.S. Government anticipates utilizing the exemption and termination provisions under the U.S.-IAEA Caribbean Territories Safeguards Agreement. As such, this final rule incorporates termination and exemption provisions into 10 CFR part 75.

E. New Definitions

Given the addition of the U.S.-IAEA Caribbean Territories Safeguards Agreement to the scope of 10 CFR part 75, it is necessary to specifically define and reference each individual safeguards agreement (i.e., “U.S.-IAEA Safeguards Agreement” and “U.S.-IAEA Caribbean Territories Safeguards Agreement”). This change is implemented throughout 10 CFR part 75 to ensure consistency in the use of terminology, and to distinguish between the requirements of each safeguards agreement. Furthermore, the new term “physical location” is added to 10 CFR part 75 to clarify the difference between geographic coordinates and the Additional Protocol term of art “location.” The term “nuclear material outside of facilities” was added as a new and distinct term that refers specifically to special nuclear and source material in the U.S. Caribbean Territories. This new term was necessary in order to distinguish the requirements of the U.S.-IAEA Caribbean Territories Safeguards Agreement from the requirements in the other safeguards agreements that utilize the terms of art “facilities” and “locations.” The term “U.S. Caribbean Territories” was added to refer to the territories covered by the U.S.-IAEA Caribbean Territories Safeguards Agreement.

F. General Administrative Matters

To enhance the clarity and consistency of the regulations, several new definitions are added, and other definitions are revised or removed. Additionally, this final rule incorporates conforming changes, punctuation, and grammatical edits. In several sections, a website link is added to reference existing NRC guidance documents to replace the requirement for the public to submit a written request for a copy of the guidance documents.

III. Rulemaking Procedure

Under the Administrative Procedure Act (5 U.S.C. 553(a)(1)), the normal notice and comment requirements do not apply if the rulemaking involves a military or foreign affairs function of the U.S. Since this final rule involves a foreign affairs function of the U.S., the notice and comment provisions of the Administrative Procedure Act do not apply (5 U.S.C. 553(a)(1)). This final rule will become effective 30 days after its publication in the Federal Register. The amendments are effective June 4, 2018.

IV. Section-by-Section Analysis PART 75—SAFEGUARDS ON NUCLEAR MATERIAL—IMPLEMENTATION OF US/IAEA AGREEMENT

This final rule revises the 10 CFR part 75 title to read: SAFEGUARDS ON NUCLEAR MATERIAL—IMPLEMENTATION OF SAFEGUARDS AGREEMENTS BETWEEN THE UNITED STATES AND THE INTERNATIONAL ATOMIC ENERGY AGENCY.

§ 75.1 Purpose.

This final rule revises § 75.1 to include all requirements under any safeguards agreement between the U.S. and the IAEA.

The purpose section is revised to make it generally applicable to all U.S.-IAEA safeguards agreements utilizing a new term “safeguards agreements.” “Safeguards agreements” includes the U.S.-IAEA Caribbean Territories Safeguards Agreement as well as other existing U.S.-IAEA safeguards agreements. The word “physical” is added in front of the word “location” (to read “physical location”).

§ 75.2 Scope.

This final rule revises § 75.2 to ensure that possessors of nuclear material outside facilities who are physically located in the U.S. Caribbean Territories are now included within the scope of the regulations in 10 CFR part 75. The previous text in § 75.2 is simplified to remove unnecessary and repetitive references to existing requirements already enumerated elsewhere in 10 CFR part 75. The national security exclusion, which previously only referenced the term “locations,” a term of art specifically relating to the Additional Protocol, is changed to reference “facilities or locations.”

§ 75.3 Exemptions.

This final rule revises § 75.3 to reference all safeguards agreements between the U.S. and the IAEA, using the defined term “safeguards agreements,” rather than list each agreement individually. “Safeguards agreements” includes the U.S.-IAEA Caribbean Territories Safeguards Agreement, as exemptions may apply to this agreement. Paragraph (b) is moved to new § 75.26, “Exemptions from IAEA safeguards.”

§ 75.4 Definitions.

This final rule revises § 75.4 by adding definitions to accommodate the inclusion of the SQP to the U.S.-IAEA Caribbean Territories Safeguards Agreement in a manner that avoids confusion with the existing safeguards agreements, removing a definition that was specific to only one safeguards agreement, and revising certain definitions to make them generally applicable to all safeguards agreements. The definition for Agreement is being removed; the definitions for Inventory change, Key measurement point, Location, and Safeguards Agreement are being revised; and the definitions for Nuclear Material Outside Facilities, Person, Physical location, Small Quantities Protocol, U.S. Caribbean Territories, U.S.-IAEA Caribbean Territories Safeguards Agreement, and U.S.-IAEA Safeguards Agreement are being added.

Agreement is being removed because it referred to one specific safeguards agreement; § 75.4 now includes and defines each specific safeguards agreement.

Inventory change is being revised to remove the words “source or special” from the definition because the term “nuclear material” is defined under this part to include only source or special nuclear material.

Key measurement point is being revised to include the word “physical” before the word “location” so as to remove any potential confusion between this usage and the term of art “location” as it is used specifically in the Additional Protocol.

Location is revised to read any geographical point or area subject to IAEA safeguards under the Additional Protocol because it was identified either by the U.S. in its declarations, or by the IAEA resulting from a question.

Safeguards Agreement is being revised to read “Safeguards Agreements” such that it includes all current safeguards agreements, protocols, and subsidiary arrangements, between the U.S. and the IAEA.

Nuclear material outside facilities is being added and means nuclear material in the U.S. Caribbean Territories that is not in a facility, and is customarily used in amounts of one effective kilogram or less.

Person is being added and means (1) any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, government agency other than the Commission or the U.S. Department of Energy (except that the Department shall be considered a person within the meaning of the regulations in this part to the extent that its facilities and activites are subject to the licensing and related regulatory authority of the Commission pursuant to law), any State or any political subdivision of, or any political entity within a State, any foreign government or nation or any political subdivision of any such government or nation, or other entity; and (2) any legal successor, representative, agent, or agency of the foregoing.

Physical location is being added to provide a definition that is specific to a geographic point or area where nuclear material or activity resides and to remove any potential confusion with the term of art “location” as it is used specifically in the Additional Protocol.

Small Quantities Protocol is being added and means the Small Quantities Protocol to the Agreement between the United States of America and the International Atomic Energy Agency for the Application of Safeguards in Connection with the Treaty for the Prohibition of Nuclear Weapons in Latin America (INFCIRC/366).

U.S. Caribbean Territories is being added and means those territories for which, de jure or de facto, the U.S. is internationally responsible and which lie within the limits of the geographical zone established in Article 4 of the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (Tlatelolco Treaty), which includes: Puerto Rico, the U.S. Virgin Islands, Navassa Island, Serranilla Bank, Baja Nuevo (Petrel Island), and the Guantanamo Bay Naval Base.

U.S.-IAEA Caribbean Territories Safeguards Agreement is being added and means the Agreement between the United States of America and the International Atomic Energy Agency for the Application of Safeguards in Connection with the Treaty for the Prohibition of Nuclear Weapons in Latin America (INFCIRC/366), and all protocols and subsidiary arrangements thereto.

U.S.-IAEA Safeguards Agreement is being added and means the Agreement between the United States of America and the IAEA for the Application of Safeguards in the United States (INFCIRC/288), and all protocols and subsidiary arrangements thereto.

§ 75.6 Facility and location reporting.

This final rule revises the heading for § 75.6 to read “Reporting requirements for facilities, locations, and nuclear material outside facilities.” The requirement to provide advance notification of imports, exports, or domestic transfers has been added to the table in paragraph (c) to correct an oversight from a previous rulemaking action. The letter ”C” is being added after “DOE/NRC Form 742” under the first item in the table under paragraph (c), to correct an oversight from a previous rulemaking action. The websites, https://www.nrc.gov/reading-rm/doc-collections/forms and www.AP.gov, where the forms listed in paragraphs (c) through (d) of § 75.6 can be accessed, are being added to correct an oversight from a previous rulemaking action. The phone number for the NRC Headquarters Operations Center (HOC) is being added to the table in paragraph (c) to clarify the means of contacting the HOC. Adding the terms “nuclear material outside facilities” and “safeguards agreements” to paragraph (b) of this section makes the U.S.-IAEA Caribbean Territories Safeguards Agreement generally applicable in this section. The section is being further revised to include accounting, recordkeeping, and reporting requirements for those entities subject to the U.S.-IAEA Caribbean Territories Safeguards Agreement that are physically located in the U.S. Caribbean Territories. These requirements are listed in the table under new paragraph (e) and pertain to the requirements as outlined in Parts I and II of the U.S.-IAEA Caribbean Territories Safeguards Agreement. Other conforming changes to account for the new information in paragraph (e) are being made throughout 10 CFR part 75 for consistency.

§ 75.7 Notification of IAEA safeguards.

This final rule reorders and revises § 75.7 for clarity and changes the reference to “Safeguards Agreement” to read “US-IAEA Safeguards Agreement,” and the reference to “facility or location” to read “facility.” Both changes in reference clarify that a selection for IAEA safeguards can only be made under the U.S.-IAEA Safeguards Agreement, and do not pertain to other referenced agreements in this part, such as the Additional Protocol or the U.S.-IAEA Caribbean Territories Safeguards Agreement. Minor editorial changes, such as changing “Commission” to read “NRC,” are also being made.

§ 75.8 IAEA inspections.

This final rule revises § 75.8 to include the term of art “nuclear material outside facilities,” which is specific to the U.S.-IAEA Caribbean Territories Safeguards Agreement, and is included in paragraphs (a)-(d), which state that the NRC will provide notice in writing if an IAEA inspection is to occur, and describe the procedures that must be followed to allow the IAEA access. Paragraph (a) is revised to include the SQP agreement as allowing for IAEA inspections. Paragraph (a)(1) is revised to add the types of inspections applicable to possessors of nuclear material outside facilities located in the U.S. Caribbean Territories, which are ad hoc and special inspections only. Paragraph (a)(4) is revised to replace the word “place” with the term physical location to be more specific in where IAEA inspections may take place. The requirements specific to inspections for nuclear material outside facilities are located in new paragraphs (h) and (i), which are parallel in structure to the requirements for “facilities.” The text in the original paragraph (h) is revised and redesignated as new paragraph (j). Minor editorial changes, such as changing “Commission” to read “NRC,” are also being made.

§ 75.9 Information collection requirements: OMB approval.

This final rule revises § 75.9 to add a reference to new § 75.12 to the list of approved information collection requirements in 10 CFR part 75.

Facility and Location Information

This final rule revises the undesignated center heading, “Facility and Location Information” to read “Information for Facilities, Locations, and Nuclear Material Outside Facilities.”

§ 75.10 Facility information.

This final rule revises the § 75.10 section heading to read “Facilities.” Other minor conforming changes are being made to this section including changing “Safeguards Agreement” to read “US-IAEA Safeguards Agreement” and to include the word “physical” before the word “location” to denote when an actual physical location is being specified and to distinguish it from the “location” term of art used specifically under the Additional Protocol. Minor editorial changes, such as changing “Commission” to read “NRC,” are also being made.

§ 75.11 Location information.

This final rule revises § 75.11 section heading to read “Locations.” Other conforming changes are being made to this section including adding the word “physical” before the word “location” to denote when an actual physical location is being specified and to distinguish it from the “location” term of art used specifically under the Additional Protocol. Minor editorial changes, such as changing “Commission” to read “NRC,” are also being made.

§ 75.12 Communication of information to IAEA is revised and redesignated as § 75.13 Communication of information to IAEA.

This final rule redesignates § 75.12 as new § 75.13 and adds new § 75.12, “Nuclear material outside facilities.” The records retention requirements in paragraphs (b)(1) and (b)(4) of this section have been moved to § 75.24, “Retention of records.” Minor conforming changes are being made including changing the references to individual safeguards agreements to refer collectively to all safeguards agreements between the U.S. and the IAEA, and adding new § 75.12 for requirements applicable only to the U.S. Caribbean Territories. Minor editorial changes, such as changing “Commission” to read “NRC,” are also being made.

§ 75.12 Nuclear material outside facilities.

This final rule adds new § 75.12, which provides details on the types of information possessors of nuclear material outside facilities physically located in the U.S. Caribbean Territories are required to report to the NRC on an annual basis, such as name, mailing address, use of nuclear material, etc.

Material Accounting and Control For Facilities

This final rule revises the undesignated center heading, “Material Accounting and Control For Facilities” to read “Material Accounting and Control” so that the subpart applies to all entities subject to material accounting and control requirements, not only to facilities.

§ 75.15 Facility attachments.

This final rule revises § 75.15 by making minor conforming changes, such as changing “Commission” to read “NRC” and changing “Safeguards Agreement” to read “U.S.-IAEA Safeguards Agreement.”

§ 75.21 General requirements.

This final rule revises § 75.21 by adding new paragraph (b) to include possessors of nuclear material outside facilities, and the requirement to establish, maintain, and follow written material accounting and control procedures, pursuant to the U.S.-IAEA Caribbean Territories Safeguards Agreement. The records retention requirements in paragraph (a) are moved to § 75.24, “Retention of records.” Minor conforming changes are being made to change the reference from “Safeguards Agreement” to read “U.S.-IAEA Safeguards Agreement” and by changing “Commission” to read “NRC.”

§ 75.24 Retention of records.

This final rule restructures and revises § 75.24 to include new paragraphs (a) and (b) to include the records retention requirements from § 75.21(a) and to specifically list who is required to retain records and to include the term of art “nuclear material outside facilities,” which is specific to the U.S.-IAEA Caribbean Territories Safeguards Agreement. Minor editorial changes, such as changing “Commission” to read “NRC,” are also being made.

IAEA Nuclear Material Exemptions and Terminations

This final rule adds a new undesignated center heading, “IAEA Nuclear Material Exemptions and Terminations.”

§ 75.26 Exemption from IAEA safeguards and § 75.27 Requirements for facilities, locations, and nuclear material outside facilities after issuance of IAEA exemptions.

This final rule adds new §§ 75.26 and 75.27 to describe the types of nuclear material upon which the U.S. Government may request an exemption from IAEA safeguards and to address the different requirements after such exemptions have been granted by the IAEA for facilities, locations, and nuclear material outside facilities.

§ 75.28 Termination from IAEA safeguards and § 75.29 Requirements for facilities, locations, and nuclear material outside facilities after termination from IAEA safeguards.

This final rule adds new §§ 75.28 and 75.29 to describe the conditions under which the U.S. Government may request the termination of IAEA safeguards and to address the different requirements after such terminations have been granted by the IAEA for facilities, locations, and nuclear material outside facilities.

§ 75.31 General requirements.

This final rule restructures § 75.31 to include new paragraphs (a) and (b) to address general accounting, recordkeeping, and reporting requirements for possessors of nuclear material outside facilities. Minor editorial changes, such as changing “Commission” to read “NRC,” are also being made.

§ 75.32 Initial inventory report.

This final rule revises § 75.32 to address the specific initial inventory reporting requirements for both licensees of facilities and possessors of nuclear material outside facilities and to make minor editorial changes. Paragraph (a) is revised and split into two paragraphs: (a) Licensees of facilities and (b) Possessors of nuclear material outside facilities. Paragraph (b) is revised and redesignated as new paragraph (c). Paragraph (c) is revised and redesignated as new paragraph (e). A new paragraph (d) is added. Minor editorial changes, such as changing “Commission” to read “NRC,” are also being made.

§ 75.33 Accounting reports.

This final rule revises § 75.33 by changing the name of the “Nuclear Material Transaction Report” to read “Inventory Change Report (Nuclear Material Transaction Report).”

§ 75.34 Inventory change reports.

This final rule revises § 75.34 to include possessors of nuclear material outside facilities in the requirement to submit inventory change reports and to include time submittal requirements. New paragraph (b)(4) is added to address the specific import requirements for possessors of nuclear material outside facilities. The previously undesignated sentence after paragraph (a)(2) but before paragraph (b) is revised and designated as paragraph (b)(3). The paragraphs previously designated (b)(1) and (2) are redesignated as paragraphs (c)(1) and (2) to explain when a U.S. Department of Energy (DOE)/NRC Form 740M must be completed. Websites that contain the Office of Management and Budget (OMB)-approved NUREG guidance documents are included in new paragraph (d). Minor editorial changes are being made, such as changing the name “Nuclear Material Transaction Reports” to read “Inventory Change Report (Nuclear Material Transaction Report).”

§ 75.35 Material status reports.

This final rule revises § 75.35 to include possessors of nuclear material outside facilities in the requirement to submit material status reports. New paragraphs (c)-(e) are being added. Paragraph (c) is added to include possessors of nuclear material outside facilities to the requirement to submit material status reports. Paragraph (d) is added to clarify when a material status report must be accompanied by DOE/NRC Form 740M. Paragraph (e) is added to clarify where the forms and their instructions may be accessed. Furthermore, a specific 12-month reporting period is being added. Minor editorial changes, such as changing “Commission” to read “NRC,” are also being made.

§ 75.36 Special reports.

This final rule revises § 75.36 to include possessors of nuclear material outside facilities in the requirements for submitting special reports. Paragraph (c) is removed and the text is revised and redesignated as paragraphs (b)(1) and (2). Minor editorial changes, such as changing “Commission” to read “NRC,” are also being made.

§ 75.43 Circumstances requiring advance notification.

This final rule revises § 75.43 by modifying paragraph (a) to make the section generally applicable to any person subject to any U.S.-IAEA safeguards agreement. Minor editorial changes, such as changing “Commission” to read “NRC,” are also being made.

§ 75.46 Expenses.

This final rule revises § 75.46 to make it generally applicable to any person subject to any U.S.-IAEA safeguards agreement. Minor editorial changes, such as changing “Commission” to read “NRC,” are also being made.

§ 75.53 Criminal penalties.

This final rule revises paragraph (b) by changing the reference § 75.12 to its new designation as § 75.13 and by adding new §§ 75.26 through 75.29.

V. Regulatory Flexibility Certification

Under the Regulatory Flexibility Act (5 U.S.C. 605(b)), the NRC certifies that this final rule will not have a significant economic impact on a substantial number of small entities. This final rule affects two “small entities” as defined by the Regulatory Flexibility Act or the size standards established by the NRC (10 CFR 2.810).

VI. Regulatory Analysis

A regulatory analysis has not been prepared for this final rule. The information reported is necessary to satisfy U.S. Government obligations with the IAEA under the Agreement between the U.S. and the IAEA for the application of safeguards in connection with the Treaty for the Prohibition of Nuclear Weapons in Latin America, (INFCIRC/366 or “U.S.-IAEA Caribbean Territories Safeguards Agreement”).

VII. Backfitting and Issue Finality

The NRC has determined that the backfit rule (§§ 50.109, 70.76, 72.62, or 76.76) does not apply to this final rule because this amendment does not involve any provisions that would impose backfits as defined in the backfit rule. Implementation of the U.S.-IAEA Caribbean Territories Safeguards Agreement and its modified SQP will not involve backfitting or issue finality considerations. The entities subject to the revised requirements needed to implement the modified SQP are not accorded backfitting or issue finality protection. Therefore, a backfit analysis is not required.

VIII. Cumulative Effects of Regulation

This final rule will take maximum advantage of the existing requirements in 10 CFR part 75 for those persons possessing nuclear material to maintain records of their receipt, shipment, and disposal of nuclear material and to submit reports on their holdings of nuclear material. Furthermore, the NRC will use existing OMB approved forms for reporting information on nuclear material.

IX. Plain Writing

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).

X. Environmental Impact: Categorical Exclusion

The NRC has determined that this final rule is the type of action described in 10 CFR 51.22(c)(1), which categorically excludes from environmental review rules that are corrective or of a minor, nonpolicy nature and do not substantially modify existing regulations. Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this final rule.

XI. Paperwork Reduction Act

This final rule contains a revision to existing collections of information subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). The collections of information were approved by the OMB, approval numbers 3150-0003, 3150-0004, 3150-0055, 3150-0057, and 3150-0058.

The burden to the public for the information collection(s) is estimated to average 3 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the information collection.

Persons licensed to possess specified quantities of nuclear material currently report inventory and transaction of material to the Nuclear Materials Management and Safeguards System via the DOE/NRC Forms: DOE/NRC Form 740M, Concise Note; DOE/NRC Form 741, Nuclear Material Transaction Report; DOE/NRC Form 742, Material Balance Report; and DOE/NRC Form 742C, Physical Inventory Listing. This collection is being renewed to include approximately 25 entities (9 have been identified) subject to the U.S.-IAEA Caribbean Territories Safeguards Agreement (INFCIRC/366). Part 75 of 10 CFR requires licensees to provide reports of nuclear material inventory and flow for entities under the U.S.-IAEA Caribbean Territories Safeguards Agreement (INFCIRC/366), permit inspections by IAEA inspectors, give immediate notice to the NRC in specified situations involving the possibility of loss of nuclear material, and give notice for imports and exports of specified amounts of nuclear material. These licensees will also follow written material accounting and control procedures, although actual reporting of transfer and material balance records to the IAEA will be done through the U.S. State System of Accounting and Control (Nuclear Materials Management and Safeguards System, collected under OMB clearance numbers 3150-0003, 3150-0004, 3150-0055, 3150-0057, and 3150-0058).

The NRC needs this information to implement its international safeguards obligations under the U.S.-IAEA Caribbean Territories Safeguards Agreement (INFCIRC/366).

You may submit comments on any aspect of the information collection(s), including suggestions for reducing the burden, by the following methods:

Federal rulemaking website: Go to http://www.regulations.gov and search for Docket ID NRC-2015-0263.

Mail comments to: Information Services Branch, Office of the Chief Information Officer, Mail Stop: T-2 F43, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001 or to Aaron Szabo, Desk Officer, Office of Information and Regulatory Affairs (3150-0004, -0005, -0055, -0056, and -0057), NEOB-10202, Office of Management and Budget, Washington, DC 20503; telephone: 202-395-3621, email: [email protected]

Public Protection Notification

The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the document requesting or requiring the collection displays a currently valid OMB control number.

XII. Congressional Review Act

This final rule is a rule as defined in the Congressional Review Act (5 U.S.C. 801-808). However, OMB has not found it to be a major rule as defined in the Congressional Review Act.

XIII. Agreement State Compatibility

Under the “Policy Statement on Adequacy and Compatibility of Agreement State Programs” approved by the Commission on June 30, 1997, and published in the Federal Register on September 3, 1997 (62 FR 46517), this rule is classified as Compatibility Category “NRC.” Compatibility is not required for Category “NRC” regulations. The NRC program elements in this category are those that relate directly to areas of regulation reserved to the NRC by the Atomic Energy Act of 1954, as amended, or the provisions of title 10 of the Code of Federal Regulations. Although an Agreement State may not adopt program elements reserved to NRC, it may wish to inform its licensees of certain requirements via a mechanism that is consistent with the particular State's administrative procedure laws but does not confer regulatory authority on the State.

XIV. Availability of Guidance

The NRC has revised NUREG/BR-0006, “Instructions for Completing Nuclear Material Transaction Reports” (ADAMS Accession Nos. ML17026A069), and NUREG/BR-0007, “Instructions for the Preparation and Distribution of Material Status Reports” (Accession Nos. ML17026A076), to add an SQP-specific appendix. Public comment will be sought by the NRC for the next revisions of NUREG/BR-0006 and NUREG/BR-0007 (separate from this final rule), anticipated in calendar year 2018.

List of Subjects in 10 CFR Part 75

Criminal penalties, Intergovernmental relations, Nuclear energy, Nuclear materials, Nuclear power plants and reactors, Penalties, Reporting and recordkeeping requirements, Security measures, Treaties.

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR part 75:

PART 75—SAFEGUARDS ON NUCLEAR MATERIAL—IMPLEMENTATION OF SAFEGUARDS AGREEMENTS BETWEEN THE UNITED STATES AND THE INTERNATIONAL ATOMIC ENERGY AGENCY 1. The authority citation for part 75 continues to read as follows: Authority:

Atomic Energy Act of 1954, secs. 53, 63, 103, 104, 122, 161, 223, 234, 1701 (42 U.S.C. 2073, 2093, 2133, 2134, 2152, 2201, 2273, 2282, 2297f); Energy Reorganization Act of 1974, sec. 201 (42 U.S.C. 5841); Nuclear Waste Policy Act of 1982, secs. 135, 141 (42 U.S.C. 10155, 10161); 44 U.S.C. 3504 note.

2. Revise the heading of part 75 to read as set forth above. 3. Revise § 75.1 to read as follows:
§ 75.1 Purpose.

The purpose of this part is to implement the requirements established by the safeguards agreements between the United States (U.S.) and the International Atomic Energy Agency (IAEA). This part contains requirements to ensure that the U.S. meets its nuclear non-proliferation obligations under the safeguards agreements. These obligations include providing information to the IAEA on the physical location of applicant, licensee, or certificate holder activities; information on source and special nuclear materials; and access to the physical location of applicant, licensee, or certificate holder activities. These obligations are similar to the obligations accepted by other countries.

4. Revise § 75.2 to read as follows:
§ 75.2 Scope.

(a) The regulations in this part apply to all persons licensed by the Nuclear Regulatory Commission (NRC) or an Agreement State; who hold a certificate of compliance, construction permit or authorization issued by the NRC; who have filed an application with the NRC to construct a facility or to receive source or special nuclear material; or who possess source or special nuclear material subject to NRC regulation under 10 CFR Chapter I.

(b) The regulations in this part do not apply to facilities or locations determined by the U.S. Government to be associated with activities or information of direct national security significance.

5. Revise § 75.3 to read as follows:
§ 75.3 Exemptions.

The NRC may, upon application of any interested person or upon its own initiative, grant exemptions from the requirements of this part that it determines are authorized by law and consistent with the safeguards agreements, are not inimical to the common defense and security, and are otherwise in the public interest.

6. Amend § 75.4 by: a. Removing the definition of Agreement; b. Revising the definitions of Inventory change, Key measurement point, and Location; c. Adding definitions in alphabetical order for Nuclear Material Outside Facilities, Person, and Physical location; d. Remove the definition for Safeguards Agreement; e. Adding definitions in alphabetical order for Safeguards Agreements, Small Quantities Protocol, U.S. Caribbean Territories, U.S.-IAEA Caribbean Territories Safeguards Agreement, and U.S.-IAEA Safeguards Agreement.

The revisions and additions read as follows:

§ 75.4 Definitions.

Inventory change means an increase or decrease in the quantity of nuclear material in an IAEA material balance area.

Key measurement point means a physical location where nuclear material appears in such a form that it may be measured to determine material flow or inventory. Key measurement points include, but are not limited to, inputs and outputs (including measured discards) and storages in IAEA material balance areas.

Location means any geographical point or area subject to IAEA safeguards under the Additional Protocol because it was identified either by the U.S. in its declarations, or by the IAEA resulting from a question.

Nuclear material outside facilities means nuclear material in the U.S. Caribbean Territories that is not in a facility, and is customarily used in amounts of one effective kilogram or less.

Person means:

(1) Any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, government agency other than the Commission or the U.S. Department of Energy (except that the Department shall be considered a person within the meaning of the regulations in this part to the extent that its facilities and activities are subject to the licensing and related regulatory authority of the Commission pursuant to law) any State or any political subdivision of, or any political entity within a State, any foreign government or nation or any political subdivision of any such government or nation, or other entity; and

(2) Any legal successor, representative, agent, or agency of the foregoing.

Physical location means a specific geographical point or area, where either nuclear material subject to Safeguards Agreements resides or an activity subject to the Safeguards Agreements occurs.

Safeguards Agreements means the Agreement between the United States of America and the IAEA for the Application of Safeguards in the United States (INFCIRC/288) and all protocols and subsidiary arrangements thereto, and the Agreement between the United States and the International Atomic Energy Agency for the Application of Safeguards in Connection with the Treaty for the Prohibition of Nuclear Weapons in Latin America (INFCIRC/366) and all protocols and subsidiary arrangements thereto.

Small Quantities Protocol means the Small Quantities Protocol to the Agreement between the United States of America and the International Atomic Energy Agency for the Application of Safeguards in Connection with the Treaty for the Prohibition of Nuclear Weapons in Latin America (INFCIRC/366).

U.S. Caribbean Territories means those territories for which, de jure or de facto, the U.S. is internationally responsible and which lie within the limits of the geographical zone established in Article 4 of the Treaty for the Prohibition of Nuclear Weapons in Latin America and the Caribbean (Tlatelolco Treaty), which includes: Puerto Rico, the U.S. Virgin Islands, Navassa Island, Serranilla Bank, Baja Nuevo (Petrel Island), and the Guantanamo Bay Naval Base.

U.S.-IAEA Caribbean Territories Safeguards Agreement means the Agreement between the United States of America and the IAEA for the Application of Safeguards in Connection with the Treaty for the Prohibition of Nuclear Weapons in Latin America (INFCIRC/366), and all protocols and subsidiary arrangements thereto.

U.S.-IAEA Safeguards Agreement means the Agreement between the United States of America and the International Atomic Energy Agency for the Application of Safeguards in the United States (INFCIRC/288), and all protocols and subsidiary arrangements thereto.

7. Amend § 75.6 by revising section heading and paragraphs (b) and (c) and adding paragraph (e) to read as follows:
§ 75.6 Reporting requirements for facilities, locations, and nuclear material outside facilities.

(b) Each applicant, licensee, certificate holder, or possessor of nuclear material outside facilities, who has been given notice by the NRC in writing that it is required to report under Safeguards Agreements for its facility, nuclear material outside facilities, or location, shall make its initial and subsequent reports, including attachments, in an appropriate format defined in the instructions. The DOE/NRC forms and their instructions may be accessed at https://www.nrc.gov/reading-rm/doc-collections/forms. The AP-A and associated forms may be accessed at www.AP.gov.

(c) Facilities—Specific information regarding facilities is to be reported as follows:

Item Section Manner of delivery Initial Inventory Report 75.32 As specified by printed instructions for preparation of DOE/NRC Form-742C. Inventory Change Reports 75.34 As specified by printed instructions for preparation of DOE/NRC Form-741 and Form-740M. Material Status Reports 75.35 As specified by printed instructions for preparation of DOE/NRC Form-742, Form-742C, and Form-740M. Special Reports 75.36 To the NRC Headquarters Operations Center (commercial telephone number 301-816-5100). Advance Notification of Import and Exports or of Domestic Transfers 75.43 In writing to the NRC, as specified in 75.6(a), 75.44, and 75.45. Facility information 75.10(d) As specified by printed instructions for Form N-71 and associated forms. Site information 75.10(e) As specified by printed instructions for preparation of DOC/NRC Form AP-A and associated forms.

(e) Nuclear material outside facilities—Specific information regarding nuclear material outside facilities in the U.S. Caribbean Territories is to be reported as follows:

Item Section Manner of delivery Initial Inventory Report 75.32 As specified by printed instructions for preparation of DOE/NRC Form-742C and DOE/NRC Form 740M. Inventory Change Reports 75.34 As specified by printed instructions for preparation of DOE/NRC Form-741 and DOE/NRC Form-740M. Material Status Reports 75.35 As specified by printed instructions for preparation of DOE/NRC Form-742, DOE/NRC Form-742C, and DOE/NRC Form-740M. Special Reports 75.36 To the NRC Headquarters Operations Center (commercial telephone number 301-816-5100). Advance Notification of Import and Exports or of Domestic Transfers 75.43 In writing to the NRC, as specified in 75.6(a), 75.43, 75.44, and 75.45. Nuclear Material Outside Facilities Information 75.12 As specified by printed instructions for preparation of DOE/NRC Form 740M.
8. Revise § 75.7 to read as follows:
§ 75.7 Notification of IAEA safeguards.

(a) The NRC, by written notice, will inform the applicant, licensee, or certificate holder of those facilities subject to the application of IAEA safeguards under the U.S.-IAEA Safeguards Agreement.

(b) The licensee must inform the NRC in accordance with § 75.6(c):

(1) Before the licensee begins an activity that may be subject to the U.S-IAEA Safeguards Agreement; or

(2) Within 30 days of beginning an activity subject to the Additional Protocol.

(c) The notice provided under paragraph (a) of this section is effective until the NRC informs the licensee or certificate holder, in writing, that its facility is no longer so designated. Whenever a previously designated facility is no longer subject to the application of IAEA safeguards under the U.S.-IAEA Safeguards Agreement, the NRC will give the licensee or certificate holder prompt notice to that effect.

9. In § 75.8, revise paragraphs (a) introductory text, (a)(1) and (4), and (b) through (d); redesignate paragraph (h) as paragraph (j) and revise it, and add new paragraph (h) and paragraph (i) to read as follows:
§ 75.8 IAEA inspections.

(a) As provided in the U.S.-IAEA Safeguards Agreement and Additional Protocol, inspections may be ad hoc, routine, special, or a complementary access (or a combination of the foregoing). As provided in the Small Quantities Protocol of the U.S.-IAEA Caribbean Territories Safeguards Agreement, inspections may be ad hoc or special. The objectives of the IAEA inspectors in the performance of inspections are as follows:

(1) Ad hoc inspections to verify information contained in the licensee's, applicant's, certificate holder's, or possessor's of nuclear material outside facilities facility information or initial inventory report, or to identify and verify changes in the situation that have occurred after the inventory date under § 75.32(a) or (b) at any physical location where the initial inventory report or any inspections carried out indicate that nuclear material subject to safeguards pursuant to the Safeguards Agreements may be present;

(4) Special inspections may be conducted at any of the physical locations specified above and any additional places where the NRC (in coordination with other Federal agencies), in response to an IAEA request, finds access to be necessary;

(b) The NRC will notify the applicant, licensee, certificate holder, or possessor of nuclear material outside facilities of each such inspection or complementary access in writing as soon as possible after receiving the IAEA's notice from the U.S. Department of State. The applicant, licensee, certificate holder, or possessor of nuclear material outside facilities should consult with the NRC immediately if the inspection or complementary access would unduly interfere with its activities or if its key personnel cannot be available.

(c) Each applicant, licensee, certificate holder, or possessor of nuclear material outside facilities subject to the provisions of this part shall recognize as a duly authorized representative of the IAEA any person bearing IAEA credentials for whom the NRC has provided written or electronic authorization that the IAEA representative is permitted to conduct inspection activities on specified dates. If the IAEA representative's credentials have not been confirmed by the NRC, the applicant, licensee, certificate holder, or possessor of nuclear material outside facilities shall not admit the person until the NRC has confirmed the person's credentials. The applicant, licensee, certificate holder, or possessor of nuclear material outside facilities shall notify the NRC promptly, by telephone, whenever an IAEA representative arrives at a facility, nuclear material outside facilities, or location without advance notification. The applicant, licensee, certificate holder, or possessor of nuclear material outside facilities shall also contact the NRC, by telephone, within 1 hour with respect to the credentials of any person who claims to be an IAEA representative and shall accept written or electronic confirmation of the credentials from the NRC. Confirmation may be requested through the NRC Operations Center (commercial telephone number 301-816-5100).

(d) Each applicant, licensee, certificate holder, or possessor of nuclear material outside facilities subject to the provisions of this part shall allow the IAEA opportunity to conduct an NRC-approved inspection or complementary access of the facility, nuclear material outside facilities, or location to verify the information submitted under §§ 75.10 through 75.12 and 75.31 through 75.43. The NRC will assign an employee to accompany IAEA representative(s) at all times during the inspection or complementary access. The applicant, licensee, certificate holder, or possessor of nuclear material outside facilities may accompany IAEA representatives who inspect or access the facility, nuclear material outside facilities, or location. The IAEA representatives should not be delayed or otherwise impeded in the exercise of their duties.

(h) Each possessor of nuclear material outside facilities shall permit the IAEA, in conducting an ad hoc or special inspection for nuclear material outside facilities, to:

(1) Observe that the measurements of nuclear material at key measurement points for material balance accounting are representative;

(2) Verify the function and calibration of instruments and other measurement control equipment;

(3) Observe that samples at key measurement points for material balance accounting are taken in accordance with procedures that produce representative samples, observe the treatment and analysis of the samples, and obtain duplicates of these samples;

(4) Arrange to use the IAEA's own equipment for independent measurement and surveillance; and

(5) Perform other measures requested by the IAEA and approved by the NRC.

(i) Each possessor of nuclear material outside facilities shall, at the request of an IAEA inspector during an ad hoc or special inspection for nuclear material outside facilities:

(1) Ship material accountancy samples taken for the IAEA's use, in accordance with applicable packaging and export licensing regulations, by the method of carriage and to the address specified by the inspector; and

(2) Take other actions contemplated by the U.S.-IAEA Caribbean Territories Safeguards Agreement and included in the safeguards approach approved by the United States and the IAEA, including but not limited to the following examples:

(i) Enabling the IAEA to arrange to install its equipment for measurement and surveillance;

(ii) Enabling the IAEA to apply its seals and other identifying and tamper-indicating devices to containers;

(iii) Making additional measurements and taking additional samples for the IAEA's use;

(iv) Analyzing the IAEA's standard analytical samples;

(v) Using appropriate standards in calibrating instruments and other equipment; and

(vi) Carrying out other calibrations.

(j) Nothing in this section requires or authorizes an applicant, licensee, certificate holder, or possessor of nuclear material outside facilities to carry out any operation that would otherwise constitute a violation of the terms of any applicable license, regulation, or order of the NRC.

§ 75.9 [Amended]
10. In § 75.9, in paragraph (b), add the number “75.12” in numerical order. 11. Revise the undesignated center heading “FACILITY AND LOCATION INFORMATION” to read “INFORMATION FOR FACILITIES, LOCATIONS, AND NUCLEAR MATERIAL OUTSIDE FACILITIES”. 12. In § 75.10: a. Revise the section heading; b. In paragraphs (a) and (c)(2) remove the phrase “Safeguards Agreement” wherever it may appear and add in its place the phrase “U.S.-IAEA Safeguards Agreement”; c. In paragraphs (b)(1) and (2) and (d)(5), remove the word “location” and add in its place the phrase “physical location”; and d. Wherever it may appear, remove the word “Commission” and add in its place the word “NRC”.

The revision reads as follows:

§ 75.10 Facilities.
13. In § 75.11: a. Revise the section heading; b. Remove the word “Commission” and add in its place the word “NRC” in the introductory text; and c. In paragraphs (b)(1) and (3) and (5) through (7), wherever it may appear, remove the word “location” and add in its place the phrase “physical location”.

The revision reads as follows:

§ 75.11 Locations.
§ 75.12 [Redesignated as § 75.13]
14. Redesignate § 75.12 as § 75.13 and revise it add new § 75.12 to read as follows:
§ 75.12 Nuclear material outside facilities.

A possessor of nuclear material outside facilities shall provide to the NRC the possessor's name and mailing address, physical location of the nuclear material, use of nuclear material, and nuclear material accounting and control procedures, including organizational responsibilities for accountancy and control. This information must be provided annually with the material status report in accordance with §§ 75.6(e) and 75.35(c).

§ 75.13 Communication of information to the International Atomic Energy Agency (IAEA).

(a) Except as otherwise provided in this section, the NRC will furnish to the IAEA all information submitted under §§ 75.10, 75.11, 75.12, and 75.31 through 75.43.

(b)(1) An applicant, licensee, certificate holder, or possessor of nuclear material outside facilities may request that information of particular sensitivity, that it customarily holds in confidence, not be transmitted physically to the IAEA. An applicant, licensee, certificate holder, or possessor of nuclear material outside facilities who makes this request shall, at the time the information is submitted, identify the pertinent document or part thereof and make a full statement of the reasons supporting the request.

(2) In considering such a request, it is the policy of the NRC to achieve an effective balance between legitimate concerns of licensees, applicants, certificate holders, or possessors of nuclear material outside facilities, including protection of the competitive position of the owner of the information, and the undertaking of the United States to cooperate with the IAEA to facilitate the implementation of the safeguards provided for in the Safeguards Agreements. The NRC will take into account the obligation of the IAEA to take every precaution to protect commercial and industrial secrets and other confidential information coming to its knowledge in the implementation of the safeguards agreements.

(3) A request made under § 2.390 of this chapter will not be treated as a request under this section unless the application makes specific reference to this section, nor shall a determination to withhold information from public disclosure necessarily require a determination that such information not be transmitted physically to the IAEA.

(4) If a request is granted, the NRC will determine a physical location where the information will remain readily available for examination by the IAEA and will so inform the applicant, licensee, certificate holder, or possessor of nuclear material outside facilities.

(c) A request made under § 2.390(b) of this chapter will not be treated as a request under this section unless the application makes specific reference to this section, nor shall a determination to withhold information from public disclosure necessarily require a determination that this information not be transmitted physically to the IAEA.

(d) Where consistent with the Safeguards Agreements, the NRC may at its own initiative, or at the request of a licensee, determine that any information submitted under §§ 75.10, 75.11, and 75.12 shall not be physically transmitted to, or made available for examination by, the IAEA.

15. Revise the undesignated center heading “MATERIAL ACCOUNTING AND CONTROL FOR FACILITIES” to read “MATERIAL ACCOUNTING AND CONTROL”.
§ 75.15 [Amended]
16. In § 75.15: a. Wherever it may appear, remove the phrase “Safeguards Agreement” and add in its place the phrase “U.S.-IAEA Safeguards Agreement”; and b. Wherever it may appear, remove the word “Commission” and add in its place the word “NRC”. 17. In § 75.21, revise paragraph (a), redesignate paragraphs (b) through (d) as paragraphs (c) through (e), and add new paragraph (b) to read as follows:
§ 75.21 General requirements.

(a) Each licensee or certificate holder who has been given notice by the NRC in writing that its facility has been identified under the U.S.-IAEA Safeguards Agreement shall establish, maintain, and follow written material accounting and control procedures.

(b) Each possessor of nuclear material outside facilities in the U.S. Caribbean Territories shall establish, maintain, and follow written material accounting and control procedures.

18. Revise § 75.24 to read as follows:
§ 75.24 Retention of records.

(a) The applicant, licensee, certificate holder, or possessor of nuclear material outside facilities shall retain as a record any request made pursuant to §§ 75.13(b)(1), 75.13(b)(4), and 75.21 and documents related to that request, which are either prepared or received by that entity, until the NRC terminates the license or certificate, or until the entity no longer possesses nuclear material, whichever occurs later. When records required by these sections are superseded, these records must be retained for 3 years after each change is made.

(b) The applicant, licensee, certificate holder, or possessor of nuclear material outside facilities shall retain the records referred to in §§ 75.22 and 75.23 for at least 5 years.

19. Under § 75.24, add a new undesignated center heading and new §§ 75.26 through 75.29 to read as follows: IAEA Nuclear Material Exemptions and Terminations Sec. 75.26 Exemption from IAEA safeguards. 75.27 Requirements for facilities, locations, and nuclear material outside facilities after issuance of IAEA exemptions. 75.28 Termination from IAEA safeguards. 75.29 Requirements for facilities, locations, and nuclear material outside facilities after termination from IAEA safeguards.
§ 75.26 Exemption from IAEA safeguards.

(a) The U.S. Government may request from the IAEA an exemption from IAEA safeguards with respect to nuclear material of the following types:

(1) Source and special nuclear material in gram quantities or less as a sensing component in instruments;

(2) Nuclear material used in nonnuclear activities; and

(3) Plutonium with an isotopic concentration of plutonium-238 exceeding 80 percent.

(b) Nuclear material exempted under paragraph (a) of this section must not exceed the quantity limits specified in the Safeguards Agreements.

(c) The NRC shall provide a prompt notification of an exemption issued by the IAEA to the applicable licensee, certificate holder, or nuclear material outside facilities.

§ 75.27 Requirements for facilities, locations, and nuclear material outside facilities after issuance of IAEA exemptions.

(a) Licensees of facilities. After the NRC has notified a licensee of a facility under § 75.26(c) that the IAEA has approved the exemption requested under § 75.26(a) of this part, the licensee:

(1) Shall submit reports to the NRC pursuant to §§ 75.6(c) and 75.31(a); and

(2) Shall not export any nuclear material identified under § 75.26 until the NRC notifies the licensee that IAEA safeguards under the U.S.-IAEA Safeguards Agreement have been re-applied.

(b) Licensees of locations. A licensee of a location shall provide annual updates pursuant to § 75.11(c) following notification from the NRC that the IAEA has approved the exemption requested under § 75.26.

(c) Possessors of nuclear material outside facilities. After the NRC has notified a possessor of nuclear material outside facilities under § 75.6(c) that the IAEA has approved the exemption requested under § 75.26(a), a possessor of nuclear material outside facilities:

(1) Shall submit reports to the NRC pursuant to §§ 75.6(e) and 75.31(b); and

(2) Shall not export out of the U.S. Caribbean Territories any nuclear material identified under § 75.26 until the NRC notifies the possessor that IAEA safeguards under the U.S.-IAEA Caribbean Territories Safeguards Agreement have been re-applied.

(d) Prohibition against commingling of nuclear material in storage. Licensees of facilities, licensees of locations, and possessors of nuclear material outside facilities shall not store nuclear material exempted under § 75.26 together with nuclear material subject to Safeguards Agreements.

(e) Nuclear material exempted from IAEA safeguards under § 75.26 is not subject to inspections by the IAEA.

§ 75.28 Termination from IAEA safeguards.

(a) Upon request of the U.S. Government, the IAEA may terminate IAEA safeguards on nuclear material that has been consumed, or has been diluted in such a way that it is no longer usable for any nuclear activity relevant from the point of view of safeguards, or has become practicably irrecoverable.

(b) The NRC will notify the affected licensees, certificate holders, and nuclear material outside facilities of the IAEA's termination of IAEA safeguards.

§ 75.29 Requirements for facilities, locations, and nuclear material outside facilities after termination from IAEA safeguards.

(a) Licensees of facilities. A licensee of a facility shall submit an Inventory Change Report pursuant to §§ 75.6(c) and 75.31(a) following notification from the NRC that IAEA safeguards have been terminated as described in § 75.28.

(b) Licensees of locations. A licensee of a location shall provide annual updates pursuant to § 75.11(c) following notification from the NRC that IAEA safeguards have been terminated as described in § 75.28.

(c) Possessors of nuclear material outside facilities. A possessor of nuclear material outside facilities shall submit an Inventory Change Report pursuant to §§ 75.6(e) and 75.31(b) following notification from the NRC that IAEA safeguards have been terminated as described in § 75.28.

(d) Nuclear material that has had IAEA safeguards terminated as described in § 75.28 is not subject to inspections by the IAEA.

20. Revise § 75.31 to read as follows:
§ 75.31 General requirements.

(a) Each licensee or certificate holder who has been given notice by the NRC under § 75.7 that its facility has been identified under the U.S.-IAEA Safeguards Agreement shall make, in an appropriate computer-readable format, an initial inventory report, and thereafter shall make accounting reports, with respect to the facility and, in addition, licensees or certificate holders who have been given notice, under § 75.7 that their facilities are subject to the application of IAEA safeguards, shall make the special reports described in § 75.36. These reports must be based on the records kept under § 75.21. At the request of the NRC, the licensee or certificate holder shall amplify or clarify any report with respect to any matter relevant to implementation of the U.S.-IAEA Safeguards Agreement. Any amplification or clarification must be in writing and must be submitted, to the address specified in the request, within 20 days of the date of the request or other time as may be specified by the NRC.

(b) Each possessor of nuclear material outside facilities (possessor) subject to the U.S.-IAEA Caribbean Territories Safeguards Agreement shall make, in an appropriate computer-readable format, an initial inventory report in accordance with § 75.32 of this report. Thereafter, that possessor shall make accounting reports as described in §§ 75.33 through 75.35 and special reports as described in § 75.36. These reports must be based on the records kept under § 75.21(b). At the request of the NRC, the possessor shall amplify or clarify any report with respect to any matter relevant to implementation of the U.S.-IAEA Caribbean Territories Safeguards Agreement. Any amplification or clarification must be in writing and must be submitted, to the address specified in the request, within 20 days of the date of the request or other time as may be specified by the NRC.

21. Revise § 75.32 to read as follows:
§ 75.32 Initial inventory report.

(a) Licensees of facilities. The initial inventory report must show the quantities of nuclear material at a facility. The quantities reported in the initial inventory report must be accurate as of the last day of the calendar month in which the NRC gives notice to the licensee or certificate holder that an initial inventory report is required (the “inventory date” on DOE/NRC Form 742C).

(b) Possessors of nuclear material outside facilities. The initial inventory report must show the quantities of nuclear material outside facilities. The quantities reported in the initial inventory report must be accurate as of the last day of the calendar month in which the possessor of nuclear material outside facilities becomes subject to the requirements of this part (the “inventory date” on DOE/NRC Form 742C).

(c) Initial inventory report. The information in the initial inventory report may be based upon the accounting records. The initial inventory report must be submitted to the NRC on DOE/NRC Form 742C in accordance with the instructions in NUREG/BR-0007 and NMMSS Report D-24 “Personal Computer Data Input for NRC Licensees.” Copies of the instructions for completing DOE/NRC Form 742C and DOE/NRC Form 740M may be obtained from the following websites: http://www.nrc.gov/reading-rm/doc-collections/nuregs/brochures and https://nnsa.energy.gov/aboutus/ourprograms/nuclearsecurity/nmmsshome/nmmssinfo/nmmssreports.

(d) Report forms. DOE/NRC Form 742C must be accompanied by DOE/NRC Form 740M if any batch of source material reported in DOE/NRC Form 742C is equal to or less than 0.4 kg.

(e) Report submission. The initial inventory report must be submitted to the NRC no later than 20 days after the inventory date.

22. In § 75.33, revise (a)(1)(i) to read as follows:
§ 75.33 Accounting reports.

(a)(1) * * *

(i) Inventory Change Reports (Nuclear Material Transaction Report); and

23. Revise § 75.34 to read as follows:
§ 75.34 Inventory change reports.

(a) Each licensee of a facility, certificate holder, or possessor of nuclear material outside facilities who transfers nuclear material subject to IAEA safeguards shall submit an Inventory Change Report (Nuclear Material Transaction Report) to the NRC no later than the close of business the next working day after each transfer, in accordance with the instructions in NUREG/BR-0006 and NMMSS Report D-24 “Personal Computer Data Input for NRC Licensees.” Each licensee of a facility, certificate holder, or possessor of nuclear material outside facilities who receives nuclear material subject to IAEA safeguards shall submit an Inventory Change Report to the NRC. Inventory Change Reports for receipts must be submitted within 10 days after the material is received, in accordance with the instructions in NUREG/BR-0006 and NMMSS Report D-24 “Personal Computer Data Input for NRC Licensees.” Copies of the instructions for completing DOE/NRC Form 741 and DOE/NRC Form 740M may be obtained from the following websites: http://www.nrc.gov/reading-rm/doc-collections/nuregs/brochures and https://nnsa.energy.gov/aboutus/ourprograms/nuclearsecurity/nmmsshome/nmmssinfo/nmmssreports.

(b) An Inventory Change Report (Nuclear Material Transaction Report) must specify identification and batch data for each batch of nuclear material, the date of the inventory change, and, as appropriate:

(1) The originating IAEA material balance area or the shipper; and

(2) The receiving IAEA material balance area or the recipient.

(3) Each person who receives any nuclear material from a foreign source shall complete both the supplier's and receiver's portion of DOE/NRC Form 741.

(4) Each person in the U.S. Caribbean Territories who receives nuclear material from the U.S. outside the U.S. Caribbean Territories shall complete both the supplier's and receiver's portion of DOE/NRC Form 741.

(c) An Inventory Change Report must be accompanied by DOE/NRC Form 740M whenever it is necessary to:

(1) Explain the inventory changes set forth in the operating records required by § 75.23; or

(2) Describe, to the extent specified in the license conditions, the anticipated operational program for the facility, including, but not limited to, the schedule for taking physical inventory.

(d) Copies of the instructions for completing DOE/NRC Form 741 and DOE/NRC Form 740M may be obtained from the following websites: http://www.nrc.gov/reading-rm/doc-collections/nuregs/brochures and https://nnsa.energy.gov/aboutus/ourprograms/nuclearsecurity/nmmsshome/nmmssinfo/nmmssreports.

24. Revise § 75.35 to read as follows:
§ 75.35 Material status reports.

(a) Each licensee of a facility, certificate holder, or possessor of nuclear material outside facilities with nuclear materials subject to IAEA safeguards shall submit a material status report for each physical inventory taken in accordance with the material accounting and control procedures required by § 75.21. The material status report must include a DOE/NRC Form 742 and a DOE/NRC Form 742C, which lists all batches separately and specifies material identification and batch data for each batch. The reports described in this section must be prepared and submitted in accordance with instructions in NUREG/BR-0006, NUREG/BR-0007, and NMMSS Report D-24.

(b) Unless otherwise specified in the license conditions, material status reports shall be submitted to the NRC as soon as possible, but in any event no later than 30 days after the start of the physical inventory.

(c) Possessors of nuclear material outside facilities must submit a material status report to the NRC every 12 calendar months, for a reporting period that commences on May 1st and concludes on April 30th of the next calendar year. The annual inventory report must be dated April 30th.

(d) A material status report must be accompanied by DOE/NRC Form 740M whenever it is necessary to:

(1) Describe the anticipated operational program;

(2) Provide additional explanation and clarification at the country, facility material balance area, report, or entry level;

(3) Provide additional explanation not accommodated in any of the data elements of DOE/NRC Form 742 or DOE/NRC Form 742C; or

(4) Report actual inventory values equal to or less than 0.4 kg of source material.

(e) Copies of the instructions for completing DOE/NRC Form 742, DOE/NRC Form 742C, and DOE/NRC Form 740M may be obtained from the following websites: http://www.nrc.gov/reading-rm/doc-collections/nuregs/brochures and https://nnsa.energy.gov/aboutus/ourprograms/nuclearsecurity/nmmsshome/nmmssinfo/nmmssreports.

25. Revise § 75.36 to read as follows:
§ 75.36 Special reports.

(a) This section applies to licensees, certificate holders, and possessors of nuclear material outside facilities who:

(1) Have been given notice under § 75.7(a) that their facilities are subject to the application of IAEA safeguards, or

(2) Are subject to the U.S.-IAEA Caribbean Territories Safeguards Agreement.

(b) Each entity subject to this section shall immediately make a special report to the NRC, by telephone, if:

(1) There is a loss of nuclear material:

(i) In excess of specified limits, as stated in license conditions, for those entities described in paragraph (a)(1) of this section, or

(ii) In any amount, for those entities described in paragraph (a)(2) of this section,

(2) There are unexpected changes in containment to the extent that unauthorized removal of nuclear material has become possible, or

(3) Reporting is required under a license condition.

26. In § 75.43, revise paragraph (a) to read as follows:
§ 75.43 Circumstances requiring advance notification.

(a) Each person subject to the Safeguards Agreements shall give advance written notification to the NRC regarding the international and domestic transfers specified in this section.

27. Revise § 75.46, revise paragraphs (a), (b), (c) introductory text, and (d) to read as follows:
§ 75.46 Expenses.

(a) Under the Safeguards Agreements, the IAEA undertakes to reimburse any person subject to this part for extraordinary expenses incurred as a result of its specific request provided that the IAEA has agreed in advance to do so. The Safeguards Agreements also provide that the IAEA will reimburse that person for the cost of making additional measurements or taking samples at the specific request of an IAEA inspector.

(b) The NRC will inform persons subject to this part, by license condition or by other means (e.g., written communication), of those items of extraordinary expense that the IAEA has agreed in advance to reimburse.

(c) The NRC will inform persons subject to this part, by license condition or by other means (e.g., written communication), of the procedures to be used to document:

(d) The NRC will take appropriate action to assist persons subject to this part regarding the reimbursement of any expense that, under the Safeguards Agreements, is to be borne by the IAEA.

§ 75.53 [Amended]
28. In § 75.53, in paragraph (b), add the numbers “75.13”, “75.26”, “75.27”, “75.28”, and “75.29” in numerical order. Dated at Rockville, Maryland, this 30th day of April, 2018.

For the Nuclear Regulatory Commission.

Annette L. Vietti-Cook, Secretary of the Commission.
[FR Doc. 2018-09462 Filed 5-3-18; 8:45 am] BILLING CODE 7590-01-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-0776; Product Identifier 2017-NM-062-AD; Amendment 39-19264; AD 2018-09-08] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 737-200, -300, -400, and -500 series airplanes. This AD was prompted by reports of cracks in the frame web common to the stringer ties adjacent to the air-conditioning support brackets. This AD requires an inspection of the frame for any air-conditioning bracket assembly or intercostal, and, depending on the results, repetitive inspections of the frame web for cracking of certain locations, and applicable on-condition actions. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective June 8, 2018.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of June 8, 2018.

ADDRESSES:

For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone: 562-797-1717; internet: https://www.myboeingfleet.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th Street, Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0776.

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-2017-0776; 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 address for Docket Operations (phone: 800-647-5527) is Docket Operations, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

George Garrido, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5232; fax: 562-627-5210; email: [email protected]

SUPPLEMENTARY INFORMATION:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 737-200, -300, -400, and -500 series airplanes. The NPRM published in the Federal Register on August 15, 2017 (82 FR 38623). The NPRM was prompted by reports of cracks in the frame web common to the stringer ties adjacent to the air-conditioning support brackets. The NPRM proposed to require an inspection for any air-conditioning bracket assembly or intercostal, and, depending on the results, repetitive inspections for cracking of certain locations, and applicable on-condition actions.

We are issuing this AD to detect and correct cracks in the frame web common to the stringer ties adjacent to the air-conditioning support brackets, which could result in a severed frame, and, in combination with potential multiple site damage (MSD) at the stringer S-10 lap splice or chem-milled skin cracks, could result in possible rapid decompression and loss of structural integrity of the airplane.

Comments

We gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the NPRM and the FAA's response to each comment.

Effect of Winglets on Accomplishment of the Proposed Actions

Aviation Partners Boeing stated that accomplishing the supplemental type certificate (STC) ST01219SE does not affect the actions specified in the NPRM.

We concur with the commenter. We have redesignated paragraph (c) of the proposed AD as paragraph (c)(1) of this AD and added paragraph (c)(2) to this AD to state that installation of STC ST01219SE does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01219SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

Request for Clarification of the Unsafe Condition and Inspection Area

Boeing requested that we revise the preamble of the NPRM and paragraph (e) of the proposed AD to clarify the unsafe condition. Boeing also requested that we revise paragraph (i) of the proposed AD to clarify the type of cracking (frame web cracking) and the inspection area (frame web common to the stringer ties). The commenter mentioned that without these clarifications the specific wording could be misleading.

We agree that clarification is necessary for the reasons provided by the commenter and have revised this AD accordingly.

Request To Update Responsible ACO Branch

Boeing requested that we change all references to the Seattle ACO Branch to refer to the Los Angeles ACO Branch. Boeing pointed out that responsibility for The Boeing Company Model 737-200, -300, -400, and -500 series airplanes has changed to the Los Angeles ACO Branch.

We agree for the reasons provided by the commenter and have revised this AD accordingly.

Conclusion

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

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

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

We also determined that these changes will not increase the economic burden on any operator or increase the scope of this final rule.

Related Service Information Under 1 CFR Part 51

We reviewed Boeing Alert Service Bulletin 737-53A1363, dated April 7, 2017. This service information describes procedures for an inspection of the frame for any air-conditioning bracket assembly or intercostal, repetitive inspections of the frame web for cracking of certain locations, and applicable on-condition actions. 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.

Costs of Compliance

We estimate that this AD affects 302 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 Inspections 27 work-hours × $85 per hour = $2,295 per inspection cycle $0 $2,295 per inspection cycle $693,090 per inspection cycle.

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

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 transport category airplanes and associated appliances to the Director of the System Oversight 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): 2018-09-08 The Boeing Company: Amendment 39-19264; Docket No. FAA-2017-0776; Product Identifier 2017-NM-062-AD. (a) Effective Date

This AD is effective June 8, 2018.

(b) Affected ADs

None.

(c) Applicability

(1) This AD applies to The Boeing Company Model 737-200, -300, -400, and -500 series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 737-53A1363, dated April 7, 2017.

(2) Installation of Supplemental Type Certificate (STC) ST01219SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/EBD1CEC7B301293E86257CB30045557A?OpenDocument&Highlight=st01219se) does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01219SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

(d) Subject

Air Transport Association (ATA) of America Code 53, Fuselage.

(e) Unsafe Condition

This AD was prompted by reports of cracks in the frame web common to the stringer ties adjacent to the air-conditioning support brackets. We are issuing this AD to detect and correct cracks in the frame web common to the stringer ties adjacent to the air-conditioning support brackets, which could result in a severed frame, and, in combination with potential multiple site damage (MSD) at the stringer S-10 lap splice or chem-milled skin cracks, could result in possible rapid decompression and loss of structural integrity of the airplane.

(f) Compliance

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

(g) Required Actions

Except as required by paragraph (h) of this AD: At the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1363, dated April 7, 2017, do all applicable actions identified as “RC” (required for compliance) in, and in accordance with, the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1363, dated April 7, 2017.

(h) Exceptions to Service Information Specifications

(1) Where Boeing Alert Service Bulletin 737-53A1363, dated April 7, 2017, uses the phrase “after the original issue date of this service bulletin,” for purposes of determining compliance with the requirements of this AD, the phrase “after the effective date of this AD” applies.

(2) Where Boeing Alert Service Bulletin 737-53A1363, dated April 7, 2017, specifies contacting Boeing, and specifies that action as RC: This AD requires using a method approved in accordance with the procedures specified in paragraph (j) of this AD.

(i) Terminating Action for Repetitive Inspections

Accomplishment of a reinforcement repair for a frame web crack at the stringer tie location using a method approved in accordance with the procedures specified in paragraph (j) of this AD terminates the repetitive inspections required by paragraph (g) of this AD for the repaired stringer tie location only, provided the crack is removed or trimmed out from the stringer tie holes.

(j) Alternative Methods of Compliance (AMOCs)

(1) The Manager, Los Angeles ACO 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 (k) of this AD. Information may be emailed 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.

(3) An AMOC that provides an acceptable level of safety may be used for any repair, modification, or alteration required by this AD if it is approved by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Los Angeles ACO Branch, to make those findings. To be approved, the repair method, modification deviation, or alteration deviation must meet the certification basis of the airplane, and the approval must specifically refer to this AD.

(4) Except as required by paragraph (h)(2) of this AD: For service information that contains steps that are labeled as RC, the provisions of paragraphs (j)(4)(i) and (j)(4)(ii) of this AD apply.

(i) The steps labeled as RC, including substeps under an RC step and any figures identified in an RC step, must be done to comply with the AD. If a step or substep is labeled “RC Exempt,” then the RC requirement is removed from that step or substep. An AMOC is required for any deviations to RC steps, including substeps and identified figures.

(ii) Steps not labeled as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the RC steps, including substeps and identified figures, can still be done as specified, and the airplane can be put back in an airworthy condition.

(k) Related Information

For more information about this AD, contact George Garrido, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5232; fax: 562-627-5210; email: [email protected]

(l) 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) Boeing Alert Service Bulletin 737-53A1363, dated April 7, 2017.

(ii) Reserved.

(3) For Boeing service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone: 562-797-1717; internet: https://www.myboeingfleet.com.

(4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th Street, Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

(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 Des Moines, Washington, on April 20, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
[FR Doc. 2018-09218 Filed 5-3-18; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-0855; Airspace Docket No. 17-ANM-17] RIN 2120-AA66 Amendment of Class D and E Airspace and Revocation of Class E Airspace; Pocatello, ID AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This action amends controlled airspace at Pocatello Regional Airport, Pocatello, ID, by amending Class D airspace and Class E airspace designated as a surface area; removing Class E airspace designated as an extension to a Class D or E surface area; and amending Class E airspace extending upward from 700 feet above the surface. Also, this action updates the airport's geographic coordinates for the associated Class D and E airspace areas to reflect the FAA's current aeronautical database. Additionally, reference to the Pocatello VHF Omnidirectional Range/Tactical Air Navigation (VORTAC) is removed from the Class E airspace extending upward from 700 feet above the surface description. This action enhances the safety and management of instrument flight rules (IFR) operations at the airport.

DATES:

Effective 0901 UTC, July 19, 2018. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.

ADDRESSES:

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

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

FOR FURTHER INFORMATION CONTACT:

Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 2200 S. 216th Street, Des Moines, WA 98198; telephone (206) 231-2253.

SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies Class D and E airspace at Pocatello Regional Airport, Pocatello, ID, in support of instrument flight rules operations at the airport.

History

On December 19, 2017, the FAA published in the Federal Register (82 FR 60130) Docket FAA-2017-0855, a notice of proposed rulemaking to modify Class D airspace, Class E surface area airspace, Class E airspace designated as an extension, and Class E airspace extending upward from 700 feet above the surface at Pocatello Regional Airport, Pocatello, ID. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

Class D and E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

Availability and Summary of Documents for Incorporation by Reference

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

The Rule

The FAA is amending Title 14 Code of Federal Regulations (14 CFR) part 71 by:

Amending Class D airspace at Pocatello Regional Airport, Pocatello, ID, by raising the vertical limit to 7,000 feet (from 6,900 feet) and increasing the airspace south of the airport to a 5.6-mile radius (from a 4.5-mile radius) to laterally protect IFR departures as they climb to 700 feet above the surface, due to rising terrain;

Amending Class E surface area airspace to be coincident with the Class D airspace area;

Removing Class E airspace designated as an extension to a Class D or Class E surface area as it contains no arrival aircraft within 1,000 feet of the surface, and is not necessary;

Amending Class E airspace extending upward from 700 feet above the surface to reduce the area southwest of the airport and slightly increase the area south of the airport. This redesign is necessary to ensure sufficient controlled airspace to contain IFR arrival aircraft within 1,500 feet above the surface and IFR departure aircraft until reaching 1,200 feet above the surface. The VORTAC navigation aid noted in the description is removed, as it no longer defines the boundary of the airspace. In addition, this action establishes airspace extending upward from 1,200 feet above the surface at the airport within 15 miles northwest and 5 miles southeast of a line extending from 15 miles southwest of the airport to 43 miles northeast of the airport. This provides controlled airspace to support aircraft operations under IFR as aircraft transition between the en route and airport environments.

Lastly, this action updates the airport's geographic coordinates for the associated Class D and E airspace areas to reflect the FAA's current aeronautical database, and replaces the outdated term “Airport/Facility Directory” with the term “Chart Supplement” in the Class D and Class E surface airspace legal descriptions. These modifications are necessary for the safety and management of IFR operations at the airport.

Regulatory Notices and Analyses

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

Environmental Review

The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

Lists of Subjects in 14 CFR Part 71

Airspace, Incorporation by reference, Navigation (air).

Adoption of the Amendment

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

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

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

§ 71.1 [Amended]
2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: ANM ID D Pocatello, ID [Amended] Pocatello Regional Airport, ID (Lat. 42°54′35″ N, long. 112°35′45″ W) That airspace extending upward from the surface to and including 7,000 feet MSL within a 4.5-mile radius of Pocatello Regional Airport from the airport 195° bearing clockwise to the airport 168° bearing, and within a 5.6-mile radius of the airport from the airport 168° bearing clockwise to the airport 195° bearing. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement. Paragraph 6002 Class E Airspace Areas Designated as Surface Areas ANM ID E2 Pocatello, ID [Amended] Pocatello Regional Airport, ID (Lat. 42°54′35″ N, long. 112°35′45″ W) That airspace within a 4.5-mile radius of Pocatello Regional Airport from the airport 195° bearing clockwise to the airport 168° bearing, and within a 5.6-mile radius of the airport from the airport 168° bearing clockwise to the airport 195° bearing. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement. Paragraph 6004 Class E Airspace Areas Designated as an Extension to a Class D or Class E Surface Area ANM ID E4 Pocatello, ID [Removed] Paragraph 6005 Class E Airspace Areas Extending Upward From 700 feet or More Above the Surface of the Earth ANM ID E5 Pocatello, ID [Amended] Pocatello Regional Airport, ID (Lat. 42°54′35″ N, long. 112°35′45″ W) That airspace extending upward from 700 feet above the surface within 7.8 miles northwest and 5 miles southeast of the 045° bearing from Pocatello Regional Airport extending to 21 miles northeast of the airport, and within 7.8 miles northwest and 5 miles southeast of the 225° bearing from the airport extending to 10.8 miles southwest of the airport. That airspace extending upward from 1,200 feet above the surface within 15 miles northwest and 5 miles southeast of the 045° bearing from Pocatello Regional Airport extending to 43 miles northeast of the airport, and within 15 miles northwest and 5 miles southeast of the 225° bearing from the airport extending to 15 miles southwest of the airport. Issued in Seattle, Washington, on April 23, 2018. B. G. Chew, Acting Manager, Operations Support Group, Western Service Center.
[FR Doc. 2018-09107 Filed 5-3-18; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 101 [Docket Nos. FDA-2012-N-1210 and FDA-2004-N-0258] RIN 0910-AH92 Food Labeling: Revision of the Nutrition and Supplement Facts Labels and Serving Sizes of Foods That Can Reasonably Be Consumed at One Eating Occasion; Dual-Column Labeling; Updating, Modifying, and Establishing Certain Reference Amounts Customarily Consumed; Serving Size for Breath Mints; and Technical Amendments; Extension of Compliance Dates AGENCY:

Food and Drug Administration, HHS.

ACTION:

Final rule.

SUMMARY:

The Food and Drug Administration (FDA or we) is extending the compliance dates by approximately 1.5 years for the final rules providing updated nutrition information on the label of food, including dietary supplements; defining a single-serving container; requiring dual-column labeling for certain containers; updating, modifying, and establishing certain reference amounts customarily consumed (RACCs); and amending the label serving size for breath mints. The final rules appeared in the Federal Register of May 27, 2016. We are taking this action because, after careful consideration, we have determined that additional time would help ensure that all manufacturers covered by the final rules have guidance from FDA to address, for example, certain technical questions we received after publication of the final rules, and that they have sufficient time to complete and print updated Nutrition Facts labels for their products before they are expected to be in compliance with the final rules.

DATES:

This rule is effective July 3, 2018. For the applicable compliance date(s), please see “Effective/Compliance Date(s)” in Supplementary Information.

ADDRESSES:

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

FOR FURTHER INFORMATION CONTACT:

Paula Trumbo, Center for Food Safety and Applied Nutrition (HFS-830), Food and Drug Administration, 5001 Campus Dr., College Park, MD 20740, 240-402-2579.

SUPPLEMENTARY INFORMATION:

Table of Contents I. Executive Summary A. Purpose of the Final Rule B. Summary of the Final Rule C. Costs and Benefits II. Background A. Need for the Regulation/History of This Rulemaking B. Summary of Comments to the Proposed Rule C. Overview of the Final Rule III. Comments on the Proposed Rule and FDA Response A. Comments Supporting or Opposing the Extension of Compliance Dates B. Comments Outside the Scope of the Proposed Rule IV. Effective/Compliance Date(s) V. Economic Analysis of Impacts VI. Analysis of Environmental Impact VII. Paperwork Reduction Act of 1995 VIII. Federalism IX. References I. Executive Summary A. Purpose of the Final Rule

The final rule extends the compliance dates for two rules. In the Federal Register of May 27, 2016 (81 FR 33742 and 81 FR 34000), we published two final rules entitled “Food Labeling: Revision of the Nutrition and Supplement Facts Labels” (the Nutrition Facts Label Final Rule) and “Food Labeling: Serving Sizes of Foods That Can Reasonably Be Consumed At One Eating Occasion; Dual-Column Labeling; Updating, Modifying, and Establishing Certain Reference Amounts Customarily Consumed; Serving Size for Breath Mints; and Technical Amendments” (the Serving Size Final Rule). In those final rules the compliance date for manufacturers with $10 million or more in annual food sales was established as July 26, 2018; for manufacturers with less than $10 million in annual food sales, the compliance date was set as July 26, 2019.

This final rule extends the compliance date for manufacturers with $10 million or more in annual food sales from July 26, 2018, to January 1, 2020; for manufacturers with less than $10 million in annual food sales, the final rule extends the compliance date from July 26, 2019, to January 1, 2021.

B. Summary of the Final Rule

The final rule extends the compliance date for manufacturers with $10 million or more in annual food sales from July 26, 2018, to January 1, 2020; for manufacturers with less than $10 million in annual food sales, the final rule extends the compliance date from July 26, 2019, to January 1, 2021. We are extending the compliance dates for the Nutrition Facts Label Final Rule and the Serving Size Final Rule, which were issued consistent with our authority in sections 403(q), 403(a)(1), 201(n), and 701(a) of the Federal Food, Drug, and Cosmetic Act (FD&C Act) (21 U.S.C. 343(q), 343(a)(1), 321(n), and 371(a), respectively) and section 2(b)(1) of the Nutrition Labeling and Education Act (NLEA) (Pub. L. 101-535).

C. Costs and Benefits

The impact of this final rule is summarized in the following table.

Table 1—Summary of the Cost Savings to Industry and Foregone Benefits to Consumers of This Final Rule To Extend the Compliance Dates [In billions of 2016$] Discount
  • rate
  • Cost
  • savings
  • Foregone
  • benefits
  • Net benefits
  • (cost savings—
  • foregone
  • benefits)
  • Present Value 3 $1.0 $0.9 $0.1 7 1.0 0.9 0.1 Annualized Amount 3 0.07 0.06 0.01 7 0.09 0.08 0.01 Notes: Cost savings to industry, foregone benefits to consumers, and net benefits reflect mean estimates. This final rule extends the compliance dates of the Nutrition Facts Label and Serving Size Final Rules by approximately 1.5 years. Annualized Amount = Amount/Annualizing Factor. 3 percent annualizing factor = 14.88. 7 percent annualizing factor = 10.59. The annualizing factors are calculated by summing the inverse of 1 plus the discount rate to the power of the year (t = 1 through t = 20).
    II. Background A. Need for the Regulation/History of This Rulemaking

    In the Federal Register of May 27, 2016 (81 FR 33742 and 81 FR 34000), we published the Nutrition Facts Label Final Rule and the Serving Size Final Rule. The Nutrition Facts Label Final Rule revises the Nutrition Facts label by:

    • Removing the declaration of “Calories from fat” because current science supports a view that the type of fat is more relevant than overall total fat intake in increased risk of chronic diseases;

    • Requiring the declaration of the gram amount of “Added Sugars” in a serving of a product, establishing a Daily Reference Value (DRV), and requiring the percent Daily Value (DV) declaration for added sugars;

    • Changing “Sugars” to “Total Sugars” and requiring that “Includes ‘X’ g Added Sugars” be indented and declared directly below “Total Sugars” on the label;

    • Updating the list of vitamins and minerals of public health significance. For example, the Nutrition Facts Label Final Rule requires the declaration of vitamin D and potassium and permits, rather than requires, the declaration of vitamins A and C;

    • Updating certain reference values used in the declaration of percent DVs of nutrients on the Nutrition Facts and Supplement Facts labels;

    • Revising the format of the Nutrition Facts label to increase the prominence of both the term “Calories” and the calories information;

    • Removing the requirement for the footnote table listing the reference values for certain nutrients for 2,000 and 2,500 calorie diets; and

    • Requiring the maintenance of records to support the declarations of certain nutrients under specified circumstances.

    The Serving Size Final Rule requires all containers, including containers of products with “large” RACCs (i.e., products with RACCs of at least 100 grams (g) or 100 milliliters (mL)), containing less than 200 percent of the RACC to be labeled as a single-serving container. Except for when certain exceptions apply, the Serving Size Final Rule further requires that containers and units that contain at least 200 percent and up to and including 300 percent of the RACC be labeled with a column of nutrition information within the Nutrition Facts label that lists the quantitative amounts and percent DVs for the entire container or unit, as applicable, in addition to the required column listing the quantitative amounts and percent DVs for a serving that is less than the entire container or unit, as applicable (i.e., the serving size derived from the RACC). The Serving Size Final Rule also updates, modifies, and establishes RACCs for certain foods and product categories.

    The Final Rules established compliance dates for manufacturers with $10 million or more in annual food sales of July 26, 2018, and for manufacturers with less than $10 million in annual food sales, of July 26, 2019.

    After we published the Nutrition Facts Label and the Serving Size Final Rules, companies and trade associations with members covered by the rules informed us that they had significant concerns about their ability to update all their labels by the compliance dates due to issues regarding (among other things) the need for upgrades to labeling software, the need to obtain nutrition information from suppliers, the number of products that would need new labels, and a limited time for reformulation of products. Consequently, in the Federal Register of October 2, 2017 (82 FR 45753), we proposed to extend the compliance dates to provide more time to comply with the Nutrition Facts Label and the Serving Size Final Rules. We proposed extending the compliance dates by approximately 1.5 years for both categories of manufacturers as a means to balance the importance of ensuring that industry has sufficient time to comply with the new requirements, and the importance of decreasing costs, against the importance of minimizing the transition period during which consumers will see both the old and the new versions of the label in the marketplace.

    B. Summary of Comments to the Proposed Rule

    The proposed rule provided a 30-day comment period. We received approximately 50,000 comments. The comments came from individual consumers, consumer groups, industry, trade associations, academia, health professionals, and state/local government Agencies. Some comments sought an even longer extension of the compliance dates or said a compliance date should be aligned with the United States Department of Agriculture's (USDA) work to implement the National Bioengineered Food Disclosure Law. Comments opposing an extension (including those from state or local government Agencies) focused, in large part, on the Nutrition Facts label's role in helping consumers maintain a healthy lifestyle, possible consumer confusion if two versions of the Nutrition Facts label exist in the market, and a belief that firms had adequate time to comply. Comments supporting an extension of the compliance dates stressed that companies need additional time to update their labels. For example, some comments stressed that the process for relabeling may involve coordination between a variety of parties to test and analyze products, enter ingredient information into databases, develop new labels, and print new labels. According to these comments, having more time to comply with the Nutrition Facts Label and the Serving Size Final Rules will help ensure the accuracy of the labels and will allow for consistent application and fuller compliance across industry.

    C. Overview of the Final Rule

    The final rule extends the compliance date for the Nutrition Facts Label Final Rule and the Serving Size Final Rule for manufacturers with $10 million or more in annual food sales from July 26, 2018, to January 1, 2020; for manufacturers with less than $10 million in annual food sales, the final rule extends the compliance date from July 26, 2019, to January 1, 2021. The Nutrition Facts Label Final Rule and Serving Size Final Rule were issued consistent with our authority in sections 403(q), 403(a)(1), 201(n), and 701(a) of the FD&C Act and section 2(b)(1) of the NLEA.

    III. Comments on the Proposed Rule and FDA Response

    We have numbered each comment to help distinguish among different comments. We have grouped similar comments together under the same number, and in some cases, we have separated different issues discussed in the same comment and designated them as distinct comments for purposes of our responses. The number assigned to each comment or comment topic is purely for organizational purposes and does not signify the comment's value or importance or the order in which comments were received.

    A. Comments Supporting or Opposing the Extension of Compliance Dates

    (Comment 1) Many comments expressed concern that extending the compliance dates will delay the health and dietary benefits of the final rules because, for the period of the extension, the public would be precluded from making informed food choices based on the updated scientific information. Some comments expressed concern about the impact of the delay on people with certain medical conditions (such as cancer, diabetes, heart disease, high blood pressure, and obesity), stating that such people might be better able to follow medical advice using the new labels. The comments further stated that the extension means that until the new compliance dates consumers will not be able to follow advice in the 2015-2020 Dietary Guidelines for Americans and advice from other public health authorities on issues not reflected in the current Nutrition Facts label, such as limiting added sugar. Some comments asserted that consumers have a “right to know” what is in the product. Some comments also noted that the new labels are easier to understand and use for comparing products and making healthier choices.

    (Response) Both the old and new versions of the Nutrition Facts label provide information that must be truthful and accurate. While we agree that extending the compliance dates will mean that certain information required on the new Nutrition Facts label under the Nutrition Facts and Serving Size Final Rules will not be available to consumers on all foods as soon as originally anticipated, consumers can still use the old Nutrition Facts label to help guide them in their food choices in the interim. Consumers with medical conditions should continue to follow the advice they receive from a health care professional concerning their conditions.

    Although we are extending the compliance dates, this extension does not prevent companies from revising their labels before the new compliance dates. In fact, according to food labeling data from Label Insight, over 29,000 products have adopted the new Nutrition Facts label (Ref. 2).

    (Comment 2) Some comments stated that having both the old and new versions of the Nutrition Facts labels in the marketplace will confuse consumers and hinder their ability to compare products. The comments stated that extending the compliance dates will increase the transition period from old to new versions of the Nutrition Facts label.

    Some comments asserted that providing nutrition education is difficult when two versions of the Nutrition Facts label are in the marketplace. The comments also noted that the existence of old versions of the Nutrition Facts label on food packages delays the ability to teach people to make informed choices about their health.

    A comment supporting an extension of the compliance dates asserted that, from a foreign food manufacturer's perspective, the extension of the compliance dates is greatly appreciated because foreign manufacturers tend to have longer revision cycles for food packaging destined for the United States; the comment said that a longer transitional period will allow foreign firms to take more time in “picking the right look” for their U.S. products.

    A comment supporting the extension of the compliance dates stated that, during the transition, FDA should work to ensure that consumers are aware of and educated about the importance of the changes. Some comments noted that the extension will allow FDA and stakeholders more time to prepare consumer education efforts and to raise awareness.

    (Response) We recognize that there will be a longer transition period when the two Nutrition Facts labels are in the marketplace. We also note that both labels must provide information that is truthful and accurate. To help consumers during the transition, we will be providing educational materials to help consumers understand information on the labels. Many nutrition education messages will remain similar for both labels (e.g., awareness of calories, serving size information, and using the daily values); for the new information for consumers (e.g., added sugars, potassium, vitamin D, and dual-column labeling) we will be updating education material, especially as the new label is becoming more common in the marketplace. We are working with other Federal government Agencies (including other Agencies within the Department of Health and Human Services), health professional organizations, food manufacturers, retailers, and non-profit organizations with an interest and focus on nutrition education and health promotion to develop and disseminate our educational materials on the new Nutrition Facts label.

    Furthermore, we are continuing a variety of activities, such as conducting and reporting on food labeling research. We plan to continue to build partnerships to develop, disseminate, and evaluate labeling education efforts that target specific groups, including low literacy consumers and sub-populations at high risk of nutrition-related chronic disease, in addition to the general public.

    (Comment 3) Several comments stated that companies have had sufficient time and resources to comply with the original compliance dates and that compliance by some companies shows that the original compliance dates can be met. The comments also pointed out that companies regularly change their packaging. The comments urged us not to be persuaded by industry to delay the compliance dates, stated that we provided no evidence to support industry's claims for the need for additional time, and expressed concerns that companies will use the delay to challenge the final rules. Another comment claimed that large companies are capable of developing new labels, but seek to extend the compliance date so that they can reformulate their products to remove or change ingredients or information before they have to declare those ingredients or information in a new Nutrition Facts label. Some comments also questioned whether extending the compliance dates would be fair to firms that have revised their Nutrition Facts labels already. One comment said that businesses that take advantage of an extended compliance date may have an unfair market advantage because of consumer familiarity with the old label, while another comment asserted that businesses that delay compliance with the new requirements might gain an advantage from consumers that may select a food based on the old label that they might not select based on the new label. Another comment stated that we should not extend the compliance dates and instead suggested rewarding companies that revised their Nutrition Facts labels in the original timeframe and penalizing companies that failed to revise their labels within a specific time period.

    Many other comments supported the extension of the compliance dates. Some comments supporting an extension of the compliance dates stated that companies need additional time to update their labels. For example, some comments stated that some products may need to be reformulated and the process for relabeling may involve coordination between a variety of parties to test and analyze products, enter ingredient information into databases, develop new labels, and print new labels. Additionally, some comments stated that printing companies complete the orders of larger companies or packing orders before completing the orders of small and mid-size companies, that the range of label changes necessitates additional time, and that products with more ingredients take longer to relabel. According to the comments, having more time will help ensure the accuracy of the labels and will allow for consistent application and fuller compliance across industry. Furthermore, some comments noted that additional time for compliance once FDA makes decisions regarding the citizen petitions for dietary fiber would help ensure that consumers have access to products that help to meet their dietary fiber needs.

    One comment suggested that we pause the compliance dates pending publication of the guidance documents or consider granting an additional extension in the future based on finalization of the guidance documents and future stakeholder concerns. Other comments suggested that we exercise enforcement discretion in cases where awaiting the guidance prevents companies from timely compliance with the original compliance dates. Some comments suggested that we base the dates on publication of the guidance documents, allowing firms additional time to implement the changes.

    (Response) We have carefully considered the comments supporting and opposing an extension of the compliance dates, and we are extending the compliance dates to allow manufacturers additional time to comply with the final rules. We are aware that a number of manufacturers are already using labels consistent with the new requirements; however, we also are aware that other manufacturers have explained why the original compliance dates would not be feasible. We note that manufacturers will need to change different parts of their labels depending on the products they make.

    The comments stating that an extension of the compliance dates is not warranted because some members of industry have already adopted the new labels did not explain why the fact that some manufacturers have had sufficient time to adopt the new labels means that all members of industry have had sufficient time to adopt the new labels. Based on the information available to FDA and the information provided by industry commenters, we understand that manufacturers' ability to meet the original compliance date is affected by many factors and that not all manufacturers are able to meet the original date.

    Extending the compliance dates by approximately 1.5 years is guided by the desire to give industry more time, balanced against minimizing the transition period during which consumers will see both the old and the new versions of the label in the marketplace. The compliance date is the date by which we expect firms to be in compliance with a specific regulatory requirement. It would be prudent for companies to take actions (such as working with suppliers to make sure they have the information they need to update their labels, redesigning labels, and printing new labels, if necessary) to meet their regulatory obligations when the compliance date is reached.

    With respect to comments that suggested factoring in when FDA issues guidance documents, we note that, in the Federal Register of March 2, 2018, we announced the availability of final guidance documents for industry entitled “Reference Amounts Customarily Consumed: List of Products for Each Product Category” and “Scientific Evaluation of the Evidence on the Beneficial Physiological Effects of Isolated or Synthetic Non-Digestible Carbohydrates Submitted as a Citizen Petition (21 CFR 10.30).” We issued these guidance documents to address questions we received after we issued the final rules in order to address such questions and help firms with their decisions about how to comply with a particular requirement or what information to submit to FDA in a citizen petition to request a non-digestible carbohydrate be included in the definition of “dietary fiber.”

    With regard to the unfair market advantage issue raised in the comments, we have no data or information to show whether companies that have revised their Nutrition Facts labels already have an unfair market advantage or, conversely, are disadvantaged compared to companies that have not revised their Nutrition Facts labels yet. Therefore, we decline to speculate on whether an unfair market advantage exists and for the reason the comment asserted.

    Finally, with regard to rewarding companies that revised their Nutrition Facts labels in the original timeframe and penalizing companies that failed to revise their labels within a specific time period, the comment provided no recommendation for how such a reward or penalty system could work or how such system would be implemented consistent with our existing authorities.

    (Comment 4) Several comments would have us align the compliance dates with the National Bioengineered Food Disclosure Standard (which is administered by USDA). Other comments supported a coordinated, uniform label compliance dates across agencies because, according to the comments, USDA's Food Safety and Inspection Service also has Nutrition Facts label requirements for meat and poultry. In addition, other comments urged us to finalize other pending labeling changes (such as vending machine labeling, “natural” labeling, revising the definition of “healthy,” and “gluten-free” for fermented or hydrolyzed food products) before the extended compliance dates.

    (Response) FDA and USDA collaborate to align compliance dates of regulations that require changes in food labeling. FDA is working to address, as appropriate and as time and resources permit, other regulatory issues that are outside the scope of this rulemaking in separate rulemaking actions. However, we do not agree that we need to ensure the alignment of compliance dates for other regulatory initiatives with those for the Nutrition Facts Label and Serving Size Final Rules.

    (Comment 5) Several comments suggested alternatives to basing the compliance dates on the amount of annual sales. One comment suggested having just one extended compliance date to show impartiality and hold all businesses to the same standards, and some comments suggested other timeframes for the compliance dates. One comment would allow extensions on a case-by-case basis rather than a blanket extension. One comment suggested basing the date on the number of products sold as companies with more products may need more time to relabel, regardless of their total sales, than companies with fewer products. One comment would support extending the compliance date for small manufacturers only; the comment said that larger manufacturers (with over $10 million in annual food sales) do not need an extension because they have greater access to scientific information about their products as well as nutritional information compared to smaller companies. One comment suggested limiting the extension to honey products and products that contain fiber and not extending the compliance dates for all other products because, the comment stated, issues pertaining to added sugars in honey and the definition of fiber must be resolved before we establish compliance dates for honey products and products that contain fiber.

    Other comments suggested that we stagger the compliance dates based on the type of business. According to the comments, ingredient manufacturers would comply first with finished goods manufacturers complying at least 1 year later. The comments indicated that providers of nutrition analysis and manufacturers of finished products need the information from ingredient manufacturers to relabel their products. One comment said extending the compliance dates may cause suppliers to delay revising their Nutrition Facts label, which would prohibit a company from keeping its existing timeline for label updates and could require the company to invest in off-cycle printing fees of old nutrition labels, leading to higher costs and compromising the ability to provide complete nutrition information on customer facing labels.

    (Response) In the Nutrition Facts Label and Serving Size proposed rules (79 FR 11879 and 79 FR 11989; March 3, 2014), we originally proposed one compliance date of 2 years after the effective date, regardless of annual amount of sales. However, comments to the proposed rule for the Nutrition Facts Label suggested that small businesses may need more time or may face different challenges, compared to large businesses, in complying with the final rules. Because the comments emphasized the rules' potential impact on small businesses, we agreed that the impacts to smaller businesses may be more substantial than those on larger businesses, and so we provided a 3-year compliance date for manufacturers with less than $10 million in annual food sales. Thus, in the final Nutrition Facts label and Serving Size rules, the compliance date for manufacturers with $10 million or more in annual food sales was set at July 26, 2018; the compliance date for manufacturers with less than $10 million in annual food sales was set at July 26, 2019.

    Regarding the comments suggesting alternative timeframes for compliance and comments suggesting alternative approaches to extended compliance dates (such as basing the dates on the number of products sold or having ingredient suppliers comply before other entities), the comments did not provide information that would enable us, as part of this rulemaking, to revise or alter our approach. For example, the comments did not explain what total number of products sold would be used as a basis for setting compliance dates.

    With respect to ingredient suppliers, we note that bulk ingredient suppliers are not required to comply with the Nutrition Facts label requirements unless, among other requirements, the bulk ingredients are going directly to the consumer (see 21 CFR 101.9(j)(9)). Furthermore, as stated in our responses to comments 1 and 3, an extension of the compliance dates does not prevent manufacturers from revising their Nutrition Facts labels before the extended compliance dates.

    Based on the comments received regarding the processes involved in obtaining nutrient information from suppliers and timing involved for various size businesses to gain access to equipment for developing and printing new labels, we consider the extended compliance dates in this final rule to provide adequate time for the coordination between suppliers, manufacturers, and labelers to ensure that new labels are ready and in use by the compliance dates.

    (Comment 6) Some comments opposing the extension of the compliance dates asserted that the need for guidance is not a reason to delay the compliance dates because guidance documents are only recommendations and not enforceable. In contrast, comments supporting an extension of the compliance dates said that companies need guidance from FDA to address technical questions on issues such as dietary fiber, added sugars, serving sizes, small package labeling, and allulose before they can relabel and reformulate certain products. Some comments asserted that if food companies and manufacturers are given time to comply with the rules after they receive guidance from FDA, they would not need to make additional label changes. Other comments urged us to issue guidance documents as soon as possible, and some comments asserted that we need to publish the final guidance documents on dietary fiber and added sugars before we finalize a rule regarding the compliance dates.

    (Response) After careful consideration, we have determined that extending the compliance dates by approximately 1.5 years, until January 1, 2020, or January 1, 2021 (depending on annual sales), would help ensure that all manufacturers covered by the final rules have time to use guidance from FDA to address, for example, certain technical questions we received after publication of the final rules. To the extent we issue a guidance document on a specific topic in advance of the applicable compliance date, we intend to issue such guidance document in draft form with an opportunity for public comment and, where appropriate, to finalize the guidance before those parties are expected to comply with the final rules. Additional time will also help to ensure that manufacturers have time to coordinate with various parties to complete and print updated Nutrition Facts labels for their products before they are expected to be in compliance with the final rules.

    With regard to the comments about the enforceability of guidance, we agree that our guidance documents do not establish legally enforceable responsibilities. Instead, guidance documents describe our current thinking on a topic and should be viewed only as recommendations, unless specific regulatory or statutory requirements are cited. Furthermore, as we stated in our response to comment 3, in the Federal Register of March 2, 2018, we announced the availability of final guidance documents for industry entitled “Reference Amounts Customarily Consumed: List of Products for Each Product Category” (83 FR 9000) (Ref. 3) and “Scientific Evaluation of the Evidence on the Beneficial Physiological Effects of Isolated or Synthetic Non-Digestible Carbohydrates Submitted as a Citizen Petition (21 CFR 10.30)” (83 FR 8997) (Ref. 4). In addition to the final guidance documents, in the Federal Register of January 5, 2017, we announced the availability of draft guidance to address issues related to added sugars entitled, “Questions and Answers on the Nutrition and Supplement Facts Labels Related to the Compliance Date, Added Sugars, and Declaration of Quantitative Amounts of Vitamins and Minerals. ” Further, in the Federal Register of March 2, 2018, we announced the availability of draft guidance entitled “The Declaration of Added Sugars on Honey, Maple Syrup, and Certain Cranberry Products ” (83 FR 8953) (Ref. 5). We issued these guidance documents to address questions we received after we issued the final rules, and these guidance documents should address the questions and help firms with their decisions about how to comply with particular requirements such as serving sizes or the declaration of added sugars or what information to submit to FDA in a citizen petition to request a non-digestible carbohydrate be included in the definition of “dietary fiber.”

    (Comment 7) One comment stated that giving large food manufacturers an additional 18 months to conform seems excessive. The comment noted that, to satisfy the requirement under 5 U.S.C. 553 (the section of the Administrative Procedure Act (APA) pertaining to rulemaking), the notice of proposed rulemaking should include all relevant studies and data used to make the rule. The comment requested additional information regarding the complexity of the burdens being placed on food manufacturers to support an extension of the compliance dates. The comment said that such information is necessary to satisfy the requirement under 5 U.S.C. 553 that the notice of proposed rulemaking include all relevant studies and data used to make the rule. The comment cited American Radio Relay League, Inc. v. Fed. Communications Comm. 524 F.3d 227 (D.C. Cir. 2007).

    Another comment expressed concern that the extension of the compliance dates may violate the APA. The comment said that the proposed rule did not ask for comments relating to breath mints and did not refer to what a reformulation of products would look like or why a reformulation is necessary.

    (Response) We believe that we have provided an adequate basis for the extension of the compliance dates. Thus, we disagree that the APA requires us to provide information, in addition to what we have already made available in the public docket for notice and comment, to support the extension of the compliance dates. In addition, the case the comment relies on concerns a situation where an agency engaged in rulemaking failed to make information on which it relied publicly available for notice and comment (American Radio Relay League, 524 F.3d at 237 through 239). The information on which we rely in this final rule to extend the compliance dates for the Nutrition Facts Label Final Rule and the Serving Size Final Rule, in contrast, was made publicly available for comment in the public docket for the proposed rule, which is the same docket as this final rule. We are not withholding information from the public docket on which we rely for our decision to extend the compliance dates.

    As discussed in the preamble to the proposed rule to extend the compliance dates for the Nutrition Facts Label and Serving Size Final Rules (82 FR 45753 at 45754), we are taking this action because, after careful consideration, we have determined that additional time would help ensure that all manufacturers covered by the rules have guidance from FDA to address, for example, certain technical questions we received after publication of the final rules. We also are taking this action so that manufacturers may complete all the necessary steps and print updated Nutrition Facts labels for their products before they are expected to be in compliance with the rules. Companies and trade associations have informed us that they have significant concerns about their ability to update all their labels by the original compliance dates due to issues regarding (among other things) the need for upgrades to labeling software, the need to obtain nutrition information from suppliers, the number of products that would need new labels, and a limited time for reformulation of products (82 FR 45753 at 45754). Comments in response to the proposed rules reiterated the basis for the requests for additional time. Based on the information in the public docket, we have a sufficient basis on which to extend the compliance dates for the final rules.

    In addition, as discussed in the Preliminary Regulatory Impact Analysis referenced in the proposed rule to extend the compliance dates for the Nutrition Facts Label and Serving Size Final Rules (82 FR 45753), we analyzed regulatory alternatives and considered two options for the time period of the extension of the compliance dates and presented the estimates for what the cost savings to industry would be. We concluded that extending the compliance date by approximately 1.5 years for both categories of manufacturers is a means to balance the importance of ensuring that industry has sufficient time to comply with complex new requirements against the importance of minimizing the transition period during which consumers will see both the old and the new versions of the label in the marketplace.

    With regard to the comment about breath mints and product reformulation, this comment is outside the scope of this rulemaking. The Serving Size Final Rule changed the label serving size for breath mints to “1 unit.” The amendments to the Nutrition Facts label regulations became effective on July 26, 2016. This rulemaking, as explained in the preamble to the proposed rule of October 2, 2017, pertains solely to the compliance dates for the Nutrition Facts Label and Serving Size Final Rules (82 FR 45753 at 45754).

    B. Comments Outside of Scope of the Proposed Rule

    Some comments raised issues that were outside the scope of the proposed rule. In brief, we received comments asking about:

    • Changing the label;

    • Requiring schools to have education programs relating to the label;

    • Requesting FDA to reopen the comment period on the Nutrition Facts Label and Serving Size Final Rules asserting a 3-year stay is needed to obtain additional empirical research data for substantiation of changes to the label made in the final rules; and

    • Extending the compliance date for the front-of-package calorie labeling of items sold in vending machines to align with the proposed extension of the Nutrition Facts Label Final Rule.

    The final rule pertains solely to the compliance dates for the Nutrition Facts Label and Serving Size Final Rules. Therefore, the comments are outside the scope of this rulemaking.

    IV. Effective/Compliance Date(s) A. Effective Date

    The final rule is effective on July 3, 2018.

    B. Compliance Date

    The compliance date for manufacturers with $10 million or more in annual food sales is January 1, 2020. The compliance date for manufacturers with less than $10 million in annual food sales is January 1, 2021.

    V. Economic Analysis of Impacts

    We have examined the impacts of the final rule under Executive Order 12866, Executive Order 13563, Executive Order 13771, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4). Executive Orders 12866 and 13563 direct us to assess all costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety, and other advantages; distributive impacts; and equity). Executive Order 13771 requires that the costs associated with significant new regulations “shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations.” This final rule is an economically significant regulatory action as defined by Executive Order 12866.

    Executive Order 13771, entitled “Reducing Regulation and Controlling Regulatory Costs,” was issued on January 30, 2017. Section 2(a) of Executive Order 13771 requires an Agency, unless prohibited by law, to identify at least two existing regulations to be repealed when the Agency publicly proposes for notice and comment or otherwise issues a new regulation. In furtherance of this requirement, section 2(c) of Executive Order 13771 requires that the new incremental costs associated with new regulations shall, to the extent permitted by law, be offset by the elimination of existing costs associated with at least two prior regulations. This final rule is an Executive Order 13771 deregulatory action. We estimate that this rule generates approximately $61 million in annualized cost savings, discounted relative to year 2016 and using a 7 percent discount rate, over a perpetual time horizon. Details on the estimated cost savings of this final rule can be found in the rule's economic analysis.

    The Regulatory Flexibility Act requires us to analyze regulatory options that would minimize any significant impact of a rule on small entities. We have analyzed this final rule under the Regulatory Flexibility Act and certify that, because this final rule only extends the compliance dates for the Nutrition Facts Label and Serving Size Final Rules, this final rule would not have a significant economic impact on a substantial number of small entities.

    The Unfunded Mandates Reform Act of 1995 (section 202(a)) requires us to prepare a written statement, which includes an assessment of anticipated costs and benefits, before issuing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted annually for inflation) in any one year.” The current threshold after adjustment for inflation is $148 million, using the most current (2016) Implicit Price Deflator for the Gross Domestic Product. This final rule would not result in an expenditure in any year that meets or exceeds this amount.

    The principal benefit of this final rule to extend the compliance dates is the reduction in the costs to industry of meeting the compliance dates of the Nutrition Facts Label Final Rule and the Serving Size Final Rule. This reduction in costs can be attributed to a reduction in the relabeling and reformulation costs of the Nutrition Facts Label and Serving Size Final Rules. We estimate that, at the mean, the present value of the benefits (i.e., cost savings) of this final rule to extend the compliance dates over the next 20 years is $1 billion using either a 3 percent or 7 percent discount rate (2016$). This is illustrated in table 2. Extending the compliance dates by approximately 1.5 years would reduce the estimated benefits of the Nutrition Facts Label and Serving Size Final Rules because it would delay the realization by consumers of the full annual welfare gains of the Nutrition Facts Label and Serving Size Final Rules. More specifically, an extension of the compliance dates would delay the incorporation of the provisions of the Nutrition Facts Label and Serving Size Final Rules by food manufacturers into their products. We estimate that, at the mean, the present value of the foregone benefits of this final rule to extend the compliance dates over the next 20 years is $0.9 billion using either a 3 percent or 7 percent discount rate (2016$). This is also presented in table 2. We estimate that, at the mean, the present value of the net benefits (that is, cost savings minus foregone benefits) of this final rule to extend the compliance dates over the next 20 years is $0.1 billion using either a 3 percent or 7 percent discount rate (2016$). This is shown in table 2.

    Table 2—Summary of the Cost Savings to Industry and Foregone Benefits to Consumers of This Final Rule To Extend the Compliance Dates [In billions of 2016$] Discount
  • rate
  • Cost
  • savings
  • Foregone
  • benefits
  • Net benefits
  • (cost
  • savings—
  • foregone
  • benefits)
  • Present Value 3% $1.0 $0.9 $0.1 7 1.0 0.9 0.1 Annualized Amount 3 0.07 0.06 0.01 7 0.09 0.08 0.01 Notes: Cost savings to industry, foregone benefits to consumers, and net benefits reflect mean estimates. This final rule extends the compliance dates of the Nutrition Facts Label and Serving Size Final Rules by approximately 1.5 years. Annualized Amount = Amount/Annualizing Factor. 3 percent annualizing factor = 14.88. 7 percent annualizing factor = 10.59. The annualizing factors are calculated by summing the inverse of 1 plus the discount rate to the power of the year (t = 1 through t = 20).

    The full analysis of economic impacts is available in the docket for this final rule (Ref. 1) and at https://www.fda.gov/AboutFDA/ReportsManualsForms/Reports/EconomicAnalyses/default.htm.

    VI. Analysis of Environmental Impact

    We have determined under 21 CFR 25.30(k) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

    VII. Paperwork Reduction Act of 1995

    This final rule contains no collection of information. Therefore, clearance by the Office of Management and Budget under the Paperwork Reduction Act of 1995 is not required.

    VIII. Federalism

    We have analyzed this final rule in accordance with the principles set forth in Executive Order 13132. Section 4(a) of the Executive Order requires Agencies to “construe . . . a Federal statute to preempt State law only where the statute contains an express preemption provision or there is some other clear evidence that the Congress intended preemption of State law, or where the exercise of State authority conflicts with the exercise of Federal authority under the Federal statute.” Section 403A of the FD&C Act (21 U.S.C. 343-1) is an express preemption provision. Section 403A(a) of the FD&C Act provides that: “. . . no State or political subdivision of a State may directly or indirectly establish under any authority or continue in effect as to any food in interstate commerce—(4) any requirement for nutrition labeling of food that is not identical to the requirement of section 403(q) . . . .” The express preemption provision of section 403A(a) of the FD&C Act does not preempt any State or local requirement respecting a statement in the labeling of food that provides for a warning concerning the safety of the food or component of the food (section 6(c)(2) of the Nutrition Labeling and Education Act of 1990, Pub. L. 101-535, 104 Stat. 2353, 2364 (1990)). The final rule creates requirements that fall within the scope of section 403A(a) of the FD&C Act.

    IX. References

    The following references are on display in the Dockets Management Staff (see ADDRESSES) and are available for viewing by interested persons between 9 a.m. and 4 p.m., Monday through Friday; they are also available electronically at https://www.regulations.gov. FDA has verified the website addresses, as of the date this document publishes in the Federal Register, but websites are subject to change over time.

    1. FDA. Final Regulatory Impact Analysis, Regulatory Flexibility Analysis for Final Rule on “Food Labeling: Revision of the Nutrition and Supplement Facts Labels and Serving Sizes of Foods That Can Reasonably Be Consumed At One Eating Occasion; Dual-Column Labeling; Updating, Modifying, and Establishing Certain Reference Amounts Customarily Consumed; Serving Size for Breath Mints; and Technical Amendments; Extension of Compliance Dates.” April 2018. Available from https://www.fda.gov/AboutFDA/ReportsManualsForms/Reports/EconomicAnalyses. 2. Sheahan, M. “FDA Blog Post.” Label Insight. April 5, 2018. Available at https://blog.labelinsight.com/growing-new-label-adoption-provides-transparency-for-consumers. 3. Food and Drug Administration, “Reference Amounts Customarily Consumed: List of Products for Each Product Category; Guidance for Industry; Availability.” 83 FR 9000 (March 2, 2018). Guidance available at https://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/ucm535368.htm. 4. Food and Drug Administration, “Scientific Evaluation of the Evidence on the Beneficial Physiological Effects of Isolated or Synthetic Non-Digestible Carbohydrates Submitted as a Citizen Petition; Guidance for Industry; Availability. ” 83 FR 8997 (March 2, 2018). Guidance available at https://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/ucm528532.htm. 5. Food and Drug Administration, “The Declaration of Added Sugars on Honey, Maple Syrup, and Certain Cranberry Products; Draft Guidance for Industry; Availability.” 83 FR 8953 (March 2, 2018). Guidance available at https://www.fda.gov/Food/GuidanceRegulation/GuidanceDocumentsRegulatoryInformation/ucm595578.htm. Dated: April 30, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-09476 Filed 5-3-18; 8:45 am] BILLING CODE 4164-01-P 2
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 880 [Docket No. FDA-2017-N-6216] General Hospital and Personal Use Devices; Reclassification of Sharps Needle Destruction Device AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final order.

    SUMMARY:

    The Food and Drug Administration (FDA or the Agency) is issuing a final order to reclassify the needle destruction device, renaming the device to “sharps needle destruction device,” a postamendments class III device (regulated under product code MTV), into class II (special controls), subject to premarket notification. FDA is also identifying the special controls that the Agency believes are necessary to provide a reasonable assurance of safety and effectiveness of the device. FDA is finalizing this reclassification on its own initiative based on new information. The Agency is classifying the device into class II (special controls) to provide a reasonable assurance of safety and effectiveness of the device. This order reclassifies these types of devices from class III to class II and will reduce regulatory burdens on industry because these types of devices will no longer be required to submit a premarket approval application (PMA), but can instead submit a less burdensome premarket notification (510(k)) before marketing their device.

    DATES:

    This order is effective June 4, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Christopher K. Dugard, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 2561, Silver Spring, MD 20993, 240-402-6031, [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    The Federal Food, Drug, and Cosmetic Act (FD&C Act), as amended, establishes a comprehensive system for the regulation of medical devices intended for human use. Section 513 of the FD&C Act (21 U.S.C. 360c) established three categories (classes) of devices, reflecting the regulatory controls needed to provide reasonable assurance of their safety and effectiveness. The three categories of devices are class I (general controls), class II (special controls), and class III (premarket approval).

    Devices that were not in commercial distribution prior to May 28, 1976 (generally referred to as postamendments devices) are automatically classified by section 513(f)(1) of the FD&C Act into class III without any FDA rulemaking process. Those devices remain in class III and require premarket approval unless, and until, the device is reclassified into class I or II, or FDA issues an order finding the device to be substantially equivalent, in accordance with section 513(i) of the FD&C Act, to a predicate device that does not require premarket approval. The Agency determines whether new devices are substantially equivalent to predicate devices by means of premarket notification procedures in section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).

    A postamendments device that has been initially classified in class III under section 513(f)(1) of the FD&C Act may be reclassified into class I or class II under section 513(f)(3). Section 513(f)(3) of the FD&C Act provides that FDA acting by order can reclassify the device into class I or class II on its own initiative, or in response to a petition from the manufacturer or importer of the device. To change the classification of the device, the proposed new class must have sufficient regulatory controls to provide reasonable assurance of the safety and effectiveness of the device for its intended use.

    Reevaluation of the data previously before the Agency is an appropriate basis for subsequent action where the reevaluation is made in light of newly available regulatory authority (see Bell v. Goddard, 366 F.2d 177, 181 (7th Cir. 1966); Ethicon, Inc. v. FDA, 762 F. Supp. 382, 388-391 (D.D.C. 1991)) or in light of changes in “medical science” (Upjohn v. Finch, 422 F.2d 944, 951 (6th Cir. 1970)). Whether data before the Agency are old or new, the “new information” to support reclassification under 513(f)(3) must be “valid scientific evidence,” as defined in section 513(a)(3) of the FD&C Act and 21 CFR 860.7(c)(2). (See, e.g., General Medical Co. v. FDA, 770 F.2d 214 (D.C. Cir. 1985); Contact Lens Assoc. v. FDA, 766 F.2d 592 (D.C. Cir.1985), cert. denied, 474 U.S. 1062 (1986).)

    FDA relies upon “valid scientific evidence” in the classification process to determine the level of regulation for devices. To be considered in the reclassification process, the “valid scientific evidence” upon which the Agency relies must be publicly available. Publicly available information excludes trade secret and/or confidential commercial information, e.g., the contents of a pending PMA (see section 520(c) of the FD&C Act (21 U.S.C. 360j(c)). Section 520(h)(4) of the FD&C Act provides that FDA may use, for reclassification of a device, certain information in a PMA 6 years after the application has been approved. This includes information from clinical and preclinical tests or studies that demonstrate the safety or effectiveness of the device, but does not include descriptions of methods of manufacture or product composition and other trade secrets.

    Section 510(m) of the FD&C Act provides that a class II device may be exempted from the 510(k) premarket notification requirements, if the Agency determines that premarket notification is not necessary to reasonably assure the safety and effectiveness of the device.

    On November 7, 2017, FDA published an order in the Federal Register to reclassify the device (82 FR 51585) (the “proposed order”). The period for public comment on the proposed order closed on January 8, 2018. FDA received and has considered two comments on the proposed order, as discussed in section II.

    II. Comments on the Proposed Order and FDA Response A. Introduction

    We received two comments on the proposed order and both comments supported the proposed reclassification. The comments were received from a consumer and a healthcare professional in the drug industry.

    We describe and respond to the comments in section B of this section. The order of response to the commenters is purely for organizational purposes and does not signify the comment's value or importance nor the order in which comments were received.

    B. Description of Comments and FDA Response

    (Comment 1) One commenter discussed the experience of witnessing sharps disposal and was supportive of safe and cost-effective options for sharps disposal due to the potential injury to sanitation works or patients/users with improper disposal of sharps. The commenter was generally supportive of FDA's proposed reclassification. Additionally, the commenter stated that PMA requirements increase the price of these devices and that reclassification increases affordability of the sharps needle destruction devices, while ensuring safety.

    (Response 1) FDA agrees with this comment. The Agency believes that reclassification of the sharps needle destruction device will reduce the regulatory burden on manufacturers, which could increase patient access to these devices and potentially reduce accidental needle sticks, while still providing reasonable assurance of safety and effectiveness. Additionally, FDA believes the special controls mitigate workplace hazards associated with sharps needle destruction and ensures proper use of the device.

    (Comment 2) One commenter noted that while a PMA for these devices will no longer be required, FDA will still require premarket notification under section 510(k) of the FD&C Act. The commenter stated that in addition to 510(k) requirements, a prescription use restriction, and labeling, the identified special controls will provide reasonable assurance of device safety and effectiveness. The commenter noted that PMAs delay the access of these devices to patients. The commenter concluded that this reclassification may factor in positive outcomes for patient access and safety.

    (Response 2) FDA agrees with this comment. The Agency believes that the special controls required in this final order provide a reasonable assurance of safety and effectiveness for these devices. FDA believes it has identified the risks to health (see section V of the proposed order) and that the measures described in this final order will be effective in mitigating the identified probable risks to health. Additionally, by reclassifying these types of devices from class III to class II, this will reduce regulatory burdens on industry because these types of devices will no longer be required to submit a PMA, but can instead submit a less burdensome premarket notification (510(k)) before marketing their device.

    III. The Final Order

    FDA is adopting its findings under section 513(f)(3) of the FD&C Act, as published in the preamble to the proposed order. FDA is issuing this final order to reclassify needle destruction devices from class III to class II, rename them sharps needle destruction devices, and establish special controls by revising 21 CFR part 880. In this final order, the Agency has identified the special controls under section 513(a)(1)(B) of the FD&C Act that, together with general controls, provide a reasonable assurance of the safety and effectiveness for sharps needle destruction devices.

    FDA may exempt a class II device from the premarket notification requirements under section 510(k) of the FD&C Act under section 510(m) of the FD&C Act, if FDA determines that premarket notification is not necessary to provide reasonable assurance of the safety and effectiveness of the devices. FDA has determined that premarket notification is necessary to provide reasonable assurance of safety and effectiveness of sharps needle destruction devices, and therefore, this device type is not exempt from premarket notification requirements.

    The device is assigned the generic name sharps needle destruction device, and it is identified as a prescription device that is intended to destroy needles or sharps used for medical purposes by incineration or mechanical means.

    Under this final order, the sharps needle destruction device is a prescription use device under § 801.109 (21 CFR 801.109). Prescription devices are exempt from the requirement for adequate directions for use for the layperson under section 502(f)(1) of the FD&C Act (21 U.S.C. 352(f)(1)) and 21 CFR 801.5, as long as the conditions of § 801.109 are met (referring to 21 U.S.C. 352(f)(1)). Under 21 CFR 807.81, the device would continue to be subject to 510(k) requirements.

    IV. Analysis of Environmental Impact

    We have determined under 21 CFR 25.34(b) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

    V. Paperwork Reduction Act of 1995

    This final administrative order establishes special controls that refer to previously approved collections of information found in other FDA regulations. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in part 807, subpart E have been approved under OMB control number 0910-0120 and the collections of information under 21 CFR part 801 have been approved under OMB control number 0910-0485.

    List of Subjects in 21 CFR Part 880

    Medical devices.

    Therefore, under the Federal Food, Drug, and Cosmetic Act (21 U.S.C. 321 et seq., as amended) and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 880 is amended as follows:

    PART 880—GENERAL HOSPITAL AND PERSONAL USE DEVICES 1. The authority citation for part 880 continues to read as follows: Authority:

    21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.

    2. Add § 880.6210 to subpart G to read as follows:
    § 880.6210 Sharps needle destruction device.

    (a) Identification. A sharps needle destruction device is a prescription device that is intended to destroy needles or sharps used for medical purposes by incineration or mechanical means.

    (b) Classification. Class II (special controls). The special controls for this device are:

    (1) Performance testing must demonstrate the following during operation of the device:

    (i) The device safely contains or ventilates aerosols or fumes from device operation.

    (ii) Excessive heat or sparks are not generated that may injure users or patients.

    (iii) Simulated use testing must demonstrate sharps and/or needles are completely destroyed using a range of types and sizes of sharps sufficient to represent actual use.

    (iv) Simulated use testing must demonstrate that the device is physically stable on the surface for which it is intended to be mounted to ensure the risk of harm to the patient/user as a result of the device falling is minimized.

    (2) Validation of cleaning and disinfection instructions must demonstrate that the device can be safely and effectively reprocessed after use per the recommended cleaning and disinfection protocol in the instructions for use.

    (3) Analysis and/or testing must validate electromagnetic compatibility and electrical safety, including the safety of any battery used in the device, under conditions which are consistent with the intended environment of device use.

    (4) Software verification, validation, and hazard analysis must be performed.

    (5) Labeling must include:

    (i) A clear description of the device and its technological features;

    (ii) How the device is to be used, including validated cleaning and disinfection instructions;

    (iii) Relevant precautions and warnings based on performance and in-use testing to ensure proper use of the device; and

    (iv) Instructions to install device in adequately ventilated area and stable area.

    Dated: April 30, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-09434 Filed 5-3-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket Number USCG-2017-0993] RIN 1625-AA08 Special Local Regulation: Fort Lauderdale Air Show; Atlantic Ocean, Fort Lauderdale, FL AGENCY:

    Coast Guard, DHS.

    ACTION:

    Final rule.

    SUMMARY:

    The Coast Guard is establishing a recurring special local regulation for certain navigable waters of the Atlantic Ocean east of Fort Lauderdale, Florida beginning at the Port Everglades Inlet and extending north approximately six miles. The special local regulation is necessary to ensure the safety of the public, spectators, vessels, and the marine environment during aerobatic maneuvers conducted by high-speed, low-flying airplanes and high speed vessels performing inside of the regulated area during the Fort Lauderdale Air Show. This special local regulation prohibits persons and non-participant vessels from entering, transiting through, anchoring in, or remaining within the regulated area unless authorized by the Captain of the Port Miami or a designated representative.

    DATES:

    This rule is effective May 4, 2018.

    ADDRESSES:

    To view documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov, type USCG-2017-0993 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email Petty Officer Mara J. Brown, Sector Miami Waterways Management Division, U.S. Coast Guard; telephone 305-535-4317, email [email protected]

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

    The City of Fort Lauderdale notified the Coast Guard that it would be hosting the Fort Lauderdale Air Show annually over a Saturday and Sunday during the month of May. The regulated area would cover certain navigable waters of the Atlantic Ocean east of Fort Lauderdale, Florida beginning at Port Everglades Inlet and continuing north for approximately six miles.

    In response, on January 25, 2018, the Coast Guard published a notice of proposed rulemaking (NPRM) titled “Special Local Regulation: Fort Lauderdale Air Show; Atlantic Ocean, Fort Lauderdale, FL” (83 FR 3450). There we stated why we issued the NPRM, and invited comments on our proposed regulatory action related to this event. During the comment period that ended February 26, 2018, we received 2 unrelated comments.

    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be impracticable because immediate action is needed to respond to the potential safety dangers with aerial maneuvers conducted by high speed, low-flying aircraft during air shows. The special local regulation is necessary to provide for the safety of event participants, spectators and vessels transiting in proximity to the event area.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The Captain of the Port Miami (COTP) has determined that potential hazards associated with the aerobatic and high speed aerial flight demonstrations demonstrated during the Ft. Lauderdale Air Show will be a safety concern for spectators and non-participant vessels in the regulated area. The purpose of this rule is to ensure the safety of vessels, persons, marine environment, and navigable waters in the regulated area before, during, and after the scheduled event.

    IV. Discussion of Comments, Changes, and the Rule

    As noted above, we received two comments on our NPRM published February 26, 2018. Both comments were unrelated to the regulation. There are no changes in the regulatory text of this rule from the proposed rule in the NPRM.

    This rule establishes a special local regulation on certain waters of the Atlantic Ocean east of Fort Lauderdale, Florida beginning at the Port Everglades Inlet and continuing north for approximately six miles. The duration of the regulated area is intended to ensure the safety of the public during the aerial flight demonstrations and high speed boat races. Non-participant vessels are prohibited from entering, transiting through, anchoring in, or remaining within the regulated area without obtaining permission from the Captain of the Port (COTP) Miami or a designated representative. The Coast Guard will provide notice of the regulated area by Broadcast Notice to Mariners and on-scene designated representatives.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the size, location, duration, and time-of-day of the special local regulation. Vessel traffic will be able to safely transit around this regulated area, which will affect a small designated area of the Atlantic Ocean over a period of two days during the month of May. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners notifying the public of the regulated area via VHF-FM marine channel 16 and the rule would allow vessels to seek permission to enter the zone.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security Directive 023-01, and Commandant Instruction M16475.1D, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a regulation that would prohibit persons and vessels from transiting the regulated area during the air show. This action is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A supplemental Environmental Assessment supporting this determination is available in the docket where indicated under ADDRESSES.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 100

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

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

    PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS 1. The authority citation for part 100 continues to read as follows: Authority:

    33 U.S.C. 1233; 33 CFR 1.05-1.

    2. Add § 100.726 to read as follows:
    § 100.726 Special Local Regulation; Fort Lauderdale Air Show; Atlantic Ocean, Fort Lauderdale, FL.

    (a) Location. The following area is a regulated area located on the Atlantic Ocean in Fort Lauderdale, FL. All waters of the Atlantic Ocean encompassed within an imaginary line connecting the following points: Starting at Point 1 in position 26°11′01″ N 080°05′42″ W; thence due east to Point 2 in position 26°11′01″ N 080°05′00″ W; thence south west to Point 3 in position 26°05′42″ N 080°05′35″ W; thence west to Point 4 in position 26°05′42″ N 080°06′17″ W; thence following the shoreline north back to the point of origin. These coordinates are based on North American Datum 1983.

    (b) Definition. The term “designated representative” means Coast Guard Patrol Commanders, including Coast Guard coxswains, petty officers, and other officers operating Coast Guard vessels, and Federal, state, and local officers designated by or assisting the Captain of the Port Miami in the enforcement of the regulated area.

    (c) Regulations. (1) All non-participant vessels or persons are prohibited from entering, transiting through, anchoring in, or remaining within the regulated area unless authorized by the Captain of the Port Miami or a designated representative.

    (2) Persons and vessels desiring to enter, transit through, anchor in, or remain within the regulated area may contact the Captain of the Port Miami by telephone at (305) 535-4472, or a designated representative via VHF-FM radio on channel 16 to request authorization. If authorization is granted, all persons and vessels receiving such authorization must comply with the instructions of the Captain of the Port Miami or a designated representative.

    (d) Enforcement period. This rule will be enforced annually on one weekend (Saturday and Sunday) during the month of May. The exact dates will be published annually in the Federal Register through a Notice of Enforcement. The Coast Guard may use Broadcast Notice to Mariners via VHF-FM channel 16 or on-scene designated representatives to notify the public of the exact dates and time of enforcement.

    Dated: May 1, 2018. M.M. Dean, Captain, U.S. Coast Guard, Captain of the Port Miami.
    [FR Doc. 2018-09497 Filed 5-3-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket No. USCG-2017-0993] Special Local Regulation: Fort Lauderdale Air Show; Atlantic Ocean, Fort Lauderdale, FL AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of enforcement of regulation.

    SUMMARY:

    The Coast Guard will enforce the special local regulation for the Fort Lauderdale Air Show from May 5 through 6, 2018 from 9:00 a.m. to 6:00 p.m., to provide for the safety of life on navigable waterways during this event. During the enforcement periods, the operator of any vessel in the regulated area must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard ensign.

    DATES:

    The special local regulation in 33 CFR 100.726 will be enforced from 9 a.m. until 6 p.m., each day from May 5, 2018, through May 6, 2018.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this notice of enforcement, call Petty Officer Mara J. Brown, Sector Miami Waterways Management Division, U.S. Coast Guard; telephone 305-535-4317, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Coast Guard will enforce the special local regulation in 33 CFR 100.726 for the Fort Lauderdale Air Show regulated area from 9:00 a.m. to 6:00 p.m. on May 5 and 6, 2018. This action is being taken to provide for the safety of life on navigable waterways during this 2-day event. Our regulation for the Fort Lauderdale Air Show, § 100.726, specifies the location of the regulated area for the Fort Lauderdale Air Show which is located on the Atlantic Ocean, east of Ft. Lauderdale, FL. During the enforcement periods, if you are the operator of a vessel in the regulated area you must comply with directions from the Patrol Commander or any Official Patrol displaying a Coast Guard ensign.

    In addition to this notice of enforcement in the Federal Register, the Coast Guard plans to provide notification of this enforcement period via the Local Notice to Mariners and marine information broadcasts.

    Dated: May 1, 2018. M.M. Dean, Captain, U.S. Coast Guard, Captain of the Port Miami.
    [FR Doc. 2018-09496 Filed 5-3-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2017-1074] Drawbridge Operation Regulation; San Leandro Bay, Between Alameda and Bay Farm Island, CA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has modified a temporary deviation from the operating schedule that governs the California Department of Transportation Highway and Bicycle drawbridges across San Leandro Bay, mile 0.0 and mile 0.1, between Alameda and Bay Farm Island, CA. The modified deviation extends the period the bridges may remain in the closed-to-navigation position and is necessary to allow the bridge owner to complete major rehabilitation and maintenance.

    DATES:

    This modified deviation is effective from 6 p.m. on May 27, 2018 through 9 p.m. on June 7, 2018.

    ADDRESSES:

    The docket for this deviation, USCG-2017-1074, is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Carl T. Hausner, Chief, Bridge Section, Eleventh Coast Guard District; telephone 510-437-3516; email [email protected]

    SUPPLEMENTARY INFORMATION:

    On December 20, 2017, the Coast Guard published a temporary deviation entitled “Drawbridge Operation Regulation; San Leandro Bay, between Alameda and Bay Farm Island, California” in the Federal Register (82 FR 60315). That temporary deviation, from 6 a.m. on January 2, 2018 to 6 p.m. on May 27, 2018, allows the drawspans to be secured in the closed-to-navigation position. The bridge owner, the California Department of Transportation, has requested a modification to the currently published deviation, extending it from 6 p.m. on May 27, 2018 to 9 p.m. on June 7, 2018 in order to complete major rehabilitation and maintenance of the drawbridges.

    The highway drawbridge navigation span provides a vertical clearance of 20 feet above Mean High Water in the closed-to-navigation position. The bicycle drawbridge navigation span provides a vertical clearance of 26 feet above Mean High Water in the closed-to-navigation position. The draws operate as required by 33 CFR 117.193. Navigation on the waterway is commercial and recreational.

    The drawspans will be secured in the closed-to-navigation position from 6 p.m. on May 27, 2018 through 9 p.m. on June 7, 2018, to allow the bridge to complete major rehabilitation and maintenance work. A temporary platform is installed beneath the drawspan of the highway drawbridge reducing he vertical clearance by 3 feet. This temporary deviation modification has been coordinated with waterway users. No objections to the proposed temporary deviation modification were raised.

    Vessels able to pass through the bridge in the closed position may do so at any time. The bridge will not be able to open for emergencies and Oakland Inner Harbor Tidal Canal can be used as an alternate route for vessels unable to pass through the bridges in the closed position. The Coast Guard will also inform the users of the waterway through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridges so vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

    In accordance with 33 CFR 117.35(e), the drawbridges must return to their regular operating schedule immediately at the end of the effective period of this temporary deviation. This deviation from the operating regulations is authorized under 33 CFR 117.35.

    Dated: April 30, 2018. Carl T. Hausner, District Bridge Chief, Eleventh Coast Guard District.
    [FR Doc. 2018-09432 Filed 5-3-18; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2017-0255; FRL-9977-23—Region 9] Air Plan Approval; Arizona; Stationary Sources; New Source Review AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve revisions to the Arizona Department of Environmental Quality (ADEQ) portion of the applicable Clean Air Act (CAA or Act) state implementation plan (SIP) for the State of Arizona (State). We are approving revisions that are primarily intended to correct deficiencies in ADEQ's SIP-approved rules for the issuance of New Source Review (NSR) permits for stationary sources, with a focus on the Act's preconstruction permit requirements for major sources and major modifications. This action also finalizes a conditional approval of ADEQ's NSR program with respect to the CAA requirements related to ammonia as a precursor to fine particulate matter (PM2.5) under the nonattainment NSR (NA-NSR) program requirements in CAA section 189(e). In addition, this action permanently terminates the sanctions clock associated with deficiencies being corrected by the rules being approved today, except that this action continues the deferral of sanctions under the Act related to PM2.5 precursors under section 189(e) of the Act for the NA-NSR program.

    DATES:

    This rule is effective June 4, 2018.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2017-0255. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through http://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Lisa Beckham, EPA Region IX, (415) 972-381, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, “we,” “us” and “our” refer to the EPA.

    Table of Contents I. Proposed Actions II. Public Comments and the EPA's Responses III. EPA Action IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. Proposed Actions

    On June 1, 2017 (82 FR 25213), the EPA proposed to approve the rules listed in Table 1, below, which were submitted by ADEQ on April 28, 2017 for approval into the ADEQ portion of the Arizona SIP (hereinafter referred to as the April 2017 NSR submittal). The submitted rules are from the Arizona Administrative Code, Title 18—Environmental Quality, Chapter 2—Department of Environmental Quality—Air Pollution Control, Articles 1 through 4.

    Table 1—Submitted Rules Being Approved Into the Arizona SIP in This Action Rule Title State effective date R18-2-101 (except 20) Definitions March 21, 2017. R18-2-201 Particulate Matter: PM10 and PM2.5 March 21, 2017. R18-2-203 Ozone March 21, 2017. R18-2-217 Designation and Classification of Attainment Areas March 21, 2017. R18-2-218 Limitation of Pollutants in Classified Attainment Areas March 21, 2017. R18-2-330 Public Participation March 21, 2017. R18-2-332 Stack Height Limitation March 21, 2017. R18-2-401 Definitions March 21, 2017. R18-2-402 General March 21, 2017. R18-2-403 Permits for Sources Located in Nonattainment Areas March 21, 2017. R18-2-404 Offset Standards March 21, 2017. R18-2-405 Special Rule for Major Sources of VOC or Nitrogen Oxides in Ozone Nonattainment Areas Classified as Serious or Severe March 21, 2017. R18-2-406 Permit Requirements for Sources Located in Attainment and Unclassifiable Areas March 21, 2017. R18-2-407 Air Quality Impact Analysis and Monitoring Requirements March 21, 2017. R18-2-408 Innovative Control Technology March 21, 2017. R18-2-410 Visibility and Air Quality Related Value Protection March 21, 2017. R18-2-411 Permit Requirements for Sources that Locate in Attainment or Unclassifiable Areas and Cause or Contribute to a Violation of Any National Ambient Air Quality Standard March 21, 2017. R18-2-412 PALs March 21, 2017.

    As discussed in our June 1, 2017 proposed action, these rule revisions are intended to correct deficiencies in ADEQ's SIP-approved NSR program related to the requirements under both part C (prevention of significant deterioration or PSD) and part D (NA-NSR) of title I of the Act, which apply to major stationary sources and major modifications of such sources. 82 FR 25213. These revisions are necessary to correct several deficiencies we identified in a 2015 EPA final rule action to update ADEQ's SIP-approved NSR program, as well as certain deficiencies with ADEQ's NSR program that were the focus of a 2016 EPA final rule action related to PM2.5 precursors under the NA-NSR program requirements in CAA section 189(e). See 80 FR 67319 (Nov. 2, 2015) and 81 FR 40525 (June 22, 2016). We proposed to approve the April 2017 NSR submittal because we determined that the rules in the submittal complied with the relevant CAA requirements, with one exception, which ADEQ had indicated that it intended to address with a later SIP submittal, as discussed further below. Our June 1, 2017 proposed action contains more information on the rules in the April 2017 NSR submittal and our evaluation.

    We also stated in our June 1, 2017 proposal that in our final action, we intended to update 40 CFR 52.144 to clarify that ADEQ has an approved PSD program, except for greenhouse gases (GHGs),1 under sections 160 through 165 of the Act. We explained that we would also move the codification of the PSD Federal Implementation Plan (FIP) for GHGs for Arizona from 40 CFR 52.37 to 40 CFR 52.144, where the State of Arizona's PSD program approval is listed.

    1 ADEQ is currently subject to a Federal Implementation Plan (FIP) under the PSD program for GHGs because ADEQ has not adopted a PSD program for the regulation of GHGs. ADEQ's April 2017 NSR submittal was not intended to correct this program deficiency, as regulation of GHG emissions is currently prohibited under State law. See A.R.S. section 49-191.

    The rules in the April 2017 NSR submittal will apply in all areas and to all stationary sources within Arizona for which ADEQ has CAA permitting jurisdiction. Currently, ADEQ has permitting jurisdiction for the following stationary source categories in all areas of Arizona: Smelting of metal ores, coal-fired electric generating stations, petroleum refineries, Portland cement plants, and portable sources. ADEQ also has permitting jurisdiction for major and minor sources in the following counties: Apache, Cochise, Coconino, Gila, Graham, Greenlee, La Paz, Mohave, Navajo, Santa Cruz, Yavapai, and Yuma. Finally, ADEQ has permitting jurisdiction over major sources in Pinal County 2 and the Rosemont Copper Mine in Pima County.

    2 ADEQ has delegated implementation of the major source program to the Pinal County Air Quality Control District.

    Table 2 lists the existing rules in the Arizona SIP that would be superseded or removed from the ADEQ portion of the Arizona SIP as part of our action. These rules would generally be replaced in the SIP by the submitted set of rules listed in Table 1.

    Table 2—SIP Rules Being Removed From Arizona SIP in This Action Rule Title EPA approval date Federal
  • Register citation
  • R9-3-301(I) and (K) Installation Permits: General 05/05/1982 47 FR 19326 R9-3-304(H) Installation Permits in Attainment Areas 05/03/1983 48 FR 19878 R18-2-101 Definitions 11/23/2014
  • 11/2/2015
  • 79 FR 56655
  • 80 FR 67319
  • R18-2-201 Particulate Matter: PM10 and PM2.5 09/23/2014 79 FR 56655 R18-2-203 Ozone: One-hour Standard and Eight-hour Averaged Standard 09/23/2014 79 FR 56655 R18-2-217 Designation and Classification of Attainment Areas 11/2/2015 80 FR 67319 R18-2-218 Limitation of Pollutants in Classified Attainment Areas 11/2/2015 80 FR 67319 R18-2-330 Public Participation 11/2/2015 80 FR 67319 R18-2-332 Stack Height Limitation 11/2/2015 80 FR 67319 R18-2-401 Definitions 11/2/2015 80 FR 67319 R18-2-402 General 11/2/2015 80 FR 67319 R18-2-403 Permits for Sources Located in Nonattainment Areas 11/2/2015 80 FR 67319 R18-2-404 Offset Standards 11/2/2015 80 FR 67319 R18-2-405 Special Rule for Major Sources of VOC or Nitrogen Oxides in Ozone Nonattainment Areas Classified as Serious or Severe 11/2/2015 80 FR 67319 R18-2-406 Permit Requirements for Sources Located in Attainment and Unclassifiable Areas 11/2/2015 80 FR 67319 R18-2-407 Air Quality Impact Analysis and Monitoring Requirements 11/2/2015 80 FR 67319 R18-2-412 PALs 11/2/2015 80 FR 67319

    Simultaneously with our proposed approval action on June 1, 2017, we published a related interim final determination to defer sanctions. 82 FR 25203. This interim final determination was based on our proposed finding that with the April 2017 NSR submittal, the State had satisfied the requirements of part D of the CAA permitting program for areas under the jurisdiction of ADEQ with respect to issues that had been identified as the basis for an earlier final limited disapproval action on November 2, 2015, under title I, part D of the Act, relating to requirements for nonattainment areas. See 80 FR 67319 (Nov. 2, 2015).

    Subsequently, on January 10, 2018, the EPA supplemented its June 1, 2017 proposal on ADEQ's April 2017 NSR submittal to address the outstanding requirement that had been identified in the June 1, 2017 proposal. See 83 FR 1212. Specifically, we had found in our June 1, 2017 proposal that while ADEQ's updated NA-NSR program, as reflected in the April 2017 NSR submittal, included ammonia as a precursor to PM2.5 in PM2.5 nonattainment areas, the rules in the April 2017 NSR submittal did not define the term “significant” for purposes of applying the requirements of 40 CFR 51.165(a)(13) to modifications at existing major stationary sources of ammonia located in a PM2.5 nonattainment area, as required by 40 CFR 51.165(a)(1)(x)(F). ADEQ must address this requirement to fully resolve the deficiencies in its NA-NSR program related to PM2.5 precursors under the NA-NSR program requirements in CAA section 189(e) that were identified in our 2016 EPA final rule action. See 81 FR 40525 (June 22, 2016). To address this remaining deficiency, in a letter dated December 6, 2017, ADEQ committed to adopt certain rule revisions and/or make other specific demonstrations by March 31, 2019. The EPA therefore proposed a conditional approval of ADEQ's NA-NSR program pursuant to CAA section 110(k)(4) solely as it pertains to section 189(e) of the Act and the associated regulatory requirements for ammonia as a PM2.5 precursor in our supplemental action on January 10, 2018.

    In addition, simultaneously with our proposed conditional approval action on January 10, 2018, we published an interim final determination to defer sanctions based on that proposed conditional approval action and our June 1, 2017 proposed approval action. 83 FR 1995. The EPA made an interim final determination that the State had satisfied the requirements of part D of the CAA permitting program for areas under the jurisdiction of ADEQ with respect to fine particular matter (PM2.5) precursors under section 189(e). The effect of our interim final determination that the State has corrected the deficiency in the permitting program was that the imposition of sanctions that were triggered by our previous limited disapproval action on June 22, 2016 (at 81 FR 40525) was deferred.

    Our June 1, 2017 proposal, our January 10, 2018 supplemental proposal, and the two accompanying interim final determinations described above contain more information on the basis for the determinations we made in these actions.

    II. Public Comments and the EPA's Responses

    The EPA's proposal and supplemental proposal each provided for a 30-day public comment period. We did not receive any comments during the public comment period on our June 1, 2017 proposed approval action, and we received one supportive comment from the Wyoming Department of Environmental Quality on our concurrent interim final determination to defer sanctions. We received 12 anonymous comments on our January 10, 2018 supplemental proposal and/or the related interim final determination to defer sanctions. Commenters on our January 10, 2018 proposal and interim final determination generally raised issues that are outside of the scope of this rulemaking and interim final determination, including but not limited to the National Environmental Policy Act (NEPA), climate science, the Intergovernmental Panel on Climate Change, the Navajo Generating Station (located on Tribal land), forest management, wildfire suppression, GHGs and other emissions from wildfires, and the Cross-State Air Pollution Rule. We also received one comment that was supportive of ADEQ correcting deficiencies in its program. The EPA is required to approve a state submittal if the submittal meets all applicable requirements. 42 U.S.C. 7410(k)(3). Commenters did not raise any specific issues germane to the approvability of the April 2017 NSR submittal, which relates to the permitting of stationary sources, including any issues germane to our proposal to conditionally approve ADEQ's NA-NSR program pursuant to CAA section 110(k)(4) solely as it pertains to section 189(e) of the Act and the associated regulatory requirements for ammonia as a PM2.5 precursor. Commenters also did not raise any specific issues germane to our interim final determinations to defer sanctions.

    III. The EPA's Action

    No comments were submitted that change our assessment of the rules submitted in the 2017 ADEQ NSR submittal and proposed for approval into the Arizona SIP as described in our proposed actions, nor were any comments submitted that change our assessment that certain ADEQ rules should be removed from the Arizona SIP as discussed in our proposals. Therefore, as authorized in section 110(k)(3) of the Act, the EPA is approving the rules in the 2017 ADEQ NSR submittal, as described in Table 1 above, into the ADEQ portion of the Arizona SIP, and the EPA is removing from the Arizona SIP the rules identified above in Table 2. Also, consistent with our proposal, we are moving the codification of the PSD FIP for GHGs for Arizona from 40 CFR 52.37 to 40 CFR 52.144, where the State of Arizona's PSD program approval is listed, and amending the regulatory text in 40 CFR 51.144 to clarify that ADEQ has an approved PSD program, except for GHGs, under sections 160 through 165 of the Act.

    As a result of this final approval action, the offset sanction in CAA section 179, which would have applied 18 months after the effective date of our November 2, 2015 limited disapproval action (80 FR 67319), and the highway funding sanction in CAA section 179, which would have applied six months after this offset sanction was imposed, are permanently terminated.

    We also received no comments that changed the determinations that were the basis for our proposed conditional approval action, thus we are finalizing a conditional approval of ADEQ's NA-NSR program solely with respect to ammonia as a precursor to PM2.5 under section 189(e) of the Act pursuant to CAA section 110(k)(4), as discussed in our supplemental proposal dated January 10, 2018. While we cannot grant full approval of the submittal at this time with respect to this issue, ADEQ has satisfactorily committed to address this deficiency by providing the EPA with a SIP submittal by March 31, 2019 that will include specific rule revisions and/or demonstrations that would adequately address this issue. If ADEQ submits the rule revisions and/or demonstrations that it has committed to submit by this deadline, and the EPA approves the submission, then this deficiency will be cured. However, if ADEQ fails to submit these revisions and/or demonstrations within the required timeframe, the conditional approval will become a disapproval for the specific issue of whether ADEQ's NA-NSR program meets the requirements of section 189(e) of the Act with respect to ammonia as a PM2.5 precursor, and the EPA will issue a finding of disapproval. The EPA is not required to propose the finding of disapproval.

    Further, as a result of our final approval action and our final conditional approval action with respect to PM2.5 precursors under section 189(e) of the Act, all sanctions and any sanction clocks triggered by our 2016 PM2.5 precursor action (81 FR 40525) continue to be deferred unless at a later date our conditional approval converts to a disapproval, or the EPA proposes to take or takes final action to disapprove in whole or in part the SIP submittal that ADEQ is required to submit to fulfill its commitment in the conditionally approved plan. Sanctions and sanctions clocks triggered by our 2016 PM2.5 precursor action would be permanently terminated on the effective date of a final approval of the SIP submittal that ADEQ submits to fulfill the commitment in the conditionally approved plan.

    IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the ADEQ rules described in the amendments to 40 CFR part 52 set forth below. The EPA has made, and will continue to make, these documents available through www.regulations.gov and at the EPA Region IX Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information). Therefore, these materials have been approved by the EPA for inclusion in the Arizona SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.3

    3 62 FR 27968 (May 22, 1997).

    V. Statutory and Executive Order Reviews

    Under the CAA, the EPA Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the 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 3, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866;

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

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

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

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

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

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

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

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

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

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by July 3, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See CAA section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

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

    Dated: April 18, 2018. Alexis Strauss, Acting Regional Administrator, Region IX.

    For the reasons stated in the preamble, part 52, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart A—General Provisions
    § 52.37 [Removed and Reserved]
    2. Section 52.37 is removed and reserved. Subpart D—Arizona 3. Section 52.119 is added to read as follows:
    § 52.119 Identification of plan—conditional approvals.

    This section identifies plan revisions that are conditionally approved based upon commitments received from the State.

    (a) A plan revision for the Arizona Department of Environmental Quality (ADEQ) submitted April 28, 2017, by the Governor's designee, updating ADEQ's Clean Air Act (CAA) new source review (NSR) program only with respect to the CAA requirements related to ammonia as a precursor to PM2.5 under the nonattainment NSR program requirements in CAA section 189(e). This plan revision is conditionally approved as follows:

    (1) The conditional approval is based upon the December 6, 2017 commitment from the State to submit a SIP revision to the EPA by March 31, 2019 consisting of rule revisions and/or demonstrations that will correct the deficiencies identified with this submittal, as specified in ADEQ's December 6, 2017 commitment letter. If the State fails to meet its commitment by March 31, 2019, the conditional approval will be treated as a disapproval only with respect to the CAA requirements related to ammonia as a precursor to PM2.5 under the nonattainment NSR program requirements in CAA section 189(e).

    (2) [Reserved]

    (b) [Reserved]

    4. In § 52.120, paragraph (c), Table 2 is amended: a. Under Title 9, Chapter 3, by removing the center heading “Article 3” and entries “R9-3-301, paragraphs I and K” and “R9-3-304, paragraph H”; b. Under Title 18, Chapter 2, Article 1, by: i. Removing entries “R18-2-101, definitions (2), (32), (87), (109), and (122)” and “R18-2-101 excluding definitions (2), (20), (32), (87), (109), and (122)”; and ii. Adding, in numerical order, the entry “R18-2-101 (except 20)”; c. Under Title 18, Chapter 2, Article 2, by revising the entries for “R18-2-201,” “R18-2-203,” “R18-2-217,” and “R18-2-218”; d. Under Title 18, Chapter 2, Article 3, by revising the entries for “R18-2-330” and “R18-2-332”; and e. Under Title 18, Chapter 2, Article 4, by: i. Revising the entries for “R18-2-401” through “R18-2-406”; ii. Removing the entry “R18-2-407, excluding subsection (H)(1)(c)”; iii. Adding, in numerical order, the entries “R18-2-407,” “R-18-2-408,” “R18-2-410,” and “R18-2-411;” and iv. Revising the entry for “R18-2-412”.

    The addition and revisions read as follows:

    § 52.120 Identification of plan.

    (c) * * *

    Table 2—EPA-Approved Arizona Regulations State citation Title/subject State effective date EPA approval date Additional explanation Arizona Administrative Code *         *         *         *         *         *         * Title 18 (Environmental Quality) Chapter 2 (Department of Environmental Quality Air Pollution Control) Article 1 (General) R18-2-101 (except 20) Definitions March 21, 2017 [INSERT Federal Register CITATION], May 4, 2018 Submitted on April 28, 2017. *         *         *         *         *         *         * Article 2 (Ambient Air Quality Standards; Area Designations; Classifications) R18-2-201 Particulate Matter: PM10 and PM2.5 March 21, 2017 [INSERT Federal Register CITATION], May 4, 2018 Submitted on April 28, 2017. *         *         *         *         *         *         * R18-2-203 Ozone March 21, 2017 [INSERT Federal Register CITATION], May 4, 2018 Submitted on April 28, 2017. *         *         *         *         *         *         * R18-2-217 Designation and Classification of Attainment Areas March 21, 2017 [INSERT Federal Register CITATION], May 4, 2018 Submitted on April 28, 2017. R18-2-218 Limitation of Pollutants in Classified Attainment Areas March 21, 2017 [INSERT Federal Register CITATION], May 4, 2018 Submitted on April 28, 2017. *         *         *         *         *         *         * Article 3 (Permits and Permit Revisions) *         *         *         *         *         *         * R18-2-330 Public Participation March 21, 2017 [INSERT Federal Register CITATION], May 4, 2018 Submitted on April 28, 2017. R18-2-332 Stack Height Limitation March 21, 2017 [INSERT Federal Register CITATION], May 4, 2018 Submitted on April 28, 2017. *         *         *         *         *         *         * Article 4 (Permit Requirements for New Major Sources and Major Modifications to Existing Major Sources) R18-2-401 Definitions March 21, 2017 [INSERT Federal Register CITATION], May 4, 2018 Submitted on April 28, 2017. R18-2-402 General March 21, 2017 [INSERT Federal Register CITATION], May 4, 2018 Submitted on April 28, 2017. R18-2-403 Permits for Sources Located in Nonattainment Areas R18-2-403 [INSERT Federal Register CITATION], May 4, 2018 Submitted on April 28, 2017. R18-2-404 Offset Standards March 21, 2017 [INSERT Federal Register CITATION], May 4, 2018 Submitted on April 28, 2017. R18-2-405 Special Rule for Major Sources of VOC or Nitrogen Oxides in Ozone Nonattainment Areas Classified as Serious or Severe March 21, 2017 [INSERT Federal Register CITATION], May 4, 2018 Submitted on April 28, 2017. R18-2-406 Permit Requirements for Sources Located in Attainment and Unclassifiable Areas March 21, 2017 [INSERT Federal Register CITATION], May 4, 2018 Submitted on April 28, 2017. R18-2-407 Air Quality Impact Analysis and Monitoring Requirements March 21, 2017 [INSERT Federal Register CITATION], May 4, 2018 Submitted on April 28, 2017. R18-2-408 Innovative Control Technology March 21, 2017 [INSERT Federal Register CITATION], May 4, 2018 Submitted on April 28, 2017. *         *         *         *         *         *         * R18-2-410 Visibility and Air Quality Related Value Protection March 21, 2017 [INSERT Federal Register CITATION], May 4, 2018 Submitted on April 28, 2017. R18-2-411 Permit Requirements for Sources that Locate in Attainment or Unclassifiable Areas and Cause or Contribute to a Violation of Any National Ambient Air Quality Standard March 21, 2017 [INSERT Federal Register CITATION], May 4, 2018 Submitted on April 28, 2017. R18-2-412 PALs March 21, 2017 [INSERT Federal Register CITATION], May 4, 2018 Submitted on April 28, 2017. *         *         *         *         *         *         *
    5. Section 52.144 is amended by adding paragraph (c) to read as follows:
    § 52.144 Significant deterioration of air quality.

    (c) The requirements of sections 160 through 165 of the Clean Air Act are met as they apply to stationary sources under the jurisdiction of the Arizona Department of Environmental Quality (ADEQ), except with respect to emissions of greenhouse gases (GHGs) (as defined in § 52.21(b)(49)(i)). Therefore, the provisions of § 52.21, except paragraph (a)(1) of this section, for GHGs are hereby made a part of the plan for stationary sources under the jurisdiction of ADEQ as it applies to the stationary sources described in § 52.21(b)(49)(iv).

    [FR Doc. 2018-09205 Filed 5-3-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2016-0315; FRL-9977-49-Region 4] Air Plan Approval; Georgia; Regional Haze Plan and Prong 4 (Visibility) for the 2012 PM2.5, 2010 NO2, 2010 SO2, and 2008 Ozone NAAQS AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving the portion of Georgia's July 26, 2017, State Implementation Plan (SIP) submittal changing reliance from the Clean Air Interstate Rule (CAIR) to the Cross-State Air Pollution Rule (CSAPR) for certain regional haze requirements. EPA is also converting the previous limited approval/limited disapproval of Georgia's regional haze plan to a full approval and is removing the Federal Implementation Plan (FIP) for Georgia which replaced reliance on CAIR with reliance on CSAPR. Finally, EPA is converting the conditional approvals to full approvals for the visibility prong of Georgia's infrastructure SIP submittals for the 2012 Fine Particulate Matter (PM2.5), 2010 Nitrogen Dioxide (NO2), 2010 Sulfur Dioxide (SO2), and 2008 8-hour Ozone National Ambient Air Quality Standards (NAAQS).

    DATES:

    This rule will be effective June 4, 2018.

    ADDRESSES:

    EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2016-0315. All documents in the docket are listed on the www.regulations.gov website. Although listed in the index, some information may not be publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street, SW, Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Michele Notarianni, Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. Ms. Notarianni can be reached by telephone at (404) 562-9031 or via electronic mail at [email protected]

    SUPPLEMENTARY INFORMATION: I. Background A. Regional Haze Plans and Their Relationship With CAIR and CSAPR

    Section 169A(b)(2)(A) of the Clean Air Act (CAA or Act) requires states to submit regional haze plans that contain such measures as may be necessary to make reasonable progress towards the natural visibility goal, including a requirement that certain categories of existing major stationary sources built between 1962 and 1977 procure, install, and operate Best Available Retrofit Technology (BART) as determined by the state. Under the Regional Haze Rule (RHR), states are directed to conduct BART determinations for such “BART-eligible” sources that may be anticipated to cause or contribute to any visibility impairment in a Class I area. Rather than requiring source-specific BART controls, states also have the flexibility to adopt an emissions trading program or other alternative program as long as the alternative provides greater reasonable progress towards improving visibility than BART. See 40 CFR 51.308(e)(2). EPA provided states with this flexibility in the RHR, adopted in 1999, and further refined the criteria for assessing whether an alternative program provides for greater reasonable progress in two subsequent rulemakings. See 64 FR 35714 (July 1, 1999); 70 FR 39104 (July 6, 2005); 71 FR 60612 (October 13, 2006).

    EPA demonstrated that CAIR would achieve greater reasonable progress than BART in revisions to the regional haze program made in 2005.1 See 70 FR 39104 (July 6, 2005). In those revisions, EPA amended its regulations to provide that states participating in the CAIR cap-and-trade programs pursuant to an EPA-approved CAIR SIP or states that remain subject to a CAIR FIP need not require affected BART-eligible electric generating units (EGUs) to install, operate, and maintain BART for emissions of SO2 and nitrogen oxides (NOX). As a result of EPA's determination that CAIR was “better-than-BART,” a number of states in the CAIR region, including Georgia, relied on the CAIR cap-and-trade programs as an alternative to BART for EGU emissions of SO2 and NOX in designing their regional haze plans. These states also relied on CAIR as an element of a long-term strategy (LTS) for achieving their reasonable progress goals (RPGs) for their regional haze programs. However, in 2008, the United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) remanded CAIR to EPA without vacatur to preserve the environmental benefits provided by CAIR. North Carolina v. EPA, 550 F.3d 1176, 1178 (D.C. Cir. 2008). On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's remand, EPA promulgated CSAPR to replace CAIR and issued FIPs to implement the rule in CSAPR-subject states.2 Implementation of CSAPR was scheduled to begin on January 1, 2012, when CSAPR would have superseded the CAIR program.

    1 CAIR created regional cap-and-trade programs to reduce SO2 and NOX emissions in 27 eastern states (and the District of Columbia), including Georgia, that contributed to downwind nonattainment or interfered with maintenance of the 1997 8-hour ozone NAAQS or the 1997 PM2.5 NAAQS.

    2 CSAPR requires 28 eastern states to limit their statewide emissions of SO2 and/or NOX in order to mitigate transported air pollution unlawfully impacting other states' ability to attain or maintain four NAAQS: the 1997 ozone NAAQS, the 1997 annual PM2.5 NAAQS, the 2006 24-hour PM2.5 NAAQS, and the 2008 8-hour ozone NAAQS. The CSAPR emissions limitations are defined in terms of maximum statewide “budgets” for emissions of annual SO2, annual NOX, and/or ozone-season NOX by each covered state's large EGUs. The CSAPR state budgets are implemented in two phases of generally increasing stringency, with the Phase 1 budgets applying to emissions in 2015 and 2016 and the Phase 2 budgets applying to emissions in 2017 and later years.

    Due to the D.C. Circuit's 2008 ruling that CAIR was “fatally flawed” and its resulting status as a temporary measure following that ruling, EPA could not fully approve regional haze plans to the extent that they relied on CAIR to satisfy the BART requirement and the requirement for a LTS sufficient to achieve the state-adopted RPGs. On these grounds, EPA finalized a limited disapproval of Georgia's regional haze plan on June 7, 2012 (77 FR 33642), and in the same action, promulgated a FIP to replace reliance on CAIR with reliance on CSAPR to address the deficiencies in Georgia's regional haze plan. EPA finalized a limited approval of Georgia's regional haze plan on June 28, 2012 (77 FR 38501), as meeting the remaining applicable regional haze requirements set forth in the CAA and the RHR.

    In the June 7, 2012, limited disapproval action, EPA also amended the RHR to provide that participation by a state's EGUs in a CSAPR trading program for a given pollutant—either a CSAPR federal trading program implemented through a CSAPR FIP or an integrated CSAPR state trading program implemented through an approved CSAPR SIP revision—qualifies as a BART alternative for those EGUs for that pollutant. See 40 CFR 51.308(e)(4). Since EPA promulgated this amendment, numerous states covered by CSAPR have come to rely on the provision through either SIPs or FIPs.3

    3 EPA has promulgated FIPs relying on CSAPR participation for BART purposes for Georgia, Indiana, Iowa, Kentucky, Michigan, Missouri, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, and West Virginia, 77 FR at 33654, and Nebraska, 77 FR 40150, 40151 (July 6, 2012). EPA has approved SIPs from several states relying on CSAPR participation for BART purposes. See, e.g., 82 FR 47393 (October 12, 2017) for Alabama; 77 FR 34801 (June 12, 2012) for Minnesota; and 77 FR 46952 (August 7, 2012) for Wisconsin.

    Numerous parties filed petitions for review of CSAPR in the D.C. Circuit, and on August 21, 2012, the court issued its ruling, vacating and remanding CSAPR to EPA and ordering continued implementation of CAIR. EME Homer City Generation, L.P. v. EPA, 696 F.3d 7, 38 (D.C. Cir. 2012). The D.C. Circuit's vacatur of CSAPR was reversed by the United States Supreme Court on April 29, 2014, and the case was remanded to the D.C. Circuit to resolve remaining issues in accordance with the high court's ruling. EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584 (2014). On remand, the D.C. Circuit affirmed CSAPR in most respects, but invalidated without vacating some of the CSAPR budgets as to a number of states. EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (D.C. Cir. 2015). The remanded budgets include the Phase 2 SO2 emissions budgets for Alabama, Georgia, South Carolina, and Texas and the Phase 2 ozone-season NOX budgets for 11 states. This litigation ultimately delayed implementation of CSAPR for three years, from January 1, 2012, when CSAPR's cap-and-trade programs were originally scheduled to replace the CAIR cap-and-trade programs, to January 1, 2015. Thus, the rule's Phase 2 budgets that were originally promulgated to begin on January 1, 2014, began on January 1, 2017.

    On September 29, 2017 (82 FR 45481), EPA issued a final rule affirming the continued validity of the Agency's 2012 determination that participation in CSAPR meets the RHR's criteria for an alternative to the application of source-specific BART.4 EPA has determined that changes to CSAPR's geographic scope resulting from the actions EPA has taken or expects to take in response to the D.C. Circuit's budget remand do not affect the continued validity of participation in CSAPR as a BART alternative, because the changes in geographic scope would not have adversely affected the results of the air quality modeling analysis upon which the EPA based the 2012 determination. EPA's September 29, 2017, determination was based, in part, on EPA's final action approving a SIP revision from Alabama (81 FR 59869 (August 31, 2016)) adopting Phase 2 annual NOX and SO2 budgets equivalent to the federally-developed budgets and on SIP revisions submitted by Georgia and South Carolina to also adopt Phase 2 annual NOX and SO2 budgets equivalent to the federally-developed budgets.5 Since that time, EPA has approved the SIP revisions from Georgia and South Carolina. See 82 FR 47930 (October 13, 2017) and 82 FR 47936 (October 13, 2017), respectively.

    4 Legal challenges to this rule are pending. Nat'l Parks Conservation Ass'n v. EPA, No. 17-1253 (D.C. Cir. filed November 28, 2017).

    5 EPA proposed to approve the Georgia and South Carolina SIP revisions adopting CSAPR budgets on August 16, 2017 (82 FR 38866), and August 10, 2017 (82 FR 37389), respectively.

    A portion of Georgia's July 26, 2017, SIP submittal seeks to correct the deficiencies identified in the June 7, 2012, limited disapproval of its regional haze plan submitted on February 11, 2010, and supplemented on November 19, 2010, by replacing reliance on CAIR with reliance on CSAPR.6 Specifically, Georgia requests that EPA amend the State's regional haze plan by replacing its reliance on CAIR with CSAPR to satisfy SO2 and NOX BART requirements and first implementation period SO2 reasonable progress requirements for EGUs formerly subject to CAIR,7 and to support the RPGs for the Class I areas in Georgia for the first implementation period. EPA is approving the regional haze plan portion of the SIP submittal and amending the SIP accordingly.

    6 On October 13, 2017, (82 FR 47930), EPA approved the portions of the July 26, 2017, SIP submission incorporating into Georgia's SIP the State's regulations requiring Georgia EGUs to participate in CSAPR state trading programs for annual NOX and SO2 emissions integrated with the CSAPR federal trading programs and thus replacing the corresponding FIP requirements. In the October 13, 2017, action, EPA did not take any action regarding Georgia's request in this July 26, 2017, SIP submission to revise the State's regional haze plan nor regarding the prong 4 element of the 2008 8-hour ozone, 2010 1-hour NO2, 2010 1-hour SO2, and 2012 PM2.5 NAAQS.

    7 In its regional haze plan, Georgia concluded and EPA found acceptable the State's determination that no additional controls beyond CAIR are reasonable for SO2 for affected Georgia EGUs for the first implementation period, with the exception of five EGUs at three facilities owned by Georgia Power. See 77 FR 11464 (February 27, 2012).

    B. Infrastructure SIPs

    By statute, plans meeting the requirements of sections 110(a)(1) and (2) of the CAA are to be submitted by states within three years (or less, if the Administrator so prescribes) after promulgation of a new or revised NAAQS to provide for the implementation, maintenance, and enforcement of the new or revised NAAQS. EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of sections 110(a)(1) and 110(a)(2) as “infrastructure SIP” submissions. Sections 110(a)(1) and (2) require states to address basic SIP elements such as for monitoring, basic program requirements, and legal authority that are designed to assure attainment and maintenance of the newly established or revised NAAQS. More specifically, section 110(a)(1) provides the procedural and timing requirements for infrastructure SIPs. Section 110(a)(2) lists specific elements that states must meet for the infrastructure SIP requirements related to a newly established or revised NAAQS. The contents of an infrastructure SIP submission may vary depending upon the data and analytical tools available to the state, as well as the provisions already contained in the state's implementation plan at the time in which the state develops and submits the submission for a new or revised NAAQS.8

    8 For additional information regarding EPA's approach to the review of infrastructure SIP submissions, see, e.g., 81 FR 57544 (August 23, 2016) (proposal to approve portions of Georgia's infrastructure SIP for the 2012 PM2.5 NAAQS).

    Section 110(a)(2)(D) has two components: 110(a)(2)(D)(i) and 110(a)(2)(D)(ii). Section 110(a)(2)(D)(i) includes four distinct components, commonly referred to as “prongs,” that must be addressed in infrastructure SIP submissions. The first two prongs, which are codified in section 110(a)(2)(D)(i)(I), are provisions that prohibit any source or other type of emissions activity in one state from contributing significantly to nonattainment of the NAAQS in another state (prong 1) and from interfering with maintenance of the NAAQS in another state (prong 2). The third and fourth prongs, which are codified in section 110(a)(2)(D)(i)(II), are provisions that prohibit emissions activity in one state from interfering with measures required to prevent significant deterioration of air quality in another state (prong 3) or from interfering with measures to protect visibility in another state (prong 4). Section 110(a)(2)(D)(ii) requires SIPs to include provisions ensuring compliance with sections 115 and 126 of the Act, relating to interstate and international pollution abatement.

    A state can meet prong 4 requirements via confirmation in its infrastructure SIP submission that the state has an approved regional haze plan that fully meets the requirements of 40 CFR 51.308 or 51.309. 40 CFR 51.308 and 51.309 specifically require that a state participating in a regional planning process include all measures needed to achieve its apportionment of emission reduction obligations agreed upon through that process. A fully approved regional haze plan will ensure that emissions from sources under an air agency's jurisdiction are not interfering with measures required to be included in other air agencies' plans to protect visibility.

    Georgia's May 14, 2012, 2008 8-hour Ozone submission; March 25, 2013, 2010 1-hour NO2 submission; October 22, 2013, 2010 1-hour SO2 submission as supplemented on July 25, 2014; and December 14, 2015, 2012 annual PM2.5 submission rely on the State having a fully approved regional haze plan to satisfy its prong 4 requirements. EPA is approving the regional haze plan portion of the State's July 26, 2017, SIP revision and converting EPA's previous action on Georgia's regional haze plan from a limited approval/limited disapproval to a full approval because final approval of this portion of the SIP revision would correct the deficiencies that led to EPA's limited approval/limited disapproval of the State's regional haze plan. Specifically, EPA's approval of this portion of Georgia's July 26, 2017, SIP revision would satisfy the SO2 and NOX BART requirements and SO2 reasonable progress requirements for EGUs formerly subject to CAIR and the requirement that a LTS include measures as necessary to achieve the State-adopted RPGs. Because a state may satisfy prong 4 requirements through a fully approved regional haze plan, EPA is also converting the Agency's September 26, 2016, conditional approvals to full approvals of the prong 4 portion of Georgia's May 14, 2012, 2008 8-hour Ozone submission; March 25, 2013, 2010 1-hour NO2 submission; October 22, 2013, 2010 1-hour SO2 submission as supplemented on July 25, 2014; and December 14, 2015, 2012 annual PM2.5 submission.

    In a notice of proposed rulemaking (NPRM) published on February 2, 2018 (83 FR 4886), EPA proposed to take the following actions: (1) Approve the regional haze plan portion of Georgia's July 26, 2017, SIP submission to change reliance from CAIR to CSAPR; (2) convert EPA's limited approval/limited disapproval of Georgia's February 11, 2010, regional haze plan as supplemented on November 19, 2010, to a full approval; (3) remove EPA's FIP for Georgia which replaced reliance on CAIR with reliance on CSAPR to address the deficiencies identified in the limited disapproval of Georgia's regional haze plan; and (4) convert EPA's September 26, 2016, conditional approvals to full approvals of the prong 4 portion of Georgia's May 14, 2012, 2008 8-hour Ozone submission; March 25, 2013, 2010 1-hour NO2 submission; the State's October 22, 2013, 2010 1-hour SO2 submission as supplemented on July 25, 2014; and the State's December 14, 2015, 2012 annual PM2.5 submission. The details of Georgia's submission and the rationale for EPA's actions are explained in the NPRM. Comments on the proposed rulemaking were due on or before March 5, 2018. EPA received no adverse comments on the proposed action.

    II. Final Actions

    As described above, EPA is taking the following actions: (1) Approving the regional haze plan portion of Georgia's July 26, 2017, SIP submission to change reliance from CAIR to CSAPR; (2) converting EPA's limited approval/limited disapproval of Georgia's February 11, 2010, regional haze plan as supplemented on November 19, 2010, to a full approval; (3) removing EPA's FIP for Georgia which replaced reliance on CAIR with reliance on CSAPR to address the deficiencies identified in the limited disapproval of Georgia's regional haze plan; and (4) converting EPA's September 26, 2016, conditional approvals to full approvals of the prong 4 portion of Georgia's May 14, 2012, 2008 8-hour Ozone submission; March 25, 2013, 2010 1-hour NO2 submission; the State's October 22, 2013, 2010 1-hour SO2 submission as supplemented on July 25, 2014; and the State's December 14, 2015, 2012 annual PM2.5 submission. All other applicable infrastructure requirements for the infrastructure SIP submissions have been or will be addressed in separate rulemakings.

    III. Statutory and Executive Order Reviews

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

    • Are not significant regulatory actions 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);

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

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

    • Are 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.);

    • Do 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);

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

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

    • Are not significant regulatory actions subject to Executive Order 13211 (66 FR 28355, May 22, 2001);

    • Are 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

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

    The SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of these actions must be filed in the United States Court of Appeals for the appropriate circuit by July 3, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of these actions for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. These actions may not be challenged later in proceedings to enforce its requirements. See section 307(b)(2).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Administrative practice and procedure, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Particulate Matter, Reporting and recordkeeping requirements, Sulfur oxides.

    Dated: April 20, 2018. Onis “Trey” Glenn, III, Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart L—Georgia
    § 52.569 [Removed and Reserved]
    2. Section 52.569 is removed and reserved. 3. Section 52.570(e) is amended by adding entries for “110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour NO2 NAAQS”, “110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour SO2 NAAQS”, “110(a)(1) and (2) Infrastructure Requirements for the 2012 Annual PM2.5 NAAQS”, “110(a)(1) and (2) Infrastructure Requirements for the 2008 8-hour Ozone NAAQS”, and “Regional Haze Plan Revision” at the end of the table to read as follows:
    § 52.570 Identification of plan.

    (e) * * *

    EPA-Approved Georgia Non-Regulatory Provisions Name of nonregulatory SIP provision Applicable
  • geographic or
  • nonattainment
  • area
  • State
  • submittal
  • date/
  • effective date
  • EPA approval date Explanation
    *         *         *         *         *         *         * 110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour NO2 NAAQS Georgia 3/25/2013 5/4/2018,
  • [Insert Federal Register citation]
  • Addressing Prong 4 only.
    110(a)(1) and (2) Infrastructure Requirements for the 2010 1-hour SO2 NAAQS Georgia 7/25/2014 5/4/2018,
  • [Insert Federal Register citation]
  • Addressing Prong 4 only.
    110(a)(1) and (2) Infrastructure Requirements for the 2012 Annual PM2.5 NAAQS Georgia 12/14/2015 5/4/2018,
  • [Insert Federal Register citation]
  • Addressing Prong 4 only.
    110(a)(1) and (2) Infrastructure Requirements for the 2008 8-hour Ozone NAAQS Georgia 5/14/2012 5/4/2018,
  • [Insert Federal Register citation]
  • Addressing Prong 4 only.
    Regional Haze Plan Revision Georgia 7/26/2017 5/4/2018,
  • [Insert Federal Register citation]
  • § 52.580 [Removed and Reserved]
    4. Section 52.580 is removed and reserved.
    [FR Doc. 2018-09412 Filed 5-3-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 201 [Docket DARS-2018-0017] RIN 0750-AJ69 Defense Federal Acquisition Regulation Supplement: Statement of Purpose for Department of Defense Acquisition (DFARS Case 2018-D005) AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Final rule.

    SUMMARY:

    DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2018 to revise the DFARS to include a statement of purpose.

    DATES:

    Effective May 4, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Kelly Hughes, telephone 571-372-6090.

    SUPPLEMENTARY INFORMATION: I. Background

    DoD is amending the DFARS to implement section 801 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 (Pub. L. 115-404). Section 801 directs the insertion of a statement of purpose for Department of Defense acquisition in the DFARS. This rule adds the statement of purpose to DFARS 201.101.

    II. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the-Shelf Items

    This rule does not add any new provisions or clauses or impact existing provisions or clauses. The rule merely adds a purpose statement to the regulations.

    III. Publication of This Final Rule for Public Comment Is Not Required by Statute

    The statute that applies to the publication of the Federal Acquisition Regulation (FAR) is the Office of Federal Procurement Policy statute (codified at title 41 of the United States Code). Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure or form, or has a significant cost or administrative impact on contractors or offerors. This final rule is not required to be published for public comment, because it clarifies the purpose of the defense system as required by the NDAA for FY 2018. There is no cost or administrative impact on contractors or offerors. These requirements affect only the internal operating guidance of the Government.

    IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    V. Executive Order 13771

    This rule is not subject to Executive Order (E.O.) 13771, Reducing Regulation and Controlling Regulatory Costs, because the rule relates to agency organization, management, or personnel.

    VI. Regulatory Flexibility Act

    Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule under 41 U.S.C. 1707(a)(1) (see section III. of this preamble), the analytical requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

    VII. Paperwork Reduction Act

    The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

    List of Subjects in 48 CFR Part 201

    Government procurement.

    Amy G. Williams, Deputy, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 201 is amended as follows:

    PART 201—FEDERAL ACQUISITION REGULATIONS SYSTEM 1. The authority citation for part 201 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    2. Add section 201.101 to subpart 201.1 to read as follows:
    201.101 Purpose.

    (1) The defense acquisition system, as defined in 10 U.S.C. 2545, exists to manage the investments of the United States in technologies, programs, and product support necessary to achieve the national security strategy prescribed by the President pursuant to section 108 of the National Security Act of 1947 (50 U.S.C. 3043) and to support the United States Armed Forces.

    (2) The investment strategy of DoD shall be postured to support not only the current United States armed forces, but also future armed forces of the United States.

    (3) The primary objective of DoD acquisition is to acquire quality supplies and services that satisfy user needs with measurable improvements to mission capability and operational support at a fair and reasonable price.

    [FR Doc. 2018-09488 Filed 5-3-18; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Parts 212, 246, and 252 [Docket DARS-2016-0014] RIN 0750-AI92 Defense Federal Acquisition Regulation Supplement: Amendments Related to Sources of Electronic Parts (DFARS Case 2016-D013) AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Final rule.

    SUMMARY:

    DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement a section of the National Defense Authorization Act for Fiscal Year 2016 that makes contractors and subcontractors subject to approval (as well as review and audit) by appropriate DoD officials when identifying a contractor-approved supplier of electronic parts.

    DATES:

    Effective May 4, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Amy G. Williams, telephone 571-372-6106.

    SUPPLEMENTARY INFORMATION: I. Background

    DoD published a proposed rule in the Federal Register at 81 FR 50680 on August 2, 2016, to implement section 885(b) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016 (Pub. L. 114-92), which amends section 818(c)(3)(D)(iii) of the NDAA for FY 2012 (Pub. L. 112-81). Section 885(b) provides that contractors and subcontractors are subject to approval (as well as review and audit) by appropriate DoD officials when identifying a contractor-approved supplier of electronic parts. Four respondents submitted public comments on the proposed rule.

    II. Discussion and Analysis

    DoD reviewed the public comments in the formulation of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows:

    A. Significant Changes From the Proposed Rule

    The final rule clarifies at DFARS 246.870-2(a)(1)(ii)(C) and 252.246-7008(b)(2)(iii) that the review, audit, and approval of contractor-approved suppliers by the Government will generally be in conjunction with a contractor purchasing system review (CPSR) or other surveillance of purchasing practices by the contract administration office, unless the Government has credible evidence that a contractor-approved supplier has provided counterfeit parts.

    B. Analysis of Public Comments

    The respondents shared concerns about the details of how, what, when, and by whom the Government approval (or disapproval) of contractor-approved suppliers would be conducted. There was also concern about the impact of disapproval, how the notification would occur, and the extent of flow-down to subcontracts.

    1. Mandatory or discretionary?

    Comment: Several respondents commented on whether the review, audit, and approval are mandatory or discretionary. One respondent stated that the rule is silent as to whether the review, audit, and approval will take place. Another respondent noted that it appears that contractor selection of contractor-approved suppliers can be subject to (emphasis added) review, audit, and approval by the contracting officer, implying that such processes are optional and not mandatory actions, whether that function is conducted on individual transactions or through a CPSR or other surveillance of purchasing practices. Yet another respondent questioned the criteria for deciding when to review, audit, and approve suppliers that have been approved by the contractor.

    Response: It is not mandatory that the Government review, audit, and approve contractor-approved suppliers. The final rule has been amended at DFARS 246.870-2(a)(1)(ii)(C) and 252.246-7008(b)(2)(iii) to clarify that such review, audit, and approval will generally be in conjunction with a CPSR by the contract administration office, or if the Government obtains credible evidence that a contractor-approved supplier has provided counterfeit parts.

    2. What is being reviewed and audited and how?

    Comment: One respondent noted that separate regulations address contractor purchasing system criteria and recommended that the audits conducted under the proposed DFARS rule providing for Government review, audit, and approval be limited to confirming that the contractor's process for selecting suppliers is based on appropriate industry standards and processes for counterfeit prevention. The respondent further recommended that DoD clarify that the Government would not impose additional requirements based on internal DoD standards for identifying trusted electronic parts suppliers. Another respondent stated that it was unclear if the proposed DFARS contracting officer approval function applied to the process used by contractors to approve electronic parts suppliers for parts out of production or if DoD intended to reserve the right to review, audit, and approve the selection of each part delivered by a contractor-approved supplier on each contract transaction. The same respondent commented that industry comments on DFARS case 2014-D005 speculated that the review and audit of the contractor selection process for contractor-approved suppliers by DoD officials might be satisfied through the CPSR process.

    Response: The Government's review, audit, and approval of contractor-approved suppliers of electronic parts generally will be conducted during the CPSR or other surveillance of purchasing practices to verify that the contractor is using established counterfeit prevention industry standards and processes (including inspection, testing, and authentication), such as the DoD-adopted standards at https://assist.dla.mil, to select their suppliers, as required by DFARS clause 252.246-7008(b)(2)(i).

    The contractor's authorization to identify and purchase electronic parts from their own contractor-approved suppliers and DoD's authority to review, audit, and approve those contractor-approved suppliers relates only to those suppliers of electronic parts that are not in production by the original manufacturer or an authorized aftermarket manufacturer and that are not currently available in stock from the original manufacturer, their authorized suppliers, or suppliers that obtain such parts exclusively from the original manufacturers of the parts or their authorized suppliers (see DFARS 246.870-2(a)(1)(ii)(C) and 252.246-7008(b)(2)(iii)). The rule grants the authority for the Government to review, audit, and approve or disapprove contractor-approved suppliers of electronic parts outside of a CPSR or other surveillance of purchasing practices by the contract administration office if there is credible evidence that a contractor-approved supplier has provided counterfeit electronic parts. As the basis of its review, audit, and approval, the Government generally intends to use established counterfeit prevention industry standards and processes.

    3. Timing

    Comment: All respondents had concern about the timing of the review, audit, and approval of contractor-approved suppliers. The respondents are concerned that the rule does not specify when the review, audit, and approval of contractor-approved suppliers should occur. According to the respondents, the contracting officer is able to review and approve electronic parts suppliers any time from contract award until closeout. If the contracting officer disapproves a supplier after the fact, this would likely cause significant cost increases and schedule delays. The respondents recommended that the contracting officer should establish schedules for these reviews and, to the maximum extent practicable, review and approve a contractor's electronic parts suppliers at the time of contract award or as early as possible during contract performance.

    One respondent requested that a contracting officer's disapproval of a contractor-approved source should constitute a contract change that qualifies for equitable adjustment in the contract price, the delivery schedule, or both, pursuant to the Changes clause at FAR 52.243-1.

    Response: DoD's authority to review, audit, and approve contractor-approved suppliers relates only to those suppliers of electronic parts that are not in production by the original manufacturer or an authorized aftermarket manufacturer and that are not currently available in stock from the original manufacturer, their authorized suppliers, or suppliers that obtain such parts exclusively from the original manufacturers of the parts or their authorized suppliers (see DFARS 246.870-2(a)(1)(ii)(C) and 252.246-7008(b)(2)(iii)). DoD relies primarily on the contractor to use established counterfeit prevention industry standards and processes (including inspection, testing, and authentication), such as the DoD-adopted standards at https://assist.dla.mil, as required by DFARS clause 252.246-7008(b)(2)(i). However, DoD also has the authority to review an individual supplier. DoD generally intends to exercise its right to review, audit, and approve contractor-approved suppliers in conjunction with a periodic CPSR (see FAR subpart 44.3, DFARS subpart 244.3, and DFARS 252.246-7007(d)) or other surveillance of purchasing practices, or if there is credible evidence that a contractor-approved supplier has supplied electronic counterfeit parts. DoD shares the desire of the contractors to avoid significant schedule delays, cost increases, and resultant impairment of operational readiness.

    The contracting officer's disapproval of a contractor-approved source does not constitute a contract change that qualifies for equitable adjustment in the contract price, the delivery schedule, or both, pursuant to the Changes clause at FAR 52.243-1. The contract clause already provides that the contractor selection of a contractor-approved supplier is subject to review, audit, and approval by the Government, and therefore such review, audit, and approval or disapproval by the Government does not constitute a change to the contract.

    4. Is it the procurement contracting officer or the administrative contracting officer who approves contractor-approved suppliers?

    Comment: One respondent was concerned whether it would be the procurement contracting officer or the administrative contracting officer who would approve contractor-approved suppliers. The respondent was concerned about potential overlap in authority. The respondent recommended that a contractor be able to cite to a prior approval, if another contracting officer seeks approval rights. The respondent also questioned how a procurement contracting officer would obtain the quality assurance expertise needed to conduct a review, audit, and approval of contractor-approved electronic parts suppliers.

    Response: For a specific contract, the procurement contracting officer always has final approval authority, and may delegate certain functions to the administrative contracting officer. The contracting officer relies on the assistance of DoD quality experts, who make recommendations to the contracting officer. The FAR specifies that it is the administrative contracting officer who determines the need for a CPSR. The cognizant administrative contracting officer is responsible for granting, withholding, or withdrawing approval of a contractor's purchasing system.

    5. Impact of Approval or Disapproval a. Effect of an Approved or Disapproved Supplier on Other Contracts

    Comment: Most respondents questioned whether approval or disapproval of a specific supplier would impact other contracts. The respondents were also concerned about the scenario in which contracting officers disagree on the approval of a supplier on different programs. According to one respondent, both the revised policy and the contract clause focus on the review, audit, and approval of a specific supplier by the contracting officer on a specific contract. However, the respondent notes that a prime contractor may select a specific supplier and use electronic parts sourced from that supplier across a wide variety of end items and contracts. Several respondents recommended that the approval of one procurement contracting officer should be binding across all contracts where the electronic parts supplier is used, and also recommended a mechanism to communicate such approval or disapproval of a supplier across all contracts and subcontracts where the supplier is utilized.

    Response: If the contractor is covered by the cost accounting standards, the contractor's counterfeit electronic part detection and avoidance system under DFARS 252.246-7007 is part of the contractor's purchasing system. Any deficiencies in the contractor's purchasing system will impact the contractor across all Government contracts. If a contractor-approved supplier is not acceptable to the Government, the reasons for that unacceptability should be entered in the Government-Industry Data Exchange Program (GIDEP) when appropriate and may lead to suspension or debarment of that contractor-approved supplier, in accordance with FAR subpart 9.4. The list of all entities suspended, debarred, or proposed for debarment is publicly available in the System for Award Management (SAM) database. Procurement contracting officers dealing with common issues at the same contractor would generally coordinate with each other and with the cognizant administrative contracting officer. While each contracting officer retains ultimate authority for decisions with regard to a particular contract, the contracting officer would be likely to respect the decision of another prior contracting office unless new facts were available. Furthermore, regardless of Government approval or disapproval of a contractor-approved supplier, the contractor is responsible for the authenticity of parts provided by a contractor-approved supplier.

    b. Approved Purchasing System

    Comment: One respondent recommended that if a contractor has an approved purchasing system before DoD publishes the ensuing final rule, the prior approval should remain in effect until the next review of the contractor's purchasing system.

    Response: That is generally the case. However, if due to changing CPSR thresholds or other circumstances, the requirement for a CPSR is no longer applicable to the contractor, then the approval would remain in effect for 3 years, after which time the status would be “not applicable.”

    However, whether the approval of the contractor purchasing system is relevant with regard to this case would depend on whether, at the time of prior approval, the system contained the operational system to detect and avoid counterfeit electronic parts and suspect counterfeit electronic parts, as required by DFARS clause 252.247-7007.

    c. Interference With Award and Performance

    Comment: One respondent stated that in no case should the review, audit, and approval process interfere with an award or subsequent performance, except in cases where a contractor-approved supplier reasonably creates heightened preaward risk of inserting a counterfeit electronic part in the supply chain or a counterfeit part is discovered prior to award.

    Response: It is not in the interest of DoD to interfere with the award or performance of DoD contracts except in cases where the risk of counterfeit parts is sufficiently high to counterbalance the negative impact on timely fulfillment of DoD requirements.

    d. Impact on “Safe Harbor”

    Comment: According to one respondent, it is unclear what happens to the safe harbor at DFARS 231.205-71 in the event that a contracting officer does not review, audit, or approve any contractor-approved suppliers whatsoever or until after a counterfeit or suspect counterfeit electronic part inadvertently escapes in the DoD supply chain. One condition of the safe harbor is to obtain parts per the clause at DFARS 252.246-7008; if the contractor complies with the clause in its entirety and the contracting officer does not attempt to review, audit, or approve any contractor-approved supplier selection, industry understands the new rule to indicate that if a contracting officer does not review, audit, and approve, or to give subsequent notice disapproving the use of a contractor-approved supplier, does not obviate the safe harbor, even where a counterfeit electronic part from a contractor-approved supplier may be discovered in the supply chain at a later date.

    Response: Whether DoD exercises its authority to review, audit, and approve contractor-approved suppliers has no impact on the applicability of the safe harbor provisions at DFARS 231.205-71, except to the extent that the contractor must have an operational system to detect and avoid counterfeit electronic parts and suspect counterfeit electronic parts that has been reviewed and approved by DoD, which is one of the required criteria for the safe harbor.

    6. Notification

    Comment: One respondent requested that DoD should clarify what constitutes notice from DoD to discontinue acquisition of parts from a specific contractor-approved supplier. The respondent recommended that DoD should provide guidance on a standard notice format and provide for a centralized DoD capability to provide timely notice to contractors and subcontractors about any contract-approved suppliers who are disapproved or where specific electronic parts are disapproved or found to be counterfeit. The respondent did not believe that any of the existing disclosure models, such as GIDEP or Electronic Resellers Association International (ERAI), can be scaled to act as notice provider on parts escapes, nor that they are designed to perform such notice duties.

    Response: If a problem is identified in the course of a CPSR, the contractor will be notified in the standard means of communication consistent with FAR subpart 44.3 and DFARS subpart 244.3.

    The contracting officer will provide written notice to the prime contractor if a contractor-approved supplier is not acceptable to the Government. In addition, that information should be entered in GIDEP when appropriate. If the contractor-approved supplier is found to have provided counterfeit parts, that may lead to suspension or debarment of that contractor-approved supplier, in accordance with FAR subpart 9.4. The list of all entities suspended, debarred, or proposed for debarment is publicly available in the SAM database.

    7. Subcontracts

    Comment: One respondent commented that DoD may not have the resources to review, audit, and approve the counterfeit-prevention selection process implemented by each entity in the supply chain for a given program and recommended that DoD adopt a more limited or flexible approach to flowdown of the proposed clause.

    Response: The flowdown requirement to subcontractors using contractor-approved suppliers of electronic parts is required by the statute. However, as previously stated, it is not the intent of DoD to review, audit, and approve the counterfeit prevention selection process by each entity in the supply chain, but on a selective basis, as determined necessary by DoD.

    III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the-Shelf Items

    This rule does not add any new provisions or clauses to implement section 885(b) of the NDAA for FY 2016, which amends section 818 of the NDAA for FY 2012. It revises an existing clause at DFARS 252.246-7008, Sources of Electronic Parts, which applies to acquisitions at or below the SAT and to contracts and subcontracts for the acquisition of commercial items (including COTS items). A determination and findings was signed under DFARS Case 2014-D005 on May 26, 2016, by the Director, Defense Procurement and Acquisition Policy, to justify the application of section 818(c) of the NDAA for FY 2012, as amended, to acquisitions at or below the SAT and to contracts and subcontracts for the acquisition of commercial items (including COTS items).

    IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    V. Executive Order 13771

    This rule is not subject to E.O. 13771, Reducing Regulation and Controlling Regulatory Costs, because this rule is not a significant regulatory action under E.O. 12866.

    VI. Regulatory Flexibility Act

    A final regulatory flexibility analysis (FRFA) has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows:

    This rule implements section 885(b) of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016 (Pub. L. 114-92), which amended section 818 of the NDAA for FY 2012. The objective of this rule is to provide to DoD the authority to approve contractor-approved suppliers of electronic parts, in accordance with section 885(b) of the NDAA for FY 2016.

    There were no significant issues raised by the public in response to the initial regulatory flexibility analysis.

    The review, audit, and approval of a contractor-approved source generally occurs in conjunction with a contractor purchasing system review (CPSR) or other surveillance of purchasing practices by the contract administration office. The Defense Contract Management Agency (DCMA) performs approximately 128 CPSRs per year. In addition, the contract administration office validates about 256 purchasing systems per year. There is also a quality management system audit of the purchasing system, which is performed on a risk-based basis at least once every three years. There are approximately 3,292 higher-level quality contractors, resulting in 1,097 possible reviews per year. Adding the purchasing system reviews and the quality management system audits totals 1,481 reviews (128 + 256 + 1097). However, DCMA estimates that it is likely that contractors using “contractor-approved” sources, would be limited to 10 percent or less of the contractors subject to these audits and reviews, i.e. not more than 148 contractors. DCMA further estimates that of those using “contractor-approved” sources, not more than 15 (10 percent) per year would result in issues or disapprovals by the Government.

    This rule does not impose any reporting, recordkeeping, or other compliance requirements other than being subject to approval by DoD if the contractor or subcontractor identifies a contractor-approved supplier of electronic parts and the Government selects the contractor for review and audit. Since contractor selection of contractor-approved sources was already subject of review and audit, addition of “and approval” does not change much, because if the Government reviewed and audited a source and found a serious problem, the Government would require corrective action to prevent entry of such electronic parts into the supply chain. Furthermore, the contractor may proceed with the acquisition of electronic parts from a contractor-approved supplier unless otherwise notified by DoD.

    DoD was unable to identify any significant alternatives that would reduce the economic impact on small entities and still fulfill the requirements of the statute. However, DoD does not expect this rule to have any significant economic impact on small entities, because it does not impose any new requirements on contractors or subcontractors. Contractors may proceed with the acquisition of electronic parts from a contractor-approved supplier unless otherwise notified by DoD.

    VII. Paperwork Reduction Act

    The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

    List of Subjects in 48 CFR Parts 212, 246, and 252

    Government procurement.

    Amy G. Williams, Deputy, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 212, 246, and 252 are amended as follows:

    1. The authority citation for parts 212, 246, and 252 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    PART 212—ACQUISITION OF COMMERCIAL ITEMS
    212.301 [Amended]
    2. In section 212.301, amend paragraph (f)(xix)(C) by removing “(Pub. L. 113-291)” and adding “(Pub. L. 113-291 and section 885 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92))” in its place. PART 246—QUALITY ASSURANCE
    246.870-0 [Amended]
    3. Amend section 246.870-0, by removing “(Pub. L. 113-291)” and adding “(Pub. L. 113-291 and section 885 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92))” in its place.
    4. In section 246.870-2, revise paragraph (a)(1)(ii)(C) to read as follows:
    246.870-2 Policy.

    (a) * * *

    (1) * * *

    (ii) * * *

    (C) The selection of such contractor-approved suppliers is subject to review, audit, and approval by the Government, generally in conjunction with a contractor purchasing system review or other surveillance of purchasing practices by the contract administration office, or if the Government obtains credible evidence that a contractor-approved supplier has provided counterfeit parts. The contractor may proceed with the acquisition of electronic parts from a contractor-approved supplier unless otherwise notified by DoD.

    PART 252—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 5. Amend section 252.246-7008 by— a. Removing the clause date “(DEC 2017)” and adding “(MAY 2018)” in its place; b. In paragraph (b) introductory text, removing “(Pub. L. 113-291)” and adding “(Pub. L. 113-291 and section 885 of the National Defense Authorization Act for Fiscal Year 2016 (Pub. L. 114-92))” in its place; and c. Revising paragraph (b)(2)(iii).

    The revision reads as follows:

    252.246-7008 Sources of Electronic Parts.

    (b) * * *

    (2) * * *

    (iii) The Contractor's selection of such contractor-approved suppliers is subject to review, audit, and approval by the Government, generally in conjunction with a contractor purchasing system review or other surveillance of purchasing practices by the contract administration office, or if the Government obtains credible evidence that a contractor-approved supplier has provided counterfeit parts. The Contractor may proceed with the acquisition of electronic parts from a contractor-approved supplier unless otherwise notified by DoD; or

    [FR Doc. 2018-09491 Filed 5-3-18; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 215 [Docket DARS-2015-0051] RIN 0750-AI75 Defense Federal Acquisition Regulation Supplement: Promoting Voluntary Post-Award Disclosure of Defective Pricing (DFARS Case 2015-D030) AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Final rule.

    SUMMARY:

    DoD is issuing a final rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to state that, in the interest of promoting voluntary contractor disclosures of defective pricing identified by the contractor after contract award, DoD contracting officers have discretion to request a limited-scope or full-scope audit, as appropriate for the circumstances.

    DATES:

    Effective May 4, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Mark Gomersall, telephone 571-372-6099.

    SUPPLEMENTARY INFORMATION: I. Background

    DoD published a proposed rule in the Federal Register at 80 FR 72669 on November 20, 2015, to amend the DFARS to indicate that DoD contracting officers have discretion to request a limited- or full-scope audit, as appropriate for the circumstances, when contractors voluntarily disclose defective pricing after contract award. In response to the Better Buying Power 2.0 initiative on “Eliminating Requirements Imposed on Industry where Costs Outweigh Benefits,” contractors recommended several changes to 41 U.S.C. chapter 35, Truthful Cost or Pricing Data (formerly the Truth in Negotiations Act) and to the related DFARS guidance. Specifically, contractors recommended that DoD clarify policy guidance to reduce repeated submissions of certified cost or pricing data. Frequent submissions of such data are used as a defense against defective pricing claims by DoD after contract award, since data that are frequently updated are less likely to be considered outdated or inaccurate and, therefore, defective. Better Buying Power 3.0 called for a revision of regulatory guidance regarding the requirement for contracting officers to request an audit even if a contractor voluntarily discloses defective pricing after contract award.

    One respondent submitted a public comment in response to the proposed rule.

    II. Discussion and Analysis

    DoD reviewed the public comment in the development of the final rule. A discussion of the comment and changes made to the rule as a result of the comment is provided, as follows:

    A. Summary of Significant Changes From the Proposed Rule

    One change was made to the rule as a result of the public comment to remove the mandatory requirement to conduct an audit in all cases of a contractor's voluntary disclosure of defective pricing.

    B. Analysis of Public Comment

    Comment: The respondent recommended that “shall” be replaced by the word “may” concerning the requirement to request a limited-scope audit as proposed at DFARS 215.407-1(c)(i). The respondent stated that the study entitled “Eliminating Requirements Imposed on Industry where Costs Outweigh Benefits” recommended that DoD not impose a mandatory requirement on itself to conduct an audit in all cases of a contractor's voluntary disclosure of defective pricing, because such a mandatory requirement provides no discretion for contracting officers not to request an audit if in their judgment an audit is not required by the circumstances. However, instead of removing this mandatory requirement as recommended by the study, the proposed rule would change the DFARS from “shall request an audit. . .” to “shall request a limited scope audit. . . .” Thus, the proposed language still provides a strong disincentive to contractors to voluntarily disclose defective pricing and it still imposes a mandatory requirement on contracting officers that may not be in the best interests of the DoD in all circumstances.

    Response: The final rule is revised to remove the mandatory requirement to conduct an audit in all cases of a contractor's voluntary disclosure of defective pricing. However, in order to calculate appropriate price reductions as required by 10 U.S.C. 2306a(e), it is necessary that contracting officers, at a minimum, discuss the disclosure with the Defense Contract Audit Agency (DCAA) to determine the completeness of the contractor's voluntary disclosure and the accuracy of the contractor's cost impact calculation for the affected contract, and the potential impact on existing contracts, task or delivery orders, or other proposals the contractor has submitted to the Government. This discussion will assist the contracting officer in determining the involvement of DCAA, which could be a limited-scope audit (e.g., limited to the affected cost elements of the defective pricing disclosure), a full-scope audit, or technical assistance, as appropriate for the circumstances (e.g., nature or dollar amount of the defective pricing disclosure).

    III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Off-the-Shelf Items

    The requirement for submission of certified cost or pricing data does not apply to contracts at or below the simplified acquisition threshold or to commercial items, including commercially available off-the-shelf items. Therefore, this rule is not applicable to those classes of contracts.

    IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    V. Executive Order 13771

    This rule is not subject to E.O. 13771, Reducing Regulation and Controlling Regulatory Costs, because this rule is not a significant regulatory action under E.O. 12866.

    VI. Regulatory Flexibility Act

    A final regulatory flexibility analysis (FRFA) has been prepared consistent with the Regulatory Flexibility Act, 5 U.S.C. 691, et seq. The FRFA is summarized as follows:

    The objective of this rule is to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to indicate that, in the interest of promoting voluntary contractor disclosures of defective pricing identified by the contractor after contract award, DoD contracting officers have discretion to request a limited-scope or full-scope audit, as appropriate for the circumstances. This rule will apply to all DoD contractors, including small entities, who are required to submit certified cost or pricing data.

    There were no significant issues raised by the public in response to the initial regulatory flexibility analysis.

    The number of small entities affected by this rule is unknown as this information is not available in the Federal Procurement Data System or other central repository. However, DoD anticipates that this rule could have a positive economic impact. If those small entities usually submit cost or pricing data frequently in order to avoid defective pricing claims, then this rule may encourage them to reduce the number of such submissions.

    There is no change to reporting or recordkeeping as a result of this rule. The rule does not duplicate, overlap, or conflict with any other Federal rules, and there are no known significant alternative approaches to the rule that would meet the requirements.

    VII. Paperwork Reduction Act

    The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

    List of Subjects in 48 CFR Part 215

    Government procurement.

    Amy G. Williams, Deputy, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 215 is amended as follows:

    PART 215—CONTRACTING BY NEGOTIATION 1. The authority citation for part 215 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    2. Add sections 215.407 and 215.407-1 to subpart 215.4 to read as follows:
    215.407 Special cost or pricing areas.
    215.407-1 Defective certified cost or pricing data.

    (c)(i) When a contractor voluntarily discloses defective pricing after contract award, the contracting officer shall discuss the disclosure with the Defense Contract Audit Agency (DCAA). This discussion will assist in the contracting officer determining the involvement of DCAA, which could be a limited-scope audit (e.g., limited to the affected cost elements of the defective pricing disclosure), a full-scope audit, or technical assistance as appropriate for the circumstances (e.g., nature or dollar amount of the defective pricing disclosure). At a minimum, the contracting officer shall discuss with DCAA the following:

    (A) Completeness of the contractor's voluntary disclosure on the affected contract.

    (B) Accuracy of the contractor's cost impact calculation for the affected contract.

    (C) Potential impact on existing contracts, task or deliver orders, or other proposals the contractor has submitted to the Government.

    (ii) Voluntary disclosure of defective pricing is not a voluntary refund as defined in 242.7100 and does not waive the Government entitlement to the recovery of any overpayment plus interest on the overpayments in accordance with FAR 15.407-1(b)(7).

    (iii) Voluntary disclosure of defective pricing does not waive the Government's rights to pursue defective pricing claims on the affected contract or any other Government contract.

    [FR Doc. 2018-09489 Filed 5-3-18; 8:45 am] BILLING CODE 5001-06-P
    SURFACE TRANSPORTATION BOARD 49 CFR Part 1040 [Docket No. EP 726] On-Time Performance Under Section 213 of The Passenger Rail Investment and Improvement Act of 2008 AGENCY:

    Surface Transportation Board.

    ACTION:

    Final rule.

    SUMMARY:

    The Surface Transportation Board (Board) is removing its final rule concerning on-time performance of intercity passenger rail service because it was invalidated upon judicial review.

    DATE:

    This final rule is effective May 4, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Scott M. Zimmerman: (202) 245-0386. Federal Information Relay Service (FIRS) for the hearing impaired: (800) 877-8339.

    SUPPLEMENTARY INFORMATION:

    On May 15, 2015, the Board instituted a rulemaking proceeding in this docket to define “on-time performance” for intercity passenger trains for purposes of Section 213 of the Passenger Rail Investment and Improvement Act of 2008 (PRIIA), 49 U.S.C. 24308(f). See 80 FR 28928. The Board adopted its final rule in 49 CFR part 1040 on July 28, 2016, and the rule took effect on August 27, 2016. See 81 FR 51343.

    Petitions for judicial review of the final rule were filed in the U.S. Courts of Appeals for the Eighth Circuit and the District of Columbia Circuit, and were ultimately consolidated in the Eighth Circuit. The Court of Appeals found that the Board lacked authority to promulgate a final rule defining on-time performance under PRIIA and vacated the Board's rule. See Union Pac. R.R. v. Surface Transp. Bd., 863 F.3d 816 (8th Cir. 2017). The National Railroad Passenger Corporation (Amtrak) and certain passenger organizations filed petitions for certiorari with the U.S. Supreme Court, which declined to review the Eighth Circuit's ruling.

    The Board's rule is therefore invalid and 49 CFR part 1040 will be removed. Because this action is based on a final court determination that the rule being eliminated is invalid, the Board finds good cause to dispense with notice and comment under the Administrative Procedure Act (APA). See 5 U.S.C. 553(b)(B).

    The Regulatory Flexibility Act (RFA), as amended by the Small Business Regulatory Enforcement Fairness Act of 1996, 5 U.S.C. 601-612, generally requires an agency to prepare a regulatory flexibility analysis 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. Because the Board has determined that notice and comment are not required under the APA for this rulemaking, the requirements of the RFA do not apply.

    This final rule does not contain a new or amended information collection requirement subject to the Paperwork Reduction Act of 1995, 44 U.S.C. 3501-3521.

    List of Subjects in 49 CFR Part 1040

    Mass transportation, Railroads.

    It is ordered:

    1. Part 1040 is removed and notice will be published in the Federal Register.

    2. This decision is effective on May 4, 2018.

    Decided: April 30, 2018.

    By the Board, Board Members Begeman and Miller.

    Jeffrey Herzig, Clearance Clerk.
    PART 1040 [REMOVED AND RESERVED] For the reasons set forth in the preamble, and under the authority of 49 U.S.C. 1321(a), the Surface Transportation Board removes and reserves 49 CFR part 1040.
    [FR Doc. 2018-09558 Filed 5-3-18; 8:45 am] BILLING CODE 4915-01-P
    83 87 Friday, May 4, 2018 Proposed Rules DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0358; Product Identifier 2017-NM-142-AD] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for certain Airbus Model A319-131, A319-132, A319-133, A320-231, A320-232, A320-233, A321-131, A321-231, and A321-232 airplanes. This proposed AD was prompted by reports of fan cowl door (FCD) losses during take-off. This proposed AD would require modification and re-identification, or replacement, of certain FCDs, and installation of a placard in the flight deck. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed 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: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Bombardier Short Brothers, PLC, Airworthiness, P.O. Box 241, Airport Road, Belfast, BT3 9DZ Northern Ireland; telephone +44(0)2890-462469; fax +44(0)2890-468444; email [email protected]; internet http://www.bombardier.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0358; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Sanjay Ralhan, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3223.

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0358; Product Identifier 2017-NM-142-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM based on those comments.

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

    Discussion

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2017-0178, dated September 15, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A319-131, A319-132, A319-133, A320-231, A320-232, A320-233, A321-131, A321-231, and A321-232 airplanes. The MCAI states:

    Fan Cowl Door (FCD) losses during take-off were reported on Airbus A320 family aeroplanes equipped with IAE [International Aero Engines] V2500 engines. Investigations confirmed that in all cases, the FCD were opened prior to the flight and were not correctly re-secured. During the pre-flight inspection, it was not detected that the FCD were not properly latched.

    This condition, if not corrected, could lead to in-flight loss of an FCD, possibly resulting in damage to the aeroplane and/or injury to persons on the ground.

    EASA issued AD 2016-0053 [which corresponds to FAA AD 2017-13-10, Amendment 39-18940 (82 FR 29371, June 29, 2017) (“AD 2017-13-10”)], requiring modification of the FCD installed on affected aeroplanes, and installation of a placard in the cockpit, in accordance with the instructions of Airbus Service Bulletin (SB) A320-71-1069 (which in turns refers to Goodrich SB V2500-NAC-71-0331 for FCD modification and re-identification).

    The monolithic FCDs, installed on aeroplanes embodying Short Brothers supplemental type certificate (STC) 10029547, are also affected by this potential unsafe condition. Consequently, the STC Holder, trading as Bombardier Short Brothers, developed a modification, similar to the one designed by Airbus, and issued SB V25MFC-71-1003. The modification consists of a new FCD front latch and keeper assembly, having a specific key necessary to un-latch the FCD. This key cannot be removed unless the FCD front latch is safely closed. The key, after removal, must be stowed in the flight deck at a specific location, as instructed in the applicable Aircraft Maintenance Manual. The applicable Flight Crew Operating Manual has been amended accordingly. After modification, the FCD is identified with a different Part Number (P/N).

    Mixed FCD installation can be found on aeroplanes embodying [EASA] STC 10029547 (i.e., Monolithic FCD and standard production non-Monolithic FCD). For standard production non-Monolithic FCD, Bombardier Short Brothers SB V25MFC-71-1003 specifies to accomplish the instructions of Goodrich SB V2500-NAC-71-0331, as applicable.

    For the reasons described above, this [EASA] AD requires modification and re-identification of FCD, and installation of a placard in the cockpit.

    You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0358.

    Related Service Information Under 1 CFR Part 51

    Bombardier Short Brothers, PLC has issued Service Bulletin V25MFC-71-1003, dated September 28, 2016. The service information describes procedures for installing modified latches on the left and right engine FCDs, and re-identifying the FCDs. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination and Requirements of This Proposed AD

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

    Differences Between This Proposed AD and the MCAI or Service Information

    EASA AD 2017-0178, dated September 15, 2017, includes both monolithic FCDs and non-monolithic FCDs (those not modified by Bombardier Short Brothers, PLC Supplemental Type Certificate (STC) ST03076NY). Required actions for the non-monolithic FCDs are included in AD 2017-13-10 (which corresponds to EASA AD 2016-0053, dated March 14, 2016), so we have not included them in this AD.

    Costs of Compliance

    We estimate that this proposed AD affects 557 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Modification and re-identification (or replacement), and placard installation 8 work-hours × $85 per hour = $680 $1,500 $2,180 $1,214,260
    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

    For the reasons discussed above, I certify this proposed regulation:

    1. Is not a “significant regulatory action” under Executive Order 12866;

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): Airbus: Docket No. FAA-2018-0358; Product Identifier 2017-NM-142-AD. (a) Comments Due Date

    We must receive comments by June 18, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Airbus Model A319-131, A319-132, A319-133, A320-231, A320-232, A320-233, A321-131, A321-231, and A321-232 airplanes, certificated in any category, if modified by Bombardier Short Brothers, PLC Supplemental Type Certificate (STC) ST03076NY.

    (d) Subject

    Air Transport Association (ATA) of America Code 71, Powerplant.

    (e) Reason

    This AD was prompted by reports of fan cowl door (FCD) losses during takeoff. We are issuing this AD to prevent in-flight loss of an FCD, which could result in damage to the airplane and injury to persons on the ground.

    (f) Compliance

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

    (g) Modification and Re-Identification of FCDs

    Within 18 months after the effective date of this AD: Do the modification and re-identification specified in paragraphs (g)(1) and (g)(2) of this AD.

    (1) Modify each left-hand (LH) and right-hand (RH) FCD having a part number listed as “Old Part Number” in table 1 to paragraphs (g), (h), and (l) of this AD, in accordance with the Accomplishment Instructions of Bombardier Short Brothers Service Bulletin V25MFC-71-1003, dated September 28, 2016.

    (2) Re-identify each modified FCD with the part number listed as “New Part Number” in table 1 to paragraphs (g), (h), and (l) of this AD, in accordance with the Accomplishment Instructions of Bombardier Short Brothers Service Bulletin V25MFC-71-1003, dated September 28, 2016.

    Table 1 to Paragraphs (g), (h), and (l) of This AD—Monolithic FCD Part Number Change FCD position Old part No. New part No. LH 745B4000-501 745B4000-507 745B4000-503 745B4000-509 745B4000-505 745B4000-511 RH 745B4000-502 745B4000-508 745B4000-504 745B4000-510 745B4000-506 745B4000-512 (h) Optional Compliance by Replacement or Installation

    (1) Replacement of the FCDs having a part number listed as “Old Part Number” in table 1 paragraphs (g), (h), and (l) of this AD, with the FCDs having the corresponding part number listed as “New Part Number” in table 1 to paragraphs (g), (h), and (l) of this AD, is acceptable for compliance with the requirements of paragraph (g) of this AD.

    (2) Installation on an engine of a right-hand and left-hand engine FCD having a part number approved after the effective date of this AD is acceptable for compliance with the requirements of paragraph (g) of this AD for that engine only, provided the conditions specified in paragraphs (h)(2)(i) and (h)(2)(ii) of this AD are met.

    (i) The part number is approved using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or the European Aviation Safety Agency (EASA); or Bombardier Short Brothers, PLC's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (ii) The installation is accomplished using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or EASA; or Bombardier Short Brothers, PLC's EASA DOA. If approved by the DOA, the approval must include the DOA-authorized signature.

    (i) Placard Installation

    For airplanes on which Airbus modification 157718 has not been embodied in production: Within 18 months after the effective date of this AD, install a placard that specifies the FCD keys stowage location in the flight deck on the box located at the bottom of the 120VU panel, or at the bottom of the coat stowage, as applicable to airplane configuration, using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or EASA; or Bombardier Short Brothers, PLC's EASA DOA. If approved by the DOA, the approval must include the DOA-authorized signature.

    (j) Missing FCD Keys or Placard

    Flights with one or both FCD keys missing from the stowage location in the fight deck, or with the placard (that specifies the FCD keys stowage location) missing or damaged, are permitted for a period not to exceed 10 calendar days from the date of discovery.

    (k) Alternate Location of FCD Keys and Placard

    As an option to paragraph (i) of this AD, an alternate location for the key stowage in the flight deck and installation of a placard for identification of that stowage location are permitted as specified in the operator's FAA-accepted maintenance or inspection program, provided the keys can be retrieved from that flight deck location when needed and the placard installation is done within 18 months after the effective date of this AD.

    (l) Parts Installation Prohibition

    No person may install on any airplane an FCD with a part number identified as “Old Part Number” in table 1 to paragraphs (g), (h), and (l) of this AD, after the time specified in paragraph (l)(1) or (l)(2) of this AD, as applicable.

    (1) For any airplane with an installed FCD having a part number identified as “Old Part Number” in table 1 to paragraphs (g), (h), and (l) of this AD: After modification of that airplane as required by paragraph (g) of this AD or as specified in paragraph (h) of this AD.

    (2) For any airplane without an installed FCD having a part number identified as “Old Part Number” in table 1 to paragraphs (g), (h), and (l) of this AD: After the effective date of this AD.

    (m) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Section, Transport Standards Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Section, send it to the attention of the person identified in paragraph (n)(2) of this AD. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or the EASA; or Bombardier Short Brothers, PLC's EASA DOA. If approved by the DOA, the approval must include the DOA-authorized signature.

    (n) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2017-0178, dated September 15, 2017, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0358.

    (2) For more information about this AD, contact Sanjay Ralhan, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198; telephone and fax 206-231-3223.

    (3) For service information identified in this AD, contact Bombardier Short Brothers, PLC, Airworthiness, P.O. Box 241, Airport Road, Belfast, BT3 9DZ Northern Ireland; telephone +44(0)2890-462469; fax +44(0)2890-468444; email [email protected]; internet http://www.bombardier.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

    Issued in Des Moines, Washington, on April 20, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-09277 Filed 5-3-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-1033; Airspace Docket No. 17-ANM-19] RIN 2120-AA66 Proposed Amendment of Class D and Class E Airspace; Moses Lake, WA AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to modify Class D airspace, Class E surface area airspace, Class E airspace designated as an extension, and Class E airspace extending upward from 700 and 1,200 feet above the surface at Grant County International Airport (formerly Grant County Airport), Moses Lake, WA. This action also proposes to remove the Notice to Airmen (NOTAM) part-time status of Class E airspace designated as an extension, and update the airport name and geographic coordinates for the airport in the associated Class D and E airspace areas to match the FAA's aeronautical database. These changes are necessary to accommodate airspace redesign for the safety and management of instrument flight rules (IFR) operations at the airport. Also, an editorial change would be made to the Class D and Class E airspace legal descriptions replacing “Airport/Facility Directory” with the term “Chart Supplement”.

    DATES:

    Comments must be received on or before June 18, 2018.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1-800-647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2017-1033; Airspace Docket No. 17-ANM-19, at the beginning of your comments. You may also submit comments through the internet at http://www.regulations.gov.

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

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

    FOR FURTHER INFORMATION CONTACT:

    Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 2200 S 216th St., Des Moines, WA 98198-6547; telephone (206) 231-2253.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class D and Class E surface airspace at Grant County International Airport, Moses Lake, WA, to support standard instrument approach procedures under IFR operations at the airport.

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2017-1033; Airspace Docket No. 17-ANM-19”. The postcard will be date/time stamped and returned to the commenter.

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

    Availability of NPRMs

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

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 2200 S 216th St., Des Moines, WA 98198-6547.

    Availability and Summary of Documents for Incorporation by Reference

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

    The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by modifying Class D airspace, Class E surface area airspace, Class E airspace designated as an extension, and Class E airspace extending upward from 700 feet above the surface, and removing Class E airspace extending upward from 1,200 feet above the surface at Grant County International Airport, Moses Lake, WA.

    Class D airspace would be modified to a 5.3-mile radius (from a 5.7-mile radius) of the airport, and the excluded area southeast of the airport would be re-defined as “within an area bounded by a line beginning at the point where the 147° bearing from the airport intersects the 5.3-mile radius of the airport to lat. 47°09′59″ N, long. 119°14′55″ W, to the point where the 103° bearing from the airport intersects the airport 5.3-mile radius, thence clockwise along the 5.3-mile radius of the airport to the point of beginning.”

    Class E surface area airspace would be modified to be coincident with the dimensions of the Class D airspace, and would be effective during the hours when the Class D is not in effect to protect IFR operations continuously.

    Class E airspace designated as an extension to a Class D or Class E surface area would be modified by removing the segments extending to the northeast (within 2.2 miles each side of the Moses Lake VOR/DME 050 radial extending from the 5.7-mile radius of the airport to 13.5 miles northeast of the VOR/DME, and within 3.5 miles each side of the Moses Lake VOR/DME 063° radial extending from the 5.7-mile radius of the airport to 12.9 miles northeast of the VOR/DME). Also, the segment extending north of the airport would be enlarged to within 4.2 miles west and 3.9 miles east of the 339° bearing from Grant County International Airport extending from the airport 5.3-mile radius to 15.3 miles north of the airport (from within 1.8 miles each side of the Ephrata VORTAC 156° radial extending from the 5.7-mile radius of Grant County Airport to 2.7 miles southeast of the VORTAC), excluding the Ephrata Municipal Airport, WA, Class E surface area airspace. Also, a small extension south of the airport would be added within 1.0 mile each side of the airport 162° bearing extending from the 5.3-mile radius of the airport to 5.9 miles south of the airport. This proposal would also remove the NOTAM part-time status of Class E airspace designated as an extension, which would be in effect continuously.

    Class E airspace extending upward from 700 feet would be modified to within a 7.1-mile (from a 16.6-mile) radius of Grant County International Airport, and within 3.8 miles southwest and 9-miles northeast of a 336° bearing extending from the airport to 27.5 miles northwest of the airport, and within 4 miles north and 8 miles south of the 069° bearing from the airport extending to 22.3 miles east of the airport, and within 8 miles east and 4 miles west of the 162° bearing from the airport extending to 22 miles south of the airport, and within 4-miles northwest and 8 miles southeast of the 223° bearing from the airport extending to 21.5 miles southwest of the airport (from a 16.6-mile radius of the Ephrata VORTAC). Also, the Class E airspace extending upward from 1,200 feet above the surface at the airport would be removed as it is wholly contained within the larger Spokane Class E en route airspace area, and duplication is not necessary.

    Additionally, this action proposes to update the airport name from Grant County Airport to Grant County International Airport, and the geographic coordinates for the associated Class D and Class E airspace areas to match the FAA's aeronautical database.

    Finally, an editorial change would be made to the Class D and Class E airspace legal descriptions replacing “Airport/Facility Directory” with the term “Chart Supplement”. An editorial change also would be made removing the city associated with the airport name in the airspace designation to comply with a recent change to FAA Order 7400.2L, Procedures for Handling Airspace Matters, dated October 12, 2017.

    Class D and Class E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

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

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 5000 Class D Airspace. ANM WA D Moses Lake, WA [Amended] Grant County International Airport, WA (Lat. 47°12′31″ N, long. 119°19′09″ W)

    That airspace extending upward from the surface to and including 3,700 feet MSL within a 3-mile radius of Grant County International Airport, excluding that airspace within an area bounded by a line beginning at the point where the 147° bearing from the airport intersects the 5.3-mile radius of the airport to lat. 47°09′59″ N, long. 119°14′55″ W, to the point where the 103° bearing from the airport intersects the airport 5.3-mile radius, thence clockwise along the 5.3-mile radius of the airport to the point of beginning. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    Paragraph 6002 Class E Airspace Designated as Surface Areas. ANM WA E2 Moses Lake, WA [Amended] Grant County International Airport, WA (Lat. 47°12′31″ N, long. 119°19′09″ W)

    That airspace extending upward from the surface within a 5.3-mile radius of Grant County International Airport, excluding that airspace within an area bounded by a line beginning at the point where the 147° bearing from the airport intersects the 5.3-mile radius of the airport to lat. 47°09′59″ N, long. 119°14′55″ W, to the point where the 103° bearing from the airport intersects the airport 5.3 mile radius, thence clockwise along the 5.3-mile radius of the airport to the point of beginning. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    ANM WA E4 Moses Lake, WA [Amended] Grant County International Airport, WA (Lat. 47°12′31″ N, long. 119°19′09″ W)

    That airspace extending upward from the surface within 4.2 miles west and 3.9 miles east of the 339° bearing from Grant County International Airport extending from the airport 5.3-mile radius to 15.3 miles north of the airport, and within 1.0 mile each side of the airport 162° bearing extending from the 5.3-mile radius of the airport to 5.9 miles south of the airport, excluding that airspace within the Ephrata Municipal Airport, WA, Class E surface area.

    Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ANM WA E5 Moses Lake, WA [Amended] Grant County International Airport, WA (Lat. 47°12′31″ N, long. 119°19′09″ W)

    That airspace upward from 700 feet above the surface within a 7.1-mile radius of Grant County International Airport, and within 3.8 miles southwest and 9-miles northeast of a 336° bearing extending from the airport to 27.5 miles northwest of the airport, and within 4 miles north and 8 miles south of the 069° bearing from the airport extending to 22.3 miles east of the airport, and within 8 miles east and 4 miles west of the 162° bearing from the airport extending to 22 miles south of the airport, and within 4-miles northwest and 8 miles southeast of the 223° bearing from the airport extending to 21.5 miles southwest of the airport.

    Issued in Seattle, Washington, on April 23, 2018. B.G. Chew, Acting Group Manager, Operations Support Group, Western Service Center.
    [FR Doc. 2018-09105 Filed 5-3-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0125; Airspace Docket No. 18-AAL-5] RIN 2120-AA66 Proposed Amendment of Class D and Class E Airspace, and Revocation of Class E Airspace; Juneau, AK AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to amend Class D airspace, Class E surface area airspace, Class E airspace extending upward from 700 feet above the surface, and remove Class E airspace designated as an extension at Juneau International Airport, Juneau, AK. Airspace redesign is necessary as the FAA transitions from ground-based to satellite-based navigation for the safety and management of instrument flight rules (IFR) operations at the airport. This proposal would also update the airport's geographic coordinates to match the FAA's aeronautical database for the associated Class D and E airspace areas, and would make an editorial change to the Class D airspace legal description replacing Airport/Facility Directory with the term Chart Supplement.

    DATES:

    Comments must be received on or before June 18, 2018.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1(800) 647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2018-0125; Airspace Docket No. 18-AAL-5, at the beginning of your comments. You may also submit comments through the internet at http://www.regulations.gov.

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

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

    FOR FURTHER INFORMATION CONTACT:

    Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 2200 S 216th St., Des Moines, WA 98198-6547; telephone (206) 231-2253.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority, as it would amend Class D and Class E airspace at Juneau International Airport, Juneau, AK, in support of IFR operations at the airport.

    Comments Invited

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

    Communications should identify both docket numbers (Docket No. FAA-2018-0125; Airspace Docket No. 18-AAL-5) and be submitted in triplicate to DOT Docket Operations (see ADDRESSES section for address and phone number). Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2018-0125; Airspace Docket No. 18-AAL-5.” The postcard will be date/time stamped and returned to the commenter.

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

    Availability of NPRMs

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

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined between 8:00 a.m. and 4:30 p.m., Monday through Friday, except federal holidays, at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 2200 S 216th St., Des Moines, WA 98198-6547.

    Availability and Summary of Documents for Incorporation by Reference

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

    The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by enlarging Class D airspace and Class E surface area airspace, removing Class E airspace designated as an extension, and reducing Class E airspace extending upward from 700 feet above the surface at Juneau International Airport, Juneau, AK. Also, the airport geographic coordinates for the associated Class D and E airspace areas would be updated to match the FAA's aeronautical database.

    Class D airspace would be modified to within a 3-mile radius of Juneau International Airport and within 2.5 miles each side of the 271° bearing from the airport extending from the 3-mile radius to 5.2 miles west of the airport, and within 1.0 mile southwest and 2.6 miles northeast of the airport 135° bearing extending from the airport 3-mile radius to 5 miles southeast of the airport, excluding that airspace below 2,000 feet MSL within the area bounded by a line beginning at lat. 58°19′35″ N, long. 134°24′31″ W, to lat. 58°19′02″ N, long. 134°25′33″ W, to lat. 58°20′16″ N, long. 134°27′28″ W, to lat. 58°20′34″ N, long. 134°26′22″ W, thence to the point of beginning. The extended areas to the west and southeast of the airport would contain IFR departures and arrivals. A small area within the extended area to the southeast near Salmon Creek would be excluded from Class D airspace below 2,000 feet MSL to ensure 2-way radio communication with the Juneau Airport Traffic Control Tower is possible prior to entering Class D airspace from that area.

    Class E surface area airspace would be modified to be coincident with the Class D airspace area described above.

    Class E airspace designated as an extension would be removed since the proposed Class D airspace would contain arrival aircraft within 1,000 feet of the surface, and a Class E arrival extension would not be required.

    Class E airspace extending upward from 700 feet above the surface would be modified to a polygon approximately 12-18 miles wide by 42-miles long (from approximately 48 miles wide by 70 miles long) oriented northwest to southeast (from west to east). The area would be defined as that airspace upward from 700 feet above the surface within the area bounded by a line beginning at lat. 58°27′33″ N, long. 134°37′40″ W, to lat. 58°13′13″ N, long. 134°11′51″ W, to lat. 58°05′59″ N, long. 134°21′04″ W, to lat. 58°10′51″ N, long. 134°59′18″ W, to lat. 58°23′41″ N, long. 135°31′13″ W, to lat. 58°32′22″ N, long. 135°18′32″ W, to lat. 58°27′17″ N, long. 135°01′27″ W, thence to the point of beginning. This modification would reduce the airspace area to only that area necessary to contain IFR operations as they transition between the airport and en route environments. Also, Class E airspace extending upward from 1,200 feet above the surface designated for Juneau International Airport would be removed since this airspace is wholly contained within the Southeast Alaska Class E en route airspace, and duplication is not necessary.

    This proposal would also make an editorial change to the Class D airspace legal description replacing Airport/Facility Directory with the term Chart Supplement.

    A graphic illustration of the proposed airspace will be entered into Docket No. FAA-2018-0125, and be available for download under the “Supporting/Related Materials” section.

    Class E airspace designations are published in paragraph 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11B, dated August 3, 2017 and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class D and Class E airspace designation listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

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

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 5000 Class D Airspace. AAL AK D Juneau, AK [Amended] Juneau International Airport, AK (Lat. 58°21′17″ N, long. 134°34′42″ W)

    That airspace extending upward from the surface to and including 2,500 feet MSL within a 3-mile radius of Juneau International Airport, and within 2.5 miles each side of the 271° bearing from the airport extending from the 3-mile radius to 5.2 miles west of the airport, and within 1.0 mile southwest and 2.6 miles northeast of the airport 135° bearing extending from the airport 3-mile radius to 5 miles southeast of the airport, excluding that airspace below 2,000 feet MSL within the area bounded by a line beginning at lat. 58°19′35″ N, long. 134°24′31″ W, to lat. 58°19′02″ N, long. 134°25′33″ W, to lat. 58°20′16″ N, long. 134°27′28″ W, to lat. 58°20′34″ N, long. 134°26′22″ W, thence to the point of beginning. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    Paragraph 6002 Class E Airspace Areas Designated as Surface Areas. AAL AK E2 Juneau, AK [Amended] Juneau International Airport, AK (Lat. 58°21′17″ N, long. 134°34′42″ W)

    That airspace extending upward from the surface within a 3-mile radius of Juneau International Airport, and within 2.5 miles each side of the 271° bearing from the airport extending from the 3-mile radius to 5.2 miles west of the airport, and within 1.0 mile southwest and 2.6 miles northeast of the airport 135° bearing extending from the airport 3-mile radius to 5 miles southeast of the airport, excluding that airspace below 2,000 feet MSL within the area bounded by a line beginning at lat. 58°19′35″ N, long. 134°24′31″ W, to lat. 58°19′02″ N, long. 134°25′33″ W, to lat. 58°20′16″ N, long. 134°27′28″ W, to lat. 58°20′34″ N, long. 134°26′22″ W, thence to the point of beginning. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    Paragraph 6004 Class E Airspace Designated as an Extension to a Class D or Class E Surface Area. AAL AK E4 Juneau, AK [Removed] Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. AAL AK E5 Juneau, AK [Amended] Juneau International Airport, AK (Lat. 58°21′17″ N, long. 134°34′42″ W)

    That airspace upward from 700 feet above the surface within the area bounded by a line beginning at lat. 58°27′33″ N, long. 134°37′40″ W, to lat. 58°13′13″ N, long. 134°11′51″ W, to lat. 58°05′59″ N, long. 134°21′04″ W, to lat. 58°10′51″ N, long. 134°59′18″ W, to lat. 58°23′41″ N, long. 135°31′13″ W, to lat. 58°32′22″ N, long. 135°18′32″ W, to lat. 58°27′17″ N, long. 135°01′27″ W, thence to the point of beginning.

    Issued in Seattle, Washington, on April 23, 2018. B.G. Chew, Acting Group Manager, Operations Support Group, Western Service Center.
    [FR Doc. 2018-09106 Filed 5-3-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0126; Airspace Docket No. 18-AAL-6] RIN 2120-AA66 Proposed Establishment of Class E Airspace; Hoonah, AK AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to establish Class E airspace extending upward from 700 feet above the surface, at Hoonah Airport, Hoonah, AK, to accommodate area navigation (RNAV) procedures at the airport. This action would ensure the safety and management of instrument flight rules (IFR) operations within the National Airspace System.

    DATES:

    Comments must be received on or before June 18, 2018.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1 (800) 647-5527, or (202) 366-9826. You must identify FAA Docket No. FAA-2018-0126; Airspace Docket No. 18-AAL-6, at the beginning of your comments. You may also submit comments through the internet at http://www.regulations.gov.

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

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

    FOR FURTHER INFORMATION CONTACT:

    Tom Clark, Federal Aviation Administration, Operations Support Group, Western Service Center, 2200 S 216th St., Des Moines, WA 98198-6547; telephone (206) 231-2253.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would establish Class E airspace at Hoonah Airport, Hoonah, AK, in support of IFR operations at the airport.

    Comments Invited

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

    Communications should identify both docket numbers (Docket No. FAA-2018-0126; Airspace Docket No. 18-AAL-6) and be submitted in triplicate to DOT Docket Operations (see ADDRESSES section for address and phone number).

    Persons wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2018-0126; Airspace Docket No. 18-AAL-6.” The postcard will be date/time stamped and returned to the commenter.

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

    Availability of NPRMs

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

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined between 8:00 a.m. and 4:30 p.m., Monday through Friday, except federal holidays, at the Northwest Mountain Regional Office of the Federal Aviation Administration, Air Traffic Organization, Western Service Center, Operations Support Group, 2200 S 216th St., Des Moines, WA 98198-6547.

    Availability and Summary of Documents for Incorporation by Reference

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

    The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing a designated stand-alone Class E airspace extending upward from 700 feet above the surface at Hoonah Airport, Hoonah, AK, within a 3-mile radius of the airport and within 3 miles each side of the 077° bearing from the airport extending from the airport 3-mile radius to 8.1 miles east of the airport. This airspace area would specifically support IFR operations at Hoonah Airport, and would be unaffected by any proposed changes that would occur at any other airport.

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

    Regulatory Notices and Analyses

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

    Environmental Review

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

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

    Accordingly, pursuant to the authority delegated to me, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. AAL AK E5 Hoonah, AK [New] Hoonah Airport, AK (Lat. 58°05′46″ N, long. 135°24′32″ W)

    That airspace extending upward from 700 feet above the surface within a 3-mile radius of the Hoonah Airport and within 3 miles each side of the airport 077° bearing extending from the airport 3-mile radius to 8.1 miles east of the airport.

    Issued in Seattle, Washington, on April 23, 2018. B.G. Chew, Acting Group Manager, Operations Support Group, Western Service Center.
    [FR Doc. 2018-09108 Filed 5-3-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket Number USCG-2018-0209] RIN 1625-AA08 Special Local Regulations for Marine Events, Delaware River; Philadelphia, PA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of Proposed Rulemaking.

    SUMMARY:

    The Coast Guard is proposing to establish a special local regulation on the waters of the Delaware River in Philadelphia, Pennsylvania. The regulation would restrict vessel traffic operations on a portion of the Delaware River during the Tall Ships Parade of Sail event that is taking place on May 24, 2018, from 12:00 noon to 6:00 p.m. This regulation is necessary to protect the surrounding public and vessels from the hazards associated with a parade of sail.

    DATES:

    Comments and related material must be received by the Coast Guard on or before May 11, 2018.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2018-0209 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 on this rule, call or email Lieutenant (Junior Grade) Kiley Relf, U.S. Coast Guard, Sector Delaware Bay, Chief Waterways Management Division, Coast Guard; telephone (215) 271-4851, 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

    The sponsor for the Sail Philadelphia marine event submitted an application for a marine event permit that will take place from May 24, 2018, through May 28, 2018. The event includes a tall ships parade from noon to 6 p.m. on May 24, 2018. The COTP Delaware Bay has determined that potential hazards associated with the parade would be a safety concern for anyone intending to participate in this event or for vessels that operate within the waters where this event will be held.

    The purpose of this proposed rulemaking is to ensure the safety of vessels and persons during the tall ships' parade on the navigable waters of the Delaware River in Philadelphia, Pennsylvania. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1233.

    III. Discussion of Proposed Rule

    The COTP Delaware Bay, proposes the establishment of a special local regulation on specified waters of the Delaware River, adjacent to Philadelphia, Pennsylvania, bounded in the west by the Pennsylvania shoreline, bounded in the east by the eastern edge of the navigation channel, bounded in the South by the Walt Whitman Bridge, and bounded on the north by the Benjamin Franklin Bridge. In addition, the special local regulation includes all waters of the Delaware River South of the Benjamin Franklin Bridge to an east-west line from the northern end of Wiggins Marina in Camden, New Jersey, (39°56′32″ N and 075°07′56″ W) to the Pennsylvania shoreline. The special local regulation will be effective and enforced during the tall ships parade from noon through 6 p.m. on May 24, 2018. Access to the regulated area will be restricted during the specified date and time.

    A fleet of spectator vessels is anticipated to gather nearby to view the marine event. Due to the need for vessel control during the marine event, vessel traffic will temporarily be restricted to provide safety of participants, spectators and transiting vessels. The Coast Guard will apply the provisions of 33 CFR 100.501(c) to the above specified locations during the enforcement period. Vessels may not enter the regulated area unless they receive permission from the designated representative.

    The Coast Guard will have a marine event patrol, as described in 33 CFR 100.40(a), to the event. Additionally, a Patrol Commander will be assigned to oversee the patrol. The marine event patrol and Patrol Commander may be contacted on VHF-FM Channel 16. During the enforcement period, the Coast Guard Patrol Commander may forbid and control the movement of all vessels in the regulated area. When hailed or signaled by the marine event patrol vessel or Patrol Commander, a vessel within the regulated area shall immediately comply with the directions given. Failure to do so may result in expulsion from the regulated area, citation for failure to comply, or both. The Coast Guard Patrol Commander may terminate the event, or the operation of any vessel participating in the event, at any time he or she deems it necessary for the protection of life or property. Coast Guard Sector Delaware Bay will notify the public by a broadcast notice to mariners at least one hour prior to the times of enforcement. Additionally a broadcast notice to marines will notify mariners of the termination of the Special Local Regulation.

    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.

    Although this regulation will restrict access to the regulated area, the effect of this proposed rule will not be significant because: (i) The Coast Guard will make extensive notification of the regulated area to the maritime public via maritime advisories so mariners can alter their plans accordingly; (ii) vessels may still be permitted to transit through the regulated area with the permission of the designated representative on a case-by-case basis; and (iii) this rule will be enforced for only the duration of the tall ships parade, a six hour event.

    B. Impact on Small Entities

    The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard certifies under 5 U.S.C. 605(b) that this 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 regulated area may be small entities, for the reasons stated above in 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 special local regulation lasting less than 7 hours that would prohibit entry into portions of the Delaware River in order to promote public and maritime safety during a tall ships parade. Normally such actions are categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. Supporting documentation is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

    G. Protest Activities

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

    V. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

    We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

    We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, visit http://www.regulations.gov/privacyNotice.

    Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

    List of Subjects in 33 CFR Part 100

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

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

    PART 100—SAFETY OF LIFE ON NAVIGABLE WATERS 1. The authority citation for part 100 continues to read as follows: Authority:

    33 U.S.C 1233, 33 CFR 1.05-1.

    2. Add temporary § 100.T05-0209, to read as follows:
    § 100.T05-0209 Special Local Regulations For Marine Events, Delaware River; Philadelphia, PA.

    (a) Regulated areas. All waters of the Delaware River, adjacent to Philadelphia, Pennsylvania, bounded in the west by the Pennsylvania shoreline, bounded in the east by the eastern edge of the navigation channel as depicted on U.S. Nautical Chart 12313 or U.S. Electronic Nautical Chart US5PA12M, bounded in the south by the Walt Whitman Bridge, and bounded on the north by the Benjamin Franklin Bridge. In addition, the special local regulation includes all waters of the Delaware River south of the Benjamin Franklin Bridge to an east-west line from the northern end of Wiggins Marina in Camden, New Jersey, (39°56′32″ N and 075°07′56″ W) to the Pennsylvania shoreline. The coordinates for both areas are based on datum WGS 84.

    (b) Definitions. (1) As used in this section, Captain of the Port means the Commander, Sector Delaware Bay or any Coast Guard commissioned, warrant, or petty officer who has been authorized by the Captain of the Port to act on his behalf.

    (2) Coast Guard Patrol Commander. A Patrol Commander (PATCOM) is a commissioned, warrant, or petty officer of the Coast Guard who has been designated by the respective Coast Guard Sector—Captain of the Port to enforce these regulations.

    (3) Official patrol. Any vessel assigned or approved by the respective Captain of the Port with a commissioned, warrant, or petty officer on board and displaying a Coast Guard ensign.

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

    (c) Regulations. (1) Controls on vessel movement. The PATCOM or designated marine event patrol may forbid and control the movement of all vessels in the regulated area(s). When hailed or signaled by an official patrol vessel, a vessel in these areas shall immediately comply with the directions given. Failure to do so may result in expulsion from the area, citation for failure to comply, or both.

    (2) Directions, instructions, and minimum speed necessary. The operator of any vessel in the regulated area shall:

    (i) Stop the vessel immediately when directed to do so by any Official Patrol and then proceed only as directed.

    (ii) All persons and vessels shall comply with the instructions of the Official Patrol.

    (iii) Vessel operators may request permission to enter and transit through a regulated area by contacting the PATCOM on VHF-FM channel 16. When authorized to transit through the regulated area, vessels shall proceed at the minimum speed necessary to maintain a safe course that minimizes wake near the race course or marine event area.

    (d) Enforcement Period. This rule will be enforced from noon through 6 p.m. on May 24, 2018, unless cancelled earlier by the Captain of the Port once all operations are completed.

    Dated: April 30, 2018. Scott. E. Anderson, Captain, U.S. Coast Guard, Captain of the Port Delaware Bay.
    [FR Doc. 2018-09436 Filed 5-3-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0257] RIN 1625-AA09 Drawbridge Operation Regulation; Delaware River, Pennsauken Township, NJ AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of proposed rulemaking; reopening comment period.

    SUMMARY:

    The Coast Guard is reopening the comment period to solicit additional comments concerning the notice of proposed rulemaking (NPRM), which published on June 30, 2017. Reopening the comment period will allow the public to provide input on the proposed change to the regulation governing the DELAIR Memorial Railroad Bridge across the Delaware River, mile 104.6, at Pennsauken Township, NJ.

    DATES:

    The comment period for the proposed rule published June 30, 2017, at 82 FR 29800, is reopened. Comments and related material must reach the Coast Guard on or before August 17, 2018.

    ADDRESSES:

    You may submit comments identified by docket number USCG-2016-0257 using Federal eRulemaking Portal at http://www.regulations.gov. See the “Public Participation and Request for Comments” portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this proposed rule, call or email Mr. Hal R. Pitts, Fifth Coast Guard District (dpb); telephone (757) 398-6222, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background and Purpose

    On June 30, 2017, we published a notice of proposed rulemaking (NPRM) entitled, “Drawbridge Operation Regulation; Delaware River, Pennsauken Township, NJ” in the Federal Register (82 FR 29800). The original comment period closed on August 18, 2017. The NPRM proposed changes to the regulation governing the DELAIR Memorial Railroad Bridge across the Delaware River, mile 104.6, at Pennsauken Township, and contained useful background and analysis related to the proposed changes. The installation of the remote operation system did not change the operational schedule of the bridge.1 The public is encouraged to review the NPRM.

    1 A full description of the remote operational system is outlined in the aforementioned publication, which can be found at http://regulations.gov. (see ADDRESSES for more information).

    On April 12, 2017, we published a temporary deviation entitled “Drawbridge Operation Regulation; Delaware River, Pennsauken Township, NJ” in the Federal Register (82 FR 17561). During the initial test deviation performed from 8 a.m. on April 24, 2017, through 7:59 a.m. on October 21, 2017, the bridge owner identified deficiencies in the remote operation center procedures, bridge to vessel communications, and equipment redundancy.

    The bridge owner implemented policies and provided training to address the procedural and communications deficiencies, and implemented backup systems to mitigate potential equipment and systems failures. These changes were not fully evaluated during the temporary deviation ending October 21, 2017. Therefore, the Coast Guard decided to issue a second temporary deviation (“Drawbridge Operation Regulation; Delaware River, Pennsauken Township, NJ” in the Federal Register (82 FR 48419), to complete the evaluation of the changes incorporated into the remote operation system.

    On December 6, 2017, we published a notice of proposed rulemaking; reopening of comment period (NPRM); entitled “Drawbridge Operation Regulation; Delaware River, Pennsauken Township, NJ” in the Federal Register (82 FR 57561). This notice included a request for comments and related material to reach the Coast Guard on or before January 15, 2018.

    On January 22, 2018, we published a notice of temporary deviation; reopening of comment period; entitled “Drawbridge Operation Regulation; Delaware River, Pennsauken Township, NJ” in the Federal Register (83 FR 2909). This notice included a request for comments and related material to reach the Coast Guard on or before March 2, 2018.

    On February 15, 2018, we published a notice of proposed rulemaking; reopening comment period; entitled “Drawbridge Operation Regulation; Delaware River, Pennsauken Township, NJ” in the Federal Register (see 83 FR 6821). This notice included a request for comments and related material to reach the Coast Guard on or before March 2, 2018.

    The Coast Guard has reviewed 25 comments posted to the docket, six reports with supporting documentation submitted by the bridge owner during the initial and second temporary deviations, and other information concerning the remote operation system of the DELAIR Memorial Railroad Bridge. Through this review, the Coast Guard found that further testing and evaluation of the remote operation system of the drawbridge is necessary before making a decision on the proposed regulation. The Coast Guard has issued a third temporary deviation from 8 a.m. on April 19, 2018, through 7:59 a.m. on October 16, 2018, to provide sufficient time for further testing and evaluation of the remote operation system of the DELAIR Memorial Railroad Bridge.

    During this temporary deviation, the following changes have been implemented: (1) The on-site bridge tender will be removed from the bridge, (2) qualified personnel will return and operate the bridge within 60 minutes if the remote operation system is considered in a failed condition,2 and (3) comments concerning the utility and value of the automated identification system (AIS) are requested.

    2 The conditions in which the remote operation system will be considered in a failed condition are detailed in the Supplementary Information: III. Discussion of Proposed Rule section of the Notice of Proposed Rulemaking (NPRM), which can be found at: http://regulations.gov, (see ADDRESSES for more information).

    II. Public Participation and Request for Comments

    We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

    We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions. We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, visit http://www.regulations.gov/privacyNotice.

    Documents mentioned in this NPRM as being available in this docket, as well as 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.

    M.L. Austin, Rear Admiral, U.S. Coast Guard, Commander, Fifth Coast Guard District.
    [FR Doc. 2018-09531 Filed 5-3-18; 8:45 am] BILLING CODE 9110-04-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Parts 1, 2, 15, 25, 30, and 101 [AU Docket No. 18-85; FCC 18-43] Auctions of Upper Microwave Flexible Use Licenses for Next-Generation Wireless Services; Comment Sought on Competitive Bidding Procedures for Auctions 101 (28 GHz) and 102 (24 GHz); Bidding in Auction 101 Scheduled To Begin November 14, 2018 AGENCY:

    Federal Communications Commission.

    ACTION:

    Proposed rule; proposed auction procedures.

    SUMMARY:

    In this document, the Commission announces auctions of Upper Microwave Flexible Use Service licenses in the 27.5-28.35 GHz (28 GHz) and 24.25-24.45 and 24.75-25.25 GHz (24 GHz) bands, designated as Auctions 101 and 102, respectively. This document proposes and seeks comment on competitive bidding procedures and minimum opening bids to be used for Auctions 101 and 102.

    DATES:

    Comments are due on or before May 9, 2018, and reply comments are due on or before May 23, 2018. Bidding in Auction 101 for licenses in the 28 GHz band is scheduled to commence on November 14, 2018. Bidding in Auction 102 for licenses in the 24 GHz band is scheduled to commence subsequent to the conclusion of bidding in Auction 101.

    ADDRESSES:

    Comments may be filed using the Commission's Electronic Comment Filing System (ECFS) or by filing paper copies. Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (May 1, 1998). All filings in response to the Auctions 101 and 102 Comment Public Notice must refer to AU Docket No.18-85. The Commission strongly encourages interested parties to file comments electronically, specifying the particular auction(s) (i.e., Auction 101 and/or Auction 102) to which their comments are directed, and request that an additional copy of all comments and reply comments be submitted electronically to the following email address: [email protected]

    Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: https://www.fcc.gov/ecfs/. Filers should follow the instructions provided on the website for submitting comments. In completing the transmittal screen, filers should include their full name, U.S. Postal Service mailing address, and the applicable docket number, AU Docket No. 18-85.

    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.

    FOR FURTHER INFORMATION CONTACT:

    For auction legal questions, Erik Beith or Kathryn Hinton in the Wireless Telecommunications Bureau's Auctions and Spectrum Access Division at (202) 418-0660. For general auction questions, the Auctions Hotline at (717) 338-2868. For Upper Microwave Flexible Use Service questions, Nancy Zaczek or Janet Young in the Wireless Telecommunications Bureau's Broadband Division at (202) 418-2487.

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Public Notice (Auctions 101 and 102 Comment Public Notice), AU Docket No. 18-85, FCC 18-43, adopted and released on April 17, 2018. The Auctions 101 and 102 Comment Public Notice includes the following attachments: Attachment A, Summary of Licenses to be Auctioned; and Attachment B, Bid Formula for Auction 101. The complete text of the Auctions 101 and 102 Comment Public Notice, including all attachments, is available for public inspection and copying from 8:00 a.m. to 4:30 p.m. Eastern Time (ET) Monday through Thursday or from 8:00 a.m. to 11:30 a.m. ET on Fridays in the FCC Reference Information Center, 445 12th Street SW, Room CY-A257, Washington, DC 20554. The complete text is also available on the Commission's website at www.fcc.gov/auction/101-102/ or by using the search function for AU Docket No. 18-85 on the Commission's ECFS web page at www.fcc.gov/cgb/ecfs/. Alternative formats are available to persons with disabilities by sending an email to [email protected] or by calling the Consumer & Governmental Affairs Bureau at (202) 418-0530 (voice), (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 in the Auctions 101 and 102 Comment Public Notice in AU Docket No. 18-85.

    I. Introduction

    1. By the Auctions 101 and 102 Comment Public Notice, the Commission announces that it will auction a total of 5,986 Upper Microwave Flexible Use Service (UMFUS) licenses in the 27.5-28.35 GHz (28 GHz) and 24.25-24.45 and 24.75-25.25 GHz (24 GHz) bands (collectively, the UMFUS bands), and it seeks comment on the procedures to be used for these auctions. The bidding in the auction for licenses in the 28 GHz band, which is designated as Auction 101, is scheduled to commence on November 14, 2018. Bidding in the auction for licenses in the 24 GHz band, which is designated as Auction 102, will be scheduled to commence subsequent to the conclusion of bidding in Auction 101. As discussed below, the Commission proposes to use its standard simultaneous multiple-round (SMR) auction format for Auction 101 (28 GHz) and a clock auction format for Auction 102 (24 GHz).

    II. Licenses To Be Offered in Auctions 101 and 102 A. Description of Licenses

    2. The 1.55 gigahertz of UMFUS spectrum available in Auctions 101 and 102 will be licensed on a geographic area basis. The Second Further Notice of Proposed Rulemaking in the Spectrum Frontiers proceeding raised issues with respect to Fixed-Satellite Services (FSS) use in a portion of the 24 GHz band, operability in the 24 GHz band, whether to add an alternative performance requirement metric for UMFUS services in the millimeter wave (mmW or mmWave) bands, and certain issues related to mobile spectrum holdings policies for UMFUS services in the mmW bands. The Commission plans to make a decision on these issues before the start of Auction 101. The 3,074 licenses in the 28 GHz band offered in Auction 101 will be county-based licenses. The 28 GHz band will be licensed as two 425 megahertz blocks (27.500- 27.925 GHz and 27.925-28.350 GHz). For each county in which 28 GHz licenses will be available for auction, both blocks of the 28 GHz band will be available.

    3. Auction 102 will offer 2,912 licenses in the 24 GHz band, and the licenses will be based on PEAs. The lower segment of the 24 GHz band (24.25-24.45 GHz) will be licensed as two 100 megahertz blocks, while the upper segment (24.75-25.25 GHz) will be licensed as five 100 megahertz blocks.

    4. Each of the bands available in Auctions 101 and 102 will be licensed on an unpaired basis. A licensee in these bands may provide any services permitted under a fixed or mobile allocation, as set forth in the non-Federal Government column of the Table of Frequency Allocations in Section 2.106 of the Commission's rules.

    5. Table 1 in the Auctions 101 and 102 Comment PN contains summary information regarding the UMFUS licenses available in Auction 101. Table 2 in the Auctions 101 and 102 Comment PN contains summary information regarding the UMFUS licenses available in Auction 102.

    6. A summary of the licenses to be offered in Auctions 101 and 102 is available in Attachment A to the Auctions 101 and 102 Comment Public Notice. The 28 GHz licenses listed in Attachment A as available in Auction 101 do not include counties within the boundaries of existing active 28 GHz licenses. Due to the large number of licenses offered in Auctions 101 and 102, the complete list of licenses to be offered in these auctions will be provided in electronic format only, available as separate Attachment A files at www.fcc.gov/auction/101-102.

    B. Incumbents in 28 GHz and 24 GHz Bands

    7. Active licenses in the 28 GHz band cover 1,695 full counties and two partial counties. Active licenses in the 24 GHz band cover nine PEAs.

    C. Sharing Issues 1. 28 GHz Band

    8. As background that should guide decisions to participate in the auctions, the Commission set up a sharing scheme for the 28 GHz band. Specifically, licenses for UMFUS in the 28 GHz band are being made available on a shared basis with FSS earth stations on a co-primary basis. Up to three transmitting FSS earth stations may be located in each county that are not required to protect UMFUS operations within a specified interference zone. In the 2016 Spectrum Frontiers Order, 81 FR 79894, November 14, 2016, the Commission grandfathered all existing 28 GHz FSS earth stations authorized as of the adoption date, July 14, 2016, and granted them the right to operate under the terms of their existing authorizations without taking into account possible interference to UMFUS operations. That decision also grandfathered pending applications for 28 GHz earth stations filed prior to the adoption date of the 2016 Spectrum Frontiers Order if such applications were subsequently granted pursuant to the existing Part 25 rules. The Commission also gave FSS operators multiple mechanisms for deploying earth stations. First, it granted status to any FSS earth stations for which the FSS operator also holds the UMFUS license, whether through participation in an auction or the secondary markets, that covers the earth station's permitted interference. To the extent FSS operators and UMFUS licensees enter into private agreements, the Commission held that their relationship will be governed by those agreements. The Commission also determined that FSS earth stations may continue to be authorized without the benefit of an interference zone, i.e., on a secondary basis.

    9. In the 2017 Spectrum Frontiers Order, 83 FR 37, January 2, 2018, the Commission decided that it would continue to authorize satellite earth stations on a first-come, first-served basis in the 28 GHz band, but modified the guidelines for their deployment. The current rule for sharing between UMFUS and FSS earth stations in the 28 GHz band is Section 25.136(a) of the Commission's rules.

    2. 24 GHz Band

    10. Similarly, the Commission adopted a sharing regime for the 24 GHz band as well. Specifically, licenses for UMFUS in the upper segment of the 24 GHz band (24.75-25.25 GHz) are being made available on a shared basis with incumbent Broadcast Satellite Service (BSS) feeder link stations. The upper segment of the 24 GHz band (24.75-25.25 GHz) is divided into two parts. Satellite use of the upper part (25.05-25.25 GHz) is currently restricted to BSS feeder link earth stations in EAs where there is no Fixed Service licensee. The lower part (24.75-25.05 GHz), which has no terrestrial licensees, is open for all FSS use, though BSS feeder links have priority. BSS feeder link earth stations can be licensed to operate in the 24.75-25.05 GHz and 25.05-25.25 GHz bands. In the 2017 Spectrum Frontiers FNPRM, 83 FR 85, January 2, 2018, the Commission sought comment on licensing FSS earth stations in the 24.75-25.25 GHz band on a co-primary basis under the provisions in Section 25.136(d). This means that the 24.75-25.25 GHz band would be available only for individually-licensed FSS earth stations that meet specific requirements applicable to earth stations in other bands shared with UMFUS (e.g., limitations on population covered, number of earth station locations in a PEA, and a prohibition on earth stations in places where they would preclude terrestrial service to people or equipment that are in transit or are present at mass gatherings).

    III. Application and Bidding Processes: Implementation of Part 1 Rules for Auctions 101 and 102 A. Separate Auction Application and Bidding Processes

    11. The Commission proposes to offer the 5,986 licenses described above through two separate auctions, Auctions 101 and 102, respectively. Bidding in Auction 101 for 28 GHz band licenses is scheduled to commence on November 14, 2018. The Commission proposes to commence bidding in Auction 102 for 24 GHz band licenses subsequent to the close of bidding in Auction 101.

    12. The Commission proposes to use separate application and bidding processes for Auctions 101 and 102. The Commission proposes separate auctions so that it can use different auction formats for Auctions 101 and 102, which will accommodate differences in the characteristics of the specific inventories of licenses available in these two bands and simplify the bidding process for participants. For example, the similarities among blocks in the 24 GHz band facilitate using a clock auction with generic blocks, which will speed up the bidding relative to license-by-license bidding, which is needed when blocks in the band are less uniformly available, as in 28 GHz. With respect to bidding, the Commission proposes to use its standard SMR auction format for Auction 101 (28 GHz) and a clock auction format, similar to that used for the forward auction portion (Auction 1002) of the Broadcast Incentive Auction, for Auction 102 (24 GHz), as described and explained in greater detail below. The Commission proposes to accept auction applications during separate application filing windows—one for Auction 101 and one for Auction 102. The Commission also seeks comment on whether the filing window for Auction 102 should occur prior to the close of bidding in Auction 101.

    13. The Commission seeks comment on issues related to the timing of the proposed, separate application and bidding processes. Commenters should address how the sequence and timing for Auctions 101 and 102 processes, including pre- and post-auction procedures, may affect bidder participation in one or both auctions. Specifically, how can the Commission coordinate the timing of auction application and bidding procedures so as to minimize burdens on auction applicants and maximize participation and competition in both auctions? Should the Commission open both windows before bidding begins in Auction 101? Or should the Commission wait to open the filing window for Auction 102 until after bidding in Auction 101 has begun? Alternatively, should the Commission wait to open the application window for Auction 102 until after the close of bidding in Auction 101?

    14. The Commission notes that, if the filing window for Auction 102 occurs prior to the close of bidding in Auction 101, entities wishing to participate in either auction would be applicants during overlapping periods of time. Further, because the licenses to be offered in both Auctions 101 and 102 cover UMFUS spectrum and are subject to many of the same service rules, applicants may view the licenses to be offered in these auctions as substitutes, at least to some extent, and therefore may be interested in participating in both auctions. Therefore, the Commission encourages commenters to consider how the timing of the separate application windows and bidding processes for Auctions 101 and 102 might affect the ban on joint bidding agreements and prohibition of certain communications by auction applicants during these overlapping auctions, as well as information disclosure procedures during the auction process, as discussed in greater detail below. Commenters should provide specific reasons for supporting or objecting to any approach.

    B. Information Procedures During the Auction Process

    15. As with most recent Commission spectrum license auctions, the Commission proposes to limit information available in Auctions 101 and 102 in order to prevent the identification of bidders placing particular bids until after the bidding has closed. More specifically, the Commission proposes to not make public until after bidding has closed: (1) The licenses or license areas that an applicant selects for bidding in its auction application (FCC Form 175), (2) the amount of any upfront payment made by or on behalf of an applicant for Auction 101 or 102, (3) any applicant's bidding eligibility, and (4) any other bidding-related information that might reveal the identity of the bidder placing a bid.

    16. Under these proposed limited information procedures (sometimes also referred to as anonymous bidding), information to be made public after each round of bidding in Auction 101 would include the amount of every bid placed and whether a bid was withdrawn (if withdrawals are permitted). In Auction 102, information to be made public would include, for each category of license in each geographic area, the supply, the aggregate demand, the price at the end of the last completed round, and the price for the next round. In both auctions, however, the identities of bidders placing specific bids or withdrawals (if permitted) and the net bid amounts (reflecting bidding credits) would not be disclosed until after the close of bidding.

    17. Bidders would have access to additional information related to their own bidding and bid eligibility. For example, bidders would be able to view their own level of eligibility, before and during the respective auction, through the FCC auction bidding system.

    18. After the close of bidding, bidders' license and/or PEA selections, as applicable, upfront payment amounts, bidding eligibility, bids, and other bidding-related actions would be made publicly available. Under the Commission's proposed SMR auction design for Auction 101, an applicant would identify on its auction application the licenses offered on which it may wish to bid during the auction. Under the Commission's proposed clock auction design for Auction 102, an applicant would select on its auction application all of the PEA(s) on which it may want to bid from the list of available PEAs.

    19. Because applicants may be interested in participating in both auctions, if the Auction 102 application window occurs before the close of Auction 101, the Commission proposes that information relating to either auction that is non-public under its limited information procedures would remain non-public until after bidding has closed in both auctions. This approach will protect against disclosure, prior to the close of both auctions, of information relating to either auction that may indicate bidding strategies in the other. Under this scheduling scenario, should the Commission instead release results and make available all bidding information related to Auction 101 after the close of that auction is announced by public notice? Commenters should discuss the potential impact of the approach they favor on participation and competition in both auctions. If the Commission adopts an alternative scheduling approach and opens the Auction 102 application window after the close of bidding in Auction 101, however, the Commission proposes to apply the limited information procedures discussed above to each auction separately, and would make non-public information relating to Auction 101 available after the close of that auction and before the application filing window for Auction 102.

    20. The Commission seeks comment on the above details of its proposal for implementing limited information procedures, or anonymous bidding, in Auctions 101 and 102, under a scenario in which the Commission schedules the application window for Auction 102 to occur prior to the close of bidding in Auction 101. The Commission also seeks comment on the implementation alternatives under alternative scenarios for the timing of the auction application windows. Concerns about anti-competitive bidding and other factors that the Commission relied on as a basis for using anonymous bidding in prior auctions also would appear to apply to Auctions 101 and 102. The Commission encourages parties to provide information about the benefits and costs of complying with limited information procedures in Auctions 101 and 102, as compared with the benefits and costs of alternative procedures that would provide for the disclosure of more information on bidder identities and interests in the auctions. Commenters opposing the use of anonymous bidding in Auctions 101 and 102 should explain their reasoning and propose alternative information rules.

    C. Application of Prohibition of Certain Communications

    21. Section 1.2105(c)(1) of the Commission's rules provides that, subject to specified exceptions, after the short-form application filing deadline, all applicants are prohibited from cooperating or collaborating with respect to, communicating with or disclosing, to each other or any nationwide provider of communications services that is not an applicant, or, if the applicant is a nationwide provider, any non-nationwide provider that is not an applicant, in any manner the substance of their own, or each other's, or any other applicants' bids or bidding strategies (including post-auction market structure), or discussing or negotiating settlement agreements, until after the down payment deadline. For purposes of Section 1.2105(c)'s prohibition, Section 1.2105(c)(5)(i) defines “applicant” as including all officers and directors of the entity submitting a short-form application to participate in the auction, all controlling interests of that entity, as well as all holders of partnership and other ownership interests and any stock interest amounting to 10 percent or more of the entity, or outstanding stock, or outstanding voting stock of the entity submitting a short-form application.

    22. If, based on the Commission's final procedures for these auctions, the short-form window for Auction 102 occurs before the close of Auction 101, entities wishing to participate in either auction will be applicants during overlapping periods of time. In this scenario, based on the relationship between the two auctions, the Commission proposes to apply the prohibition of Section 1.2105(c)(1) across both auctions. Thus, an applicant in either auction that communicates its bids or bidding strategies to an applicant to participate in the other auction would violate the Commission's prohibited communication rule, which will apply to “all applicants” to participate in either auction, and not only to applicants for the same auction. That is, the rule prohibiting certain communications will apply to any applicant in either Auction 101 or 102. Accordingly, no Auction 101 applicant may discuss bids or bidding strategies with any other Auction 101 applicant or with an Auction 102 applicant. Conversely, no Auction 102 applicant may discuss bids or bidding strategies with any other Auction 102 applicant or with an Auction 101 applicant. In addition, the down payment deadline for Auction 102 would be the relevant down payment deadline for determining when the prohibition ends for each applicant in either auction. This approach should provide clarity with respect to permitted and prohibited communications by establishing a single end point for the prohibition.

    23. If the Commission adopts an alternative approach and schedules the Auction 102 application window to occur after the close of bidding in Auction 101, the Commission proposes to apply the prohibition of certain communications separately to each auction, using each auction's post-auction down payment deadline to determine when the prohibition ends for applicants in that auction.

    24. The Commission seeks comment on the details of its proposals for applying the prohibition of certain communications across Auctions 101 and 102 in the scenario in which the Auction 102 application window occurs before the close of bidding in Auction 101. If commenters support alternatives for applying the prohibition in this scenario they should provide implementation details and explain how such suggestions promote the purpose of the prohibition. The Commission also seeks comment on its suggestion for applying the prohibition under the alternative scenario in which the Auction 102 application window occurs after the close of bidding in Auction 101. The Commission requests that commenters address costs and benefits of each of these alternative ways of implementing the prohibition, and any other alternatives they may suggest, including any potential effects on auction participation and competition as well as any burden on applicants.

    D. Application Requirements and Certifications Relating to Joint Bidding and Other Agreements

    25. As recently amended in the 2015 Part I Report and Order, 80 FR 56764, September 18, 2015, the Commission's rules generally prohibit joint bidding and other arrangements involving auction applicants (including any party that controls or is controlled by such applicants). For purposes of the prohibition on joint bidding arrangements, “joint bidding arrangements” include arrangements relating to the licenses being auctioned that address or communicate, directly or indirectly, bidding at the auction, bidding strategies, including arrangements regarding price or the specific licenses on which to bid, and any such arrangements relating to the post-auction market structure. This prohibition applies to joint bidding arrangements involving two or more nationwide providers, as well as joint bidding arrangements involving a nationwide and one or more non-nationwide providers, where any party to the arrangement is an applicant for the auction. A “non-nationwide provider” refers to any provider of communications services that is not a “nationwide provider.”

    26. For the purpose of implementing its competitive bidding rules in Auctions 101 and 102, the Commission proposes to identify AT&T, Sprint, T-Mobile, and Verizon Wireless as “nationwide providers.” Because the Commission's rules allow an UMFUS licensee in the 28 GHz and 24 GHz bands to provide flexible terrestrial wireless services, including mobile services, the Commission bases its proposal on its identification of nationwide providers in the 20th Annual Mobile Competition Report, FCC 17-126. Commenters who disagree with this proposal should identify alternative “nationwide providers” and explain why the Commission should depart from the list of nationwide providers identified in the 20th Annual Mobile Competition Report.

    27. To implement the prohibition on joint bidding arrangements, the Commission's rules require each auction applicant in its short-form application to certify that it has disclosed any arrangements or understandings of any kind relating to the licenses being auctioned to which it (or any party that controls or is controlled by it) is a part; the applicant must also certify that it (or any party that controls or is controlled by it) has not entered and will not enter into any arrangement or understanding of any kind relating directly or indirectly to bidding at auction with, among others, “any other applicant” or a nationwide provider.

    28. If, based on the Commission's final procedures for these auctions, the Auction 102 short-form window occurs before the close of bidding in Auction 101, because entities wishing to participate in either auction would be applicants during overlapping periods of time, the Commission proposes to apply the rule prohibiting joint bidding arrangements to any applicant for Auction 101 or 102. Moreover, an entity wishing to participate in either auction would be required to disclose in its short-form application any bidding arrangements or understandings of any kind relating to the licenses being auctioned in either Auction 101 or 102. That is, under this scenario, for the purpose of implementing its competitive bidding rules in Auctions 101 and 102, the Commission proposes to apply the prohibition against joint bidding agreements such that the “licenses being auctioned” and “licenses at auction” include all of the licenses being offered in Auctions 101 and 102. The Commission seeks comment on this proposal. If, in the alternative, the Commission were to adopt procedures to schedule the Auction 102 application window to occur after the close of bidding in Auction 101, the Commission proposes that it would apply the prohibition separately to the specific licenses in each auction. The Commission seeks comment on this alternative. Commenters should give specific reasons for preferring one approach or the other and address the potential effects of each approach on applicants as well as the potential effect of each on auction participation and competition.

    E. Bidding Credit Caps

    29. The Commission seeks comment on establishing reasonable caps on the total amount of bidding credits that an eligible small business or rural service provider may be awarded for either Auction 101 or 102.

    30. In the 2016 Spectrum Frontiers Order, the Commission determined that an entity with average annual gross revenues for the preceding three years not exceeding $55 million would be designated as a “small business” eligible for a 15 percent bidding credit, and that an entity with average annual gross revenues for the preceding three years not exceeding $20 million would be designated as a “very small business” eligible for a 25 percent bidding credit. The Commission further determined that entities providing commercial communication services to a customer base of fewer than 250,000 combined wireless, wireline, broadband, and cable subscribers in primarily rural areas would be eligible for the 15 percent rural service provider bidding credit.

    31. The Commission, in the 2015 Part 1 Report and Order, established a process to implement a reasonable cap on the total amount of bidding credits that an eligible small business or rural service provider may be awarded in any auction, based on an evaluation of the expected capital requirements presented by the particular service and inventory of licenses being auctioned. Specifically, the Commission determined that bidding credit caps would be implemented on an auction-by-auction basis, but resolved that, for any particular auction, the total amount of the bidding credit cap for small businesses would not be less than $25 million, and the bidding credit cap for rural service providers would not be less than $10 million. For the Broadcast Incentive Auction, the Commission adopted a $150 million cap on small business bidding credits and a $10 million cap on rural service provider bidding credits.

    32. For Auction 101 and Auction 102, the Commission proposes a $25 million cap on the total amount of bidding credits that may be awarded to an eligible small business in each auction (i.e., $25 million in each auction). As noted in the 2015 Part 1 Report and Order, the Commission set the $150 million cap for the Broadcast Incentive Auction at a higher level than anticipated for future auctions, given the significant advantages of the low-band spectrum licenses in the Incentive Auction and the capital requirements associated with low-band spectrum. By comparison, Auction 101 and Auction 102 will offer licenses in the mmW spectrum, which has less robust propagation characteristics than the 600 MHz spectrum offered in the Incentive Auction. Moreover, the Commission anticipates that the range of potential use cases suitable for the UMFUS bands, including localized fiber replacement and IoT, combined with the small license areas in these bands, may permit deployment of smaller scale networks with lower total costs. Further, based on past auction data, the Commission expects that a $25 million cap on small business bidding credits will allow the substantial majority of small businesses in the auction to take full advantage of the bidding credit program. The Commission therefore believes that its proposed cap will promote the statutory goals of providing meaningful opportunities for bona fide small businesses to compete in auctions and in the provision of spectrum-based services, without compromising its responsibility to prevent unjust enrichment and ensure efficient and intensive use of spectrum.

    33. The Commission proposes to adopt a $10 million cap on the total amount of bidding credits that may be awarded to an eligible rural service provider in Auction 101 and Auction 102 (i.e., $10 million in each auction). An entity is not eligible for a rural service provider bidding credit if it has already claimed a small business bidding credit. Based on its analysis of data from the Broadcast Incentive Auction, in which no rural service provider exceeded the $10 million cap, the Commission anticipates that a $10 million cap on rural service provider bidding credits will not constrain the ability of any rural service provider to participate fully and fairly in Auction 101 or Auction 102. In addition, to create parity in Auctions 101 and 102 among eligible small businesses and rural service providers competing against each other in smaller markets, the Commission proposes a $10 million cap on the overall amount of bidding credits that any winning small business bidder in either auction may apply to winning licenses in markets with a population of 500,000 or less.

    34. The Commission seeks comment on these proposals. Specifically, do the expected capital requirements associated with operating in the UMFUS bands, the potential number and value of UMFUS licenses, past auction data, or any other considerations justify the proposed caps or a higher or lower cap for either type of bidding credit in either auction? Commenters are encouraged to identify circumstances and characteristics of these mmW auctions that should guide the Commission in establishing bidding credit caps, and to provide specific, data-driven arguments in support of their proposals.

    IV. Due Diligence

    35. Each potential bidder is solely responsible for investigating and evaluating all technical and marketplace factors that may have a bearing on the value of the licenses that it is seeking in Auctions 101 and 102. Each bidder is responsible for assuring that, if it wins a license, it will be able to build and operate facilities in accordance with the Commission's rules. The Commission makes no representations or warranties about the use of this spectrum for particular services. Each applicant should be aware that a Commission auction represents an opportunity to become a Commission licensee, subject to certain conditions and regulations. This includes the established authority of the Commission to alter the terms of existing licenses by rulemaking, which is equally applicable to licenses awarded by auction. A Commission auction does not constitute an endorsement by the Commission of any particular service, technology, or product, nor does a Commission license constitute a guarantee of business success.

    36. An applicant should perform its due diligence research and analysis before proceeding, as it would with any new business venture. Each potential bidder should perform technical analyses and/or refresh any previous analyses to assure itself that, should it become a winning bidder for any Auction 101 or Auction 102 license, it will be able to build and operate facilities that will comply fully with all applicable technical and regulatory requirements. The Commission strongly encourages each applicant to inspect any prospective sites for communications facilities located in, or near, the geographic area for which it plans to bid; confirm the availability of such sites; and familiarize itself with the Commission's rules regarding the National Environmental Policy Act.

    37. The Commission strongly encourages each applicant to conduct its own research prior to Auctions 101 and 102, as applicable, in order to determine the existence of pending administrative, rulemaking, or judicial proceedings that might affect its decisions regarding participation in the auction.

    38. The Commission also strongly encourages participants in Auctions 101 and 102 to continue such research throughout the auctions. The due diligence considerations mentioned in the Auctions 101 and 102 Comment Public Notice do not constitute an exhaustive list of steps that should be undertaken prior to participating in these auctions. As always, the burden is on the potential bidder to determine how much research to undertake, depending upon the specific facts and circumstances related to its interests.

    39. In addition to the foregoing due diligence considerations, which the Commission encourages of bidders in all auctions, the Commission calls particular attention in Auctions 101 and 102 to the spectrum-sharing issues described above. Each applicant should follow closely releases from the Commission concerning these issues and to consider carefully the technical and economic implications for commercial use of the UMFUS bands.

    40. The Commission also reminds bidders of the Commission's mobile spectrum holding policies applicable to the mmW bands. Specifically, for purposes of reviewing proposed secondary market transactions, the Commission adopted a threshold of 1850 megahertz of combined mmW spectrum in the 24 GHz, 28 GHz, 37 GHZ, 39 GHz, and 47 GHz bands. In addition, the Commission proposed in the 2017 Spectrum Frontiers FNPRM to eliminate the pre-auction limit of 1250 megahertz that had been adopted for the 28 GHz, 37 GHz, and 39 GHz bands, consistent with the Commission's conclusion not to adopt a pre-auction limit for the 24 GHz and 47 GHz bands. Further, the Commission sought comment on whether, in the absence of pre-auction limits for mmW spectrum, it should adopt a post-auction, case-by-case review of mmW spectrum holdings for long-form applications for initial mmW licenses.

    V. Proposed Bidding Procedures A. Auction 101—28 GHz 1. Simultaneous Multiple-Round Auction Design

    41. The Commission proposes to use its standard SMR auction format for Auction 101, which offers license-by-license bidding. As described further below, this type of auction offers every license for bid at the same time and consists of successive bidding rounds in which bidders may place bids on individual licenses. Typically, bidding remains open on all licenses until bidding stops on every license. The Commission seeks comment on this proposal.

    2. Bidding Rounds

    42. Under this proposal, Auction 101 will consist of sequential bidding rounds, each followed by the release of round results. The initial bidding schedule will be announced in a public notice to be released at least one week before the start of bidding. Details on viewing round results, including the location and format of downloadable round results files will be included in the same public notice.

    43. The Commission will conduct Auction 101 over the internet using the FCC auction bidding system. Bidders will also have the option of placing bids by telephone through a dedicated auction bidder line. The toll-free telephone number for the auction bidder line will be provided to qualified bidders prior to the start of bidding in the auction.

    44. The Commission proposes that the Wireless Telecommunications Bureau (Bureau) would retain the discretion to change the bidding schedule in order to foster an auction pace that reasonably balances speed with the bidders' need to study round results and adjust their bidding strategies. This will allow the Bureau to change the amount of time for bidding rounds, the amount of time between rounds, or the number of rounds per day, depending upon bidding activity and other factors. The Commission seeks comment on this proposal. Commenters on this issue should address the role of the bidding schedule in managing the pace of the auction, specifically discussing the tradeoffs in managing auction pace by bidding schedule changes, by changing the activity requirements or bid amount parameters, or by using other means.

    3. Stopping Rule

    45. The Commission has discretion to establish stopping rules before or during multiple round auctions in order to complete the auction within a reasonable time. For Auction 101, the Commission proposes to employ a simultaneous stopping rule approach, which means all licenses remain available for bidding until bidding stops on every license. Specifically, bidding will close on all licenses after the first round in which no bidder submits any new bids, applies a proactive waiver, or withdraws any provisionally winning bids (if bid withdrawals are permitted in Auction 101). Under the proposed simultaneous stopping rule, bidding would remain open on all licenses until bidding stops on every license. Consequently, under this approach, it is not possible to determine in advance how long the bidding in Auction 101 would last.

    46. Further, the Commission proposes that the Bureau would retain the discretion to exercise any of the following stopping options during Auction 101: (1) The auction would close for all licenses after the first round in which no bidder applies a waiver, no bidder withdraws a provisionally winning bid (if withdrawals are permitted in Auction 101), or no bidder places any new bid on a license for which it is not the provisionally winning bidder. Thus, absent any other bidding activity, a bidder placing a new bid on a license for which it is the provisionally winning bidder would not keep the auction open under this modified stopping rule; (2) The auction would close for all licenses after the first round in which no bidder applies a waiver, no bidder withdraws a provisionally winning bid (if withdrawals are permitted in Auction 101), or no bidder places any new bid on a license that already has a provisionally winning bid. Thus, absent any other bidding activity, a bidder placing a new bid on a FCC-held license (a license that does not have a provisionally winning bid) would not keep the auction open under this modified stopping rule; (3) The auction would close using a modified version of the simultaneous stopping rule that combines options (1) and (2); (4) The auction would close after a specified number of additional rounds (special stopping rule) to be announced by the Bureau. If the Bureau invokes this special stopping rule, it will accept bids in the specified final round(s), after which the auction will close; and (5) The auction would remain open even if no bidder places any new bid, applies a waiver, or withdraws any provisionally winning bids (if withdrawals are permitted in Auction 101). In this event, the effect will be the same as if a bidder had applied a waiver. The activity rule will apply as usual, and a bidder with insufficient activity will lose bidding eligibility or use a waiver.

    47. The Commission proposes that the Bureau would exercise these options only in certain circumstances, for example, where the auction is proceeding unusually slowly or quickly, there is minimal overall bidding activity, or it appears likely that the auction will not close within a reasonable period of time or will close prematurely. Before exercising these options, the Bureau is likely to attempt to change the pace of Auction 101. For example, the Bureau may adjust the pace of bidding by changing the number of bidding rounds per day and/or the minimum acceptable bids. The Commission proposes that the Bureau retain continuing discretion to exercise any of these options with or without prior announcement by the Bureau during the auction. The Commission seeks comment on these proposals.

    4. Information Relating to Auction Delay, Suspension, or Cancellation

    48. For Auction 101, the Commission proposes that at any time before or during the bidding process, the Bureau may delay, suspend, or cancel bidding in the auction in the event of a natural disaster, technical obstacle, network interruption, administrative or weather necessity, evidence of an auction security breach or unlawful bidding activity, or for any other reason that affects the fair and efficient conduct of competitive bidding. The Bureau will notify participants of any such delay, suspension or cancellation by public notice and/or through the FCC auction bidding system's announcement function. If the bidding is delayed or suspended, the Bureau may, in its sole discretion, elect to resume the auction starting from the beginning of the current round or from some previous round, or cancel the auction in its entirety. The Commission emphasizes that the Bureau will exercise this authority solely at its discretion, and not as a substitute for situations in which bidders may wish to apply their activity rule waivers. The Commission seeks comment on this proposal.

    5. Upfront Payments and Bidding Eligibility

    49. In keeping with the Commission's usual practice in spectrum license auctions, the Commission proposes that applicants be required to submit upfront payments as a prerequisite to becoming qualified to bid. As described below, the upfront payment is a refundable deposit made by an applicant to establish its eligibility to bid on licenses. Upfront payments related to the inventory of licenses being auctioned protect against frivolous or insincere bidding and provide the Commission with a source of funds from which to collect payments owed at the close of bidding. With these considerations in mind, the Commission proposes upfront payments based on $0.001 per megahertz of bandwidth per population (per “MHz-pop”). The results of these calculations are subject to a minimum of $100 and will be rounded using the Commission's standard rounding procedures for auctions: Results above $10,000 are rounded to the nearest $1,000; results below $10,000 but above $1,000 are rounded to the nearest $100; and results below $1,000 are rounded to the nearest $10. The proposed upfront payments equal approximately half the proposed minimum opening bids. The Commission seeks comment on these upfront payment amounts, which are specified in the Attachment A files.

    50. The Commission further proposes that the amount of the upfront payment submitted by a bidder will determine its initial bidding eligibility in bidding units, which are a measure of bidder eligibility and bidding activity. The Commission proposes to assign each license a specific number of bidding units, equal to one bidding unit per dollar of the upfront payment. The number of bidding units for a given license is fixed and does not change during the auction as prices change. If an applicant is found to be qualified to bid on more than one license being offered in Auction 101, such bidder may place bids on multiple licenses, provided that the total number of bidding units associated with those licenses does not exceed its current eligibility. A bidder cannot increase its eligibility during the auction; it can only maintain its eligibility or decrease its eligibility. Thus, in calculating its upfront payment amount and hence its initial bidding eligibility, an applicant must determine the maximum number of bidding units on which it may wish to bid (or hold provisionally winning bids) in any single round, and submit an upfront payment amount covering that total number of bidding units. The Commission seeks comment on these proposals.

    51. Congress recently passed legislation amending the Communications Act to provide that upfront auction payments for future auctions are to be deposited in the U.S. Treasury. Accordingly, upfront payments for Auctions 101 and 102 will be deposited in the U.S. Treasury.

    6. Activity Rule

    52. In order to ensure that the auction closes within a reasonable period of time, an activity rule requires bidders to bid actively throughout the auction, rather than wait until late in the auction before participating. The bidding system calculates a bidder's activity in a round as the sum of the bidding units associated with any licenses upon which it places bids during the current round and the bidding units associated with any licenses for which it holds provisionally winning bids. Bidders are required to be active on a specific percentage of their current bidding eligibility during each round of the auction. Failure to maintain the requisite activity level will result in the use of an activity rule waiver, if any remain, or a reduction in the bidder's eligibility, possibly curtailing or eliminating the bidder's ability to place additional bids in the auction.

    53. The Commission proposes to divide the auction into at least two stages, each characterized by a different activity requirement. The auction will start in Stage One. The Commission proposes that the Bureau will have the discretion to advance the auction to the next stage by announcement during the auction. In exercising this discretion, the Commission anticipates that the Bureau will consider a variety of measures of auction activity, including but not limited to, the percentage of bidding units associated with licenses on which there are new bids, the number of new bids, and the increase in revenue. The Commission seeks comment on these proposals.

    54. The Commission proposes the following stages and corresponding activity requirements:

    Stage One: In each round of the first stage of the auction, a bidder desiring to maintain its current bidding eligibility is required to be active on bidding units associated with licenses representing at least 80 percent of its current bidding eligibility. Failure to maintain the required activity level will result in the use of an activity rule waiver or a reduction in the bidder's bidding eligibility for the next round of bidding. During Stage One, a bidder's reduced eligibility for the next round will be calculated by multiplying the bidder's current round activity by five-fourths (5/4).

    Stage Two: In each round of the second stage, a bidder desiring to maintain its current bidding eligibility is required to be active on 95 percent of its current bidding eligibility. Failure to maintain the required activity level will result in the use of an activity rule waiver or a reduction in the bidder's bidding eligibility for the next round of bidding. During Stage Two, a bidder's reduced eligibility for the next round will be calculated by multiplying the bidder's current round activity by twenty-nineteenths (20/19).

    55. The Commission seeks comment on these activity requirements. Under this proposal, the Bureau will also retain the discretion to change the activity requirements during the auction. For example, the Bureau could decide to add an additional stage with a higher activity requirement, not to transition to Stage Two if it believes the auction is progressing satisfactorily under the Stage One activity requirement, or to transition to Stage Two with an activity requirement that is higher or lower than the 95 percent proposed herein. If the Bureau implements stages with activity requirements other than the ones listed above, a bidder's reduced eligibility for the next round will be calculated by multiplying the bidder's current round activity by the reciprocal of the activity requirement. For example, with a 98 percent activity requirement, the bidder's current round activity would be multiplied by 50/49; with a 100 percent activity requirement, the bidder's current round activity would become its bidding eligibility (current round activity would be multiplied by 1/1). If the Bureau exercises this discretion, it will alert bidders by announcement in the FCC auction bidding system.

    7. Activity Rule Waivers and Reducing Eligibility

    56. For its proposed SMR auction format, the Commission proposes that when a bidder's activity in the current round is below the required minimum level, it may preserve its current level of eligibility through an activity rule waiver, if available. An activity rule waiver applies to an entire round of bidding, not to a particular license. Activity rule waivers can be either proactive or automatic. Activity rule waivers are principally a mechanism for a bidder to avoid the loss of bidding eligibility in the event that exigent circumstances prevent it from bidding in a particular round.

    57. Consistent with recent FCC spectrum auctions, the Commission proposes that each bidder in Auction 101 be provided with three activity rule waivers that may be used as set forth at the bidder's discretion during the course of the auction. The FCC auction bidding system will assume that a bidder that does not meet the activity requirement would prefer to use an activity rule waiver (if available) rather than lose bidding eligibility. Therefore, the system will automatically apply a waiver at the end of any bidding round in which a bidder's activity level is below the minimum required unless (1) the bidder has no activity rule waivers remaining; or (2) the bidder overrides the automatic application of a waiver by reducing eligibility, thereby meeting the activity requirement. If a bidder has no waivers remaining and does not satisfy the required activity level, the bidder's current eligibility will be permanently reduced, possibly curtailing or eliminating the ability to place additional bids in the auction.

    58. A bidder with insufficient activity may wish to reduce its bidding eligibility rather than use an activity rule waiver. If so, the bidder must affirmatively override the automatic waiver mechanism during the bidding round by using the reduce eligibility function in the FCC auction bidding system. In this case, the bidder's eligibility would be permanently reduced to bring it into compliance with the activity rule described above. Reducing eligibility is an irreversible action; once eligibility has been reduced, a bidder cannot regain its lost bidding eligibility.

    59. Under the proposed simultaneous stopping rule, a bidder would be permitted to apply an activity rule waiver proactively as a means to keep the auction open without placing a bid. If a bidder proactively were to apply an activity rule waiver (using the proactive waiver function in the FCC auction bidding system) during a bidding round in which no bids are placed or withdrawn (if bid withdrawals are permitted in Auction 101), the auction will remain open and the bidder's eligibility will be preserved. An automatic waiver applied by the FCC auction bidding system in a round in which there is no new bid, no bid withdrawal (if bid withdrawals are permitted in Auction 101), or no proactive waiver will not keep the auction open. The Commission seeks comment on this proposal.

    8. Reserve Price or Minimum Opening Bids

    60. The Commission seeks comment on the use of a minimum opening bid amount and/or reserve price prior to the start of each auction. A reserve price is an amount below which an item, or group of items, may not be won. A reserve price may be higher than the minimum opening bid, or for a group of items, the sum of minimum opening bids.

    61. The Commission proposes to establish minimum opening bid amounts for Auction 101. The bidding system will not accept bids lower than these amounts. Based on the Commission's experience in past auctions, setting minimum opening bid amounts judiciously is an effective tool for accelerating the competitive bidding process. The Commission does not propose to establish an aggregate reserve price or license reserve prices different from minimum opening bid amounts for the licenses to be offered in Auction 101.

    62. For Auction 101, the Commission proposes to calculate minimum opening bid amounts on a license-by-license basis using a formula based on bandwidth and license area population, similar to its approach in many previous spectrum auctions. The Commission proposes to use a calculation based on $0.002 per MHz-pop. The results of these calculations are subject to a minimum of $200 and will be rounded. The Commission seeks comment on these minimum opening bid amounts, which are specified in the Attachment A files. If commenters believe that these minimum opening bid amounts will result in unsold licenses or are not reasonable amounts, they should explain why this is so and comment on the desirability of an alternative approach. Commenters should support their claims with valuation analyses and suggested amounts or formulas for reserve prices or minimum opening bids.

    63. In establishing minimum opening bid amounts, the Commission particularly seeks comment on factors that could reasonably have an impact on bidders' valuation of the spectrum, including the type of service offered, market size, population covered by the proposed facility, and any other relevant factors.

    64. Commenters may also wish to address the general role of minimum opening bids in managing the pace of the auction. For example, commenters could compare using minimum opening bids—e.g., by setting higher minimum opening bids to reduce the number of rounds it takes licenses to reach their final prices—to other means of controlling auction pace, such as changes to bidding schedules or activity requirements.

    9. Bid Amounts

    65. The Commission proposes that, in each round, an eligible bidder will be able to place a bid on a given license in any of up to nine different amounts. Under this proposal, the FCC auction bidding system interface will list the acceptable bid amounts for each license.

    a. Minimum Acceptable Bid Amounts

    66. The first of the acceptable bid amounts is called the minimum acceptable bid amount. The minimum acceptable bid amount for a license will be equal to its minimum opening bid amount until there is a provisionally winning bid on the license. After there is a provisionally winning bid for a license, the minimum acceptable bid amount for that license will be equal to the amount of the provisionally winning bid plus a percentage of that bid amount calculated using the activity-based formula described below. In general, the percentage will be higher for a license receiving many bids than for a license receiving few bids. In the case of a license for which the provisionally winning bid has been withdrawn (if withdrawals are allowed in Auction 101), the minimum acceptable bid amount will equal the second highest bid received for the license.

    67. The percentage of the provisionally winning bid used to establish the minimum acceptable bid amount (the additional percentage) is calculated based on an activity index at the end of each round. The activity index is a weighted average of (a) the number of distinct bidders placing a bid on the license in that round, and (b) the activity index from the prior round. Specifically, the activity index is equal to a weighting factor times the number of bidders placing a bid covering the license in the most recent bidding round plus one minus the weighting factor times the activity index from the prior round. For Round 1 calculations, because there is no prior round (i.e., no round 0), the activity index from the prior round is set at 0. The additional percentage is determined as one plus the activity index times a minimum percentage amount, with the result not to exceed a given maximum. The additional percentage is then multiplied by the provisionally winning bid amount to obtain the minimum acceptable bid for the next round. The result will be rounded using the Commission's standard rounding procedures for auctions. The Commission proposes to set the weighting factor initially at 0.5, the minimum percentage at 0.1 (10 percent), and the maximum percentage at 0.2 (20 percent). Hence, at these initial settings, the minimum acceptable bid for a license would be between 10 percent and 20 percent higher than the provisionally winning bid, depending upon the bidding activity for the license. Equations and examples are shown in Attachment B to the Auctions 101 and 102 Comment Public Notice. The Commission seeks comment on whether to use this activity-based formula or a different approach.

    b. Additional Bid Amounts

    68. The FCC auction bidding system calculates any additional bid amounts using the minimum acceptable bid amount and an additional bid increment percentage. The minimum acceptable bid amount is multiplied by the additional bid increment percentage, and that result (rounded) is the additional increment amount. The first additional acceptable bid amount equals the minimum acceptable bid amount plus the additional increment amount. The second additional acceptable bid amount equals the minimum acceptable bid amount plus two times the additional increment amount; the third additional acceptable bid amount is the minimum acceptable bid amount plus three times the additional increment amount; etc. The Commission proposes to set the additional bid increment percentage at five percent initially. Hence, the calculation of the additional increment amount would be (minimum acceptable bid amount) * (0.05), rounded. The Commission seeks comment on this proposal.

    c. Bid Amount Changes

    69. The Commission proposes that the Bureau would retain the discretion to change the minimum acceptable bid amounts, the additional bid amounts, the number of acceptable bid amounts, and the parameters of the formulas used to calculate minimum acceptable bid amounts and additional bid amounts if the Bureau determines that circumstances so dictate. Further, the Commission proposes that the Bureau retain the discretion to do so on a license-by-license basis. The Commission also proposes for the Bureau to retain the discretion to limit (a) the amount by which a minimum acceptable bid for a license may increase compared with the corresponding provisionally winning bid, and (b) the amount by which an additional bid amount may increase compared with the immediately preceding acceptable bid amount. For example, the Bureau could set a $100,000 limit on increases in minimum acceptable bid amounts over provisionally winning bids. Thus, if calculating a minimum acceptable bid using the activity-based formula results in a minimum acceptable bid amount that is $200,000 higher than the provisionally winning bid on a license, the minimum acceptable bid amount would instead be capped at $100,000 above the provisionally winning bid. The Commission seeks comment on the circumstances under which the Bureau should employ such a limit, factors the Bureau should consider when determining the dollar amount of the limit, and the tradeoffs in setting such a limit or changing other parameters—such as the minimum and maximum percentages of the activity-based formula. If the Bureau exercises this discretion, it will alert bidders by announcement in the FCC auction bidding system. The Commission seeks comment on these proposals.

    70. The Commission seeks comment on the above proposals, including whether to use the activity-based formula to establish the additional percentage or a different approach. If commenters disagree with the proposal to begin the auction with nine acceptable bid amounts per license, they should suggest an alternative number of acceptable bid amounts to use at the beginning of the auction and an alternative number to use later in the auction. Commenters may wish to address the role of the minimum acceptable bids and the number of acceptable bid amounts in managing the pace of the auction and the tradeoffs in managing auction pace by changing the bidding schedule, activity requirements, or bid amounts, or by using other means.

    10. Provisionally Winning Bids

    71. The FCC auction bidding system will determine provisionally winning bids consistent with practices in past auctions. At the end of each bidding round, the bidding system will determine a provisionally winning bid for each license based on the highest bid amount received for the license. A provisionally winning bid will remain the provisionally winning bid until there is a higher bid on the same license at the close of a subsequent round. Provisionally winning bids at the end of Auction 101 become the winning bids.

    72. If identical high bid amounts are submitted on a license in any given round (i.e., tied bids), the FCC auction bidding system will use a pseudo-random number generator to select a single provisionally winning bid from among the tied bids. The auction bidding system assigns a pseudo-random number to each bid when the bid is entered. The tied bid with the highest pseudo-random number will become the provisionally winning bid. The remaining bidders, as well as the provisionally winning bidder, can submit higher bids in subsequent rounds. However, if the auction were to end with no other bids being placed, the winning bidder would be the one that placed the provisionally winning bid. If the license receives any bids in a subsequent round, the provisionally winning bid again will be determined by the highest bid amount received for the license.

    73. A provisionally winning bid will be retained until there is a higher bid on the license at the close of a subsequent round, unless the provisionally winning bid is withdrawn (if bid withdrawals are permitted in Auction 101). As a reminder, for Auction 101, provisionally winning bids count toward activity for purposes of the activity rule.

    11. Bid Removal and Bid Withdrawal

    74. The FCC auction bidding system allows each bidder to remove any of the bids it placed in a round before the close of that round. By removing a bid placed within a round, a bidder effectively “unsubmits” the bid. In contrast to the bid withdrawal provisions described below, a bidder removing a bid placed in the same round is not subject to a withdrawal payment. Once a round closes, a bidder may no longer remove a bid.

    75. The Commission seeks comment on whether bid withdrawals should be permitted in Auction 101. When permitted in an auction, bid withdrawals provide a bidder with the option of withdrawing bids placed in prior rounds that have become provisionally winning bids. A bidder would be able to withdraw its provisionally winning bids using the withdraw function in the FCC auction bidding system. A bidder that withdraws its provisionally winning bid(s), if permitted, is subject to the bid withdrawal payment provisions of the Commission's rules.

    76. The Commission has recognized that bid withdrawals may be a helpful tool for bidders seeking to efficiently aggregate licenses or implement backup strategies in certain auctions. The Commission has also acknowledged that allowing bid withdrawals may encourage insincere bidding or increase opportunities for undesirable strategic bidding in certain circumstances.

    77. Applying this reasoning to Auction 101, the Commission proposes to allow each bidder to withdraw provisionally winning bids in no more than two rounds during the course of the auction. To permit a bidder to withdraw bids in more than two rounds may encourage insincere bidding or the use of withdrawals for undesirable strategic bidding purposes. The two rounds in which a bidder may withdraw provisionally winning bids will be at the bidder's discretion, and there is no limit on the number of provisionally winning bids that a bidder may withdraw in either of the rounds in which it withdraws bids. Withdrawals must be in accordance with the Commission's rules, including the bid withdrawal payment provisions specified in Section 1.2104(g).

    78. The Commission seeks comment on this proposal. If commenters disagree with this proposal, the Commission asks them to support their arguments by taking into account the licenses available, the impact on auction dynamics and the pricing mechanism, and the effects on the bidding strategies of other bidders.

    B. Auction 102—24 GHz 1. Clock Auction Design

    79. The Commission proposes to conduct Auction 102 using an ascending clock auction design. Under this proposal, the first phase of the auction will consist of successive clock bidding rounds in which bidders indicate their demands for categories of generic license blocks in specific geographic areas, followed by a second phase with bidding for frequency-specific license assignments.The Commission also directs the Bureau to prepare and release, concurrent with the Auctions 101 and 102 Comment Public Notice, technical guides that provide the mathematical details of the proposed auction design and algorithms for the clock and assignment phases of Auction 102. Pursuant to the Commission's direction, the Bureau released the Technical Guides on Proposed Bidding Procedures for Auction 102 (24 GHz) Public Notice, DA 18-386, on April 17, 2018, announcing the availability of the Clock Phase Technical Guide and Assignment Phase Technical Guide on the Commission's website at www.fcc.gov/auction/101-102/. The Clock Phase Technical Guide details proposals for the clock phase of Auction 102. The Assignment Phase Technical Guide details proposals for the assignment phase. The information in the technical guides supplements the proposals in the Auctions 101 and 102 Comment Public Notice. For bidding in the clock phase, the Commission proposes to establish two categories of generic blocks in most PEAs; the first will consist of the two blocks between 24.25-24.45 GHz and the second category will consist of the five blocks between 24.75-25.25 GHz. In a limited number of PEAs, the Commission proposes to include one or more additional bidding categories to include any blocks with less than the full 100 megahertz of spectrum due to relocation of the incumbent licensees.

    80. Consistent with the clock auction design used in the forward auction portion of the Broadcast Incentive Auction, Auction 1002, the Commission's proposed clock auction format would proceed in a series of rounds, with bidding being conducted simultaneously for all spectrum blocks available in the auction. During the clock phase, the Bureau would announce prices for blocks in each category in each geographic area, and qualified bidders would submit quantity bids for the number of blocks they seek. Bidding rounds would be open for predetermined periods of time, during which bidders would indicate their demands for blocks at the clock prices associated with the current round. As in SMR auctions, bidders would be subject to activity and eligibility rules that govern the pace at which they participate in the auction.

    81. Under the Commission's proposal, in each geographic area, the clock price for a license category would increase from round to round if bidders indicate total demand that exceeds the number of blocks available in the category. The clock rounds would continue until, for all categories of blocks in all geographic areas, the number of blocks demanded does not exceed the supply of available blocks. At that point, those bidders indicating demand for a block in a category at the final clock price would be deemed winning bidders.

    82. The Commission expects that using a clock auction format with bidding for generic blocks followed by an assignment phase will considerably speed up Auction 102 relative to a typical FCC SMR auction. The relatively unencumbered nature of the 24 GHz band means that the blocks can be treated as largely interchangeable, or generic, within a bidding category and a PEA. Bidding for generic blocks in the clock phase rather than for multiple frequency-specific licenses greatly reduces auction duration since bidders no longer need to iteratively bid on the least expensive of several specific but substitutable licenses, as in an SMR auction. An assignment phase allows winners of generic blocks the opportunity to bid for specific frequency assignments. Given the number of licenses being offered in Auction 102 and the generic nature of the licenses, the Commission believes that the time savings of a clock auction relative to an SMR auction will offer significant benefits to bidders and the Commission, and enable the 24 GHz band spectrum to be put to effective use more quickly. In particular, speeding up the auction will reduce the cost of bidder participation, which typically involves internal and external staff resources dedicated to auction monitoring and strategy, as well as the opportunity costs of foregoing communications and arrangements that otherwise would be permitted outside of the “quiet period” under the Commission's Part 1 rules.

    83. The Commission seeks comment on this proposal and on alternative approaches to conducting, in a timely manner, an auction of 24 GHz licenses.

    2. Determining Categories of Generic Blocks for Bidding

    84. The 2017 Spectrum Frontiers Order determined that the 24 GHz band would be licensed uniformly in 100 megahertz blocks, with the lower segment (24.25-24.45 GHz) licensed as two 100 megahertz blocks, and the upper segment (24.75-25.25) as five 100 megahertz blocks, in each of 416 PEAs. Given the 300 megahertz separation between the two segments of the band, the Commission proposes to conduct bidding in most PEAs in the clock phase of Auction 102 for generic blocks in two categories. Under this proposal, there will be two generic blocks in the lower 24 GHz segment (Category L) and five generic blocks in the upper 24 GHz segment (Category U). In nine PEAs, an incumbent licensee will be relocated to part of one, and potentially two, 100 megahertz blocks, leaving those blocks with less available bandwidth to be licensed in the auction. Therefore, the Commission proposes to include an additional bidding category, or potentially two additional bidding categories, to accommodate any blocks with reduced bandwidth. The Commission anticipates that a reduced-bandwidth block will be located in the upper block of the lower segment and a possible second reduced block will be in the uppermost block of the upper segment. The bidding categories for these blocks will be referred to as Category LI and Category UI, respectively.

    85. Accordingly, in each round of the clock phase, a bidder will have the opportunity to bid for up to two blocks of spectrum in Category L and for up to five blocks in Category U, in each of 407 PEAs. In nine PEAs, bidders may bid for one fewer block in either Category L or Category U (and possibly in both categories), and for one block in Category LI and/or UI. Bidding in the auction will determine a single price for all of the generic blocks in each category in each PEA. Winners of generic blocks in the clock phase will then have the opportunity to bid for specific frequency license assignments during the assignment phase of the auction.

    86. The Commission seeks comment on its proposal to conduct bidding in two categories of generic blocks, corresponding to the two segments of the band, in the unencumbered PEAs during the clock phase of the auction. The Commission also seeks comment on conducting bidding on an additional category or categories when a block in a PEA has less than 100 megahertz of bandwidth. Is there a minimum number of megahertz below which the Commission should not offer a block? If there is a reduced bandwidth block in the lower segment of the band and another in the upper segment of the band, should the Commission include both blocks in a single category, instead of its proposal to create a separate category for each? Commenters that believe the Commission should instead conduct bidding for a single category of generic blocks in the unencumbered PEAs, or for more than two categories, should explain their reasoning and address issues of auction length and bidder manageability.

    3. Bidding Rounds

    87. Under this proposal, Auction 102 will consist of sequential bidding rounds, each followed by the release of round results. The initial bidding schedule will be announced in a public notice to be released at least one week before the start of bidding.

    88. The Commission will conduct Auction 102 over the internet using the FCC auction bidding system. Bidders will also have the option of placing bids by telephone through a dedicated auction bidder line. The toll-free telephone number for the auction bidder line will be provided to qualified bidders prior to the start of bidding in the auction.

    89. The Commission proposes that the Bureau retain the discretion to change the bidding schedule in order to foster an auction pace that reasonably balances speed with the bidders' need to study round results and adjust their bidding strategies. Under this proposal, the Bureau may change the amount of time for bidding rounds, the amount of time between rounds, or the number of rounds per day, depending upon bidding activity and other factors. The Commission seeks comment on this proposal. Commenters on this issue should address the role of the bidding schedule in managing the pace of the auction, specifically discussing the tradeoffs in managing auction pace by bidding schedule changes, by changing the activity requirements or bid amount parameters, or by using other means.

    4. Stopping Rule

    90. The Commission proposes a simultaneous stopping rule for Auction 102, under which all categories of licenses in all PEAs would remain available for bidding until the bidding stops on every category. Specifically, the Commission proposes that the clock phase of bidding will close for all categories of blocks after the first round in which there is no excess demand in any category in any PEA. Consequently, under this approach, it is not possible to determine in advance how long Auction 102 would last. The Commission seeks comment on its proposed simultaneous stopping rule.

    5. Information Relating to Auction Delay, Suspension, or Cancellation

    91. For Auction 102, the Commission proposes that at any time before or during the bidding process, the Bureau may delay, suspend, or cancel bidding in Auction 102 in the event of a natural disaster, technical obstacle, network interruption, administrative or weather necessity, evidence of an auction security breach or unlawful bidding activity, or for any other reason that affects the fair and efficient conduct of competitive bidding. The Bureau will notify participants of any such delay, suspension, or cancellation by public notice and/or through the FCC auction bidding system's announcement function. If the bidding is delayed or suspended, the Bureau may, in its sole discretion, elect to resume the auction starting from the beginning of the current round or from some previous round, or cancel the auction in its entirety. The Commission emphasizes that the Bureau will exercise this authority solely at its discretion. The Commission seeks comment on this proposal.

    6. Upfront Payments and Bidding Eligibility

    92. In keeping with the Commission's usual practice in spectrum license auctions, the Commission proposes that applicants be required to submit upfront payments as a prerequisite to becoming qualified to bid. The upfront payment is a refundable deposit made by an applicant to establish its eligibility to bid on licenses. Upfront payments that are related to the inventory of licenses being auctioned protect against frivolous or insincere bidding and provide the Commission with a source of funds from which to collect payments owed at the close of bidding. With these considerations in mind, the Commission proposes upfront payments based on $0.001 per MHz-pop. The results of these calculations will be rounded using the Commission's standard rounding procedures for auctions. Additionally, the proposed upfront payment amount for Gulf of Mexico licenses is $1,000. The proposed upfront payments equal approximately half the proposed minimum opening bids. The Commission seeks comment on these upfront payment amounts, which are specified in Attachment A to the Auctions 101 and 102 Comment Public Notice.

    93. The Commission further proposes that the amount of the upfront payment submitted by a bidder will determine its initial bidding eligibility in bidding units, which are a measure of bidder eligibility and bidding activity. The Commission proposes to assign each PEA a specific number of bidding units, equal to one bidding unit per dollar of the upfront payment listed in Attachment A to the Auctions 101 and 102 Comment Public Notice. The number of bidding units for a given PEA is fixed and does not change during the auction as prices change. The bidding unit amount assigned to a specific PEA will pertain to a single generic block for that PEA. To the extent that bidders wish to bid on multiple generic blocks simultaneously, they will need to ensure that their upfront payment provides enough eligibility to cover multiple blocks. Under this proposed approach to calculating bidding units, the generic Category L and Category U blocks in a PEA will be assigned the same number of bidding units, which will facilitate bidding across categories. Any Category LI and Category UI blocks in a PEA will be assigned proportionally fewer bidding units than the 100 megahertz blocks.

    94. Under the Commission's proposed approach, a bidder's upfront payment will not be attributed to blocks in a specific PEA or PEAs. If an applicant is found to be qualified to bid on more than one block being offered in Auction 102, such bidder may place bids on multiple blocks, provided that the total number of bidding units associated with those blocks does not exceed its current eligibility. A bidder cannot increase its eligibility during the auction; it can only maintain its eligibility or decrease its eligibility. Thus, in calculating its upfront payment amount and hence its initial bidding eligibility, an applicant must determine the maximum number of bidding units on which it may wish to bid in any single round, and submit an upfront payment amount covering that total number of bidding units. The Commission seeks comment on these proposals.

    95. For Auction 102, the Commission anticipates setting a deadline for the submission of upfront payments that will occur after bidding in Auction 101 concludes even if the Auction 102 auction application window is scheduled to occur prior to the close of bidding in Auction 101. Under this approach, an Auction 102 applicant that participated in Auction 101 could take into account the licenses it won in Auction 101 when determining the amount of its upfront payment. The Commission seeks comment on the anticipated timing for upfront payments for Auction 102.

    7. Activity Rule, Activity Rule Waivers, and Reducing Eligibility

    96. In order to ensure that the auction closes within a reasonable period of time, an activity rule requires bidders to bid actively throughout the auction, rather than wait until late in the auction before participating. For a clock auction, a bidder's activity in a round for purposes of the activity rule will be the sum of the bidding units associated with the bidder's demands as applied by the auction system during bid processing. Bidders are required to be active on a specific percentage of their current bidding eligibility during each round of the auction. Failure to maintain the requisite activity level will result in a reduction in the bidder's eligibility, possibly curtailing or eliminating the bidder's ability to place additional bids in the auction.

    97. The Commission proposes to require that bidders maintain a fixed, high level of activity in each round of Auction 102 in order to maintain bidding eligibility. Specifically, the Commission proposes to require that bidders be active on between 92 and 97 percent of their bidding eligibility in all regular clock rounds. Thus, the activity rule would be satisfied when a bidder has bidding activity on blocks with bidding units that total 92 to 97 percent of its current eligibility in the round. If the activity rule is met, then the bidder's eligibility does not change in the next round. The Commission proposes to calculate bidding activity based on the bids that are accepted by the FCC auction bidding system. That is, if a bidder requests a reduction in the quantity of blocks it demands in a category, but the FCC auction bidding system does not accept the request because demand for the category would fall below the available supply, the bidder's activity will reflect its unreduced demand. If the activity rule is not met in a round, a bidder's eligibility automatically would be reduced. Under the Commission's proposal, the Bureau will retain the discretion to change the activity requirements during the auction.

    98. The Commission invites comment on this proposal, in particular on where to set the activity requirement between 92 and 97 percent. Commenters may wish to address the relationship between the proposed activity rule and the ability of bidders to switch their demands across PEAs or across categories of blocks within a PEA. The Commission encourages any commenters that oppose an activity rule in this range to explain their reasons with specificity.

    99. The Commission points out that under its proposed clock auction, bidders are required to indicate their demands in every round, even if their demands at the new round's prices are unchanged from the previous round. Missing bids—bids that are not reconfirmed—are treated by the auction bidding system as requests to reduce to a quantity of zero blocks for the category. If these requests are applied, or applied partially, a bidder's bidding activity, and hence its bidding eligibility for the next round, will be reduced.

    100. For Auction 102, the Commission does not propose to provide for activity rule waivers to preserve a bidder's eligibility. This proposal is consistent with the ascending clock auction procedures used in Auction 1002. In previous FCC multiple round auctions, when a bidder's eligibility in the current round was below a required minimum level, the bidder was able to preserve its current level of eligibility with a limited number of activity rule waivers. The clock auction, however, relies on precisely identifying the point at which demand falls to equal supply to determine winning bidders and final prices. Allowing waivers would create uncertainty with respect to the exact level of bidder demand, interfering with the basic clock price-setting and winner determination mechanism. Moreover, uncertainty about the level of demand would affect the way bidders' requests to reduce demand are processed by the FCC auction bidding system, as discussed below. The Commission seeks comment on this proposal.

    8. Acceptable Bids a. Reserve Price or Minimum Opening Bids

    101. The Commission seeks comment on the use of a minimum opening bid amount and/or reserve price prior to the start of each auction.

    102. The Commission proposes to establish minimum opening bid amounts for Auction 102. The bidding system will not accept bids lower than these amounts. At the beginning of the clock phase, a bidder will indicate how many blocks in a generic license category in a PEA it demands at the minimum opening bid price. For Auction 102, the Commission proposes to establish initial clock prices, or minimum opening bids, as set forth in the following paragraph. The Commission does not propose to establish an aggregate reserve price or block reserve prices that are different from minimum opening bid amounts for the licenses to be offered in Auction 102.

    103. For Auction 102, the Commission proposes to calculate minimum opening bid amounts using a formula based on bandwidth and license area population, similar to its approach in many previous spectrum auctions. Accordingly, blocks with less than the full 100 megahertz of bandwidth would have lower minimum opening bid amounts than the other blocks in a PEA. The Commission proposes to use a calculation based on $0.002 per MHz-pop. Additionally, the minimum opening bid amount for Gulf of Mexico licenses is $1,000. The Commission seeks comment on these minimum opening bid amounts, which are specified in Attachment A to the Auctions 101 and 102 Comment PN. If commenters believe that these minimum opening bid amounts will result in unsold licenses, are not reasonable amounts, or should instead operate as reserve prices, they should explain why this is so and comment on the desirability of an alternative approach. Commenters should support their claims with valuation analyses and suggested amounts or formulas for reserve prices or minimum opening bids.

    104. In establishing minimum opening bid amounts, the Commission particularly seeks comment on factors that could reasonably have an impact on bidders' valuation of the spectrum, including the type of service offered, market size, population covered by the proposed facility, and any other relevant factors.

    105. Commenters may also wish to address the general role of minimum opening bids in managing the pace of the auction. For example, commenters could compare using minimum opening bids—e.g., by setting higher minimum opening bids to reduce the number of rounds it takes licenses to reach their final prices—to other means of controlling auction pace, such as changes to bidding schedules or activity requirements.

    b. Clock Price Increments

    106. Under the Commission's proposed clock auction format for Auction 102, after bidding in the first round and before each subsequent round, the FCC auction bidding system will announce a clock price for the next round, which is the highest price to which bidders can respond during the round. The Commission proposes to set the clock price for each category available in each specific PEA for a round by adding a fixed percentage increment to the price for the previous round. As long as total demand for blocks in a category exceeds the supply of blocks, the percentage increment will be added to the clock price from the prior round. If demand equaled supply at an intra-round bid price in a previous round, then the clock price for the next round will be set by adding the percentage increment to the intra-round bid price. Final clock prices, however, will not increase above the price at which there is no excess demand.

    107. The Commission proposes to apply an increment that is between five and fifteen percent and generally to apply the same increment percentage to all categories in all PEAs. The Commission proposes to set the initial increment within this range, and to adjust the increment as rounds continue. The proposed five-to-fifteen percent increment range will allow the FCC to set a percentage that manages the auction pace, taking into account bidders' needs to evaluate their bidding strategies while moving the auction along quickly. The Commission also proposes that increments may be changed during the auction on a PEA-by-PEA or category-by-category basis based on bidding activity to assure that the system can offer appropriate price choices to bidders.

    c. Intra-Round Bids

    108. The Commission proposes to permit a bidder to make intra-round bids by indicating a point between the previous round's price and the new clock price at which its demand for blocks in a category changes. In placing an intra-round bid, a bidder would indicate a specific price and a quantity of blocks it demands if the price for blocks in the category should increase beyond that price.

    109. Intra-round bids would be optional; a bidder may choose to express its demands only at the clock prices. This proposal to permit intra-round bidding would allow the auction system to use relatively large clock increments, thereby speeding the clock phase, without running the risk that a jump in the clock price will overshoot the market clearing price—the point at which demand for blocks equals the available supply.

    9. Reducing Demand, Bid Types, and Bid Processing

    110. Here the Commission proposes specific bidding procedures for the clock phase of Auction 102, and addresses how the FCC auction bidding system will process the proposed types of permitted bids. As an initial matter, the Commission proposes that the FCC auction bidding system not allow a bidder to reduce the quantity of blocks it demands in a category if the reduction will result in aggregate demand falling below the available supply of blocks in the category.

    111. Under the ascending clock format the Commission proposes for Auction 102, a bidder will indicate in each round the quantity of blocks in each category in each PEA that it demands at a given price, indicating that it is willing to pay up to that price for the specified quantity. A bidder can express its demands at the clock price or at an intra-round price, and bid quantities can represent an increase or a decrease over the bidder's previous demands for blocks in a category.

    112. Under the Commission's proposal, if a bidder demands fewer blocks in a category than it did in the previous round, the FCC auction bidding system will treat the bid as a request to reduce demand that will be implemented only if aggregate demand would not fall below the available supply of blocks in the category.

    113. The Commission also proposes to process bids in order of price point after a round ends, where the price point represents the percentage of the bidding interval for the round. For example, if the price for the previous round is $5,000 and the new clock price is $6,000, a price of $5,100 will correspond to the 10 percent price point, since it is 10 percent of the bidding interval between $5,000 and $6,000. Under this proposal, once a round ends, the FCC auction bidding system will process bids in ascending order of price point, first considering intra-round bids in order of price point and then bids at the clock price. The system will consider bids at the lowest price point for all categories in all PEAs, then look at bids at the next price point in all areas, and so on. In processing the bids submitted in the round, the FCC auction bidding system will determine the extent to which there is excess demand for each category in each PEA in order to determine whether a bidder's requested change(s) in demand can be implemented.

    114. For a given category in a given PEA, the uniform price for all of the blocks in the category will stop increasing when aggregate demand no longer exceeds the available supply of blocks in the category. If no further bids are placed, the final clock phase price for the category will be the stopped price.

    115. In order to facilitate bidding for multiple blocks in a PEA, the Commission proposes that bidders will be permitted to make two types of bids: Simple bids and switch bids.

    116. A “simple” bid indicates a desired quantity of licenses in a category at a price (either the clock price or an intra-round price). Simple bids may be applied partially. A simple bid that involves a reduction from the bidder's previous demands may be implemented partially if aggregate excess demand is insufficient to support the entire reduction. A simple bid to increase a bidder's demands in a category may be applied partially if the total number of bidding units associated with the bidder's demand exceeds the bidder's bidding eligibility for the round.

    117. A “switch” bid allows the bidder to request to move its demand for a quantity of licenses from the L category to the U category, or vice versa, within the same PEA. Switch bids may not include a block in Category LI or UI. A switch bid may be applied partially, but the increase in demand in the “to” category will always match in quantity the reduction in the “from” category.

    118. The proposed bid types will allow bidders to express their demand for blocks in the next clock round without running the risk that they will be forced to purchase more spectrum at a higher price than they wish. When a bid to reduce demand can be applied only partially, the uniform price for the category will stop increasing at that point, since the partial application of the bid results in demand falling to equal supply. Hence, a bidder that makes a simple bid or a switch bid that cannot be fully applied will not face a price for the remaining demand that is higher than its bid price.

    119. Because in any given round some bidders may increase demands for licenses in a category while others may request reductions, the price point at which a bid is considered by the auction bidding system can affect whether it is accepted. In addition to proposing that bids be considered by the system in order of increasing “price point,” the Commission further proposes that bids not accepted because of insufficient aggregate demand or insufficient eligibility be held in a queue and considered, again in order, if there should be excess supply or sufficient eligibility later in the processing after other bids are processed.

    120. More specifically, under the Commission's proposed procedures, once a round closes, the auction system will process the bids by first considering the bid submitted at the lowest price point and determine whether it can be accepted given aggregate demand as determined most recently and given the associated bidder's eligibility. If the bid can be accepted, or partially accepted, the number of licenses the bidder demands will be adjusted, and aggregate demand will be recalculated accordingly. If the bid cannot be accepted in part or in full, the unfulfilled bid, or portion thereof, will be held in a queue to be considered later during bid processing for that round. The FCC auction bidding system will then consider the bid submitted at the next highest price point, accepting it in full, in part, or not at all, given recalculated aggregate demand and given the associated bidder's eligibility. Any unfulfilled requests will again be held in a queue, and aggregate demand will again be recalculated. Every time a bid or part of a bid is accepted and aggregate demand has been recalculated, the unfulfilled bids held in queue will be reconsidered, in the order of their original price points (and by pseudo-random number, in the case of tied price points). The auction bidding system will not carry over unfulfilled bid requests to the next round, however. The bidding system will advise bidders of the status of their bids when round results are released.

    121. After the bids are processed in each round, the FCC auction bidding system will announce new clock prices to indicate a range of acceptable bids for the next round. Each bidder will be informed of the number of blocks in a category on which it holds bids, the extent of excess demand for each category, and, if demand fell to equal supply during the round, the intra-round price point at which that occurred.

    122. No Bidding Aggregation. Because of the additional complexity such procedures would introduce into the auction, the Commission does not propose to incorporate any package bidding procedures into Auction 102. A bidder may bid on multiple blocks in a PEA and in multiple PEAs. As set forth below, the Commission proposes that the assignment phase will assign contiguous blocks to winners of multiple blocks in a category in a PEA, and give bidders an opportunity to express their preferences for specific frequency blocks, thereby facilitating aggregations of licenses.

    123. The Commission seeks comment on its proposals regarding reducing demand, bid types, and bid processing for Auction 102.

    10. Winning Bids in the Clock Phase

    124. Under the Commission's proposed clock auction format for Auction 102, bidders that are still expressing demand for a quantity of blocks in a category in a PEA at the time the stopping rule is met will become the winning bidders, and will be assigned specific frequencies in the assignment phase.

    11. Bid Removal and Bid Withdrawal

    125. The FCC auction bidding system allows each bidder to remove any of the bids it placed in a round before the close of that round. By removing a bid placed within a round, a bidder effectively “unsubmits” the bid. Once a round closes, a bidder may no longer remove a bid.

    126. Unlike an SMR auction, there are no provisionally winning bids in a clock auction. As a result, the concept of bid withdrawals is inapplicable to a clock auction. As proposed above, however, bidders in Auction 102 may request to reduce demand for generic blocks.

    12. Assignment Phase

    127. The Commission proposes procedures to implement the assignment phase, for which the Assignment Phase Technical Guide provides the mathematical details. Under the Commission's proposal, winning bidders from the clock phase that have a preference for specific frequencies will have an opportunity to submit sealed bids for particular frequency blocks in a separate single assignment round for each particular PEA or group of PEAs. The Commission proposes that this assignment phase be voluntary: Winning bidders in the clock phase of Auction 102 need not participate in order to be assigned a number of licenses corresponding to the outcome of the clock phase. Moreover, a bidder that wins multiple blocks in a category in a PEA will be assigned contiguous blocks of licenses, even without participating in the assignment phase. A winner of a block in a category that includes only a single block will not need to bid for an assignment in the assignment phase. The Commission proposes to group bidding for multiple PEAs in some circumstances, so as to reduce the number of separate assignment rounds required, and to sequence the bidding for the various PEAs.

    128. The Commission seeks comment below on this proposed approach to structure bidding and bid processing in each assignment round.

    a. Sequencing and Grouping of PEAs

    129. The Commission proposes to sequence assignment rounds so as to make it easier for bidders to incorporate frequency assignments from previously-assigned areas into their bid preferences for other areas, recognizing that bidders winning multiple blocks of licenses generally will prefer contiguous blocks across adjacent PEAs. The Commission proposes to conduct rounds for the largest markets first to enable bidders to establish a “footprint” from which to work.

    130. Specifically, the Commission proposes to conduct a separate assignment round for each of the top 40 PEAs and to conduct these assignment rounds sequentially, beginning with the largest PEAs. Once the top 40 PEAs have been assigned, the Commission proposes to conduct, for each Regional Economic Area Grouping (REAG), a series of assignment rounds for the remaining PEAs within that region. The Commission further proposes, where feasible, to group into a single market for assignment any non-top 40 PEAs within a region in which the supply of blocks is the same in each category, the same bidders won the same number of blocks in each category, and all are subject to the small markets bidding cap or all not subject to the cap, which will also help maximize contiguity across PEAs. The Commission proposes to sequence the assignment rounds within a REAG in descending order of population for a PEA group or individual PEA. The Commission further proposes, to the extent practical, to conduct the bidding for the different REAGs in parallel, to reduce the total amount of time required to complete the assignment phase.

    131. The Commission seeks comment on these proposals for sequencing assignment rounds, and on its proposal to group PEAs for bidding under some circumstances within REAGs.

    b. Acceptable Bids and Bid Processing

    132. Under the Commission's proposal, in each assignment round, a bidder will be asked to assign a price to one or more possible frequency assignments for which it wishes to express a preference, consistent with its winning bid(s) for generic blocks in the clock phase. The price will represent a maximum payment that the bidder is willing to pay, in addition to the base price established in the clock phase for the generic blocks, for the frequency-specific license or licenses in its bid. The Commission proposes that a bidder will submit its preferences for blocks it won in the upper and lower segments separately, rather than submitting bids for preferences that include blocks in both segments. That is, if a bidder won one block in the lower segment and two blocks in the upper segment, it would not be able to submit a single bid amount for an assignment that included all three blocks. Instead, it would submit its bid for an assignment in the lower segment separately from its bid or bids for assignments in the upper segment.

    133. The Commission proposes to use an optimization approach to determine the winning frequency assignment for each category in each assignment round. The Commission proposes that the auction system will select the assignment that maximizes the sum of bid amounts among all assignments that satisfy the contiguity requirements. Furthermore, if multiple blocks in Category U in a PEA remain unsold, the unsold licenses will be contiguous. The Commission proposes that the additional price a bidder will pay for a specific frequency assignment (above the base price) will be calculated consistent with a generalized “second price” approach—that is, the winner will pay a price that would be just sufficient to result in the bidder receiving that same winning frequency assignment while ensuring that no group of bidders is willing to pay more for an alternative assignment that satisfies the contiguity restrictions. This price will be less than or equal to the price the bidder indicated it was willing to pay for the assignment. The Commission proposes to determine prices in this way because it facilitates bidding strategy for the bidders, encouraging them to bid their full value for the assignment, knowing that if the assignment is selected, they will pay no more than would be necessary to ensure that the outcome is competitive.

    134. The Commission seeks comment on these proposed procedures. In particular, the Commission asks whether bidders would find it useful to be able to submit a single bid for assignments that include frequencies in the lower segment and frequencies in the upper segment, in cases where the bidder won blocks in both segments.

    VI. Post-Auction Payments A. Interim Withdrawal Payment Percentage

    135. In the event the Commission allows bid withdrawals in Auction 101, the Commission proposes the interim bid withdrawal payment be 15 percent of the withdrawn bid. A bidder that withdraws a bid during an auction is subject to a withdrawal payment equal to the difference between the amount of the withdrawn bid and the amount of the winning bid in the same or a subsequent auction. The withdrawal payment amount is deducted from any upfront payments or down payments that the withdrawing bidder has deposited with the Commission. No withdrawal payment is assessed for a withdrawn bid if either the subsequent winning bid or any of the intervening subsequent withdrawn bids equals or exceeds that withdrawn bid. However, if a license for which a bid had been withdrawn does not receive a subsequent higher bid or winning bid in the same auction, the FCC cannot calculate the final withdrawal payment until that license receives a higher bid or winning bid in a subsequent auction. In such cases, when that final withdrawal payment cannot yet be calculated, the FCC imposes on the bidder responsible for the withdrawn bid an interim bid withdrawal payment, which will be applied toward any final bid withdrawal payment that is ultimately assessed.

    136. The amount of the interim bid withdrawal payment is established in advance of bidding in each auction and may range from three percent to twenty percent of the withdrawn bid amount. The Commission has determined that the level of the interim withdrawal payment in a particular auction will be based on the nature of the service and the inventory of the licenses being offered. The Commission noted specifically that a higher interim withdrawal payment percentage is warranted to deter the anti-competitive use of withdrawals when, for example, bidders will not need to aggregate the licenses being offered in the auction or when there are few synergies to be captured by combining licenses. With respect to the flexible-use UMFUS licenses being offered in Auction 101, the service rules permit a variety of advanced spectrum-based services, some of which may best be offered by combining licenses on adjacent frequencies or in adjacent areas. Balancing the potential need for bidders to use withdrawals to avoid winning incomplete combinations of licenses with the Commission's interest in deterring undesirable strategic use of withdrawals, the Commission proposes to establish an interim bid withdrawal payment of 15 percent of the withdrawn bid for Auction 101. The Commission seeks comment on this proposal.

    B. Additional Default Payment Percentage

    137. Any winning bidder that defaults or is disqualified after the close of an auction (i.e., fails to remit the required down payment by the specified deadline, fails to submit a timely long-form application, fails to make full and timely final payment, or is otherwise disqualified) is liable for a default payment under Section 1.2104(g)(2) of the rules. This payment consists of a deficiency payment, equal to the difference between the amount of the bidder's winning bid and the amount of the winning bid the next time a license covering the same spectrum is won in an auction, plus an additional payment equal to a percentage of the defaulter's bid or of the subsequent winning bid, whichever is less.

    138. The Commission's rules provide that, in advance of each auction, it will establish a percentage between three and twenty percent of the applicable winning bid to be assessed as an additional default payment. As the Commission has indicated, the level of this additional payment in each auction will be based on the nature of the service and the licenses being offered.

    139. For Auctions 101 and 102, the Commission proposes to establish an additional default payment of 15 percent. As noted in the CSEA/Part 1 Report and Order, 71 FR 6214, February 7, 2006, defaults weaken the integrity of the auction process and may impede the deployment of service to the public, and an additional default payment of up to 20 percent will be more effective in deterring defaults than the 3 percent used in some earlier auctions. At the same time, the Commission does not believe the detrimental effects of any defaults in Auctions 101 and 102 are likely to be unusually great. In light of these considerations, the Commission proposes for Auctions 101 and 102 an additional default payment of 15 percent of the relevant bid. The Commission seeks comment on this proposal.

    140. In case they are needed for post-auction administrative purposes, the bidding system will calculate individual per-license prices that are separate from final auction payments, which are calculated on an aggregate basis. The bidding system will apportion to individual licenses any assignment phase payments and any capped bidding credit discounts, since in both cases, a single amount may apply to multiple licenses.

    VII. Tutorial and Additional Information for Applicants

    141. The Commission intends to provide additional information on the bidding system and to offer demonstrations and other educational opportunities for applicants in Auctions 101 and 102 to familiarize themselves with the FCC auction application system and the auction bidding system. For example, the Commission intends to release an online tutorial for each auction that will help applicants understand the procedures to be followed in the filing of their auction short-form applications (FCC Form 175) for Auctions 101 and 102, respectively.

    VIII. Procedural Matters A. Supplemental Initial Regulatory Flexibility Analysis

    142. As required by the Regulatory Flexibility Act of 1980, as amended (RFA), the Commission has prepared this Supplemental Initial Regulatory Flexibility Analysis (Supplemental IRFA) of the possible significant economic impact on small entities of the policies and rules addressed in the Auctions 101 and 102 Comment Public Notice to supplement the Commission's Initial and Final Regulatory Flexibility Analyses completed in the Spectrum Frontiers Orders and other Commission orders pursuant to which Auctions 101 and 102 will be conducted. Written public comments are requested on this Supplemental IRFA. Comments must be identified as responses to the Supplemental IRFA and must be filed by the same deadline for comments specified on the first page of the Auctions 101 and 102 Comment Public Notice. The Commission will send a copy of the Auctions 101 and 102 Comment Public Notice, including this Supplemental IRFA, to the Chief Counsel for Advocacy of the Small Business Administration (SBA).

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

    143. The Auctions 101 and 102 Comment Public Notice seeks comment on proposed procedural rules to govern Auctions 101 and 102, two auctions of 5,986 Upper Microwave Flexible Use Service (UMFUS) licenses. This process is intended to provide notice of and adequate time for potential applicants to comment on proposed auction procedures. To promote the efficient and fair administration of the competitive bidding process for all Auction 101 and Auction 102 participants, the Commission seeks comment on the following proposed procedures: (1) Use of separate application and bidding processes for Auctions 101 and 102, including separate application filing windows; (2) application of the current rules prohibiting certain communications among applicants in the same auction (i.e., Auction 101 or Auction 102), and between Auction 101 applicants and Auction 102 applicants; (3) identification of “nationwide providers” for the purpose of implementing the Commission's competitive bidding rules in Auctions 101 and 102; (4) establishment of bidding credit caps for eligible small businesses and rural service providers in Auctions 101 and 102; (5) use of a simultaneous multiple-round auction format for Auction 101, consisting of sequential bidding rounds with a simultaneous stopping rule (with discretion by the Bureau to exercise alternative stopping rules under certain circumstances); (6) use of a clock auction format for Auction 102 under which each qualified bidder will indicate in successive clock bidding rounds its demands for categories of generic blocks in specific geographic areas; (7) a specific minimum opening bid amount for each license available in Auction 101 and for generic blocks in each PEA available in Auction 102; (8) a specific upfront payment amount for each license available in Auction 101 and for generic blocks in each PEA available in Auction 102; (9) establishment of a bidder's initial bidding eligibility in bidding units based on that bidder's upfront payment through assignment of a specific number of bidding units for each license (Auction 101) or generic block (Auction 102); (10) use of an activity rule that would require bidders to bid actively during the auction rather than waiting until late in the auction before participating; (11) for Auction 101, a two-stage auction in which a bidder is required to be active on 80 percent of its bidding eligibility in each round of the first stage, and on 95 percent of its bidding eligibility in each round of the second stage; (12) for Auction 102, a requirement that bidders be active on between 92 and 97 percent of their bidding eligibility in all regular clock rounds; (13) for Auction 101, provision of three activity rule waivers for each bidder to allow it to preserve eligibility during the course of the auction; (14) for Auction 101, use of minimum acceptable bid amounts and additional bid increments, along with a proposed methodology for calculating such amounts, with the Bureau retaining discretion to change its methodology if circumstances dictate; (15) for Auction 102, establishment of acceptable bid amounts, including clock price increments and intra-round bids, along with a proposed methodology for calculating such amounts; (16) for Auction 102, use of two bid types, along with a proposed methodology for processing bids and requests to reduce demand; (17) for Auction 101, a procedure for breaking ties if identical high bid amounts are submitted on a license in a given round; (18) bid removal procedures; (19) whether to permit bid withdrawals; (20) for Auction 102, establishment of an assignment phase that will determine which frequency-specific licenses will be won by the winning bidders of generic blocks during the clock phase; (21) establishment of an interim bid withdrawal percentage of 15 percent of the withdrawn bid in the event the Commission allows bid withdrawals in Auction 101; and (22) establishment of an additional default payment of 15 percent under Section 1.2104(g)(2) of the rules in the event that a winning bidder defaults or is disqualified after either auction.

    2. Legal Basis

    144. The Commission's statutory obligations to small businesses under the Communications Act of 1934, as amended, are found in Sections 309(j)(3)(B) and 309(j)(4)(D). The statutory basis for the Commission's competitive bidding rules is found in various provisions of the Communications Act of 1934, as amended, including 47 U.S.C. 154(i), 301, 302, 303(e), 303(f), 303(r), 304, 307, and 309(j). The Commission has established a framework of competitive bidding rules, updated most recently in 2015, pursuant to which it has conducted auctions since the inception of the auction program in 1994 and would conduct Auctions 101 and 102. In promulgating those rules, the Commission conducted numerous RFA analyses to consider the possible impact of those rules on small businesses that might seek to participate in Commission auctions. In addition, multiple Final Regulatory Flexibility Analyses (FRFAs) were included in the rulemaking orders which adopted or amended rule provisions relevant to the Auctions 101 and 102 Comment Public Notice.

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

    145. 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 and policies, if adopted. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act. A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

    146. As noted above, FRFAs were incorporated into the Spectrum Frontiers Orders. In those analyses, the Commission described in detail the small entities that might be significantly affected. In the Auctions 101 and 102 Comment Public Notice, the Commission incorporates by reference the descriptions and estimates of the number of small entities from the previous FRFAs in the Spectrum Frontiers Orders.

    4. Description of Projected Reporting, Recordkeeping, and Other Compliance Requirements

    147. The Commission designed the auction application process itself to minimize reporting and compliance requirements for applicants, including small business applicants. In the first part of the Commission's two-phased auction application process, parties desiring to participate in an auction file streamlined, short-form applications in which they certify under penalty of perjury as to their qualifications. Eligibility to participate in bidding is based on an applicant's short-form application and certifications, as well as its upfront payment. In the second phase of the process, winning bidders file a more comprehensive long-form application. Thus, an applicant which fails to become a winning bidder does not need to file a long-form application and provide the additional showings and more detailed demonstrations required of a winning bidder.

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

    148. 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.

    149. The Commission has taken steps to minimize any economic impact of its auction procedures on small businesses through among other things, the many resources it provides potential auction participants. Small entities and other auction participants may seek clarification of or guidance on complying with competitive bidding rules and procedures, reporting requirements, and the FCC's auction bidding system. An FCC Auctions Hotline provides access to Commission staff for information about the auction process and procedures. The FCC Auctions Technical Support Hotline is another resource which provides technical assistance to applicants, including small business entities, on issues such as access to or navigation within the electronic FCC Form 175 and use of the FCC's auction bidding system. Small entities may also utilize the web-based, interactive online tutorial produced by Commission staff for each auction to familiarize themselves with auction procedures, filing requirements, bidding procedures, and other matters related to an auction.

    150. The Commission also makes various databases and other sources of information, including the Auctions program websites, and copies of Commission decisions, available to the public without charge, providing a low-cost mechanism for small businesses to conduct research prior to and throughout the auction. Prior to and at the close of Auctions 101 and 102, the Commission will post public notices on the Auctions website, which articulate the procedures and deadlines for the respective auctions. The Commission makes this information easily accessible and without charge to benefit all Auction 101 and Auction 102 applicants, including small businesses, thereby lowering their administrative costs to comply with the Commission's competitive bidding rules.

    151. Prior to the start of bidding in each auction, eligible bidders are given an opportunity to become familiar with auction procedures and the bidding system by participating in a mock auction. Further, the Commission intends to conduct Auctions 101 and 102 electronically over the internet using its web-based auction system that eliminates the need for bidders to be physically present in a specific location. Qualified bidders also have the option to place bids by telephone. These mechanisms are made available to facilitate participation in Auction 101 and Auction 102 by all eligible bidders, and may result in significant cost savings for small business entities who utilize these alternatives. Moreover, the adoption of bidding procedures in advance of the auctions, consistent with statutory directive, is designed to ensure that the auctions will be administered predictably and fairly for all participants, including small businesses.

    152. For Auction 101 and Auction 102, the Commission proposes a $25 million cap on the total amount of bidding credits that may be awarded to an eligible small business and a $10 million cap on the total amount of bidding credits that may be awarded to a rural service provider in each auction. In addition, the Commission proposes a $10 million cap on the overall amount of bidding credits that any winning small business bidder in either auction may apply to winning licenses in markets with a population of 500,000 or less. Based on the technical characteristics of the UMFUS bands and its analysis of past auction data, the Commission anticipates that its proposed caps will allow the majority of small businesses in each auction to take full advantage of the bidding credit program, thereby lowering the relative costs of participation for small businesses.

    153. These proposed procedures for the conduct of Auctions 101 and 102 constitute the more specific implementation of the competitive bidding rules contemplated by Parts 1 and 30 of the Commission's rules and the underlying rulemaking orders, including the Spectrum Frontiers Orders and relevant competitive bidding orders, and are fully consistent therewith.

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

    154. None.

    B. Ex Parte Rules

    155. This proceeding has been designated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules. Persons making oral ex parte presentations must file a copy of any written presentations or memoranda 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 presentations 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 the 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.

    Federal Communications Commission. Marlene Dortch, Secretary.
    [FR Doc. 2018-09415 Filed 5-3-18; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System 48 CFR Part 219 and Appendix I to Chapter 2 [Docket DARS-2018-0019] RIN 0750-AJ25 Defense Federal Acquisition Regulation Supplement: Mentor-Protégé Program Modifications (DFARS Case 2017-D016) AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Proposed rule.

    SUMMARY:

    DoD is proposing to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement sections of the National Defense Authorization Act for Fiscal Year 2017 that provide modifications to the DoD Pilot Mentor-Protégé Program.

    DATES:

    Comments on the proposed rule should be submitted in writing to the address shown below on or before July 3, 2018, to be considered in the formation of a final rule.

    ADDRESSES:

    Submit comments identified by DFARS Case 2017-D016, using any of the following methods:

    Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering “DFARS Case 2017-D016” under the heading “Enter keyword or ID” and selecting “Search.” Select the link “Submit a Comment” that corresponds with “DFARS Case 2017-D016.” Follow the instructions provided at the “Submit a Comment” screen. Please include your name, company name (if any), and “DFARS Case 2017-D016” on your attached document.

    Email: [email protected] Include DFARS Case 2017-D016 in the subject line of the message.

    Fax: 571-372-6094.

    Mail: Defense Acquisition Regulations System, Attn: Ms. Jennifer D. Johnson, OUSD(AT&L)DPAP/DARS, Room 3B941, 3060 Defense Pentagon, Washington, DC 20301-3060.

    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

    FOR FURTHER INFORMATION CONTACT:

    Ms. Jennifer D. Johnson, telephone 571-372-6100.

    SUPPLEMENTARY INFORMATION:

    I. Background

    This rule proposes to revise the DFARS to implement section 1823 and paragraph (b) of section 1813 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L. 114-328). Sections 1823 and 1813 provide modifications to the DoD Pilot Mentor-Protégé Program (“the Program”). Section 1823 revises the definition and requirements associated with affiliation between mentor firms and their protégé firms. Both sections add new types of assistance for mentor firms to provide to their protégé firms.

    II. Discussion and Analysis

    This rule proposes amendments to DFARS subpart 219.71 and Appendix I as summarized in the following paragraphs:

    A. Subpart 219.71, Pilot Mentor-Protégé Program. Section 219.7100, Scope, is amended to reflect the date of the most recent statutory changes to the Program.

    B. Appendix I, Policy and Procedures for the DoD Pilot Mentor-Protégé Program.

    • Section I-101, Definitions, is amended to add the definition of “affiliation” provided in section 1823.

    • Section I-102, Participant eligibility, is amended to add new paragraph (e), which specifies that a mentor firm may not enter into an agreement with a protégé firm if the Small Business Administration (SBA) has made a determination of affiliation. In addition, paragraph (e) addresses the conditions under which DoD will request a determination from SBA regarding affiliation.

    • Section I-106, Development of mentor-protégé agreements, is amended to add women's business centers under 15 U.S.C. 656 as a form of assistance that a mentor firm can obtain for a protégé firm.

    • Section I-107, Elements of a mentor-protégé agreement, is amended to add new paragraph (h), which implements the requirement provided in section 1813 for mentor-protégé agreements to include assistance the mentor firm will provide to the protégé firm in understanding Federal contract regulations, including the FAR and DFARS.

    III. Applicability to Contracts at or Below the Simplified Acquisition Threshold (SAT) and for Commercial Items, Including Commercially Available Off-the-Shelf (COTS) Items

    This rule does not propose to create any new provisions or clauses or impact any existing provisions or clauses.

    IV. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

    V. Executive Order 13771

    This rule is not subject to E.O. 13771, Reducing Regulation and Controlling Regulatory Costs, because this rule is not a significant regulatory action under E.O. 12866.

    VI. Regulatory Flexibility Act

    DoD does not expect this proposed rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because of the relatively small number of small entities who participate in the DoD Pilot Mentor-Protégé Program. However, an initial regulatory flexibility analysis has been performed and is summarized as follows:

    This rule proposes to amend the Defense Federal Acquisition Regulation Supplement (DFARS) to implement section 1823 and paragraph (b) of section 1813 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L. 114-328), which provide modifications to the DoD Pilot Mentor-Protégé Program (“the Program”). Specifically, section 1823 revises the definition and requirements associated with affiliation between mentor firms and their protégé firms. Both sections add new types of assistance for mentors to provide to their protégés.

    The objective of this rule is to implement statutory modifications to the Program. The legal basis for the modifications is sections 1823 and paragraph (b) of section 1813 of the NDAA for FY 2017.

    The rule will apply to small entities that participate in the Program. There are currently 85 small entities participating in the Program.

    The rule does not impose any reporting or recordkeeping requirements on any small entities.

    The rule does not duplicate, overlap, or conflict with any other Federal rules.

    There are no known, significant, alternative approaches to the proposed rule that would meet the requirements of the applicable statute.

    DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

    DoD will also consider comments from small entities concerning the existing regulations in subparts affected by this rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2017-D016), in correspondence.

    VII. Paperwork Reduction Act

    The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

    List of Subjects in 48 CFR Part 219 and Appendix I to Chapter 2

    Government procurement.

    Amy G. Williams, Deputy, Defense Acquisition Regulations System.

    Therefore, 48 CFR part 219 and appendix I to chapter 2 are proposed to be amended as follows:

    1. The authority citation for 48 CFR part 219 and appendix I to chapter 2 continues to read as follows: Authority:

    41 U.S.C. 1303 and 48 CFR chapter 1.

    PART 219—SMALL BUSINESS PROGRAMS
    219.7100 [Amended]
    2. Amend section 219.7100 by removing “November 25, 2015” and adding “December 23, 2016” in its place. 3. Amend appendix I to chapter 2 as follows: a. In section I-101 by— i. Redesignating sections I-101.1 through I-101.6 as sections I-101.2 through I-101.7, respectively; and ii. Adding new section I-101.1. b. In section I-102 by— i. Redesignating paragraphs (e) and (f) as paragraphs (f) and (g), respectively; ii. Adding new paragraph (e); and iii. In newly redesignated paragraph (f), removing “Subpart 9.4” and adding “subpart 9.4” in its place. c. In section I-106 by adding paragraph (d)(6)(v). d. In section I-107 by— i. Redesignating paragraphs (h) through (o) as paragraphs (i) through (p), respectively; and ii. Adding new paragraph (h).

    The additions read as follows:

    Appendix I to Chapter 2—Policy and Procedures for the DoD Pilot Mentor Protégé Program I-101.1 Affiliation.

    With respect to a relationship between a mentor firm and a protégé firm, a relationship described under 13 CFR 121.103.

    I-102 Participant eligibility.

    (e) A mentor firm may not enter into an agreement with a protégé firm if SBA has made a determination of affiliation. If SBA has not made such a determination and if the DoD Office of Small Business Programs (OSBP) has reason to believe, based on SBA's regulations regarding affiliation, that the mentor firm is affiliated with the protégé firm, then DoD OSBP will request a determination regarding affiliation from SBA.

    I-106 Development of mentor-protégé agreements.

    (d) * * *

    (6) * * *

    (v) Women's business centers described in section 29 of the Small Business Act (15 U.S.C. 656).

    I-107 Elements of a mentor-protégé agreement.

    (h) The assistance the mentor will provide to the protégé firm in understanding Federal contract regulations, including the FAR and DFARS, after award of a subcontract under the Program, if applicable;

    [FR Doc. 2018-09487 Filed 5-3-18; 8:45 am] BILLING CODE 5001-06-P
    83 87 Friday, May 4, 2018 Notices DEPARTMENT OF AGRICULTURE Agricultural Research Service Notice of Intent To Renew an Information Collection AGENCY:

    Agricultural Research Service, USDA.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, this notice announces the Agricultural Research Service's (ARS) intention to request an extension of a currently approved information collection, Form AD-761, USDA Patent License Application for Government Invention that expires October 31, 2018.

    DATES:

    Comments must be received on or before July 3, 2018.

    ADDRESSES:

    Comments may be sent to Mojdeh Bahar, USDA, ARS, Office of Technology Transfer, 5601 Sunnyside Avenue, Room 4-1174, Beltsville, Maryland 20705-5131; Telephone Number 301-504-5989.

    FOR FURTHER INFORMATION CONTACT:

    Mojdeh Bahar, USDA, ARS, Office of Technology Transfer, 301-504-5989.

    SUPPLEMENTARY INFORMATION:

    Title: USDA Patent License Application.

    OMB Number: 0518-0003.

    Expiration Date of Approval: October 31, 2018.

    Type of Request: To extend a currently approved information collection.

    Abstract: The USDA patent licensing program grants patent licenses to qualified businesses and individuals who wish to commercialize inventions arising from federally supported research. The objective of the program is to use the patent system to promote the utilization of inventions arising from such research. The licensing of federally owned inventions must be done in accordance with the terms, conditions and procedures prescribed under 37 CFR part 404. Application for a license must be addressed to the Federal agency having custody of the invention. Licenses may be granted only if the license applicant has supplied the Federal agency with a satisfactory plan for the development and marketing of the invention and with information about the applicant's capability to fulfill the plan. 37 CFR 404.8 sets forth the information which must be provided by a license applicant. For the convenience of the applicant, USDA has itemized the information needed on Form AD-761, and instructions for completing the form are provided to the applicant. The information submitted is used to determine whether the applicant has both a complete and sufficient plan for developing and marketing the invention and the necessary manufacturing, marketing, technical and financial resources to carry out the submitted plan.

    Estimate of Burden: Public reporting burden for this collection of information is estimated to average 3 hours per response.

    Description of Respondents: Businesses or other for profit individuals.

    Estimated Number of Respondents: 75.

    Frequency of Responses: One time per invention.

    Estimated Total Annual Burden on Respondents: 225 hours.

    This data will be collected under the authority of 44 U.S.C. #3506(c)(2)(A).

    Copies of this information collection and related instructions can be obtained without charge from Mojdeh Bahar, USDA, ARS, Office of Technology Transfer by calling 301-504-5989.

    Comments are invited on (a) whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (b) the accuracy of the agency's estimate of the burden of the proposed collection of information including the validity of the methodology and assumptions used; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on those who are to respond, such as through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g. permitting electronic submission of responses.

    Comments may be sent to USDA, ARS, Office of Technology Transfer, 5601 Sunnyside Avenue, Room 4-1174, Beltsville, Maryland 20705-5131. All responses to this notice will be summarized and included in the request for OMB approval. All comments will also become a matter of public record.

    Mojdeh Bahar, Assistant Administrator.
    [FR Doc. 2018-09472 Filed 5-3-18; 8:45 am] BILLING CODE 3410-03-P
    DEPARTMENT OF AGRICULTURE Council for Native American Farming and Ranching AGENCY:

    Office of Tribal Relations, USDA.

    ACTION:

    Notice of public meeting.

    SUMMARY:

    This notice announces a forthcoming meeting of The Council for Native American Farming and Ranching (CNAFR), a public advisory committee of the Office of Tribal Relations (OTR). Notice of the meetings are provided in accordance with section 10(a)(2) of the Federal Advisory Committee Act, as amended. This will be the second meeting held during fiscal year 2018 and will consist of, but not be limited to: hearing public comments and subcommittee report outs. This meeting will be open to the public.

    DATES:

    The meeting will be held on June 20, 2018. The meeting will be open to the public with time set aside for public comment on June 20 at approximately 4:00-6:00 p.m. The OTR will make the agenda available to the public via the OTR website (http://www.usda.gov/tribalrelations) no later than 10 business days before the meeting and at the meeting.

    ADDRESSES:

    The meeting will be held at the U.S. Department of Agriculture's Whitten Building located at 1400 Jefferson Dr. SW, Washington, DC 20250—Whitten Building Patio—1st floor.

    Written Comments: Written comments may be submitted to the CNAFR Contact Person: Abby Cruz, Designated Federal Officer and Senior Policy Advisor for the Office of Tribal Relations, 1400 Independence Ave. SW, Whitten Bldg., 501-A, Washington, DC 20250; by Fax: (202) 720-1058; or by email: [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Questions should be directed to the CNAFR Contact Person: Abby Cruz, Designated Federal Officer and Senior Policy Advisor for the Office of Tribal Relations, 1400 Independence Ave. SW, Whitten Bldg., 501-A, Washington, DC 20250; by Fax: (202) 720-1058; or by email: [email protected]

    SUPPLEMENTARY INFORMATION:

    In accordance with the provisions of the Federal Advisory Committee Act (FACA), as amended (5 U.S.C. App. 2), USDA established an advisory council for Native American farmers and ranchers. The CNAFR is a discretionary advisory committee established under the authority of the Secretary of Agriculture, in furtherance of the Keepseagle v. Perdue settlement agreement that was granted final approval by the District Court for the District of Columbia on April 28, 2011.

    The CNAFR will operate under the provisions of the FACA and report to the Secretary of Agriculture. The purpose of the CNAFR is (1) to advise the Secretary of Agriculture on issues related to the participation of Native American farmers and ranchers in USDA programs; (2) to transmit recommendations concerning any changes to USDA regulations or internal guidance or other measures that would eliminate barriers to program participation for Native American farmers and ranchers; (3) to examine methods of maximizing the number of new farming and ranching opportunities created by USDA programs through enhanced extension and financial literacy services; (4) to examine methods of encouraging intergovernmental cooperation to mitigate the effects of land tenure and probate issues on the delivery of USDA programs; (5) to evaluate other methods of creating new farming or ranching opportunities for Native American producers; and (6) to address other related issues as deemed appropriate.

    The Secretary of Agriculture selected a diverse group of members representing a broad spectrum of persons interested in providing solutions to the challenges of the aforementioned purposes. Equal opportunity practices were considered in all appointments to the CNAFR in accordance with USDA policies. The Secretary selected the members in December 2016.

    Interested persons may present views, orally or in writing, on issues relating to agenda topics before the CNAFR. Written submissions may be submitted to the CNAFR Contact Person on or before June 12, 2018. Oral presentations from the public will be heard at approximately 4:00 p.m. to 6:00 p.m. on June 20, 2018. Individuals interested in making formal oral presentations should also notify the CNAFR Contact Person and submit a brief statement of the general nature of the issue they wish to present and the names, tribal affiliations, and addresses of proposed participants by June 12, 2018. All oral presentations will be given three (3) to five (5) minutes depending on the number of participants.

    The OTR will also make the agenda available to the public via the OTR website (http://www.usda.gov/tribalrelations) no later than 10 business days before the meeting and at the meeting. The minutes from the meeting will be posted on the OTR website. OTR welcomes the attendance of the public at the CNAFR meetings and will make every effort to accommodate persons with physical disabilities or special needs. If you require special accommodations due to a disability, please contact Abby Cruz at least 10 business days in advance of the meeting.

    Dated: April 23, 2018. Linda Cronin, Acting Director, Office of Tribal Relations.
    [FR Doc. 2018-09505 Filed 5-3-18; 8:45 am] BILLING CODE 3420-AG-P
    DEPARTMENT OF AGRICULTURE Forest Service Information Collection: Post-Hurricane Research and Assessment of Agriculture, Forestry, and Rural Communities in the U.S. Caribbean AGENCY:

    Forest Service, USDA.

    ACTION:

    Emergency Clearance Notice and request for comments.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, the Forest Service is submitting a request to the Office of Management and Budget (OMB) for review and approval under the emergency processing procedures for a new information collection request, Post-Hurricane Research and Assessment of Agriculture, Forestry, and Rural Communities in the U.S. Caribbean, and is seeking comments from all interested individuals and organizations.

    DATES:

    Comments on this proposal for emergency review must be received in writing on or before June 4, 2018 to be assured of consideration. Comments received after that date will be considered to the extent practicable. The USDA Forest Service is requesting OMB to take action by May 9, 2018.

    ADDRESSES:

    Comments concerning this information collection should be addressed to the Office of Management and Budget, Office of Information and Regulatory Affairs, Attn: Desk Officer for the USDA Forest Service, 725 17th Street NW, Washington, DC 20503, or sent via electronic mail to: [email protected] or via facsimile to 202-395-5806.

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information should be made to Kathleen McGinley, Social Scientist, USDA Forest Service, by electronic mail to [email protected], via facsimile 919-513-2978, or phone 919-513-3331. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339 twenty-four hours a day, every day of the year, including holidays.

    SUPPLEMENTARY INFORMATION:

    Title: Post-Hurricane Research and Assessment of Agriculture, Forestry, and Rural Communities in the U.S. Caribbean.

    OMB Number: 0596-NEW.

    Expiration Date of Approval: New.

    Type of Request: New request for emergency review and clearance.

    Abstract: In September 2017, two major hurricanes passed through the Caribbean, causing catastrophic damage to communities, infrastructure, farms, and forests across Puerto Rico, U.S. Virgin Islands, and many neighboring islands, significantly compromising local livelihoods, food security, and economic stability throughout the region. To date, there is limited information on the impacts of Hurricanes Irma and Maria, particularly in terms of agricultural and forestry systems and the people who depend on them, and likewise, limited information about the effectiveness of related conservation practices or mitigation and adaptation strategies. Such information is critical to the design and implementation of ongoing recovery work and to longer-term resilience efforts in the U.S. Caribbean and in other regions affected by hurricanes or other major disturbances.

    USDA, Forest Service seeks review and approval under the emergency processing procedures from Office of Management and Budget to collect information about the effects of Hurricanes Irma and Maria on agriculture, forestry, and rural communities in the U.S. Caribbean and the internal and external factors that affected their vulnerabilities or resilience. This information is essential to the Department of Agriculture's mandate to support agriculture and natural resources that are productive, sustainable, and provide benefits for the American public under the Rural Development Policy Act of 1980, and to Forest Service's mandate to provide expert advice and conduct research on the management of forests outside the National Forest system through the Cooperative Forestry Assistance Act of 1978. Additionally, the importance of gathering, analyzing, and sharing this type of information is reflected in the National Agricultural Research, Extension, and Teaching Policy Act of 1977, as amended, and the Forest and Rangeland Renewable Resources Research Act of 1978.

    Information will be collected through focus groups and interviews with participants selected purposively in line with the collection objectives. This collection will generate scientifically-based, up-to-date information that can be used to inform ongoing post-hurricane recovery efforts and related risk reduction and mitigation and adaptation strategies by USDA, Forest Service, other Federal agencies, local government, civil society, and the private sector.

    Affected Public: Individuals and Households, Private Sector Businesses, Non-Profit/Governmental Organizations, State/Local Government.

    Estimated Annualized Burden Hours for Respondents and Non-Respondents for Six Month Emergency Approval Period: 376 hours.

    Estimated Annual Number of Respondents for Six Month Emergency Approval Period: 220 (120 focus group participants; 100 interview respondents).

    Estimated Annual Number of Responses per Respondent: 1 response/respondent is anticipated.

    Comment Is Invited

    Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the Agency, including whether the information will have practical or scientific utility; (2) the accuracy of the Agency's estimate of the burden 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 to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology. USDA Forest Service will consider the comments received and amend the information collection as appropriate. All comments received in response to this notice, including names and addresses when provided, will be a matter of public record.

    Dated: April 16, 2018. Carlos Rodriguez-Franco, Deputy Chief, Research & Development.
    [FR Doc. 2018-09544 Filed 5-3-18; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Grand Mesa, Uncompahgre and Gunnison National Forests; Colorado; Revision of the Land and Resource Management Plan for the Grand Mesa, Uncompahgre, and Gunnison National Forests AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice to extend the public scoping period for the notice of intent to revise the Grand Mesa, Uncompahgre and Gunnison Land and Resource Management Plan and to prepare an environmental impact statement.

    SUMMARY:

    The Grand Mesa, Uncompahgre, and Gunnison (GMUG) National Forests are revising their Land and Resource Management Plan (Forest Plan) and will prepare an Environmental Impact Statement (EIS) for the revised Forest Plan. A Notice of Intent for this project was published in the Federal Register on April 3, 2018 and initiated the scoping comment period. This comment period has been extended by thirty days until June 2, 2018 to provide additional time for review and feedback. The GMUG has published the initial scoping material, as well as other helpful resources, on its website at www.fs.usda.gov/goto/gmug/forestplan.

    DATES:

    Comments on the notice of intent that published on April 3, 2018 at 83 FR 14243 concerning the scoping material must be received by June 2, 2018.

    ADDRESSES:

    Comments may be submitted electronically online at http://www.fs.usda.gov/goto/gmug/forestplan_comments, via email to [email protected], by post to GMUG National Forests, Attn: Forest Plan Revision Team, 2250 S Main St., Delta, CO, 81416, or via facsimile to 970-874-6698. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received by visiting the public reading room online at http://www.fs.usda.gov/goto/gmug/forestplan_readingroom.

    FOR FURTHER INFORMATION CONTACT:

    Please contact Forest Plan Revision Team Leader Samantha Staley at (970) 874-6666 or Assistant Forest Planner Brittany Duffy at (970) 874-6649, or via email to [email protected] Additional information concerning the planning process can be found online at http://www.fs.usda.gov/goto/gmug/forestplan.

    Dated: April 20, 2018. Chris French, Associate Deputy Chief, National Forest System.
    [FR Doc. 2018-09548 Filed 5-3-18; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF COMMERCE Economic Development Administration Proposed Information Collection; Comment Request; Comprehensive Economic Development Strategies AGENCY:

    Economic Development Administration, Department of Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Economic Development Administration (EDA or the Agency), Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on a proposed extension of an information collection request approved through September 30, 2018, as required by the Paperwork Reduction Act of 1995 (PRA).

    DATES:

    Written comments must be submitted on or before July 3, 2018.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via email at [email protected]).

    FOR FURTHER INFORMATION, CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to David Ives, Senior Program Analyst, Performance and National Programs Division, Room 71030, Economic Development Administration, 14th and Constitution Avenue NW, Washington, DC 20230 (or via email at [email protected]).

    SUPPLEMENTARY INFORMATION: I. Abstract

    The mission of EDA is to lead the federal economic development agenda by promoting innovation and competitiveness, preparing American regions for growth and success in the worldwide economy. EDA accomplishes this mission by helping states, regions, and communities through capacity building, planning, infrastructure, research grants, and strategic initiatives. Further information on EDA's program and grant opportunities can be found at www.eda.gov.

    In order to effectively administer and monitor its economic development assistance programs, EDA collects certain information from applications for, and recipients of, EDA investment assistance. The purpose of this notice is to seek comments from the public and other Federal agencies on a request for an extension of an information collected related to a Comprehensive Economic Development Strategy (CEDS). The collection of this information is required to ensure the recipient is complying with EDA's CEDS requirements. A CEDS is required for an eligible applicant to qualify for an EDA investment assistance under its Public Works, Economic Adjustment, and certain planning programs, and is a prerequisite for a region's designation by EDA as an Economic Development District (see 13 CFR 303, 305.2, and 307.2 of EDA's regulations). This information collection is scheduled to expire on September 30, 2018.

    II. Method of Collection

    The CEDS are collected via both paper and electronic submissions. A CEDS emerges from a continuing planning process developed and driven by a public sector planning organization by engaging a broad-based and diverse set of stakeholders to address the economic problems and potential of a region. The CEDS should include information about how and to what extent stakeholder input and support was solicited. Information on how the planning organization collaborated with its diverse set of stakeholders (including the public sector, private interests, non-profits, educational institutions, and community organizations) in the development of the CEDS should be included. In accordance with the regulations governing the CEDS (see 13 CFR 303.7), a CEDS must contain a summary background, a SWOT Analysis, Strategic Direction/Action Plan, and an Evaluation Framework. In addition, the CEDS must incorporate the concept of economic resilience (i.e., the ability to avoid, withstand, and recover from economic shifts, natural disasters, etc.). EDA is not proposing any changes to the current information collection request.

    III. Data

    OMB Control Number: 0610-0093.

    Form Number(s): None.

    Type of Review: Regular submission; revision of a currently approved collection.

    Affected Public: Not-for-profit institutions; Federal government; State, local or Tribal government; Business or other for-profit organizations.

    Estimated Number of Respondents: 527.

    Estimated Time per Response: 480 hours for the initial CEDS for a District organization or other planning organization funded by EDA; 160 hours for the CEDS revision required at least every 5 years from and EDA-funded District or other planning organization; 40 hours per applicant for EDA Public Works or Economic Adjustment Assistance with a project deemed by EDA to merit further consideration that is not located in an EDA-funded District.

    Estimated Total Annual Burden Hours: 31,640.

    Type of response Number of
  • responses
  • Hours per response Total
  • estimated
  • time
  • (hours)
  • Initial CEDS 3 480 hours/initial CEDS 1,440 Revised CEDS 77 160 hours/revised CEDS 12,320 CEDS Updates/Performance Reports 385 40 hours/report 15,400 CEDS by applicants not in EDA-funded District 62 40 hours 2,480 Total 31,640

    Estimated Total Annual Cost to Public: $0.

    IV. Request for Comments

    Pursuant to section 3506(c)(2)(A) of the PRA (44 U.S.C. 3501 et seq.), comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and may be included in the request for Office of Management and Budget approval of this information collection; they also will become a matter of public record.

    Sheleen Dumas, Departmental Lead PRA Officer, Office of the Chief Information Officer.
    [FR Doc. 2018-09539 Filed 5-3-18; 8:45 am] BILLING CODE 3510-34-P
    DEPARTMENT OF COMMERCE Economic Development Administration Proposed Information Collection; Comment Request; Request To Amend an Investment Award and Project Service Maps AGENCY:

    Economic Development Administration, Department of Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Economic Development Administration (EDA or the Agency), Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on a proposed extension of an information collection request approved through September 30, 2018, as required by the Paperwork Reduction Act of 1995 (PRA).

    DATES:

    Written comments must be submitted on or before July 3, 2018.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via email at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Mitchell E. Harrison, Program Analyst, U.S. Economic Development Administration, Performance and National Programs, 1401 Constitution Avenue NW, Room 71030, Washington, DC 20230 (or via email at [email protected]).

    SUPPLEMENTARY INFORMATION: I. Abstract

    The mission of EDA is to lead the federal economic development agenda by promoting innovation and competitiveness, preparing American regions for growth and success in the worldwide economy. EDA accomplishes this mission by helping states, regions, and communities through capacity building, planning, infrastructure, research grants, and strategic initiatives. Further information on EDA's program and grant opportunities can be found at www.eda.gov.

    In order to effectively administer and monitor its economic development assistance programs, EDA collects certain information from applicants for, and recipients of, EDA investment assistance. The purpose of this notice is to seek comments from the public and other Federal agencies on a request for an extension of this information collection where a recipient must submit a written request to EDA to amend an investment award and provide such information and documentation as EDA deems necessary to determine the merit of altering the terms of an award (see 13 CFR 302.7(a) of EDA's regulations). EDA may require a recipient to submit a project service map and information from which to determine whether services are provided to all segments of the region being assisted (see 13 CFR 302.16(c) of EDA's regulations). This information collection is scheduled to expire on September 30, 2018.

    II. Method of Collection

    Amendments and project service maps are collected via both paper or electronic submissions, including email. A recipient must submit a written request to EDA to amend an investment award and provide such information and documentation as EDA deems necessary to determine the merit of altering the terms of an award (see 13 CFR 302.7(a) of EDA's regulations). EDA may require a recipient to submit a project service map and information from which to determine whether services are provided to all segments of the region being assisted (see CFR 302.16(c) of EDA's regulations). EDA is not proposing any changes to the current information collection request.

    III. Data

    OMB Control Number: 0610-0102.

    Form Number(s): None.

    Type of Review: Regular submission; Revision of a currently approved collection.

    Affected Public: Current recipients of EDA construction (Public Works or Economic Adjustment Assistance) awards, to include (1) cities or other political subdivisions of a state, including a special purpose unit of state or local government engaged in economic or infrastructure development activities, or a consortium of political subdivisions; (2) states; (3) institutions of higher education or a consortium of institutions of higher education; (4) public or private non-profit organizations or associations; (5) District Organizations; and (6) Indian Tribes or a consortia of Indian Tribes and (7) (for training, research, and technical assistance awards only) individuals and for-profit businesses.

    Estimated Number of Respondents: 632 (600 requests for amendments to construction awards, 30 requests for amendments to non-construction awards, 2 project service maps).

    Estimated Time Per Response: 2 hours for an amendment to a construction award, 1 hour for an amendment to a non-construction award, 6 hours for a project service map.

    Estimated Total Annual Burden Hours: 1,242 hours.

    Type of request Number of
  • requests
  • Estimated hours
  • per request
  • Estimated
  • burden
  • hours
  • Requests for amendments to construction awards 600 2 hours/request preparation 1200 Requests for amendment to non-construction awards 30 1 hour/request 30 Project service maps 2 6 hours/map 12 Total 1,242

    Estimated Total Annual Cost to Public: $0.

    IV. Request for Comments

    Pursuant to section 3506(c)(2)(A) of the PRA (44 U.S.C. 3501 et seq.), comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and may be included in the request for Office of Management and Budget approval of this information collection; they also will become a matter of public record.

    Sheleen Dumas, Departmental Lead PRA Officer, Office of the Chief Information Officer.
    [FR Doc. 2018-09535 Filed 5-3-18; 8:45 am] BILLING CODE 3510-34-P
    DEPARTMENT OF COMMERCE Economic Development Administration Proposed Information Collection; Comment Request; Requirements for Approved Construction Investments AGENCY:

    Economic Development Administration, Department of Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Economic Development Administration (EDA or the Agency), Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on a proposed extension of an information collection request approved through September 30, 2018, as required by the Paperwork Reduction Act of 1995 (PRA).

    DATES:

    Written comments must be submitted on or before July 3, 2018.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via email at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Bernadette Grafton, Program Analyst, U.S. Department of Commerce, Economic Development Administration Performance and National Programs Division, 1401 Constitution Avenue NW, Suite 71030, Washington, DC 20230 (or via email at [email protected]).

    SUPPLEMENTARY INFORMATION: I. Abstract

    The mission of the EDA is to lead the federal economic development agenda by promoting innovation and competitiveness, preparing American regions for growth and success in the worldwide economy. EDA accomplishes this mission by helping states, regions, and communities through capacity building, planning, infrastructure, research grants, and strategic initiatives. Further information on EDA's program and grant opportunities can be found at www.eda.gov.

    EDA may award assistance for construction projects through its Public Works and Economic Adjustment Assistance (EAA) Programs. Public Works Program investments help support the construction or rehabilitation of essential public infrastructure and facilities necessary to generate or retain private sector jobs and investments, attract private sector capital, and promote vibrant economic ecosystems, regional competitiveness and innovation. The EAA Program provides a wide range of technical, planning and infrastructure assistance in regions experiencing adverse economic changes that may occur suddenly or over time.

    In order to effectively administer and monitor its economic development assistance programs, EDA collects certain information from applications for, and recipients of, EDA investment assistance. Through this notice, EDA seeks comments from the public and other Federal agencies on a request for an extension of the series of checklists and templates (formerly referred to as the “bluebook”) that constitute EDA's post-approval construction tools and the Standard Terms and Conditions for Construction Projects. These checklists and templates, as well as any special conditions incorporated into the terms and conditions at the time of award, supplement the requirements that apply to EDA-funded construction projects. This information collection is scheduled to expire on September 30, 2018.

    II. Method of Collection

    The checklists and templates are collected via both paper and electronic submissions. These checklists and templates, as well as any special conditions incorporated into the terms and conditions at the time of award, supplement the requirements that apply to EDA-funded construction projects.

    As a part of this renewal process, EDA plans to make clarifying edits to the series of checklists and templates, including updates necessitated by issuance of the Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards as set forth in 2 CFR part 200. The edits will also increase the clarity of the provided instructions and thus facilitate timely completion by the recipient and approval by EDA. None of the edits are expected to increase the time burden on the respondent nor do the modifications change the type of information collected.

    III. Data

    OMB Control Number: 0610-0096.

    Form Number(s): None.

    Type of Review: Regular submission; revision of a currently approved collection.

    Affected Public: Current recipients of EDA construction (Public Works or Economic Assistance Adjustment) awards, to include (1) cities or other political subdivisions of a state, including a special purpose unit of state or local government engaged in economic or infrastructure development activities, or a consortium of political subdivisions; (2) states; (3) institutions of higher education or a consortium of institutions of higher education; (4) public or private non-profit organizations or associations; (5) District Organizations; and (6) Indian Tribes or a consortia of Indian Tribes.

    Estimated Number of Respondents: 4,200.

    Estimated Time per Response: 2 hours.

    Estimated Total Annual Burden Hours: 8,400 hours.

    Type of submission Number of
  • submissions
  • Hours per
  • submission
  • Total
  • estimated
  • hours
  • 600 open construction grants 7 2 hours 8,400

    Estimated Total Annual Cost to Public: $0.

    IV. Request for Comments

    Pursuant to section 3506(c)(2)(A) of the PRA (44 U.S.C. 3501 et seq.), comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and may be included in the request for Office of Management and Budget approval of this information collection; they also will become a matter of public record.

    Sheleen Dumas, Departmental Lead PRA Officer, Office of the Chief Information Officer.
    [FR Doc. 2018-09537 Filed 5-3-18; 8:45 am] BILLING CODE 3510-34-P
    DEPARTMENT OF COMMERCE Economic Development Administration Proposed Information Collection; Comment Request; Property Management AGENCY:

    Economic Development Administration, Department of Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Economic Development Administration (EDA or the Agency), Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on a proposed extension of an information collection request approved through September 30, 2018, as required by the Paperwork Reduction Act of 1995 (PRA).

    DATES:

    Written comments must be submitted on or before July 3, 2018.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via email at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Bernadette Grafton, Program Analyst, U.S. Department of Commerce, Economic Development Administration Performance and National Programs Division, 1401 Constitution Avenue NW, Suite 71030, Washington, DC 20230 (or via email at: [email protected]).

    SUPPLEMENTARY INFORMATION: I. Abstract

    The mission of EDA is to lead the federal economic development agenda by promoting innovation and competitiveness, preparing American regions for growth and success in the worldwide economy. EDA accomplishes this mission by helping states, regions, and communities through capacity building, planning, infrastructure, research grants, and strategic initiatives. Further information on EDA's program and grant opportunities can be found at www.eda.gov.

    In order to effectively administer and monitor its economic development assistance programs, EDA collects certain information from applications for, and recipients of, EDA investment assistance. This notice covers EDA's Property Management requirements. A recipient must request in writing EDA's approval to undertake an incidental use of property acquired or improved with EDA's investment assistance (see 13 CFR 314.3 of EDA's regulations). The purpose of this notice is to seek comments from the public and other Federal agencies on a request for an extension of this collection of information that allows EDA to determine whether an incidental use of property acquired or improved with EDA investment assistance is appropriate. If a recipient wishes EDA to release its real property or tangible personal property interests before the expiration of the property's estimated useful life, the recipient must submit a written request to EDA and disclose to EDA the intended future use of the real property or the tangible personal property for which the release is requested (see 13 CFR 314.10 of EDA's regulations). This collection of information allows EDA to determine whether to release its real property or tangible personal property interests. This information collection is scheduled to expire on September 30, 2018.

    II. Method of Collection

    Property management requests are collected via both paper and electronic submissions. A recipient must request in writing EDA's approval to undertake an incidental use of property acquired or improved with EDA's investment assistance (see 13 CFR 314.3 of EDA's regulations). This collection of information allows EDA to determine whether an incidental use of property acquired or improved with EDA investment assistance is appropriate. This collection of information allows EDA to determine whether to release its real property or tangible personal property interests. EDA is not proposing any changes to the current information collection request.

    III. Data

    OMB Control Number: 0610-0103.

    Form Number(s): None.

    Type of Review: Ad hoc submission (only when a recipient makes a request).

    Affected Public: Current recipients of EDA construction (Public Works or Economic Adjustment Assistance) awards, to include (1) cities or other political subdivisions of a state, including a special purpose unit of state or local government engaged in economic or infrastructure development activities, or a consortium of political subdivisions; (2) states; (3) institutions of higher education or a consortium of institutions of higher education; (4) public or private non-profit organizations or associations; (5) District Organizations; and (6) Indian Tribes or a consortia of Indian Tribes.

    Estimated Number of Respondents: 150 (54 incidental use requests; 96 for requests to release EDA's Property interest).

    Estimated Time per Response: 2 hours and 45 minutes.

    Estimated Total Annual Burden Hours: 413.

    Type of request Number of
  • requests
  • (estimated)
  • Hours per
  • request
  • (estimated)
  • Total
  • estimated
  • burden
  • hours
  • Incidental use request 54 2.75 148.5 Release request 96 2.75 264 Total 412.5

    Estimated Total Annual Cost to Public: $0.

    IV. Request for Comments

    Pursuant to section 3506(c)(2)(A) of the PRA (44 U.S.C. 3501 et seq.), comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and may be included in the request for Office of Management and Budget approval of this information collection; they also will become a matter of public record.

    Sheleen Dumas, Departmental Lead PRA Officer, Office of the Chief Information Officer.
    [FR Doc. 2018-09540 Filed 5-3-18; 8:45 am] BILLING CODE 3510-34-P
    DEPARTMENT OF COMMERCE Economic Development Administration Proposed Information Collection; Comment Request; Application for Investment Assistance AGENCY:

    Economic Development Administration, Department of Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Economic Development Administration (EDA or the Agency), Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to comment on a proposed extension of an information collection request approved through September 30, 2018, as required by the Paperwork Reduction Act of 1995 (PRA).

    DATES:

    Written comments must be submitted on or before July 3, 2018.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via email at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Ryan Smith, Program Analyst, Performance and National Programs Division, Room 71030, Economic Development Administration, 14th and Constitution Avenue NW, Washington, DC 20230, (or via email at [email protected]).

    SUPPLEMENTARY INFORMATION: I. Abstract

    The mission of EDA is to lead the federal economic development agenda by promoting innovation and competitiveness, preparing American regions for growth and success in the worldwide economy. EDA accomplishes this mission by helping states, regions, and communities through capacity building, planning, infrastructure, research grants, and strategic initiatives. Further information on EDA's program and grant opportunities can be found at www.eda.gov.

    In order for EDA to evaluate whether proposed projects satisfy eligibility and programmatic requirements contained in EDA's authorizing legislation, the Public Works and Economic Development Act of 1965, as amended (42 U.S.C. 3121 et seq.) (PWEDA), EDA's accompanying regulations codified in 13 CFR Chapter III, and the applicable Notice of Funding Opportunity (NOFO), EDA must collect specific data from its grant applicants. The purpose of this notice is to seek comments from the public and other Federal agencies on a request for an extension of EDA's currently approved suite of ED-900 application forms which are scheduled to expire on September 30, 2018.

    II. Method of Collection

    EDA collects application information through a series of ED-900 forms:

    • ED-900—General Application for EDA Programs;

    • ED-900A—Additional EDA Assurances for Construction or Non-Construction Investments;

    • ED-900C—EDA Application Supplement for Construction Programs;

    • ED-900D—Requirements for Design and Engineering Assistance;

    • ED-900E—Calculation of Estimated Relocation and Land Acquisition Expenses;

    • ED-900F—Supplement for Revolving Loan Fund Applications;

    • ED-900P—Proposal for EDA Assistance].

    The forms are electronically submitted through Grants.gov, or via paper submission to the appropriate EDA office, in response to a NOFO. Applicants are required to submit the applicable ED-900 form(s) to the EDA Regional Office for review and evaluation.

    As a part of this renewal process, EDA plans to make minor clarifying edits to the following ED-900 forms: ED-900, ED-900B, and ED-900C. None of these minor edits are expected to impact the time burden on the respondent nor do the modifications change the type or amount of information collected.

    Detailed Information About Proposed Changes Form Section Proposed changes All Where applicable Replace all occurrences of “FFO” or “Federal Funding Opportunity” with “NOFO” or “Notice of Funding Opportunity” as appropriate, per Department of Commerce grants policy. ED-900—General Application for EDA Programs A. Applicant Information None. ED-900 B. Project Information (1) To increase clarity, revise Question B.1. to read: “Provide a geographical definition of the region to be served by the investment (project), including the specific geographic location of the project within the region.” (2) To increase clarity, revise Question B.2. to read: “Describe and outline the scope of work for the proposed EDA investment, including a list of tasks to be undertaken.” (3) For consistency, add “N/A—Not Applicable” to the available options under “No” within Question B.3. (4) To increase clarity, revise Question B.3.b. to read: “Describe the economic conditions of your region. Define the economic development need to be addressed by the proposed EDA investment and explain how the proposed investment will address that need.” ED-900 C. Regional Eligibility (1) Reverse the order of C.2. and C.3. so that the basis of eligibility is asked about prior to the source of data. (2) Question C.3. (as renumbered): Add a new box C.3.b. and renumber the rest accordingly. The new box reads: “C.3.b. The most recent Bureau of Labor Statistics Data.” This change will reflect the hierarchy of sources set out in 13 C.F.R. 301.3(a)(4). ED-900 E. Administrative Requirements Provide clarification in Question E.1.b. by adding “as listed in question B.9.” in parenthesis after “other parties” and add “under 13 C.F.R. § 302.20” after “civil rights requirements”. ED-900 Instructions (1) To avoid duplication, revise the instructions for B.2. to delete “, and key milestones and an associated schedule for when the project could start, when key milestones could be achieved, and when the project is anticipated to be completed”. Milestones and schedule should not be included for this question. They should be included in the response to B.7.
  • (2) To provide additional clarity on what EDA may require, revise the instructions for D.2. to include a third sentence: “Alternatively, applicants must provide supplemental documentation such as: a certificate of indirect costs and acknowledgment letter from the cognizant agency, a cost allocation plan, an indirect cost rate proposal and/or other acceptable documents under Uniform Administrative Requirements, Cost Principles, and Audit Requirements for Federal Awards (Uniform Guidance) as set forth in 2 C.F.R. part 200 or relevant procurement regulations.”
  • ED-900B—Beneficiary Information Form D. Assurances by Beneficiary that is an “Other Party” To increase clarity, revise the first sentence of the third paragraph to read: “By submitting these assurances, the Other Party certifies that it will comply with the following requirements:” ED-900C—EDA Application Supplement for Construction Programs D. Title Requirements To provide additional clarity on what EDA may require, revise Question D.2. to read: “EDA regulations normally require recipients to provide a security interest and/or covenant of use in the real property or significant items of tangible personal property acquired or improved with EDA investment assistance (see 13 C.F.R. §§ 314.8 & 314.9). Will you be able to provide the required security interest?” Additionally, after the “No” box in D.2.: revise the parenthetical to say “(explain how you will satisfy the requirements of 13 C.F.R. §§ 314.8 & 314.9).” ED-900C E. Sale or Lease To increase clarity, revise Question E.3. to read: “Is the purpose of the project to construct facilities to serve a privately owned industrial or commercial party or other privately owned sites for sale or lease?” Also in Question E.3. and to provide additional clarity on what EDA may require, revise the second sentence after the No/Yes checkboxes to read: “Note that EDA may require that the private owner agree to certain restrictions on the use of the property and may require that those restrictions survive any sale or transfer of the property.” Finally, in Question E.3. and to provide additional clarity on what EDA may require, revise the third sentence after the No/Yes checkboxes to read: “In addition, EDA may require evidence that the private party has title to the park or site and may require the private party to provide other assurance that EDA determines are necessary to ensure that the property is used in a manner consistent with the project purpose.”
    III. Data

    OMB Control Number: 0610-0094.

    Form Number(s): ED-900, ED-900A, ED-900B, ED-900C, ED-900D, ED-900E, ED-900F, ED-900P.

    Type of Review: Regular submission; revision of a currently approved collection.

    Affected Public: Not-for-profit institutions; Federal government; State, local, or Tribal government; Business or other for-profit organizations.

    Estimated Number of Respondents: 1672.

    Estimated Time per Response: 13 hours, 28 minutes.

    Estimated Total Annual Burden Hours: 22,512.

    Application type Estimated number of
  • responses
  • Average time estimate Total hours
    Proposal Submission for Non-Construction Applicants 448 4.8 2140.4 Proposal Submission for Construction Applicants 263 4.2 1109.0 Full Application Submission for Construction Applicants 99 43.0 4246.6 Full Application Submission All Other EDA Programs 737 17.1 12579.2 Full Application Submission for Non-Profit Applicants 125 19.5 2436.9 Total 1672 22,512

    Estimated Total Annual Cost to Public: $0.

    IV. Request for Comments

    Pursuant to section 3506(c)(2)(A) of the PRA (44 U.S.C. 3501 et seq.), comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and may be included in the request for Office of Management and Budget approval of this information collection; they also will become a matter of public record.

    Sheleen Dumas, Departmental Lead PRA Officer, Office of the Chief Information Officer.
    [FR Doc. 2018-09538 Filed 5-3-18; 8:45 am] BILLING CODE 3510-34-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-535-905] Polyethylene Terephthalate Resin From Pakistan: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional Measures AGENCY:

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

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines that polyethylene terephthalate resin (PET resin) from Pakistan is being, or is likely to be, sold in the United States at less than fair value. The period of investigation is July 1, 2016, through June 30, 2017.

    DATES:

    Applicable May 4, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Lauren Caserta, 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) 482-4737.

    SUPPLEMENTARY INFORMATION:

    Background

    This preliminary determination is made in accordance with section 733(b) of the Tariff Act of 1930, as amended (the Act). Commerce published the notice of initiation of this investigation on October 23, 2017.1 Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018. On February 22, 2018, Commerce postponed the preliminary determination of this investigation.2 The revised deadline for the preliminary determination of this investigation is now April 27, 2018.3

    1See Polyethylene Terephthalate Resin from Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan: Initiation of Less-Than-Fair-Value Investigations, 82 FR 48977 (October 23, 2017) (Initiation Notice).

    2See Polyethylene Terephthalate from Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan: Postponement of Preliminary Determinations of Antidumping Duty Investigations, 83 FR 7655 (February 22, 2018).

    3See Memorandum, “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.

    For a complete description of the events that followed the initiation of this investigation, see the Preliminary Decision Memorandum.4 A list of topics included in the Preliminary Decision Memorandum is included as Appendix II to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://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 Preliminary Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/. The signed and the electronic versions of the Preliminary Decision Memorandum are identical in content.

    4See Memorandum, “Decision Memorandum for the Preliminary Determination in the Less-Than-Fair-Value Investigation of Polyethylene Terephthalate Resin from Indonesia” dated concurrently with, and hereby adopted by, this notice (Preliminary Decision Memorandum).

    Scope of the Investigation

    The merchandise covered by this investigation is PET resin from Pakistan. For a complete description of the scope of this investigation, see Appendix I.

    Scope Comments

    In accordance with the preamble to Commerce's regulations,5 the Initiation Notice set aside a period of time for parties to raise issues regarding product coverage (i.e., scope).6 For a summary of the product coverage comments and rebuttal responses submitted to the record for this preliminary determination, and accompanying discussion and analysis of all comments timely received, see the Preliminary Decision Memorandum. After evaluating the comments, Commerce is preliminarily modifying the scope language as it appeared in the Initiation Notice to exclude PET-glycol resin. See the revised scope in Appendix I to this notice.

    5See Antidumping Duties; Countervailing Duties, Final Rule, 62 FR 27296, 27323 (May 19, 1997).

    6See Initiation Notice.

    Methodology

    Commerce is conducting this investigation in accordance with section 731 of the Act. Commerce has calculated export prices in accordance with section 772(a) of the Act. Constructed export prices have been calculated in accordance with section 772(b) of the Act. Normal value (NV) is calculated in accordance with section 773 of the Act. In addition, Commerce has preliminarily relied upon facts available under section 776(a)(1) of the Act for Novatex. For a full description of the methodology underlying the preliminary determination, see the Preliminary Decision Memorandum.

    All-Others Rate

    Sections 733(d)(1)(A)(ii) and 735(c)(5)(A) of the Act provide that in the preliminary determination Commerce shall determine an estimated all-others rate for all exporters and producers not individually examined. This rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and de minimis margins, and any margins determined entirely under section 776 of the Act. Commerce calculated an individual estimated weighted-average dumping margin for Novatex, the only individually examined exporter/producer in this investigation. Because the only individually calculated dumping margin is not zero, de minimis, or based entirely on facts otherwise available, the estimated weighted-average dumping margin calculated for Novatex is the margin assigned to all-other producers and exporters, pursuant to section 735(c)(5)(A) of the Act.

    Preliminary Determination

    Commerce preliminarily determines that the following estimated weighted-average dumping margins exist:

    Exporter/producer Estimated weighted-average dumping margin
  • (percent)
  • Novatex Limited 7 7.75 All-Others 7.75
    Suspension of Liquidation

    In accordance with section 733(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise, as described in Appendix I, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the Federal Register. Further, pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), Commerce will instruct CBP to require a cash deposit equal to the estimated weighted-average dumping margin or the estimated all-others rate, as follows: (1) The cash deposit rate for the respondent listed above will be equal to the company-specific estimated weighted-average dumping margins determined in this preliminary determination; (2) if the exporter is not a respondent identified above, but the producer is, then the cash deposit rate will be equal to the company-specific estimated weighted-average dumping margin established for that producer of the subject merchandise, and (3) the cash deposit rate for all other producers and exporters will be equal to the all-others estimated weighted-average dumping margin.

    7 Commerce preliminarily determines that Novatex Limited and Gatron Industries Limited are a single entity. See Preliminary Decision Memorandum.

    Disclosure

    Commerce intends to disclose its calculations and analysis performed to interested parties in this preliminary determination within five days of any public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).

    Verification

    As provided in section 782(i)(1) of the Act, Commerce intends to verify the information relied upon in making its final determination.

    Public Comment

    Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last verification report is issued in this investigation. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.8 Pursuant to 19 CFR 351.309(c)(2) and (d)(2), parties who submit case briefs or rebuttal briefs in this investigation are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.

    8See 19 CFR 351.309; see also 19 CFR 351.303 (for general filing requirements).

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.

    Postponement of Final Determination and Extension of Provisional Measures

    Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. Section 351.210(e)(2) of Commerce's regulations requires that a request by exporters for postponement of the final determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.

    On April 9, 2018, pursuant to 19 CFR 351.210(e), Novatex requested that Commerce postpone the final determination and that provisional measures be extended to a period not to exceed six months.9 On April 12, 2018, the petitioners 10 also requested that Commerce postpone the final determination.11 In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii), because: (1) The preliminary determination is affirmative; (2) the requesting exporter accounts for a significant proportion of exports of the subject merchandise; and (3) no compelling reasons for denial exist, Commerce is postponing the final determination and extending the provisional measures from a four-month period to a period not greater than six months. Accordingly, Commerce will make its final determination no later than 135 days after the date of publication of this preliminary determination.

    9See Novatex's Letter, “Polyethylene Terephthalate Resin from Pakistan: Novatex Request to Postpone Final Determination,” dated April 9, 2018.

    10 The petitioners are DAK Americas LLC, Indorama Ventures USA, Inc., M&G Polymers USA, LLC, and Nan Ya Plastics Corporation, America.

    11See Letter from the petitioners, “Polyethylene Terephthalate Resin from Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan—Petitioners' Request to Extend the Antidumping Duty Determinations,” dated April 12, 2018.

    International Trade Commission Notification

    In accordance with section 733(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its preliminary determination. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.

    Notification to Interested Parties

    This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).

    Dated: April 27, 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. Appendix I Scope of the Investigation

    The merchandise covered by this investigation is polyethylene terephthalate (PET) resin having an intrinsic viscosity of at least 70, but not more than 88, milliliters per gram (0.70 to 0.88 deciliters per gram). The scope includes blends of virgin PET resin and recycled PET resin containing 50 percent or more virgin PET resin content by weight, provided such blends meet the intrinsic viscosity requirements above. The scope includes all PET resin meeting the above specifications regardless of additives introduced in the manufacturing process.

    The scope excludes PET-glycol resin, also referred to as PETG. PET-glycol resins are manufactured by replacing a portion of the raw material input monoethylene glycol (MEG) with one of five glycol modifiers: Cyclohexanedimethanol (CHDM), diethylene glycol (DEG), neopentyl glycol (NPG), isosorbide, or spiro glycol. Specifically, excluded PET-glycol resins must contain a minimum of 10 percent, by weight, of CHDM, DEG, NPG, isosorbide or spiro glycol, or some combination of these glycol modifiers. Unlike subject PET resin, PET-glycol resins are amorphous resins that are not solid-stated and cannot be crystallized or recycled.

    The merchandise subject to this investigation is properly classified under subheadings 3907.61.0000 and 3907.69.0000 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise covered by this investigation is dispositive.

    Appendix II List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Period of Investigation IV. Postponement of Final Determination and Extension of Provisional Measures V. Scope Comments VI. Affiliation and Collapsing VII. Discussion of the Methodology A. Comparisons to Fair Value 1. Determination of Comparison Method 2. Results of the Differential Pricing Analysis VIII. Date of Sale IX. Product Comparisons X. Export Price and Constructed Export Price XI. Duty Drawback XII. Normal Value A. Home Market Viability and Comparison Market B. Affiliated-Party Transactions and Arm's-Length Test C. Level of Trade D. Cost of Production (COP) Analysis 1. Calculation of COP 2. Test of Comparison Market Sales Prices 3. Results of the COP Test E. Calculation of NV Based on Comparison Market Prices XIII. Currency Conversion XIV. Verification XV. Conclusion
    [FR Doc. 2018-09511 Filed 5-3-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-560-832] Polyethylene Terephthalate Resin From Indonesia: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional Measures AGENCY:

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

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines that polyethylene terephthalate resin (PET resin) from Indonesia is being, or is likely to be, sold in the United States at less than fair value. The period of investigation is July 1, 2016, through June 30, 2017.

    DATES:

    Applicable May 4, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Caitlin Monks, 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) 482-2670.

    SUPPLEMENTARY INFORMATION:

    Background

    This preliminary determination is made in accordance with section 733(b) of the Tariff Act of 1930, as amended (the Act). Commerce published the notice of initiation of this investigation on October 23, 2017.1 On January 23, 2018, Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20, 2018, through January 22, 2018.2 On February 22, 2018, Commerce postponed the preliminary determination of this investigation.3 As a result, the revised deadline for the preliminary determination of this investigation is now April 27, 2018.

    1See Polyethylene Terephthalate Resin from Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan: Initiation of Less-Than-Fair-Value Investigations, 82 FR 48977 (October 23, 2017) (Initiation Notice).

    2See Memorandum, “Deadlines Affected by the Shutdown of the Federal Government,” dated January 23, 2018.

    3See Polyethylene Terephthalate from Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan: Postponement of Preliminary Determinations of Antidumping Duty Investigations, 83 FR 7655 (February 22, 2018).

    For a complete description of the events that followed the initiation of this investigation, see the Preliminary Decision Memorandum.4 A list of topics included in the Preliminary Decision Memorandum is included as Appendix II to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://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 Preliminary Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/. The signed and the electronic versions of the Preliminary Decision Memorandum are identical in content.

    4See Memorandum, “Decision Memorandum for the Preliminary Determination in the Less-Than-Fair-Value Investigation of Polyethylene Terephthalate Resin from Indonesia” dated concurrently with, and hereby adopted by, this notice (Preliminary Decision Memorandum).

    Scope of the Investigation

    The merchandise covered by this investigation is PET resin from Indonesia. For a complete description of the scope of this investigation, see Appendix I.

    Scope Comments

    In accordance with the preamble to Commerce's regulations,5 the Initiation Notice set aside a period of time for parties to raise issues regarding product coverage (i.e., scope).6 For a summary of the product coverage comments and rebuttal responses submitted to the record for this preliminary determination, and accompanying discussion and analysis of all comments timely received, see the Preliminary Decision Memorandum. After evaluating the comments, Commerce is preliminarily modifying the scope language as it appeared in the Initiation Notice to exclude PET-glycol resin. See the revised scope in Appendix I to this notice.

    5See Antidumping Duties; Countervailing Duties, Final Rule, 62 FR 27296, 27323 (May 19, 1997).

    6See Initiation Notice.

    Methodology

    Commerce is conducting this investigation in accordance with section 731 of the Act. Commerce has calculated export prices in accordance with section 772(a) of the Act. Constructed export prices have been calculated in accordance with section 772(b) of the Act. Normal value (NV) is calculated in accordance with section 773 of the Act. In addition, Commerce has preliminarily relied upon partial adverse facts available, in accordance with sections 776(a)(1) and 776(b) of the Act, for the Indorama Producers.7 For a full description of the methodology underlying the preliminary determination, see the Preliminary Decision Memorandum.

    7 Commerce preliminarily determines, pursuant to section 771(33)(A) and 771(33)(F) of the Act, that mandatory respondent PT. Indo-Rama Synthetics Tbk. (Indorama Synthetics) is affiliated with mandatory respondent Indorama Polymers Public Co., Ltd. (Indorama Polymers), PT. Indorama Polypet Indonesia (Polypet), and Indorama Ventures Indonesia (Ventures Indonesia). Additionally, Commerce determined that Indorama Synthetics, Polypet, and Ventures Indonesia should be treated as a single entity (the Indorama Producers) pursuant to 19 CFR 351.401(f). See Preliminary Decision Memorandum at “Affiliation and Collapsing.”

    All-Others Rate

    Sections 733(d)(1)(ii) and 735(c)(5)(A) of the Act provide that in the preliminary determination Commerce shall determine an estimated all-others rate for all exporters and producers not individually examined. This rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and de minimis margins, and any margins determined entirely under section 776 of the Act. Commerce calculated an individual estimated weighted-average dumping margin for the Indorama Producers, the only individually examined exporter/producer in this investigation. Because the only individually calculated dumping margin is not zero, de minimis, or based entirely on facts otherwise available, the estimated weighted-average dumping margin calculated for the Indorama Producers is the margin assigned to all-other producers and exporters, pursuant to section 735(c)(5)(A) of the Act.

    Preliminary Determination

    Commerce preliminarily determines that the following estimated weighted-average dumping margins exist:

    Exporter/producer Estimated weighted-average dumping margin
  • (percent)
  • PT. Indo-Rama Synthetics Tbk./PT. Indorama Polypet Indonesia/Indorama Ventures Indonesia 13.16 All-Others 13.16
    Suspension of Liquidation

    In accordance with section 733(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise, as described in Appendix I, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the Federal Register.

    Section 733(e)(2) of the Act provides that, given an affirmative determination of critical circumstances, any suspension of liquidation shall apply to unliquidated entries of merchandise entered, or withdrawn from warehouse, for consumption on or after the later of (a) the date which is 90 days before the date on which the suspension of liquidation was first ordered, or (b) the date on which notice of initiation of the investigation was published. On April 20, 2018, Commerce preliminarily determined that critical circumstances exist for imports of PET resin from Indonesia produced or exported by Indorama Polymers and all other producers/exporters.8 Accordingly, for Indorama Polymers and all other producers/exporters, in accordance with section 733(e)(2)(A) of the Act, the suspension of liquidation shall apply to unliquidated entries of merchandise entered, or withdrawn from warehouse, for consumption on or after the date which is 90 days before the publication of this notice.

    8See Antidumping Duty Investigations on Polyethylene Terephthalate Resin from Indonesia, the Republic of Korea, and Taiwan; Preliminary Determinations of Critical Circumstances, 83 FR 17791 (April 24, 2018).

    Further, pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), Commerce will instruct CBP to require a cash deposit equal to the estimated weighted-average dumping margin or the estimated all-others rate, as follows: (1) The cash deposit rate for the respondent listed above will be equal to the company-specific estimated weighted-average dumping margins determined in this preliminary determination; (2) if the exporter is not a respondent identified above, but the producer is, then the cash deposit rate will be equal to the company-specific estimated weighted-average dumping margin established for that producer of the subject merchandise; and (3) the cash deposit rate for all other producers and exporters will be equal to the all-others estimated weighted-average dumping margin.

    Disclosure

    Commerce intends to disclose its calculations and analysis performed to interested parties in this preliminary determination within five days of any public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).

    Verification

    As provided in section 782(i)(1) of the Act, Commerce intends to verify the information relied upon in making its final determination.

    Public Comment

    Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last verification report is issued in this investigation. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.9 Pursuant to 19 CFR 351.309(c)(2) and (d)(2), parties who submit case briefs or rebuttal briefs in this investigation are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.

    9See 19 CFR 351.309; see also 19 CFR 351.303 (for general filing requirements).

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.

    Postponement of Final Determination and Extension of Provisional Measures

    Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. Section 351.210(e)(2) of Commerce's regulations requires that a request by exporters for postponement of the final determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.

    On April 6, 2018, pursuant to 19 CFR 351.210(e), the Indorama Producers requested that Commerce postpone the final determination and that provisional measures be extended to a period not to exceed six months.10 In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii), because: (1) The preliminary determination is affirmative; (2) the requesting exporter accounts for a significant proportion of exports of the subject merchandise; and (3) no compelling reasons for denial exist, Commerce is postponing the final determination and extending the provisional measures from a four-month period to a period not greater than six months. Accordingly, Commerce will make its final determination no later than 135 days after the date of publication of this preliminary determination.

    10See Letter from Indorama, “Polyethylene Terephthalate Resin from Indonesia: Request for Postponement of Final Determination,” dated April 6, 2018.

    International Trade Commission Notification

    In accordance with section 733(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its preliminary determination. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.

    Notification to Interested Parties

    This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).

    Dated: April 27, 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. Appendix I Scope of the Investigation

    The merchandise covered by this investigation is polyethylene terephthalate (PET) resin having an intrinsic viscosity of at least 70, but not more than 88, milliliters per gram (0.70 to 0.88 deciliters per gram). The scope includes blends of virgin PET resin and recycled PET resin containing 50 percent or more virgin PET resin content by weight, provided such blends meet the intrinsic viscosity requirements above. The scope includes all PET resin meeting the above specifications regardless of additives introduced in the manufacturing process.

    The scope excludes PET-glycol resin, also referred to as PETG. PET-glycol resins are manufactured by replacing a portion of the raw material input monoethylene glycol (MEG) with one of five glycol modifiers: Cyclohexanedimethanol (CHDM), diethylene glycol (DEG), neopentyl glycol (NPG), isosorbide, or spiro glycol. Specifically, excluded PET-glycol resins must contain a minimum of 10 percent, by weight, of CHDM, DEG, NPG, isosorbide or spiro glycol, or some combination of these glycol modifiers. Unlike subject PET resin, PET-glycol resins are amorphous resins that are not solid-stated and cannot be crystallized or recycled.

    The merchandise subject to this investigation is properly classified under subheadings 3907.61.0000 and 3907.69.0000 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise covered by this investigation is dispositive.

    Appendix II List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Period of Investigation IV. Postponement of Final Determination and Extension of Provisional Measures V. Scope Comments VI. Affiliation and Collapsing VII. Application of Facts Available and Use of Adverse Inferences VIII. Discussion of the Methodology A. Comparisons to Fair Value 1. Determination of Comparison Method 2. Results of the Differential Pricing Analysis IX. Date of Sale X. Product Comparisons XI. Export Price and Constructed Export Price XII. Normal Value A. Home Market Viability B. Affiliated-Party Transactions and Arm's-Length Test C. Level of Trade D. Calculation of NV Based on Comparison Market Prices E. Calculation of NV Based on Constructed Value (CV) F. Cost of Production (COP) Analysis 1. Calculation of COP 2. Test of Comparison Market Sales Prices 3. Results of the COP Test XIII. Currency Conversion XIV. Verification XV. Conclusion
    [FR Doc. 2018-09510 Filed 5-3-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration Proposed Information Collection; Comment Request; Surveys for User Satisfaction, Impact and Needs; Correction AGENCY:

    International Trade Administration, Commerce.

    ACTION:

    Notice; correction.

    SUMMARY:

    The International Trade Administration (ITA) published a document in the Federal Register on May 1, 2018, concerning a request to solicit clients' opinions about the use of ITA products, services, and trade events, to promote optimal use and provide focused and effective improvements to ITA programs. The document was a duplicate submission of an identical notice published in the Federal Register on February 28, 2018 (83 FR 8651). This notice corrects the duplicate submission by withdrawing the notice published on May 1, 2018.

    DATES:

    Document 2018-09119, that published May 1, 2018 at 83 FR 19047, is withdrawn as of May 1, 2018.

    ADDRESSES:

    We will continue to accept public comments for the original Federal Register published on February 28, 2018 (83 FR 8651) that are submitted on or before April 30, 2018 by the following method:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Joe Carter—Office of Strategic Planning, 1999 Broadway—Suite 2205, Denver, CO 80220, (303) 844-5656, [email protected]

    SUPPLEMENTARY INFORMATION:

    Correction

    The Federal Register published May 1, 2018, in FR Doc. 2018-09119, document citation 83 FR 19047 on page 19047, is a duplicate submission that is being withdrawn.

    All comments received are a part of the public record and will generally be posted for public viewing on www.regulations.gov without change. All personal identifying information (e.g., name, address, etc.), confidential business information, or otherwise sensitive information submitted voluntarily by the sender will be publicly accessible. We will accept anonymous comments (enter “N/A” in the required fields if you wish to remain anonymous).

    Sheleen Dumas, Departmental Lead PRA Officer, Office of the Chief Information Officer.
    [FR Doc. 2018-09500 Filed 5-3-18; 8:45 am] BILLING CODE 3510-FP-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-580-896] Polyethylene Terephthalate Resin From the Republic of Korea: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional Measures AGENCY:

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

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines that polyethylene terephthalate resin (PET resin) from the Republic of Korea (Korea) is being, or is likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is July 1, 2016, through June 30, 2017.

    DATES:

    Applicable May 4, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Sean Carey, 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) 482-3964.

    SUPPLEMENTARY INFORMATION:

    Background

    This preliminary determination is made in accordance with section 733(b) of the Tariff Act of 1930, as amended (the Act). Commerce published the notice of initiation of this investigation on October 23, 2017.1 Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018. On February 22, 2018, Commerce postponed the preliminary determination of this investigation.2 The revised deadline for the preliminary determination of this investigation is now April 27, 2018.3

    1See Polyethylene Terephthalate Resin from Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan: Initiation of Less-Than-Fair-Value Investigations, 82 FR 48977 (October 23, 2017) (Initiation Notice).

    2See Polyethylene Terephthalate from Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan: Postponement of Preliminary Determinations of Antidumping Duty Investigations, 83 FR 7655 (February 22, 2018).

    3See Memorandum, “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.

    For a complete description of the events that followed the initiation of this investigation, see the Preliminary Decision Memorandum.4 A list of topics included in the Preliminary Decision Memorandum is included as Appendix II to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://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 Preliminary Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/. The signed and the electronic versions of the Preliminary Decision Memorandum are identical in content.

    4See Memorandum, “Decision Memorandum for the Preliminary Determination in the Less-Than-Fair-Value Investigation of Polyethylene Terephthalate Resin from the Republic of Korea” dated concurrently with, and hereby adopted by, this notice (Preliminary Decision Memorandum).

    Scope of the Investigation

    The merchandise covered by this investigation is PET resin from Korea. For a complete description of the scope of this investigation, see Appendix I.

    Scope Comments

    In accordance with the preamble to Commerce's regulations,5 the Initiation Notice set aside a period of time for parties to raise issues regarding product coverage (i.e., scope).6 For a summary of the product coverage comments and rebuttal responses submitted to the record for this preliminary determination, and accompanying discussion and analysis of all comments timely received, see the Preliminary Decision Memorandum. After evaluating the comments, Commerce is preliminarily modifying the scope language as it appeared in the Initiation Notice to exclude PET-glycol resin. See the revised scope in Appendix I to this notice.

    5See Antidumping Duties; Countervailing Duties, Final Rule, 62 FR 27296, 27323 (May 19, 1997).

    6See Initiation Notice.

    Methodology

    Commerce is conducting this investigation in accordance with section 731 of the Act. Commerce has calculated export prices in accordance with section 772(a) of the Act. Constructed export prices have been calculated in accordance with section 772(b) of the Act. Normal value (NV) is calculated in accordance with section 773 of the Act. In addition, Commerce has preliminarily relied upon adverse facts available under sections 776(a)(1) and 776(b) of the Act for Lotte Chemical Corp., Regd. (Lotte Chemical) and TK Chemical Corp. (TK Chemical). For a full description of the methodology underlying the preliminary determination, see the Preliminary Decision Memorandum.

    Adverse Facts Available

    Lotte Chemical and TK Chemical were selected as mandatory respondents, but failed to respond to Commerce's questionnaire. Accordingly, we preliminarily determine to base Lotte Chemical's and TK Chemical's dumping margins on adverse facts available (AFA), in accordance with sections 776(a) and (b) of the Act and 19 CFR 351.308. As AFA, we applied the highest dumping margin calculated for Korean exports of subject merchandise contained in the petition,7 101.41 percent. For further discussion, see the Preliminary Decision Memorandum.

    7See Polyethylene Terephthalate Resin from Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan: Initiation of Less-Than-Fair-Value Investigations, 82 FR 48977 (October 23, 2017).

    All-Others Rate

    Sections 733(d)(1)(ii) and 735(c)(5)(A) of the Act provide that in the preliminary determination Commerce shall determine an estimated all-others rate for all exporters and producers not individually examined. This rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and de minimis margins, and any margins determined entirely under section 776 of the Act. Commerce calculated an individual estimated weighted-average dumping margin for SK Chemicals Co., Ltd., (SK Chemicals), the only cooperative individually examined exporter/producer in this investigation with shipments of subject merchandise during the POI. Because the only individually calculated dumping margin is not zero, de minimis, or based entirely on facts otherwise available, the estimated weighted-average dumping margin calculated for SK Chemicals is the margin assigned to all-other producers and exporters, pursuant to section 735(c)(5)(A) of the Act.

    Preliminary Determination

    Commerce preliminarily determines that the following estimated weighted-average dumping margins exist:

    Exporter/producer Estimated weighted-average dumping margin
  • (percent)
  • SK Chemicals Co., Ltd 8.81 Lotte Chemical Corp., Regd 101.41 TK Chemical Corp 101.41 All-Others 8.81
    Suspension of Liquidation

    In accordance with section 733(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise, as described in Appendix I, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the Federal Register.

    Section 733(e)(2) of the Act provides that, given an affirmative determination of critical circumstances, any suspension of liquidation shall apply to unliquidated entries of merchandise entered, or withdrawn from warehouse, for consumption on or after the later of (a) the date which is 90 days before the date on which the suspension of liquidation was first ordered, or (b) the date on which notice of initiation of the investigation was published. On April 20, 2018, Commerce preliminarily determined that critical circumstances exist for imports of PET resin from Korea produced and exported by Lotte Chemical, TK Chemical, and all other producers/exporters.8 Accordingly, for Lotte Chemical, TK Chemical, and all other producers/exporters, in accordance with section 733(e)(2)(A) of the Act, the suspension of liquidation shall apply to unliquidated entries of merchandise entered, or withdrawn from warehouse, for consumption on or after the date which is 90 days before the publication of this notice.

    8See Antidumping Duty Investigations on Polyethylene Terephthalate Resin from Indonesia, the Republic of Korea, and Taiwan; Preliminary Determinations of Critical Circumstances, 83 FR 17791 (April 24, 2018).

    Further, pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), Commerce will instruct CBP to require a cash deposit equal to the estimated weighted-average dumping margin or the estimated all-others rate, as follows: (1) The cash deposit rate for the respondents listed above will be equal to the company-specific estimated weighted-average dumping margins determined in this preliminary determination; (2) if the exporter is not a respondent identified above, but the producer is, then the cash deposit rate will be equal to the company-specific estimated weighted-average dumping margin established for that producer of the subject merchandise; and (3) the cash deposit rate for all other producers and exporters will be equal to the all-others estimated weighted-average dumping margin.

    Disclosure

    Commerce intends to disclose its calculations and analysis performed to interested parties in this preliminary determination within five days of any public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).

    Verification

    As provided in section 782(i)(1) of the Act, Commerce intends to verify the information relied upon in making its final determination.

    Public Comment

    Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last verification report is issued in this investigation. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.9 Pursuant to 19 CFR 351.309(c)(2) and (d)(2), parties who submit case briefs or rebuttal briefs in this investigation are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.

    9See 19 CFR 351.309; see also 19 CFR 351.303 (for general filing requirements).

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.

    Postponement of Final Determination and Extension of Provisional Measures

    Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. Section 351.210(e)(2) of Commerce's regulations requires that a request by exporters for postponement of the final determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.

    On April 11, 2018, pursuant to 19 CFR 351.210(e), SK Chemicals requested that Commerce postpone the final determination and that provisional measures be extended to a period not to exceed six months.10 The petitioners 11 filed the same request on April 12, 2018.12 In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii), because: (1) The preliminary determination is affirmative; (2) the requesting exporter accounts for a significant proportion of exports of the subject merchandise; and (3) no compelling reasons for denial exist, Commerce is postponing the final determination and extending the provisional measures from a four-month period to a period not greater than six months. Accordingly, Commerce will make its final determination no later than 135 days after the date of publication of this preliminary determination.

    10See Letter from SK Chemicals, “Polyethylene Terephthalate Resin from the Republic of Korea: Request for Postponement of Final Determination and Extension of Provisional Measures,” dated April 11, 2018.

    11 The petitioners are DAK Americas LLC, Indorama Ventures USA, Inc., M&G Polymers USA, LLC, and Nan Ya Plastics Corporation, America.

    12See Letter from the petitioners, “Polyethylene Terephthalate Resin from Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan—Request to Extend the Antidumping Duty Final Determination,” dated April 12, 2018.

    International Trade Commission Notification

    In accordance with section 733(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its preliminary determination. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.

    Notification to Interested Parties

    This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).

    Dated: April 27, 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. Appendix I Scope of the Investigation

    The merchandise covered by this investigation is polyethylene terephthalate (PET) resin having an intrinsic viscosity of at least 70, but not more than 88, milliliters per gram (0.70 to 0.88 deciliters per gram). The scope includes blends of virgin PET resin and recycled PET resin containing 50 percent or more virgin PET resin content by weight, provided such blends meet the intrinsic viscosity requirements above. The scope includes all PET resin meeting the above specifications regardless of additives introduced in the manufacturing process.

    The scope excludes PET-glycol resin, also referred to as PETG. PET-glycol resins are manufactured by replacing a portion of the raw material input monoethylene glycol (MEG) with one of five glycol modifiers: Cyclohexanedimethanol (CHDM), diethylene glycol (DEG), neopentyl glycol (NPG), isosorbide, or spiro glycol. Specifically, excluded PET-glycol resins must contain a minimum of 10 percent, by weight, of CHDM, DEG, NPG, isosorbide or spiro glycol, or some combination of these glycol modifiers. Unlike subject PET resin, PET-glycol resins are amorphous resins that are not solid-stated and cannot be crystallized or recycled.

    The merchandise subject to this investigation is properly classified under subheadings 3907.61.0000 and 3907.69.0000 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise covered by this investigation is dispositive.

    Appendix II List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Period of Investigation IV. Postponement of Final Determination and Extension of Provisional Measures V. Scope Comments VI. Discussion of the Methodology A. Application of Adverse Facts Available (AFA) B. Corroboration of Secondary Information C. All-Others Rate D. Comparisons to Fair Value 1. Determination of the Comparison Method 2. Results of the Differential Pricing Analysis VII. Date of Sale VIII. Product Comparisons IX. Export Price and Constructed Export Price X. Normal Value A. Home Market Viability B. Affiliated-Party Transactions and Arm's-Length Test C. Level of Trade D. Calculation of NV Based on Comparison Market Prices E. Calculation of NV Based on Constructed Value (CV) F. Cost of Production (COP) Analysis 1. Calculation of COP 2. Test of Comparison Market Sales Prices 3. Results of the COP Test XI. Currency Conversion XII. Verification XIII. Conclusion
    [FR Doc. 2018-09521 Filed 5-3-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-583-862] Polyethylene Terephthalate Resin From Taiwan: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional Measures AGENCY:

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

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines that polyethylene terephthalate resin (PET resin) from Taiwan is being, or is likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is July 1, 2016, through June 30, 2017.

    DATES:

    Applicable May 4, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Jun Jack Zhao or Alexander Cipolla, 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) 482-1396 or (202) 482-4956, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    This preliminary determination is made in accordance with section 733(b) of the Tariff Act of 1930, as amended (the Act). Commerce published the notice of initiation of this investigation on October 23, 2017.1 On January 23, 2018, Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20, 2018, through January 22, 2018.2 On February 22, 2018, Commerce postponed the preliminary determination of this investigation.3 As a result, the revised deadline for the preliminary determination of this investigation is now April 27, 2018.

    1See Polyethylene Terephthalate Resin from Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan: Initiation of Less-Than-Fair-Value Investigations, 82 FR 48977 (October 23, 2017) (Initiation Notice).

    2See Memorandum, “Deadlines Affected by the Shutdown of the Federal Government,” dated January 23, 2018.

    3See Polyethylene Terephthalate from Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan: Postponement of Preliminary Determinations of Antidumping Duty Investigations, 83 FR 7655 (February 22, 2018).

    For a complete description of the events that followed the initiation of this investigation, see the Preliminary Decision Memorandum.4 A list of topics included in the Preliminary Decision Memorandum is included as Appendix II to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://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 Preliminary Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/. The signed and the electronic versions of the Preliminary Decision Memorandum are identical in content.

    4See Memorandum, “Decision Memorandum for the Preliminary Determination in the Less-Than-Fair-Value Investigation of Polyethylene Terephthalate Resin from Taiwan” dated concurrently with, and hereby adopted by, this notice (Preliminary Decision Memorandum).

    Scope of the Investigation

    The product covered by this investigation is PET resin from Taiwan. For a complete description of the scope of this investigation, see Appendix I.

    Scope Comments

    In accordance with the preamble to Commerce's regulations,5 the Initiation Notice set aside a period of time for parties to raise issues regarding product coverage (i.e., scope).6 For a summary of the product coverage comments and rebuttal responses submitted to the record for this preliminary determination, and accompanying discussion and analysis of all comments timely received, see the Preliminary Decision Memorandum. After evaluating the comments, Commerce is preliminarily modifying the scope language as it appeared in the Initiation Notice to exclude PET-glycol resin. See the revised scope in Appendix I to this notice.

    5See Antidumping Duties; Countervailing Duties, Final Rule, 62 FR 27296, 27323 (May 19, 1997).

    6See Initiation Notice.

    Methodology

    Commerce is conducting this investigation in accordance with section 731 of the Act. Commerce has calculated export prices in accordance with section 772(a) of the Act. Constructed export prices also have been calculated in accordance with section 772(b) of the Act. Normal value (NV) is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying the preliminary determination, see the Preliminary Decision Memorandum.

    All-Others Rate

    Sections 733(d)(1)(ii) and 735(c)(5)(A) of the Act provide that in the preliminary determination Commerce shall determine an estimated all-others rate for all exporters and producers not individually examined. This rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and de minimis margins, and any margins determined entirely under section 776 of the Act. In this investigation, Commerce calculated estimated weighted-average dumping margins for Far Eastern New Century Corporation and Shinkong Synthetic Fibers Corporation that are not zero, de minimis, or based entirely on facts otherwise available. Commerce calculated the all-others' rate using a weighted average of the estimated weighted-average dumping margins calculated for the examined respondents using each company's publicly-ranged values for the merchandise under consideration.7

    7 With two respondents under examination, Commerce normally calculates (A) a weighted-average of the estimated weighted-average dumping margins calculated for the examined respondents; (B) a simple average of the estimated weighted-average dumping margins calculated for the examined respondents; and (C) a weighted-average of the estimated weighted-average dumping margins calculated for the examined respondents using each company's publicly-ranged U.S. sale quantities for the merchandise under consideration. Commerce then compares (B) and (C) to (A) and selects the rate closest to (A) as the most appropriate rate for all other producers and exporters. See Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, and the United Kingdom: Final Results of Antidumping Duty Administrative Reviews, Final Results of Changed-Circumstances Review, and Revocation of an Order in Part, 75 FR 53661, 53663 (September 1, 2010). As complete publicly ranged sales data was available, Commerce based the all-others rate on the publicly ranged sales data of the mandatory respondents. For a complete analysis of the data, please see the All-Others' Rate Calculation Memorandum.

    Preliminary Determination

    Commerce preliminarily determines that the following estimated weighted-average dumping margins exist:

    Exporter/Producer Estimated weighted-average dumping margin
  • (percent)
  • Far Eastern New Century Corporation, Far Eastern Textile Ltd., and Worldwide Polychem (HK), Ltd. (collectively, Far Eastern) 8 11.89 Shinkong Synthetic Fibers Corporation 9.02 All-Others 10.99
    Suspension of Liquidation

    8 Commerce preliminarily determines that Far Eastern New Century Corporation and Worldwide Polychem (HK) Limited are a single entity, and Far Eastern New Century Corporation to be the successor-in-interest of Far Eastern Textile Ltd. See Preliminary Decision Memorandum.

    In accordance with section 733(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise, as described in Appendix I, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the Federal Register.

    Section 733(e)(2) of the Act provides that, given an affirmative determination of critical circumstances, any suspension of liquidation shall apply to unliquidated entries of merchandise entered, or withdrawn from warehouse, for consumption on or after the later of (a) the date which is 90 days before the date on which the suspension of liquidation was first ordered, or (b) the date on which notice of initiation of the investigation was published. On April 20, 2018, Commerce preliminarily determined that critical circumstances exist for imports of PET resin from Taiwan produced or exported by Far Eastern and all other producers/exporters.9 Accordingly, for Far Eastern and all other producers/exporters, in accordance with section 733(e)(2)(A) of the Act, the suspension of liquidation shall apply to unliquidated entries of subject merchandise entered, or withdrawn from warehouse, for consumption on or after the date which is 90 days before the publication of this notice.

    9See Antidumping Duty Investigations on Polyethylene Terephthalate Resin from Indonesia, the Republic of Korea, and Taiwan; Preliminary Determinations of Critical Circumstances, 83 FR 17791 (April 24, 2018).

    Further, pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), Commerce will instruct CBP to require a cash deposit equal to the estimated weighted-average dumping margin or the estimated all-others rate, as follows: (1) The cash deposit rate for the respondents listed above will be equal to the company-specific estimated weighted-average dumping margins determined in this preliminary determination; (2) if the exporter is not a respondent identified above, but the producer is, then the cash deposit rate will be equal to the company-specific estimated weighted-average dumping margin established for that producer of the subject merchandise; and (3) the cash deposit rate for all other producers and exporters will be equal to the all-others estimated weighted-average dumping margin.

    Disclosure

    Commerce intends to disclose its calculations and analysis performed to interested parties in this preliminary determination within five days of any public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).

    Verification

    As provided in section 782(i)(1) of the Act, Commerce intends to verify the information relied upon in making its final determination.

    Public Comment

    Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last verification report is issued in this investigation. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.10 Pursuant to 19 CFR 351.309(c)(2) and (d)(2), parties who submit case briefs or rebuttal briefs in this investigation are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.

    10See 19 CFR 351.309; see also 19 CFR 351.303 (for general filing requirements).

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.

    Postponement of Final Determination and Extension of Provisional Measures

    Section 735(a)(2) of the Act provides that a final determination may be postponed until no later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioners. Section 351.210(e)(2) of Commerce's regulations requires that a request by exporters for postponement of the final determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.

    On April 12, and April 17, 2018, pursuant to 19 CFR 351.210(e), Shinkong and Far Eastern requested that Commerce postpone the final determination and that provisional measures be extended to a period not to exceed six months.11 On April 12, 2018, the petitioners also requested that Commerce postpone the final determination.12 In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii), because: (1) The preliminary determination is affirmative; (2) the requesting exporters account for a significant proportion of exports of the subject merchandise; and (3) no compelling reasons for denial exist, Commerce is postponing the final determination and extending the provisional measures from a four-month period to a period not greater than six months. Accordingly, Commerce will make its final determination no later than 135 days after the date of publication of this preliminary determination.

    11See Letter from Shinkong, “Polyethylene Terephthalate (PET) Resin from Taiwan; Request to Extend Final Determination,” dated April 12, 2018; and Letter from Far Eastern, “Respondent Name(s), Investigation of Polyethylene Terephthalate Resin from Taiwan—Request for the Department's Final Determination Extension of Deadline,” dated April 17, 2018.

    12See Letter from the petitioners, “Polyethylene Terephthalate Resin from Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan—Petitioners' Request to Extend the Antidumping Duty Determinations,” dated April 12, 2018.

    International Trade Commission Notification

    In accordance with section 733(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its preliminary determination. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.

    Notification to Interested Parties

    This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).

    Dated: April 27, 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. Appendix I Scope of the Investigation

    The merchandise covered by this investigation is polyethylene terephthalate (PET) resin having an intrinsic viscosity of at least 70, but not more than 88, milliliters per gram (0.70 to 0.88 deciliters per gram). The scope includes blends of virgin PET resin and recycled PET resin containing 50 percent or more virgin PET resin content by weight, provided such blends meet the intrinsic viscosity requirements above. The scope includes all PET resin meeting the above specifications regardless of additives introduced in the manufacturing process.

    The scope excludes PET-glycol resin, also referred to as PETG. PET-glycol resins are manufactured by replacing a portion of the raw material input monoethylene glycol (MEG) with one of five glycol modifiers: Cyclohexanedimethanol (CHDM), diethylene glycol (DEG), neopentyl glycol (NPG), isosorbide, or spiro glycol. Specifically, excluded PET-glycol resins must contain a minimum of 10 percent, by weight, of CHDM, DEG, NPG, isosorbide or spiro glycol, or some combination of these glycol modifiers. Unlike subject PET resin, PET-glycol resins are amorphous resins that are not solid-stated and cannot be crystallized or recycled.

    The merchandise subject to this investigation is properly classified under subheadings 3907.61.0000 and 3907.69.0000 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise covered by this investigation is dispositive.

    Appendix II List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Period of Investigation IV. Postponement of Final Determination and Extension of Provisional Measures V. Scope Comments VI. Affiliation and Collapsing VII. Discussion of the Methodology A. Comparison to Fair Value B. Results of the Differential Pricing Analysis VIII. Product Comparisons IX. Date of Sale X. Export Price and Constructed Export Price XI. Normal Value A. Home Market Viability B. Affiliated-Party Transactions and Arm's-Length Test C. Level of Trade D. Cost of Production (COP) Analysis 1. Calculation of COP 2. Test of Comparison Market Sales Prices 3. Results of the COP Test D. Calculation of NV Based on Comparison Market Prices XII. Currency Conversion XIII. Verification XIV. Conclusion
    [FR Doc. 2018-09515 Filed 5-3-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-351-852] Polyethylene Terephthalate Resin From Brazil: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional Measures AGENCY:

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

    SUMMARY:

    The Department of Commerce (Commerce) preliminarily determines that polyethylene terephthalate resin (PET resin) from Brazil is being, or is likely to be, sold in the United States at less than fair value (LTFV). The period of investigation (POI) is July 1, 2016, through June 30, 2017.

    DATES:

    Applicable May 4, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Elfi Blum-Page or Kathryn Wallace, 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) 482-0197 or (202) 482-6251, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    This preliminary determination is made in accordance with section 733(b) of the Tariff Act of 1930, as amended (the Act). Commerce published the notice of initiation of this investigation on October 23, 2017.1 On February 22, 2018, Commerce postponed the preliminary determination of this investigation.2 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 preliminary determination of this investigation is now April 27, 2018.3

    1See Polyethylene Terephthalate Resin from Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan: Initiation of Less-Than-Fair-Value Investigations, 82 FR 48977 (October 23, 2017) (Initiation Notice).

    2See Polyethylene Terephthalate from Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan: Postponement of Preliminary Determinations of Antidumping Duty Investigations, 83 FR 7655 (February 22, 2018).

    3See Memorandum, “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.

    For a complete description of the events that followed the initiation of this investigation, see the Preliminary Decision Memorandum.4 A list of topics included in the Preliminary Decision Memorandum is included as Appendix II to this notice. The Preliminary Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://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 Preliminary Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/. The signed and the electronic versions of the Preliminary Decision Memorandum are identical in content.

    4See Memorandum, “Decision Memorandum for the Preliminary Determination in the Less-Than-Fair-Value Investigation of Polyethylene Terephthalate Resin from Brazil” dated concurrently with, and hereby adopted by, this notice (Preliminary Decision Memorandum).

    Scope of the Investigation

    The merchandise covered by this investigation is PET resin from Brazil. For a complete description of the scope of this investigation, see Appendix I.

    Scope Comments

    In accordance with the preamble to Commerce's regulations,5 the Initiation Notice set aside a period of time for parties to raise issues regarding product coverage (i.e., scope).6 For a summary of the product coverage comments and rebuttal responses submitted to the record for this preliminary determination, and accompanying discussion and analysis of all comments timely received, see the Preliminary Decision Memorandum. After evaluating the comments, Commerce is preliminarily modifying the scope language as it appeared in the Initiation Notice to exclude PET-glycol resin. See the revised scope in Appendix I to this notice.

    5See Antidumping Duties; Countervailing Duties, Final Rule, 62 FR 27296, 27323 (May 19, 1997).

    6See Initiation Notice.

    Methodology

    Commerce is conducting this investigation in accordance with section 731 of the Act. Commerce has calculated export prices in accordance with section 772(a) of the Act. Constructed export prices have been calculated in accordance with section 772(b) of the Act. Normal value (NV) is calculated in accordance with section 773 of the Act. For a full description of the methodology underlying the preliminary determination, see the Preliminary Decision Memorandum.

    All-Others Rate

    Sections 733(d)(1)(ii) and 735(c)(5)(A) of the Act provide that in the preliminary determination Commerce shall determine an estimated all-others rate for all exporters and producers not individually examined. This rate shall be an amount equal to the weighted average of the estimated weighted-average dumping margins established for exporters and producers individually investigated, excluding any zero and de minimis margins, and any margins determined entirely under section 776 of the Act.

    In this investigation, Commerce calculated estimated weighted-average dumping margins for Textil de Pernambuco and MGP Brasil that are not zero, de minimis, or based entirely on facts otherwise available. Commerce calculated the all-others' rate using a weighted average of the estimated weighted-average dumping margins calculated for the examined respondents using each company's publicly-ranged values for the merchandise under consideration.7

    7 With two respondents under examination, Commerce normally calculates (A) a weighted-average of the estimated weighted-average dumping margins calculated for the examined respondents; (B) a simple average of the estimated weighted-average dumping margins calculated for the examined respondents; and (C) a weighted-average of the estimated weighted-average dumping margins calculated for the examined respondents using each company's publicly-ranged U.S. sale quantities for the merchandise under consideration. Commerce then compares (B) and (C) to (A) and selects the rate closest to (A) as the most appropriate rate for all other producers and exporters. See Ball Bearings and Parts Thereof from France, Germany, Italy, Japan, and the United Kingdom: Final Results of Antidumping Duty Administrative Reviews, Final Results of Changed-Circumstances Review, and Revocation of an Order in Part, 75 FR 53661, 53663 (September 1, 2010). As complete publicly ranged sales data was available, Commerce based the all-others rate on the publicly ranged sales data of the mandatory respondents. For a complete analysis of the data, please see the All-Others' Rate Calculation Memorandum.

    Preliminary Determination

    Commerce preliminarily determines that the following estimated weighted-average dumping margins exist:

    Exporter/producer Estimated
  • weighted-average
  • dumping
  • margin
  • (percent)
  • Companhia Integrada Textil de Pernambuco 226.91 M&G Polimeros Brasil, S.A 24.09 All-Others 93.60
    Suspension of Liquidation

    In accordance with section 733(d)(2) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of entries of subject merchandise, as described in Appendix I, entered, or withdrawn from warehouse, for consumption on or after the date of publication of this notice in the Federal Register. Further, pursuant to section 733(d)(1)(B) of the Act and 19 CFR 351.205(d), Commerce will instruct CBP to require a cash deposit equal to the estimated weighted-average dumping margin or the estimated all-others rate, as follows: (1) The cash deposit rate for the respondents listed above will be equal to the company-specific estimated weighted-average dumping margins determined in this preliminary determination; (2) if the exporter is not a respondent identified above, but the producer is, then the cash deposit rate will be equal to the company-specific estimated weighted-average dumping margin established for that producer of the subject merchandise; and (3) the cash deposit rate for all other producers and exporters will be equal to the all-others estimated weighted-average dumping margin.

    Disclosure

    Commerce intends to disclose its calculations and analysis performed to interested parties in this preliminary determination within five days of any public announcement or, if there is no public announcement, within five days of the date of publication of this notice in accordance with 19 CFR 351.224(b).

    Verification

    As provided in section 782(i)(1) of the Act, Commerce intends to verify the information relied upon in making its final determination.

    Public Comment

    Case briefs or other written comments may be submitted to the Assistant Secretary for Enforcement and Compliance no later than seven days after the date on which the last verification report is issued in this investigation. Rebuttal briefs, limited to issues raised in case briefs, may be submitted no later than five days after the deadline date for case briefs.8 Pursuant to 19 CFR 351.309(c)(2) and (d)(2), parties who submit case briefs or rebuttal briefs in this investigation are encouraged to submit with each argument: (1) A statement of the issue; (2) a brief summary of the argument; and (3) a table of authorities.

    8See 19 CFR 351.309; see also 19 CFR 351.303 (for general filing requirements).

    Pursuant to 19 CFR 351.310(c), interested parties who wish to request a hearing, limited to issues raised in the case and rebuttal briefs, must submit a written request to the Assistant Secretary for Enforcement and Compliance, U.S. Department of Commerce, within 30 days after the date of publication of this notice. Requests should contain the party's name, address, and telephone number, the number of participants, whether any participant is a foreign national, and a list of the issues to be discussed. If a request for a hearing is made, Commerce intends to hold the hearing at the U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230, at a time and date to be determined. Parties should confirm by telephone the date, time, and location of the hearing two days before the scheduled date.

    Postponement of Final Determination and Extension of Provisional Measures

    Section 735(a)(2) of the Act provides that a final determination may be postponed until not later than 135 days after the date of the publication of the preliminary determination if, in the event of an affirmative preliminary determination, a request for such postponement is made by exporters who account for a significant proportion of exports of the subject merchandise, or in the event of a negative preliminary determination, a request for such postponement is made by the petitioner. Section 351.210(e)(2) of Commerce's regulations requires that a request by exporters for postponement of the final determination be accompanied by a request for extension of provisional measures from a four-month period to a period not more than six months in duration.

    On March 29, 2018, pursuant to 19 CFR 351.210(e), Textil de Pernambuco requested that Commerce postpone the final determination and that provisional measures be extended to a period not to exceed six months.9 On April 12, 2018, the petitioners also requested that Commerce postpone the final determination.10 In accordance with section 735(a)(2)(A) of the Act and 19 CFR 351.210(b)(2)(ii), because: (1) The preliminary determination is affirmative; (2) the requesting exporter accounts for a significant proportion of exports of the subject merchandise; and (3) no compelling reasons for denial exist, Commerce is postponing the final determination and extending the provisional measures from a four-month period to a period not greater than six months. Accordingly, Commerce will make its final determination no later than 135 days after the date of publication of this preliminary determination.

    9See Textil de Pernambuco's Letter, “Antidumping Duty Investigation of Polyethylene Terephthalate (PET) Resin from Brazil: Thailand: Request for Postponement of Final Determination and Provisional Measures Period,” dated March 29, 2018.

    10See also Petitioners' Letter, “Polyethylene Terephthalate (“PET”) Resin from Brazil, Indonesia, the Republic of Korea, Pakistan, and Taiwan—Petitioners' Request to Extend the Antidumping Duty Final Determinations,” dated April 12, 2018.

    International Trade Commission Notification

    In accordance with section 733(f) of the Act, Commerce will notify the International Trade Commission (ITC) of its preliminary determination. If the final determination is affirmative, the ITC will determine before the later of 120 days after the date of this preliminary determination or 45 days after the final determination whether these imports are materially injuring, or threaten material injury to, the U.S. industry.

    Notification to Interested Parties

    This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.205(c).

    Dated: April 27, 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. Appendix I Scope of the Investigation

    The merchandise covered by this investigation is polyethylene terephthalate (PET) resin having an intrinsic viscosity of at least 70, but not more than 88, milliliters per gram (0.70 to 0.88 deciliters per gram). The scope includes blends of virgin PET resin and recycled PET resin containing 50 percent or more virgin PET resin content by weight, provided such blends meet the intrinsic viscosity requirements above. The scope includes all PET resin meeting the above specifications regardless of additives introduced in the manufacturing process.

    The scope excludes PET-glycol resin, also referred to as PETG. PET-glycol resins are manufactured by replacing a portion of the raw material input monoethylene glycol (MEG) with one of five glycol modifiers: Cyclohexanedimethanol (CHDM), diethylene glycol (DEG), neopentyl glycol (NPG), isosorbide, or spiro glycol. Specifically, excluded PET-glycol resins must contain a minimum of 10 percent, by weight, of CHDM, DEG, NPG, isosorbide or spiro glycol, or some combination of these glycol modifiers. Unlike subject PET resin, PET-glycol resins are amorphous resins that are not solid-stated and cannot be crystallized or recycled.

    The merchandise subject to this investigation is properly classified under subheadings 3907.61.0000 and 3907.69.0000 of the Harmonized Tariff Schedule of the United States (HTSUS). Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise covered by this investigation is dispositive.

    Appendix II List of Topics Discussed in the Preliminary Decision Memorandum I. Summary II. Background III. Period of Investigation IV. Postponement of Final Determination and Extension of Provisional Measures V. Scope Comments VI. Affiliation VII. Discussion of the Methodology A. Determination of the Comparison Method B. Results of the Differential Pricing Analysis VIII. Date of Sale IX. Product Comparisons X. Export Price and Constructed Export Price XI. Duty Drawback A. Duty Exemption Drawback B. Duty Suspension Drawback XII. Normal Value A. Sample Sales B. Home Market Viability C. Affiliated-Party Transactions and Arm's-Length Test D. Level of Trade E. Calculation of NV Based on Comparison Market Prices F. Calculation of NV Based on Constructed Value (CV) G. Cost of Production (COP) Analysis XIII. Currency Conversion XIV. Verification XV. Conclusion
    [FR Doc. 2018-09516 Filed 5-3-18; 8:45 am] BILLING CODE 3510-DS-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: National Institute of Standards and Technology (NIST).

    Title: NIST Generic Request for Customer Service-Related Data Collections.

    OMB Control Number: 0693-0031.

    Form Number(s): None.

    Type of Request: Revision of an approved request.

    Number of Respondents: 120,000.

    Average Hours per Response: Less than 2 minutes for a response card; 2 hours for focus group participation. The average estimated response time is expected to be 10 minutes.

    Burden Hours: 15,000.

    Needs and Uses: NIST conducts surveys, focus groups, and other customer satisfaction/service data collections. The collected information is needed and will be used to determine the kind and the quality of products, services, and information our key customers want and expect, as well as their satisfaction with and awareness or existing products, services, and information.

    Affected Public: Business or other for-profit organizations, individuals or households, not-for-profit institutions.

    Frequency: On occasion.

    Respondent's Obligation: Voluntary, providing the requested information is necessary to obtain accurate information regarding customer satisfaction with NIST products, services and information.

    This information collection request may be viewed at reginfo.gov. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected] or fax to (202) 395-5806.

    Sheleen Dumas, Departmental Lead PRA Officer, Office of the Chief Information Officer.
    [FR Doc. 2018-09536 Filed 5-3-18; 8:45 am] BILLING CODE 3510-13-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF800 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Confined Blasting Operations in the East Channel by the U.S. Army Corps of Engineers During the Tampa Harbor Big Bend Channel Expansion Project in Tampa Harbor, Tampa, Florida AGENCY:

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

    ACTION:

    Notice; issuance of Incidental Harassment Authorization (IHA).

    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. Army Corps of Engineers, Jacksonville District, (USACE) for authorization to take one species of marine mammal incidental to confined blasting in the East Channel of the Big Bend Channel in Tampa Harbor, Tampa, Florida.

    DATES:

    The IHA will be valid from April 1, 2019 through March 31, 2020.

    FOR FURTHER INFORMATION CONTACT:

    Dale Youngkin, 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: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-construction-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 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. 16 U.S.C. 1362(13).

    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). 16 U.S.C. 1362(18)(A).

    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 adopted the USACE's Supplemental Environmental Assessment (EA) (August, 2017). After independent evaluation of the document and review of comments submitted in response to the proposed IHA notice, NMFS has concluded that the USACE's EA includes adequate information analyzing the effects on the human environment of issuing the IHA and issued our ow Finding of No Significant Impact (FONSI). NMFS' FONSI is available for review on our website at http://www.nmfs.noaa.gov/pr/permits/incidental/construction.htm.

    Summary of Request

    On August 8, 2017, NMFS received a request from USACE for an IHA to take marine mammals incidental to confined blasting within the East Channel of the Tampa Harbor Big Bend Channel Expansion Project in Tampa, Florida. USACE's request is for take of a small number of the Tampa Bay stock of bottlenose dolphins (Tursiops truncatus) by Level B harassment only. Neither USACE nor NMFS expect mortality to result from this activity and, therefore, an IHA is appropriate.

    NMFS previously issued an IHA to USACE for similar work in the Miami Harbor (77 FR 49278, August 15, 2012). However, ultimately, USACE did not perform any confined blasting under that IHA. Prior to that, NMFS issued an IHA to the USACE for similar work in the Miami Harbor Phase II Project in 2005 (70 FR 21174, April 25, 2005) and 2003 (68 FR 32016, May 29, 2003).

    Description of Proposed Activity

    A detailed description of the planned USACE project is provided in the Federal Register notice for the proposed IHA (83 FR 11968; March 19, 2018). Since that time, no changes have been made to the planned activities. Therefore, we provide only a summary here. Please refer to the Federal Register Notice for the full description of the specified activity.

    USACE plans to conduct confined underwater blasting within the East Channel as part of the Tampa Harbor Big Bend Channel Expansion Project in Tampa, FL. The purpose of the confined underwater blasting is to break up rock in the existing East Channel to allow for dredging necessary to widen and deepen the existing channel.

    Due to coordination with the U.S. Fish and Wildlife Service (USFWS) to avoid potential impacts to manatees, the USACE will be restricted to the months of April-October for blasting activities. In addition to the seasonal restriction for blasting activities, the USACE has proposed restricting the number of blasting events to a maximum of 42 events, and the maximum weight of each charge will be 18 kg (40 lbs)/charge, for a total of 725 kg (1,600 lbs) per each blasting event.

    Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see “Proposed Mitigation” and “Proposed Monitoring and Reporting”).

    Comments and Responses

    A notice of NMFS's proposal to issue an IHA to the USACE was published in the Federal Register on March 19, 2018 (83 FR 11968). That notice described the USACE's activity, the marine mammal species that may be affected by the activity, and the anticipated effects on marine mammals. During the 30-day public comment period, NMFS received one comment letter from the Marine Mammal Commission (Commission). The Commission concurred with NMFS' preliminary findings and recommended that NMFS issue the IHA, subject to the inclusion of the proposed mitigation, monitoring, and reporting measures as provided in the notice of the proposed IHA.

    Comment 1: The Commission recommended that NMFS enumerate the number of bottlenose dolphins that could be taken during the planned activities by applying standard rounding rules before summing the numbers of estimated takes across days of activities.

    Response: Calculating predicted take is not an exact science and there are arguments for taking different mathematical approaches in different situations, and for making qualitative adjustments in other situations. NMFS is currently engaged in developing a protocol to guide more consistent take calculation given certain circumstances. We believe, however, that the methodology for this action remains appropriate and the the low likelihood of take in combination with implementation of monitoring and mitigation measures will avoid any take of marine mammals by Level A harassment.

    Comment 2: The Commission recommended several items for NMFS to ensure are incorporated into either the final hydroacoustic monitoring plan or the IHA itself. In addition, the Commission stated these items would likely need to be stipulated by the USACE in its hydroacoustic monitoring contract.

    Response: NMFS coordinated with the USACE in regard to the hydroacoustic monitoring plan. As stated in the MMC comment, USACE has indicated that they would need to have a contractor on board prior to development of the hydroacoustic monitoring plan. USACE agreed to develop the hydroacoustic monitoring plan in coordination with NMFS, and agreed to provide NMFS with a draft plan for review at least 30 days prior to beginning the blasting activities. However, the information provided by the MMC was shared with USACE and NMFS will require this information to be included in hydroacoustic monitoring plan prior to approval of the plan and has incorporated this information into the IHA itself.

    Description of Marine Mammals in the Area of Specified Activities

    A detailed description of the species likely to be affected by the USACE confined blasting 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, are provided in USACE's application and the Federal Register notice for the proposed IHA (83 FR 11968; March 19, 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 the Federal Register notice for these descriptions. Table 1 lists all marine mammal species with potential occurrence in the project area; however, only bottlenose dolphin (Tursiops truncatus) have the potential to be affected by the USACE proposed activities, so other species are not discussed further in this document. Please also refer to additional species information available in the NMFS Atlantic Ocean Stock Assessment Reports (SARs) s at http://nmfs.noaa.gov/pr/sars/region.htm.

    Table 1—Marine Mammals With Potential Occurrence in the Project Area Species Habitat Occurrence in
  • project area
  • Stock population
  • estimate 1
  • ESA
  • status 2
  • MMPA
  • status 3
  • PBR
    Humpback whale (Megaptera novaengliae) Pelagic, nearshore waters and banks Rare 823—Gulf of Maine Stock NL NC 13 Minke whale (Balaenoptera acutorostrata) Coastal, offshore Rare 2,591—Canadian East Coast Stock NL NC 14 Bryde's whale (Balaenoptera brydei) Pelagic and coastal Rare 33—Northern Gulf of Mexico Stock NL S 0.03 Sei whale (Balaenoptera borealis) Primarily offshore, pelagic Rare 357—Nova Scotia Stock EN S 0.5 Fin whale (Balaenoptera physalus) Slope, mostly pelagic Rare 1,618—Western North Atlantic Stock EN S 2.5 Blue whale (Balaenoptera musculus) Pelagic and coastal Rare 440—Western North Atlantic Stock EN S 0.9 Sperm whale (Physeter macrcephalus) Pelagic, deep seas Rare 763—Northern Gulf of Mexico Stock EN S 1.1 Dwarf sperm whale (Kogia sima) Offshore, pelagic Rare 186—Northern Gulf of Mexico Stock NL NC 0.9 Gervais' beaked whale (Mesoplodon europaeus) Pelagic, slope and canyons Rare 149—Northern Gulf of Mexico Stock NL NC 0.8 Sowerby's beaked whale (Mesoplodon bidens) Pelagic, slope and canyons Rare 7,092—Western North Atlantic Stock NL NC 0.8 Blainville's beaked whale (Mesoplodon densirostris) Pelagic, slope and canyons Rare 149—Northern Gulf of Mexico Stock NL NC 0.8 Cuvier's beaked whale (Ziphius cavirostris) Pelagic, slope and canyons Rare 74—Northern Gulf of Mexico Stock NL NC 0.4 Killer whale (Orcinus orca) Widely distributed Rare 28—Northern Gulf of Mexico Stock NL NC 0.1 Short-finned pilot whale (Globicephala macrorhynchus) Inshore and offshore Rare 2,415—Northern Gulf of Mexico Stock NL NC 15 False killer whale (Pseudorca crassidens) Pelagic Rare NA—Northern Gulf of Mexico Stock NL NC Unknown Melon-headed whale (Peponocephala electra) Pelagic Rare 2,335—Northern Gulf of Mexico Stock NL NC 13 Pygmy killer whale (Feresa attenuata) Pelagic Rare 152—Northern Gulf of Mexico Stock NL NC 0.8 Risso's dolphin (Grampus griseus) Pelagic, shelf Rare 2,442—Northern Gulf of Mexico Stock NL NC 16 Common bottlenose dolphin (Tursiops truncatus) Offshore, inshore, coastal, and estuaries Common 564—Tampa Bay Stock 4 NL S Unknown Rough-toothed dolphin (Steno bredanensis) Pelagic Rare 624—Northern Gulf of Mexico Stock NL NC 3 Fraser's dolphin (Lagenodelphis hosei) Shelf and slope Rare NA—Northern Gulf of Mexico Stock NL NC Unknown Striped dolphin (Stenella coeruleoalba) Coastal, shelf and slope Rare 1,849—Northern Gulf of Mexico Stock NL NC 10 Pantropical spotted dolphin (Stenella attenuata) Coastal, shelf and slope Uncommon 50,880—Northern Gulf of Mexico Stock NL NC 407 Atlantic spotted dolphin (Stenella frontalis) Coastal to pelagic Uncommon NA—Northern Gulf of Mexico Stock NL NC Unknown Spinner dolphin (Stenella longirostris) Mostly pelagic Uncommon 11,441—Northern Gulf of Mexico Stock NL NC 62 Clymene dolphin (Stenella clymene) Coastal, shelf and slope Uncommon 129—Northern Gulf of Mexico Stock NL NC 0.6 West Indian manatee (Florida manatee) (Trichechus manatus latirostris) Coastal, rivers, and estuaries Uncommon 6,620—Florida Stock 5 T D 1 NMFS Marine Mammal Stock Assessment Reports (Hayes et al., 2016) unless indicated otherwise. 2 U.S. Endangered Species Act: EN = endangered; T = threatened; NL = not listed. 3 U.S. Marine Mammal Protection Act: D = depleted; S = strategic; NC = not classified. 4 Wells et al., 1995. 5 Florida Fish and Wildlife Conservation Commission Survey Data (USFWS jurisdiction).
    Potential Effects of Specified Activities on Marine Mammals and Their Habitat

    The Federal Register notice for the proposed IHA (83 FR 11968; March 19, 2018) included a discussion of the effects of disturbance on marine mammals and their habitat; therefore, that information is summarized here. Please refer to the proposed IHA Federal Register notice for more detailed information.

    The USACE's proposed confined blasting activities have the potential to take marine mammals by exposing them to impulsive noise and pressure waves generated by detonations of explosives. Exposure to energy, pressure, or direct strike has the potential to result in non-lethal injury (Level A harassment), disturbance (Level B harassment), serious injury, and/or mortality.

    The potential effects of underwater detonations from the proposed confined blasting activities may include one or more of the following: Temporary or permanent hearing impairment, non-auditory physical or physiological effects, behavioral disturbance, and masking (Richardson et al., 1995; Gordon et al., 2004; Nowacek et al., 2007; Southall et al., 2007). However, the effects of noise on marine mammals are highly variable, often depending on species and contextual factors (based on Richardson et al., 1995). Implementation of mitigation and monitoring efforts will avoid mortality, serious injury, and Level A harassment (PTS). Therefore, only Level B harassment (TTS and behavioral harassment) are anticipated due to the USACE confined underwater blasting activities.

    While we anticipate that the specified activity may result in marine mammals avoiding certain areas due to temporary ensonification, this impact to habitat and prey resources would be temporary and reversible. The main impact associated with the proposed activity would be temporarily elevated noise levels and the associated direct effects on marine mammals. Marine mammals are anticipated to temporarily vacate the area of live detonations. However, these events are usually of short duration, and we anticipate that animals will return to the activity area during periods of non-activity. Thus, we do not anticipate that the proposed activity would have any habitat-related effects that could cause significant or long-term consequences for individual marine mammals or their populations.

    Estimated Take

    This section provides an estimate of the number of incidental takes proposed for authorization 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 would be by Level B harassment only, in the form of disruption of behavioral patterns and/or TTS for individual marine mammals resulting from exposure to noise from underwater confined blasting in the East Channel of the Big Bend Channel, Tampa Harbor. Based on the nature of the activity and the anticipated effectiveness of the mitigation measures (i.e., no blasting if marine mammals (or any protected species) are within the East Channel, which encompasses the entirety of the Level A take zone, as 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) Thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment or tissue damage; (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 to identify the pressure levels above which animals may incur different types of tissue damage from exposure to pressure waves from explosive detonation.

    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 the table 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: http://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm.

    Table 2—NMFS' Current Thresholds and Criteria for Impact Analysis From the Use of Explosives for Mid-Frequency Cetaceans Hearing group Species Behavioral TTS PTS GI
  • tract
  • injury
  • Lung injury Mortality
    Mid-frequency cetaceans Most delphinids, medium and large toothed whales 165 dB SELcum 170 dB SELcum; 224 dB PK 185 dB SELcum; 230 dB PK 237 dB 39.1 M1/3 (1 + [DRm/10.081])1 / 2 Pa-sec Where: M = mass of the animals in kg DRm = depth of the receiver (animal) in meters 91.4 M1/3 (1 + [DRm/10.081])1 / 2 Pa-sec Where: M = mass of the animals in kg DRm = depth of the receiver (animal) in meters.

    Explosive sources—Based on the best available science, NMFS uses the acoustic and pressure thresholds indicated in Table 2 above to predict the onset of behavioral harassment, TTS, PTS, tissue damage, and mortality.

    Ensonified Area

    Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds.

    Radii for Level A and Level B harassment were calculated using algorithms specifically developed for confined underwater blasting operations by the NMFS (see Attachment B of the application, which provides more detail and spreadsheet results). The algorithms compute the cumulative sound exposure impact zone due to a pattern of charges. The code calculates the total explosive energy from all charges through a summation of the individual energy emanating from each charge as a function of temporal and spatial separation of charges. Acoustical transmission loss is assumed to occur through cylindrical spreading. The SEL of the first detonation and each subsequent detonation is summed and transmission loss of acoustic energy due to cylindrical spreading is subtracted from the total SEL. Ultimately, the distance where the received level falls to a set SEL is calculated by spherical spreading of the total SEL (refer to section 6 and Attachment B of the IHA application for more information on how this was modeled). However, the proposed blasting would occur within the East Channel, which is open to the Hillsborough Bay on the west side of the channel, but confined by land on the north, east, and south sides of the channel. NMFS and USACE agree that acoustic energy emanating from the East Channel and into Hillsborough Bay would rapidly decrease as the energy spreads to the north and south outside of the East Channel in the Bay. Under these conditions, sound energy beyond a 45 degree angle, or a 45 degree cone shape outside of the channel mouth would attenuate, and would not result in Level B take.

    Level A and B take zones (km2) were calculated using the calculated blasting radii. Some blasting radii are contained within the water column or between the East Channel's north and south shorelines. These areas therefore are circular in shape. However, larger blasting radii extend beyond the channel's shorelines. In these cases, the areas form an irregular polygon shape that are bounded by the channel's shoreline to the north, east, and south and are cone-shaped outside of the East Channel opening to Tampa/Hillsborough Bay. The areas of these irregular polygon shapes were determined with computer software (Google Earth Pro). This area was then multiplied by the density calculated for common bottlenose dolphins in the project area, as this is the only marine mammal species potentially occurring in the East Channel (density information provided below). Figure 10 of the application illustrates the take areas calculated for the largest blast pattern consisting of 18.1 kg (40 lbs)/delay and 40 individual charges, which was used to calculate estimated take for the confined blasting activities. The Level A (PTS) harassment zone was calculated to be 0.14 square kilometers based on an isopleth of 378 m; the Level B TTS harassment zone was calculated to be 2.85 square kilometers based on an isopleth of 2,125 m; and the Level B behavioral harassment zone was calculated to be 6 square kilometers based on an isopleth of 3,780 m.

    We note here that Level A take is not anticipated due to the small Level A harassment zone and density of bottlenose dolphins in the proposed project area resulting in a low likelihood of Level A take for any one blasting event combined with mitigation measures to avoid Level A take.

    Marine Mammal Occurrence/Density Calculation

    In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.

    As stated above, common bottlenose dolphins are the only species of marine mammal anticipated to occur in the proposed project area. Using photo-identification methods, Urian et al. (2009) identified 858 individual dolphins during their 6-year study in the Tampa Bay. However, as state above, data from Wells et al. (1995) was used for the abundance estimate of the Tampa Bay Stock of common bottlenose dolphins, as Urian et al. (2009) was not an abundance estimate, but a population structure study. The Wells et al. (1995) mark-resight method provided the most conservative, or highest average, abundance of 564 common bottlenose dolphins within the 852-km2 study area. In order to calculate take, the USACE made an assumption that the dolphins would be evenly distributed throughout Tampa Bay. The number of dolphins per square kilometer within this area is calculated as 0.66 (564 dolphins ÷ 852 km2 = 0.66 dolphins/km2).

    Take Calculation and Estimation

    Here we describe how the information provided above is brought together to produce a quantitative take estimate.

    The USACE proposes a maximum charge weight of 725.7 kg (1,600 lbs) as a conservatively high estimate for the total amount of explosives that may be used in the largest blasting pattern. This is based on the fact that the maximum charge weight per delay would not exceed 18.1 kg (40 lbs)/delay for this project and the maximum number of charges per pattern would not exceed 40. Please refer to Table 3 of the application for the level of take associated with this charge weight as well as other charge weights. Figure 10 of the application provides visual representation of take areas plotted on an aerial photograph for 18.1 kg/delay.

    A maximum of 42 blast events would occur over the one year period of this IHA. Using the Tampa Bay Stock abundance estimate (n=564), the density of common bottlenose dolphins occurring within the footprint of the project (0.66 dolphins/km2), as well as the maximum charge weight of 18.1 kg (40 lbs)/delay, the USACE is requesting Level B take for behavioral harassment and/or TTS for up to 5.8 common bottlenose dolphins per blast (refer to Table 3 of the application). Therefore, using the maximum amount of explosives per blast event and the maximum number of blast events, an estimated 244 Level B takes would occur over the one-year period of this IHA (5.8 dolphin/blast × 42 detonations = 243.6 exposures). However, the number of dolphins subjected to TTS and/or behavioral harassment is expected to be significantly lower for two reasons. First, the USACE will implement a test blast program to determine the smallest amount of explosives needed to fracture the rock and allow mechanical removal. This test blast program would begin with a single row pattern of charges, and would vary the number and charges/pattern as well as the charge weight/delay to determine the minimum needed and these test blasts would count toward the maximum of 42 total blast events. The maximum 1,600 lb blasting pattern of 18.1 kg (40 lb)/delay and 40 individual charges was used to calculate take due to the uncertainty regarding the minimum needed charge/delay and individual charges as well as uncertainty regarding the number of test blasts. Therefore, there would not actually be 42 blast events with the full pattern of 40 delays at full charge weight/delay (1,600 lb), as was assumed in the take calculation, and the take estimate is a conservative estimate. Second, we expect at least some of the exposures to be repeat exposures of the same individuals, as discussed further in the Small Numbers section below.

    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.

    As discussed previously, the USACE will confine the blasts within the East Channel by boring holes into the existing rock, placing explosive charges within the holes, and stemming the holes in order to greatly reduce the energy released into the water column from the blasts (estimated to reduce the amount of energy by 60-90 percent versus open water blasting). In addition to utilizing the confined blasting, the following conditions will be incorporated into the project specifications to reduce the risk of impacts to marine mammals:

    • Confined blasting will be restricted to the East Channel only;

    • Blasting will be restricted to the months of April through October (this is to avoid impacts to Florida manatee, but may also serve to avoid impacts if there are seasonal increases in Tampa Bay/proposed project area during the fall/winter as reported by Scott et al. (1989), and discussed above);

    • The blasting plan shall be provided for NMFS review at least 30 days prior to work, and the blasting plan must include detailed information about the protected species watch program as well as details about proposed blasting events (to be submitted to NMFS headquarters Protected Species Division as well as the NMFS Southeast Regional Office, the State Fish and Wildlife Commission (FWC) Office, and USFWS);

    ○ The blasting plan shall include:

    A list of the observers, their qualifications, and positions for the watch, including a map depicting the proposed locations for boat or land-based observers. Qualified observers must have prior on-the-job experience observing for protected marine species (such as dolphins, manatees, marine turtles, etc.) during previous in-water blasting events where the blasting activities were similar in nature to this project;

    The amount of explosive charge proposed, the explosive charge's equivalency in TNT, how it will be executed (depth of drilling, stemming information, etc.), a drawing depicting the placement of the charges, size of the safety radius and how it will be marked (also depicted on a map), tide tables for the blasting event(s), and estimates of times and days for blasting events (with an understanding this is an estimate, and may change due to weather, equipment, etc.). Certain blasting restrictions will be imposed including the following: (1) Individual charge weights shall not exceed 18.1 kg (40 lbs)/delay, and (2) the contractor shall not exceed a total of 42 blast events during the blast window.

    Hydroacoustic monitoring will be performed for each blast event, up to the maximum of 42 blast events. A hydroacoustic monitoring plan will be developed in coordination with NMFS HQ Permits and Conservation Division, and will be submitted to NMFS for review at least 30 days prior to commencement of the blasting activities. As part of this hydroacoustic monitoring, the contractor shall:

    ○ Describe hydroacoustic measurement methods. The sampling rate of the recording devices (i.e., hydrophone and/or pressure transducer) shall be specified to ensure the necessary frequencies (10 Hz-40 kHz) and pressure signals (at least 1 MHz) are recorded and the appropriate filter (band pass) is used. The type of hydrophone proposed for use shall also be described and shall be appropriate for collecting measurements of underwater detonations as well as ambient measurements in the far field (i.e., low vs high sensitivity). The plan shall specify that recording devices shall be placed in the near field (at 10 m) and sufficiently in the far field (and away from shipping lanes) to collect the relevant data.

    ○ Describe analytical methods. The plan shall specify that pressure signals must be analyzed using appropriate signal processing methods and applicable equations. The various impulse metrics will be calculated using time series data. Cumulative sound exposure levels (SELcum) will be calculated using a linear summation of acoustic intensity. Weighted cumulative sound exposure thresholds will be used to estimate the various ranges.

    The hydroacoustic monitoring plan shall stipulate that the contractor will:

    ○ Record the SEL and SPL associated with each blasting event;

    ○ Record the associated work (including borehole drilling and fish scare charges) as separate recordings;

    ○ Provide nearby hydrophone records of drilling operations of 30 minutes over three early contract periods at least 18 hours apart.

    ○ Provide hydrophone or transducer records within the contract area of three continuous 10-minute quiet periods (over three early contract periods) at least 18 hours apart or prior to the contractor's full mobilization to the site, and 10 close-approaches of varied vessel sizes. This information will be provided as both an Excel file and recording for each hydrophone (.wav file) shall include: GPS location of the hydrophone (to be located outside of the range that would cause clipping); Water depth to the sediment/rock bottom (to be placed at the shallower of 9.84 ft (3 m) depth of the mid-water column depth); and Information regarding the blast pattern or drilling.

    ○ Provide a report that includes the appropriate metrics (i.e., impulse in Pa-sec or psi-msec; peak sound levels; and SELcum for the entire blast event); appropriate statistics (i.e., median, mean, minimum, and maximum); and relevant information (i.e., number of delays per blast event, total net explosive weight of each blast event, sediment characteristics/types, hydrophone depths and distances to the closest and farthest delay, water depth, power specral data).

    • In addition to review of the blasting plan, NMFS's Southeast Region Office and local stranding network shall be notified at the beginning (24 hours prior) and after (24 hours after) any blasting;

    • For each explosive charge placed, three zones will be calculated, denoted on monitoring reports and provided to protected species observers before each blast for incorporation in the watch plan for each planned detonation. All of the zones will be noted by buoys for each of the blasts. These zones are:

    Level A Take Zone: The Level A Take Zone is equal to the radius of the PTS Injury Zone. As shown in the application in Table 3, as well as Figure 10, all other forms of injurious take (i.e. gastro-intestinal injury, lung injury) and mortality have smaller radii than the PTS Injury Zone. Detonation shall not occur if a protected species is known to be (or based on previous sightings, may be) within the Level A Take Zone;

    Exclusion Zone: A zone which is the Level A Take Zone + 152.4 m (500 ft). Detonation will not occur if a protected species is known to be (or based on previous sightings, may be) within the Exclusion Zone;

    Level B Take Zone: The Level B Take Zone extends from the Exclusion Zone to the Behavior Zone radius. Detonation shall occur if a protected species is within the Level B Take Zone. Any protected species within this zone shall be monitored continuously and, if they are within the Level B Take Zone during detonation, then they shall be recorded on monitoring forms. Note that the Level B Take Zone should begin immediately beyond the end of the Level A Take Zone. However, the USACE proposes to implement an Exclusion Zone. Also, the area immediately beyond the Level B Take Zone shall also be monitored for protected species.

    • No blasting shall occur within East Channel if dolphins or any other protected species are present within the East Channel (Note: the Level A harassment zone is entirely within the East Channel, which is why no Level A harassment is proposed for authorization);

    • Protected species observers (PSOs) shall begin the watch program at least one hour prior to the scheduled start of the blasting activities, and will continue for at least one hour after blast activities have completed;

    • The watch program shall consist of a minimum of six PSOs with a designated lead observer. Each observer shall be equipped with a two-way radio that shall be dedicated exclusively to the watch. Extra radios shall be available in case of failures. All of the observers shall be in close communication with the blasting subcontractor in order to halt the blast event if the need arises. If all observers do not have working radios and cannot contact the primary observer and the blasting subcontractor during the pre-blast watch, the blast shall be postponed until all observers are in radio contact. Observers will also be equipped with polarized sunglasses, binoculars, a red flag for backup visual communication, and a sighting log with a map to record sightings;

    • All blasting events will be weather dependent. Climatic conditions must be suitable for adequate viewing conditions. Blasting will not commence in rain, fog or otherwise poor weather conditions, and can only commence when the entire Level A Take Zone, Exclusion Zone, and Level B Take Zone are visible to observers;

    • The PSO program will also consist of a continuous aerial survey conducted as approved by the Federal Aviation Administration (FAA). The blasting event shall be halted if an animal is spotted approaching or within the Exclusion Zone. An “all-clear” signal must be obtained from the aerial observer before detonation can occur. Note that all observers must give the “all-clear” signal before blasting can commence. The blasting event shall be halted immediately upon request of any of the observers. If animals are sighted, the blast event shall not take place until the animal moves out of the Exclusion Zone on its own volition. Animals shall not be herded away or harassed into leaving. Specifically, the animals must not be intentionally approached by project watercraft. Blasting may only commence when 30 minutes have passed without an animal being sighted within or approaching the Exclusion Zone or Level A Take Zone;

    • If multiple blast events take place in one day, blast events shall be separated by a minimum of six hours;

    • After each blast, the observers and contractors shall meet and evaluate any problems encountered during blasting events and logistical solutions shall be presented to the Contracting Officer. Corrections to the watch shall be made prior to the next blasting event. If any one of the aforementioned conditions (bullet points directly above) is not met prior to or during the blasting, the contractor as advised by the watch observers shall have the authority to terminate the blasting event, until resolution can be reached with the Contracting Officer. The USACE will contact FWC, USFWS and NMFS;

    • If an injured or dead protected species is sighted after the blast event, the watch observers shall contact the USACE and the USACE will contact the resource agencies at the following phone numbers:

    ○ FWC through the Manatee Hotline: 1-888-404-FWCC and 850-922-4300;

    ○ USFWS Jacksonville: 904-731-3336;

    ○ NMFS Southeast Region: 772-570-5312, and Emergency Stranding Hotline—1-877-433-8299.

    • The observers shall maintain contact with the injured or dead protected species to the greatest extent practical until authorities arrive. Blasting shall be postponed until consultations are completed and determinations can be made of the cause of injury or mortality. If blasting injuries are documented, all demolition activities shall cease. The USACE will then submit a revised plan to FWC, NMFS and USFWS for review.

    Based on our evaluation of the applicant's proposed measures, NMFS has determined that the proposed 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 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.

    With some exceptions, the USACE will rely upon the same monitoring protocol developed for the Port of Miami project in 2005 (Barkaszi, 2005) and published in Jordan et al., 2007. A summary of that protocol is summarized here.

    A watch plan will be formulated based on the required monitoring radii and optimal observation locations. The watch plan will consist of at least six observers including at least one (1) aerial observer, two (2) boat-based observers, and two (2) observers stationed on the drill barge (Figures 12, 13, 14, & 15). The 6th observer will be placed in the most optimal observation location (boat, barge or aircraft) on a day-by-day basis depending on the location of the blast and the placement of dredging equipment. There shall also be one lead observer. This process will insure complete coverage of the three zones as well as any critical areas. The watch will begin at least 1 hour prior to each blast and continue for one half-hour after each blast (Jordan et al 2007).

    Boat-based observers will be placed on vessels with viewing platforms. The boat observers will cover the Level B Take Zone where waters are deep enough to safely operate the vessel. The aerial observer will fly in a helicopter with doors removed at an average height of 500 ft. The helicopter will drop lower if they need to identify something in the water. This will provide maximum visibility of all zones as well as exceptional maneuverability and the needed flexibility for continual surveillance without fuel stops or down time, and the ability to deliver post-blast assistance. The area being monitored is a high traffic area, surrounded by an urban environment where animals are potentially exposed to multiple overflights daily, and prior experience has shown that this activity is not anticipated to result in take of marine mammals in the area.

    As previously stated, blasting cannot commence until the entire Level A Take Zone, Exclusion Zone, and Level B Take Zone are visible to monitors, and would not commence in rain, fog, or other adverse weather conditions. The visibility below the surface of the water is naturally poor, so animals are not anticipated to be seen below the surface. However, animals surfacing in these turbid conditions are still routinely spotted from the air and from the boats, thus the overall observer program is not compromised, only the degree to which animals are tracked below the surface. Observers must confirm that all protected species are out of the Exclusion Zone and the Level A Take Zone for 30 minutes before blasting can commence.

    All observers will be equipped with marine-band VHF radios, maps of the blast zone, polarized sunglasses, and appropriate data sheets. Communications among observers and with the blaster is critical to the success of the watch plan. The aerial observer will be in contact with vessel and drill-barge based observers as well as the drill barge crew with regular 15-minute radio checks throughout the watch period. Constant tracking of animals spotted by any observer will be possible due to the amount and type of observer coverage and the communications plan. Watch hours will be restricted to between two hours after sunrise and one hour before sunset. The watch will begin at least one hour prior to the scheduled blast and is continuous throughout the blast. Watch continues for at least 60 minutes post blast at which time any animals that were seen prior to the blast are visually re-located whenever possible and all observers in boats and in the aircraft assisted in cleaning up any blast debris.

    If any protected species are spotted during the watch, the observer will notify the lead observer, aerial observer, and/or the other observers via radio. The animal will be located by the aerial observer to determine its range and bearing from the blast pattern. Initial locations and all subsequent observations will be plotted on maps. Animals within or approaching the Exclusion Zone will be tracked by the aerial and boat based observers until they exit the Exclusion Zone. As stated earlier, animals that exit the Exclusion Zone and enter the Level B Take Zone will also be monitored. The animal's heading shall be monitored continuously until it is confirmed beyond the Level B Take Zone. Anytime animals are spotted near the Exclusion Zone, the drill barge and lead observer will be alerted as to the animal's proximity and some indication of any potential delays it might cause.

    If an animal is spotted inside the Exclusion Zone and not re-observed, no blasting will be authorized until at least 30 minutes has elapsed since the last sighting of that animal. The watch will continue its countdown up until the T-minus five (5) minute point. At this time, the aerial observer will confirm that all animals are outside the Exclusion Zone and that all holds have expired prior to clearing the drill barge for the T-minus five (5) minute notice. A fish-scare charge will be fired at T-minus five (5) minutes and T-minus one (1) minute to minimize effects of the blast on fish that may be in the area of the blast pattern by scaring them from the blast area.

    An actual postponement in blasting will only occur when a protected species is located within or is approaching the Exclusion Zone at the point where the blast countdown reaches the T-minus five (5) minutes. At that time, if an animal is in or near the Exclusion Zone, the countdown will be put on hold until the Exclusion Zone is completely clear of protected species and all 30-minute sighting holds have expired.

    Within 30 days after completion of all blasting events, the primary PSO shall submit a report to the USACE, who will provide it to FWC, NMFS and USFWS providing a description of the event, number and location of animals seen and what actions were taken when animals were seen. Any problems associated with the event and suggestions for improvements shall also be documented in the report.

    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).

    For reasons stated previously in this document, the specified activities associated with the USACE's confined blasting activities in the East Channel of Big Bend Channel, Tampa Harbor are not likely to cause PTS, or other non-auditory injury, gastro-intestinal injury, lung injury, serious injury, or death to affected marine mammals. As a result, no take by injury, serious injury, or death is anticipated or authorized, and the potential for temporary or permanent hearing impairment is very low and would be minimized through the incorporation of the required monitoring and mitigation measures.

    Approximately 244 instances of take to some smaller number of Atlantic bottlenose dolphins from the Tampa Bay Stock are anticipated to occur in the form of short-term, minor, hearing impairment (TTS) and associated behavioral disruption due to the instantaneous duration of the confined blasting activities. While some other species of marine mammals may occur in the Tampa Harbor, only common bottlenose dolphins are anticipated to be potentially impacted by the USACE's confined blasting activities.

    For bottlenose dolphins within the proposed action area, there are no known designated or important feeding and/or reproductive areas in the proposed project area, which consists of a man-made channel with a history of maintenance dredging. Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (i.e., 24-hour cycle). Behavioral reactions to noise exposure (such as disruption of critical life functions, displacement, or avoidance of important habitat) are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall et al., 2007). Consequently, a behavioral response lasting less than one day and not recurring on subsequent days is not considered particularly severe unless it could directly affect reproduction or survival (Southall et al., 2007). The USACE's proposed confined blasting action at the Tampa Harbor, Big Bend Channel's East Channel includes up to two planned blasting events per day over multiple days; however, they are very short in duration and in a relatively small area surrounding the blast holes (compared to the range of the animals) located solely with the East Channel, and are only expected to potentially result in momentary exposures and reactions by marine mammals in the proposed action area, which would not be expected to accumulate in a manner that would impact reproduction or survival.

    Atlantic common bottlenose dolphins are the only species of marine mammals under NMFS jurisdiction that are likely to occur in the proposed action area. They are not listed as threatened or endangered under the ESA; however the BSE stocks are considered strategic under the MMPA. To reduce impacts on these stocks (and other protected species in the proposed action area), the USACE must delay operations if animals enter designated zones, and will not conduct blasting if any dolphins (or other protected species) are located within the East Channel. Due to the nature, degree, and context of the Level B harassment anticipated and described in this notice as well as the Proposed IHA notice (see “Potential Effects on Marine Mammals and Their Habitat” section above and in 83 FR 11968, March 19, 2018)), the activity is not expected to impact rates of recruitment or survival for any affected species or stock, particularly given NMFS's and USACE's plan to implement mitigation, monitoring, and reporting measures to minimize impacts to marine mammals. Also, the confined blasting activities are very short in duration and there are no known important areas in the USACE's proposed action area. Additionally, the proposed confined blasting activities would not adversely impact marine mammal habitat.

    As mentioned previously, NMFS estimates that one species of marine mammals under its jurisdiction could be potentially affected by Level B harassment over the course of the IHA. The population estimates for the marine mammal species that may be taken by Level B harassment is estimated to be 564 individuals. To protect these marine mammals in the proposed action area, USACE are be required to cease or delay confined blasting activities if any marine mammals enters designated exclusion zone.

    NMFS has determined, provided that the aforementioned mitigation and monitoring measures are implemented, that the impact of conducting the confined blasting activities in the East Channel of the Big Bend Channel in the Tampa Harbor may result, at worst, in a temporary modification in behavior and/or low-level physiological effects (Level B harassment) of common bottlenose dolphins.

    While behavioral modifications, including temporarily vacating the area immediately after confined blasting operations, may be made by these species to avoid the resultant underwater acoustic disturbance, alternate areas are available within this area and the confined blasting activities will be instantaneous and sporadic in duration. Due to the nature, degree, and context of Level B harassment anticipated, the proposed activity is not expected to impact rates of annual recruitment or survival of any affected species or stock, particularly given the NMFS and applicant's plan to implement mitigation and monitoring measures that would minimize impacts to marine mammals. 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 USACE's proposed confined blasting operations would have a negligible impact on the affected marine mammal species or stocks.

    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;

    • No injury is anticipated or authorized;

    • Take is limited to Level B harassment, and would be expected to be mainly temporary and short-term behavioral disturbance and potential for a small number of TTS takes;

    • The USACE's proposed confined blasting activities within the East Channel includes up to two planned blasting events per day over multiple days (up to a maximum of 42 blast events total), but these would be very short in duration and in a small area relative to the range of the animals; and

    • While temporary short-term avoidance of the area may occur due to blasting activities, the proposed project area does not represent an area of known biological importance such that temporary avoidance would constitute an impact to the foraging, socialization, and resting activities of bottlenose dolphins.

    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 the 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 noted above, the number of instances of take proposed for authorization equates to approximately 43 percent of the estimated stock abundance if each instance represents a different individual marine mammal. However, as noted above, NMFS anticipates that the calculated number of exposures represents some repeated exposures of some individuals; in other words, the number of exposures is likely an overestimate of individuals. Urian et al. (2009) studied fine-scale population structure of bottlenose dolphins in Tampa Bay, and concluded that there are five discrete communities (that are not defined as separate stocks) of bottlenose dolphins in Tampa Bay. They found significant differences in location and association patterns among these communities and note that all five communities differed significantly in latitude, longitude, or both. Based on the range patterns of these discrete communities, only one of these communities, Community 5, is expected to occur in the USACE proposed project area. The other four communities range farther south of the proposed project location. In addition, Community 5 appeared to be the smallest community of the five identified communities. Therefore, we conclude that the takes associated with the USACE proposed confined blasting actually represents no more than 20 percent of the total Tampa Bay stock of bottlenose dolphins.

    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 preliminarily 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 Southeast Region (SERO) Protected Resources Division Office, whenever we propose to authorize take for endangered or threatened species.

    No incidental take of ESA-listed species is proposed for authorization 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

    NMFS has issued an IHA to the USACE to take one species of marine mammal incidental to confined blasting in the East Channel of the Big Bend Channel in Tampa Harbor, Tampa, Florida provided the previously mentioned mitigation, monitoring, and reporting requirements are incorporated.

    Dated: May 1, 2018. Donna S. Wieting, Director, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2018-09499 Filed 5-3-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG206 Marine Mammals; File No. 22049 AGENCY:

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

    ACTION:

    Notice; receipt of application.

    SUMMARY:

    Notice is hereby given that Living Planet Productions/Silverback Films, 1 St. Augustine Yard, Gaunts Lane, Bristol, BS1 5DE, UK (Responsible Party: Sarah Wade), has applied in due form for a permit to conduct commercial or educational photography on bottlenose dolphins (Tursiops truncatus).

    DATES:

    Written, telefaxed, or email comments must be received on or before June 4, 2018.

    ADDRESSES:

    These documents are available upon written request or by appointment in the Permits and Conservation Division, Office of Protected Resources, NMFS, 1315 East-West Highway, Room 13705, Silver Spring, MD 20910; phone (301) 427-8401; fax (301) 713-0376.

    Written comments on this application should be submitted to the Chief, Permits and Conservation Division, at the address listed above. Comments may also be submitted by facsimile to (301) 713-0376, or by email to [email protected] Please include the File No. 22049 in the subject line of the email comment.

    Those individuals requesting a public hearing should submit a written request to the Chief, Permits and Conservation Division at the address listed above. The request should set forth the specific reasons why a hearing on this application would be appropriate.

    FOR FURTHER INFORMATION CONTACT:

    Carrie Hubard, (301) 427-8401.

    SUPPLEMENTARY INFORMATION:

    The subject permit is requested under the authority of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361 et seq.) and the regulations governing the taking and importing of marine mammals (50 CFR part 216).

    The applicant proposes to film bottlenose dolphins in Everglades National Park, Florida from boats, helicopters, and underwater cameras from June through September 2018. Up to 140 dolphins may be harassed during helicopter flights. An additional 276 dolphins may be harassed during vessel filming. The goal of the project is to obtain footage of mud-ring feeding dolphins that will be used in an upcoming television documentary series to be released on Netflix. The permit would be valid until October 1, 2018.

    In compliance with the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), an initial determination has been made that the activity proposed is categorically excluded from the requirement to prepare an environmental assessment or environmental impact statement.

    Concurrent with the publication of this notice in the Federal Register, NMFS is forwarding copies of the application to the Marine Mammal Commission and its Committee of Scientific Advisors.

    Dated: May 1, 2018. Julia Marie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service.
    [FR Doc. 2018-09547 Filed 5-3-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF984 Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Marine Site Characterization Surveys Off of Rhode Island and Massachusetts AGENCY:

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

    ACTION:

    Notice; proposed incidental harassment authorization; request for comments.

    SUMMARY:

    NMFS has received a request from Deepwater Wind New England, LLC (DWW), for authorization to take marine mammals incidental to marine site characterization surveys off the coast of Rhode Island and Massachusetts in the area of the Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS-A 0486) and along potential submarine cable routes to a landfall location in Rhode Island, Massachusetts or New York. Pursuant to the Marine Mammal Protection Act (MMPA), NMFS is requesting comments on its proposal to issue an incidental harassment authorization (IHA) to incidentally take marine mammals during the specified activities. NMFS will consider public comments prior to making any final decision on the issuance of the requested MMPA authorizations and agency responses will be summarized in the final notice of our decision.

    DATES:

    Comments and information must be received no later than June 4, 2018.

    ADDRESSES:

    Comments should be addressed to Jolie Harrison, Chief, Permits and Conservation Division, Office of Protected Resources, National Marine Fisheries Service. Physical comments should be sent to 1315 East-West Highway, Silver Spring, MD 20910 and electronic comments should be sent to [email protected]

    Instructions: NMFS is not responsible for comments sent by any other method, to any other address or individual, or received after the end of the comment period. Comments received electronically, including all attachments, must not exceed a 25-megabyte file size. Attachments to electronic comments will be accepted in Microsoft Word or Excel or Adobe PDF file formats only. All comments received are a part of the public record and will generally be posted online at www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable without change. All personal identifying information (e.g., name, address) voluntarily submitted by the commenter may be publicly accessible. Do not submit confidential business information or otherwise sensitive or protected information.

    FOR FURTHER INFORMATION CONTACT:

    Jordan Carduner, Office of Protected Resources, NMFS, (301) 427-8401. Electronic copies of the applications and supporting documents, as well as a list of the references cited in this document, may be obtained by visiting the internet at: www.fisheries.noaa.gov/national/marine-mammal-protection/incidental-take-authorizations-other-energy-activities-renewable. 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, or 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 is preparing an Environmental Assessment (EA) to consider the environmental impacts associated with the issuance of the proposed IHA. We will review all comments submitted in response to this notice prior to concluding our NEPA process or making a final decision on the IHA request.

    Summary of Request

    On January 3, 2018, NMFS received a request from DWW for an IHA to take marine mammals incidental to marine site characterization surveys off the coast of Massachusetts and Rhode Island in the area of the Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf (OCS-A 0486) and along potential submarine cable routes to a landfall location in either Rhode Island, Massachusetts or New York. A revised application was received on April 18, 2018. NMFS deemed that request to be adequate and complete. DWW's request is for take of 14 marine mammal species by Level B harassment. Neither DWW nor NMFS expects serious injury or mortality to result from this activity and the activity is expected to last no more than one year, therefore, an IHA is appropriate.

    Description of the Proposed Activity Overview

    DWW proposes to conduct marine site characterization surveys, including high-resolution geophysical (HRG) and geotechnical surveys, in the area of Commercial Lease of Submerged Lands for Renewable Energy Development on the Outer Continental Shelf #OCS-A 0486 (Lease Area) and along potential submarine cable routes to landfall locations in either Rhode Island, Massachusetts or Long Island, New York. Surveys would occur from approximately June 15, 2018 through December 31, 2018.

    The purpose of the marine site characterization surveys are to obtain a baseline assessment of seabed/sub-surface soil conditions in the Lease Area and cable route corridors to support the siting of potential future offshore wind projects. Underwater sound resulting from DWW's proposed site characterization surveys has the potential to result in incidental take of marine mammals in the form of behavioral harassment.

    Dates and Duration

    The estimated duration of the geophysical survey is expected to be up to 200 days between June 15, 2018, and December 31, 2018. The geotechnical surveys are expected to take up to 100 days between June 15, 2018, and December 31, 2018. This schedule is based on 24-hour operations and includes potential down time due to inclement weather. Surveys will last for approximately seven months and are anticipated to commence upon issuance of the requested IHA, if appropriate.

    Specific Geographic Region

    DWW's survey activities would occur in the Northwest Atlantic Ocean within Federal waters. Surveys would occur in the Lease Area and along potential submarine cable routes to landfall locations in either Rhode Island, Massachusetts or Long Island, New York (see Figure 1 in the IHA application). The Lease Area is approximately 394 square kilometers (km2) (97,498 acres) and is approximately 20 km south of Rhode Island at its closest point to land.

    Detailed Description of the Specified Activities

    DWW's proposed marine site characterization surveys include HRG and geotechnical survey activities. Surveys would occur within the Bureau of Ocean Energy Management (BOEM) Rhode Island-Massachusetts Wind Energy Area (RI-MA WEA) which is east of Long Island, New York and south of Rhode Island and Massachusetts (see Figure 1 in the IHA application). Water depths in the Lease Area range from 26 to 48 meters (m) (85 to 157 feet (ft)). For the purpose of this IHA the Lease Area and submarine cable corridor are collectively termed the Project Area.

    Geophysical and shallow geotechnical survey activities are anticipated to be supported by a vessel approximately 20-70 m long which will maintain a speed of up to five knots (kn) while transiting survey lines. Near shore geophysical and shallow geotechnical surveys (if required) would be performed by shallow draft vessels approximately 9 to 23 m long which will maintain a speed of up to five kn while transiting survey lines. Deep geotechnical survey activities and possible shallow geotechnical activities are anticipated to be conducted from a 40 to 100 m dynamically positioned (DP) vessel, jack-up vessel, or anchored vessel, with support of a tug boat. Survey activities will be executed in compliance with the July 2015 BOEM Guidelines for Providing Geophysical, Geotechnical, and Geohazard Information Pursuant to 30 CFR part 585. The proposed HRG and geotechnical survey activities are described below.

    Geotechnical Survey Activities

    DWW's proposed geotechnical survey activities would include the following:

    • Vibracores to characterize the geological and geotechnical characteristics of the seabed, up to approximately 5 m deep. A hydraulic or electric driven pulsating head is used to drive a hollow tube into the seafloor and recover a stratified representation of the sediment.

    • Core Penetration Testing (CPT) to determine stratigraphy and in-situ conditions of the sediments. Target penetration is 60 to 75 m.

    • Deep Boring Cores would be drilled to determine the vertical and lateral variation in seabed conditions and provide geotechnical data to depths at least 10 m deeper than design penetration of the foundations (60 to 75 m target penetration).

    Shallow geotechnical surveys, consisting of CPTs and vibracores, are planned for within the Lease Area and approximately every one to two kilometers (km) along the export cable routes. Foundation-depth geotechnical borings are also planned at each proposed foundation location within the Lease Area. While the quantity and locations of wind turbine generators to be installed, as well as cable route, has yet to be determined, an estimate of 153 vibracores, 20 CPTs, and 16 deep borings are planned within the Lease Area and along the export cable routes.

    In considering whether marine mammal harassment is an expected outcome of exposure to a particular activity or sound source, NMFS considers the nature of the exposure itself (e.g., the magnitude, frequency, or duration of exposure), characteristics of the marine mammals potentially exposed, and the conditions specific to the geographic area where the activity is expected to occur (e.g., whether the activity is planned in a foraging area, breeding area, nursery or pupping area, or other biologically important area for the species). We then consider the expected response of the exposed animal and whether the nature and duration or intensity of that response is expected to cause disruption of behavioral patterns (e.g., migration, breathing, nursing, breeding, feeding, or sheltering) or injury.

    Geotechnical survey activities would be conducted from a drill ship equipped with DP thrusters. DP thrusters would be used to position the sampling vessel on station and maintain position at each sampling location during the sampling activity. Sound produced through use of DP thrusters is similar to that produced by transiting vessels and DP thrusters are typically operated either in a similarly predictable manner or used for short durations around stationary activities. NMFS does not believe acoustic impacts from DP thrusters are likely to result in take of marine mammals in the absence of activity- or location-specific circumstances that may otherwise represent specific concerns for marine mammals (i.e., activities proposed in area known to be of particular importance for a particular species), or associated activities that may increase the potential to result in take when in concert with DP thrusters. In this case, we are not aware of any such circumstances. Monitoring of past projects that entailed use of DP thrusters has shown a lack of observed marine mammal responses as a result of exposure to sound from DP thrusters. Therefore, NMFS believes the likelihood of DP thrusters used during the proposed geotechnical surveys resulting in harassment of marine mammals to be so low as to be discountable. As DP thrusters are not expected to result in take of marine mammals, these activities are not analyzed further in this document.

    Vibracoring entails driving a hydraulic or electric pulsating head through a hollow tube into the seafloor to recover a stratified representation of the sediment. The vibracoring process is short in duration and is performed from a dynamic positioning vessel. The vessel would use DP thrusters to maintain the vessel's position while the vibracore sample is taken, as described above. The vibracoring process would always be performed in concert with DP thrusters, and DP thrusters would begin operating prior to the activation of the vibracore to maintain the vessel's position; thus, we expect that any marine mammals in the project area would detect the presence and noise associated with the vessel and the DP thrusters prior to commencement of vibracoring. Any reaction by marine mammals would be expected to be similar to reactions to the concurrent DP thrusters, which are expected to be minor and short term, i.e., not constituting Level B harassment, as defined by the MMPA. In this case, vibracoring is not planned in any areas of particular biological significance for any marine mammals. Thus while a marine mammal may perceive noise from vibracoring and may respond briefly, we believe the potential for this response to rise to the level of take to be so low as to be discountable, based on the short duration of the activity and the fact that marine mammals would be expected to react to the vessel and DP thrusters before vibracoring commences, potentially through brief avoidance. In addition, the fact that the geographic area is not biologically important for any marine mammal species means that such reactions are not likely to carry any meaningful significance for the animals.

    Field studies conducted off the coast of Virginia to determine the underwater noise produced by CPTs and borehole drilling found that these activities did not result in underwater noise levels that exceeded current thresholds for Level B harassment of marine mammals (Kalapinski, 2015). Given the small size and energy footprint of CPTs and boring cores, NMFS believes the likelihood that noise from these activities would exceed the Level B harassment threshold at any appreciable distance is so low as to be discountable. Therefore, geotechnical survey activities, including CPTs, boring cores and vibracores, are not expected to result in harassment of marine mammals and are not analyzed further in this document.

    Geophysical Survey Activities

    DWW has proposed that HRG survey operations would be conducted continuously 24 hours per day. Based on 24-hour operations, the estimated duration of the geophysical survey activities would be approximately 200 days (including estimated weather down time). The geophysical survey activities proposed by DWW would include the following:

    • Multibeam Depth Sounder to determine water depths and general bottom topography. The multibeam echosounder sonar system projects sonar pulses in several angled beams from a transducer mounted to a ship's hull. The beams radiate out from the transducer in a fan-shaped pattern orthogonally to the ship's direction.

    • Shallow Penetration Sub-Bottom Profiler (Chirp) to map the near surface stratigraphy (top 0 to 5 m of sediment below seabed). A Chirp system emits sonar pulses which increase in frequency (3.5 to 200 kHz) over time. The pulse length frequency range can be adjusted to meet project variables.

    • Medium Penetration Sub-Bottom Profiler (Boomer) to map deeper subsurface stratigraphy as needed. This system is commonly mounted on a sled and towed behind a boat.

    • Medium Penetration Sub-Bottom Profiler (Sparker and/or bubble gun) to map deeper subsurface stratigraphy as needed. Sparkers create acoustic pulses omni-directionally from the source that can penetrate several hundred meters into the seafloor. Hydrophone arrays towed nearby receive the return signals.

    • Sidescan Sonar used to image the seafloor for seabed sediment classification purposes and to identify natural and man-made acoustic targets on the seafloor. The sonar device emits conical or fan-shaped pulses down toward the seafloor in multiple beams at a wide angle, perpendicular to the path of the sensor through the water. The acoustic return of the pulses is recorded in a series of cross-track slices, which can be joined to form an image of the sea bottom within the swath of the beam.

    • Marine Magnetometer to detect ferrous metal objects on the seafloor which may cause a hazard including anchors, chains, cables, pipelines, ballast stones and other scattered shipwreck debris, munitions of all sizes, unexploded ordinances, aircraft, engines and any other object with magnetic expression.

    Table 1 identifies the representative survey equipment that may be used in support of planned geophysical survey activities. The make and model of the listed geophysical equipment will vary depending on availability and the final equipment choices will vary depending upon the final survey design, vessel availability, and survey contractor selection. Geophysical surveys are expected to use several equipment types concurrently in order to collect multiple aspects of geophysical data along one transect. Selection of equipment combinations is based on specific survey objectives. Any survey equipment selected would have characteristics similar to the systems described below, if different.

    Table 1—Summary of Geophysical Survey Equipment Proposed for Use by DWW Equipment type Operating
  • frequencies
  • (kHz)
  • Source level
  • (SLrms dB re 1 μPA @1 m)
  • Operational
  • depth
  • (meters below
  • surface)
  • Beam width
  • (degrees)
  • Pulse duration
  • (milliseconds)
  • Multibeam Depth Sounding Reson SeaBat 7125 1 200 and 400 220 4 128 0.03 to 0.3. Reson SeaBat 7101 2 100 162 2 to 5 140 0.8 to 3.04. R2SONIC Sonic 2020 1 170 to 450 162 2 to 5 160 0.11. Shallow Sub-bottom Profiling Teledyne Benthos Chirp III 3 2 to 7 197 4 45 0.2. EdgeTech SB3200 XS
  • SB216 4
  • 2 to 16 176 2 to 5 170 3.4.
    Medium Penetration Sub-bottom Profiling Applied Acoustics
  • Fugro boomer 1
  • 0.1 to 10 175 1 to 2 60 58.
    Applied Acoustics
  • S-Boom system—CSP-D 2400HV
  • (600 joule/pulse) 5
  • 0.25 to 8 203 2 25 to 35 0.6.
    GeoResources 800 Joule Sparker 6 0.75 to 2.75 203 4 360 (omni-directional) 0.1 to 0.2. Falmouth Scientific HMS 620 bubble gun 7 0.02 to 1.7 196 1.5 360 (omni-directional) 1.6. Applied Acoustics
  • Dura-Spark 240 5
  • 0.03 to 5 213 1 to 2 170 2.1.
    Side Scan Sonar Klein Marine Systems model 3900 1 445 and 900 242 20 40 0.025. EdgeTech model 4125 1 105 and 410 225 10 158 10 to 20. EdgeTech model 4200 1 300 and 600 215 to 220 1 0.5 and 0.26 5 to 12. 1 Source level obtained from equipment specifications as described in 2017 IHA issued to DWW for takes of marine mammals incidental to site characterization surveys off the coast of New York (82 FR 22250). 2 Source level based on published manufacturer specifications and/or systems manual. 3 Source level based on published manufacturer specifications and/or systems manual—assumed configured as TTV-171 with AT-471 transducer per system manual. 4 Source level obtained from Crocker and Fratantonio (2016). Assumed to be 3200 XS with SB216. Used as proxy: 3200 XS with SB424 in 4-24 kHz mode Since the 3200 XS system manual lists same power output between SB216 and SB 424. 5 Source level obtained from Crocker and Fratantonio (2016). 6 Source level obtained from Crocker and Fratantonio (2016)—ELC820 used as proxy. 7 Source level obtained from Crocker and Fratantonio (2016)—Used single plate 1 due to discrepancies noted in Crocker and Fratantonio (2016) regarding plate 2.

    The deployment of HRG survey equipment, including the equipment planned for use during DWW's planned activity, produces sound in the marine environment that has the potential to result in harassment of marine mammals. However, sound propagation is dependent on several factors including operating mode, frequency and beam direction of the HRG equipment; thus, potential impacts to marine mammals from HRG equipment are driven by the specification of individual HRG sources. The specifications of the potential equipment planned for use during HRG survey activities (Table 1) were analyzed to determine which types of equipment would have the potential to result in harassment of marine mammals. HRG equipment that would be operated either at frequency ranges that fall outside the functional hearing ranges of marine mammals (e.g., above 200 kHz) or that operate within marine mammal functional hearing ranges but have low sound source levels (e.g., a single pulse at less than 200 dB re re 1 μPa) were assumed to not have the potential to result in marine mammal harassment and were therefore eliminated from further analysis. Of the potential HRG survey equipment planned for use, the following equipment was determined to have the potential to result in harassment of marine mammals:

    • Teledyne Benthos Chirp III Sub-bottom Profiler;

    • EdgeTech Sub-bottom Profilers (Chirp);

    • Applied Acoustics Fugro Sub-bottom Profiler (Boomer);

    • Applied Acoustics S-Boom Sub-bottom Profiling System consisting of a CSP-D 2400HV power supply and 3-plate catamaran;

    • GeoResources 800 Joule Sparker;

    • Falmouth Scientific HMS 620 Bubble Gun; and

    • Applied Acoustics Dura-Spark 240 System.

    As the HRG survey equipment listed above was determined to have the potential to result in harassment of marine mammals, the equipment listed above was carried forward in the analysis of potential impacts to marine mammals; all other HRG equipment planned for use by DWW is not expected to result in harassment of marine mammals and is therefore not analyzed further in this document.

    Proposed mitigation, monitoring, and reporting measures are described in detail later in this document (please see “Proposed Mitigation” and “Proposed Monitoring and Reporting”).

    Description of Marine Mammals in the Area of Specified Activity

    Sections 3 and 4 of DWW's IHA application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS' 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' website (www.nmfs.noaa.gov/pr/species/mammals/). All species that could potentially occur in the proposed survey areas are included in Table 5 of the IHA application. However, the temporal and/or spatial occurrence of several species listed in Table 5 of the IHA application is such that take of these species is not expected to occur, and they are not discussed further beyond the explanation provided here. Take of these species is not anticipated either because they have very low densities in the project area, are known to occur further offshore than the project area, or are considered very unlikely to occur in the project area during the proposed survey due to the species' seasonal occurrence in the area.

    Table 2 lists all species with expected potential for occurrence in the survey area and with the potential to be taken as a result of the proposed survey and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2017). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS' SARs). While no mortality is anticipated or authorized here, PBR is included here as a gross indicator of the status of the species and other threats.

    Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS' stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS' U.S. Atlantic SARs (e.g., Hayes et al., 2018). All values presented in Table 2 are the most recent available at the time of publication and are available in the 2017 draft Atlantic SARs (Hayes et al., 2018).

    Table 2—Marine Mammals Known To Occur in the Survey Area Common name Stock NMFS
  • MMPA
  • and ESA
  • status;
  • strategic
  • (Y/N) 1
  • Stock abundance
  • (CV,Nmin, most recent
  • abundance survey) 2
  • Predicted
  • abundance
  • (CV) 3
  • PBR 4 Occurrence
  • and seasonality
  • in the survey area
  • Toothed whales (Odontoceti) Sperm whale (Physeter macrocephalus) North Atlantic E; Y 2,288 (0.28; 1,815; n/a) 5,353 (0.12) 3.6 Rare. Long-finned pilot whale (Globicephala melas) W North Atlantic -; Y 5,636 (0.63; 3,464; n/a) 5 18,977 (0.11) 35 Rare. Atlantic white-sided dolphin (Lagenorhynchus acutus) W North Atlantic -; N 48,819 (0.61; 30,403; n/a) 37,180 (0.07) 304 Rare. Atlantic spotted dolphin (Stenella frontalis) W North Atlantic -; N 44,715 (0.43; 31,610; n/a) 55,436 (0.32) 316 Rare. Bottlenose dolphin (Tursiops truncatus) W North Atlantic, Offshore -; N 77,532 (0.40; 56,053; 2011) 5 97,476 (0.06) 561 Common year round. Common dolphin 6 (Delphinus delphis) W North Atlantic -; N 173,486 (0.55; 55,690; 2011) 86,098 (0.12) 557 Common year round. Harbor porpoise (Phocoena phocoena) Gulf of Maine/Bay of Fundy -; N 79,833 (0.32; 61,415; 2011) * 45,089 (0.12) 706 Common year round. Baleen whales (Mysticeti) North Atlantic right whale (Eubalaena glacialis) W North Atlantic E; Y 458 (0; 455; n/a) * 535 (0.45) 1.4 Year round in continental shelf and slope waters, occur seasonally to forage. Humpback whale 7 (Megaptera novaeangliae) Gulf of Maine -; N 823 (0.42; 239; n/a) * 1,637 (0.07) 3.7 Common year round. Fin whale 6 (Balaenoptera physalus) W North Atlantic E; Y 3,522 (0.27; 1,234; n/a) 4,633 (0.08) 2.5 Year round in continental shelf and slope waters, occur seasonally to forage. Sei whale (Balaenoptera borealis) Nova Scotia E; Y 357 (0.52; 236; n/a) * 717 (0.30) 0.5 Year round in continental shelf and slope waters, occur seasonally to forage. Minke whale 6 (Balaenoptera acutorostrata) Canadian East Coast -; N 20,741 (0.3; 1,425; n/a) * 2,112 (0.05) 162 Year round in continental shelf and slope waters, occur seasonally to forage. Earless seals (Phocidae) Gray seal 8 (Halichoerus grypus) W North Atlantic -; N 27,131 (0.10; 25,908; n/a) 1,554 Rare. Harbor seal (Phoca vitulina) W North Atlantic -; N 75,834 (0.15; 66,884; 2012) 2,006 Common year round. 1 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 (see footnote 3) 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 Stock abundance as reported in NMFS marine mammal stock assessment reports except where otherwise noted. NMFSs abundance reports available 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. The most recent abundance survey that is reflected in the abundance estimate is presented; there may be more recent surveys that have not yet been incorporated into the estimate. All values presented here are from the 2017 draft Atlantic SARs. 3 This information represents species- or guild-specific abundance predicted by recent habitat-based cetacean density models (Roberts et al., 2016). These models provide the best available scientific information regarding predicted density patterns of cetaceans in the U.S. Atlantic Ocean, and we provide the corresponding abundance predictions as a point of reference. Total abundance estimates were produced by computing the mean density of all pixels in the modeled area and multiplying by its area. For those species marked with an asterisk, the available information supported development of either two or four seasonal models; each model has an associated abundance prediction. Here, we report the maximum predicted abundance. 4 Potential biological removal, defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population size (OSP). 5 Abundance estimates are in some cases reported for a guild or group of species when those species are difficult to differentiate at sea. Similarly, the habitat-based cetacean density models produced by Roberts et al. (2016) are based in part on available observational data which, in some cases, is limited to genus or guild in terms of taxonomic definition. Roberts et al. (2016) produced density models to genus level for Globicephala spp. and produced a density model for bottlenose dolphins that does not differentiate between offshore and coastal stocks. 6 Abundance as reported in the 2007 Canadian Trans-North Atlantic Sighting Survey (TNASS), which provided full coverage of the Atlantic Canadian coast (Lawson and Gosselin, 2009). Abundance estimates from TNASS were corrected for perception and availability bias, when possible. In general, where the TNASS survey effort provided superior coverage of a stock's range (as compared with NOAA shipboard survey effort), the resulting abundance estimate is considered more accurate than the current NMFS abundance estimate (derived from survey effort with inferior coverage of the stock range). NMFS stock abundance estimate for the common dolphin is 70,184. NMFS stock abundance estimate for the fin whale is 1,618. 7 2017 U.S. Atlantic draft SAR for the Gulf of Maine feeding population lists a current abundance estimate of 335 individuals; this estimate was revised from the previous estimate of 823 individuals. However, the newer estimate is based on a single aerial line-transect survey in the Gulf of Maine. The 2017 U.S. Atlantic draft SAR notes that that previous estimate was based on a minimum number alive calculation which is generally more accurate than one derived from line-transect survey (Hayes et al., 2017), and that the abundance estimate was revised solely because the previous estimate was greater than 8 years old. Therefore, the previous estimate of 823 is more accurate, and we note that even that estimate is defined on the basis of feeding location alone (i.e., Gulf of Maine). 8 NMFS stock abundance estimate applies to U.S. population only, actual stock abundance is approximately 505,000.

    Four marine mammal species that are listed under the Endangered Species Act (ESA) may be present in the survey area and are included in the take request: The North Atlantic right whale, fin whale, sei whale, and sperm whale.

    Below is a description of the species that are both common in the survey area south of Rhode Island and Massachusetts that have the highest likelihood of occurring, at least seasonally, in the survey area and are thus are expected to potentially be taken by the proposed activities. Though other marine mammal species are known to occur in the Northwest Atlantic Ocean, the temporal and/or spatial occurrence of several of these species is such that take of these species is not expected to occur, and they are therefore not discussed further beyond the explanation provided here. Take of these species is not anticipated either because they have very low densities in the project area (e.g., blue whale, Clymene dolphin, pantropical spotted dolphin, striped dolphin, spinner dolphin, killer whale, false killer whale, pygmy killer whale, short-finned pilot whale), or, are known to occur further offshore than the project area (e.g., beaked whales, rough toothed dolphin, Kogia spp.). For the majority of species potentially present in the specific geographic region, NMFS has designated only a single generic stock (e.g., “western North Atlantic”) for management purposes. This includes the “Canadian east coast” stock of minke whales, which includes all minke whales found in U.S. waters. For humpback and sei whales, NMFS defines stocks on the basis of feeding locations, i.e., Gulf of Maine and Nova Scotia, respectively. However, our reference to humpback whales and sei whales in this document refers to any individuals of the species that are found in the specific geographic region.

    North Atlantic Right Whale

    The North Atlantic right whale ranges from the calving grounds in the southeastern United States to feeding grounds in New England waters and into Canadian waters (Waring et al., 2016). Surveys have demonstrated the existence of seven areas where North Atlantic right whales congregate seasonally, including north and east of the proposed survey area in Georges Bank, off Cape Cod, and in Massachusetts Bay (Waring et al., 2016). In the late fall months (e.g. October), right whales are generally thought to depart from the feeding grounds in the North Atlantic and move south to their calving grounds off Florida. However, recent research indicates our understanding of their movement patterns remains incomplete (Davis et al. 2017). A review of passive acoustic monitoring data from 2004 to 2014 throughout the western North Atlantic Ocean demonstrated nearly continuous year-round right whale presence across their entire habitat range, including in locations previously thought of as migratory corridors, suggesting that not all of the population undergoes a consistent annual migration (Davis et al. 2017). Acoustic monitoring data from 2004 to 2014 indicated that the number of North Atlantic right whale vocalizations detected in the proposed survey area were relatively constant throughout the year, with the exception of August through October when detected vocalizations showed an apparent decline (Davis et al. 2017). North Atlantic right whales are expected to be present in the proposed survey area during the proposed survey, especially during the summer months, with numbers possibly lower in the fall.

    The western North Atlantic population demonstrated overall growth of 2.8 percent per year between 1990 to 2010, despite a decline in 1993 and no growth between 1997 and 2000 (Pace et al. 2017). However, since 2010 the population has been in decline, with a 99.99 percent probability of a decline of just under 1 percent per year (Pace et al. 2017). Between 1990 and 2015, calving rates varied substantially, with low calving rates coinciding with all three periods of decline or no growth (Pace et al. 2017). On average, North Atlantic right whale calving rates are estimated to be roughly half that of southern right whales (Eubalaena australis) (Pace et al. 2017), which are increasing in abundance (NMFS 2015). In 2018, no new North Atlantic right whale calves were documented in their calving grounds; this represented the first time since annual NOAA aerial surveys began in 1989 that no new right whale calves were observed.

    Data indicates that the number of adult females fell from 200 in 2010 to 186 in 2015 while males fell from 283 to 272 in the same time frame (Pace et al., 2017). In addition, elevated North Atlantic right whale mortalities have occurred since June 7, 2017. A total of 18 confirmed dead stranded whales (12 in Canada; 6 in the United States), with an additional 5 live whale entanglements in Canada, have been documented to date. This event has been declared an Unusual Mortality Event (UME), with human interactions (i.e., fishery-related entanglements and vessel strikes) identified as the most likely cause. More information is available online at: http://www.nmfs.noaa.gov/pr/health/mmume/2017northatlanticrightwhaleume.html.

    The proposed survey area is part of an important migratory area for North Atlantic right whales; this important migratory area is comprised of the waters of the continental shelf offshore the East Coast of the United States and extends from Florida through Massachusetts. NMFS' regulations at 50 CFR part 224.105 designated nearshore waters of the Mid-Atlantic Bight as Mid-Atlantic U.S. Seasonal Management Areas (SMA) for right whales in 2008. SMAs were developed to reduce the threat of collisions between ships and right whales around their migratory route and calving grounds. A portion of one SMA, which occurs off Block Island, Rhode Island, overlaps spatially with a section of the proposed survey area. The SMA which occurs off Block Island is active from November 1 through April 30 of each year.

    Humpback Whale

    Humpback whales are found worldwide in all oceans. Humpback whales were listed as endangered under the Endangered Species Conservation Act (ESCA) in June 1970. In 1973, the ESA replaced the ESCA, and humpbacks continued to be listed as endangered. NMFS recently evaluated the status of the species, and on September 8, 2016, NMFS divided the species into 14 distinct population segments (DPS), removed the current species-level listing, and in its place listed four DPSs as endangered and one DPS as threatened (81 FR 62259; September 8, 2016). The remaining nine DPSs were not listed. The West Indies DPS, which is not listed under the ESA, is the only DPS of humpback whale that is expected to occur in the survey area. The best estimate of population abundance for the West Indies DPS is 12,312 individuals, as described in the NMFS Status Review of the Humpback Whale under the Endangered Species Act (Bettridge et al., 2015).

    In New England waters, feeding is the principal activity of humpback whales, and their distribution in this region has been largely correlated to abundance of prey species, although behavior and bathymetry are factors influencing foraging strategy (Payne et al. 1986, 1990). Humpback whales are frequently piscivorous when in New England waters, feeding on herring (Clupea harengus), sand lance (Ammodytes spp.), and other small fishes, as well as euphausiids in the northern Gulf of Maine (Paquet et al. 1997). During winter, the majority of humpback whales from North Atlantic feeding areas (including the Gulf of Maine) mate and calve in the West Indies, where spatial and genetic mixing among feeding groups occurs, though significant numbers of animals are found in mid- and high-latitude regions at this time and some individuals have been sighted repeatedly within the same winter season, indicating that not all humpback whales migrate south every winter (Waring et al., 2016).

    Since January 2016, elevated humpback whale mortalities have occurred along the Atlantic coast from Maine through North Carolina. Partial or full necropsy examinations have been conducted on approximately half of the 62 known cases. A portion of the whales have shown evidence of pre-mortem vessel strike; however, this finding is not consistent across all of the whales examined so more research is needed. NOAA is consulting with researchers that are conducting studies on the humpback whale populations, and these efforts may provide information on changes in whale distribution and habitat use that could provide additional insight into how these vessel interactions occurred. Three previous UMEs involving humpback whales have occurred since 2000, in 2003, 2005, and 2006. More information is available at www.nmfs.noaa.gov/pr/health/mmume/2017humpbackatlanticume.html.

    Fin Whale

    Fin whales are common in waters of the U. S. Atlantic Exclusive Economic Zone (EEZ), principally from Cape Hatteras northward (Waring et al., 2016). Fin whales are present north of 35-degree latitude in every season and are broadly distributed throughout the western North Atlantic for most of the year, though densities vary seasonally (Waring et al., 2016). Fin whales are found in small groups of up to five individuals (Brueggeman et al., 1987). The main threats to fin whales are fishery interactions and vessel collisions (Waring et al., 2016). The proposed survey area would overlap spatially and temporally with a biologically important feeding area for fin whales. The important fin whale feeding area occurs from March through October and stretches from an area south of Montauk Point to south of Martha's Vineyard.

    Sei Whale

    The Nova Scotia stock of sei whales can be found in deeper waters of the continental shelf edge waters of the northeastern United States and northeastward to south of Newfoundland. The southern portion of the stock's range during spring and summer includes the Gulf of Maine and Georges Bank. Spring is the period of greatest abundance in U.S. waters, with sightings concentrated along the eastern margin of Georges Bank and into the Northeast Channel area, and along the southwestern edge of Georges Bank in the area of Hydrographer Canyon (Waring et al., 2015). Sei whales occur in shallower waters to feed. Sei whales are listed as engendered under the ESA and the Nova Scotia stock is considered strategic and depleted under the MMPA.

    Minke Whale

    Minke whales can be found in temperate, tropical, and high-latitude waters. The Canadian East Coast stock can be found in the area from the western half of the Davis Strait (45 °W) to the Gulf of Mexico (Waring et al., 2016). This species generally occupies waters less than 100 m deep on the continental shelf. There appears to be a strong seasonal component to minke whale distribution in which spring to fall are times of relatively widespread and common occurrence, and when the whales are most abundant in New England waters, while during winter the species appears to be largely absent (Waring et al., 2016).

    Sperm Whale

    The distribution of the sperm whale in the U.S. EEZ occurs on the continental shelf edge, over the continental slope, and into mid-ocean regions (Waring et al., 2014). The basic social unit of the sperm whale appears to be the mixed school of adult females plus their calves and some juveniles of both sexes, normally numbering 20-40 animals in all. There is evidence that some social bonds persist for many years (Christal et al., 1998). This species forms stable social groups, site fidelity, and latitudinal range limitations in groups of females and juveniles (Whitehead, 2002). In summer, the distribution of sperm whales includes the area east and north of Georges Bank and into the Northeast Channel region, as well as the continental shelf (inshore of the 100-m isobath) south of New England. In the fall, sperm whale occurrence south of New England on the continental shelf is at its highest level, and there remains a continental shelf edge occurrence in the mid-Atlantic bight. In winter, sperm whales are concentrated east and northeast of Cape Hatteras.

    Long-Finned Pilot Whale

    Long-finned pilot whales are found from North Carolina and north to Iceland, Greenland and the Barents Sea (Waring et al., 2016). In U.S. Atlantic waters the species is distributed principally along the continental shelf edge off the northeastern U.S. coast in winter and early spring and in late spring, pilot whales move onto Georges Bank and into the Gulf of Maine and more northern waters and remain in these areas through late autumn (Waring et al., 2016). Long-finned pilot whales are not listed under the ESA. The Western North Atlantic stock is considered strategic under the MMPA.

    Atlantic White-Sided Dolphin

    White-sided dolphins are found in temperate and sub-polar waters of the North Atlantic, primarily in continental shelf waters to the 100-m depth contour from central West Greenland to North Carolina (Waring et al., 2016). The Gulf of Maine stock is most common in continental shelf waters from Hudson Canyon to Georges Bank, and in the Gulf of Maine and lower Bay of Fundy. Sighting data indicate seasonal shifts in distribution (Northridge et al., 1997). During January to May, low numbers of white-sided dolphins are found from Georges Bank to Jeffreys Ledge (off New Hampshire), with even lower numbers south of Georges Bank, as documented by a few strandings collected on beaches of Virginia to South Carolina. From June through September, large numbers of white-sided dolphins are found from Georges Bank to the lower Bay of Fundy. From October to December, white-sided dolphins occur at intermediate densities from southern Georges Bank to southern Gulf of Maine (Payne and Heinemann 1990). Sightings south of Georges Bank, particularly around Hudson Canyon, occur year round but at low densities.

    Atlantic Spotted Dolphin

    Atlantic spotted dolphins are found in tropical and warm temperate waters ranging from southern New England, south to Gulf of Mexico and the Caribbean to Venezuela (Waring et al., 2014). This stock regularly occurs in continental shelf waters south of Cape Hatteras and in continental shelf edge and continental slope waters north of this region (Waring et al., 2014). There are two forms of this species, with the larger ecotype inhabiting the continental shelf and is usually found inside or near the 200 m isobaths (Waring et al., 2014). Atlantic spotted dolphins are not listed under the ESA and the stock is not considered depleted or strategic under the MMPA.

    Common Dolphin

    The short-beaked common dolphin is found world-wide in temperate to subtropical seas. In the North Atlantic, short-beaked common dolphins are commonly found over the continental shelf between the 100-m and 2,000-m isobaths and over prominent underwater topography and east to the mid-Atlantic Ridge (Waring et al., 2016). Only the western North Atlantic stock may be present in the Lease Area.

    Bottlenose Dolphin

    There are two distinct bottlenose dolphin ecotypes in the western North Atlantic: the coastal and offshore forms (Waring et al., 2016). The offshore form is distributed primarily along the outer continental shelf and continental slope in the Northwest Atlantic Ocean from Georges Bank to the Florida Keys and is the only type that may be present in the survey area as the survey area is north of the northern extent of the range of the Western North Atlantic Northern Migratory Coastal Stock.

    Harbor Porpoise

    In the Lease Area, only the Gulf of Maine/Bay of Fundy stock may be present. This stock is found in U.S. and Canadian Atlantic waters and is concentrated in the northern Gulf of Maine and southern Bay of Fundy region, generally in waters less than 150 m deep (Waring et al., 2016). They are seen from the coastline to deep waters (>1800 m; Westgate et al. 1998), although the majority of the population is found over the continental shelf (Waring et al., 2016). The main threat to the species is interactions with fisheries, with documented take in the U.S. northeast sink gillnet, mid-Atlantic gillnet, and northeast bottom trawl fisheries and in the Canadian herring weir fisheries (Waring et al., 2016).

    Harbor Seal

    The harbor seal is found in all nearshore waters of the North Atlantic and North Pacific Oceans and adjoining seas above about 30° N (Burns, 2009). In the western North Atlantic, harbor seals are distributed from the eastern Canadian Arctic and Greenland south to southern New England and New York, and occasionally to the Carolinas (Waring et al., 2016). Haulout and pupping sites are located off Manomet, MA and the Isles of Shoals, ME, but generally do not occur in areas in southern New England (Waring et al., 2016).

    Gray Seal

    There are three major populations of gray seals found in the world; eastern Canada (western North Atlantic stock), northwestern Europe and the Baltic Sea. Gray seals in the survey area belong to the western North Atlantic stock. The range for this stock is thought to be from New Jersey to Labrador. Current population trends show that gray seal abundance is likely increasing in the U.S. Atlantic EEZ (Waring et al., 2016). Although the rate of increase is unknown, surveys conducted since their arrival in the 1980s indicate a steady increase in abundance in both Maine and Massachusetts (Waring et al., 2016). It is believed that recolonization by Canadian gray seals is the source of the U.S. population (Waring et al., 2016).

    Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (e.g., Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. (2007) recommended that marine mammals be divided into functional hearing groups based on directly measured or estimated hearing ranges on the basis of available behavioral response data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data. Note that no direct measurements of hearing ability have been successfully completed for mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS (2016) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 decibel (dB) threshold from the normalized composite audiograms, with the exception for lower limits for low-frequency cetaceans where the lower bound was deemed to be biologically implausible and the lower bound from Southall et al. (2007) retained. The functional groups and the associated frequencies are indicated below (note that these frequency ranges correspond to the range for the composite group, with the entire range not necessarily reflecting the capabilities of every species within that group):

    • Low-frequency cetaceans (mysticetes): Generalized hearing is estimated to occur between approximately 7 Hertz (Hz) and 35 kilohertz (kHz);

    • Mid-frequency cetaceans (larger toothed whales, beaked whales, and most delphinids): Generalized hearing is estimated to occur between approximately 150 Hz and 160 kHz;

    • High-frequency cetaceans (porpoises, river dolphins, and members of the genera Kogia and Cephalorhynchus; including two members of the genus Lagenorhynchus, on the basis of recent echolocation data and genetic data): Generalized hearing is estimated to occur between approximately 275 Hz and 160 kHz; and

    • Pinnipeds in water; Phocidae (true seals): Generalized hearing is estimated to occur between approximately 50 Hz to 86 kH.

    The pinniped functional hearing group was modified from Southall et al. (2007) on the basis of data indicating that phocid species have consistently demonstrated an extended frequency range of hearing compared to otariids, especially in the higher frequency range (Hemilä et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 2013).

    For more detail concerning these groups and associated frequency ranges, please see NMFS (2016) for a review of available information. Fourteen marine mammal species (twelve cetacean and two pinniped (both phocid species) have the reasonable potential to co-occur with the proposed survey activities (see Table 2). Of the cetacean species that may be present, five are classified as low-frequency cetaceans (i.e., all mysticete species), six are classified as mid-frequency cetaceans (i.e., all delphinid species and the sperm whale), and one is classified as a high-frequency cetacean (i.e., harbor porpoise).

    Potential Effects of Specified Activities on Marine Mammals and Their Habitat

    This section includes a summary and discussion of the ways that components of the specified activity may impact marine mammals and their habitat. The “Estimated Take” section later in this document includes a quantitative analysis of the number of individuals that are expected to be taken by this activity. The “Negligible Impact Analysis and Determination” section considers the content of this section, the “Estimated Take” section, and the “Proposed Mitigation” section, to draw conclusions regarding the likely impacts of these activities on the reproductive success or survivorship of individuals and how those impacts on individuals are likely to impact marine mammal species or stocks.

    Background on Sound

    Sound is a physical phenomenon consisting of minute vibrations that travel through a medium, such as air or water, and is generally characterized by several variables. Frequency describes the sound's pitch and is measured in Hz or kHz, while sound level describes the sound's intensity and is measured in dB. Sound level increases or decreases exponentially with each dB of change. The logarithmic nature of the scale means that each 10-dB increase is a 10-fold increase in acoustic power (and a 20-dB increase is then a 100-fold increase in power). A 10-fold increase in acoustic power does not mean that the sound is perceived as being 10 times louder, however. Sound levels are compared to a reference sound pressure (micro-Pascal) to identify the medium. For air and water, these reference pressures are “re: 20 micro Pascals (μPa)” and “re: 1 μPa,” respectively. Root mean square (RMS) is the quadratic mean sound pressure over the duration of an impulse. RMS is calculated by squaring all of the sound amplitudes, averaging the squares, and then taking the square root of the average (Urick 1975). RMS accounts for both positive and negative values; squaring the pressures makes all values positive so that they may be accounted for in the summation of pressure levels. This measurement is often used in the context of discussing behavioral effects, in part because behavioral effects, which often result from auditory cues, may be better expressed through averaged units rather than by peak pressures.

    When sound travels (propagates) from its source, its loudness decreases as the distance traveled by the sound increases. Thus, the loudness of a sound at its source is higher than the loudness of that same sound one km away. Acousticians often refer to the loudness of a sound at its source (typically referenced to one meter from the source) as the source level and the loudness of sound elsewhere as the received level (i.e., typically the receiver). For example, a humpback whale 3 km from a device that has a source level of 230 dB may only be exposed to sound that is 160 dB loud, depending on how the sound travels through water (e.g., spherical spreading (6 dB reduction with doubling of distance) was used in this example). As a result, it is important to understand the difference between source levels and received levels when discussing the loudness of sound in the ocean or its impacts on the marine environment.

    As sound travels from a source, its propagation in water is influenced by various physical characteristics, including water temperature, depth, salinity, and surface and bottom properties that cause refraction, reflection, absorption, and scattering of sound waves. Oceans are not homogeneous and the contribution of each of these individual factors is extremely complex and interrelated. The physical characteristics that determine the sound's speed through the water will change with depth, season, geographic location, and with time of day (as a result, in actual active sonar operations, crews will measure oceanic conditions, such as sea water temperature and depth, to calibrate models that determine the path the sonar signal will take as it travels through the ocean and how strong the sound signal will be at a given range along a particular transmission path). As sound travels through the ocean, the intensity associated with the wavefront diminishes, or attenuates. This decrease in intensity is referred to as propagation loss, also commonly called transmission loss.

    Acoustic Impacts

    Geophysical surveys may temporarily impact marine mammals in the area due to elevated in-water sound levels. Marine mammals are continually exposed to many sources of sound. Naturally occurring sounds such as lightning, rain, sub-sea earthquakes, and biological sounds (e.g., snapping shrimp, whale songs) are widespread throughout the world's oceans. Marine mammals produce sounds in various contexts and use sound for various biological functions including, but not limited to: (1) Social interactions; (2) foraging; (3) orientation; and (4) predator detection. Interference with producing or receiving these sounds may result in adverse impacts. Audible distance, or received levels of sound depend on the nature of the sound source, ambient noise conditions, and the sensitivity of the receptor to the sound (Richardson et al., 1995). Type and significance of marine mammal reactions to sound are likely dependent on a variety of factors including, but not limited to, (1) the behavioral state of the animal (e.g., feeding, traveling, etc.); (2) frequency of the sound; (3) distance between the animal and the source; and (4) the level of the sound relative to ambient conditions (Southall et al., 2007).

    When considering the influence of various kinds of sound on the marine environment, it is necessary to understand that different kinds of marine life are sensitive to different frequencies of sound. Current data indicate that not all marine mammal species have equal hearing capabilities (Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008).

    Animals are less sensitive to sounds at the outer edges of their functional hearing range and are more sensitive to a range of frequencies within the middle of their functional hearing range.

    Hearing Impairment

    Marine mammals may experience temporary or permanent hearing impairment when exposed to loud sounds. Hearing impairment is classified by temporary threshold shift (TTS) and permanent threshold shift (PTS). PTS is considered auditory injury (Southall et al., 2007) and occurs in a specific frequency range and amount. Irreparable damage to the inner or outer cochlear hair cells may cause PTS; however, other mechanisms are also involved, such as exceeding the elastic limits of certain tissues and membranes in the middle and inner ears and resultant changes in the chemical composition of the inner ear fluids (Southall et al., 2007). There are no empirical data for onset of PTS in any marine mammal; therefore, PTS-onset must be estimated from TTS-onset measurements and from the rate of TTS growth with increasing exposure levels above the level eliciting TTS-onset. PTS is presumed to be likely if the hearing threshold is reduced by ≥40 dB (that is, 40 dB of TTS).

    Temporary Threshold Shift (TTS)

    TTS is the mildest form of hearing impairment that can occur during exposure to a loud sound (Kryter 1985). While experiencing TTS, the hearing threshold rises and a sound must be stronger in order to be heard. At least in terrestrial mammals, TTS can last from minutes or hours to (in cases of strong TTS) days, can be limited to a particular frequency range, and can occur to varying degrees (i.e., a loss of a certain number of dBs of sensitivity). For sound exposures at or somewhat above the TTS threshold, hearing sensitivity in both terrestrial and marine mammals recovers rapidly after exposure to the noise ends.

    Marine mammal hearing plays a critical role in communication with conspecifics and in interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (i.e., recovery time), and frequency range of TTS and the context in which it is experienced, TTS can have effects on marine mammals ranging from discountable to serious. For example, a marine mammal may be able to readily compensate for a brief, relatively small amount of TTS in a non-critical frequency range that takes place during a time when the animals is traveling through the open ocean, where ambient noise is lower and there are not as many competing sounds present. Alternatively, a larger amount and longer duration of TTS sustained during a time when communication is critical for successful mother/calf interactions could have more serious impacts if it were in the same frequency band as the necessary vocalizations and of a severity that it impeded communication. The fact that animals exposed to levels and durations of sound that would be expected to result in this physiological response would also be expected to have behavioral responses of a comparatively more severe or sustained nature is also notable and potentially of more importance than the simple existence of a TTS.

    Currently, TTS data only exist for four species of cetaceans (bottlenose dolphin, beluga whale (Delphinapterus leucas), harbor porpoise, and Yangtze finless porpoise (Neophocaena phocaenoides)) and three species of pinnipeds (northern elephant seal (Mirounga angustirostris), harbor seal, and California sea lion (Zalophus californianus)) exposed to a limited number of sound sources (i.e., mostly tones and octave-band noise) in laboratory settings (e.g., Finneran et al., 2002 and 2010; Nachtigall et al., 2004; Kastak et al., 2005; Lucke et al., 2009; Mooney et al., 2009; Popov et al., 2011; Finneran and Schlundt, 2010). In general, harbor seals (Kastak et al., 2005; Kastelein et al., 2012a) and harbor porpoises (Lucke et al., 2009; Kastelein et al., 2012b) have a lower TTS onset than other measured pinniped or cetacean species. However, even for these animals, which are better able to hear higher frequencies and may be more sensitive to higher frequencies, exposures on the order of approximately 170 dB RMS or higher for brief transient signals are likely required for even temporary (recoverable) changes in hearing sensitivity that would likely not be categorized as physiologically damaging (Lucke et al., 2009). Additionally, the existing marine mammal TTS data come from a limited number of individuals within these species. There are no data available on noise-induced hearing loss for mysticetes. For summaries of data on TTS in marine mammals or for further discussion of TTS onset thresholds, please see Finneran (2015).

    Scientific literature highlights the inherent complexity of predicting TTS onset in marine mammals, as well as the importance of considering exposure duration when assessing potential impacts (Mooney et al., 2009a, 2009b; Kastak et al., 2007). Generally, with sound exposures of equal energy, quieter sounds (lower sound pressure levels (SPL)) of longer duration were found to induce TTS onset more than louder sounds (higher SPL) of shorter duration (more similar to sub-bottom profilers). For intermittent sounds, less threshold shift will occur than from a continuous exposure with the same energy (some recovery will occur between intermittent exposures) (Kryter et al., 1966; Ward 1997). For sound exposures at or somewhat above the TTS-onset threshold, hearing sensitivity recovers rapidly after exposure to the sound ends; intermittent exposures recover faster in comparison with continuous exposures of the same duration (Finneran et al., 2010). NMFS considers TTS as Level B harassment that is mediated by physiological effects on the auditory system.

    Animals in the Lease Area during the HRG survey are unlikely to incur TTS hearing impairment due to the characteristics of the sound sources, which include low source levels (208 to 221 dB re 1 µPa-m) and generally very short pulses and duration of the sound. Even for high-frequency cetacean species (e.g., harbor porpoises), which may have increased sensitivity to TTS (Lucke et al., 2009; Kastelein et al., 2012b), individuals would have to make a very close approach and also remain very close to vessels operating these sources in order to receive multiple exposures at relatively high levels, as would be necessary to cause TTS. Intermittent exposures—as would occur due to the brief, transient signals produced by these sources—require a higher cumulative SEL to induce TTS than would continuous exposures of the same duration (i.e., intermittent exposure results in lower levels of TTS) (Mooney et al., 2009a; Finneran et al., 2010). Moreover, most marine mammals would more likely avoid a loud sound source rather than swim in such close proximity as to result in TTS. Kremser et al. (2005) noted that the probability of a cetacean swimming through the area of exposure when a sub-bottom profiler emits a pulse is small—because if the animal was in the area, it would have to pass the transducer at close range in order to be subjected to sound levels that could cause TTS and would likely exhibit avoidance behavior to the area near the transducer rather than swim through at such a close range. Further, the restricted beam shape of the majority of the geophysical survey equipment planned for use (Table 1) makes it unlikely that an animal would be exposed more than briefly during the passage of the vessel.

    Masking

    Masking is the obscuring of sounds of interest to an animal by other sounds, typically at similar frequencies. Marine mammals are highly dependent on sound, and their ability to recognize sound signals amid other sound is important in communication and detection of both predators and prey (Tyack 2000). Background ambient sound may interfere with or mask the ability of an animal to detect a sound signal even when that signal is above its absolute hearing threshold. Even in the absence of anthropogenic sound, the marine environment is often loud. Natural ambient sound includes contributions from wind, waves, precipitation, other animals, and (at frequencies above 30 kHz) thermal sound resulting from molecular agitation (Richardson et al., 1995).

    Background sound may also include anthropogenic sound, and masking of natural sounds can result when human activities produce high levels of background sound. Conversely, if the background level of underwater sound is high (e.g., on a day with strong wind and high waves), an anthropogenic sound source would not be detectable as far away as would be possible under quieter conditions and would itself be masked. Ambient sound is highly variable on continental shelves (Myrberg 1978; Desharnais et al., 1999). This results in a high degree of variability in the range at which marine mammals can detect anthropogenic sounds.

    Although masking is a phenomenon which may occur naturally, the introduction of loud anthropogenic sounds into the marine environment at frequencies important to marine mammals increases the severity and frequency of occurrence of masking. For example, if a baleen whale is exposed to continuous low-frequency sound from an industrial source, this would reduce the size of the area around that whale within which it can hear the calls of another whale. The components of background noise that are similar in frequency to the signal in question primarily determine the degree of masking of that signal. In general, little is known about the degree to which marine mammals rely upon detection of sounds from conspecifics, predators, prey, or other natural sources. In the absence of specific information about the importance of detecting these natural sounds, it is not possible to predict the impact of masking on marine mammals (Richardson et al., 1995). In general, masking effects are expected to be less severe when sounds are transient than when they are continuous. Masking is typically of greater concern for those marine mammals that utilize low-frequency communications, such as baleen whales, because of how far low-frequency sounds propagate.

    Marine mammal communications would not likely be masked appreciably by the sub-bottom profiler signals given the directionality of the signals (for most geophysical survey equipment types planned for use (Table 1)) and the brief period when an individual mammal is likely to be within its beam.

    Non-Auditory Physical Effects (Stress)

    Classic stress responses begin when an animal's central nervous system perceives a potential threat to its homeostasis. That perception triggers stress responses regardless of whether a stimulus actually threatens the animal; the mere perception of a threat is sufficient to trigger a stress response (Moberg 2000; Seyle 1950). Once an animal's central nervous system perceives a threat, it mounts a biological response or defense that consists of a combination of the four general biological defense responses: Behavioral responses, autonomic nervous system responses, neuroendocrine responses, or immune responses.

    In the case of many stressors, an animal's first and sometimes most economical (in terms of biotic costs) response is behavioral avoidance of the potential stressor or avoidance of continued exposure to a stressor. An animal's second line of defense to stressors involves the sympathetic part of the autonomic nervous system and the classical “fight or flight” response which includes the cardiovascular system, the gastrointestinal system, the exocrine glands, and the adrenal medulla to produce changes in heart rate, blood pressure, and gastrointestinal activity that humans commonly associate with “stress.” These responses have a relatively short duration and may or may not have significant long-term effect on an animal's welfare.

    An animal's third line of defense to stressors involves its neuroendocrine systems; the system that has received the most study has been the hypothalamus-pituitary-adrenal system (also known as the HPA axis in mammals). Unlike stress responses associated with the autonomic nervous system, virtually all neuro-endocrine functions that are affected by stress—including immune competence, reproduction, metabolism, and behavior—are regulated by pituitary hormones. Stress-induced changes in the secretion of pituitary hormones have been implicated in failed reproduction (Moberg 1987; Rivier 1995), altered metabolism (Elasser et al., 2000), reduced immune competence (Blecha 2000), and behavioral disturbance. Increases in the circulation of glucocorticosteroids (cortisol, corticosterone, and aldosterone in marine mammals; see Romano et al., 2004) have been equated with stress for many years.

    The primary distinction between stress (which is adaptive and does not normally place an animal at risk) and distress is the biotic cost of the response. During a stress response, an animal uses glycogen stores that can be quickly replenished once the stress is alleviated. In such circumstances, the cost of the stress response would not pose a risk to the animal's welfare. However, when an animal does not have sufficient energy reserves to satisfy the energetic costs of a stress response, energy resources must be diverted from other biotic function, which impairs those functions that experience the diversion. For example, when mounting a stress response diverts energy away from growth in young animals, those animals may experience stunted growth. When mounting a stress response diverts energy from a fetus, an animal's reproductive success and its fitness will suffer. In these cases, the animals will have entered a pre-pathological or pathological state which is called “distress” (Seyle 1950) or “allostatic loading” (McEwen and Wingfield 2003). This pathological state will last until the animal replenishes its biotic reserves sufficient to restore normal function. Note that these examples involved a long-term (days or weeks) stress response exposure to stimuli.

    Relationships between these physiological mechanisms, animal behavior, and the costs of stress responses have also been documented fairly well through controlled experiments; because this physiology exists in every vertebrate that has been studied, it is not surprising that stress responses and their costs have been documented in both laboratory and free-living animals (for examples see, Holberton et al., 1996; Hood et al., 1998; Jessop et al., 2003; Krausman et al., 2004; Lankford et al., 2005; Reneerkens et al., 2002; Thompson and Hamer, 2000). Information has also been collected on the physiological responses of marine mammals to exposure to anthropogenic sounds (Fair and Becker 2000; Romano et al., 2002). For example, Rolland et al. (2012) found that noise reduction from reduced ship traffic in the Bay of Fundy was associated with decreased stress in North Atlantic right whales.

    Studies of other marine animals and terrestrial animals would also lead us to expect some marine mammals to experience physiological stress responses and, perhaps, physiological responses that would be classified as “distress” upon exposure to high frequency, mid-frequency and low-frequency sounds. For example, Jansen (1998) reported on the relationship between acoustic exposures and physiological responses that are indicative of stress responses in humans (for example, elevated respiration and increased heart rates). Jones (1998) reported on reductions in human performance when faced with acute, repetitive exposures to acoustic disturbance. Trimper et al. (1998) reported on the physiological stress responses of osprey to low-level aircraft noise while Krausman et al. (2004) reported on the auditory and physiology stress responses of endangered Sonoran pronghorn to military overflights. Smith et al. (2004a, 2004b), for example, identified noise-induced physiological transient stress responses in hearing-specialist fish (i.e., goldfish) that accompanied short- and long-term hearing losses. Welch and Welch (1970) reported physiological and behavioral stress responses that accompanied damage to the inner ears of fish and several mammals.

    Hearing is one of the primary senses marine mammals use to gather information about their environment and to communicate with conspecifics. Although empirical information on the relationship between sensory impairment (TTS, PTS, and acoustic masking) on marine mammals remains limited, it seems reasonable to assume that reducing an animal's ability to gather information about its environment and to communicate with other members of its species would be stressful for animals that use hearing as their primary sensory mechanism. Therefore, we assume that acoustic exposures sufficient to trigger onset PTS or TTS would be accompanied by physiological stress responses because terrestrial animals exhibit those responses under similar conditions (NRC 2003). More importantly, marine mammals might experience stress responses at received levels lower than those necessary to trigger onset TTS. Based on empirical studies of the time required to recover from stress responses (Moberg 2000), we also assume that stress responses are likely to persist beyond the time interval required for animals to recover from TTS and might result in pathological and pre-pathological states that would be as significant as behavioral responses to TTS.

    In general, there are few data on the potential for strong, anthropogenic underwater sounds to cause non-auditory physical effects in marine mammals. The available data do not allow identification of a specific exposure level above which non-auditory effects can be expected (Southall et al., 2007). There is no definitive evidence that any of these effects occur even for marine mammals in close proximity to an anthropogenic sound source. In addition, marine mammals that show behavioral avoidance of survey vessels and related sound sources are unlikely to incur non-auditory impairment or other physical effects. NMFS does not expect that the generally short-term, intermittent, and transitory HRG and geotechnical activities would create conditions of long-term, continuous noise and chronic acoustic exposure leading to long-term physiological stress responses in marine mammals.

    Behavioral Disturbance

    Behavioral disturbance may include a variety of effects, including subtle changes in behavior (e.g., minor or brief avoidance of an area or changes in vocalizations), more conspicuous changes in similar behavioral activities, and more sustained and/or potentially severe reactions, such as displacement from or abandonment of high-quality habitat. Behavioral responses to sound are highly variable and context-specific and any reactions depend on numerous intrinsic and extrinsic factors (e.g., species, state of maturity, experience, current activity, reproductive state, auditory sensitivity, time of day), as well as the interplay between factors (e.g., Richardson et al., 1995; Wartzok et al., 2003; Southall et al., 2007; Weilgart, 2007; Archer et al., 2010). Behavioral reactions can vary not only among individuals but also within an individual, depending on previous experience with a sound source, context, and numerous other factors (Ellison et al., 2012), and can vary depending on characteristics associated with the sound source (e.g., whether it is moving or stationary, number of sources, distance from the source). Please see Appendices B-C of Southall et al. (2007) for a review of studies involving marine mammal behavioral responses to sound.

    Habituation can occur when an animal's response to a stimulus wanes with repeated exposure, usually in the absence of unpleasant associated events (Wartzok et al., 2003). Animals are most likely to habituate to sounds that are predictable and unvarying. It is important to note that habituation is appropriately considered as a “progressive reduction in response to stimuli that are perceived as neither aversive nor beneficial,” rather than as, more generally, moderation in response to human disturbance (Bejder et al., 2009). The opposite process is sensitization, when an unpleasant experience leads to subsequent responses, often in the form of avoidance, at a lower level of exposure. As noted, behavioral state may affect the type of response. For example, animals that are resting may show greater behavioral change in response to disturbing sound levels than animals that are highly motivated to remain in an area for feeding (Richardson et al., 1995; NRC 2003; Wartzok et al., 2003). Controlled experiments with captive marine mammals have shown pronounced behavioral reactions, including avoidance of loud sound sources (Ridgway et al., 1997; Finneran et al., 2003). Observed responses of wild marine mammals to loud, pulsed sound sources (typically seismic airguns or acoustic harassment devices) have been varied but often consist of avoidance behavior or other behavioral changes suggesting discomfort (Morton and Symonds, 2002; see also Richardson et al., 1995; Nowacek et al., 2007).

    Available studies show wide variation in response to underwater sound; therefore, it is difficult to predict specifically how any given sound in a particular instance might affect marine mammals perceiving the signal. If a marine mammal does react briefly to an underwater sound by changing its behavior or moving a small distance, the impacts of the change are unlikely to be significant to the individual, let alone the stock or population. However, if a sound source displaces marine mammals from an important feeding or breeding area for a prolonged period, impacts on individuals and populations could be significant (e.g., Lusseau and Bejder, 2007; Weilgart 2007; NRC 2005). However, there are broad categories of potential response, which we describe in greater detail here, that include alteration of dive behavior, alteration of foraging behavior, effects to breathing, interference with or alteration of vocalization, avoidance, and flight.

    Changes in dive behavior can vary widely and may consist of increased or decreased dive times and surface intervals as well as changes in the rates of ascent and descent during a dive (e.g., Frankel and Clark 2000; Costa et al., 2003; Ng and Leung 2003; Nowacek et al., 2004; Goldbogen et al., 2013a,b). Variations in dive behavior may reflect interruptions in biologically significant activities (e.g., foraging) or they may be of little biological significance. The impact of an alteration to dive behavior resulting from an acoustic exposure depends on what the animal is doing at the time of the exposure and the type and magnitude of the response.

    Disruption of feeding behavior can be difficult to correlate with anthropogenic sound exposure, so it is usually inferred by observed displacement from known foraging areas, the appearance of secondary indicators (e.g., bubble nets or sediment plumes), or changes in dive behavior. As for other types of behavioral response, the frequency, duration, and temporal pattern of signal presentation, as well as differences in species sensitivity, are likely contributing factors to differences in response in any given circumstance (e.g., Croll et al., 2001; Nowacek et al.; 2004; Madsen et al., 2006; Yazvenko et al., 2007). A determination of whether foraging disruptions incur fitness consequences would require information on or estimates of the energetic requirements of the affected individuals and the relationship between prey availability, foraging effort and success, and the life history stage of the animal.

    Variations in respiration naturally vary with different behaviors and alterations to breathing rate as a function of acoustic exposure can be expected to co-occur with other behavioral reactions, such as a flight response or an alteration in diving. However, respiration rates in and of themselves may be representative of annoyance or an acute stress response. Various studies have shown that respiration rates may either be unaffected or could increase, depending on the species and signal characteristics, again highlighting the importance in understanding species differences in the tolerance of underwater noise when determining the potential for impacts resulting from anthropogenic sound exposure (e.g., Kastelein et al., 2001, 2005b, 2006; Gailey et al., 2007).

    Marine mammals vocalize for different purposes and across multiple modes, such as whistling, echolocation click production, calling, and singing. Changes in vocalization behavior in response to anthropogenic noise can occur for any of these modes and may result from a need to compete with an increase in background noise or may reflect increased vigilance or a startle response. For example, in the presence of potentially masking signals, humpback whales and killer whales have been observed to increase the length of their songs (Miller et al., 2000; Fristrup et al., 2003; Foote et al., 2004), while right whales have been observed to shift the frequency content of their calls upward while reducing the rate of calling in areas of increased anthropogenic noise (Parks et al., 2007b). In some cases, animals may cease sound production during production of aversive signals (Bowles et al., 1994).

    Avoidance is the displacement of an individual from an area or migration path as a result of the presence of a sound or other stressors, and is one of the most obvious manifestations of disturbance in marine mammals (Richardson et al., 1995). For example, gray whales are known to change direction—deflecting from customary migratory paths—in order to avoid noise from seismic surveys (Malme et al., 1984). Avoidance may be short-term, with animals returning to the area once the noise has ceased (e.g., Bowles et al., 1994; Goold 1996; Stone et al., 2000; Morton and Symonds, 2002; Gailey et al., 2007). Longer-term displacement is possible, however, which may lead to changes in abundance or distribution patterns of the affected species in the affected region if habituation to the presence of the sound does not occur (e.g., Blackwell et al., 2004; Bejder et al., 2006; Teilmann et al., 2006).

    A flight response is a dramatic change in normal movement to a directed and rapid movement away from the perceived location of a sound source. The flight response differs from other avoidance responses in the intensity of the response (e.g., directed movement, rate of travel). Relatively little information on flight responses of marine mammals to anthropogenic signals exist, although observations of flight responses to the presence of predators have occurred (Connor and Heithaus, 1996). The result of a flight response could range from brief, temporary exertion and displacement from the area where the signal provokes flight to, in extreme cases, marine mammal strandings (Evans and England, 2001). However, it should be noted that response to a perceived predator does not necessarily invoke flight (Ford and Reeves, 2008) and whether individuals are solitary or in groups may influence the response.

    Behavioral disturbance can also impact marine mammals in more subtle ways. Increased vigilance may result in costs related to diversion of focus and attention (i.e., when a response consists of increased vigilance, it may come at the cost of decreased attention to other critical behaviors such as foraging or resting). These effects have generally not been demonstrated for marine mammals, but studies involving fish and terrestrial animals have shown that increased vigilance may substantially reduce feeding rates (e.g., Beauchamp and Livoreil, 1997; Fritz et al., 2002; Purser and Radford, 2011). In addition, chronic disturbance can cause population declines through reduction of fitness (e.g., decline in body condition) and subsequent reduction in reproductive success, survival, or both (e.g., Harrington and Veitch, 1992; Daan et al., 1996; Bradshaw et al., 1998). However, Ridgway et al. (2006) reported that increased vigilance in bottlenose dolphins exposed to sound over a five-day period did not cause any sleep deprivation or stress effects.

    Many animals perform vital functions, such as feeding, resting, traveling, and socializing, on a diel cycle (24-hour cycle). Disruption of such functions resulting from reactions to stressors such as sound exposure are more likely to be significant if they last more than one diel cycle or recur on subsequent days (Southall et al., 2007). Consequently, a behavioral response lasting less than one day and not recurring on subsequent days is not considered particularly severe unless it could directly affect reproduction or survival (Southall et al., 2007). Note that there is a difference between multi-day substantive behavioral reactions and multi-day anthropogenic activities. For example, just because an activity lasts for multiple days does not necessarily mean that individual animals are either exposed to activity-related stressors for multiple days or, further, exposed in a manner resulting in sustained multi-day substantive behavioral responses.

    Marine mammals are likely to avoid the HRG survey activity, especially the naturally shy harbor porpoise, while the harbor seals might be attracted to them out of curiosity. However, because the sub-bottom profilers and other HRG survey equipment operate from a moving vessel, and the maximum radius to the Level B harassment threshold is relatively small, the area and time that this equipment would be affecting a given location is very small. Further, once an area has been surveyed, it is not likely that it will be surveyed again, thereby reducing the likelihood of repeated HRG-related impacts within the survey area.

    We have also considered the potential for severe behavioral responses such as stranding and associated indirect injury or mortality from DWW's use of HRG survey equipment, on the basis of a 2008 mass stranding of approximately 100 melon-headed whales in a Madagascar lagoon system. An investigation of the event indicated that use of a high-frequency mapping system (12-kHz multibeam echosounder) was the most plausible and likely initial behavioral trigger of the event, while providing the caveat that there is no unequivocal and easily identifiable single cause (Southall et al., 2013). The investigatory panel's conclusion was based on (1) very close temporal and spatial association and directed movement of the survey with the stranding event; (2) the unusual nature of such an event coupled with previously documented apparent behavioral sensitivity of the species to other sound types (Southall et al., 2006; Brownell et al., 2009); and (3) the fact that all other possible factors considered were determined to be unlikely causes. Specifically, regarding survey patterns prior to the event and in relation to bathymetry, the vessel transited in a north-south direction on the shelf break parallel to the shore, ensonifying large areas of deep-water habitat prior to operating intermittently in a concentrated area offshore from the stranding site; this may have trapped the animals between the sound source and the shore, thus driving them towards the lagoon system. The investigatory panel systematically excluded or deemed highly unlikely nearly all potential reasons for these animals leaving their typical pelagic habitat for an area extremely atypical for the species (i.e., a shallow lagoon system). Notably, this was the first time that such a system has been associated with a stranding event. The panel also noted several site- and situation-specific secondary factors that may have contributed to the avoidance responses that led to the eventual entrapment and mortality of the whales. Specifically, shoreward-directed surface currents and elevated chlorophyll levels in the area preceding the event may have played a role (Southall et al., 2013). The report also notes that prior use of a similar system in the general area may have sensitized the animals and also concluded that, for odontocete cetaceans that hear well in higher frequency ranges where ambient noise is typically quite low, high-power active sonars operating in this range may be more easily audible and have potential effects over larger areas than low frequency systems that have more typically been considered in terms of anthropogenic noise impacts. It is, however, important to note that the relatively lower output frequency, higher output power, and complex nature of the system implicated in this event, in context of the other factors noted here, likely produced a fairly unusual set of circumstances that indicate that such events would likely remain rare and are not necessarily relevant to use of lower-power, higher-frequency systems more commonly used for HRG survey applications. The risk of similar events recurring may be very low, given the extensive use of active acoustic systems used for scientific and navigational purposes worldwide on a daily basis and the lack of direct evidence of such responses previously reported.

    Tolerance

    Numerous studies have shown that underwater sounds from industrial activities are often readily detectable by marine mammals in the water at distances of many km. However, other studies have shown that marine mammals at distances more than a few km away often show no apparent response to industrial activities of various types (Miller et al., 2005). This is often true even in cases when the sounds must be readily audible to the animals based on measured received levels and the hearing sensitivity of that mammal group. Although various baleen whales, toothed whales, and (less frequently) pinnipeds have been shown to react behaviorally to underwater sound from sources such as airgun pulses or vessels under some conditions, at other times, mammals of all three types have shown no overt reactions (e.g., Malme et al., 1986; Richardson et al., 1995; Madsen and Mohl 2000; Croll et al., 2001; Jacobs and Terhune 2002; Madsen et al., 2002; Miller et al., 2005). In general, pinnipeds seem to be more tolerant of exposure to some types of underwater sound than are baleen whales. Richardson et al. (1995) found that vessel sound does not seem to affect pinnipeds that are already in the water. Richardson et al. (1995) went on to explain that seals on haul-outs sometimes respond strongly to the presence of vessels and at other times appear to show considerable tolerance of vessels, and Brueggeman et al. (1992) observed ringed seals (Pusa hispida) hauled out on ice pans displaying short-term escape reactions when a ship approached within 0.16-0.31 miles (0.25-0.5 km). Due to the relatively high vessel traffic in the Lease Area it is possible that marine mammals are habituated to noise (e.g., DP thrusters) from project vessels in the area.

    Vessel Strike

    Ship strikes of marine mammals can cause major wounds, which may lead to the death of the animal. An animal at the surface could be struck directly by a vessel, a surfacing animal could hit the bottom of a vessel, or a vessel's propeller could injure an animal just below the surface. The severity of injuries typically depends on the size and speed of the vessel (Knowlton and Kraus 2001; Laist et al., 2001; Vanderlaan and Taggart 2007).

    The most vulnerable marine mammals are those that spend extended periods of time at the surface in order to restore oxygen levels within their tissues after deep dives (e.g., the sperm whale). In addition, some baleen whales, such as the North Atlantic right whale, seem generally unresponsive to vessel sound, making them more susceptible to vessel collisions (Nowacek et al., 2004). These species are primarily large, slow moving whales. Smaller marine mammals (e.g., bottlenose dolphin) move quickly through the water column and are often seen riding the bow wave of large ships. Marine mammal responses to vessels may include avoidance and changes in dive pattern (NRC 2003).

    An examination of all known ship strikes from all shipping sources (civilian and military) indicates vessel speed is a principal factor in whether a vessel strike results in death (Knowlton and Kraus 2001; Laist et al., 2001; Jensen and Silber 2003; Vanderlaan and Taggart 2007). In assessing records with known vessel speeds, Laist et al. (2001) found a direct relationship between the occurrence of a whale strike and the speed of the vessel involved in the collision. The authors concluded that most deaths occurred when a vessel was traveling in excess of 24.1 km/h (14.9 mph; 13 knots (kn)). Given the slow vessel speeds and predictable course necessary for data acquisition, ship strike is unlikely to occur during the geophysical and geotechnical surveys. Marine mammals would be able to easily avoid the survey vessel due to the slow vessel speed. Further, DWW would implement measures (e.g., protected species monitoring, vessel speed restrictions and separation distances; see Proposed Mitigation) set forth in the BOEM lease to reduce the risk of a vessel strike to marine mammal species in the survey area.

    Marine Mammal Habitat

    The HRG survey equipment will not contact the seafloor and does not represent a source of pollution. We are not aware of any available literature on impacts to marine mammal prey from sound produced by HRG survey equipment. However, as the HRG survey equipment introduces noise to the marine environment, there is the potential for it to result in avoidance of the area around the HRG survey activities on the part of marine mammal prey. Any avoidance of the area on the part of marine mammal prey would be expected to be short term and temporary.

    Because of the temporary nature of the disturbance, and the availability of similar habitat and resources (e.g., prey species) in the surrounding area, the impacts to marine mammals and the food sources that they utilize are not expected to cause significant or long-term consequences for individual marine mammals or their populations. Impacts on marine mammal habitat from the proposed activities will be temporary, insignificant, and discountable.

    Estimated Take

    This section provides an estimate of the number of incidental takes proposed for authorization through this IHA, which will inform 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, 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, as use of the HRG equipment has the potential to result in disruption of behavioral patterns for individual marine mammals. NMFS has determined take by Level A harassment is not an expected outcome of the proposed activity and thus we do not propose to authorize the take of any marine mammals by Level A harassment. This is discussed in greater detail below. As described previously, no mortality or serious injury is anticipated or proposed to be authorized for this activity. Below we describe how the take is estimated for this project.

    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

    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—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 sound source (e.g., frequency, predictability, duty cycle); the environment (e.g., bathymetry); and the receiving animals (hearing, motivation, experience, demography, behavioral context); therefore can be difficult to predict (Southall et al., 2007, Ellison et al. 2012). NMFS uses a generalized acoustic threshold based on received level to estimate the onset of Level B (behavioral) harassment. NMFS predicts that marine mammals may be behaviorally harassed when exposed to underwater anthropogenic noise above received levels 160 dB re 1 μPa (RMS) for non-explosive impulsive (e.g., seismic HRG equipment) or intermittent (e.g., scientific sonar) sources. DWW's proposed activity includes the use of impulsive sources. Therefore, the 160 dB re 1 μPa (RMS) criteria is applicable for analysis of Level B harassment.

    Level A Harassment—NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (NMFS 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 Technical Guidance identifies the received levels, or thresholds, above which individual marine mammals are predicted to experience changes in their hearing sensitivity for all underwater anthropogenic sound sources, reflects the best available science, and better predicts the potential for auditory injury than does NMFS' historical criteria.

    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 3 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: www.nmfs.noaa.gov/pr/acoustics/guidelines.htm. As described above, DWW's proposed activity includes the use of intermittent and impulsive sources.

    Table 3—Thresholds Identifying the Onset of Permanent Threshold Shift in Marine Mammals 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. Note: *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 estimating the area ensonified above the acoustic thresholds.

    The proposed survey would entail the use of HRG survey equipment. The distance to the isopleth corresponding to the threshold for Level B harassment was calculated for all HRG survey equipment with the potential to result in harassment of marine mammals using the spherical transmission loss (TL) equation: TL = 20log10 γ. Results of modeling indicated that, of the HRG survey equipment planned for use that has the potential to result in harassment of marine mammals, the AA Dura-Spark would be expected to produce sound that would propagate the furthest in the water (Table 4); therefore, for the purposes of the take calculation, it was assumed the AA Dura-Spark would be active during the entirety of the survey. Thus the distance to the isopleth corresponding to the threshold for Level B harassment for the AA Dura-Spark (estimated at 447 m; Table 4) was used as the basis of the Level B take calculation for all marine mammals.

    Table 4—Modeled Radial Distances From HRG Survey Equipment to Isopleths Corresponding to Level B Harassment Threshold HRG system Radial
  • distance (m)
  • to Level B
  • harassment
  • threshold
  • (160 dB
  • re 1 μPa)
  • TB Chirp 70.79 EdgeTech Chirp 6.31 AA Boomer 5.62 AA S-Boom 141.25 Bubble Gun 63.1 800J Spark 141.25 AA Dura Spark 446.69

    Predicted distances to Level A harassment isopleths, which vary based on marine mammal functional hearing groups (Table 5), were also calculated. The updated acoustic thresholds for impulsive sounds (such as HRG survey equipment) contained in the Technical Guidance (NMFS, 2016) were presented as dual metric acoustic thresholds using both cumulative sound exposure level (SELcum) and peak sound pressure level metrics. As dual metrics, NMFS considers onset of PTS (Level A harassment) to have occurred when either one of the two metrics is exceeded (i.e., metric resulting in the largest isopleth).

    The SELcum metric considers both level and duration of exposure, as well as auditory weighting functions by marine mammal hearing group. In recognition of the fact that calculating Level A harassment ensonified areas could be more technically challenging to predict due to the duration component and the use of weighting functions in the new SELcum thresholds, NMFS developed an optional User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to facilitate the estimation of take numbers. DWW used the NMFS optional User Spreadsheet to calculate distances to Level A harassment isopleths based on SELcum. To calculate distances to the Level A harassment isopleths based on peak pressure, the spherical spreading loss model was used (similar to the method used to calculate Level B isopleths as described above).

    Modeling of distances to isopleths corresponding to Level A harassment was performed for all types of HRG equipment planned for use with the potential to result in harassment of marine mammals. Of the HRG equipment types modeled, the AA Dura Spark resulted in the largest distances to isopleths corresponding to Level A harassment for all marine mammal functional hearing groups; therefore, to be conservative, the isopleths modeled for the AA Dura Spark were used to estimate potential Level A take. Based on a conservative assumption that the AA Dura Spark would be operated at 1,000 joules during the survey, a peak source level of 223 dB re 1μPa was used for modeling Level A harassment isopleths based on peak pressure (Crocker & Fratantonio, 2016). Inputs to the NMFS optional User Spreadsheet for the AA Dura Spark are shown in Table 5. Modeled distances to isopleths corresponding to Level A harassment thresholds for the AA Dura Spark are shown in Table 6 (modeled distances to Level A harassment isopleths for all other types of HRG equipment planned for use are shown in Table 6 of the IHA application). As described above, NMFS considers onset of PTS (Level A harassment) to have occurred when either one of the two metrics is exceeded (i.e., metric resulting in the largest isopleth).

    Table 5—Inputs to the NMFS Optional User Spreadsheet for the AA Dura Spark Source Level (RMS SPL) 1 213 dB re 1μPa. Source Level (peak) 1 223 dB re 1μPa. Weighting Factor Adjustment (kHz) 1 3.2. Source Velocity (meters/second) 2.07. Pulse Duration (seconds) 0.0021. 1/Repetition rate (seconds) 2.42. Duty Cycle 0.00. 1 Derived from Crocker & Fratantonio (2016), based on operation at 1,000 joules. Table 6—Modeled Radial Distances to Isopleths Corresponding to Level A Harassment Thresholds Functional hearing group
  • (Level A harassment thresholds)
  • Radial
  • distance (m)
  • to Level A
  • harassment
  • threshold
  • (SELcum)
  • Radial
  • distance (m)
  • to Level A
  • harassment
  • threshold
  • (Peak SPLflat)
  • Low frequency cetaceans
  • (L pk,flat: 219 dB; L E,LF,24h: 183 dB)
  • 1.3 1.6
    Mid frequency cetaceans
  • (L pk,flat: 230 dB; L E,MF,24h: 185 dB)
  • 0.0 0.0
    High frequency cetaceans
  • (L pk,flat: 202 dB; L E,HF,24h: 155 dB)
  • 8.6 11.2
    Phocid Pinnipeds (Underwater)
  • (L pk,flat: 218 dB; L E,HF,24h: 185 dB)
  • 0.7 1.8

    Due to the small estimated distances to Level A harassment thresholds for all marine mammal functional hearing groups, based on both SELcum and peak SPL (Table 6), and in consideration of the proposed mitigation measures (see the Proposed Mitigation section for more detail), NMFS has determined that the likelihood of Level A take of marine mammals occurring as a result of the proposed survey is so low as to be discountable.

    We note that because of some of the assumptions included in the methods used, isopleths produced may be overestimates to some degree. Most of the acoustic sources proposed for use in DWW's survey (including the AA Dura-Spark) do not radiate sound equally in all directions but were designed instead to focus acoustic energy directly toward the sea floor. Therefore, the acoustic energy produced by these sources is not received equally in all directions around the source but is instead concentrated along some narrower plane depending on the beamwidth of the source. However, the calculated distances to isopleths do not account for this directionality of the sound source and are therefore conservative. Two types of geophysical survey equipment planned for use in the proposed survey are omni-directional (Table 1), however the modeled distances to isopleths corresponding to the Level B harassment threshold for these sources are smaller than that for the Dura Spark (Table 1), and the Dura Spark was used to conservatively estimate take for the duration of the survey. For mobile sources, such as the proposed survey, the User Spreadsheet predicts the closest distance at which a stationary animal would not incur PTS if the sound source traveled by the animal in a straight line at a constant speed.

    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.

    The best available scientific information was considered in calculating marine mammal exposure estimates (the basis for estimating take). For cetacean species, densities calculated by Roberts et al. (2016) were used. The density data presented by Roberts et al. (2016) incorporates aerial and shipboard line-transect survey data from NMFS and from other organizations collected over the period 1992-2014. Roberts et al. (2016) modeled density from 8 physiographic and 16 dynamic oceanographic and biological covariates, and controlled for the influence of sea state, group size, availability bias, and perception bias on the probability of making a sighting. NMFS considers the models produced by Roberts et al. (2016) to be the best available source of data regarding cetacean densities for this project. More information, including the model results and supplementary information for each model, is available online at: seamap.env.duke.edu/models/Duke-EC-GOM-2015/.

    For the purposes of the take calculations, density data from Roberts et al. (2016) were mapped using a geographic information system (GIS), using density data for the months June through December. Mean density per month for each species within the survey area was calculated by selecting 13 random raster cells selected from 100 km2 raster cells that were inside, or adjacent to, the RI-MA WEA (see Figure 1 in the IHA application). Estimates provided by the models are based on a grid cell size of 100 km2; therefore, model grid cell values were then divided by 100 to determine animals per square km.

    Systematic, offshore, at-sea survey data for pinnipeds are more limited than those for cetaceans. The best available information concerning pinniped densities in the proposed survey area is the U.S. Navy's Operating Area (OPAREA) Density Estimates (NODEs) (DoN, 2007). These density models utilized vessel-based and aerial survey data collected by NMFS from 1998-2005 during broad-scale abundance studies. Modeling methodology is detailed in DoN (2007). For the purposes of the take calculations, NODEs Density Estimates (DoN, 2007) as reported for the summer and fall seasons were used to estimate harbor seal and gray seal densities.

    Take Calculation and Estimation

    Here we describe how the information provided above is brought together to produce a quantitative take estimate.

    In order to estimate the number of marine mammals predicted to be exposed to sound levels that would result in harassment, radial distances to predicted isopleths corresponding to harassment thresholds are calculated, as described above. Those distances are then used to calculate the area(s) around the HRG survey equipment predicted to be ensonified to sound levels that exceed harassment thresholds. The area estimated to be ensonified to relevant thresholds in a single day of the survey is then calculated, based on areas predicted to be ensonified around the HRG survey equipment and the estimated trackline distance traveled per day by the survey vessel. DWW estimates a maximum daily track line distance of 110 km per day during HRG surveys. Based on the maximum estimated distance to the Level B harassment threshold of 447 m (Table 4) and the maximum estimated daily track line distance of 110 km, an area of 98.9 km2 would be ensonified to the Level B harassment threshold per day during HRG surveys.

    The number of marine mammals expected to be incidentally taken per day is then calculated by estimating the number of each species predicted to occur within the daily ensonified area, using estimated marine mammal densities as described above. Estimated numbers of each species taken per day are then multiplied by the number of survey days (i.e., 200), and the product is then rounded, to generate an estimate of the total number of each species expected to be taken over the duration of the survey (Table 7).

    The applicant estimated a total of 11 takes by Level A harassment of harbor porpoises, 5 takes by Level A harassment of harbor seals, and 7 takes by Level A harassment of gray seals would occur, in the absence of mitigation. However, as described above, due to the very small estimated distances to Level A harassment thresholds (Table 6), and in consideration of the proposed mitigation measures, the likelihood of the proposed survey resulting in take in the form of Level A harassment is considered so low as to be discountable; therefore, we do not propose to authorize take of any marine mammals by Level A harassment. Although there are no exclusion zones (EZs) proposed for pinnipeds, the estimated distance to the isopleth corresponding to the Level A harassment threshold for pinnipeds is less than 2 m (Table 6); therefore, we determined the likelihood of an animal being taken within this proximity of the survey equipment to be so low as to be discountable. Proposed take numbers are shown in Table 7.

    Table 7—Total Numbers of Potential Incidental Take of Marine Mammals Proposed for Authorization and Proposed Takes as a Percentage of Population Species Density
  • (#/100 km2)
  • Proposed
  • Level A
  • takes
  • Estimated
  • Level B
  • takes
  • Proposed
  • Level B
  • takes
  • Total
  • Proposed
  • takes
  • Total proposed
  • takes as a
  • percentage of
  • population 1
  • North Atlantic right whale 0.01706 0 3 3 3 0.6 Humpback whale 0.14439 0 29 29 29 1.8 Fin whale 2 0.21353 0 42 42 42 1.2 Sei whale 3 0.005 0 1 2 2 0.3 Minke whale 0.04745 0 9 9 9 <0.1 Sperm whale 0.00665 0 1 1 1 <0.1 Long-finned pilot whale 3 0.15364 0 30 32 32 0.2 Bottlenose dolphin 1.60936 0 318 318 318 0.3 Atlantic Spotted dolphin 3 0.00886 0 2 50 50 0.1 Common dolphin 2 4.59986 0 910 910 910 0.5 Atlantic white-sided dolphin 1.8036 0 357 357 357 1.0 Harbor porpoise 4 2.53125 0 501 501 501 1.1 Harbor seal 6.49533 0 1,285 1,285 1,285 1.7 Gray seal 9.41067 0 1,861 1,861 1,861 6.9 1 Estimates of total proposed takes as a percentage of population are based on marine mammal abundance estimates provided by Roberts et al. (2016), when available, except where noted otherwise, to maintain consistency with density estimates which are derived from data provided by Roberts et al. (2016). In cases where abundances are not provided by Roberts et al. (2016), total proposed takes as a percentage of population are based on abundance estimates in the NMFS Atlantic SARs (Hayes et al., 2018). 2 Estimates of total proposed takes as a percentage of population are based on marine mammal abundance estimates as reported in the 2007 TNASS (Lawson and Gosselin, 2009) (Table 2). Abundance estimates from TNASS were corrected for perception and availability bias, when possible. In general, where the TNASS survey effort provided superior coverage of a stock's range (as compared with NOAA shipboard survey effort), the resulting abundance estimate is considered more accurate than abundance estimates based on NMFS surveys. 3 The proposed number of authorized takes (Level B harassment only) for these species has been increased from the estimated take to mean group size. Source for sei whale group size estimate is: Schilling et al. (1992). Source for long-finned pilot whale group size estimate is: Augusto et al. (2017). Source for Atlantic spotted dolphin group size estimate is: Jefferson et al. (2008). 4 The density estimate in the IHA application is incorrectly shown as 0.0225781 animals/km2. The correct density estimate is reflected in Table 7.

    Species with Take Estimates Less than Mean Group Size: Using the approach described above to estimate take, the take estimates for the sei whale, long-finned pilot whale and Atlantic spotted dolphin were less than the average group sizes estimated for these species (Table 6). However, information on the social structures and life histories of these species indicates these species are often encountered in groups. The results of take calculations support the likelihood that the proposed survey is expected to encounter and to incidentally take these species, and we believe it is likely that these species may be encountered in groups. Therefore it is reasonable to conservatively assume that one group of each of these species will be taken during the proposed survey. We propose to authorize the take of the average group size for these species and stocks to account for the possibility that the proposed survey encounters a group of any of these species or stocks (Table 7). Note that the take estimate for the sperm whale was not increased to average group size because, based on water depths in the proposed survey area (16 to 28 m (52 to 92 ft)), it is very unlikely that groups of sperm whales, which tend to prefer deeper depths, would be encountered by the proposed survey.

    Proposed 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 relative cost and impact on operations.

    Proposed Mitigation Measures

    With NMFS' input during the application process, and as per the BOEM Lease, DWW is proposing the following mitigation measures during the proposed marine site characterization surveys.

    Marine Mammal Exclusion and Watch Zones

    Marine mammal exclusion zones (EZ) will be established around the HRG survey equipment and monitored by protected species observers (PSO) during HRG surveys as follows:

    • 500 m EZ for North Atlantic right whales;

    • 200 m EZ for all other ESA-listed cetaceans (including fin whale, sei whale and sperm whale); and

    • 25 m EZ for harbor porpoises.

    The applicant proposed a 500 m EZ for North Atlantic right whales and 200 m EZ for all other marine mammal species; however, for non-ESA-listed marine mammals, based on estimated distances to isopleths corresponding with Level A harassment thresholds (Table 5), we determined EZs for species other than those described above were not warranted. In addition to the EZs described above, PSOs will visually monitor and record the presence of all marine mammals within 500 m.

    Visual Monitoring

    As per the BOEM lease, visual and acoustic monitoring of the established exclusion and monitoring zones will be performed by four qualified and NMFS-approved PSOs. It would be the responsibility of the Lead PSO on duty to communicate the presence of marine mammals as well as to communicate and enforce the action(s) that are necessary to ensure mitigation and monitoring requirements are implemented as appropriate. PSOs would be equipped with binoculars and would estimate distances to marine mammals located in proximity to the vessel and/or exclusion zone using range finders. Reticulated binoculars would also be available to PSOs for use as appropriate based on conditions and visibility to support the siting and monitoring of marine species. Position data will be recorded using hand-held or vessel global positioning system (GPS) units for each sighting. Observations will take place from the highest available vantage point on the survey vessel. During surveys conducted at night, night-vision equipment with infrared light-emitting diodes spotlights and/or infrared video monitoring will be available for PSO use, and passive acoustic monitoring (PAM; described below) will be used (as required per the BOEM lease).

    Pre-Clearance of the Exclusion Zone

    Prior to initiating HRG survey activities, DWW would implement a 30-minute pre-clearance period. During this period, the PSOs would ensure that no marine mammals are observed within 200 m of the survey equipment (500 m in the case of North Atlantic right whales). Survey equipment would not start up until this 200 m zone (or, 500 m zone in the case of North Atlantic right whales) is clear of marine mammals for at least 30 minutes. This pre-clearance requirement would include small delphinoids that approach the vessel (e.g., bow ride). PSOs would also continue to monitor the zone for 30 minutes after survey equipment is shut down or survey activity has concluded.

    Passive Acoustic Monitoring

    As proposed by the applicant and required by the BOEM lease, PAM will be used to support monitoring during night time operations to provide for optimal acquisition of species detections at night. The PAM system will consist of an array of hydrophones with both broadband (sampling mid-range frequencies of 2 kHz to 200 kHz) and at least one low-frequency hydrophone (sampling range frequencies of 75 Hz to 30 kHz). The PAM operator(s) will monitor acoustic signals in real time both aurally (using headphones) and visually (via sound analysis software). PAM operators will communicate nighttime detections to the lead PSO on duty who will ensure the implementation of the appropriate mitigation measure. However, PAM detection alone would not trigger a requirement that any mitigation action be taken upon acoustic detection of marine mammals.

    Ramp-Up of Survey Equipment

    As proposed by the applicant, where technically feasible, a ramp-up procedure would be used for geophysical survey equipment capable of adjusting energy levels at the start or re-start of survey activities. The ramp-up procedure would be used at the beginning of HRG survey activities in order to provide additional protection to marine mammals near the survey area by allowing them to detect the presence of the survey and vacate the area prior to the commencement of survey equipment use at full energy. Ramp-up of the survey equipment would not begin until the relevant EZ has been cleared by the PSOs, as described above. Systems will be initiated at their lowest power output and will be incrementally increased to full power. If any marine mammals are detected within the EZ prior to or during the ramp-up, HRG equipment will be shut down (as described below).

    Shutdown Procedures

    As required in the BOEM lease, if a marine mammal is observed within or approaching the relevant EZ (as described above) an immediate shutdown of the survey equipment is required. Subsequent restart of the survey equipment may only occur after the animal(s) has either been observed exiting the relevant EZ or until an additional time period has elapsed with no further sighting of the animal (e.g., 15 minutes for harbor porpoise and 30 minutes for North Atlantic right whale, fin whale, sei whale and sperm whale).

    As required in the BOEM lease, if the HRG equipment shuts down for reasons other than mitigation (i.e., mechanical or electronic failure) resulting in the cessation of the survey equipment for a period greater than 20 minutes, a 30 minute pre-clearance period (as described above) would precede the restart of the HRG survey equipment. If the pause is less than less than 20 minutes, the equipment may be restarted as soon as practicable at its full operational level only if visual surveys were continued diligently throughout the silent period and the EZs remained clear of marine mammals during that entire period. If visual surveys were not continued diligently during the pause of 20 minutes or less, a 30-minute pre-clearance period (as described above) would precede the re-start of the HRG survey equipment. Following a shutdown, HRG survey equipment may be restarted following pre-clearance of the zones as described above.

    If a species for which authorization has not been granted, or, a species for which authorization has been granted but the authorized number of takes have been met, approaches or is observed within the area encompassing the Level B harassment isopleth (450 m), shutdown would occur.

    Vessel Strike Avoidance

    Vessel strike avoidance measures will include, but are not limited to, the following, as required in the BOEM lease, except under circumstances when complying with these requirements would put the safety of the vessel or crew at risk:

    • All vessel operators and crew will maintain vigilant watch for cetaceans and pinnipeds, and slow down or stop their vessel to avoid striking these protected species;

    • All vessel operators will comply with 10 knot (18.5 km/hr) or less speed restrictions in any SMA and DMA per NOAA guidance;

    • All vessel operators will reduce vessel speed to 10 knots (18.5 km/hr) or less when any large whale, any mother/calf pairs, large assemblages of non-delphinoid cetaceans are observed near (within 100 m (330 ft)) an underway vessel;

    • All survey vessels will maintain a separation distance of 500 m (1640 ft) or greater from any sighted North Atlantic right whale;

    • If underway, vessels must steer a course away from any sighted North Atlantic right whale at 10 knots (18.5 km/hr) or less until the 500 m (1640 ft) minimum separation distance has been established. If a North Atlantic right whale is sighted in a vessel's path, or within 100 m (330 ft) to an underway vessel, the underway vessel must reduce speed and shift the engine to neutral. Engines will not be engaged until the North Atlantic right whale has moved outside of the vessel's path and beyond 100 m. If stationary, the vessel must not engage engines until the North Atlantic right whale has moved beyond 100 m;

    • All vessels will maintain a separation distance of 100 m (330 ft) or greater from any sighted non-delphinoid cetacean. If sighted, the vessel underway must reduce speed and shift the engine to neutral, and must not engage the engines until the non-delphinoid cetacean has moved outside of the vessel's path and beyond 100 m. If a survey vessel is stationary, the vessel will not engage engines until the non-delphinoid cetacean has moved out of the vessel's path and beyond 100 m;

    • All vessels will maintain a separation distance of 50 m (164 ft) or greater from any sighted delphinoid cetacean. Any vessel underway remain parallel to a sighted delphinoid cetacean's course whenever possible, and avoid excessive speed or abrupt changes in direction. Any vessel underway reduces vessel speed to 10 knots (18.5 km/hr) or less when pods (including mother/calf pairs) or large assemblages of delphinoid cetaceans are observed. Vessels may not adjust course and speed until the delphinoid cetaceans have moved beyond 50 m and/or the abeam of the underway vessel;

    • All vessels will maintain a separation distance of 50 m (164 ft) or greater from any sighted pinniped; and

    • All vessels underway will not divert or alter course in order to approach any whale, delphinoid cetacean, or pinniped. Any vessel underway will avoid excessive speed or abrupt changes in direction to avoid injury to the sighted cetacean or pinniped.

    DWW will ensure that vessel operators and crew maintain a vigilant watch for cetaceans and pinnipeds by slowing down or stopping the vessel to avoid striking marine mammals. Project-specific training will be conducted for all vessel crew prior to the start of the site characterization survey activities. Confirmation of the training and understanding of the requirements will be documented on a training course log sheet. Signing the log sheet will certify that the crew members understand and will comply with the necessary requirements throughout the survey activities.

    Seasonal Operating Requirements

    As described above, the northern section of the proposed survey area partially overlaps with a portion of a North Atlantic right whale SMA which occurs east of Long Island, New York, and south of Massachusetts and Rhode Island. This SMA is active from November 1 through April 30 of each year. Survey vessels that are >65 ft in length would be required to adhere to the mandatory vessel speed restrictions (<10 kn) when operating within the SMA during times when the SMA is active. In addition, between watch shifts, members of the monitoring team would consult NMFS' North Atlantic right whale reporting systems for the presence of North Atlantic right whales throughout survey operations. Members of the monitoring team would monitor the NMFS North Atlantic right whale reporting systems for the establishment of a Dynamic Management Area (DMA). If NMFS should establish a DMA in the survey area, within 24 hours of the establishment of the DMA DWW would coordinate with NMFS to shut down and/or alter the survey activities as needed to avoid right whales to the extent possible.

    The proposed mitigation measures are designed to avoid the already low potential for injury in addition to some Level B harassment, and to minimize the potential for vessel strikes. There are no known marine mammal rookeries or mating grounds in the survey area that would otherwise potentially warrant increased mitigation measures for marine mammals or their habitat (or both). The proposed survey would occur in an area that has been identified as a biologically important area for migration for North Atlantic right whales. However, given the small spatial extent of the survey area relative to the substantially larger spatial extent of the right whale migratory area, the survey is not expected to appreciably reduce migratory habitat nor to negatively impact the migration of North Atlantic right whales, thus mitigation to address the proposed survey's occurrence in North Atlantic right whale migratory habitat is not warranted. The proposed survey area would partially overlap spatially with a biologically important feeding area for fin whales. However, the fin whale feeding area is sufficiently large (2,933 km2), and the acoustic footprint of the proposed survey is sufficiently small (<100 km2 estimated to be ensonified to the Level B harassment threshold per day), that the survey is not expected to appreciably reduce fin whale feeding habitat nor to neg