Federal Register Vol. 82, No.184,

Background

Pursuant to section 1706 of the Homeland Security Act of 2002, 40 U.S.C. 1315(a); Public Law 107-296, 116 Stat. 2135 (Nov. 25, 2002), the Secretary of Homeland Security is responsible for protecting the buildings, grounds, and property owned, occupied, or secured by the Federal Government (including any agency, instrumentality, or wholly owned or mixed ownership corporation thereof) and the persons on the property. To carry out this mandate, the Department is authorized to enforce the applicable Federal regulations for the protection of persons and property set forth in 41 CFR 102-74, subpart C.1 These regulations govern conduct on federal property and set forth the relevant criminal penalties. Although these regulations apply to all property under the authority of the General Services Administration and to all person entering in or on such property,2 the Secretary of Homeland Security is authorized pursuant to 40 U.S.C. 1315(d)(2)(A) to extend the applicability of and to enforce these regulations to any property owned or occupied by the Federal Government.

DHS is replacing existing border fence with bollard wall and constructing border wall prototypes near the city of San Diego in the United States Border Patrol's San Diego Sector pursuant to several statutory and executive directives.3 In order to protect and secure the property at or near the border wall prototype and fence replacement project areas, including, but not limited to, project sites, staging areas, access roads, and buildings temporarily erected to support construction activities, I temporarily extended the applicability, allowing the enforcement, of regulations governing the conduct of individuals on federal property to areas in or around the fence replacement and border wall prototype project areas, pursuant to 40 U.S.C. 1315(d)(2)(A). The project areas for border wall prototype and fence replacement are situated within a geographic area that starts at the Pacific Ocean and extends to approximately one mile east of Border Monument 251. Specifically, I temporarily extended the applicability, allowing the enforcement, of the regulations in 41 CFR part 102-74, subpart C, to any property owned or occupied by the Federal Government at or near the fence replacement and border wall prototype project areas near the city of San Diego.

The regulations in 41 CFR part 102-74, subpart C, will remain applicable and enforceable at these locations for the duration of the construction related to the fence replacement and border wall prototypes near the city of San Diego.

Section 1473 of the Dodd-Frank Act 1 included amendments to Title XI of the Financial Institutions Reform, Recovery, and Enforcement Act of 1989 2 (Title XI). Section 1109 of Title XI,3 Roster of State certified or licensed appraisers; authority to collect and transmit fees, was amended by the Dodd-Frank Act to require States 4 that elect to register and supervise AMCs to collect: (1) From AMCs that have been in existence for more than a year an annual registry fee of $25 multiplied by the number of appraisers working for or contracting with such AMC in such State during the previous year; and (2) from AMCs that have not been in existence for more than a year, $25 multiplied by an appropriate number to be determined by the ASC. Such $25 amount may be adjusted, up to a maximum of $50, at the discretion of the ASC, if necessary to carry out the ASC's Title XI functions.5

Section 1117 of Title XI,6 Establishment of State appraiser certifying and licensing agencies, was amended by the Dodd-Frank Act to include additional duties for States, if they so choose, to: (1) Register and supervise AMCs; and (2) add information about AMCs in their State to the National Registry of AMCs (AMC Registry).7 States electing to register and supervise AMCs under Section 1117 must implement minimum requirements in accordance with the AMC Rule.8

Section 1103 of Title XI,9 Functions of Appraisal Subcommittee, was amended by the Dodd-Frank Act to require the ASC to maintain the AMC Registry of those AMCs that are either:

(1) Registered with and subject to supervision by a State that has elected to register and supervise AMCs; or (2) are operating subsidiaries of a Federally regulated financial institution (Federally regulated AMCs). On or before the effective date of this rule, the ASC will issue an ASC Bulletin to States that will address:

1. When the AMC Registry will be open for States; and

2. Reporting requirements (information required to be submitted by States in order to register AMCs on the AMC Registry) with the effective date for compliance.

Title XI as amended by the Dodd-Frank Act imposes a statutory restriction on performance of services by AMCs for a federally related transaction (FRT) 10 that applies after a 36-month period that began when the AMC Rule became effective (Implementation Period).11 The ASC recognizes that States electing to register and supervise AMCs may need to amend their rules and/or regulations, or revise their operating procedures in order to implement AMC registry fees. Given the limited period of time between publication of this final rule and the expiration of the Implementation Period, States may not be able to implement the AMC registry fees within the Implementation Period. As discussed further below in the subsection Collection and transmission of annual AMC registry fees, only those AMCs whose registry fees have been transmitted to the ASC are eligible to be on the AMC Registry. While the ASC encourages States that elect to register and supervise AMCs to begin collecting fees from registered AMCs as soon as possible in accordance with the requirements of Section 1109 of Title XI so that those AMCs may be entered on the AMC Registry, the restriction on performance of services for FRTs will not impact an AMC so long as the AMC is registered with a State that has elected to register and supervise AMCs, or is subject to oversight by a Federal financial institutions regulatory agency.

On May 20, 2016, the ASC published a proposed rule with a 60-day public comment period on implementation of the annual AMC registry fee that States would collect and transmit to the ASC if they elect to register and supervise AMCs.12 This final rule sets the fee formula that States would apply in collecting annual AMC registry fees and transmitting those fees to the ASC.

The final rule: (1) Establishes the annual AMC registry fee in section 1109 of Title XI for AMCs in those States electing to register and supervise AMCs; and (2) implements collection and transmission of AMC registry fees as required by section 1109. The final rule sets forth the ASC's interpretation of the phrase “working for or contracting with” for purposes of calculating the annual AMC registry fee.

For the reasons discussed in section III of this SUPPLEMENTARY INFORMATION, the final rule adopts the rule substantially as proposed. The final rule contains technical, nonsubstantive changes.

The following is a section-by-section review of the proposed rule and a discussion of the public comments received by the ASC concerning the proposal. The ASC received 104 comment letters in response to the published proposal. These comment letters were received from State appraiser certifying and licensing agencies, AMCs, appraiser and real estate trade associations, professional associations, appraisal firms and appraisers.

The ASC requested comment on all aspects of the proposed rule. The following is a discussion of the definitions, related public comments and issues relating to those definitions. Definitions on which the ASC did not receive comment are not discussed below and are adopted without change in the final rule.

The ASC is adopting the definitions substantially as proposed, including cross-references to the definitions established in the AMC Rule. Several commenters requested that the cross-referenced definitions be included in the final rule rather than as proposed by cross reference to definitions in the AMC Rule. However, if the ASC were to adopt the approach suggested by these commenters, in the event those AMC Rule definitions are amended by the interagency process in the future, definitions included in this rule would become inaccurate and inconsistent. To avoid that circumstance, the ASC is adopting the definitions as proposed with cross-reference to those definitions established by the AMC Rule.

One commenter expressed concern over the definition of “appraiser panel” stating AMCs should not be penalized over other providers of appraisal services, and included discussion on appraisal firms and AMCs. This commenter quoted language from the AMC Rule on appraisal firms. Another commenter expressed concern that the definition of “appraiser panel” should only include independent contractors and not employees. The issues raised by these commenters were determined in the interagency AMC Rule during that rulemaking process.

Proposed § 1102.401(d) defined performance of an appraisal. Proposed § 1102.401(d) is being corrected to define performed an appraisal, which conforms to the actual phrase used throughout the rule, to mean the appraisal service requested of an appraiser by the AMC was provided to the AMC. The ASC is adopting this definition without substantive change as § 1102.401(d) in the final rule. One commenter questioned whether this referred to initial submission of the report or when the appraisal has been reviewed and accepted by the client in its final form. The ASC recognizes that the issue may be complicated by the ongoing debate within the profession concerning when an appraisal is complete. The ASC is adopting the definition as proposed, intending for the terms to remain subject to a plain English interpretation. Another commenter requested a definition of “appraisal service” be included in the final rule. The ASC recognizes that various appraisal services could be requested, including an appraisal review, and therefore declines to define the phrase, recognizing that States can be more restrictive. In general, commenters supported the proposed definition.

The ASC is adopting proposed § 1102.402 without change. Section 1102.402 establishes the annual AMC registry fee for States that elect to register and supervise AMCs as follows:

(1) In the case of an AMC that has been in existence for more than a year, $25 multiplied by the number of appraisers who have performed an appraisal for the AMC on a covered transaction in such State during the previous year; and (2) in the case of an AMC that has not been in existence for more than a year, $25 multiplied by the number of appraisers who have performed an appraisal for the AMC on a covered transaction in such State since the AMC commenced doing business.

For AMCs that have been in existence for more than a year, section 1109 of Title XI provides that the annual AMC registry fee is based on the number of appraisers “working for or contracting with” an AMC in a State during a 12-month period multiplied by $25, but where such $25 amount may be adjusted up to a maximum of $50.13 The final rule adopts the minimum fee of $25 as set by statute and interprets the phrase “working for or contracting with” to mean those appraisers on an AMC appraiser panel that performed an appraisal for the AMC on a covered transaction during the previous year in a particular State.

For AMCs that have not been in existence for more than a year, the statute requires a determination by the ASC of an appropriate multiplier to calculate registry fees for those AMCs. The ASC proposed to use the same factors of $25 multiplied by the number of appraisers that performed an appraisal for the AMC on a covered transaction, but the fee would be based on the actual period of time since the AMC commenced doing business rather than 12 months. For example, if an AMC has been operating for 6 months, the fee would be calculated by multiplying $25 by the number of appraisers that performed an appraisal for the AMC on a covered transaction during that 6-month period.

One commenter stated the ASC should identify what it will do with revenue from AMC registry fees and suggested the ASC should consider decreasing the fee to less than $25 which would still allow the ASC plenty of funds to perform its Title XI-related functions. The commenter asserted the ASC has discretion to do so. However, section 1109(a)(4), by its plain terms, sets the minimum fee allowed under the statutory framework at $25. The statute did provide latitude for the ASC to establish an appropriate number to multiply by $25 for AMCs that have not been in existence for more than a year. Using the actual period of time since the AMC commenced doing business will maintain some consistency in the calculation of AMC registry fees to reduce administrative burden for the States. Based on the ASC's anticipated costs of overseeing States that elect to register and supervise AMCs, as well as the ASC's anticipated costs of maintaining the AMC Registry, the ASC believes the proposed annual AMC registry fee would cover those costs while supporting other Title XI functions of the ASC as mandated by Congress, and in particular, further development of its grant programs, particularly to support States as funds are available.

The ASC considered three options with respect to interpreting the phrase “working for or contracting with.” Under the first option, the phrase “working for or contracting with” would have been interpreted to include every appraiser on an AMC appraiser panel during the reporting period 14 in a particular State. The multiplier in this option would have included all appraisers on an AMC's appraiser panel in a particular State, including appraisers accepted by the AMC for consideration for future appraisal assignments. One commenter stated this option would likely penalize AMCs for adding appraisers to their roster for future use, and would also be burdensome for States. Another commenter stated the interpretation under the first option would be the easiest for States. The ASC remains concerned that this option would impose the most burden to AMCs and impose the highest registry fees.

Under the second option, the phrase “working for or contracting with” would have been interpreted to include those appraisers engaged by the AMC to perform an appraisal on a covered transaction during the reporting period in a particular State. Under this option, those appraisers engaged by the AMC to perform an appraisal, regardless of whether the appraiser completed the appraisal during the reporting period, would be included in the calculation of the AMC's registry fees.

The ASC requested comment on the second option's interpretation of the phrase “working for or contracting with” and whether this would be an easier interpretation for the States to administer. (See Question 3 in the proposal.) Several commenters expressed concern over this option. One commenter stated that AMCs could reduce their panel sizes, thereby creating slower turnaround times and utilizing fewer appraisers. Another commenter stated the interpretation under the second option would not be easier to implement and States would have to rely on AMCs self reporting this information. Another commenter expressed concern that the second option could penalize AMCs if an order is accepted and assigned but later cancelled and neither the AMC or the appraiser receive any compensation, and could also be burdensome for States to enforce without having a status of assignments and their completion during a given timeframe.

Under the third option, which is adopted in the final rule, the phrase “working for or contracting with” includes those appraisers that performed an appraisal for the AMC on a covered transaction during the reporting period in a particular State. This option excludes appraisers accepted by the AMC for consideration for future appraisal assignments as well as appraisers who performed appraisals in the past, but did not perform any appraisals in the reporting period. The AMC registry fee is not intended to result in an appraiser being counted twice in calculating the fee, regardless of how many appraisals that appraiser performed in a single State during a reporting period. A few commenters misunderstood the proposed application of the fee and thought the fee would be calculated based on the total number of individual appraisers on an AMC panel, or that the fee would be imposed based on individual appraisals, neither of which is consistent with the proposal or the final rule.

Several commenters expressed support for the third option as having the least economic impact to an AMC, the least burden for appraisers and preferable from a State administrative point of view. A few commenters expressed support for the third option but believed it would be a burden for States to collect information from AMCs. One commenter, while stating the third option is costly to AMCs, stated that the third option would be the most equitable as it applies to those appraisers who had completed appraisal assignments, and that the first two options may cause AMCs to pare their appraiser panels. One commenter stated the third option would also simplify the queries that States would need to run to report all registered AMCs that have completed appraisal reports during a specific year or timeframe. Another commenter stated AMCs may use fewer appraisers for appraisal assignments to keep AMC registry fees down. The ASC anticipates there may well be such responses by AMCs to reduce their registry fees, but under the statutory framework, it is seemingly unavoidable.

The ASC requested comment on the ASC's interpretation of the phrase “working for or contracting with.” (See Question 2 in the proposal.) One commenter expressed concern that for AMCs in business less than 12 months, determining how many appraisals have been performed could be difficult. Another commenter suggested “working for” and “contracting with” should be properly defined with specifics and parameters. One commenter requested clarification of the term “working for,” and another commenter, while supporting the third option, commented the term “performed” needs clarity, suggesting appraisals could be considered “performed” when delivered by the AMC to the client. The ASC recognizes that because the AMC is acting as an agent of the appraiser's client, delivery of an appraisal to the AMC could also be deemed delivery to the client. The ASC is adopting the interpretation as proposed, intending for the terms to remain subject to a plain English interpretation.

The ASC also requested comment on what aspects of the proposed rule, if any, would be challenging for States to implement and any alternative approaches that would make implementation easier, while maintaining consistency with the statute. (See Question 8 in the proposal.) Several commenters expressed concern that the proposed rule would create significant administrative burden on the State to calculate and verify registry fees, and would also result in expenditures to administer and transmit the registry fees. Some commenters are opposed to the fee in general, while a few expressed opposition to AMCs. A few commenters suggested no action should be taken until the Dodd-Frank Act is amended. One commenter stated the ASC should seek legislative changes to 12 U.S.C. 3338 asserting it is fundamentally flawed, and requested withdrawal of the proposed rule until the federal statute is changed. The ASC, however, is charged with implementation of the statute as passed by Congress.

One commenter stated that the 500 hours of regulatory burden is understated, and added States should be reimbursed for expenses in collecting and transmitting registry fees. Another commenter also stated that the 500 hours is underestimated stating the ASC failed to consider administrative costs and expenses for creating and maintaining a database, and for the staff time to run the program. The ASC is working to minimize such burden in simplifying the reporting requirements for AMCs. As stated in the proposal, the ASC will issue a Bulletin to address reporting requirements with the effective date for compliance.

Another commenter foresees several barriers to collecting reliable data on how many appraisers are on an AMC panel and how many have done work for the AMC in the previous 12 months, including the necessity to adopt new rules, create new forms and update current IT systems to collect and maintain this data, all of which will result in increased labor costs for staff needed for implementation of the proposed rule. As stated in the proposed rule, the ASC anticipates further development of its grants program, particularly in support of the States as funds are available. The statutory purpose of ASC grants to the States is to provide funds to assist States in compliance with Title XI. Therefore, as funds are available, the ASC could consider establishing a grant to assist States in registry reporting requirements and transmission of registry fees for both appraisers and AMCs. Another commenter suggested the ASC should provide a revenue projection as well as costs to develop the AMC Registry. The ASC has included those expenses in its budget process and will continue to do so on an annual basis.

Another commenter opposed the interpretation of “working for or contracting with,” stating it will create an entirely new regulatory criterion for States to implement and validate, thereby requiring audits. It should be noted that there is no federal requirement for States to audit AMCs to determine validity of information submitted to the State. A State may determine to periodically audit, or not to exercise such authority at all, or alternatively, a State may rely on the complaint/investigation process to determine if and when an audit is warranted.

By far the majority of comments received expressed concern over these additional fees and the impact on appraisers if the fee is passed on to them by the AMCs. More specifically, these commenters requested that the final rule prohibit AMCs from passing the fee on to appraisers. While the ASC shares in the concern expressed over the fee being passed on to appraisers, such regulation of AMCs is outside of the authority of the ASC. The ASC notes the fee imposed by statute is not a fee assessed on appraisers, but rather on AMCs. Some commenters identified certain States are already attempting to regulate this at the State level. One commenter, however, stated the choice to pass the fee on to the appraiser should be left to the AMC, and that appraisers have a choice whether to participate on an AMC panel.

Some commenters expressed concern that AMCs hide their appraisal management fees from borrowers by including them as part of the fee paid to appraisers, and requested that the final rule require fees be disclosed to the borrower. This, however, is outside the authority of the ASC. Comments were also received expressing concern over AMCs not paying customary and reasonable fees to appraisers, or charging appraisers various fees to be on an AMC panel. This too is outside the authority of the ASC.

One commenter suggested consideration of a de minimis exception, stating the ASC should allow AMCs to use the IRS 1099 threshold and thus exclude those appraisers to whom it pays less than $600 during a tax year, which would include appraisers who performed only one appraisal assignment, and perhaps up to three. The commenter suggests its proposal as an alternative to potentially reduce AMC registry fees. However, the ASC would not have authority under the statute to provide such an exception, particularly in the case of AMCs that have been in existence for more than a year. Furthermore, the ASC is concerned there would be undesirable consequences. For example, there could be a reduction in appraiser fees in order to avoid the proposed threshold. Additionally, AMCs might select appraisers in a manner to avoid the threshold rather than basing a selection on competency. The ASC will continue to work with States to address increased burden and will continue to explore means to provide additional grant funding to the States to support State programs as funds are available and additional grant policies and procedures are developed and approved.

A few commenters expressed preference for a flat fee to avoid any need to verify that AMCs are sending in the correct amount, another commenter suggested a two-tiered system and another commenter suggested a tiered structure based on the size of the appraiser panel and/or the volume of appraisals brokered by an AMC. The ASC considered these various options to calculating the AMC registry fee, but concluded that such options were not supported by the statute. Also, the ASC notes, in response to several commenters expressing concern over the honor system versus auditing AMCs on information provided to the State by AMCs, that it is up to the State to determine whatever process the State deems appropriate.

Two commenters stated the AMC registry fee should be calculated based on FRTs, not covered transactions. The ASC believes the proposal is consistent with the AMC Rule and the statute. The AMC Rule defined a covered transaction as any consumer credit transaction secured by the consumer's principal dwelling.15 As stated in the AMC Rule preamble, the definition did not limit the definition of covered transaction to FRTs, even though Title XI and its implementing regulations have applied historically only to appraisals for FRTs. The AMC Rule, through the interagency process, determined that defining “covered transaction” as such reflected the statutory text of section 1121(11), which defines the term “appraisal management company,” as in pertinent part, “any external third party authorized either by a creditor of a consumer credit transaction secured by the consumer's principal dwelling or by an underwriter of or other principal in the secondary mortgage markets.” 16 It was further stated in the AMC Rule preamble that applying coverage of the AMC Rule beyond FRTs was consistent with the structure and text of other parts of Title XI, section 1124, most of which address appraisals generally rather than appraisals only for FRTs, and in particular, the text of section 1124(a)(4) of Title XI indicates that one of the chief purposes of the minimum requirements for AMCs is to ensure compliance with the valuation independence standards established pursuant to section 129E of the Truth and Lending Act (TILA) (15 U.S.C. 1639e).17 The preamble of the AMC Rule concluded that those standards apply to AMCs whenever they engage in a consumer credit transaction secured by the consumer's principal dwelling, regardless of whether the transaction is a FRT.18

Another commenter questioned the benefit of the AMC Registry to the industry as a whole. The ASC notes the requirement for the ASC to maintain the AMC Registry is statutory. The benefit of the Registry initially will be to promote information sharing between States on AMCs. The Registry will also allow lenders, AMCs and other stakeholders to identify AMCs that are located in participating States, and therefore subject to State registration and supervision. In addition, the Registry will identify AMCs that are Federally regulated AMCs.

The ASC is adopting § 1102.403(a) and (b) substantially as proposed regarding collection and transmission of annual AMC registry fees. On or before the effective date of this rule, the ASC will issue an ASC Bulletin to States that will address:

1. When the AMC Registry will be open for States; and

2. Reporting requirements (information required to be submitted by States in order to register AMCs on the AMC Registry) with the effective date for compliance.

Section 1102.403(a) and (b) implement collection and transmission of annual AMC registry fees for States that elect to register and supervise AMCs following the statutory scheme set forth in sections 1109 and 1117 of Title XI as amended by the Dodd-Frank Act. The final rule requires AMC registry fees to be collected and transmitted to the ASC on an annual basis by States that elect to register and supervise AMCs. Only those AMCs whose registry fees have been transmitted to the ASC are eligible to be on the AMC Registry.

The ASC requested comment on all aspects of proposed collection and transmission of annual AMC registry fees. (See Question 4 in the proposal.) One commenter stated that while it is understandable that States should have some flexibility in connection with the collection of registry fees, some boundaries or guidelines should be implemented within the final rule because varying State expiration dates could be financially and logistically challenging for AMCs. One commenter stated that the staggered renewal dates could complicate the reporting process and may be a burden to AMCs and States to maintain records. The commenter suggested the reporting period should be the same for every State. As proposed, the ASC recognizes that States should have the flexibility to align a one-year period with any 12-month period, which may or may not be based on the calendar year. Based on annual fees paid by the States historically for appraiser registry fees, the ASC recognizes States require flexibility to determine the period for reporting and collection of registry fees dependent on their budget cycles, rules and statutes. States vary greatly on the 12-month cycle as well as renewal cycles, which in some States may be 2 years or more. Just as many States do not use a calendar year for their existing appraiser credentialing process, the ASC believes that allowing States to set the 12-month period provides appropriate flexibility and will help States comply with the collection and transmission of AMC fees and reduce regulatory burden for State governments. States may choose to do this in a similar manner as they currently do for their appraisers, meaning some States have a date certain every year, while other States use, for example, the appraiser's date of birth (States could use AMC registration date similarly). The registration cycle is left to the individual States to determine, but the ASC notes that the statutory requirement in section 1109(a)(4) requires States to submit AMC registry fees to the ASC annually.19

Several other commenters expressed concern over the additional burden on States to collect and transmit information and fees to the ASC and the need for additional funding and staff. Another commenter stated the ASC should consider implementing a centralized computer system for collecting AMC registry fees, and use some of the fees to provide grants to States to set up and run their AMC programs. The ASC will continue to work with States to address increased burden and will continue to explore means to provide additional grant funding to the States to support State programs as funds are available and additional grant policies and procedures are developed and approved.

One commenter objected to States levying additional fees on AMCs to cover the costs of collecting and transmitting fees to the ASC. This commenter referenced the AMC Rule stating in its preamble the option for States to collect administrative fees from Federally regulated AMCs to offset the cost of collecting the AMC Registry fee and the information related to the fee. The ASC understands the basis for the concern, but recognizes this is a matter left to the States.

The ASC requested comment on Federally regulated AMCs operating in a State that does not elect to register and supervise AMCs, and whether the ASC should collect information and fees directly from those Federally regulated AMCs. (See Question 5 in the proposal.) The ASC received a number of comments in response to this question. One commenter expressed concerns about collecting fees from Federally regulated AMCs which are exempt from registration with the State. Another commenter stated that Federally regulated AMCs operating in a State that does not have an AMC program should report and submit fees directly to the ASC. A few commenters stated that the State would not have authority to collect fees from entities that are exempt from State licensure and they do not have authority to require that those entities submit data to the State Board and requested that the ASC collect the fees from those entities directly. Several commenters stated the ASC should collect fees directly from Federally regulated AMCs rather than the State acting as a pass-through. One commenter stated if the ASC sets up a program to collect fees from Federally regulated AMCs in States that do not register and supervise AMCs, the ASC should consider the same for States with an AMC program. Another commenter stated that States could choose to opt out due to the reported low percentage of FRTs compared to overall transactions, which would result in a barrier to collection of fees in those States. The ASC considered commenters' concerns, but recognizes the authority to impose requirements on Federally regulated AMCs lies with the Agencies.20 The ASC will work with the Agencies to address these concerns.

Some commenters expressed concern that even though they elect to register and supervise AMCs, they would have no authority over Federally regulated AMCs, and therefore no ability to accept information or fees from those AMCs. The ASC recognizes this may present a challenge for some States. However, for States that elect to register and supervise AMCs, the requirement to collect fees from Federally regulated AMCs is statutory. The Agencies 21 involved with issuing the AMC Rule recognized that practical challenges may arise as the minimum requirements are adopted in States and reporting requirements take effect and the Agencies committed to monitor these issues. The ASC will monitor these issues as well and will continue to explore means to provide additional grant funding to the States to support State programs as funds are available and additional grant policies and procedures are developed and approved.

The ASC requested comment on what barriers, if any, exist that would make it difficult for a State to implement the collection and transmission of AMC registry fees (see Question 6 in the proposal) and what costs, both direct in terms of fees and indirect in terms of administrative costs, would be associated with collection and transmission of AMC registry fees (see Question 7 in the proposal). One commenter estimated that the burden for a State's program would be 25 hours per month of staff time to complete and would cost approximately $6000 to design a database and $700/month for staff to maintain. Another commenter stated the proposed rule could negatively affect AMCs, consumers and real estate appraisers, as well as create burden for States. This commenter also stated AMCs will likely pass on fees to clients and therefore consumers. Another commenter stated costs may negatively affect smaller AMCs causing consolidation of AMCs. Another concern was that AMCs may pare down appraiser panels. The ASC recognizes the collection and transmission to the ASC of AMC registry fees by the States would create some recordkeeping, reporting and compliance requirements. However, these collection and transmission requirements are imposed by the statute. The ASC will continue to work with States to address increased burden and will continue to explore means to provide additional grant funding to the States to support State programs as funds are available and additional grant policies and procedures are developed and approved.

Several commenters requested that States should be allowed to send in multi-year registry fees rather than annually. Another commenter expressed concern that States could incur significant administrative costs to implement programming changes to their computer systems if they have to collect fees annually rather than multi-year fees as they do now for appraisers. If a State can assess on a multi-year basis, the ASC would not object. However, the ASC notes that the statutory requirement in section 1109(a)(4) requires States that elect to register and supervise AMCs to submit AMC registry fees to the ASC annually.22 For clarification purposes, language that was included at the end of proposed section 1102.403(b) referencing the “12-month period subsequent to payment of the fee” has been removed to avoid conflict should a State assess the fee on a multi-year basis.

Another commenter expressed the desire for the ASC to continue to accept data files for AMCs. Historically, the ASC accepted data files, and continues to do so on a limited basis for the Appraiser Registry. However, this method of transmitting rosters is obsolete and time consuming. The ASC has continued to improve the Appraiser Registry using more up-to-date transmission methods such as the extranet application and Simple Object Access Protocol (SOAP) in order to provide more real-time information on the National Registries. While the ASC recognizes this may impose additional burden on States, the ASC will continue to explore means to provide grant funding to the States to support State programs as funds are available and additional grant policies and procedures are developed and approved.

Another commenter was concerned with specific collection and transmission scenarios and how various scenarios would impact determination of fees, calculation of panel size, transmission of fees, verification of fee calculation and audit requirements. Several of this commenter's concerns deal with logistics and will be part of the ASC Bulletin concerning reporting requirements which will be issued after this final rule. This commenter also wanted to know what timeline the ASC is considering between verification and remittance, similar to another commenter who stated there should be flexibility with the timing of payment of fees and the actual transmission of the fees, and that the final rule should add additional language that clearly addresses these potential gaps in order to avoid any unintended consequences. This is a matter that will be left to the States to administer within the following parameters: (1) AMC registry fees must be collected and transmitted to the ASC on an annual basis by States that elect to register and supervise AMCs; and (2) only those AMCs whose registry fees have been transmitted to the ASC are eligible to be on the AMC Registry.

Certain provisions of the final rule contain “information collection” requirements within the meaning of the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501 et seq.). Under the PRA, the ASC may not conduct or sponsor, and, notwithstanding any other provision of law, a person is not required to respond to, an information collection unless the information collection displays a valid Office of Management and Budget (OMB) control number. The information collection requirements contained in this final rule were submitted to OMB for review and approval at the proposed rule stage by the ASC pursuant to section 3506 of the PRA and section 1320.11 of the OMB's implementing regulations (5 CFR part 1320). OMB instructed the ASC to examine public comment in response to the proposed rule and describe in the supporting statement of their next collections any public comments received regarding the collection as well as why (or why it did not) incorporate the commenter's recommendation. The ASC received 12 public comments regarding the collection and concern of burden on States, and two comments voiced concern that the ASC did not perform a cost benefit analysis. The ASC described the comments in the supporting statement above and the discussion below on the Regulatory Flexibility Act, and addressed why the ASC did not incorporate commenters' recommendations. The collection of information requirements in the final rule are found in §§ 1102.400-1102.403. This information is required to implement section 1473 of the Dodd-Frank Act.

Title of Information Collection: Collection and Transmission of Annual AMC Registry Fees.

OMB Control Nos.: The ASC will be seeking new control numbers for these collections.

Frequency of Response: Event generated.

Affected Public: States; businesses or other for-profit and not-for-profit organizations.

States that elect to register and supervise AMCs are required to collect and transmit annual AMC registry fees to the ASC. Section 1102.402 establishes the annual AMC registry fee for States that elect to register and supervise AMCs as follows: (1) In the case of an AMC that has been in existence for more than a year, $25 multiplied by the number of appraisers who have performed an appraisal for the AMC on a covered transaction in such State during the previous year; and (2) in the case of an AMC that has not been in existence for more than a year, $25 multiplied by the number of appraisers who have performed an appraisal for the AMC on a covered transaction in such State since the AMC commenced doing business.

Section 1102.403 requires AMC registry fees to be collected and transmitted to the ASC on an annual basis by States that elect to register and supervise AMCs. Only those AMCs whose registry fees have been transmitted to the ASC will be eligible to be on the AMC Registry. Section 1102.403 clarifies that States may align a one-year period with any 12-month period, which may, or may not, be based on the calendar year. The registration cycle is left to the individual States to determine.

Section 1103 of Title XI, Functions of Appraisal Subcommittee, was amended by the Dodd-Frank Act to require the ASC to maintain a registry of AMCs that are either: (1) Registered with and subject to supervision by a State; or (2) Federally regulated AMCs. On or before the effective date of this rule, the ASC will issue an ASC Bulletin to States that will address:

1. When the AMC Registry will be open for States; and

2. Reporting requirements (information required to be submitted by States in order to register AMCs on the AMC Registry) with the effective date for compliance.

Burden Estimates:

Total Number of Respondents: 500 AMCs, 55 States.

Burden Total: 500 hours.

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601 et seq., generally requires that, in connection with a rulemaking, an agency prepare and make available for public comment a regulatory flexibility analysis that describes the impact of the proposed rule on small entities. However, the regulatory flexibility analysis otherwise required under the RFA is not required if an agency certifies that the proposed rule will not have a significant economic impact on a substantial number of small entities and publishes its certification and a brief explanatory statement in the Federal Register together with the rule. Based on its analysis, and for the reasons stated below, the ASC believes that the rule will not have a significant economic impact on a substantial number of small entities.

Section 1109 of Title XI provides that State appraiser certifying and licensing agencies that elect to register and supervise AMCs shall collect (1) from AMCs that have been in existence for more than a year, annual AMC registry fees in the amount of $25 (up to a maximum of $50) multiplied by the number of appraisers “working for or contracting with” an AMC in a State during the previous year; and (2) from AMCs that have not been in existence for more than a year, annual AMC registry fees in the amount of $25 (up to a maximum of $50) multiplied by an appropriate number to be determined by the ASC.23 The purpose of the statutory fee is to support the ASC's functions under Title XI. Because the ASC believes the minimum fee required by the statute would be adequate to support its functions, the rule adopts the minimum fee of $25 as set by statute. The rule also interprets the phrase “working for or contracting with” to mean those appraisers that performed an appraisal for the AMC on a covered transaction during the reporting period. For AMCs that have existed for more than a year, the formula is $25 multiplied by the number of appraisers who have performed an appraisal for the AMC on a covered transaction during the previous year. For AMCs that have not existed for more than a year, the $25 fee is multiplied by the number of appraisers that performed an appraisal for the AMC on a covered transaction since the AMC commenced doing business.

Regarding the fee for AMCs that have been in existence for more than a year, the ASC believes the rule imposes the minimum fee allowed under the statutory provisions of section 1109. The ASC did not exercise statutory discretion granted to the ASC to increase the fee above $25. Further, the ASC interprets “working for or contracting with” to mean only those appraisers who actually performed an appraisal for the AMC, as opposed to all appraisers on the AMC's panel or all appraisers engaged, regardless of whether the assignment was completed. The ASC believes this formula results in the lowest fee allowed by the statute and the ASC chose not to exercise its authority to increase this minimum fee. Therefore, any burden produced is the result of statutory and not regulatory requirements.

The ASC has also decided to adopt the statutory minimum fee of $25 for AMCs that have not existed for more than a year. As required by statute, the ASC adopted an appropriate number against which to multiply the $25 fee. The ASC adopted the same multiple as used for AMCs that have existed for more than a year (i.e., the number of appraisers that have performed appraisal assignments for the AMC). It is possible that the ASC may have been able to adopt a multiple that would have resulted in a lower fee and would still be deemed appropriate. In this regard, the rule may have created a burden for AMCs that have not existed for more than a year, beyond the burden created by the statutory requirements alone. However, using the actual period of time since the AMC commenced doing business will maintain some consistency in the calculation of AMC registry fees to reduce administrative burden for the States.

One commenter stated the proposed rule would have a large financial impact on smaller AMCs and community banks and credit unions, as well as appraisers, and asserted that the RFA requires analysis when the rule directly regulates small entities. This commenter stated that as an owner of a small AMC, regulatory fees proposed are burdensome, and as a national AMC, is opposed to paying for the same appraiser in different States, especially given that the AMC registry fee is on top of other State fees required by the States, and regulatory oversight seems “duplicitous.” Another commenter stated the proposed rule would affect thousands of small appraisal businesses as a result of AMCs passing the registry fee on to appraisers, and that the ASC should do extensive analysis on how the proposed rule will affect residential appraisers. The ASC shares in the concern but has no authority to regulate that issue. A few commenters indicated that some States are looking at regulating this issue at the State level. In support of those States, the ASC notes the fee imposed by statute is not a fee assessed on appraisers, but rather on AMCs. This commenter, similar to the previous commenter, also did not believe the requirements of section 609(a) of the RFA have been met and that the fee may force small AMCs out of business, as well as impact sole proprietorships that accept assignments from AMCs. This commenter went on to state that while the ASC is not required to adhere to Executive Order 12866 or issue cost benefit analysis, this commenter believes it is sound best practice.

The ASC carefully considered these matters and concluded requirements under the rule are imposed by the statute, not the rule, and further, the requirements apply to those States that elect to register and supervise AMCs following the statutory scheme set forth in section 1473 of the Dodd-Frank Act. In addition, the RFA does not require an agency to conduct a small-entity impact analysis when the agency does not regulate the affected entities (AMCs, lenders, appraisers). The ASC's statutory oversight extends to State certifying and licensing agencies. Section 1109 of Title XI provides the framework and minimum fee to collect from AMCs for States that elect to register and supervise AMCs. The ASC believes the rule as proposed imposes the minimum fee of $25 allowed under the statutory provisions of section 1109. The statute did provide latitude for the ASC to establish an appropriate number to multiply by $25 for AMCs that have not been in existence for a year. Using the actual period of time since the AMC commenced doing business will maintain some consistency in the calculation of AMC registry fees to reduce administrative burden for the States. The ASC did not exercise statutory discretion granted to the ASC to increase the fee above $25. Therefore, any burden produced is the result of statutory and not regulatory requirements.

While some burden beyond the statutory requirements may have resulted from the rule for AMCs that have not existed for more than a year, the ASC does not believe the rule will have a significant economic impact on a substantial number of small entities. There are only approximately 500 AMCs operating in the United States. The annual regulatory burden will only apply to new AMCs that have not existed for more than a year. Given the small number of AMCs currently in operation, it is unlikely that there will be a substantial number of AMCs that commence doing business in any given year. Further, the ASC adopted the lowest possible fee of $25. Therefore, the ASC does not believe that the exercise of its discretion in setting the fee formula for such AMCs will have a significant economic impact on a substantial number of small entities.

The collection and transmission to the ASC of AMC registry fees by the States would create some recordkeeping, reporting and compliance requirements. However, these collection and transmission requirements are imposed by the statute, not the rule. Further, the RFA requires an agency to perform a regulatory flexibility analysis of small entity impacts when the agency's rule directly regulates the small entities.24

Based on its analysis, and for the reasons stated above, the ASC believes that the rule will not have a significant economic impact on a substantial number of small entities. Therefore, the ASC certifies that the final rule will not have a significant economic impact on a substantial number of small entities.

The ASC has analyzed the final rule under the factors in the Unfunded Mandates Reform Act of 1995 (UMRA) (2 U.S.C. 1532). Under this analysis, the ASC considered whether the final rule includes a Federal mandate that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year (adjusted annually for inflation). For the following reasons, the ASC finds that the final rule does not trigger the $100 million UMRA threshold. The costs specifically related to requirements set forth in statute are excluded from expenditures under the UMRA. Given that the final rule reflects requirements that arise from section 1473 of the Dodd-Frank Act, the UMRA cost estimate for the proposed rule is zero. For this reason, and for the other reasons cited above, the ASC has determined that this final rule will not result in expenditures by State, local, and tribal governments, or the private sector, of $100 million or more in any one year. Accordingly, this proposed rule is not subject to section 202 of the UMRA.

For the reasons set forth in the preamble, the ASC amends 12 CFR part 1102 as follows:

Discussion

We issued AD 2014-07-09, Amendment 39-17823 (79 FR 22367; April 22, 2014) (“AD 2014-07-09”). That AD required actions intended to address an unsafe condition on British Aerospace Regional Aircraft Model Jetstream Series 3101 and Jetstream Model 3201 airplanes and was based on mandatory continuing airworthiness information (MCAI) originated by an aviation authority of another country.

Since we issued AD 2014-07-09, more extensive reports of corrosion have been received, resulting in the need to inspect additional areas.

We issued a notice of proposed rulemaking (NPRM) (82 FR 28592; June 23, 2017) to amend 14 CFR part 39 by adding an AD that would apply to British Aerospace Regional Aircraft Model Jetstream Series 3101 and Jetstream Model 3201 airplanes and supersede AD 2014-07-09.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Community, has issued EASA AD No.: 2017-0073, dated April 27, 2017 (referred to after this as “the MCAI”), to correct an unsafe condition for the specified products. The MCAI states:

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

Kenneth MacKinnon of BAE Systems Regional Aircraft stated that the Summary and Reason, paragraph (e) of this AD, both list corrosion issues that were introduced at Revision 6, which he assumes was mandated by AD 2014-07-09. He assumes this is an error and that both sections should summarize the changes introduced at Revisions 7 and 8, as detailed in the BAE SYSTEMS Certification Plans AWR/768/J3I and AWR/815/J31 respectively. BAE wants the summary to better reflect the changes since FAA AD 2014-07-09.

We partially agree with this comment. The Summary and Reason, paragraph (e) of this AD, could contain language to better clarify the unsafe condition. We disagree with including all of the details in this AD because we matched the intent of the EASA AD, and the details provided are included in the service documents. We have added language to the Summary and Reason, paragraph (e) of this AD, to clarify the unsafe condition.

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

• Are consistent with the intent that was proposed in the NPRM for correcting 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 AD.

We reviewed British Aerospace Jetstream Series 3100 & 3200 Corrosion Prevention and Control Programme, Manual Ref: JS/CPCP/01, Revision 8, dated October 15, 2016. The service information describes procedures for a comprehensive corrosion prevention and control program. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section of this document.

We estimate that this AD will affect 42 products of U.S. registry. We also estimate that it would take about 100 work-hours per product to comply with the basic requirements of this AD. The average labor rate is $85 per work-hour.

Based on these figures, we estimate the cost of this AD on U.S. operators to be $357,000, or $8,500 per product.

The scope of damage found in the required inspection could vary significantly from airplane to airplane. We have no way of determining how much damage may be found on each airplane or the cost to repair damaged parts on each airplane or the number of airplanes that may require repair.

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 small airplanes and domestic business jet transport airplanes to the Director of the Policy and Innovation Division.

We determined that 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 this AD:

(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.

You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0639; 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 the NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone (800) 647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2008-12-04, Amendment 39-15547 (73 FR 32991, June 11, 2008) (“AD 2008-12-04”). AD 2008-12-04 applied to certain The Boeing Company Model 737-600, -700, -700C, -800, and -900 series airplanes. The NPRM published in the Federal Register on November 22, 2016 (81 FR 83745) (“the NPRM”). The NPRM was prompted by an evaluation by the DAH that indicated that the upper skin panel at the chem-milled step above the lap joint is subject to WFD if the modification was installed after 30,000 total flight cycles. The NPRM proposed to continue to require various repetitive inspections to detect cracks along the chem-milled steps of the fuselage skin, and to detect missing or loose fasteners in the area of the preventive modification or repairs; replacement of the time-limited repair with a permanent repair, if applicable; and applicable corrective actions which would end certain repetitive inspections. The NPRM also proposed to reduce the post-modification inspection compliance times, limit installation of the preventive modification to airplanes with fewer than 30,000 total flight cycles, and add repetitive inspections for modified airplanes. We are issuing this AD to detect and correct cracking of the upper skin panel at the chem-milled step above the lap joint, which could result in reduced structural integrity of the airplane.

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

Boeing and United Airlines supported the NPRM.

Aviation Partners Boeing stated that installation of winglets, as provided in Supplemental Type Certificate (STC) ST00830SE, does not affect the ability to accomplish the actions proposed in the NPRM.

We agree with the commenter. We have redesignated paragraph (c) of the proposed AD as (c)(1) and added paragraph (c)(2) to this AD to state that installation of STC ST00830SE does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST00830SE 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.

Southwest Airlines (SWA) asked that we revise certain compliance language in paragraph (p)(4) of the proposed AD, which stipulated that post-repair or post-mod inspections be done at the time specified in the service information or at the time specified in the previously approved AMOC, “whichever occurs first.” SWA stated that previously approved AMOCs for post-repair or post-modification supplemental inspections that comply with certain regulations may contain unique damage tolerance inspection programs that demonstrate a level of safety equivalent to that of AD 2008-12-04. SWA added that altering those supplemental inspections to post-repair or post-modification inspections as specified in Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, when those are done first, could result in incorrect inspection methods to geometrical structure that does not conform to the repair or modification definitions specified in Revisions 1 and 3 of that service information.

We partially agree with the commenter's request. We have determined that repairs and preventive modifications should be handled separately. Fleet experience and subsequent analysis of Model 737-200, -200C, -300, -400, and -500 airplanes, which have similar chem-milled step details, have shown that certain post-preventative modification inspection programs may not adequately address the unsafe condition. Therefore, paragraph (p)(4) of this AD has been changed to remove the language “preventative modifications” and remove the reference to the service information and “whichever occurs first” from the compliance time specified. In addition, we have added paragraph (p)(5) to this AD to address only the preventive modifications without change to the service information and “whichever occurs first” language.

Additionally, SWA asked that paragraphs (j) and (k) of AD 2008-12-04 be included in the proposed AD. Paragraph (j) of AD 2008-12-04 provides an allowance for repairs that are FAA-approved and that have a minimum of three rows of fasteners above and below the chem-milled step. SWA stated that paragraph (k) of AD 2008-12-04 provides a means of inspections without an AMOC when an external repair is covering the chem-milled step, but that the doubler does not span the step by a minimum of three rows of fasteners above and below the chem-milled step. SWA added that both paragraphs (j) and (k) of AD 2008-12-04 are missing from the proposed AD and should be added, with certain clarifications, to paragraph (j) of the proposed AD. First, the repair is an external doubler repair. Second, in lieu of the doing the post-repair supplemental inspections in accordance with table 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015, the inspections should be done in accordance with 14 CFR 121.1109(c)(2) or 14 CFR 129.109(b)(2) supplemental inspection requirements, or in accordance with FAA-approved damage tolerance inspection requirements.

SWA also stated that if paragraphs (j) and (k) of AD 2008-12-04 are not restated for compliance with existing FAA-approved repairs, operators will be required to seek AMOC approvals for such existing repairs prior to the inspection threshold or repeat interval of table 1 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. SWA stated that not including the exceptions in paragraphs (j) and (k) of AD 2008-12-04 could potentially lead to disruption of operations if it is necessary to request AMOC approvals during repair discovery, or could burden operators with records research to identify these repairs for AMOC approvals prior to the required compliance times.

We agree that an allowance can be made for repairs that meet the criteria specified in paragraph (j) of AD 2008-12-04. These repairs address the unsafe condition identified in this AD. Therefore, we have added paragraph (l)(3) to this AD to include the provision of paragraph (j) of AD 2008-12-04 for repairs that were accomplished before the effective date of this AD.

We disagree that post-repair inspections for these repairs should be done in accordance with 14 CFR 121.1109(c)(2) or 14 CFR 129.109(b)(2) supplemental inspection requirements. Post-repair inspections for repairs that meet the criteria of paragraph (j) of this AD are to be accomplished in accordance with table 2 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. This is consistent with the DAH's current recommendation as well as the requirements of paragraph (j) of AD 2008-12-04. Paragraph (l)(3) of this AD reflects these provisions.

We also disagree with the commenter's request to change the word “repair” to “external doubler repair” in paragraph (l)(3) of this AD because we are retaining the provisions of paragraph (j) of AD 2008-12-04.

We also agree to add certain provisions of paragraph (k) of AD 2008-12-04 to this AD. We have added paragraph (l)(4) to this AD to address certain repairs as defined in paragraph (k) of AD 2008-12-04. However, paragraph (l)(4) of this AD does not include a reference to Boeing Model 737 Non-destructive Test (NDT) Manual, Part 6, Subject 53-30-20, and instead requires that the inspection be done using FAA-approved procedures. We have also added Note 1 to paragraph (l)(4) of this AD to specify that guidance on the inspection specified in paragraph (l)(4) of this AD can be found in Boeing Model 737 NDT Manual, Part 6, Subject 53-30-20.

We have revised the language in paragraph (i)(1) of this AD to clarify which modifications are exempt from the actions required by paragraph (i)(1) of this AD.

We reviewed the relevant data, considered the comments received, and determined that air safety and the public interest require adopting this AD 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 correcting 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 AD.

We reviewed Boeing Alert Service Bulletin 737-53A1232, Revision 3, dated July 27, 2015. This service information describes procedures for an external detailed inspection and an external nondestructive inspection (NDI) for cracks in the fuselage skin at chem-milled steps. Corrective actions include a permanent or time-limited repair, a preventive modification, and replacement of loose and missing fasteners. Related investigative actions include internal and external detailed inspections of the repair area. 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.

We estimate that this AD affects 376 airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

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

Discussion

On March 14, 2017, at 82 FR 13565, the Federal Register published our notice of proposed rulemaking (NPRM), which proposed to amend 14 CFR part 39 by adding an AD that would apply to Airbus Helicopters (formerly Eurocopter France) Model EC225LP helicopters. The NPRM proposed to require replacing the EMLUB glycol pump, the air and glycol pressure switches, and the MGB lubrication card, and modifying and re-identifying the helicopter wiring harness. The NPRM also proposed testing the function of the EMLUB and electrical systems and revising the Emergency Procedures section of the RFM. Lastly, the NPRM proposed to prohibit installing certain part-numbered EMLUB glycol pumps, air-pressure switches, glycol pressure switches and electronic boards on any helicopter. The proposed requirements were intended to prevent a false EMLUB warning. This condition when associated with a loss of the MGB oil pressure could result in an unnecessary emergency landing or ditching.

The NPRM was prompted by AD No. 2013-0156, dated July 18, 2013, issued by EASA, which is the Technical Agent for the Member States of the European Union, to correct an unsafe condition for the Airbus Helicopters Model EC225LP helicopters. EASA advises of two incidents of emergency ditching in the North Sea after a warning indication of MGB loss of oil pressure followed by a red alarm on the EMLUB. In both cases, the EMLUB provided a false failure indication due to a design nonconformity on the electrical outputs of some EMLUB air and glycol pressure-switches. EASA states that a false red EMLUB warning during an MGB emergency lubrication system operation could cause the flight crew to perform an immediate landing or ditching. As a result, the EASA AD requires several actions that restore safe operation of the EMLUB system.

We gave the public the opportunity to participate in developing this AD, but we received no comments on the NPRM.

These helicopters have been approved by the aviation authority of France and are approved for operation in the United States. Pursuant to our bilateral agreement with France, EASA, its technical representative, has notified us of the unsafe condition described in the EASA AD. We are issuing this AD because we evaluated all information provided by EASA and determined the unsafe condition exists and is likely to exist or develop on other helicopters of these same type designs and that air safety and the public interest require adopting the AD requirements as proposed.

Eurocopter (now Airbus Helicopters) issued Alert Service Bulletin (ASB) No. EC225-05A033, Revision 0, dated July 14, 2013, for Model EC225LP helicopters. This ASB specifies replacing the air and glycol pressure switches, modifying the helicopter wiring, replacing the glycol pump, replacing the MGB lubrication card, modifying the RFM emergency procedures in the event of EMLUB activation, and canceling the RFM limitations of Eurocopter Emergency ASB No. 04A010, dated July 14, 2013.

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.

Eurocopter (now Airbus Helicopters) also issued the following Alert Service Bulletins (ASBs), each dated July 14, 2013:

• Emergency ASB, Revision 1, with two different numbers: No. 04A010 for Model EC225LP helicopters and No. 04A009 for military Model EC725AP helicopters, which are not FAA type certificated. This Emergency ASB specifies modifying the RFM emergency procedures in the event of activation of the EMLUB system and applies only to those helicopters that have not been altered by certain modifications.

• Emergency ASB No. 05A032, Revision 2, for both Model EC225LP and military Model EC725AP helicopters. This Emergency ASB specifies checking that the EMLUB electrical system (harness, control, alarm, and indicator panel) operates correctly and applies only to those helicopters that have not been altered by certain modifications (the same as those for Emergency ASB No. 04A010 and No. 04A009).

We estimate that this AD affects 4 helicopters of U.S. Registry and that labor costs average $85 per work-hour. Based on these estimates, we expect the following costs. We estimate that 34 work-hours are needed to replace the air and glycol pressure switches, modify the helicopter wiring, replace the glycol pump, and replace the MGB lubrication card. The required parts cost $121,695 per helicopter. Based on these estimates, the total costs are $124,585 per helicopter and $498,340 for the U.S. fleet.

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 helicopters identified in this rulemaking action.

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 to the extent that it justifies making a regulatory distinction; and

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

We prepared an economic evaluation of the estimated costs to comply with this AD and placed it in the AD docket.

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

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 amends Class E airspace at Brainerd Lakes Regional Airport, Brainerd, MN, to support instrument flight rules operations at the airport.

The FAA published in the Federal Register a notice of proposed rulemaking (NPRM) (82 FR 22091, May 12, 2017) Docket No. FAA-2017-0188 to modify Class E airspace extending upward from 700 feet above the surface and associated Class E airspace at Brainerd Lakes Regional Airport, Brainerd, MN. An editorial correction is made to the heading for para 6002, removing excess language. 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 E airspace designations are published in paragraph 6002 and 6005 respectfully of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

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.

This amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 modifies Class E airspace extending upward from 700 feet above the surface within a 7.1-mile (from a 7.9-mile) radius of Brainerd Lakes Regional Airport (formerly Brainerd-Crow Wing County Regional Airport), MN, with a segment extending 2 miles each side of the 233° bearing extending from the 7.1-mile radius to 9.1 miles southwest of the airport.

Airspace reconfiguration is necessary due to the decommissioning of the Brainerd VORTAC and cancellation of the VOR approaches, and for the safety and management of the standard instrument approach procedures for IFR operations at the airport. This action also updates the geographic coordinates of the airport.

Additionally, this action replaces the outdated term Airport/Facility Directory with the term Chart Supplement in Class E surface area airspace, as well as updates the airport name from Brainerd-Crow Wing County Regional Airport to Brainerd Lakes Regional Airport.

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.

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 5-6.5.a. 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.

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority since it vertically subdivides the restricted airspace at Fort Gordon, GA, into three sections to enable more efficient use of airspace.

The restricted airspace at Fort Gordon, GA consists of R-3004A, extending from the surface to 7,000 feet MSL; and R-3004B, extending from 7,001 feet MSL to 16,000 feet MSL. The time of designation for both areas is as activated by NOTAM 24 hours in advance.

A FAA review of the utilization of the airspace revealed that most activities being conducted only require restricted airspace below 3,500 feet MSL. However, when R-3004A was activated, restrictions were in effect up to 7,000 feet MSL.

While lateral boundaries of the restricted airspace remain the same as currently charted and the overall vertical limits of the restricted airspace are unchanged, in order to provide for more efficient use of airspace, the FAA and the using agency agreed to further subdivide the restricted airspace vertically. The FAA is realigning the designated altitudes for R-3004A and R-3004B and establishing R-3004C as a third subdivision. The new configuration enables activation of restricted airspace to the lower altitude required for the majority of the using agency's training needs while maintaining the ability to activate additional restricted airspace for missions that require higher altitudes.

The designated altitudes for R-3004A are amended to read “surface to but not including 3,500 feet MSL” (decreased from 7,000 feet MSL). The designated altitudes for R-3004B are amended to read “3,500 feet MSL to but not including 7,000 feet MSL,” instead of the current “7,001 feet MSL to 16,000 feet MSL.” This amendment also established a third subdivision, designated R-3004C, which extends from 7,000 feet MSL to 16,000 feet MSL. These changes accommodate the using agency's requirements while releasing unneeded restricted airspace for access by other users.

In addition, the aircraft activity limitations on use of the areas are amended to clarify the limitations in effect during the annual Masters Golf Tournament.

These changes enhance the efficient use of the National Airspace System by providing for activation of the minimum amount of restricted airspace needed for the specific mission being conducted resulting in the release of unneeded restricted airspace for access by other users.

This rule amends Title 14 Code of Federal Regulations (14 CFR) part 73 by further dividing the current restricted airspace at Fort Gordon, GA, into three subareas instead of two. The designated altitudes for R-3004A are amended from the current “surface to 7,000 feet MSL,” to “surface to but not including 3,500 feet MSL.” The designated altitudes for R-3004B are amended from the current “7,001 feet MSL to 16,000 feet MSL” to “3,500 feet MSL to but not including 7,000 feet MSL.” A new third subdivision, designated R-3004C, is established and extends from 7,000 feet MSL to 16,000 feet MSL.”

Additionally, the terms and conditions listed in the restricted area legal descriptions for aircraft activities in the restricted areas are revised, in part. Specifically, in order to clarify aircraft operations during the annual Masters Golf tournament, the text of item number 1 is changed from “1. Aircraft activities may not be conducted on weekends, National holidays, or the entire week of the Masters Golf Tournament” to: “1. Aircraft activities must not be conducted on weekends, national holidays, or from the Sunday prior to the Masters Golf Tournament through the Monday after (and subsequent weather days if required).” The terms and conditions in Items 2 and 3 remain unchanged.

The above modifications enhance the efficient use of airspace and reduce the burden on the public by lessening the amount of restricted airspace at Fort Gordon, GA, that is activated on a routine basis. These modifications do not change the current lateral boundaries, overall designated altitudes, or activities conducted within the restricted areas; therefore, notice and public procedure under 5 U.S.C. 553(b) are unnecessary.

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

The FAA has determined that this action of vertically subdividing limits of existing restricted airspace within the current lateral and vertical limits qualifies for categorical exclusion under the National Environmental Policy Act and in accordance with FAA Order 1050.1F—Environmental Impacts: Policies and Procedures, Categorical Exclusions for Procedural Actions, paragraph 5-6.5d—Modification of the technical description of special use airspace (restricted areas) that does not alter the dimensions, altitudes, or times of designation of the airspace. Therefore, this airspace action is not expected to result in any significant environmental impacts. In accordance with FAAO 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, this action has been reviewed for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis, and it is determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment.

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

Background

The Entity List (Supplement No. 4 to part 744) identifies entities and other persons reasonably believed to be involved, or to pose a significant risk of being or becoming involved, in activities contrary to the national security or foreign policy interests of the United States. The EAR imposes additional license requirements on, and limits the availability of most license exceptions for, exports, reexports, and transfers (in-country) to those listed. The “license review policy” for each listed entity or other person is identified in the License Review Policy column on the Entity List and the impact on the availability of license exceptions is described in the Federal Register document adding entities or other persons to the Entity List. BIS places entities and other persons on the Entity List pursuant to sections of part 744 (Control Policy: End-User and End-Use Based) and part 746 (Embargoes and Other Special Controls) of the EAR.

The End-User Review Committee (ERC), composed of representatives of the Departments of Commerce (Chair), State, Defense, Energy and, where appropriate, the Treasury, makes all decisions regarding additions to, removals from, or other modifications to the Entity List. The ERC makes all decisions to add an entry to the Entity List by majority vote and all decisions to remove or modify an entry by unanimous vote.

This rule implements a decision of the ERC to remove the following three entities under four entries from the Entity List on the basis of removal requests received by BIS, as follows: Vortex Electronics, located in Australia; China National Commercial New Tone Trading Company Ltd., located in China; and FIMCO FZE, located in Iran and the United Arab Emirates (U.A.E.) (which accounts for two of the entries this final rule removes). The entry for Vortex Electronics was added to the Entity List on September 18, 2014 (see 79 FR 56003). The entry for China National Commercial New Tone Trading Company Ltd was added to the Entity List on July 28, 2015 (see 80 FR 44849). The two entries for FIMCO FZE were added to the Entity List on August 1, 2014 (see 79 FR 44683).

The ERC decided to remove these three entities under four entries based on information received by BIS pursuant to § 744.16 of the EAR and further review conducted by the ERC.

This final rule implements the decision to remove the following one entity located in Australia, one entity located in China, and one entity located in Iran and the U.A.E. from the Entity List:

(1) Vortex Electronics, 125 Walker Street, Quakers Hill, NSW 2763, Australia.

(1) China National Commercial New Tone Trading Company Ltd, Room 616, 2nd Building, No. 45 Fuxingmennei St, Beijing, China, 100801; and No. 45 Fuxing Mennei Avenue, Xicheng District, Beijing, China, 100801.

(1) FIMCO FZE, No. 3, Rahim Salehi Alley, Akbari St., Roomi Bridge, Dr. Shariati Ave., P.O. Box 3379, Tehran, Iran 3379/19395 (See alternate address under U.A.E.).

(1) FIMCO FZE, LOB 16, F16401, P.O. Box 61342, JAFZ, U.A.E. (See alternate addresses under Iran).

The removal of the entities referenced above, which was approved by the ERC, eliminates the existing license requirements in Supplement No. 4 to part 744 for exports, reexports and transfers (in-country) to these entities. However, the removal of these entities from the Entity List does not relieve persons of other obligations under part 744 of the EAR or under other parts of the EAR. Neither the removal of an entity from the Entity List nor the removal of Entity List-based license requirements relieves persons of their obligations under General Prohibition 5 in § 736.2(b)(5) of the EAR which provides that, “you may not, without a license, knowingly export or reexport any item subject to the EAR to an end-user or end-use that is prohibited by part 744 of the EAR.” Additionally, this removal does not relieve persons of their obligation to apply for export, reexport or in-country transfer licenses required by other provisions of the EAR. BIS strongly urges the use of Supplement No. 3 to part 732 of the EAR, “BIS's `Know Your Customer' Guidance and Red Flags,” when persons are involved in transactions that are subject to the EAR.

This final rule implements decisions of the ERC to modify five existing entries on the Entity List. Under the destination of Pakistan, the ERC made a determination to revise five entries, as follows: revise one address and add three additional addresses to the entry for IKAN Engineering Services; correct the spelling of the name of an entry from Imam Group to Iman Group; revise the address to the entry for Interscan; revise the address for the entry for Makkays Hi-Tech Systems; and revise the address to the entry for Micado.

This final rule makes the following modifications to five entries on the Entity List:

(1) IKAN Engineering Services, a.k.a., the following one alias: -IKAN Sourcing. 34-KM Shamki Bhattian Multan Road, Lahore, Pakistan; and Plot 7, 1-11/3 Markaz, Islamabad, Pakistan; and Building #7, #9 Sanitary Market I-11/3 Islamabad, Pakistan; and House #B-4, Block-F Gulshane-Jamal, Karachi, Pakistan; and 84/L Shah Rukn-e-Alam Colony Multan, Pakistan;

(2) Iman Group, a.k.a., the following one alias: -Pana Communication Inc. Plot No. 227, St. No. 7, Sector I-9/2, Industrial Area, Near Dry Port, Islamabad, Pakistan; and 70-East A.A. Plaza, Mezz. Floor Blue Area, Islamabad 44000, Capital, Pakistan;

(3) Interscan, Sattar Villa B, 32/1-C-1 Block-6, P.E.C.H.S., Karachi 75400i, Sindh, Pakistan;

(4) Makkays Hi-Tech Systems, a.k.a., the following one alias: -Zaib Electronics. Block 14 Civic Centre, G-6 Markaz, Islamabad, Pakistan; and Kulsum Plaza, 42 Jinnah Avenue, Islamabad, Pakistan; and Basement Khyber Plaza, Barma Town, near Barma Bridge, Lehtrar Road, Islamabad, Pakistan; and House No. 675, Street No. 19, G-9/3, Islamabad, Pakistan; and

(5) Micado, 40-C, Block-6, P.E.C.H.S., Shahrah-e-Faisal, Karachi, Sindh, Pakistan.

Although the Export Administration Act of 1979 expired on August 20, 2001, the President, through Executive Order 13222 of August 17, 2001, 3 CFR, 2001 Comp., p. 783 (2002), as amended by Executive Order 13637 of March 8, 2013, 78 FR 16129 (March 13, 2013) and as extended by the Notice of August 15, 2017, 82 FR 39005 (August 16, 2017), has continued the Export Administration Regulations in effect under the International Emergency Economic Powers Act. BIS continues to carry out the provisions of the Export Administration Act of 1979, as appropriate and to the extent permitted by law, pursuant to Executive Order 13222, as amended by Executive Order 13637.

1. Executive Orders 13563 and 12866 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been determined to be not significant for purposes of Executive Order 12866. This rule is not an Executive Order 13771 regulatory action because this rule is not significant under Executive Order 12866.

2. Notwithstanding any other provision of law, no person is required to respond to nor be subject to a penalty for failure to comply with a collection of information, subject to the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) (PRA), unless that collection of information displays a currently valid Office of Management and Budget (OMB) Control Number. This regulation involves collections previously approved by OMB under control number 0694-0088, Simplified Network Application Processing System, which includes, among other things, license applications, and carries a burden estimate of 43.8 minutes for a manual or electronic submission.

Total burden hours associated with the PRA and OMB control number 0694-0088 are not expected to increase as a result of this rule. You may send comments regarding the collection of information associated with this rule, including suggestions for reducing the burden, to Jasmeet K. Seehra, Office of Management and Budget (OMB), by email to [email protected], or by fax to (202) 395-7285.

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

4. For the three entities under four entries removed from the Entity List in this final rule, pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B), BIS finds good cause to waive requirements that this rule be subject to notice and the opportunity for public comment because it would be contrary to the public interest.

In determining whether to grant a request for removal from the Entity List, a committee of U.S. Government agencies (the End-User Review Committee (ERC)) evaluates information about and commitments made by listed entities or persons requesting removal from the Entity List, the nature and terms of which are set forth in 15 CFR part 744, Supplement No. 5, as noted in 15 CFR 744.16(b). The information, commitments, and criteria for this extensive review were all established through the notice of proposed rulemaking and public comment process (72 FR 31005 (June 5, 2007) (proposed rule), and 73 FR 49311 (August 21, 2008) (final rule)). These three removals under four entries have been made within the established regulatory framework of the Entity List. If the rule were to be delayed to allow for public comment, U.S. exporters may face unnecessary economic losses as they turn away potential sales to the entities removed by this rule because the customer remained a listed person on the Entity List even after the ERC approved the removal pursuant to the rule published at 73 FR 49311 on August 21, 2008. By publishing without prior notice and comment, BIS allows the applicants to receive U.S. exports immediately because the applicants already have received approval by the ERC pursuant to 15 CFR part 744, Supplement No. 5, as noted in 15 CFR 744.16(b).

Removals from the Entity List granted by the ERC involve interagency deliberation and result from review of public and non-public sources, including sensitive law enforcement information and classified information, and the measurement of such information against the Entity List removal criteria. This information is extensively reviewed according to the criteria for evaluating removal requests from the Entity List, as set out in 15 CFR part 744, Supplement No. 5, and 15 CFR 744.16(b). For reasons of national security, BIS is not at liberty to provide to the public detailed information on which the ERC relied to make the decisions to remove these entities. In addition, the information included in the removal request is information exchanged between the applicant and the ERC, which by law (section 12(c) of the Export Administration Act of 1979), BIS is restricted from sharing with the public. Moreover, removal requests from the Entity List contain confidential business information, which is necessary for the extensive review conducted by the U.S. Government in assessing such removal requests.

Section 553(d) of the APA generally provides that rules may not take effect earlier than thirty (30) days after they are published in the Federal Register. BIS finds good cause to waive the 30-day delay in effectiveness under 5 U.S.C. 553(d)(1) because this rule is a substantive rule which relieves a restriction. This rule's removal of three entities under four entries from the Entity List removes requirements (the Entity-List-based license requirement and limitation on use of license exceptions) on these three entities being removed from the Entity List. The rule does not impose a requirement on any other person for these removals from the Entity List. Further, no other law requires that a notice of proposed rulemaking and an opportunity for public comment be given for this final rule.

5. The Department finds that there is good cause under 5 U.S.C. 553(b)(3)(B) to waive the provisions of the Administrative Procedure Act (APA) requiring prior notice and the opportunity for public comment for the five modifications included in this rule because, as described above, they are impracticable and are contrary to the public interest. In addition, these five changes are limited to to providing additional or modified addresses and/or a corrected name for these entities on the Entity List, which will assist the public in more easily identifying these listed entities on the Entity List.

6. Because a notice of proposed rulemaking and an opportunity for public comment are not required to be given for this rule by 5 U.S.C. 553, or by any other law, the analytical requirements of the Regulatory Flexibility Act, 5 U.S.C. 601 et seq., are not applicable. Accordingly, no regulatory flexibility analysis is required and none has been prepared.

Accordingly, part 744 of the Export Administration Regulations (15 CFR parts 730-774) is amended as follows:

On July 13, 2016, the State of West Virginia, through the West Virginia Department of Environmental Protection (WVDEP), submitted three SIP revisions requesting EPA remove from its SIP three regulations that implemented the CAIR (70 FR 25162, May 12, 2005) trading programs: Regulation 45CSR39—Control of Annual Nitrogen Oxides Emissions, Regulation 45CSR40—Control of Ozone Season Nitrogen Oxides Emissions, and Regulation 45CSR41—Control of Annual Sulfur Dioxide Emissions. This action pertains to the two submittals that remove 45CSR39 and 45CSR41, the CAIR annual NOX and annual SO2 trading programs, respectively, from the West Virginia SIP. The submittal pertaining to removal of the CAIR ozone season NOX trading program is not a part of this action and will be addressed in a separate action.

In 2005, EPA promulgated CAIR (70 FR 25162, May 12, 2005) to address transported emissions that significantly contributed to downwind states' nonattainment and interfered with maintenance of the 1997 ozone and fine particulate matter (PM2.5) national ambient air quality standards (NAAQS). CAIR required 28 states, including West Virginia, to reduce emissions of NOX and SO2, precursors to the formation of ambient ozone and PM2.5. Under CAIR, EPA established federal implementation plans (FIPs) comprised of separate cap and trade programs for annual NOX, ozone season NOX, and annual SO2. States could comply with the requirements of CAIR by remaining on the FIP, which applied only to electric generating units (EGUs), or by submitting a CAIR SIP revision that included as trading sources EGUs and certain non-EGUs 1 that formerly traded in the NOX Budget Trading Program under the NOX SIP Call.2 West Virginia submitted, and EPA approved, a CAIR SIP revision that included EGUs and certain non-EGUs as part of the State's regulation for the CAIR ozone season trading program as well as EGUs in the CAIR annual trading program for NOX and SO2. See 74 FR 38536 (August 4, 2009).

The United States Court of Appeals for the District of Columbia Circuit (D.C. Circuit) initially vacated CAIR in 2008,3 but ultimately remanded the rule to EPA without vacatur to preserve the environmental benefits provided by CAIR.4 The ruling allowed CAIR to remain in effect temporarily until a replacement rule consistent with the Court's opinion was developed. While EPA worked on developing a replacement rule, the CAIR program continued as planned with the NOX annual and ozone season programs beginning in 2009 and the SO2 annual program beginning in 2010.

On August 8, 2011 (76 FR 48208), acting on the D.C. Circuit's remand, EPA promulgated the CSAPR to replace CAIR to address the interstate transport of emissions contributing to nonattainment and interfering with maintenance of the two air quality standards covered by CAIR as well as the 2006 PM2.5 NAAQS. The rule also contained provisions that would sunset CAIR-related obligations on a schedule coordinated with the implementation of CSAPR compliance requirements. CSAPR was to become effective January 1, 2012; however, the timing of CSAPR's implementation was impacted by a number of court actions.

Numerous parties filed petitions for review of CSAPR in the D.C. Circuit, and on December 30, 2011, the D.C. Circuit stayed CSAPR prior to its implementation and ordered EPA to continue administering CAIR on an interim basis.5 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 Supreme 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.

Throughout the initial round of D.C. Circuit proceedings and the ensuing Supreme Court proceedings, the stay on CSAPR remained in place, and EPA continued to implement CAIR. Following the April 2014 Supreme Court decision, EPA filed a motion asking the D.C. Circuit to lift the stay in order to allow CSAPR to replace CAIR in an equitable and orderly manner while further D.C. Circuit proceedings were held to resolve remaining claims from petitioners. Additionally, EPA's motion requested delay, by three years, of all CSAPR compliance deadlines that had not passed as of the approval date of the stay. On October 23, 2014, the D.C. Circuit granted EPA's request,6 and on December 3, 2014 (79 FR 71663), in an interim final rule, EPA set the updated effective date of CSAPR as January 1, 2015 and delayed the implementation of CSAPR Phase I to 2015 and CSAPR Phase 2 to 2017. In accordance with the interim final rule, the sunset date for CAIR was December 31, 2014, and EPA began implementing CSAPR on January 1, 2015.

Starting in January 2015, the CSAPR FIP trading programs for annual NOX, ozone season NOX and annual SO2 were applicable in West Virginia. Thus, since January 1, 2015, the West Virginia regulations, 45CSR39 and 45CSR41, that implemented the CAIR trading programs became obsolete with none of these obsolete programs providing any emission reductions.7

WVDEP submitted two SIP revisions on July 13, 2016 that requested the removal from the West Virginia SIP of the State's regulations (45CSR39 and 45CSR41) which implemented respectively the CAIR annual NOX and annual SO2 trading programs. As noted previously, the annual NOX and SO2 reduction programs to address interstate transport of emissions from EGUs for the 1997 and 2006 PM2.5 NAAQS have been replaced by the CSAPR FIP. Because the removal of 45CSR39 and 41 remove moot CAIR provisions which have been replaced by CSAPR which is at least as stringent as CAIR, the removal of 45CSR39 and 41 from the West Virginia SIP has no expected emissions impact on any pollutant and thus is not expected to interfere with reasonable further progress, any NAAQS or any other CAA requirement. The removal of 45CSR39 and 41 from the West Virginia SIP is in accordance with section 110(l) of the CAA. Therefore, EPA determines it is appropriate for these two regulations to be removed in their entirety from the West Virginia SIP as the regulations contain obsolete provisions which no longer provide any emission limitations on, or reductions of, any pollutant.

EPA is approving the two July 13, 2016 West Virginia SIP revision submissions which seek removal from the West Virginia SIP of Regulation 45CSR39 that implemented the CAIR annual NOX trading program and Regulation 45CSR41 that implemented the CAIR annual SO2 trading program. Removal of these two regulations from the West Virginia SIP is in accordance with section 110 of the CAA. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of this issue of the Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the SIP revision if adverse comments are filed. This rule will be effective on December 26, 2017 without further notice unless EPA receives adverse comment by October 25, 2017. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. Please note that if EPA receives adverse comment on an amendment, paragraph, or section of this rule and if that provision may be severed from the remainder of the rule, EPA may adopt as final those provisions of the rule that are not the subject of an adverse comment.

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

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

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

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

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

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

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

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

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

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

In addition, this rule removing West Virginia regulations 45CSR39 and 45CSR41 from the West Virginia SIP does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

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

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 November 24, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of this issue of the Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking action.

This action approving West Virginia SIP revision submittals to remove obsolete CAIR annual trading program provisions may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

40 CFR part 52 is amended as follows:

I. What action is the EPA taking today?

The EPA is approving the NJDEP's request for delegation of authority to implement and enforce a Federal plan and to adhere to the terms and conditions prescribed in the Memorandum of Agreement (MOA) signed between the EPA and the NJDEP, as further explained below. The NJDEP requested delegation of authority of the Federal plan for existing applicable Sewage Sludge Incineration (SSI) units constructed on or before October 14, 2010. See 40 CFR part 62, subpart LLL. The Federal plan was promulgated by the EPA to implement emission guidelines (see 40 CFR part 60, subpart MMMM) pursuant to sections 111(d) and 129 of the Clean Air Act (CAA). The purpose of this delegation is to acknowledge the NJDEP's ability to implement a program and to transfer primary implementation and enforcement responsibility from the EPA to the NJDEP for existing applicable sources of SSI units. While the NJDEP is delegated the authority to implement and enforce the SSI Federal plan, nothing in the delegation agreement shall prohibit the EPA from enforcing the SSI Federal plan.

On October 12, 2016, the NJDEP submitted to the EPA a request for delegation of authority from the EPA to implement and enforce the Federal plan for existing SSI units. The EPA prepared the MOA that defines the policies, responsibilities, and procedures by which the Federal plan will be administered by both the NJDEP and the EPA, pursuant to 40 CFR part 62, subpart LLL for SSI units. The MOA is the mechanism for the transfer of responsibility from the EPA to the NJDEP.

Both the EPA and the NJDEP signed the MOA in which the State agrees to the terms and conditions of the MOA and accepts responsibility to implement and enforce the policies, responsibilities and procedures of the SSI Federal plan. The transfer of authority to the NJDEP became effective upon signature by the NJDEP on January 24, 2017.

On July 13, 2017 (82 FR 32301), the EPA proposed to approve NJDEP's request for delegation of the SSI Federal plan. For a detailed discussion on the content and requirements of the NJDEP's delegation request, the reader is referred to the EPA's proposed rulemaking action. In response to the EPA's July 13, 2017 proposed rulemaking action, the EPA received no public comments.

For the reasons described in this action and in the EPA's proposal the EPA is approving NJDEP's request for delegation of the SSI Federal plan. For further details, the reader is referred to the EPA's proposal.

Under the Clean Air Act, the Administrator is required to approve a State plan submission that complies with the provisions of the CAA sections 111(d) and 129(b)(2) and applicable Federal regulations. 42 U.S.C. 7411(d) and 7429(b)(2); 40 CFR 62.02(a). Thus, in reviewing State plan submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely approves a state delegation request as meeting Federal requirements and does not impose additional requirements beyond those already 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 Order 12866 (58 FR 51735, October 4, 1993);

• 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, this rule, pertaining to the NJDEP's section 111(d)/129 request for delegation of authority to implement and enforce the Federal plan for existing SSI units, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the NJDEP's request for delegation of the SSI Federal plan is not approved to apply in Indian country located in the state, and EPA notes that it will not 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. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it is published in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 24, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

Part 62, chapter I, title 40 of the Code of Federal Regulations is amended as follows:

EPA Region 5 is publishing this direct final Notice of Deletion of the Nutting Truck & Caster Co. Site (Site) from the NPL and requests public comment on this action. The NPL constitutes Appendix B of 40 CFR part 300, which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to Section 105 of CERCLA, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). As described in § 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions if future conditions warrant such actions.

Because EPA considers this action to be noncontroversial and routine, this action is effective November 24, 2017, unless EPA receives adverse comments by October 25, 2017.

Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Nutting Truck & Caster Co. Site and demonstrates how it meets the deletion criteria. Section V discusses EPA's action to delete the site from the NPL unless adverse comments are received during the public comment period.

The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:

i. Responsible parties or other persons have implemented all appropriate response actions required;

ii. all appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

iii. the remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

The following procedures apply to deletion of the Site:

(1) EPA consulted with the State of Minnesota prior to developing this direct final Notice of Deletion and the Notice of Intent to Delete co-published today in the “Proposed Rules” section of the Federal Register.

(2) EPA has provided the State thirty (30) working days for review of this action and the parallel Notice of Intent to Delete prior to their publication today, and the State, through the MPCA, has concurred on the deletion of the Site from the NPL.

(3) Concurrent with the publication of this direct final Notice of Deletion, a notice of the availability of the parallel Notice of Intent to Delete is being published in a major local newspaper, the “Faribault Daily News”. The newspaper document announces the 30-day public comment period concerning the Notice of Intent to Delete the Site from the NPL.

(4) EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.

(5) If adverse comments are received within the 30-day public comment period on this deletion action, EPA will publish a timely notice of withdrawal of this direct final Notice of Deletion before its effective date and will prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received.

Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

The following information provides EPA's rationale for deleting the Site from the NPL.

The Nutting Truck & Caster Co. Superfund Site (CERCLIS ID: MND006154017) is located at 85 Prairie Avenue (formerly reported as 1201 or 1221 W. Division Street) in Faribault, Minnesota. The Site covers approximately 8.6 acres of the former 11 acre Nutting Truck & Caster Co. (Nutting) property that was used for manufacturing and waste disposal activities. The Site is bound on the west by Prairie Avenue and the southeast by railroad tracks. The majority of the north Site boundary is approximately 250 feet south of Division Street. The Site is accessed via Prairie Avenue. The property is currently owned by Prairie Avenue Leasing, Ltd., and is utilized for commercial and light industrial uses. The property includes an industrial/commercial building with loading docks. Most of the remainder of the property is paved. A cell tower is located on the property.

Single-family homes and an Islamic Center are located to the west and north of the Site. The residences and other water-users on and near the Site are connected to the municipal water supply. Nutting manufactured casters, wheels and hand trucks at the Site from 1891 to 1984. Prior to 1979, Nutting disposed wastes in an unlined seepage pit in a former gravel pit on the Site. The wastes were primarily solvents and sludges containing cadmium, lead, cyanide, methylene chloride, trichloroethylene (TCE) and xylene.

The MPCA issued a Notice of Noncompliance to Nutting for their past TCE disposal practice at the Site in 1979. Nutting excavated the sludge and contaminated soil from the former seepage pit under MPCA oversight in 1980. Nutting land spread the excavated material on Rice County property adjacent to the Rice County Landfill in accordance with MPCA Permit MNL051748. Nutting backfilled the pit with clean fill and paved the area over with concrete. MPCA determined that the source materials were effectively removed, but that groundwater contamination remained at the Site above drinking water standards.

EPA proposed the Site to the NPL on September 8, 1983 (48 FR 40658) and finalized the Site on the NPL on September 21, 1984 (49 FR 37055). MPCA added Nutting to its State Superfund Priority List, known as the Permanent List of Priorities (PLP), in 1984. MPCA took the lead in addressing the Site through its State environmental response authority under the Minnesota Environmental Response and Liability Act (MERLA) of 1983.

MPCA issued a Request for Response Action (RFRA) to Nutting in September 1983 and a Response Order by Consent to Nutting in April 1984 (1984 Order). The 1984 Order required Nutting to conduct a remedial investigation (RI) and to make recommendations concerning further response actions that may be necessary at the Site. EPA was not a party to the 1984 Order because the Site was a State enforcement lead site.

Nutting completed the RI and recommended response actions for groundwater in 1986. MPCA issued a second Response Order by Consent to Nutting on September 22, 1987 (1987 Order). EPA was not a party to the 1987 Order. The 1987 Order required Nutting to develop and implement a Response Action Plan (RAP) for groundwater remediation. MPCA required this action based on the possibility that the groundwater contamination immediately downgradient of the Nutting Site could pose a potential future threat to the Faribault well field. Nutting submitted a RAP to MPCA in response to the 1987 Order. MPCA approved the RAP and Nutting implemented the RAP in 1987. The RAP called for the extraction and treatment of contaminated groundwater and continued groundwater monitoring.

Soil: MPCA's selected remedy for soil was the soil excavation Nutting conducted pursuant to MPCA's 1979 Notice of Noncompliance. Nutting excavated the contaminated soil and material from the seepage pit located in the west central area of the property. Nutting disposed of these materials, which were the Site's major source of TCE contamination, off-site. This removal action achieved MPCA's residential soil clean-up goals. Nutting backfilled the excavated pit with clean fill and paved the area with concrete. The area is currently used as a loading dock and parking area. The soil removal action objectives for the Site are: (1) To eliminate the possibility of precipitation facilitating the migration of contaminants through the soil; and (2) to eliminate access to the former seepage pit area by potential receptors.

Groundwater: The remedial action objectives (RAOs) for Site groundwater are documented in the 1987 RAP. The groundwater RAOs are to prevent the migration of contaminated groundwater away from the Site and to ensure the protection of downgradient aquifers for future use as a potable water supply. Nutting installed a groundwater pump-and-treat (P&T) system at the Site to prevent the contaminated groundwater from migrating away from the Site in 1987. Nutting also installed a system of downgradient compliance wells to assess the effectiveness of the groundwater remedy.

MPCA set the cleanup level for groundwater in the RAP at 50 parts per billion (ppb) for TCE in the upper aquifer units. MPCA's objective was to ensure that the downgradient drinking water aquifers would be protected. TCE levels in groundwater could not exceed 50 parts per billion (ppb) in the compliance wells. The compliance wells were the wells that were the closest to the Site, 350-400 feet downgradient of the Nutting property boundary. Several of the sentinel wells located on private properties were subsequently sealed due to requests from property owners.

The Minnesota Department of Health (MDH) recommended that the Minnesota Health Risk Limit (HRL) for TCE be changed from 30 ppb to 5 ppb in 2002. This lower value coincides with EPA's Maximum Contaminant Level (MCL) for TCE under the Safe Drinking Water Act. MPCA prepared an amended RAP to modify the groundwater clean-up goals for the Site from 50 ppb of TCE to the present MCL/HRL action level of 5 ppb in 2003.

Nutting constructed and began operating the groundwater extraction system at the Site in 1987. The extraction system consisted of two wells. One extraction well was installed in the shallower, glacial outwash unit of the upper aquifer and one extraction well was installed in the deeper, St. Peter Sandstone unit of the upper aquifer. The St. Peter Sandstone unit of the upper aquifer is above the lower, Prairie du Chien aquifer, which is the source of drinking water. Groundwater flow in both aquifers is to the north. Both extraction wells were located just north of the Site on Division Street West. Nutting treated the extracted groundwater on-Site using a gravity cascade to remove the TCE and other volatile organic compounds. Nutting discharged the treated groundwater to a municipal storm water sewer.

MPCA lowered the cleanup level for TCE to 5 ppb in an amended RAP in 2003. Groundwater sampling demonstrated that the extraction system achieved the 5 ppb cleanup standard for TCE in the off-site compliance wells in 2004. Nutting shut down the extraction wells in 2004 with the approval of the MPCA.

Nutting prepared a Long-term Monitoring Plan in June 2004 that contained a two-tier monitoring plan for removing the groundwater treatment system. This document also contained criteria and contingency plans for restarting the groundwater treatment system.

Nutting continued to monitor the groundwater until 2007. In 2007, MPCA determined that the cleanup standard for groundwater was met and maintained at the compliance wells and that no additional groundwater monitoring was required. Nutting sealed all extraction and monitoring wells with MPCA approval in 2008. MPCA terminated the 1987 Order and deleted the Site from its PLP in 2009.

EPA reviewed the Site in 2010. EPA determined that no further action was necessary to protect public health or welfare or the environment at the Site. EPA issued a Record of Decision (ROD) in 2010 stating that all appropriate MERLA response actions, which parallel CERCLA response actions, were completed at the Site, and that long-term monitoring indicates that the soil and the groundwater at the Site do not pose a threat to public health or welfare or the environment. EPA's ROD determined that because the actions taken at the Site removed the potential for risks to human health and the environment, these actions meet EPA clean-up standards, and no further action is required. EPA's ROD also determined that Site conditions allow for unlimited use and unrestricted exposure.

EPA reviewed the historical groundwater data from the Site in 2013 when preparing to delete the Site from the NPL. During this review, EPA determined that the drinking water standard for TCE was, in fact, not being met throughout the plume. This standard would have to be achieved throughout the plume before the Site could be deleted from the NPL. EPA raised this issue with MPCA.

MPCA contracted the Antea Group (Antea) to re-install two groundwater monitoring wells at the Site to address this issue. Antea re-installed nested groundwater monitoring well B4R in the glacial outwash/St. Peter Sandstone upper aquifer and W13R in the Prairie du Chien lower aquifer in 2014 to confirm that the MCL was attained in the on-Site plume. Antea sampled the groundwater during 15 sampling events from August 2014 to November 2016. Antea sampled lower aquifer well W13R during all 15 sampling events and upper aquifer well B4R during the first 11 events under EPA direction.

The analytical results from all 11 sampling events from B4R showed TCE concentrations below the cleanup level of 5 ppb. The analytical results from the first seven W13R sampling events showed TCE levels below 10 ppb, with the final eight sampling events under the cleanup level of 5 ppb. Because the last eight consecutive groundwater sampling events at the Site show that the TCE cleanup level of 5 ppb is being met throughout the plume, EPA's requirements for Site closeout are achieved. No additional groundwater monitoring is required.

MPCA tasked Antea to conduct additional sampling to assess whether there was any potential risk from soil vapor intrusion in 2015. Antea advanced five soil gas probes to depths of six to eight feet below ground surface around the northwest corner of the Site downgradient of the former disposal pit. The analytical results were below the screening values for all constituents on the Minnesota Soil Gas List and total hydrocarbons. These results indicate that the risk for vapor intrusion is minimal and that additional vapor intrusion actions are not necessary.

This Site does not require any operation and maintenance (O&M) activities. Site soil and groundwater meet all cleanup objectives and no further remedial action or O&M is required. The MPCA will permanently abandon the re-installed monitoring wells, which are no longer needed for the collection of groundwater data.

Nutting executed an Environmental Covenant and Easement at the Site on October 28, 2008. The MPCA required this institutional control as part of the State delisting requirement from the State PLP. The covenant provides additional and enforceable protection of public health and the environment, as it provides that: (1) No wells can be installed on the property without the approval of the MPCA; (2) all monitoring and extraction wells have been properly abandoned as a condition of the Environmental Covenant; (3) the property owner is required to report to the MPCA on an annual basis that conditions at the Site remain consistent with land use prescribed in the zoning requirements; and (4) any proposed changes in land use require that MPCA be notified to determine if the changes will adversely affect the protectiveness of the completed remedy. It should be noted that this covenant is not required by EPA.

MPCA conducted five-year reviews (FYRs) of the Site in 1994, 1998, 2003 and 2008. MPCA conducted the last FYR of the Site in 2008. MPCA's 2008 FYR concluded that the remedial actions at the Site were protective of human health and the environment in the short-term, and that long-term protectiveness would be achieved when the groundwater cleanup standards were attained and the State-required institutional controls were in place. The Site-wide remedy protects human health and the environment because exposure pathways that could result in unacceptable risks have been controlled through the completed remedial activities.

MPCA deleted the Site from the State PLP in 2009. EPA's 2010 ROD determined that all appropriate MERLA response actions, which parallel CERCLA response actions, have been completed. Long-term monitoring indicates that the soil and groundwater at the Site do not pose a threat to public health or welfare or the environment. EPA's 2010 ROD does not require subsequent FYRs since Site conditions allow for unlimited use and unrestricted exposure. EPA, MPCA, Antea and the Site property owner conducted a final inspection at the Site on November 15, 2016. EPA completed a Final Close Out Report for the Site on April 11, 2017.

EPA and MPCA satisfied public participation activities as required in CERCLA Section 113(k), 42 U.S.C. 9613(k), and CERCLA Section 117, 42 U.S.C. 9617. MPCA published notifications announcing the FYR and inviting the public to comment and express their concerns about the Site in the Faribault Daily News at the start of the 1994, 1998, 2003 and 2008 FYRs. EPA published a document about its proposed no further action plan for the Site, the 30-day public comment period, and the availability of a public meeting, if requested, in the Faribault Daily News in 2010. EPA mailed a proposed plan fact sheet with information about the Site and announcing a 30-day public comment period to the addresses on the Site mailing list prior to issuing its final decision in the 2010 ROD. EPA did not receive any comments during the public comment period or any requests for a public meeting.

EPA published a document announcing this proposed Direct Final Deletion in the Faribault Daily News prior to publishing this deletion in the Federal Register. Documents in the deletion docket which EPA relied on for recommending the deletion of this Site from the NPL are available to the public in the information repositories and at https://www.regulations.gov.

This Site meets all of the site completion requirements as specified in Office of Solid Waste and Emergency Response (OSWER) Directive 9320.2-22, Close Out Procedures for National Priorities List Sites. All cleanup actions specified in the RAP have been implemented, and the Site has achieved the RAP cleanup objectives or has been cleaned up to acceptable risk levels for all media and exposure pathways as noted in the 2010 EPA ROD. The RAOs and associated clean-up goals are consistent with Agency policy and guidance. Confirmation groundwater sampling and soil vapor results provide further assurance that the Site no longer poses a threat to human health or the environment. Therefore, the EPA has determined that no further Superfund response is necessary at the Site to protect human health and the environment.

The NCP (40 CFR 300.425(e)) states that a site may be deleted from the NPL when no further response action is appropriate. EPA, in consultation with the State of Minnesota, has determined that all required response actions have been implemented and no further response action by the responsible parties is appropriate.

EPA, with concurrence from the State of Minnesota through the MPCA, has determined that all appropriate response actions under CERCLA have been completed. Therefore, EPA is deleting the Site from the NPL.

Because EPA considers this action to be noncontroversial and routine, EPA is taking it without prior publication. This direct final deletion is effective November 24, 2017 unless EPA receives adverse comments by October 25, 2017. If adverse comments are received within the 30-day public comment period, EPA will publish a timely withdrawal of this direct final Notice of Deletion before the effective date of the deletion, and it will not take effect. EPA will prepare a response to comments and continue with the deletion process on the basis of the Notice of Intent to Delete and the comments already received. There will be no additional opportunity to comment.

For the reasons stated in the preamble, 40 CFR part 300 is amended as follows:

I. Does this action apply to me?

You may be affected by this final rule if you manufacture (including import), sell, supply, offer for sale, test, or work with the certification of hardwood plywood, medium-density fiberboard, particleboard, and/or products containing these composite wood materials in the United States. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

• Veneer, plywood, and engineered wood product manufacturing (NAICS code 3212).

• Manufactured home (mobile home) manufacturing (NAICS code 321991).

• Prefabricated wood building manufacturing (NAICS code 321992).

• Furniture and related product manufacturing (NAICS code 337).

• Furniture merchant wholesalers (NAICS code 42321).

• Lumber, plywood, millwork, and wood panel merchant wholesalers (NAICS code 42331).

• Other construction material merchant wholesalers (NAICS code 423390), e.g., merchant wholesale distributors of manufactured homes (i.e., mobile homes) and/or prefabricated buildings.

• Furniture stores (NAICS code 4421).

• Building material and supplies dealers (NAICS code 4441).

• Manufactured (mobile) home dealers (NAICS code 45393).

• Motor home manufacturing (NAICS code 336213).

• Travel trailer and camper manufacturing (NAICS code 336214).

• Recreational vehicle (RV) dealers (NAICS code 441210).

• Recreational vehicle merchant wholesalers (NAICS code 423110).

• Engineering services (NAICS code 541330).

• Testing laboratories (NAICS code 541380).

• Administrative management and general management consulting services (NAICS code 541611).

• All other professional, scientific, and technical services (NAICS code 541990).

• All other support services (NAICS code 561990).

• Business associations (NAICS code 813910).

• Professional organizations (NAICS code 813920).

If you have any questions regarding the applicability of this action, please consult the technical person listed under FOR FURTHER INFORMATION CONTACT.

EPA shares the concerns raised by industry stakeholders regarding the time needed to comply with provisions of the formaldehyde emission standards for composite wood products final rule (81 FR 89674, December 12, 2016) (FRL-9949-90), and, therefore, is extending several rule compliance dates. EPA also believes that CARB TPCs should be allotted the full two years granted by the December 12, 2016 final rule to operate under the transitional period as promulgated in § 770.7(d).

1. Direct Final Rule and Notice of Proposed Rulemaking. Given that EPA extended the effective date of the TSCA Title VI final rule from February 10, 2017 until May 22, 2017, the Agency issued a proposed (82 FR 23735) (FRL-9962-85) and direct final rule (82 FR 23769) (FRL-9962-86) on May 24, 2017 that regulated entities should have at least the same amount of time to comply with the various regulatory timeframes as initially allotted in the final rule. The two extensions to the final rule effective date (82 FR 8499, January 26, 2017 (FRL-9958-87) and 82 FR 14324, May 24, 2017 (FRL-9960-28-OP) resulted in delaying the ability of regulated entities to begin implementation activities to establish certification programs, certify composite wood products and distribute those products into supply chains, such that compliance would be achieved by the required dates. The Agency solicited public comment on this action by issuing a companion Notice of Proposed Rulemaking (82 FR 23769) (FRL-9962-85) with the direct final rule in the event EPA received adverse public comment. EPA did receive nine (9) comments from the public on this action, at least one of which the Agency considered to be adverse in nature with respect to the proposed extension of compliance dates. The direct final action was withdrawn on July 6, 2017, as published in the Federal Register (82 FR 31267) (FRL-9963-74).

EPA considered all of the public comments submitted in response to the provisions outlined in the direct final rule and companion proposal. Due to the adverse comments, EPA was compelled to withdraw the direct final rule (82 FR 31267) (FRL-9963-74). The Agency then proceeded with the notice of proposed rulemaking (82 FR 23769) (FRL-9962-85) and is now issuing this final rule and a Response to Comments document which addresses the comments received.

2. Stakeholder Feedback Since the December 12, 2016 Final Rule. Since publication of the December 12, 2016 final rule, the Agency has engaged the composite wood product industry stakeholders, other related regulated entities, and the larger public through webinar presentations, trade group meetings, conference presentations, and teleconferences to discuss and support implementation of the December 12, 2016 final rule. Through this stakeholder outreach, the Agency received both formal and informal feedback regarding compliance challenges faced by regulated entities, including the final rule's compliance dates. In addition, the Agency received several unsolicited letters and general correspondence from composite wood product industry stakeholders requesting that the Agency amend specific provisions of the December 12, 2016 final rule. Written inquiries and correspondence from Hooker Furniture, Composite Panel Association, American Home Furnishings Alliance (AHFA), and a consortium of trade associations including AHFA, Kitchen Cabinet Manufacturers, International Wood Products Association, Recreation Vehicle Industry Association, National Retail Foundation, and Retail Industry Leaders Association are included in the supporting documents section of the public docket for this action. Industry concerns included challenges in meeting the compliance dates due to the complexities of the domestic and imported composite wood product supply chains, import certification requirements, non-complying lot notification requirements, prohibition on early labeling, and laminated product provisions of the final rule.

Since publication of the direct final action, the Agency has been contacted by multiple stakeholders, national trade associations, and other regulated entities who overwhelmingly confirm that regulated entities will require additional time to comply with the TSCA Title VI emission standards compliance date due to supply chain, global business, and factory supply logistics. National groups representing importers and importers themselves have noted that there will be significant logistical hurdles with sourcing compliant composite wood panels for fabrication of finished goods and component parts before the manufactured-by date that the Agency had not considered in choosing the proposed March 22, 2018 compliance date in the direct final rule. Several commenters suggested extending the compliance date for the emission standards, recordkeeping, and labeling requirements in order to allow adequate time for the production and integration of TSCA Title VI certified composite wood products into the domestic and import supply chains. The supply chain begins with the production of panels, then fabrication of component parts and finished goods to ultimately having compliant products available for sale to consumers. Commenters suggested extensions ranging from a compliance date of December 12, 2018 to July 22, 2019. Commenters also noted that EPA had not fully understood or considered the logistical hurdles that regulated entities face to comply with the rule requirements. Commenters noted that extending the compliance date further than what was proposed on May 24, 2017 (82 FR 23769), will help ensure that an adequate supply of certified composite wood products enter the supply chain. The earliest some regulated entities communicated being able to import TSCA Title VI compliant component parts and finished goods is approximately May 2018. One commenter also noted that achieving full compliance with all of their imported products as TSCA Title VI compliant could take until July 2019, given the anticipated inventory of non-TSCA Title VI certified panels and finished goods currently in their inventory and the time needed to obtain compliant panels to fabricate and sell compliant component parts and finished goods.

Other commenters did not support any further extension of the compliance dates as they noted that further delay would be a hindrance to the health benefits from reduced formaldehyde emissions in the home environment, and stated that extending the compliance date defeated the purpose of establishing a compliance date in the final rule. Some commenters supported the compliance date extension as proposed stating that it would restore the December 12, 2016, final rule's regulatory timeframe. A full response to comments received during the public comment period is included in the Response to Comments document in the supporting documents section of the public docket for this action.

After considering the public comments both supportive and non-supportive of extending the compliance dates, the agency believes that the December 12, 2018 compliance date for the emission standards provides a balanced and reasoned timeline for importers, distributors, and regulated entities to establish compliant supply chains and comply with the TSCA Title VI final rule. Additionally, the agency believes extending this compliance date reflects the Congressional intent under TSCA Title VI that the agency implement provisions to ensure compliance with the formaldehyde emission standards as soon as possible while enabling regulated entities to achieve compliance. The Agency does not believe that the extension provided for the emissions compliance date would result in any significant increases in health risk, in part because on July 11, 2017, EPA published a direct final rule that allows voluntary early labeling of compliant composite wood products after August 25, 2017, which facilitates TSCA Title VI compliant products entering commerce sooner than under the original December 12, 2017, compliance date for the emission standards, recordkeeping, and labeling requirements. Moreover, CARB compliant composite wood panels, component parts, and finished goods, which are subject to identical formaldehyde emission standards as TSCA Title VI, make up the majority of composite wood products already in the domestic supply chains and that will continue during the additional time provided to comply with TSCA. The Agency also believes that the extended compliance dates proposed for import certification, laminated products, and the CARB TPC transitional period are adequate. EPA received no adverse comments on these dates, which are being finalized as proposed. As such, this final rule will extend the December 12, 2018, compliance date for import certification provisions until March 22, 2019; and extend the December 12, 2023, compliance date for provisions applicable to producers of laminated products until March 22, 2024. Additionally, this final action will extend the transitional period during which the CARB TPCs may certify composite wood products under TSCA Title VI without an accreditation issued by an EPA TSCA Title VI Accreditation Body so long as the TPC remains approved by CARB, is recognized by EPA, and complies with all aspects of the December 12, 2016, final rule until March 22, 2019.

3. Final Rule. EPA is publishing this final rule to provide regulated entities with the time needed to ensure certified composite wood products enter the supply chains. EPA is extending the compliance dates for the December 12, 2016, final rule by: Extending the December 12, 2017, date for emission standards, recordkeeping, and labeling provisions, until December 12, 2018; extending the December 12, 2018 date for import certification provisions until March 22, 2019; and extending the December 12, 2023 compliance date for provisions applicable to producers of laminated products until March 22, 2024. Additionally, this final rule will extend the CARB TPC transitional period under § 770.7(d), which is currently set to end December 12, 2018, until March 22, 2019 to be consistent with the regulatory timeframe of the December 12, 2016 final rule.

The Agency believes that this final rule balances the further extended compliance dates commenters noted would be needed, and the proposed compliance dates in the May 24, 2017 (82 FR 23735), direct final rule that several trade groups concurred with in their public comments. EPA has begun recognizing TPCs and Accreditation Bodies to the TSCA Title VI program since the May 22, 2017, effective date of the December 12, 2016, final rule and anticipates that panel producers and TPCs will work together to provide compliant products for further downstream distribution and fabrication into component parts and finished goods so that those composite wood products will be compliant by or before December 12, 2018.

As previously noted, this final rule establishes a compliance date of December 12, 2018, for the emission standards, recordkeeping, and labeling provisions. Beginning this date, all imported panels and component parts or finished goods subject to the rule must comply with 40 CFR part 770. Existing stock of non-certified panels manufactured in the United States or imported into the United States before the manufactured-by date may continue to be distributed in commerce and integrated further into component parts and finished goods until that stock is depleted, providing documentation is kept regarding the date of manufacture or import. Further, existing stock of component parts and finished goods that contain non-certified panels manufactured internationally and subsequently imported into the United States before the manufactured-by date may continue to be distributed into commerce and integrated into finished goods until that stock is depleted, providing documentation is kept regarding the date of manufacture or import.

EPA notes that it has previously referred to the compliance date for the emission standards, recordkeeping, and labeling provisions as the “manufactured-by date” for composite wood products. To clarify, the “manufactured-by date” in this context refers to the compliance date for the emission standards, recordkeeping, and labeling provisions. Additionally, EPA has also described the compliance date for the provisions applicable specifically to producers of laminated products, finalized in this rule to be March 22, 2024, as the “manufactured-by date” for laminated products. To clarify, the “manufactured-by date” in this context refers to the compliance date for the provisions applicable specifically to producers of laminated products.

In addition, to clarify EPA's original intent regarding the compliance dates referenced in the December 12, 2016, final rule, and to better align with the final rule's preamble discussion the Agency has amended the text preceding the compliance dates from “after” to “beginning,” as proposed. EPA intends regulated entities to begin complying with the referenced rule requirements as of the dates listed in the final rule. EPA did not receive adverse comment on this aspect of the proposal.

EPA is also proceeding with amending subparagraph § 770.15(e) to clarify that TPCs receive recognition after they apply to EPA, not after the conclusion of the transitional period as the codified text currently reads. EPA did not receive adverse comment on this aspect of the proposal. As such, the Agency is finalizing this amendment as proposed.

Additionally, EPA is clarifying § 770.2(d) to note that existing CARB-approved TPCs that enter the TSCA Title VI program under the reciprocity provisions of the final rule must be EPA-recognized before they may begin certifying products as TSCA Title VI compliant. EPA notes that this requirement is already explicitly stated in § 770.7(d), and that this editorial clarification is solely intended to resolve any ambiguity to be interpreted between the two aforementioned codified sections of the regulatory text. EPA did not receive adverse comment on this aspect of the proposal.

These regulations are established under authority of Section 601 of TSCA, 15 U.S.C. 2697.

Additional information about these statutes and Executive Orders can be found at http://www2.epa.gov/lawsregulations/laws-and-executive-orders.

This action has been determined to be a significant regulatory action under Executive Order 12866 (58 FR 51735, October 4, 1993) and was submitted to the Office of Management and Budget (OMB) for review under Executive Orders and 13563 (76 FR 3821, January 21, 2011) and any changes made in response to OMB review have been reflected in the docket for this action.

This action is considered an Executive Order 13771 (82 FR 9339, February 3, 2017) deregulatory action. This action provides regulatory relief by extending the compliance date for certain provisions of the formaldehyde emission standards for composite wood products final rule.

This action does not impose any new information collection burden under the PRA because it does not create any new reporting or recordkeeping obligations. OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2070-0185 (EPA ICR Number 2446.02).

The Agency certifies that this action will not have a significant economic impact on a substantial number of small entities under the RFA, 5 U.S.C. 601 et seq. In making this determination, the impact of concern is any significant adverse economic impact on small entities. An agency may certify that a rule will not have a significant economic impact on a substantial number of small entities if the rule relieves regulatory burden, has no net burden or otherwise has a positive economic effect on the small entities subject to the rule. This rule extends, in response to two delays of the rule effective date and public comment, the compliance dates and transitional period for CARB TPCs to provide the time needed to achieve compliance post-effective date. This will reduce the burden on TPCs, panel producers, fabricators, importers, distributors, and retailers, because shortening of the compliance period by even a few months makes it more difficult for some of them to establish business relationships, certify product, and distribute certified product into commerce to downstream entities before the original compliance date. EPA therefore concludes that this action will relieve or have no net regulatory burden for directly regulated small entities.

This action does not contain any unfunded mandate as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local or tribal governments or the private sector.

This action does not have federalism implications as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). This final rule will not impose substantial direct compliance costs on Indian tribal governments.

EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997), as applying only to those regulatory actions that concern health or safety risks, such that the analysis required under section 5-501 of Executive Order 13045 has the potential to influence the regulation. As addressed in Unit II.A., this action would not materially alter the final rule as published, and will allow regulated entities additional time to establish their supply-chain and certification programs under the final rule, post effective date.

This action is not a “significant energy action” as defined in Executive Order 13211 (66 FR 28355, May 22, 2001), because it is not likely to have a significant adverse effect on the supply, distribution or use of energy.

This final rule does not involve technical standards. As such, NTTAA section 12(d), 15 U.S.C. 272 note, does not apply to this action.

EPA has determined that the human health or environmental risk addressed by this action will not have potential disproportionately high and adverse human health or environmental effects on minority, low-income or indigenous populations, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994). As addressed in Unit II.A., this action would not materially alter the final rule as published, and will allow regulated entities additional time to establish their supply-chain and certification programs under the final rule, post effective date.

This action is subject to the CRA, 5 U.S.C. 801 et seq., and EPA will submit a rule report to each House of the Congress and to the Comptroller General of the United States. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I, subchapter R, is amended as follows:

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

The 2017 total allowable catch (TAC) of longnose skate in the Western Regulatory Area of the GOA is 61 metric tons (mt) as established by the final 2017 and 2018 harvest specifications for groundfish of the GOA (82 FR 12032, February 27, 2017).

In accordance with § 679.20(d)(2), the Administrator, Alaska Region, NMFS (Regional Administrator), has determined that the 2017 TAC of longnose skate in the Western Regulatory Area of the GOA will be reached. Therefore, NMFS is requiring that longnose skate in the Western Regulatory Area of the GOA be treated as prohibited species in accordance with § 679.21(b).

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay prohibiting the retention of longnose skate in the Western Regulatory Area of the GOA. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 15, 2017.

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

This action is required by § 679.20 and § 679.21 and is exempt from review under Executive Order 12866.