Federal Register Vol. 82, No.188,

Federal Register Volume 82, Issue 188 (September 29, 2017)

Page Range45421-45677
FR Document

82_FR_188
Current View
Page and SubjectPDF
82 FR 45586 - EPA Smart Sectors Program LaunchPDF
82 FR 45606 - Notice of Intent To Prepare an Environmental Impact Statement for the Leavitt Reservoir Expansion Project, Big Horn County, WyomingPDF
82 FR 45514 - Federal Motor Vehicle Safety StandardsPDF
82 FR 45614 - Sunshine Act MeetingPDF
82 FR 45625 - Compendium of U.S. Copyright Office PracticesPDF
82 FR 45587 - Sunshine Act MeetingPDF
82 FR 45587 - Sunshine Act NoticePDF
82 FR 45551 - Endangered and Threatened Wildlife and Plants; Withdrawal of the Proposed Rule to List Kenk's AmphipodPDF
82 FR 45656 - 30-Day Notice of Proposed Information Collection: Affidavit Regarding a Change of NamePDF
82 FR 45603 - National Human Genome Research Institute; Notice of Closed MeetingPDF
82 FR 45578 - Meeting of Bureau of Economic Analysis Advisory CommitteePDF
82 FR 45658 - Notice of Intent To Rule on a Land Release Request at Lancaster Airport (LNS), Lancaster, PAPDF
82 FR 45550 - Approval of Implementation Plans; State of Iowa; Elements of Infrastructure SIP Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard (NAAQS)PDF
82 FR 45497 - Approval of Implementation Plans; State of Iowa; Elements of the Infrastructure SIP Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard (NAAQS)PDF
82 FR 45548 - Approval of California Air Plan Revisions; Anti-Idling RegulationsPDF
82 FR 45659 - Notice of Public MeetingPDF
82 FR 45659 - Schedule of Charges Outside the United StatesPDF
82 FR 45514 - International Fisheries; Pacific Tuna Fisheries; Revised 2017 Fishing Restrictions for Tropical Tuna in the Eastern Pacific OceanPDF
82 FR 45596 - Antimicrobial Drugs Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for CommentsPDF
82 FR 45613 - Bulk Manufacturer of Controlled Substances Application: Research Triangle InstitutePDF
82 FR 45612 - Importer of Controlled Substances RegistrationPDF
82 FR 45612 - Importer of Controlled Substances Application: Cody Laboratories, Inc.PDF
82 FR 45613 - Importer of Controlled Substances Application: Bellwyck Clinical ServicesPDF
82 FR 45614 - Investigations Regarding Eligibility To Apply for Worker Adjustment AssistancePDF
82 FR 45609 - Certain Liquid Crystal Ewriters and Components Thereof; Commission Final Determination of Violation of Section 337; Termination of Investigation; Issuance of Limited Exclusion Order and Cease and Desist OrderPDF
82 FR 45586 - Environmental Impact Statements; Notice of AvailabilityPDF
82 FR 45629 - Designation of 16 Counties as High Intensity Drug Trafficking AreasPDF
82 FR 45607 - Record of Decision for the Cape Wind Energy ProjectPDF
82 FR 45605 - Agency Information Collection Activities: Submission to the Office of Management and Budget for Review and Approval; Native American Business Development Institute (NABDI) Funding Solicitations and ReportingPDF
82 FR 45464 - Safety Zone; Allegheny River Miles 0.0-1.0, Pittsburgh, PAPDF
82 FR 45588 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
82 FR 45587 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
82 FR 45624 - Distribution of 2015 Satellite Royalty FundsPDF
82 FR 45433 - Commission Delegated Authority Provisions for Designated Contract Markets' System Safeguards RequirementsPDF
82 FR 45590 - Medicare Program; Request for Nominations to the Medicare Advisory Panel on Clinical Diagnostic Laboratory TestsPDF
82 FR 45663 - Funding Opportunity Title: Notice of Funds Availability (NOFA) Inviting Applications for the Fiscal Year (FY) 2017 Funding Round of the Bank Enterprise Award Program (BEA Program)PDF
82 FR 45589 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
82 FR 45528 - Foreign Trade Regulations (FTR): Clarification on the Collection and Confidentiality of Kimberley Process CertificatesPDF
82 FR 45436 - Schedules of Controlled Substances: Removal of Naldemedine From ControlPDF
82 FR 45631 - Information Collection Request; Submission for OMB ReviewPDF
82 FR 45617 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Prohibited Transaction Class Exemption 1998-54 Relating to Certain Employee Benefit Plan Foreign Exchange Transactions Executed Pursuant to Standing InstructionsPDF
82 FR 45660 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel CONUNDRUM; Invitation for Public CommentsPDF
82 FR 45604 - Agency Information Collection Activities; Extension, Without Change, of a Currently Approved Collection; Collection of Qualitative Feedback through Focus GroupsPDF
82 FR 45629 - Information Collection: Solicitation of Non-Power Reactor Operator Licensing Examination DataPDF
82 FR 45583 - Inland Waterways Users Board Meeting NoticePDF
82 FR 45511 - 340B Drug Pricing Program Ceiling Price and Manufacturer Civil Monetary Penalties RegulationPDF
82 FR 45584 - Availability of a Draft Integrated Feasibility Report (Feasibility Report/Environmental Impact Statement), Aliso Creek Mainstem Ecosystem Restoration Study, Orange County, CaliforniaPDF
82 FR 45577 - Agenda and Notice of Public Meeting of the Colorado Advisory CommitteePDF
82 FR 45661 - Continental Tire the Americas, LLC, Receipt of Petition for Decision of Inconsequential NoncompliancePDF
82 FR 45585 - Environmental Management Site-Specific Advisory Board ChairsPDF
82 FR 45593 - Oncology Pharmaceuticals: Reproductive Toxicity Testing and Labeling Recommendations; Draft Guidance for Industry; AvailabilityPDF
82 FR 45597 - Opioid Policy Steering Committee; Establishment of a Public Docket; Request for CommentsPDF
82 FR 45608 - Certain Height-Adjustable Desk Platforms and Components Thereof; Commission's Determination Not To Review an Initial Determination Terminating the Investigation Based on Settlement; Termination of the InvestigationPDF
82 FR 45588 - Proposed Centers for Disease Control and Prevention Guideline on the Diagnosis and Management of Pediatric Mild Traumatic Brain InjuryPDF
82 FR 45461 - Safety Zone; Pacific Ocean, Kilauea Lava Flow Ocean Entry on Southeast Side of Island of Hawaii, HIPDF
82 FR 45600 - Agency Generic Information Collection Activities; Proposed Collection; Public Comment RequestPDF
82 FR 45464 - Safety Zone; North Atlantic Ocean, Ocean City, NJPDF
82 FR 45658 - RTCA Federal Advisory CommitteePDF
82 FR 45656 - Reporting and Recordkeeping Requirements Under OMB ReviewPDF
82 FR 45643 - Self-Regulatory Organizations; NYSE Arca, Inc.; Order Granting Approval of a Proposed Rule Change, as Modified by Amendment Nos. 2 and 3 Thereto, To List and Trade Shares of Direxion Daily Crude Oil Bull 3x Shares and Direxion Daily Crude Oil Bear 3x Shares Under NYSE Arca Equities Rule 8.200PDF
82 FR 45610 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
82 FR 45631 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 6.40-O To Allow Certain Order Types To Be Excluded From the Risk Limitation MechanismPDF
82 FR 45653 - Self-Regulatory Organizations; NYSE American LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 928NY To Allow Certain Order Types To Be Excluded From the Risk Limitation MechanismPDF
82 FR 45634 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Withdrawal of a Proposed Rule Change, as Modified by Amendment No. 1, To List and Trade Under BZX Rule 14.11(c)(4) the Shares of the VanEck Vectors AMT-Free National Municipal Index ETF of VanEck Vectors ETF TrustPDF
82 FR 45650 - Self-Regulatory Organizations; Chicago Board Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Permit the Exchange To Publish End-of-Day Indicative Values in SPX After the Close of Regular Trading Hours in SPXPDF
82 FR 45647 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Amending NYSE Arca Rule 14.2 To Make Technical and Conforming Updates in Connection With the Recent Merger of NYSE Arca Equities, Inc. With and Into the ExchangePDF
82 FR 45634 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change To List and Trade Shares of the GraniteShares Silver Trust Under NYSE Arca Equities Rule 8.201PDF
82 FR 45639 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Expand the Features of the Enterprise License Set Forth at Rule 7047PDF
82 FR 45602 - Submission for OMB Review; 30-Day Comment Request Revision to Identifying Experts in Prevention Science Methods To Include on NIH Review Panels, Office of Disease Prevention (NIH ODP)PDF
82 FR 45584 - Senior Executive Service Performance Review BoardPDF
82 FR 45592 - Medicare Program; Medicare Appeals; Adjustment to the Amount in Controversy Threshold Amounts for Calendar Year 2018PDF
82 FR 45582 - Defense Advisory Committee on Investigation Prosecution and Defense of Sexual Assault in the Armed Forces; Notice of Federal Advisory Committee MeetingPDF
82 FR 45611 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-DVD Copy Control AssociationPDF
82 FR 45611 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Automotive Cybersecurity Industry ConsortiumPDF
82 FR 45639 - Public Availability of the Securities and Exchange Commission's FY 2015 Service Contract InventoryPDF
82 FR 45609 - Uncoated Groundwood Paper From Canada; DeterminationsPDF
82 FR 45613 - Notice of Lodging of Proposed Consent Decree Under the Clean Air ActPDF
82 FR 45676 - Proposed Collection; Comment Request for Regulation ProjectPDF
82 FR 45675 - Proposed Collection; Comment Request for Form 1099-C and TD 9793PDF
82 FR 45675 - Proposed Collection; Comment Request for Regulation ProjectPDF
82 FR 45677 - Proposed Collection; Comment Request for Form 843PDF
82 FR 45588 - Senior Executive Service Performance Review BoardPDF
82 FR 45575 - Notice of Request for Extension and Revision of a Currently Approved Information Collection for the Dairy Product Mandatory Reporting ProgramPDF
82 FR 45660 - Thirty Fifth RTCA SC-213 Joint Plenary With EUROCAE WG-79PDF
82 FR 45657 - Meeting on Implementation of the United States-Singapore Free Trade Agreement Environment ChapterPDF
82 FR 45623 - Notice to LSC Grantees of Application Process for Subgranting 2017-2018 Pro Bono Innovation Fund and Technology Initiative Grant FundsPDF
82 FR 45576 - Notice of Public Meeting of the Indiana Advisory Committee To Prepare for Its Public Meeting on Voting RightsPDF
82 FR 45578 - Notice of Public Meeting of the New York Advisory Committee for Orientation and To Discuss the Draft Report of Broken Windows PolicingPDF
82 FR 45577 - Notice of Public Meeting of the Alabama Advisory Committee for Orientation and To Discuss Civil Rights Topics in the StatePDF
82 FR 45594 - Advancement of Emerging Technology Applications for Pharmaceutical Innovation and Modernization; Guidance for Industry; AvailabilityPDF
82 FR 45601 - National Institute on Minority Health and Health Disparities; Notice of Closed MeetingPDF
82 FR 45603 - National Institute on Minority Health and Health Disparities; Notice of Closed MeetingPDF
82 FR 45601 - National Institute of General Medical Sciences; Notice of Closed MeetingPDF
82 FR 45603 - National Institute of Diabetes and Digestive and Kidney Diseases; Notice of Closed MeetingsPDF
82 FR 45601 - National Institute of Biomedical Imaging and Bioengineering; Notice of Closed MeetingPDF
82 FR 45604 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingsPDF
82 FR 45500 - Freedom of Information Act ProgramPDF
82 FR 45465 - Federal Student Aid Programs (Student Assistance General Provisions, Federal Perkins Loan Program, Federal Family Education Loan Program, and the Federal Direct Loan Program)PDF
82 FR 45547 - Approval and Promulgation of Air Quality Implementation Plans; Maryland; Nonattainment New Source Review Requirements for the 2008 8-Hour Ozone StandardPDF
82 FR 45579 - Applications for Trademark RegistrationPDF
82 FR 45581 - Submission for OMB Review; Comment Request; Patent Petitions Related to Application and Reexamination Processing FeesPDF
82 FR 45475 - Approval and Promulgation of Air Quality Implementation Plans; Maryland; Nonattainment New Source Review Requirements for the 2008 8-Hour Ozone StandardPDF
82 FR 45481 - Interstate Transport of Fine Particulate Matter: Revision of Federal Implementation Plan Requirements for TexasPDF
82 FR 45526 - Airworthiness Directives; The Boeing Company AirplanesPDF
82 FR 45479 - Approval of Iowa Air Quality Implementation Plans; Elements of the Infrastructure SIP Requirements for the 2012 Annual Fine Particulate Matter (PM2.5PDF
82 FR 45550 - Approval of Iowa Air Quality Implementation Plans; Elements of the Infrastructure SIP Requirements for the 2012 Annual Fine Particulate Matter (PM2.5PDF
82 FR 45499 - Approval and Promulgation of Implementation Plans; New York; Regional Haze Five-Year Progress Report State Implementation PlanPDF
82 FR 45472 - Approval and Promulgation of Implementation Plans; New Jersey; Regional Haze Five-Year Progress Report State Implementation PlanPDF
82 FR 45630 - Regulatory Guides: “Conduct of Nuclear Material Physical Inventories,” and “Statistical Evaluation of Material Unaccounted For”PDF
82 FR 45434 - Adoption of Updated EDGAR Filer ManualPDF
82 FR 45421 - National Environmental Policy Act RegulationsPDF
82 FR 45628 - Submission GuidelinesPDF
82 FR 45530 - Environmental Impacts and Related ProceduresPDF
82 FR 45585 - Proposed Information Collection Request; Comment Request; Annual Public Water Systems Compliance ReportPDF
82 FR 45438 - Establishment of TRICARE Select and Other TRICARE ReformsPDF
82 FR 45517 - Raisins Produced From Grapes Grown in California; Secretary's Decision and Referendum Order on Proposed Amendments to Marketing Order No. 989PDF
82 FR 45618 - Request for Information on Potential Stay-at-Work/Return-to-Work Demonstration ProjectsPDF
82 FR 45473 - Air Plan Approval; North Carolina Miscellaneous RulesPDF
82 FR 45657 - Renewal of National Grain Car CouncilPDF

Issue

82 188 Friday, September 29, 2017 Contents Agricultural Marketing Agricultural Marketing Service PROPOSED RULES Marketing Orders: Raisins Produced From Grapes Grown in California, 45517-45526 2017-20347 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Dairy Product Mandatory Reporting Program, 45575-45576 2017-20870 Agriculture Agriculture Department See

Agricultural Marketing Service

Antitrust Division Antitrust Division NOTICES Changes Under National Cooperative Research and Production Act: Automotive Cybersecurity Industry Consortium, 45611-45612 2017-20880 DVD Copy Control Association, 45611 2017-20881 Census Bureau Census Bureau PROPOSED RULES Foreign Trade Regulations: Clarification on Collection and Confidentiality of Kimberley Process Certificates, 45528-45530 2017-20920 Centers Disease Centers for Disease Control and Prevention NOTICES Guidance: Diagnosis and Management of Pediatric Mild Traumatic Brain Injury, 45588-45589 2017-20903 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 45589-45590 2017-20921 Medicare Program: Medicare Appeals; Adjustment to the Amount in Controversy Threshold Amounts for Calendar Year 2018, 45592-45593 2017-20883 Requests for Nominations: Medicare Program: Medicare Advisory Panel on Clinical Diagnostic Laboratory Tests, 45590-45592 2017-20923 Chemical Chemical Safety and Hazard Investigation Board RULES Freedom of Information Act Program, 45500-45511 2017-20853 Civil Rights Civil Rights Commission NOTICES Meetings: Alabama Advisory Committee, 45577-45578 2017-20862 Colorado Advisory Committee, 45577 2017-20909 Indiana Advisory Committee, 45576-45577 2017-20864 New York Advisory Committee, 45578 2017-20863 Coast Guard Coast Guard RULES Safety Zones: Allegheny River Miles 0.0-1.0, Pittsburgh, PA, 45464 2017-20931 North Atlantic Ocean, Ocean City, NJ, 45464-45465 2017-20900 Pacific Ocean, Kilauea Lava Flow Ocean Entry on Southeast Side of Island of Hawaii, HI, 45461-45464 2017-20902 Commerce Commerce Department See

Census Bureau

See

Economic Analysis Bureau

See

National Oceanic and Atmospheric Administration

See

Patent and Trademark Office

Commodity Futures Commodity Futures Trading Commission RULES Commission Delegated Authority Provisions for Designated Contract Markets' System Safeguards Requirements, 45433-45434 2017-20924 Community Development Community Development Financial Institutions Fund NOTICES Funding Availability: Bank Enterprise Award Program FY 2017 Funding Round, 45663-45674 2017-20922 Copyright Royalty Board Copyright Royalty Board NOTICES Distributions: 2015 Satellite Royalty Funds, 45624-45625 2017-20926 Defense Department Defense Department See

Engineers Corps

RULES Establishment of TRICARE Select and Other TRICARE Reforms, 45438-45461 2017-20392 NOTICES Meetings: Defense Advisory Committee on Investigation Prosecution and Defense of Sexual Assault in the Armed Forces, 45582-45583 2017-20882
Defense Nuclear Defense Nuclear Facilities Safety Board NOTICES Senior Executive Service Performance Review Board, 45584-45585 2017-20884 Drug Drug Enforcement Administration RULES Schedules of Controlled Substances: Removal of Naldemedine from Control, 45436-45438 2017-20919 NOTICES Bulk Manufacturers of Controlled Substances; Applications: Research Triangle Institute, 45613 2017-20947 Importer of Controlled Substances; Applications: Bellwyck Clinical Services, 45613 2017-20941 Importers of Controlled Substances; Applications: Cody Laboratories, Inc., 45612 2017-20942 Importers of Controlled Substances; Registrations, 45612 2017-20943 Economic Analysis Bureau Economic Analysis Bureau NOTICES Meetings: Bureau of Economic Analysis Advisory Committee, 45578-45579 2017-20970 Education Department Education Department RULES Federal Student Aid Programs, 45465-45471 2017-20844 Employment and Training Employment and Training Administration NOTICES Worker Adjustment Assistance; Investigations, 45614-45617 2017-20940 Energy Department Energy Department NOTICES Meetings: Environmental Management Site-Specific Advisory Board Chairs, 45585 2017-20907 Engineers Engineers Corps NOTICES Environmental Impact Statements; Availability, etc.: Aliso Creek Mainstem Ecosystem Restoration Study, Orange County, CA, 45584 2017-20910 Meetings: Inland Waterways Users Board, 45583-45584 2017-20912 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Iowa Air Quality Implementation Plans; Elements of the Infrastructure SIP Requirements for the 2012 Annual Fine Particulate Matter (PM2.5) National Ambient Air Quality Standard, 45479-45481 2017-20829 Iowa; Elements of the Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard, 45497-45499 2017-20964 Maryland; Nonattainment New Source Review Requirements for the 2008 8-Hour Ozone Standard, 45475-45479 2017-20834 New Jersey; Regional Haze Five-Year Progress Report State Implementation Plan, 45472-45473 2017-20821 New York; Regional Haze Five-Year Progress Report State Implementation Plan, 45499-45500 2017-20823 North Carolina; Miscellaneous Rules, 45473-45475 2017-20325 Texas; Revision of Federal Implementation Plan Requirements for Interstate Transport of Fine Particulate Matter, 45481-45497 2017-20832 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: California; Anti-Idling Regulations, 45548-45549 2017-20963 Iowa Air Quality Implementation Plans; Elements of the Infrastructure SIP Requirements for the 2012 Annual Fine Particulate Matter (PM2.5) National Ambient Air Quality Standard, 45550 2017-20825 Iowa; Elements of the Infrastructure Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard, 45550-45551 2017-20965 Maryland; Nonattainment New Source Review Requirements for the 2008 8-Hour Ozone Standard, 45547-45548 2017-20837 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Annual Public Water Systems Compliance Report, 45585-45586 2017-20434 Environmental Impact Statements; Availability, etc.: Weekly Receipts, 45586-45587 2017-20938 Smart Sectors Program Launch, 45586 C1--2017--20310 Federal Aviation Federal Aviation Administration PROPOSED RULES Airworthiness Directives: The Boeing Company Airplanes, 45526-45528 2017-20830 NOTICES Land Release Requests: Lancaster Airport, Lancaster, PA, 45658-45659 2017-20969 Meetings: Office of Hazardous Materials Safety, 45659-45660 2017-20953 RTCA Federal Advisory Committee, 45658 2017-20898 Thirty Fifth RTCA SC-213 joint Plenary with EUROCAE WG-79, 45660 2017-20867 Schedule of Charges Outside the United States, 45659 2017-20952 Federal Deposit Federal Deposit Insurance Corporation NOTICES Meetings; Sunshine Act, 45587 2017-21062 2017-21063 Federal Highway Federal Highway Administration PROPOSED RULES Environmental Impacts and Related Procedures, 45530-45547 2017-20565 Federal Mine Federal Mine Safety and Health Review Commission NOTICES Meetings; Sunshine Act, 45587 2017-21056 Federal Railroad Federal Railroad Administration PROPOSED RULES Environmental Impacts and Related Procedures, 45530-45547 2017-20565 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 45588 2017-20929 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 45587-45588 2017-20928 Federal Retirement Federal Retirement Thrift Investment Board NOTICES Member Appointments: Senior Executive Service Performance Review Board, 45588 2017-20871 Federal Transit Federal Transit Administration PROPOSED RULES Environmental Impacts and Related Procedures, 45530-45547 2017-20565 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Wildlife and Plants: Listing Kenk's Amphipod; Withdrawal, 45551-45574 2017-21052 Food and Drug Food and Drug Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Opioid Policy Steering Committee, 45597-45600 2017-20905 Guidance: Advancement of Emerging Technology Applications for Pharmaceutical Innovation and Modernization, 45594-45596 2017-20861 Oncology Pharmaceuticals—Reproductive Toxicity Testing and Labeling Recommendations, 45593-45594 2017-20906 Meetings: Antimicrobial Drugs Advisory Committee; Establishment of a Public Docket, 45596-45597 2017-20949 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

National Institutes of Health

RULES 340B Drug Pricing Program Ceiling Price and Manufacturer Civil Monetary Penalties, 45511-45514 2017-20911 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 45600-45601 2017-20901
Homeland Homeland Security Department See

Coast Guard

See

U.S. Citizenship and Immigration Services

Indian Affairs Indian Affairs Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Native American Business Development Institute Funding Solicitations and Reporting, 45605-45606 2017-20932 Interior Interior Department See

Fish and Wildlife Service

See

Indian Affairs Bureau

See

Land Management Bureau

See

Ocean Energy Management Bureau

Internal Revenue Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 45675-45677 2017-20872 2017-20873 2017-20874 2017-20875 2017-20876 International Trade Com International Trade Commission NOTICES Complaints: Certain Shaving Cartridges, Components Thereof and Products Containing Same, 45610-45611 2017-20893 Investigations; Determinations, Modifications, and Rulings, etc.: Certain Height-Adjustable Desk Platforms and Components Thereof, 45608-45609 2017-20904 Certain Liquid Crystal Ewriters and Components Thereof, 45609-45610 2017-20939 Uncoated Groundwood Paper From Canada, 45609 2017-20878 Justice Department Justice Department See

Antitrust Division

See

Drug Enforcement Administration

See

Parole Commission

NOTICES Proposed Consent Decrees: Clean Air Act, 45613-45614 2017-20877
Labor Department Labor Department See

Employment and Training Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Prohibited Transaction Class Exemption 1998-54 Relating to Certain Employee Benefit Plan Foreign Exchange Transactions Executed Pursuant To Standing Instructions, 45617-45618 2017-20916 Requests for Information: Potential Stay-at-Work/Return-to-Work Demonstration Projects, 45618-45623 2017-20338
Land Land Management Bureau NOTICES Environmental Impact Statements; Availability, etc.: Leavitt Reservoir Expansion Project, Big Horn County, Wyoming, 45606-45607 2017-21140 Legal Legal Services Corporation NOTICES Funding Opportunities: 2017-2018 Pro Bono Innovation Fund and Technology Initiative Grant Funds, 45623-45624 2017-20865 Library Library of Congress See

Copyright Royalty Board

NOTICES Compendium of U.S. Copyright Office Practices, 45625-45628 2017-21065
Maritime Maritime Administration NOTICES Requests for Administrative Waivers of Coastwise Trade Laws: Vessel CONUNDRUM, 45660-45661 2017-20915 National Capital National Capital Planning Commission RULES National Environmental Policy Act Regulations, 45421-45433 2017-20614 NOTICES Submission Guidelines, 45628-45629 2017-20612 National Drug National Drug Control Policy Office NOTICES Designation of 16 Counties as High Intensity Drug Trafficking Areas, 45629 2017-20937 National Highway National Highway Traffic Safety Administration RULES Federal Motor Vehicle Safety Standards; CFR Correction, 45514 2017-21085 NOTICES Petitions for Decisions of Inconsequential Noncompliance: Continental Tire the Americas, LLC, 45661-45663 2017-20908 National Institute National Institutes of Health NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Revision to Identifying Experts in Prevention Science Methods To Include on NIH Review Panels, Office of Disease Prevention, 45602-45603 2017-20885 Meetings: National Human Genome Research Institute, 45603 2017-20988 National Institute of Allergy and Infectious Diseases, 45604 2017-20855 National Institute of Biomedical Imaging and Bioengineering, 45601 2017-20856 National Institute of Diabetes and Digestive and Kidney Diseases, 45603-45604 2017-20857 National Institute of General Medical Sciences, 45601 2017-20858 National Institute on Minority Health and Health Disparities, 45601-45603 2017-20860 2017-20859 National Oceanic National Oceanic and Atmospheric Administration RULES International Fisheries: Pacific Tuna Fisheries; Revised 2017 Fishing Restrictions for Tropical Tuna in the Eastern Pacific Ocean, 45514-45516 2017-20950 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Solicitation of Non-Power Reactor Operator Licensing Examination Data, 45629-45630 2017-20913 Guidance: Conduct of Nuclear Material Physical Inventories, and Statistical Evaluation of Material Unaccounted For, 45630-45631 2017-20695 Ocean Energy Management Ocean Energy Management Bureau NOTICES Records of Decisions: Cape Wind Energy Project, 45607-45608 2017-20936 Parole Parole Commission NOTICES Meetings; Sunshine Act, 45614 2017-21069 Patent Patent and Trademark Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Applications for Trademark Registration, 45579-45581 2017-20836 Patent Petitions Related to Application and Reexamination Processing Fees, 45581-45582 2017-20835 Peace Peace Corps NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 45631 2017-20917 2017-20918 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Meetings: Office of Hazardous Materials Safety, 45659-45660 2017-20953 Securities Securities and Exchange Commission RULES Adoption of Updated EDGAR Filer Manual, 45434-45436 2017-20654 NOTICES FY 2015 Service Contract Inventory, 45639 2017-20879 Self-Regulatory Organizations; Proposed Rule Changes: Bats BZX Exchange, Inc., 45634 2017-20890 Chicago Board Options Exchange, Inc., 45650-45653 2017-20889 NASDAQ Stock Market LLC, 45639-45643 2017-20886 NYSE American LLC, 45653-45656 2017-20891 NYSE Arca, Inc., 45631-45639, 45643-45650 2017-20887 2017-20888 2017-20892 2017-20896 Small Business Small Business Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 45656 2017-20897 State Department State Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Affidavit Regarding a Change of Name, 45656-45657 2017-21025 Surface Transportation Surface Transportation Board NOTICES Charter Renewals: National Grain Car Council, 45657 2017-20287 Trade Representative Trade Representative, Office of United States NOTICES Meetings: Implementation of the United States-Singapore Free Trade Agreement Environment Chapter, 45657-45658 2017-20866 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

Federal Railroad Administration

See

Federal Transit Administration

See

Maritime Administration

See

National Highway Traffic Safety Administration

See

Pipeline and Hazardous Materials Safety Administration

Treasury Treasury Department See

Community Development Financial Institutions Fund

See

Internal Revenue Service

U.S. Citizenship U.S. Citizenship and Immigration Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Collection of Qualitative Feedback Through Focus Groups, 45604-45605 2017-20914 Reader Aids

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82 188 Friday, September 29, 2017 Rules and Regulations NATIONAL CAPITAL PLANNING COMMISSION 1 CFR Part 601 National Environmental Policy Act Regulations AGENCY:

National Capital Planning Commission.

ACTION:

Final rule.

SUMMARY:

The National Capital Planning Commission (NCPC or Commission) rescinds its current Environmental and Historic Preservation Policies and Procedures (2004 Policies) and hereby adopts new rules governing NCPC's implementation of the National Environmental Policy Act (NEPA).

DATES:

This rule is effective October 30, 2017.

FOR FURTHER INFORMATION CONTACT:

Anne R. Schuyler, (202) 482-7223 or [email protected]

SUPPLEMENTARY INFORMATION:

I. Summary of Changes A. Background

NCPC's 2004 Policies were adopted in 2004 (69 FR 41299, July 8, 2004) and generally remain appropriate. However certain portions of the 2004 Policies require revision to simplify, streamline, and improve the effectiveness of NCPC's process for complying with NEPA. Accordingly, this document adopts a complete new rule.

B. Elimination of Section 106 Procedures

One of the most significant changes reflected in the new rule is the elimination of procedures for complying with Section 106 of the National Historic Preservation Act (NHPA). In 2004, when it adopted the 2004 Policies, NCPC opted to issue combined NEPA and NHPA guidance to ensure coordinated implementation of both procedures. However, regulations promulgated by the Advisory Council on Historic Preservation (ACHP) do not require agencies to adopt agency specific processes and procedures (see 36 CFR chapter VIII). Instead ACHP regulations establish the processes and procedures all Federal Agencies must follow. This resulted in the inclusion of duplicative information in NCPC's 2004 Policies. While this information proved helpful, it diverted attention away from NCPC's agency-specific NEPA procedures mandated by the Council on Environmental Quality (CEQ). Accordingly, this rule does not include detailed references to the Section 106 consultation process. It does include a reference to coordination between NEPA and NHPA and consideration of historic resources in the NEPA process.

C. Federal and Non-Federal Agencies

To clarify roles and responsibilities, these Regulations distinguish between Federal Agency applicants and Non-Federal Agency applicants. Federal Agency applicants include cabinet level departments and executive agencies such as the U.S. General Services Administration (GSA). Non-Federal Agency applicants include, without limitation, the Smithsonian Institution, the John F. Kennedy Center for the Performing Arts, the National Gallery of Art, the U.S. Institute of Peace, the Government of the District of Columbia, the Maryland National Capital Park and Planning Commission (MNCPPC), and private parties and entities implementing projects on Federal land. NCPC's jurisdiction extends to Non-Federal Agency applicants when they undertake projects on federally-owned land. Under this rule, NCPC serves as the Lead Agency for Non-Federal Agency applications. This is necessitated by the fact the Non-Federal Agencies are not subject to NEPA. However, if the Commission takes an approval action on a Non-Federal Agency application, the requirements of NEPA apply to the Commission's decision-making process. This means NCPC must undertake the requisite steps of the NEPA process for a Non-Federal Agency application to meet its legal obligation.

D. Timing and Sequencing of Submission of NEPA Documents

These Regulations also alter the timing and sequencing of an applicant's submission of NEPA documentation for applications governed by the National Capital Planning Act and the Commemorative Works Act. Under the 2004 Policies, an applicant was required to complete the NEPA process at the time of preliminary review. Under this rule, an applicant must complete its NEPA process at the time of final review. This revised approach allows the Commission an opportunity to provide input on a project when it is still in the developmental phase. It also provides a NEPA sequencing consistent with Federal Agency project development schedules. This eliminates the pressure on Federal Agency applicants to expedite its NEPA process to meet NCPC's current sequencing requirements.

E. Categorical Exclusions

NCPC's rule also includes changes to the list of projects eligible for application of a Categorical Exclusion (CATEX). The Regulations include several new CATEXs. NCPC eliminated several existing CATEXs because they were based on old, antiquated authorities which have little to no relationship to NCPC's present day review roles. The rule also increase the number of extraordinary circumstances which negate the application of a CATEX.

II. Summary of and Response to Comments A. General

NCPC published a Proposed Rule (82 FR 42570, May 30, 2017) addressing revisions to its 2004 Policies, establishing a 45-day public comment period. The public comment period closed on July 14, 2017.

NCPC received a little under 100 comments on its proposed NEPA rule Regulations. Comments were submitted by the General Services Administration, the U.S. Department of the Interior and it's National Park Service, and the National Aeronautics and Space Administration; the Smithsonian Institution; the Washington Area Metropolitan Transit Authority; the National Trust for Historic Preservation; The Committee of 100 on the Federal City; approximately 21 members of the general public; and two private consulting firms. A summary chart of all the comments received and NCPC's response thereto can be found on NCPC's Web site at www.ncpc.gov/subnepa.

The major comments can be grouped into six categories: (1) The elimination of detailed reference to compliance with Section 106 of the NHPA; (2) the treatment of Non-Federal Agencies in the Regulations; (3) the timing and sequencing of submitting NEPA Documents/Co-Signing a Finding of No Significant Impact (FONSI) or a Record of Decision (ROD); (4) NCPC's reliance on the CATEX of other government agencies; and (5) the minimal focus on public participation in the NEPA process/lack of public knowledge of process for administering CATEXs.

B. Revised Name for the Regulations

NCPC decided to rename its NEPA requirements the National Environmental Policy Act Regulations (Regulations). This title is more descriptive of the true nature of the Regulations versus the title of Environmental Policies and Procedures conferred on the 2004 Policies.

C. Elimination of NHPA Section 106 Requirements

Several comments addressed the elimination of NHPA Section 106 procedures from the Regulations. The National Trust for Historic Preservation generally agreed with the elimination, but it suggested designating the NEPA Lead and Cooperating Agencies as the Lead and Consulting Parties for the Section 106 process. NCPC disagrees with this suggestion. NCPC maintains it is inappropriate to designate roles for the Section 106 process in its NEPA Regulations. To compensate for the elimination, a member of the public suggested reference to ACHP guidance on the ACHP for integrating NEPA and the Section 106 processes. While NCPC found merit to this comment and initially inserted an endnote to the ACHP Web site and the CEQ Web site for general NEPA guidance, CEQ believed the references unnecessary. Finally, the Committee of 100 on the Federal City maintained the elimination of references to the Section 106 process sent a negative message about the connection between the two processes. NCPC notes this was not its intention as evidenced by the clearly articulated policy in § 601.2(d) to integrate the requirements of NEPA with, among others, the requirements of the NHPA.

D. Role of Non-Federal Agencies

The role of Non-Federal Agencies in the NEPA process generated a number of comments. The Smithsonian Institution (designated a Non-Federal Agency in the Regulations) recommended the re-designation of Federal and Non-Federal Agencies as Executive and Non-Executive Agencies on the theory that this might be less confusing. NCPC declined to make this change because of the repeated use of the term “federal” in the National Capital Planning Act (40 U.S.C. 8701 et seq.). However, for clarification purposes, NCPC revised the definition of Non-Federal Agencies to indicate this designation applies only for purposes of NEPA.

One member of the public challenged the legality of designating Non-Federal Agencies as “Cooperating Agencies” given that the CEQ regulatory definition only designates “federal agencies” as capable of serving in this capacity. NCPC notes this statement is only partially correct. The definition of Cooperating Agency in 40 CFR 1508.5 also extends to state or local agencies rendering such agencies eligible to serve as Cooperating Agencies. This makes Cooperating Agency status appropriate for the Government of the District of Columbia and the Maryland National Capital Park and Planning Commission. As to the others listed in the definition—Smithsonian Institution, the John F. Kennedy Center for the Performing Arts, the National Gallery of Art, the U.S. Institute of Peace, and private parties undertaking development on Federal land—NCPC agrees an alternative approach is necessary.

NCPC also agrees with the same individual's multiple comments that NCPC does not undertake NEPA “on behalf” of Non-Federal Agencies. NCPC recognizes that the NEPA obligation for a Non-Federal Agency application belongs to NCPC. NCPC believes a minor wording change to “undertakes NEPA for a Non-Federal Agency application” solves this concern.

Turning to an alternative approach for NEPA compliance for Non-Federal Agency applications, NCPC notes it is not alone in confronting the issue of Non-Federal Agency applications to which NEPA applies because of the Federal Agency's approval/permitting authority. NCPC looked at the NEPA regulations for similarly situated Federal Agencies to ascertain how they handle the issue. One Federal Agency lists in its regulations the information that the Non-Federal Agency (permittee and owner of the project) must submit to facilitate staff's preparation of the requisite NEPA document. Because this approach increased the complexity of the agency's regulations, and NCPC's goal is to streamline its regulations consistent with the Administration's articulated regulatory reduction goals, NCPC adopted a modified version of this approach.

NCPC will enter into a Memorandum of Agreement (MOA) (renamed from a Memorandum of Understanding or MOU in the proposed rule) with Non-Federal Agencies. The MOA will specify, among others, the information the Non-Federal Agency must submit to enable preparation of the requisite environmental document by NCPC staff and the timing of the information's submission. Contrary to the comments on one individual, NCPC disagrees the MOA approach is legally insufficient. This comment implies NCPC is relinquishing its NEPA responsibilities by entering into a MOA. This is not the case. NCPC considers the MOA an internal operating procedure within its authority to implement. It is also an efficient and effective way to fulfill its NEPA obligation and avoid some of the pitfalls associated with the prior approach of Cooperating Agency status. The problems avoided include budgetary issues if the Non-Federal Agency provides money to NCPC to retain a contractor, Non-Federal Agency participation in NCPC's retention of the Non-Federal Agency funded contractor, and the potential for two A&E contractors working on different aspects of the same project. To facilitate public awareness, NCPC will post the completed MOA on the NCPC's Web site.

NCPC notes that in a follow-up conversation with the commenter to explore the rationale for opposing an MOA, the commenter agreed the MOA approach as outlined above is legally sufficient. NCPC conducted the follow-up conversation after the comment period closed, and no new comments were discussed during the conversation.

E. Timing and Sequencing of Submitting NEPA Documents/Co-Signing FONSIs and RODs

All the government agencies supported NCPC's process change of moving NEPA completion to coincide with the Commission's final approval. There was one concern expressed about the sequencing of NEPA and the Commemorative Works Act's review process, but NCPC believes the comment was the result of a misunderstanding of the process.

Multiple Federal Agencies also advised against incorporation of a provision allowing NCPC to co-sign another agency's FONSI or ROD. NCPC notes that the Regulations render this practice discretionary. However, if both agencies agree on the contents of a FONSI or ROD, it makes no sense for NCPC to prepare a duplicated document for NCPC to sign. Obviously, if the two agencies have different reasons for reaching a FONSI or a ROD, co-signature is not an option, and each agency will have to prepare its own document. Co-signature is also not an option if there is disagreement over the ability to reach a FONSI or ROD. This disagreement points to problems with the Environmental Document that must be resolved before the project can be presented to the Commission. Finally, NCPC reminds Federal Agencies that co-signing a FONSI or ROD is entirely consistent with the Administration's efforts to streamline regulatory processes especially NEPA.

F. Use of Another Agency's CATEX

The inclusion of five Categorical Exclusions that allowed NCPC to use the exclusion of another agency when it had no corresponding CATEX generated a number of comments pro and con. Federal Agencies supported the concept because it removed the possible need for them to prepare an EA if they used a Categorical Exclusions for their project but NCPC had no exclusion it could apply. The National Trust for Historic preservation and a member of the general public objected to the approach noting it was inconsistent with CEQ's long standing policy to disallow such an approach.

As required, NCPC submitted an administrative record to CEQ for all of its proposed CATEX, most of which are carry-overs from several iterations of prior regulations. The administrative record noted that the five CATEXs predicated upon use of another agency's exclusion had not been enlarged in scope and the CATEX continued to be appropriately limited by extraordinary circumstances, the number of which has been significantly increased in the Regulations.

NCPC's Administrative Record for the five CATEXs at issue was initially accepted, but upon further reflection CEQ has decided to adhere to its long standing policy to disallow such an approach. Consequently, NCPC has removed all five of the CATEXs at issue. Since four of the five CATEX at issue have been put to little use for a prolonged period of time, NCPC does not believe its implementation of NEPA will be unduly burdened by this removal. The addition of new CATEX may also fill the gap.

G. Public Participation/Public Knowledge of Process for Administering CATEX

The Committee of 100 on the Federal City commented on the silence of the proposed regulation on the goals, criteria and process for meaningful public participation. They encouraged the incorporation of meaningful public participation policy and goals to rectify this deficiency.

NCPC is fully committed to open government and transparency and believes its past actions amply substantiate this commitment not only in the NEPA and Section 106 processes but to all of its significant planning activities. Accordingly, the Regulations clearly articulate a policy of using the NEPA process to “. . . foster meaningful public involvement in NCPC's decisions.” Moreover, throughout the Regulations, there are repeated opportunities for public participation to include in the EIS scoping process with an option for NCPC to conduct a public scoping process for Environmental Assessments as well; in the review of draft Environmental Assessments (EAs) (at NCPC's option) and Environmental Impact Statements (EISs); and in the review of FONSIs and RODs. Moreover, at the suggestion of another commenter, documents required to be published in the Federal Register (Notice of Intent to Prepare an EIS and Notice of Availability of an EIS) will also be published on the NCPC Web site where parties interested in NCPC activities are more likely to go to stay abreast of current NCPC events.

The Committee of 100 on the Federal City also expressed concern about the Regulation's silence on the administrative process for the application of a CATEX. NCPC notes that among the Commission's official delegations is one conferring administrative responsibility for NEPA on the Executive Director. In the future, owing to the recent redesign of NCPC's Web site, the delegations will be listed on the Web site. However, NCPC notes this responsibility, how and when it is made, and how the public is notified of the decision is set forth in §§ 601.11(c) and 601.12(b) of the Regulations.

H. CEQ Comments

As required by CEQ Regulations, NCPC submitted a draft of this final rule to CEQ for its review and approval following revisions to the Regulations to reflect comments received during the public comment period. CEQ responded with a number of recommendations. Most of the recommendations were minor in nature and involved language clarifications, addition of cross-references to relevant sections of CEQ's regulations, and inclusion of additional language.

The one recommendation falling outside the minor category related to the timing of the signing FONSIs and RODs by Federal Agency applicants and NCPC for Non-Federal Agency applications. NCPC has in the past accepted signed FONSIs and RODs at the time an application for final approval is submitted to the Commission. This practice reflects the close coordination between NCPC and its applicants and the likelihood that the Commission, with rare exceptions, will approve the final application. CEQ (and one commenter) pointed out that notwithstanding the high probability the signed FONSI or ROD would reflect the Commission's decision, it was technically incorrect. The signature of a FONSI or ROD can only occur after the Commission takes a final action and cannot precede a future, anticipated decision of approval.

In response to CEQ's comment, the rule requires NCPC to sign its decision documents following Commission final approval of an application. As to Federal Agencies, the rule is silent as to when the Federal Agency may sign its FONSI or ROD. However, there is now an express provision that places the burden on Federal Agency applicants to review their Environmental Documents and their FONSI or ROD to determine if revisions are necessary if at the time of final approval the Commission disapproves an application and requires changes to the project.

Following incorporation of all of CEQ's recommended changes into the regulations, NCPC received final CEQ sign off on September 21, 2017.

III. Compliance With Laws and Executive Orders Executive Orders 12866 and 13563

By Memorandum dated October 12, 1993 from Sally Katzen, Administrator, Office of Information and Regulatory Affairs (OIRA) to Heads of Executive Departments and Agencies, and Independent Agencies, OMB rendered the NCPC exempt from the requirements of Executive Order 12866 (See, Appendix A of cited Memorandum). Nonetheless, NCPC endeavors to adhere to the provisions of the Executive Order.

Executive Order 13771

NCPC is exempt from this Executive Order because it is exempt from E.O. 12866, NCPC confirmed this fact with OIRA.

Regulatory Flexibility Act

As required by the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), the NCPC certifies that the rule will not have a significant economic effect on a substantial number of small entities.

Small Business Regulatory Enforcement Fairness Act

This is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. It does not have an annual effect on the economy of $100 million or more; will not cause a major increase in costs for individuals, various levels of governments or various regions; and does not have a significant adverse effect on completion, employment, investment, productivity, innovation or the competitiveness of U.S. enterprises with foreign enterprises.

Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.)

A statement regarding the Unfunded Mandates Reform Act is not required. The rule neither imposes an unfunded mandate of more than $100 million per year nor imposes a significant or unique effect on State, local or tribal governments or the private sector.

Federalism (Executive Order 13132)

In accordance with Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. The rule does not substantially and directly affect the relationship between the Federal and state governments.

Civil Justice Reform (Executive Order 12988)

The General Counsel of NCPC has determined that the rule does not unduly burden the judicial system and meets the requirements of Executive Order 12988 3(a) and 3(b)(2).

Paperwork Reduction Act

The rule does not contain information collection requirements, and it does not require a submission to the Office of Management and Budget under the Paperwork Reduction Act.

National Environmental Policy Act

The rule is of an administrative nature, and its adoption does not constitute a major Federal action significantly affecting the quality of the human environment. NCPC's adoption of the rule will have minimal or no effect on the environment; impose no significant change to existing environmental conditions; and will have no cumulative environmental impacts.

Clarity of the Regulation

Executive Order 12866, Executive Order 12988, and the Presidential Memorandum of June 1, 1998 requires the NCPC to write all rules in plain language. NCPC maintains the rule meets this requirement.

Public Availability of Comments

Be advised that personal information such as name, address, phone number electronic address, or other identifying personal information contained in a comment may be made publically available. Individuals may ask NCPC to withhold the personal information in their comment, but there is no guarantee the agency can do so.

List of Subjects in 1 CFR Part 601

Environmental impact statements, Environmental protection.

For the reasons stated in the preamble, the National Capital Planning Commission adds 1 CFR part 601 to read as follows: PART 601—IMPLEMENTATION OF THE NATIONAL ENVIRONMENTAL POLICY ACT Subpart A—General Sec. 601.1 Purpose. 601.2 Policies. 601.3 Definitions. Subpart B—Lead and Cooperating Agencies 601.4 Designation of Lead Agency. 601.5 Lead Agency obligations. 601.6 Resolving disputes over Lead Agency status. 601.7 Cooperating Agencies. Subpart C—NEPA Submission Schedules 601.8 NEPA submission schedule for applications governed by the National Capital Planning Act. 601.9 NEPA submission schedule for applications governed by the Commemorative Works Act. Subpart D—Initiating the NEPA Process 601.10 Characteristics of Commission actions eligible for a Categorical Exclusion. 601.11 Extraordinary Circumstances. 601.12 National Capital Planning Commission Categorical Exclusions. Subpart E—Environmental Assessments 601.13 Characteristics of Commission actions eligible for an Environmental Assessment. 601.14 Commission actions generally eligible for an Environmental Assessment. 601.15 Process for preparing an Environmental Assessment. 601.16 Finding of No Significant Impact. 601.17 Supplemental Environmental Assessments. Subpart F—Environmental Impact Statements 601.18 Requirement for and timing of an Environmental Impact Statement. 601.19 Context, intensity, and significance of impacts. 601.20 Streamlining Environmental Impact Statements. 601.21 Programmatic Environmental Impact Statements and tiering. 601.22 Contents of an Environmental Impact Statement. 601.23 The Environmental Impact Statement process. 601.24 Final Environmental Impact Statement. 601.25 Record of Decision. 601.26 Supplemental Environmental Impact Statement. 601.27 Legislative Environmental Impact Statement. Subpart G—Dispute Resolution 601.28 Dispute resolution. 601.29 [Reserved] Authority:

40 CFR 1507.3.

Subpart A—General
§ 601.1 Purpose.

This part establishes rules that supplement the Council on Environmental Quality's (CEQ) National Environmental Policy Act (NEPA) regulations that the National Capital Planning Commission (NCPC or Commission) and its applicants shall follow to ensure:

(a) Compliance with NEPA, as amended (42 U.S.C. 4321 et seq.) and CEQ regulations for implementing the procedural provisions of NEPA (40 CFR parts 1501 through 1508).

(b) Compliance with other laws, regulations, and Executive Orders identified by NCPC as applicable to a particular application.

§ 601.2 Policies.

Consistent with 40 CFR 1500.1 and 1500.2, it shall be the policy of the NCPC to:

(a) Comply with the procedures and policies of NEPA and other related laws, regulations, and orders applicable to Commission actions.

(b) Provide applicants sufficient guidance to ensure plans and projects comply with the rules of this part and other laws, regulations, and orders applicable to Commission actions.

(c) Integrate NEPA into its decision-making process at the earliest possible stage.

(d) Integrate the requirements of NEPA and other planning and environmental reviews required by law including, without limitation, the National Historic Preservation Act, 54 U.S.C. 306108 (NHPA), to ensure all such procedures run concurrently.

(e) Use the NEPA process to identify and assess the reasonable alternatives to proposed actions that will avoid or minimize adverse effects on the quality of the human environment in the National Capital Region.

(f) Use all practicable means to protect, restore, and enhance the quality of the human environment including the built and socioeconomic environments and historic properties within the National Capital Region.

(g) Streamline the NEPA process and Environmental Impact Statements (EIS) to the maximum extent possible.

(h) Use the NEPA process to assure orderly and effective NCPC decision-making and to foster meaningful public involvement in NCPC's decisions.

§ 601.3 Definitions.

For purposes of this part, the following definitions shall apply:

Administrative Record means a compilation of all materials (written and electronic) that were before the agency at the time it made its final decision. An Administrative Record documents an agency's decision-making process and the basis for the decision.

Categorical Exclusion or CATEX means, as defined by 40 CFR 1508.4, a category of actions which do not individually or cumulatively have a significant effect on the human environment except under Extraordinary Circumstances and which have been found to have no such effect in procedures adopted by a Federal Agency (NCPC) in implementation of CEQ's regulations and for which, therefore, neither an Environmental Assessment (EA) nor an EIS is required.

Central Area means the geographic area in the District of Columbia comprised of the Shaw School and Downtown Urban Renewal Areas or such other area as the District of Columbia and NCPC shall subsequently jointly determine.

Chairman means the Chairman of the National Capital Planning Commission appointed by the President, pursuant to 40 U.S.C. 8711(c).

Commemorative Works Act or CWA means the Federal law codified at 40 U.S.C. 8901 et seq. that sets forth the requirements for the location and development of new memorials and monuments on land under the jurisdiction of the National Park Service (NPS) or the General Services Administration (GSA) in the District of Columbia and its Environs.

Commission means the National Capital Planning Commission created by 40 U.S.C. 8711.

Comprehensive Plan means The Comprehensive Plan for the National Capital: Federal Elements prepared and adopted by the Commission pursuant to 40 U.S.C. 8721(a).

Cooperating Agency means, as defined in 40 CFR 1508.5, any Federal Agency other than a Lead Agency that has jurisdiction by law or special expertise with respect to a proposal (or reasonable alternative) for legislation or other major action significantly affecting the quality of the human environment; a state or local agency of similar qualifications; or when the effects are on a reservation, an Indian Tribe when agreed to by the Lead Agency.

Cumulative impact means, as defined in 40 CFR 1508.7, the impact on the environment that results from the incremental impact of an action when added to other past, present, and reasonably foreseeable future actions regardless of what agency (Federal or Non-Federal) or person undertakes such other actions. Cumulative impacts can result from individually minor, but collectively significant, actions taking place over a period of time.

Emergency Circumstances means a sudden and serious occurrence or situation requiring immediate attention to protect the lives and safety of the public and protect property and ecological resources and functions from imminent harm.

Environmental Assessment or EA means, as defined in 40 CFR 1508.9, a concise document for which a Federal Agency is responsible that serves to briefly provide sufficient evidence and analysis for determining whether to prepare an EIS or a FONSI; aid an agency's compliance with NEPA when no EIS is necessary; facilitate preparation of an EIS when one is necessary; and includes a brief discussion of the need for the proposal, alternatives as required by section 102(2)(E) of NEPA, the environmental impacts of the proposed action and alternatives, and a listing of agencies and persons consulted.

Environmental Document means, as set forth in 40 CFR 1508.10, an Environmental Assessment, and Environmental Impact Statement, and for purposes of these regulations, a Categorical Exclusion determination.

Environmental Impact Statement or EIS means, as defined in 40 CFR 1508.11, a detailed written statement as required by 42 U.S.C. 4332(2)(C).

Environs means the territory surrounding the District of Columbia included in the National Capital Region pursuant to 40 U.S.C. 8702(a)(1).

Executive Director means the Executive Director employed by the National Capital Planning Commission pursuant to 40 U.S.C. 8711(d).

Executive Director's Recommendation or EDR means a concise written report and recommendation prepared by NCPC staff under the direction of NCPC's Executive Director regarding a proposed action that is transmitted to the Commission for its consideration.

Extraordinary Circumstances means special circumstances that when present negate an agency's ability to categorically exclude a project and require an agency to undertake further NEPA review.

Federal Agency means the executive agencies of the Federal government as defined in 5 U.S.C. 105.

Finding of No Significant Impact or FONSI means, as defined at 40 CFR 1508.13, a document prepared by NCPC or a Federal Agency applicant that briefly presents the reasons why an action, not otherwise excluded (40 CFR 1508.4), will not have a significant effect on the human environment and for which an EIS will not be prepared. It shall include the EA or a summary of it and shall note any other EAs or EISs related to it (40 CFR 1501.7(a)(5)). If the EA is included in the FONSI, the FONSI need not repeat any of the discussion in the EA but may include the EA by reference.

Lead Agency means, as defined in 40 CFR 1508.16, the agency or agencies preparing or having primary responsibility for preparing an EA or an EIS.

Memorandum of Agreement or MOA means for purposes of implementing the regulations in this part, a written agreement entered into between a Lead, Co-lead, Cooperating Agency, or a Non-Federal Agency to facilitate implementation of NEPA and preparation of the requisite environmental documentation. A MOA can be written at a programmatic level to apply to all projects involving NCPC and particular applicant or on a project-by-project basis.

Mitigation means, as defined in 40 CFR 1508.20, avoiding an impact altogether by not taking a certain action or parts of an action; minimizing impacts by limiting the degree or magnitude of the action and its implementation; rectifying the impact by repairing, rehabilitating, or restoring the affected environment; reducing or eliminating the impact over time by preservation and maintenance operations during the life of the action; and compensating for the impact by replacing or providing substitute resources or environments.

Monumental Core means the general area encompassed by the U.S. Capitol grounds, the National Mall, the Washington Monument grounds, the White House grounds, the Ellipse, West Potomac Park, East Potomac Park, the Southwest Federal Center, the Federal Triangle area, President's Park, the Northwest Rectangle, Arlington Cemetery and the Pentagon area, and Joint Base Myer-Henderson Hall.

National Capital Planning Act means the July 1952 legislative enactment, codified at 40 U.S.C. 8701 et seq. that created the present day National Capital Planning Commission and conferred authority upon it to serve as the planning authority for the Federal government in the National Capital Region.

National Capital Region means, as defined in 40 U.S.C. 8702(2), the District of Columbia; Montgomery and Prince Georges Counties in Maryland; Arlington Fairfax, Loudon, and Prince William Counties in Virginia; and all cities in Maryland or Virginia in the geographic area bounded by the outer boundaries of the combined area of the counties listed.

Non-Federal Agency for purposes of the National Environmental Policy Act and the regulations in this part means those applicants outside the definition of Federal Agency that prepare plans for or undertake projects on land within the National Capital Region subject to NCPC's jurisdiction. Non-Federal Agencies include, without limitation, the Smithsonian Institution, the John F. Kennedy Center for the Performing Arts, the National Gallery of Art, the United States Institute of Peace, the Government of the District of Columbia, private parties undertaking development on Federal land, and the Maryland National Capital Parks and Planning Commission. In most instances, the Non-Federal Agency has legal jurisdiction over the project and special expertise relative to the project's components.

Notice of Availability or NOA means a public notice or other means of public communication that announces the availability of an EA or an EIS for public review.

Notice of Intent or NOI means, as defined in 40 CFR 1508.22, a notice published in the Federal Register that an EIS will be prepared and considered. The notice shall briefly describe the proposed action and possible alternatives; describe the agency's proposed Public Scoping process including whether, when, and where any Public Scoping meeting will be held; and state the name and address of a person within the agency who can answer questions about the proposed action and the EIS. For purposes of NCPC implementation of NEPA, NCPC may determine, at its sole discretion, to publish an NOI that an EA will be prepared and considered.

Purpose and need as described in 40 CFR 1502.13 means the underlying purpose and need for agency action to which the agency is responding in proposing the alternatives including the proposed action.

Programmatic NEPA Review means a broad or high level NEPA review that assesses the environmental impacts of proposed policies, plans or programs, or projects for which subsequent project or site-specific NEPA analysis will be conducted. A Programmatic NEPA Review utilizes a tiering approach.

Record of Decision or ROD means a concise public record of an agency's decision in cases requiring an EIS that is prepared in accordance with 40 CFR 1505.2.

Scope means, as defined in 40 U.S.C. 1508.25, the range of actions (connected, cumulative and similar); alternatives (no action, other reasonable courses of action; and Mitigation measures not included in the proposed action); and impacts (direct, indirect and cumulative) considered in an EIS or an EA. The process of defining and determining the scope of issues to be addressed in an EIS or EA with public involvement shall be referred to as Public Scoping. Internal scoping activities shall be referred to by the word scoping without capitalization.

Submission Guidelines means the formally-adopted document which describes the application process and application requirements for projects requiring review by the Commission.

Tiering means, as defined in 40 CFR 1508.28, an approach where Federal Agency applicants, NCPC on behalf of Non-Federal Agency applicants, or NCPC for its own projects initially consider the broad, general impacts of a proposed program, plan, policy, or large scale project—or at the early stage of a phased proposal—and then conduct subsequent narrower, decision focused reviews.

Subpart B—Lead and Cooperating Agencies
§ 601.4 Designation of Lead Agency.

(a) A Federal Agency applicant shall serve as the Lead Agency and prepare an EA or an EIS for:

(1) An application that requires Commission approval; and

(2) An application for action on a master plan that includes future projects that require Commission approval; provided that:

(i) The applicant intends to submit individual projects covered by the master plan to the Commission within five years of the date of Commission action on the master plan; and

(ii) The applicant intends to use the master plan EA or EIS to satisfy its NEPA obligation for specific projects referenced in the master plan.

(b) NCPC shall serve as Lead Agency and prepare an EA or an EIS for:

(1) An application submitted by a Non-Federal Agency that requires Commission approval;

(2) An application submitted by a Non-Federal Agency for action on a master plan that includes future projects that require Commission approval; provided that:

(i) The Non-Federal Agency applicant intends to submit individual projects covered by the master plan to the Commission within five years of the date of Commission action on the master plan; and

(ii) The Non-Federal Agency applicant intends to use the master plan EA or EIS to satisfy its NEPA obligation for a specific project referenced in the master plan; and

(3) An application for approval of land acquisitions undertaken pursuant to 40 U.S.C. 8731-8732.

§ 601.5 Lead Agency obligations.

(a) The obligations of a Federal Agency applicant designated as the Lead Agency in accordance with § 601.4(a) shall include, without limitation, the following:

(1) Act as Lead Agency as defined in 40 CFR 1501.5 for the NEPA process.

(2) Integrate other environmental reviews and other applicable regulatory requirements to include, without limitation, Section 106 of the NHPA.

(3) Allow NCPC, to participate as a Co-lead or Cooperating Agency, as appropriate, and consult with Commission staff as early as possible in the planning process to obtain guidance with respect to the goals, objectives, standards, purpose, need, and alternatives for the NEPA analysis.

(4) Invite affected Federal, state, regional and local agencies to participate as a Cooperating Agency in the NEPA process.

(5) Consult with the affected agencies as early as possible in the planning process to obtain guidance on the goals, objectives, standards, purpose, need, and alternatives for the NEPA analysis.

(6) Work with Cooperating Agencies and stakeholders in the following manner:

(i) Keep them informed on the project schedule and substantive matters; and

(ii) Allow them an opportunity to review and comment within reasonable time frames on, without limitation, Public Scoping notices; technical reports; public materials (including responses to comments received from the public); potential Mitigation measures; the draft EA or EIS; and the draft FONSI or ROD.

(7) Prepare the appropriate Environmental Document consistent with the applicant's NEPA regulations, the requirements of this part, and CEQ regulations. If the Lead Agency applies a CATEX and NCPC as Cooperating Agency does not have a corresponding CATEX that it can apply, the Lead Agency shall prepare an EA to satisfy NCPC's NEPA requirement.

(8) Determine in its Environmental Document whether an action will have an adverse environmental impact or would limit the choice of reasonable alternatives under 40 CFR 1505.1(e) and take appropriate action to ensure that the objectives and procedures of NEPA are achieved.

(9) Prepare, make available for public review, and issue a FONSI or ROD.

(10) Ensure that the draft and final EIS comply with the requirements of 40 CFR 1506.5(c) and include a disclosure statement executed by any contractor (or subcontractor) under contract to prepare the EIS document and that the disclosure appears as an appendix to the EIS.

(11) Compile, maintain, and produce the Administrative Record.

(12) Provide periodic reports on implementation of Mitigation measures to NCPC and other Cooperating Parties consistent with a schedule established in the Environmental Document. All such reports shall be posted on NCPC's Web site.

(13) For an application that has yet to obtain final Commission approval, re-evaluate and update Environmental Documents that are five or more years old as measured from the time of their adoption when either or both of the following criteria apply:

(i) There are substantial changes to the proposed action that are relevant to environmental concerns.

(ii) There are significant new circumstances or information that are relevant to environmental concerns and have a bearing on the proposed action or its impacts.

(14) Consult with NCPC on the outcome of the re-evaluation of its Environmental Document; provided that if NCPC disagrees with the Lead Agency's conclusion on the need to update its Environmental Document, NCPC may, at its sole discretion, either prepare its own Environmental Document or decline to consider the application.

(b) When NCPC serves as Lead Agency in accordance with § 601.4(b), in addition to the obligations listed in paragraphs (a)(1) through (14) of this section, NCPC shall:

(1) Require Non-Federal Agency applicants other than the District of Columbia and the Maryland National Capital Parks and Planning Commission to enter into a MOA with NCPC. In the MOA, and in subsequent implementation thereof, the Non-Federal Agency shall commit to providing all necessary assistance to facilitate and ensure NCPC's compliance with its NEPA obligation.

(2) The MOA may be prepared as a programmatic MOA that addresses a uniform approach for the treatment of all applications from a particular Non-Federal Agency applicant or address a specific Non-Federal Agency application. The request to enter into a project specific MOA shall be made after a determination is made as to the inability to utilize a CATEX.

(3) A MOA with a Non-Federal Agency shall specify, without limitation, roles and responsibilities; project information necessary to prepare the proper Environmental Document; project timelines and submission schedules; the submission of periodic reports on implementation of Mitigation measures, principal contacts and contact information; and a mechanism for resolving disputes.

(4) Upon adoption of the MOA, NCPC shall publish the MOA in the Federal Register and post it on NCPC's Web site.

§ 601.6 Resolving disputes over Lead Agency status.

(a) In the event of a dispute with a Federal Agency applicant over Co-Lead Agency status, the parties shall use their best efforts to cooperatively resolve disputes at the working levels of their respective agencies and, if necessary, by elevating such disputes within their respective agencies.

(b) If internal resolution at higher agency levels proves unsuccessful, at NCPC's sole discretion, one of the following actions shall be pursued: The parties shall request CEQ's determination on which agency shall serve as Lead, or NCPC shall prepare its own Environmental Document, or NCPC shall decline to take action on the underlying application.

(c) Disputes other than those relating to the designation of Lead Agency status or Cooperating Agency status as described in § 601.7(b), shall be governed by the requirements of subpart G of this part.

§ 601.7 Cooperating Agencies.

(a) When a Federal Agency applicant serves as the Lead Agency, NCPC shall act as a Cooperating Agency. As a Cooperating Agency, NCPC shall, without limitation, undertake the following:

(1) Act as a Cooperating Agency as described in 40 CFR 1501.6.

(2) Assist in the preparation of and sign a MOA with terms agreeable to NCPC if requested by the Lead Agency. At the Lead Agency's discretion, the MOA may be prepared as a programmatic MOA that addresses a uniform approach for the treatment of all applications where NCPC serves as a Cooperating Agency or address a specific application. The request to enter into a project specific MOA shall be made after a determination is made by the Lead Agency on the inability to utilize a CATEX.

(3) Participate in the NEPA process by providing comprehensive, timely reviews of and comments on key NEPA materials including, without limitation, Public Scoping notices; technical reports; documents (including responses to comments received from the public); the draft and final EA or EIS; and the Draft FONSI or ROD.

(4) Supply available data, assessments, and other information that may be helpful in the preparation of the Environmental Document or the Administrative Record in a timely manner.

(5) Make an independent evaluation of the Federal Agency applicant's Environmental Document and take responsibility for the scope and contents of the EIS or EA when it is sufficient as required by 40 CFR 1506.5.

(6) Prepare and, following Commission final approval of an application, sign a FONSI or ROD. Alternatively, if NCPC concurs with the contents of a Federal Agency's FONSI or ROD, NCPC may co-sign the Federal Agency's document following the Commission's final approval of an application if co-signing is consistent with the Federal Agency's NEPA regulations.

(7) Provide documentation requested and needed by the Lead Agency for the Administrative Record.

(b) In the event a Federal Agency applicant fails to allow NCPC to participate in a meaningful manner as a Cooperating Agency, the parties shall agree to use their best efforts to cooperatively resolve the issue at the working levels of their respective agencies, and, if necessary, by elevating the issue within their respective agencies. If internal resolution at higher agency levels is unsuccessful, the parties may agree to seek mediation. Alternatively, NCPC may prepare its own Environmental Document either as a stand-alone document or a supplement to the Federal Agency applicant's Environmental Document or take no action on the underlying application.

Subpart C—NEPA Submission Schedules
§ 601.8 NEPA submission schedule for applications governed by the National Capital Planning Act.

(a) NEPA compliance requirements. Federal Agency applicants, and NCPC for non-Federal Agency applications, shall comply with NEPA for the following types of projects:

(1) Projects requiring Commission approval; and

(2) Master plans requiring Commission action with future projects requiring subsequent Commission approval; provided that:

(i) The applicant intends to submit individual projects depicted in the master plan to the Commission within five years of the date of Commission action on the master plan; and

(ii) The applicant intends to use the master plan EA or EIS to satisfy its NEPA obligation for specific projects referenced in the master plan.

(b) Timing of NEPA compliance. When Federal Agency and Non-Federal Agency applicants submit projects of the type described in paragraph (a) of this section, the Federal Agency applicant or NCPC for a Non-Federal agency application shall submit the requisite Environmental Documentation timed to coincide with the Commission's review stages as set forth in paragraphs (c) through (f) of this section.

(c) Concept review. The NEPA Public Scoping process shall have been initiated by the Federal Agency applicant or NCPC for a Non-Federal Agency application before the applicant submits an application for concept review. Alternatively, if the Federal Agency applicant or NCPC is contemplating use of a CATEX, the initiation of the Public Scoping process may be deferred until the final decision on use of a CATEX is made. Any NEPA information available at the time of concept review shall be submitted by the Federal Agency applicant or NCPC for a Non-Federal Agency application to facilitate effective Commission concept review.

(d) Preliminary review. A Draft Environmental Document shall be issued or published before the applicant submits an application for preliminary review. The NEPA information shall be provided to the Commission to facilitate the Commission's preliminary review and the provision of meaningful Commission comments and direction.

(e) Final review. (1) At the time a Non-Federal Agency submits an application for final approval, the determination (FONSI or ROD) resulting from the Environmental Document shall be submitted by NCPC in a form consistent with the rules of this part. At the time a Federal Agency applicant submits an application to the Commission for final review, the Federal Agency applicant shall submit a determination (FONSI or ROD) in a form consistent with the applicant's NEPA regulations. As a Cooperating Agency, NCPC may co-sign the Federal Agency's FONSI or ROD following final Commission approval if co-signing is consistent with the Federal Agency's NEPA regulations. Alternatively, NCPC may prepare and sign its own independent document in accordance with the requirements of §§ 601.16(a) or 601.25(a) through (c).

(2) If at the time of final review, the Commission denies a Federal Agency applicant's project and requests changes thereto, the Federal Agency applicant shall proceed in a manner consistent with applicable law. The Federal Agency applicant may pursue, among others, the option of revising the project in a manner responsive to the Commission's comments. If the Federal Agency pursues this option, it shall review and consider the need for possible changes to its Environmental Document and its FONSI or ROD. Upon resubmission of a revised application for final review, the applicant shall submit a revised Environmental Document and a revised FONSI or ROD if in its judgement revised documents are necessary. If NCPC and the applicant disagree regarding the need for a revised Environmental Document and FONSI or ROD, the parties shall work together to resolve their differences. The final decision regarding the need for a revised Environmental Document and a revised FONSI or ROD shall be made by the Commission's Executive Committee.

(f) Deviations from the submission schedule for Emergency Circumstances. (1) This paragraph (f) applies when the following three conditions exist: NCPC is the Lead Agency; Emergency Circumstances exist; and an Extraordinary Circumstance as set forth in § 601.11 is present that precludes use of a CATEX.

(2) When the three conditions described above exist, NCPC shall undertake one of the following actions:

(i) When Emergency Circumstances render it necessary to take an action that requires an EA, the Executive Director shall prepare a concise, focused EA consistent with CEQ guidance. At the earliest opportunity, the Commission shall grant approval for the EA.

(ii) Where Emergency Circumstances make it necessary for the Commission to take an action with significant environmental impact without observing the provisions of these regulations, NCPC shall consult with CEQ about alternative arrangements. NCPC will limit such arrangements to actions necessary to control the immediate impacts of the emergency. Other actions remain subject to NEPA review.

§ 601.9 NEPA submission schedule for applications governed by the Commemorative Works Act.

(a) Timing of NEPA compliance. When, pursuant to the Commemorative Works Act, the National Park Service (NPS) or the General Services Administration (GSA) submits an application to the Commission for approval of a site and design for a commemorative work, NPS or GSA shall be required to comply with NEPA and submit the NEPA documentation timed to coincide with the Commission's review stages as set forth in paragraphs (b) through (e) of this section.

(b) Concept site review. (1) The NEPA Scoping Process shall have been initiated by NPS or GSA before the appropriate agency submits an application to the Commission for concept site review. Available NEPA documentation for all concept sites shall be included in the application to facilitate effective Commission concept review.

(2) The Commission shall provide comments to NPS or GSA on the multiple sites to assist the applicant in selecting a preferred site.

(c) Concept design review for preferred sites. (1) The NEPA Public Scoping Process shall have been initiated before NPS or GSA submits an application to the Commission for concept design review. Available NEPA documentation shall be included in the application to facilitate effective Commission concept review.

(2) The Commission shall provide comments to NPS or GSA on the preferred site(s) and the concept designs for each site to facilitate selection of a preferred site and refinement of the memorial design for that site. The Commission may establish guidelines for the applicant to follow in preparing its preliminary and final commemorative work design to avoid, minimize or mitigate environmental impacts including adverse effects on historic properties. If the Commission imposes guidelines to avoid, minimize or mitigate adverse impacts, the applicant shall address the guidelines in its Environmental Document.

(d) Preliminary site and design review. (1) NPS or GSA shall have issued or published its Draft Environmental Document for the site selection process and the memorial design and shall have initiated the requisite public comment period before the applicant submits an application for preliminary site and design approval. The NEPA information shall be provided to the Commission to facilitate the Commission's preliminary review and the provision of meaningful Commission comments and directions.

(2) The Commission shall take an action on the preliminary site and design and provide comments to the applicant on the preliminary design to assist the applicant's preparation of a final design.

(e) Final site and design review. (1) At the time NPS or GSA submits an application to the Commission for final site and design review, the determination (FONSI or ROD) resulting from the Environmental Document shall be submitted by the applicant in a form consistent with its NEPA regulations. As a Cooperating Agency, NCPC may co-sign the applicant's FONSI or ROD following final Commission approval if co-signing is consistent with the applicant's NEPA regulations. Alternatively, NCPC may prepare and sign its own independent document in accordance with the requirements of § 601.16(a) or § 601.25(a) through (c).

(2) If at the time of final review, the Commission denies the NPS or GSA project and requests changes thereto, the applicant shall proceed in a manner consistent with applicable law. The Federal Agency applicant may pursue, among others, the option of revising the project in a manner responsive to the Commission's comments. If the Federal Agency pursues this option, it shall review and consider the need for possible changes to its Environmental Document and its FONSI or ROD. Upon resubmission of a revised application for final review, the applicant shall submit a revised Environmental Document and a revised FONSI or ROD if in its judgement revised documents are necessary. If NCPC and the applicant disagree regarding the need for a revised Environmental Document and FONSI or ROD, the parties shall work together to resolve their differences. The final decision regarding the need for a revised Environmental Document and a revised FONSI or ROD shall be made by the Commission's Executive Committee.

Subpart D—Initiating the NEPA Process
§ 601.10 Characteristics of Commission actions eligible for a Categorical Exclusion.

(a) A Categorical Exclusion is a type of action that does not individually or cumulatively have a significant effect on the human environment and which has been found to have no such effect by NCPC.

(b) Actions that generally qualify for application of a Categorical Exclusion and do not require either an EA or an EIS exhibit the following characteristics:

(1) Minimal or no effect on the human environment;

(2) No significant change to existing environmental conditions;

(3) No significant cumulative environmental impacts; and

(4) Similarity to actions previously assessed in an EA concluding in a FONSI and monitored to confirm the FONSI.

§ 601.11 Extraordinary Circumstances.

(a) Before applying a CATEX listed in § 601.12, the Executive Director shall determine if a project or plan requires additional environmental review or analysis due to the presence of Extraordinary Circumstances. If any of the Extraordinary Circumstances listed in paragraphs (b)(1) through (11) of this section are present, the Executive Director shall not apply a CATEX and ensure that the proper Environmental Document (EA or EIS) shall be prepared and made available to the Commission before the Commission takes action on the matter.

(b) Extraordinary Circumstances that negate the application of a CATEX include:

(1) A reasonable likelihood of significant impact on public health or safety.

(2) A reasonable likelihood of significant environmental impacts on sensitive resources unless the impacts have been or will be avoided, minimized, or mitigated to non-significant levels through another process to include, without limitation, Section 106 of the NHPA. Environmentally sensitive resources include without limitation:

(i) Proposed federally listed, threatened or endangered species or their designated critical habitats.

(ii) Properties listed or eligible for listing on the National Register of Historic Places.

(iii) Areas having special designation or recognition based on Federal law or an Executive Order, to include without limitation, National Historic Landmarks, floodplains, wetlands, and National Parks.

(iv) Cultural, scientific or historic resources.

(3) A reasonable likelihood of effects on the environment that are risky, highly uncertain, or unique.

(4) A reasonable likelihood of violating an Executive Order, or Federal, state or local law or requirements imposed for the protection of the environment.

(5) A reasonable likelihood of causing a significant increase in surface transportation congestion, disruption of mass transit, and interference with pedestrian and bicycle movements.

(6) A reasonable likelihood of significantly degrading air quality or violating air quality control standards under the Clean Air Act (42 U.S.C. 7401-7671q).

(7) A reasonable likelihood of significantly impacting water quality, public water supply systems, or state or local water quality control standards under the Clean Water Act (33 U.S.C. 1251 et seq.) and the Safe Drinking Act (42 U.S.C. 300f).

(8) A reasonable likelihood of a disproportionately high and adverse effect on low income and minority populations.

(9) A reasonable likelihood of degrading existing unsatisfactory environmental conditions.

(10) A reasonable likelihood of establishing a precedent for future action or making a decision in principle about future actions with potentially significant environmental effects.

(11) Any other circumstance that makes the action sufficiently unique in its potential impacts on the human environment that further environmental analysis and review is appropriate.

(c) The Executive Director shall include in his/her EDR, or the documentation of a delegated action, his/her decision to apply a Categorical Exclusion including consideration of possible Extraordinary Circumstances or not apply a Categorical Exclusion because of Extraordinary Circumstances.

§ 601.12 National Capital Planning Commission Categorical Exclusions.

(a) Commission actions that may be categorically excluded and normally do not require either an EA or an EIS are listed in paragraphs (a)(1) through (13) of this section. An action not specifically included in the list is not eligible for a Categorical Exclusion even if it appears to meet the general criteria listed in § 601.10(b).

(1) Approval of the installation or restoration of onsite primary or secondary electrical distribution systems including minor solar panel arrays.

(2) Approval of the installation or restoration of minor site elements, such as but not limited to identification signs, sidewalks, patios, fences, curbs, retaining walls, landscaping, and trail or stream improvements. Additional features include water distribution lines and sewer lines which involve work that is essentially replacement in kind.

(3) Approval of the installation or restoration of minor building elements, such as, but not limited to windows, doors, roofs, building signs, and rooftop equipment and green roofs.

(4) Adoption of a Federal Element of the Comprehensive Plan or amendment thereto or broad based policy or feasibility plans prepared and adopted by the Commission in response to the Comprehensive Plan.

(5) Approval of the installation of communication antennae on Federal buildings and co-location of communication antennae on Federal property consistent with GSA Bulletin FMR D-242, Placement of Commercial Antennas on Federal Property.

(6) Approval of Federal and District government agency proposals for new construction, building expansion, or improvements to existing facilities, when all of the following apply:

(i) The new structure and proposed use are in compliance with local planning and zoning and any applicable District of Columbia, state, or Federal requirements.

(ii) The site and the scale of construction are consistent with those of existing adjacent or nearby buildings.

(iii) The proposed use will not substantially increase the number of motor vehicles in the vicinity of the facility.

(iv) There is little to no evidence of unresolved resource conflicts or community controversy related to environmental concerns or other environmental issues.

(7) Approval of transfers of jurisdiction pursuant to 40 U.S.C. 8124 that are not anticipated to result in changes in land-use and that have no potential for environmental impact.

(8) Approval of a minor modification to a General Development Plan applicable to lands acquired pursuant to the Capper-Cramton Act, 46 Stat. 482 (1930), as amended, when non-significant environmental impacts are anticipated.

(9) Reorganization of NCPC.

(10) Personnel actions, including, but not limited to, investigations; performance reviews; award of personal service contracts, promotions and awards; reductions in force, reassignments and relocations; and employee supervision and training.

(11) Legal activities including, but not limited to, legal advice and opinions; litigation or other methods of dispute resolution; and procurement of outside legal services.

(12) Procurement of goods and services, transactions, and other types of activities related to the routine and continuing administration, management, maintenance and operations of the Commission or its facilities.

(13) Adoption and issuance of rules, directives, official policies, guidelines, and publications or recommendations of an educational, financial, informational, legal, technical or procedural nature.

(b) The Executive Director shall include in his/her EDR, or the documentation of a delegated action, his/her decision to apply a Categorical Exclusion and the rationale for this decision.

Subpart E—Environmental Assessments
§ 601.13 Characteristics of Commission actions eligible for an Environmental Assessment.

(a) An EA is a concise document with sufficient information and analysis to enable the Executive Director to determine whether to issue a FONSI or prepare an EIS.

(b) Commission actions that generally require an EA exhibit the following characteristics:

(1) Minor but likely insignificant degradation of environmental quality;

(2) Minor but likely insignificant cumulative impact on environmental quality; and

(3) Minor but likely insignificant impact on protected resources.

§ 601.14 Commission actions generally eligible for an Environmental Assessment.

Commission actions that typically require preparation of an EA include without limitation:

(a) Approval of final plans for Federal public buildings in the District of Columbia, and the provisions for open space in and around the same, pursuant to 40 U.S.C. 8722(d) and D.C. Code 2-1004(c).

(b) Approval of final plans for District of Columbia public buildings and the open space around them within the Central Area pursuant to 40 U.S.C. 8722(e) and D.C. Code 2-1004(d).

(c) Recommendations to a Federal or District of Columbia agency on any master plan or master plan modification submitted to the Commission that include proposed future projects that require Commission approval pursuant to 40 U.S.C. 8722(d)-(e) and D.C. Code 2-1004(c)-(d) within a five-year timeframe.

(d) Approval of a final site and design for a commemorative work authorized under the Commemorative Works Act pursuant to 40 U.S.C. 8905.

(e) Approval of transfers of jurisdiction over properties within the District of Columbia owned by the United States or the District among or between Federal and District authorities, pursuant to 40 U.S.C. 8124, unless such transfers met the criteria of § 601.12(a)(7).

§ 601.15 Process for preparing an Environmental Assessment.

An EA prepared by NCPC as the Lead Agency for a project requiring Commission approval shall comply with the following requirements:

(a) The EA shall include, without limitation, a brief discussion of the proposed action; the purpose and need for the proposed action; the environmental impacts of the proposed action; the environmental impacts of the alternatives considered; Mitigation measures, if necessary; and a list of agencies and persons consulted in preparation of the assessment.

(b) The NCPC shall involve to the extent practicable applicants; Federal and District of Columbia agencies; the public; and stakeholders in the preparation of an EA.

(c) The NCPC, at the sole discretion of the Executive Director, may undertake Public Scoping for an action requiring an EA. The Public Scoping shall generally commence after issuance of a public notice in a media source with widespread circulation and the NCPC Web site of NCPC's intent to prepare an EA. The notice shall include the date, time and location of the Public Scoping meeting.

(d) The NCPC may solicit public review and comment of a Draft EA. The public comment period generally shall be thirty (30) calendar days. The public comment period shall begin when the Executive Director announces the availability of the Draft EA on the NCPC Web site (www.ncpc.gov). The NCPC, at its sole discretion, may decline to circulate a draft EA for non-controversial projects.

§ 601.16 Finding of No Significant Impact.

(a) If NCPC is the Lead Agency and the final EA supports a FONSI, NCPC shall prepare and execute a FONSI. The FONSI shall be prepared following closure of the discretionary public comment period on a Draft EA, or if no public comment period is deemed necessary, at the conclusion of the preparation of an EA. The FONSI shall briefly state the reasons why the proposed action will not have a significant effect on the environment and include the EA or a summary thereof, any Mitigation commitments, and a schedule for implementing the Mitigation commitments. The FONSI shall be signed following the Commission final approval of the applicant's project.

(b) If NCPC is not the Lead Agency, it shall evaluate the adequacy of the Lead Agency's FONSI. If NCPC determines the FONSI to be adequate, NCPC shall proceed as follows. If consistent with the Federal Agency's NEPA regulations, NCPC may co-sign the Lead Agency's FONSI following the Commission final approval of the application. Alternatively, NCPC may prepare and execute its own FONSI consistent with the requirements of paragraph (a) of this section and sign the FONSI following the Commission's final approval of the project.

(c) In certain limited circumstances described in 40 CFR 1501.4(e)(2)(i) and (ii), a FONSI prepared by NCPC shall be available for public review for thirty (30) days before NCPC makes it final determination. NCPC shall also publish all FONSIs on its Web site seven (7) calendar days before the Commission takes action on the underlying application.

(d) If the Commission determines a Lead Agency's EA does not support a FONSI, either the Lead Agency shall prepare an EIS, or the Commission shall not approve or consider further the underlying application.

§ 601.17 Supplemental Environmental Assessments.

(a) The NCPC shall prepare a supplemental EA if five or more years have elapsed since adoption of the EA and:

(1) There are substantial changes to the proposed action that are relevant to environmental concerns; or

(2) There are significant new circumstances or information that are relevant to environmental concerns and have a bearing on the proposed action or its impacts.

(b) The NCPC may supplement a Draft or Final EA at any time to further the purposes of NEPA.

(c) The NCPC shall prepare, circulate, and file a supplement to a Draft or Final EA, and adopt a FONSI in accordance with the requirements of §§ 601.15 and 601.16. If NCPC is not the Lead Agency, it shall proceed as outlined in § 601.16(b) and (c).

Subpart F—Environmental Impact Statements
§ 601.18 Requirement for and timing of an Environmental Impact Statement.

Prior to the Commission's approval of a major Federal action significantly affecting the quality of the human environment, the Executive Director shall prepare an EIS for a Non-Federal Agency application.

§ 601.19 Context, intensity, and significance of impacts.

(a) As required by 40 CFR 1508.27(a) and (b), NCPC's determination of whether an EIS is required and whether impacts are significant shall be made with consideration to the context and intensity of the impacts associated with a proposed action.

(b) The significance of an action is determined in the context of its effects on society as a whole, the National Capital Region and its Environs, the particular interests affected, and the specific locality or area within which the proposed action is located. The context will vary from project to project and will be based on the type, attributes, and characteristics of a particular proposal.

(c) The significance of an action is also determined based on the severity of impacts imposed by the proposal. Severity shall be determined based on an evaluation of a proposal in the manner outlined in 40 CFR 1508.27(b)(1) through (10). The evaluation shall also be informed by the relevant policies of “The Comprehensive Plan for the National Capital: Federal Elements” and other applicable Commission plans and programs. Proposed actions that conflict with or delay achievement of the goals and objectives of Commission plans and programs are generally more likely to be found to have significant impacts than proposals that are consistent with Commission plans and programs.

(d) Proposed actions shall also be deemed significant and require an EIS if they exhibit at least one of the following characteristics:

(1) The proposed action results in a substantial change to the Monumental Core.

(2) The proposed action causes substantial alteration to the important historical, cultural, and natural features of the National Capital and its Environs.

(3) The proposed action is likely to be controversial because of its impacts on the human environment.

§ 601.20 Streamlining Environmental Impact Statements.

The NCPC as Lead Agency shall use all available techniques to minimize the length of an EIS. Such techniques include, without limitation, drafting an EIS in clear, concise language; preparing an analytic vs. encyclopedic EIS; reducing emphasis on background information; using the scoping process to emphasize significant issues and de-emphasize non-significant issues; incorporating relevant information by reference; using a programmatic EIS and tiering to eliminate duplication in subsequent EISs; and following the format guidelines of § 601.22.

§ 601.21 Programmatic Environmental Impact Statements and tiering.

(a) The NCPC shall prepare a programmatic Environmental Document (Programmatic EA or PEA or Programmatic EIS or PEIS) to assess the impacts of proposed projects and plans when there is uncertainty regarding the timing, location and environmental impacts of subsequent implementing actions. At the time NCPC undertakes a site or project specific action within the parameters of the PEA or PEIS, NCPC shall tier its Environmental Document by summarizing information in the PEIS or PEA, as applicable, and concentrate on the issues applicable to the specific action.

(b) A PEIS or PEA prepared by NCPC shall be governed by the CEQ regulations and the rules of this part.

§ 601.22 Contents of an Environmental Impact Statement.

(a) When NCPC serves as Lead Agency for an EIS, the following information shall be included in the EIS:

(1) A cover sheet. The cover sheet shall be one-page and include a list of responsible and Cooperating Agencies; the title of the proposed action that is the subject of the EIS; the name, address, and telephone number of the NCPC point of contact; the designation as to whether the statement is draft, final, or draft or final supplement; a one paragraph abstract of the EIS; and the date by which comments must be received.

(2) A summary. The summary shall accurately summarize the information presented in the EIS. The summary shall focus on the main conclusions, areas of controversy, and the issues to be resolved.

(3) A table of contents. The table of contents shall allow a reader to quickly locate subject matter in the EIS—either by topic area and/or alternatives analyzed.

(4) The purpose and need. A statement of the purpose of and need for the action briefly stating the underlying purpose and need to which the agency is responding.

(5) The identification of alternatives including the proposed action. This section shall provide a brief description and supporting documentation for all alternatives including the proposed action; the no action alternative; all reasonable alternatives including those not within the jurisdiction of the agency; alternatives considered but eliminated and the reason for their elimination; the agency's preferred alternative, if one exists; the environmentally preferred alternative; and Mitigation measures not already included in the proposed action.

(6) The identification of the affected environment. This section shall provide a succinct description of the environment to be affected by the proposed action and the alternatives considered. This section shall include, if applicable, other activities in the area affected by or related to the proposed action.

(7) The identification of environmental consequences. This section shall focus on the environmental impacts of the alternatives including the proposed action, any adverse environmental effects which cannot be avoided should the proposal be implemented, the relationship between short-term uses of the environment and the maintenance and enhancement of long-term productivity, and any irreversible commitments of resources which would be involved if the proposal is implemented. The impacts shall be discussed in terms of direct, indirect and cumulative effects and their significance, as well as any appropriate means to mitigate adverse impacts. The discussion shall also include issues and impact topics considered but dismissed to reveal non-impacted resources. Resource areas and issues requiring consideration shall include those identified in the scoping process, and, without limitation, the following:

(i) Possible conflicts between the proposed action and the land use plans, policies, or controls (local, state, or Indian tribe) for the area concerned.

(ii) Natural and biological resources including topography, hydrology, soils, flora, fauna, floodplains, wetlands, and endangered species.

(iii) Air quality.

(iv) Noise.

(v) Water resources including wastewater treatment and storm water management.

(vi) Utilities including energy requirements and conservation.

(vii) Solid waste and hazardous waste generation/removal.

(viii) Community facilities.

(ix) Housing.

(x) Transportation network.

(xi) Socio-cultural and economic environments.

(xii) Environmental Justice and the requirements of Executive Order 12898 (Federal Actions to Address Environmental Justice in Minority Populations).

(xiii) Urban quality and design of the built environment including visual resources and aesthetics.

(xiv) Historic and cultural resources to include documentation of the results of the Section 106 Consultation process.

(xv) Public health and safety.

(8) A list of preparers. This list shall include all pertinent organizations, agencies, individuals, and government representatives primarily responsible for the preparation of the EIS and their qualifications.

(9) An index. The index shall be structured to reasonably assist the reader of the Draft or Final EIS in identifying and locating major topic areas or elements of the EIS information. The level of detail of the index shall provide sufficient focus on areas of interest to any reader not just the most important topics.

(10) An appendix. The appendix shall consist of material prepared in connection with an EIS (as distinct from material which is incorporated by reference) and material which substantiates any analysis fundamental to the EIS. The material in the appendix shall be analytical and relevant to the decision to be made. The appendix shall be posted on NCPC's Web site.

(b) [Reserved]

§ 601.23 The Environmental Impact Statement process.

(a) The NCPC shall involve the applicant, Federal and District of Columbia agencies, members of the public and stakeholders in the preparation of an EIS. Public participation shall be required as part of the Public Scoping process and review of the Draft EIS. The NCPC shall also consult with agencies having jurisdiction by law or expertise. Agencies with “jurisdiction by law” are those with ultimate jurisdiction over a project and whose assistance may be required on certain issues and those with other kinds of regulatory or advisory authority with respect to the action or its effects on particular environmental resources.

(b) To determine the scope of an EIS through a Public Scoping process, NCPC shall proceed as follows:

(1) Disseminate a NOI in accordance with 40 CFR 1501.7 and 1506.6.

(2) Publish a NOI in the Federal Register and on NCPC's Web site which shall begin the Public Scoping process.

(3) Include the date, time, and location of a Public Scoping meeting in the NOI. The public meeting shall be announced at least thirty (30) calendar days in advance of its scheduled date.

(4) Hold Public Scoping meeting(s) in facilities that are accessible to the disabled; include translators if requested in advance; include signers or interpreters for the hearing impaired if requested in advance; and allow special arrangements for consultation with affected Indian tribes or other Native American groups who have environmental concerns that cannot be shared in a public forum.

(5) Consider all comments received during the announced comment period regarding the analysis of alternatives, the affected environment, and identification of potential impacts.

(6) Apply the provisions of this section to a Supplemental EIS if the Executive Director of NCPC, in his/her sole discretion, determines a Public Scoping process is required for a Supplemental EIS.

(c) A Draft EIS shall be available to the public for their review and comment, for a period of generally forty-five (45) calendar days. The public comment period shall begin when NCPC shares a copy of the Draft EIS with EPA in anticipation of EPA's publication of an NOA. The NCPC shall hold at least one public meeting during the public comment period on a Draft EIS. The public meeting shall be announced at least thirty (30) calendar days in advance of its scheduled occurrence. The announcement shall identify the subject of the Draft EIS and include the public meeting date, time, and location.

§ 601.24 Final Environmental Impact Statement.

(a) The NCPC shall prepare a Final EIS following the public comment period and the public meeting(s) on the Draft EIS. The Final EIS shall respond to oral and written comments received during the Draft EIS public comment period.

(b) The Commission shall take final action on an application following a thirty (30) day Commission-sponsored review period of the Final EIS. The thirty (30) day period shall start when the EPA publishes a NOA for the Final EIS in the Federal Register.

§ 601.25 Record of Decision.

(a) If NCPC is the Lead Agency and decides to recommend approval of a proposed action covered by an EIS, it shall prepare and sign a ROD stating the Commission's decision and any Mitigation measures required by the Commission.

(1) The ROD shall include among others:

(i) A statement of the decision.

(ii) The identification of alternatives considered in reaching a decision specifying the alternatives that were considered to be environmentally preferable. The ROD shall discuss preferences among alternatives based on relevant factors including economic and technical planning considerations and the Commission's statutory mission. The ROD shall identify those factors balanced to reach a decision and the influence of various factors on the decision.

(iii) A statement as to whether all practicable means to avoid or minimize environmental harm from the alternative selected has been adopted, and if not, why they are not.

(iv) A monitoring and enforcement program that summarizes Mitigation measures.

(v) Date of issuance.

(vi) Signature of the Chairman.

(2) The contents of the draft ROD proposed for Commission adoption shall be summarized in the EDR and a full version of the draft document shall be included as an Appendix to the EDR. The Draft ROD, independently of the EDR, shall be made available to the public for review fourteen (14) calendar days prior to the Commission's consideration of the proposed action for which the EIS was prepared.

(3) The Commission shall arrive at its decision about the proposed action for which NCPC serves as the Lead Agency and its environmental effects in a public meeting of record as identified by the Commission's monthly agenda.

(b) If NCPC is not the Lead Agency, following the Commission final approval of a project to which a ROD pertains, and consistent with the Federal Agency's NEPA regulations, NCPC may take one of the following actions. It may either co-sign the Lead Agency's ROD following Commission approval of the project if NCPC agrees with its contents and conclusions or it shall prepare, sign, and sign and adopt its own ROD in accordance with the requirements of paragraphs (a)(1) through (3) of this section.

(c) If the Commission determines a Lead Agency's EIS fails to support a ROD, the Lead Agency shall revise its EIS, or, alternatively, the Commission shall not approve or give any further consideration to underlying application.

§ 601.26 Supplemental Environmental Impact Statement.

(a) The NCPC shall prepare a supplemental EIS if five or more years has elapsed since adoption of the EIS and:

(1) There are substantial changes to the proposed action that are relevant to environmental concerns; or

(2) There are significant new circumstances or information that are relevant to environmental concerns and have a bearing on the proposed action or its impacts.

(b) The NCPC may supplement a Draft or Final EIS at any time, to further the purposes of NEPA.

(c) The NCPC shall prepare, circulate, and file a supplement to a Draft or Final EIS in in accordance with the requirements of §§ 601.22 through 601.24 except that Public Scoping is optional for a supplemental EIS.

(d) The NCPC shall prepare a ROD for a Supplemental EIS. The ROD's contents, the procedure for public review, and the manner in which it shall be adopted shall be as set forth in § 601.25.

§ 601.27 Legislative Environmental Impact Statement.

(a) Consistent with 40 CFR1506.8, the Executive Director shall prepare an EIS for draft legislation initiated by NCPC for submission to Congress. The EIS for the proposed legislation shall be included as part of the formal transmittal of NCPC's legislative proposal to Congress.

(b) The requirements of this section shall not apply to legislation Congress directs NCPC to prepare.

Subpart G—Dispute Resolution
§ 601.28 Dispute resolution.

Any disputes arising under this part, shall be resolved, unless otherwise otherwise provided by law or regulation by the parties through interagency, good faith negotiations starting at the working levels of each agency, and if necessary, by elevating such disputes within the respective Agencies. If resolution at higher levels is unsuccessful, the parties may participate in mediation.

§ 601.29 [Reserved]
Dated: September 21, 2017. Anne R. Schuyler, General Counsel.
[FR Doc. 2017-20614 Filed 9-28-17; 8:45 am] BILLING CODE P
COMMODITY FUTURES TRADING COMMISSION 17 CFR Part 38 RIN 3038-AE64 Commission Delegated Authority Provisions for Designated Contract Markets' System Safeguards Requirements AGENCY:

Commodity Futures Trading Commission.

ACTION:

Final rule.

SUMMARY:

The Commodity Futures Trading Commission (“CFTC” or “Commission”) is adopting final rules to establish a new delegation of authority to Commission staff under the Commission's system safeguards rules to notify each designated contract market (“DCM”) of its percentage of the total annual trading volume among all DCMs regulated by the Commission for purposes of whether it is a covered DCM under the system safeguards rules.

DATES:

This rule is effective September 29, 2017.

FOR FURTHER INFORMATION CONTACT:

Rachel Berdansky, Deputy Director, 202-418-5429 or [email protected]; David Steinberg, Associate Director, 202-418-5102 or [email protected]; David Taylor, Associate Director, 202-418-5488 or [email protected], Division of Market Oversight, Commodity Futures Trading Commission, Three Lafayette Centre, 1151 21st Street NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION:

I. Delegation of Authority—Commission Regulation § 38.1051

Section 38.1051 of the Commission's regulations, 17 CFR 38.1051, governs the system safeguards requirements for DCMs. Pursuant to § 38.1051(n), DCMs are required to provide the Commission with their annual total trading volume by January 31 each calendar year. Section 38.1051(n)(2) also requires the Commission to provide each DCM with their percentage of the combined annual total trading volume among all DCMs regulated by the Commission by February 28 each calendar year. This annual Commission notification informs each DCM whether it is a “covered DCM” as that term is defined in § 38.1051(h)(1). A covered DCM is a DCM whose annual trading volume in a given year is five percent or more of the combined annual trading volume of all DCMs regulated by the Commission. Covered DCMs are required to comply with enhanced requirements with respect to the frequency of cybersecurity testing and the use of independent contractors. The Commission is amending § 38.1051 by adding paragraph (n)(3) to delegate authority to the Director of the Division of Market Oversight and designated staff to notify DCMs of their annual trading volume percentage.

II. Effective Date

As the revisions to the Commission's regulations in this rulemaking will not cause any party to undertake efforts to comply with the regulations as revised, the Commission has determined to make this rulemaking effective upon publication in the Federal Register.1

1 5 U.S.C. 553(d).

III. Paperwork Reduction Act

The Commission may not conduct or sponsor, and a respondent is not required to respond to, a collection of information contained in a rulemaking unless the information collection displays a currently valid control number issued by the Office of Management and Budget (“OMB”) pursuant to the Paperwork Reduction Act.2 This rulemaking contains no collection of information for which the Commission is obligated to obtain a control number from OMB.

2 44 U.S.C. 3501 et seq.

List of Subjects in 17 CFR Part 38

Commodity futures, Reporting and recordkeeping requirements.

For the reasons stated in the preamble, the Commodity Futures Trading Commission amends 17 CFR part 38 as follows:

PART 38—DESIGNATED CONTRACT MARKETS 1. The authority citation for part 38 continues to read as follows: Authority:

7 U.S.C. 1a, 2, 6, 6a, 6c, 6d, 6e, 6f, 6g, 6i, 6j, 6k, 6l, 6m, 6n, 7, 7a-2, 7b, 7b-1, 7b-3, 8, 9, 15, and 21, as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. 111-203, 124 Stat. 1376.

2. In § 38.1051, add paragraph (n)(3) to read as follows:
§ 38.1051 General requirements.

(n) * * *

(3) Delegation of authority. The Commission hereby delegates, until it orders otherwise, to the Director of the Division of Market Oversight or such other employee or employees as the Director may designate from time to time, the authority to provide each designated contract market with its percentage of the total annual trading volume of all designated contract markets regulated by the Commission, as set forth in paragraph (n)(2) of this section. The Director of the Division of Market Oversight may submit to the Commission for its consideration any matter that has been delegated pursuant to this section. Nothing in this section prohibits the Commission, at its election, from exercising the authority delegated in this section.

Issued in Washington, DC, on September 26, 2017, by the Commission. Christopher J. Kirkpatrick, Secretary of the Commission. Note:

The following appendix will not appear in the Code of Federal Regulations.

Appendix to Commission Delegated Authority Provisions for Designated Contract Markets' System Safeguards Requirements—Commission Voting Summary

On this matter, Chairman Giancarlo and Commissioners Bowen, Quintenz, and Behnam voted in the affirmative. No Commissioner voted in the negative.

[FR Doc. 2017-20924 Filed 9-28-17; 8:45 am] BILLING CODE 6351-01-P
SECURITIES AND EXCHANGE COMMISSION 17 CFR Part 232 [Release Nos. 33-10413; 34-81592; 39-2518; IC-32818] Adoption of Updated EDGAR Filer Manual AGENCY:

Securities and Exchange Commission.

ACTION:

Final rule.

SUMMARY:

The Securities and Exchange Commission (the “Commission”) is adopting revisions to the Electronic Data Gathering, Analysis, and Retrieval System (“EDGAR”) Filer Manual and related rules to reflect updates to the EDGAR system. The EDGAR system is scheduled to be upgraded on September 11, 2017.

DATES:

Effective September 29, 2017, except that amendatory instruction 4 to § 232.301 is effective June 1, 2018. The incorporation by reference of the EDGAR Filer Manual is approved by the Director of the Federal Register as of September 29, 2017.

FOR FURTHER INFORMATION CONTACT:

In the Division of Investment Management, for questions concerning Forms N-PORT and N-CEN, contact Heather Fernandez at (202) 551-6708; in the Division of Corporation Finance, for questions concerning Forms S-1, S-3, S-4, S-8, S-11, F-1, F-3, F-4, 8-K, 10, 10-K, 10-Q, 20-F, and 40-F, contact Heather Mackintosh at (202) 551-8111; in the Office of Financial Management, for questions about negative account balances, contact Andrew Grimaldi at (202) 551-7304.

SUPPLEMENTARY INFORMATION:

We are adopting an updated EDGAR Filer Manual, Volume I and Volume II. The Filer Manual describes the technical formatting requirements for the preparation and submission of electronic filings through the EDGAR system.1 It also describes the requirements for filing using EDGARLink Online and the Online Forms/XML Web site.

1 We originally adopted the Filer Manual on April 1, 1993, with an effective date of April 26, 1993. Release No. 33-6986 (April 1, 1993) [58 FR 18638]. We implemented the most recent update to the Filer Manual on July 17, 2017. See Release No. 33-10385 (July 6, 2017) [82 FR 35062].

The revisions to the Filer Manual reflect changes within Volume I, entitled EDGAR Filer Manual, Volume I: “General Information,” Version 29 (September 2017), and Volume II, entitled EDGAR Filer Manual, Volume II: “EDGAR Filing,” Version 43 (September 2017). The updated manual will be incorporated by reference into the Code of Federal Regulations.

The Filer Manual contains all the technical specifications for filers to submit filings using the EDGAR system. Filers must comply with the applicable provisions of the Filer Manual in order to assure the timely acceptance and processing of filings made in electronic format.2 Filers may consult the Filer Manual in conjunction with our rules governing mandated electronic filing when preparing documents for electronic submission.3

2See Rule 301 of Regulation S-T (17 CFR 232.301).

3See Release No. 33-10385 in which we implemented revisions to reflect EDGAR Release 17.2. For additional history of EDGAR Filer Manual revisions, please see the citations therein.

The EDGAR system will be upgraded to Release 17.3 on September 11, 2017, and will introduce the following changes:

In Release No. 33-10231 (October 13, 2016) [81 FR 81870], the Commission adopted changes to the reporting requirements for investment companies. Among the changes was the adoption of Form N-PORT, which requires investment companies to report information about portfolio holdings monthly in a structured format. EDGAR Release 17.3 will provide a pilot program whereby filers may submit TEST versions of the following form types:

• Public Monthly Portfolio Investments Report on Form N-PORT (NPORT-P).

• Amended Public Monthly Portfolio Investments Report on Form N-PORT (NPORT-P/A).

• Non-Public Monthly Portfolio Investments Report on Form N-PORT (NPORT-NP).

• Amended Non-Public Monthly Portfolio Investments Report on Form N-PORT (NPORT-NP/A).

• Portfolio Holdings Exhibit to Form N-PORT (NPORT-EX).

• Amended Portfolio Holdings Exhibit to Form N-PORT (NPORT-EX/A).

In Release No. 33-10231 the Commission also adopted new Form N-CEN, which will require investment companies, other than face amount certificate companies, to provide an annual report of census-type information in a structured format. EDGAR Release 17.3 will permit investment companies to submit TEST versions of the following form types:

• Annual Report for Registered Investment Companies (N-CEN).

• Amendment to Annual Report for Registered Investment Companies (N-CEN/A).

• EDGAR Release 17.3 will also introduce two additional submission form types:

• Notice under Exchange Act Rule 12b-25 of the inability to timely file Form N-CEN (NT-NCEN).

• Amendment to Notice under Exchange Act Rule 12b-25 of the inability to timely file Form N-CEN (NT-NCEN/A).

EDGAR will only accept TEST submissions of form types NPORT-P, NPORT-P/A, NPORT-NP, NPORT-NP/A, NPORT-EX, NPORT-EX/A, N-CEN, and N-CEN/A from September 11, 2017, through December 31, 2017, and then again from March 1, 2018 until May 31, 2018. Beginning June 1, 2018, EDGAR will accept both TEST and LIVE submissions of form types NPORT-P, NPORT-P/A, NPORT-NP, NPORT-NP/A, NPORT-EX, NPORT-EX/A, N-CEN, and N-CEN/A. The EDGAR Filer Manual will be revised to provide instructions for making TEST N-PORT and N-CEN filings. Corresponding changes will be made to Chapter 8 (Preparing and Transmitting Online Submissions) of the EDGAR Filer Manual, Volume II: “EDGAR Filing.”

In Release No. 33-10332 (March 31, 2017) [82 FR 17545] the Commission made rule and form changes to effectuate inflation adjustments and other technical amendments required under Titles I & III of the JOBS Act. Among the technical changes was the revision to Commission forms so that registrants can designate whether they are an Emerging Growth Company and whether they have elected not to use the extended transition period for complying with any new or revised financial accounting standards.

Updates are being made in EDGAR Release 17.3 so that the same disclosures can be provided for any co-registrants. The following EDGARLink Online submission form types will be revised to reflect the two fields for each co-registrant: S-1, S-1/A, S-3, S-3/A, S-4, S-4/A, S-8, S-11, S-11/A, F-1, F-1/A, F-3, F-3/A, F-4, F-4/A, 10-12B, 10-12B/A, 10-12G, 10-12G/A, 8-K, 8-K/A, 8-K12B, 8-K12B/A, 8-K12G3, 8-K12G3/A, 8-K15D5, 8-K15D5/A, 10-Q, 10-Q/A, 10-QT, 10-QT/A, 10-K, 10-K/A, 10-KT, 10-KT/A, 20-F, 20-F/A, 20FR12B, 20FR12B/A, 20FR12G, 20FR12G/A, 40-F, 40-F/A, 40FR12B, 40FR12B/A, 40FR12G, and 40FR12G/A. Corresponding changes will be made to Chapter 7 (Preparing and Transmitting EDGARLink Online Submissions) of the EDGAR Filer Manual, Volume II: “EDGAR Filing.”

The “Balance Information” and “Account Activity Statement” screen of the EDGAR Filing Web site will be updated with the following text: “A negative balance amount indicates that money is owed to the SEC and the account is past due. For more information on making filing fee payments, see https://www.sec.gov/paymentoptions.” Corresponding changes will be made to Chapter 5 (Maintenance of Company Data) of the EDGAR Filer Manual Volume I: “General Information.”

Along with the adoption of the Filer Manual, we are amending Rule 301 of Regulation S-T to provide for the incorporation by reference into the Code of Federal Regulations of today's revisions. This incorporation by reference was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51.

The updated EDGAR Filer Manual will be available for Web site viewing and printing; the address for the Filer Manual is https://www.sec.gov/info/edgar/edmanuals.htm. You may also obtain paper copies of the EDGAR Filer Manual from the following address: Public Reference Room, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10 a.m. and 3 p.m.

Since the Filer Manual and the corresponding rule changes relate solely to agency procedures or practice, publication for notice and comment is not required under the Administrative Procedure Act (“APA”).4 It follows that the requirements of the Regulatory Flexibility Act 5 do not apply.

4 5 U.S.C. 553(b)(A).

5 5 U.S.C. 601-612.

The effective date for the updated Filer Manual and the rule amendments is September 29, 2017. In accordance with the APA,6 we find that there is good cause to establish an effective date less than 30 days after publication of these rules. The EDGAR system upgrade to Release 17.3 is scheduled to become available on September 11, 2017. The Commission believes that establishing an effective date less than 30 days after publication of these rules is necessary to coordinate the effectiveness of the updated Filer Manual with these system upgrades.

6 5 U.S.C. 553(d)(3).

Statutory Basis

We are adopting the amendments to Regulation S-T under Sections 6, 7, 8, 10, and 19(a) of the Securities Act of 1933,7 Sections 3, 12, 13, 14, 15, 23, and 35A of the Securities Exchange Act of 1934,8 Section 319 of the Trust Indenture Act of 1939,9 and Sections 8, 30, 31, and 38 of the Investment Company Act of 1940.10

7 15 U.S.C. 77f, 77g, 77h, 77j, and 77s(a).

8 15 U.S.C. 78c, 78l, 78m, 78n, 78o, 78w, and 78ll.

9 15 U.S.C. 77sss.

10 15 U.S.C. 80a-8, 80a-29, 80a-30, and 80a-37.

List of Subjects in 17 CFR Part 232

Incorporation by reference, Reporting and recordkeeping requirements, Securities.

Text of the Amendment

In accordance with the foregoing, title 17, chapter II of the Code of Federal Regulations is amended as follows:

PART 232—REGULATION S-T—GENERAL RULES AND REGULATIONS FOR ELECTRONIC FILINGS 1. The authority citation for part 232 continues to read in part as follows: Authority:

15 U.S.C. 77c, 77f, 77g, 77h, 77j, 77s(a), 77z-3, 77sss(a), 78c(b), 78l, 78m, 78n, 78o(d), 78w(a), 78ll, 80a-6(c), 80a-8, 80a-29, 80a-30, 80a-37, and 7201 et seq.; and 18 U.S.C. 1350, unless otherwise noted.

2. The amendment to § 232.301 published November 18, 2016 (81 FR 82019) is withdrawn. 3. Effective September 29, 2017, § 232.301 is revised to read as follows:
§ 232.301 EDGAR Filer Manual.

Filers must prepare electronic filings in the manner prescribed by the EDGAR Filer Manual, promulgated by the Commission, which sets fort the technical formatting requirements for electronic submissions. The requirements for becoming an EDGAR Filer and updating company data are set forth in the updated EDGAR Filer Manual, Volume I: “General Information,” Version 29 (September 2017). The requirements for filing on EDGAR are set forth in the updated EDGAR Filer Manual, Volume II: “EDGAR Filing,” Version 43 (September 2017). Additional provisions applicable to Form N-SAR filers are set forth in the EDGAR Filer Manual, Volume III: “N-SAR Supplement,” Version 6 (January 2017). All of these provisions have been incorporated by reference into the Code of Federal Regulations, which action was approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You must comply with these requirements in order for documents to be timely received and accepted. The EDGAR Filer Manual is available for Web site viewing and printing; the address for the Filer Manual is https://www.sec.gov/info/edgar/edmanuals.htm. You can obtain paper copies of the EDGAR Filer Manual from the following address: Public Reference Room, U.S. Securities and Exchange Commission, 100 F Street NE., Washington, DC 20549, on official business days between the hours of 10:00 a.m. and 3:00 p.m. You can also inspect the document at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: https://www.archives.gov/federal-register/cfr/ibr-locations.html.

§ 232.301 [Amended]
4. Effective June 1, 2018, amend § 232.301 by removing the fourth sentence.

By the Commission.

Dated: September 13, 2017. Brent J. Fields, Secretary.
[FR Doc. 2017-20654 Filed 9-28-17; 8:45 am] BILLING CODE 8011-01-P
DEPARTMENT OF JUSTICE Drug Enforcement Administration 21 CFR Part 1308 [Docket No. DEA-468] Schedules of Controlled Substances: Removal of Naldemedine From Control AGENCY:

Drug Enforcement Administration, Department of Justice.

ACTION:

Final rule.

SUMMARY:

With the issuance of this final rule, the Drug Enforcement Administration removes the substance naldemedine (4R,4aS,7aR,12bS)-3-(cyclopropylmethyl)-4a,7,9-trihydroxy-N-(2-(3-phenyl-1,2,4-oxadiazol-5-yl)propan-2-yl)-2,3,4,4a,5,7a-hexahydro-1H-4,12-methanobenzofuro[3,2-e]isoquinoline-6-carboxamide) including its salts from the schedules of the Controlled Substances Act. Prior to the effective date of this rule, naldemedine was a schedule II controlled substance because it can be derived from opium alkaloids. This action removes the regulatory controls and administrative, civil, and criminal sanctions applicable to controlled substances, including those specific to schedule II controlled substances, on persons who handle (manufacture, distribute, reverse distribute, dispense, conduct research, import, export, or conduct chemical analysis) or propose to handle naldemedine.

DATES:

The effective date of this rule is September 29, 2017.

FOR FURTHER INFORMATION CONTACT:

Michael J. Lewis, Diversion Control Division, Drug Enforcement Administration; Mailing Address: 8701 Morrissette Drive, Springfield, Virginia 22152; Telephone: (202) 598-6812.

SUPPLEMENTARY INFORMATION: Legal Authority

Pursuant to 21 U.S.C. 811(a)(2), the Attorney General may, by rule, “remove any drug or other substance from the schedules if he finds that the drug or other substance does not meet the requirements for inclusion in any schedule.” The Attorney General has delegated scheduling authority under 21 U.S.C. 811 to the Administrator of the Drug Enforcement Administration (DEA). 28 CFR 0.100.

The Controlled Substances Act (CSA) provides that proceedings for the issuance, amendment, or repeal of the scheduling of any drug or other substance may be initiated by the Attorney General (1) on his own motion, (2) at the request of the Secretary of the Department of Health and Human Services (HHS) 1, or (3) on the petition of any interested party. 21 U.S.C. 811(a). This action was initiated at the request of the Acting Assistant Secretary for Health of the HHS and by a petition by the drug sponsor to DEA to remove naldemedine from the list of scheduled controlled substances of the CSA, and is supported by, inter alia, a recommendation from the Assistant Secretary of the HHS and an evaluation of all relevant data by the DEA. This action removes the regulatory controls and administrative, civil, and criminal sanctions applicable to controlled substances, including those specific to schedule II controlled substances, on persons who handle or propose to handle naldemedine.

1 As set forth in a memorandum of understanding entered into by the HHS, the Food and Drug Administration (FDA), and the National Institute on Drug Abuse (NIDA), the FDA acts as the lead agency within the HHS in carrying out the Secretary's scheduling responsibilities under the CSA, with the concurrence of the NIDA. 50 FR 9518, Mar. 8, 1985. The Secretary of the HHS has delegated to the Assistant Secretary for Health of the HHS the authority to make domestic drug scheduling recommendations. 58 FR 35460, July 1, 1993.

Background

Naldemedine, known chemically as (4R,4aS,7aR,12bS)-3-(cyclopropylmethyl)-4a,7,9-trihydroxy-N-(2-(3-phenyl-1,2,4-oxadiazol-5-yl)propan-2-yl)-2,3,4,4a,5,7a-hexahydro-1H-4,12-methanobenzofuro[3,2-e]isoquinoline-6-carboxamide, is an opium alkaloid derivative. Naldemedine is a high-affinity antagonist at the mu, kappa, and delta opioid receptors. On March 23, 2016, a new drug application (NDA) was submitted by Shionogi Inc. (Sponsor) to the Food and Drug Administration (FDA) for approval of naldemedine for the treatment of opioid induced constipation in patients with chronic non-cancer pain. The FDA approved naldemedine for marketing on March 23, 2017, under the trade name Symproic® (0.2 mg tablets).2 Naldemedine is indicated for the treatment of opioid-induced constipation (OIC) in adults with chronic non-cancer pain. Opioid-induced constipation is caused by an activation of mu-opioid receptors in the gastrointestinal tract. Naldemedine, a peripheral acting mu-opioid antagonist, can prevent OIC.

2http://www.accessdata.fda.gov/drugsatfda_docs/appletter/2017/208854Orig1s000ltr.pdf (last accessed 04/13/2017).

DEA and HHS Eight Factor Analyses

On June 8, 2016, the DEA received a petition from the drug sponsor requesting that the DEA amend 21 CFR 1308.12(b)(1) to exclude naldemedine as a schedule II substance from the Controlled Substances Act (CSA). The petitioner stated that naldemedine is a potent peripherally acting mu-opioid receptor antagonist. In accordance with 21 CFR 1308.43(c), the DEA accepted the petition for filing on August 5, 2016.

On March 22, 2017, the HHS provided the DEA with a scientific and medical evaluation document prepared by the FDA entitled “Basis for the Recommendation to Decontrol Naldemedine and its Salts from the Controlled Substances Act.” After considering the eight factors in 21 U.S.C. 811(c), including consideration of the substance's abuse potential, legitimate medical use, and dependence liability, the Assistant Secretary of the HHS recommended that naldemedine and its salts be removed from schedule II of the CSA. In response, the DEA conducted its own eight factor analysis of naldemedine pursuant to 21 U.S.C. 811(c). Both the DEA and HHS analyses are available in their entirety in the public docket of this rule (Docket Number DEA-468) at http://www.regulations.gov under “Supporting and Related Material.”

Determination To Decontrol Naldemedine

After a review of the available data, including the scientific and medical evaluation and the recommendation to decontrol naldemedine from HHS, the DEA published in the Federal Register a notice of proposed rulemaking (NPRM) entitled “Schedules of Controlled Substances: Removal of Naldemedine from Control” which proposed removal of naldemedine including its salts from the schedules of the CSA. 82 FR 32153, July 12, 2017. The proposed rule provided an opportunity for interested persons to file a request for a hearing in accordance with DEA regulations by August 11, 2017. No requests for such a hearing were received by the DEA. The NPRM also provided an opportunity for interested persons to submit written comments on the proposal on or before August 11, 2017.

Comments Received

The DEA received six comments on the proposed rule to remove naldemedine from control. Five commenters supported the decontrol of naldemedine. One commenter submitted a comment not related to the proposed decontrol action.

Support

One commenter stated that naldemedine does not induce euphoria therefore limiting its potential for abuse. Another commenter stated that naldemedine can help alleviate constipation which will reduce the amount of time a patient is absent from work or the need for placement on disability. Further, another commenter stated that since naldemedine is a naltrexone derivative, it should be unscheduled.

One commenter stated that senators and representatives should support the removal of naldemedine to allow for safe and efficacious use of the drug due to its lack of abuse potential in clinical use. This commenter further suggested that naldemedine be made available to the public without the need for a prescription to treat individuals overdosed on opioids.

DEA Response: The DEA appreciates the comments in support of this rulemaking. The comment about making naldemedine available without prescription does not relate to the factors determinative of control of a substance (21 U.S.C. 811(c)) or the criteria for placement of a substance in a particular schedule (21 U.S.C. 812(b)).

Unrelated Comment

A commenter expressed concerns about reports on “opioid epidemic” without consideration of the need for opioids by chronic pain patients. This commenter felt “patients are being denied, dismissed and overlooked by our drs (sic) due to all the scrutiny associated with treating chronic pain disease.”

DEA Response: Because naldemedine is not an opioid analgesic, this comment about the use of opioid analgesic in the management of pain is unrelated to the current decontrol action. Further it does not relate to the factors determinative of control of a substance (21 U.S.C. 811(c)) or the criteria for placement of a substance in a particular schedule (21 U.S.C. 812(b)).

Request for Immediate Effective Date

The drug sponsor (Shionogi Inc.) requested that the effective date of this decontrol action correspond to the date of publication of the Final Rule.

DEA Response: Generally, DEA scheduling actions are effective 30 days from the date of publication of the final rule in the Federal Register. 21 CFR 1308.45; see also 5 U.S.C. 553(d). In accordance with 21 CFR 1308.45, the DEA finds that the limited availability of effective therapeutic treatments for opioid induced constipation (OIC), coupled with the fact that this is an action for decontrol, supports the finding that conditions of public health require this action to be effective immediately upon publication in the Federal Register. Due to adverse side effects, the majority of treatment alternatives currently available for OIC have restricted clinical application. By comparison, in clinical studies, naldemedine was well tolerated and exhibited a good safety profile in patients with opioid-induced bowel dysfunction.

In making the determination to make this rule effective immediately, the DEA took into consideration the effects of immediate implementation. The DEA agrees that making this rule immediately effective is in the best interest of the public health and will not burden registrants, the healthcare system or law enforcement. The DEA notes that its decision to make this rule effective immediately aligns with the exceptions to the 30-day effective date requirement of the Administrative Procedure Act (APA). One of the APA's exceptions to the 30-day effective date is for a substantive rule granting or recognizing an exemption or which relieves a restriction. 5 U.S.C. 553(d)(1).

Scheduling Conclusion

Based on the consideration of all comments, the scientific and medical evaluation and accompanying recommendation of the HHS, and based on the DEA's consideration of its own eight-factor analysis, the Administrator finds that these facts and all relevant data demonstrate that naldemedine does not meet the requirements for inclusion in any schedule, and will be removed from control under the CSA.

Regulatory Analyses Executive Orders 12866 and 15363

In accordance with 21 U.S.C. 811(a), this scheduling action is subject to formal rulemaking procedures performed “on the record after opportunity for a hearing,” which are conducted pursuant to the provisions of 5 U.S.C. 556 and 557. The CSA sets forth the criteria for scheduling a drug or other substance. Such actions are exempt from review by the Office of Management and Budget (OMB) pursuant to section 3(d)(1) of Executive Order 12866 and the principles reaffirmed in Executive Order 13563.

Executive Order 12988

This regulation meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988 to eliminate drafting errors and ambiguity, minimize litigation, provide a clear legal standard for affected conduct, and promote simplification and burden reduction.

Executive Order 13132

This rulemaking does not have federalism implications warranting the application of Executive Order 13132. The rule does not have substantial direct effects on the States, on the relationship between the national government and the States, or the distribution of power and responsibilities among the various levels of government.

Executive Order 13175

This rule does not have tribal implications warranting the application of Executive Order 13175. It does not have substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.

Regulatory Flexibility Act

The Administrator, in accordance with the Regulatory Flexibility Act (5 U.S.C. 601-612) (RFA), has reviewed this rule and by approving it certifies that it will not have a significant economic impact on a substantial number of small entities. The purpose of this rule is to remove naldemedine from the list of schedules of the CSA. This action removes regulatory controls and administrative, civil, and criminal sanctions applicable to controlled substances for handlers and proposed handlers of naldemedine. Accordingly, it has the potential for some economic impact in the form of cost savings.

This rule will affect all persons who handle, or propose to handle, naldemedine. Due to the wide variety of unidentifiable and unquantifiable variables that potentially could influence handling of naldemedine, the DEA is unable to determine the number of entities and small entities which might handle naldemedine. However, the DEA estimates that all persons who handle, or propose to handle naldemedine, are currently registered with the DEA to handle controlled substances. Therefore, the 1.7 million (1,683,023 as of April 2017) controlled substance registrations, representing approximately 436,761 entities, would be the maximum number of entities affected by this rule. The DEA estimates that 425,856 (97.5%) of 436,761 affected entities are “small entities” in accordance with the RFA and Small Business Administration size standards.

The DEA estimates all controlled substance registrants handle both controlled and non-controlled substances and these registrants are expected to continue to handle naldemedine. Additionally, since prospective naldemedine handlers are likely to handle other controlled substances, the cost benefits they would receive as a result of the de-control of naldemedine is minimal. As naldemedine handlers continue to handle other controlled substances, they will need to maintain their DEA registration and keep the same security and recordkeeping processes, equipment, and facilities in place and would experience only minimal reduction in security, inventory, recordkeeping, and labeling costs. Physical security control requirements are the same for controlled substances listed in schedules II, III, IV, and V for the vast majority of registrants (practitioners).

While the DEA does not have a basis to estimate the number of affected entities, the DEA estimates that the maximum number of affected entities is 436,761 of which 425,856 are estimated to be small entities. Since the affected entities are expected to handle other controlled substances and maintain security and recordkeeping facilities and processes consistent with controlled substances, the DEA estimates any economic impact will be minimal. Because of these facts, this rule will not have a significant economic impact on a substantial number of small entities.

Unfunded Mandates Reform Act of 1995

In accordance with the Unfunded Mandates Reform Act (UMRA) of 1995, 2 U.S.C. 1501 et seq., the DEA has determined and certifies that this action would not result in any Federal mandate that may result “in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000 or more (adjusted for inflation) in any one year * * *.” Therefore, neither a Small Government Agency Plan nor any other action is required under UMRA of 1995.

Paperwork Reduction Act

This action does not impose a new collection of information requirement under the Paperwork Reduction Act, 44 U.S.C. 3501-3521. This action would not impose recordkeeping or reporting requirements on State or local governments, individuals, businesses, or organizations. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

Congressional Review Act

This rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional Review Act (CRA)). This rule will not result in: An annual effect on the economy of $100,000,000 or more; a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign based enterprises in domestic and export markets. However, pursuant to the CRA, the DEA has submitted a copy of this final rule to both Houses of Congress and to the Comptroller General.

List of Subjects in 21 CFR Part 1308

Administrative practice and procedure, Drug traffic control, Reporting and recordkeeping requirements.

For the reasons set out above, 21 CFR part 1308 is amended as follows:

PART 1308—SCHEDULES OF CONTROLLED SUBSTANCES 1. The authority citation for 21 CFR part 1308 continues to read as follows: Authority:

21 U.S.C. 811, 812, 871(b), 956(b), unless otherwise noted.

2. In § 1308.12, revise the introductory text of paragraph (b)(1) to read as follows:
§ 1308.12 Schedule II.

(b) * * *

(1) Opium and opiate, and any salt, compound, derivative, or preparation of opium or opiate excluding apomorphine, thebaine-derived butorphanol, dextrorphan, nalbuphine, naldemedine, nalmefene, naloxegol, naloxone, and naltrexone, and their respective salts, but including the following:

Dated: September 22, 2017. Chuck Rosenberg, Acting Administrator.
[FR Doc. 2017-20919 Filed 9-28-17; 8:45 am] BILLING CODE 4410-09-P
DEPARTMENT OF DEFENSE Office of the Secretary 32 CFR Part 199 [Docket ID: DOD-2017-HA-0039] RIN 0720-AB70 Establishment of TRICARE Select and Other TRICARE Reforms AGENCY:

Office of the Secretary, Department of Defense (DoD).

ACTION:

Interim final rule.

SUMMARY:

This interim final rule implements the primary features of section 701 and partially implements several other sections of the National Defense Authorization Act for Fiscal Year 2017 (NDAA-17). The law makes significant changes to the TRICARE program, especially to the health maintenance organization (HMO)-like health plan, known as TRICARE Prime; to the preferred provider organization (PPO) health plan, previously called TRICARE Extra which is to be replaced by TRICARE Select; and to the third health care option, known as TRICARE Standard, which will be terminated as of December 31, 2017, and also replaced by TRICARE Select. The statute also adopts a new health plan enrollment system under TRICARE and new provisions for access to care, high value services, preventive care, and healthy lifestyles. In implementing the statutory changes, this interim final rule makes a number of improvements to TRICARE.

DATES:

This interim final rule is effective October 1, 2017. Comments will be received by November 28, 2017.

ADDRESSES:

You may submit comments, identified by docket number and title, by any of the following methods:

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

Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate for Oversight and Compliance, Regulatory and Advisory Committee Division, 4800 Mark Center Drive, Mailbox #24, Suite 08D09B, Alexandria, VA 22350-1700.

Instructions: All submissions received must include the agency name, docket number, or title for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the Internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT:

Mr. Mark Ellis, Defense Health Agency, TRICARE Health Plan, (703) 681-0063.

SUPPLEMENTARY INFORMATION: I. Executive Summary A. Purpose of the Interim Final Rule

In implementing section 701 and partially implementing several other sections of NDAA-17, this interim final rule advances all four components of the Military Health System's quadruple aim of improved readiness, better care, better health, and lower cost. The aim of improved readiness is served by reinforcing the vital role of the TRICARE Prime health plan to refer patients, particularly those needing specialty care, to military medical treatment facilities (MTFs) in order to ensure that military health care providers maintain clinical currency and proficiency in their professional fields. The objective of better care is enhanced by a number of improvements in beneficiary access to health care services, including increased geographical coverage for the TRICARE Select provider network, reduced administrative hurdles for TRICARE Prime enrollees to obtain urgent care services and specialty care referrals, and promotion of high value services and medications. The goal of better health is advanced by expanding TRICARE coverage of preventive care services, treatment of obesity, high-value care, and telehealth. And the aim of lower cost is furthered by refining cost-benefit assessments for TRICARE plan specifications that remain under DoD's discretion and adding flexibilities to incentivize high-value health care services.

B. Legal Authority for the Regulatory Action

This interim final rule is required to implement or partially implement several sections of NDAA-17, including 701, 706, 715, 718, and 729. The legal authority for this rule also includes chapter 55 of title 10, United States Code.

C. Summary of Major Provisions of the Interim Final Rule

The major provisions of the interim final rule are:

The establishment of TRICARE Select as a self-managed, PPO option under the TRICARE program. TRICARE Select replaces the TRICARE Extra and Standard programs and adopts a number of improvements, including fixed copayments rather than cost shares for covered benefits provided by a civilian network provider. TRICARE Select beneficiaries can choose any provider for their healthcare; however, they will enjoy lower out-of-pocket costs if they choose preferred providers within the TRICARE civilian network.

The continuation of TRICARE Prime as a managed care, HMO-like option under the TRICARE program. TRICARE Prime adopts a number of changes to conform to specifications in the new law, including categories of health care services applicable to the determination of copayment amounts (such as primary care, specialty care, emergency care).

Improved access to care, including a codified requirement that the TRICARE Select health care plan is available in all locations and at least 85% of the U.S. beneficiary TRICARE Select population is covered by the TRICARE network. Also, for TRICARE Prime enrollees, there are new procedures to ensure timely appointments for health care services and to authorize some or all urgent care visits without the need for referral from a primary care manager.

Promotion of high value services and medications, telehealth services, preventive health care, and healthy lifestyles.

A new design for the health care enrollment system, including mandatory enrollment to maintain TRICARE coverage, an annual open season enrollment period, and hassle-free enrollment procedures.

Other features include preservation of benefits for active duty dependents and TRICARE-for-Life beneficiaries, and changes to the TRICARE Young Adult (TYA), TRICARE Reserve Select (TRS), TRICARE Retired Reserve (TRR), Continued Health Care Benefit Program (CHCBP), and TRICARE Retiree Dental Program (TRDP) to conform with new statutory requirements.

II. Provisions of Interim Final Rule A. Establishment of TRICARE Select

The rule implements the new law (section 701 of NDAA-17) that establishes TRICARE Select as a self-managed, PPO program. It allows beneficiaries to use the TRICARE civilian provider network, with reduced out-of-pocket costs compared to care from non-network providers, as well as military treatment facilities (when space is available). Similar to the long-operating “TRICARE Extra” and “TRICARE Standard” plans, which TRICARE Select replaces, a major feature is that enrollees will not have restrictions on their freedom of choice with respect to health care providers. TRICARE Select is based primarily on 10 U.S.C. 1075 (as added by section 701 of NDAA-17) and 10 U.S.C. 1097. With respect to beneficiary cost sharing, the statute introduces a new split of beneficiaries into two groups: One group (which the rule refers to as “Group A”) consists of sponsors and their family members who first became affiliated with the military through enlistment or appointment before January 1, 2018, and the second group (referred to as “Group B”) who first became affiliated on or after January 1, 2018. In general, beneficiary out-of-pocket costs for Group B are higher than for Group A.

In addition to implementing the statutory specifications, the interim final rule also makes improvements for TRICARE Select Group A enrollees, compared to the features of the old TRICARE Extra plan. One such improvement is to convert the current cost-sharing requirement of 15% for active duty family members and 20% for retirees and their family members of the allowable charge for care from a network provider to a fixed dollar copayment calculated to approximately equal 15% or 20% of the average allowable charge for the category of care involved. Consistent with prevailing private sector health program practices, the fixed dollar copayment is more predictable for the patient and easier for the network health care provider to administer. The breakdown of categories of care (such as outpatient primary care visit, specialty care visit, emergency room visit, etc.) contained in the rule is the same as the categories now specified in the statute for Group B Select enrollees.

A second improvement in TRICARE Select (for both Group A and Group B) is that additional preventive care services that previously were only offered to TRICARE Prime beneficiaries will now (under the authority of 10 U.S.C. 1097 and NDAA-17) also be covered for Select enrollees when furnished by a network health care provider. These are services recommended by the United States Preventive Services Task Force and the Health Resources and Services Administration of the Department of Health and Human Services.

These improvements are based partly on the statutory provision (10 U.S.C. 1075(c)(2)) that Group A Select enrollee cost-sharing requirements are calculated as if TRICARE Extra were still being carried out by DoD. TRICARE Extra specifications are based on the underlying authority of 10 U.S.C. 1097, which allows DoD to adopt special rules for the PPO plan. This statute was the basis for the original set of rules for TRICARE Extra, which were adopted in 1995, and is the authority for these improved rules for TRICARE Select Group A, adopted as if TRICARE Extra were still being carried out by DoD.

Under the interim final rule, the cost sharing rules applicable to TRICARE Select Group B are those specified in 10 U.S.C. 1075. For TRICARE Select Group A, in addition to the copayment rules noted above, consistent with 10 U.S.C. 1075, an enrollment fee of $150 per person or $300 per family will begin January 1, 2021, for most retiree families, with annual updates thereafter based on the cost of living adjustment (COLA) applied to retired pay. At the same time, the catastrophic cap will increase from $3,000 to $3,500 for these retiree families. These changes, however, will not apply to TRICARE Select Group A active duty families, survivors of members who died while on active duty, or disability retiree families; that is, no enrollment fee will be applicable to this group and the applicable catastrophic cap will continue to be $1,000 for active duty families as established under 10 U.S.C. 1079(b) and $3,000 for survivors of members who died while on active duty or disability retiree families as established under 10 U.S.C. 1086(b).

B. Continuation of TRICARE Prime

A second major feature of this interim final rule, based primarily on 10 U.S.C. 1075a (also added by section 701 of NDAA-17), is the continuation of TRICARE Prime as a managed care, HMO-like program. It generally features use of military treatment facilities (MTFs) and substantially reduced out-of-pocket costs for authorized care provided outside MTFs. Beneficiaries generally agree to use military treatment facilities and designated civilian provider networks and to follow certain managed care rules and procedures. Like with TRICARE Select, with respect to beneficiary cost sharing, the statute introduces a new split of beneficiaries into two groups (again referred to in the rule as Group A and Group B) based on the military sponsor's initial enlistment or appointment before January 1, 2018 (Group A), or on or after that date (Group B). Beneficiary cost sharing for Group B is slightly higher than for Group A.

As with TRICARE Select, the cost sharing specifications for TRICARE Prime Group B are set forth in the statute, and those for Group A are calculated in accordance with other health care provisions of title 10 (rather than the new section 1075a). The primary original statutory authority for the TRICARE Prime health plan, established by DoD regulation in 1995, was 10 U.S.C. 1097, and this continues to be relied upon for the continued operation of TRICARE Prime for Group A. Also relevant to the original terms of TRICARE Prime was section 731 of the National Defense Authorization Act for Fiscal Year 1994. That law required DoD to include, to the maximum extent practicable, the HMO-like option under TRICARE. That law also required that the HMO-like option “shall be administered so that the costs incurred by the Secretary under the TRICARE program are no greater than the costs that would otherwise be incurred”, to provide health care to beneficiaries. The extent to which this “cost neutrality” requirement has not been maintained was recently highlighted by the Congressional Budget Office: “CBO estimates that under current law, a typical retiree household enrolled in TRICARE Prime as a `family' in 2018, and for whom TRICARE is the primary payer of health benefits, will cost DoD about $17,400, and a typical family that uses Standard/Extra will cost DoD about $12,700.” 1

1 Congressional Budget Office Cost Estimate, S. 2943, National Defense Authorization Act for Fiscal Year 2017, June 10, 2016, page 17.

Based on the TRICARE Prime cost neutrality provision in NDAA-1994, the original 1995 TRICARE Prime regulation included (at 32 CFR 199.18(g)) that cost sharing requirements “may be updated for subsequent years to the extent necessary to maintain compliance with statutory requirements pertaining to government costs.” Since NDAA-1994, Congress took away DoD's discretion for enrollment fee increases, which are now tied by law to the retired pay COLA. However, DoD continues to have discretion to update copayment amounts—which have not changed since 1995—and this discretion is confirmed by the newly enacted 10 U.S.C. 1075a(a)(3).

This discretion to update copayment amounts is continued in the interim final rule, but the framework for setting Prime Group A copayment amounts is being revised. Specifically, DoD is adopting for Group A the same structure of categories of care that Congress adopted for Group B. Thus, for example, while the current TRICARE Prime copayment amount makes no distinction between primary care and specialty care services, the new Group B structure under the statute does have a different copayment for primary care and specialty care. Under the rule, copayment amounts for Group A beneficiaries will be set for each of those categories, as well as the other categories of care the statute now specifies for Group B enrollees. The interim final rule does not specify the amount for each category of care. Rather, consistent with DoD's discretion under current statute and regulation, the actual amount will be set each year prior to open season enrollment. The interim final rule does, however, specify that the amount for each category of care for Group A enrollees may not exceed the amount that Congress set for Group B enrollees. In this way, the Prime copay structure would be in alignment with proposed legislative changes recommended by the Department to Congress for enactment this year to eliminate the “grandfathering” of Group A retiree families and return to a single TRICARE Prime model for all working-age retiree families. Again, it should be noted that this applies only to per-service copayments; enrollment fee increases for Group A enrollees will continue to be based on the retired pay COLA.

The interim final rule also continues the point-of-service provision of the current TRICARE Prime plan. Any health care services obtained by a Prime enrollee not in accordance with the rules and procedures of Prime (e.g. failure to obtain a primary care manager referral when such a referral is required or seeing a non-network provider when a network provider is available) will not be paid for under Prime rules, but may be covered by the point-of-service option. This results in higher cost sharing—specifically, a deductible of $300 per person and $600 per family, and a copayment of 50 percent of the allowable charges after the deductible. Point-of-service charges do not count against the annual catastrophic cap. These point-of-service rules continue for TRICARE Prime Group A and are also applicable to Group B. For Group B, the rules for point-of-service charges are specified in 10 U.S.C. 1075a(c), which clarifies that point-of-service cost sharing is “notwithstanding” the usual cost sharing rules of Prime Group B enrollees.

One other matter on which the interim final rule preserves DoD discretion, similar to that in the current regulation, is with respect to the locations where TRICARE Prime is offered. This is noted in the current regulation at 32 CFR 199.17(a)(5). Under the interim final rule, the locations where TRICARE Prime will be offered will be determined by the Director, Defense Health Agency (DHA) and announced prior to the annual open season enrollment period. The guiding principle for this decision is that the purpose of TRICARE Prime is to support the medical readiness of the armed forces and the readiness of medical personnel. Codification in regulation of this guiding principle is a corollary to the codification by Congress in statute, specifically sections 703 and 725 of NDAA-17 that MTFs exist to support the medical readiness of the armed forces and the readiness of medical personnel.

TRICARE Prime, especially for working age retirees and family members, provides MTFs clinical workload, including for a range of medical specialty areas that permit military health care providers to maintain currency and proficiency in their respective clinical fields. This important support of a ready medical force is what justifies the higher government cost of Prime (which CBO estimates at $17,400 per retiree family), notwithstanding the original statutory requirement of cost neutrality between TRICARE Prime and TRICARE Standard. This cost-benefit assessment supports the conclusion that it is practicable to offer TRICARE Prime in areas where it supports the medical readiness of one or more MTFs. Additionally, where TRICARE Prime is offered, it may be limited to active duty family members if the Director, DHA determines it is not practicable to offer TRICARE Prime to retired beneficiaries as well—a determination that again would take into account the nature of the supported MTF and the range of services it offers.

C. Improved Access to Care

A third significant change in the interim final rule is a set of improvements in standards for access to care. The TRICARE Select plan replaces TRICARE Standard as the generally applicable plan in all areas. Under TRICARE Select, eligible beneficiaries can choose any provider for their healthcare, and they will enjoy lower out-of-pocket costs if they choose providers within the TRICARE civilian network. The vast majority of TRICARE beneficiaries located in the United States will have access to TRICARE network providers (it is DoD's plan that at least 85% of the U.S. beneficiary population under TRICARE Select will be covered by the network upon implementation), similar to the current TRICARE Extra option, but with the benefit of predictable fixed dollar copayments. In cases in which a network provider is not available to a TRICARE Select enrollee, such as in remote locations where there are very few primary or specialty providers, enrollees will still have access to any TRICARE authorized provider, with cost sharing comparable to the current TRICARE Standard plan (i.e. 25% for retired category beneficiaries).

A second interim final rule enhancement for access to care is that if a TRICARE Prime enrollee seeks to obtain an appointment for care from the managed care support contractor but is not offered an appointment within the applicable access time standards from a network provider, the enrollee will be authorized to receive care from any authorized provider without incurring the additional fees associated with point-of-service care.

A third access to care improvement under the interim final rule is that the TRICARE Prime referral requirement may be waived for urgent care visits for Prime enrollees other than active duty members. This is similar to the current pilot program, which waives the referral requirement (other than for active duty members) for up to two urgent care visits per year. The specific number of urgent care visits without a referral will be determined annually prior to the beginning of the open season enrollment period.

A fourth access to care improvement is adoption of the new statutory provision that a primary care manager who believes a referral to a specialty care network provider is medically necessary and appropriate need not obtain pre-authorization from the managed care support contractor. Managed care support contractor preauthorization is only required with respect to a primary care manager's referral for inpatient hospitalization, inpatient care at a skilled nursing facility, inpatient care at a residential treatment center and inpatient care at a rehabilitation facility.

D. Promotion of High Value Services and Medications and Telehealth Services

In addition to the expansion noted above concerning preventive care services, the interim final rule makes a number of other improvements in TRICARE Prime and TRICARE Select based on provisions of sections 701(h), 706, 718, and 729 of NDAA-17. Section 701(h), among other things, provides for a four-year pilot program to encourage use by patients of high value services and medications. Section 706, among other things, authorizes special arrangements with provider groups that will improve population-based health outcomes and focus more on preventive care. Section 729 calls for special actions to incentivize medical intervention programs to address chronic diseases and other conditions and healthy lifestyle interventions. Section 718, among other things, requires actions to promote greater use of telehealth services under TRICARE. While these sections of NDAA-17 also require actions outside the scope of this interim final rule (such as contracting actions) they can be partially implemented, consistent with Congressional intent, in this rule. The interim final rule does this in several ways.

First, the interim final rule authorizes coverage under TRICARE Prime and TRICARE Select for medically necessary treatment of obesity even if it is the sole or major condition treated. Under 10 U.S.C. 1079(a)(10), this is disallowed under the basic program. However, it is DoD's conclusion that the underlying authority of 10 U.S.C. 1097, together with section 729 of NDAA-17 (which specifically authorizes medical intervention for obesity), allow the Department to cover these services when provided by a network provider for a TRICARE Prime or TRICARE Select enrollee.

Second, the interim final rule codifies authority of the Director, DHA to waive or reduce copayment requirements for TRICARE Prime and TRICARE Select enrollees for care received from network providers for certain health care services that provide especially high value in terms of better health outcomes for patients. Authority for this includes section 706 and 729 of NDAA-17. This is also consistent with the four-year pilot program authority of section 701(h), but does not necessarily rely on that time-limited authority. Consistent with the intent of these sections, the Department also intends to use the authority of § 199.21(j)(3) of the TRICARE Pharmacy Benefits Program section of the TRICARE regulations to encourage use of high value medications by reducing or eliminating the copayment of selected medicines.

Third, consistent with section 718 of NDAA-17, the interim final rule provides that health care services covered by TRICARE and provided through the use of telehealth modalities are covered services to the same extent as if provided in person at the location of the patient if those services are medically necessary and appropriate for such modalities. The Director, DHA will establish standardized payment methods to reimburse for such services, and shall reduce or eliminate, as appropriate, beneficiary copayments or cost-shares for such services in cases in which a copayment would otherwise apply. This may be done by designating some telehealth services as high value services for which lower copays apply as well as the elimination of any beneficiary cost-sharing related to originating site fees when used to support the provision of telehealth services.

E. Changes to Health Plan Enrollment System

A fourth major change in the interim final rule is its implementation of the new statutory design for the health care enrollment system. Starting in calendar year 2018, beneficiaries other than active duty members and TRICARE-for-Life beneficiaries must elect to enroll in TRICARE Select or TRICARE Prime in order to be covered by the private sector care portion of TRICARE. While TRICARE-for-Life beneficiaries under the age of 65 are permitted to enroll in TRICARE Prime under limited circumstances, their failure to enroll will not affect their coverage by the private sector care portion of TRICARE. Enrollment will be done during an open season period prior to the beginning of each plan year, which operates with the calendar year. An enrollment choice will be effective for the plan year. As an exception to the open season enrollment rule, enrollment changes can be made during the plan year for certain qualifying events, such as a change in eligibility status, marriage, divorce, birth of a new family member, relocation, loss of other health insurance, or other events.

Eligible Prime or Select beneficiaries who do not enroll will no longer have private sector care coverage under the TRICARE program (including the TRICARE retail pharmacy and mail order pharmacy programs) until the next open enrollment season or they have a qualifying event, except that they do not lose any statutory eligibility for space-available care in military medical treatment facilities. There is a limited grace period exception to this enrollment requirement for calendar year 2018, as provided in section 701(d)(3) of NDAA-17, to give beneficiaries another chance to adjust to this new requirement for annual enrollment. For the administrative convenience of beneficiaries, there are also procedures for automatic enrollment in Prime and Select for most active duty family members, and automatic renewal of enrollments of covered beneficiaries, subject to the opportunity to decline or cancel.

Due to a compressed implementation schedule that precludes an annual open season enrollment period in calendar year 2017 for existing TRICARE beneficiaries to elect or change their TRICARE coverage, the Department will convert existing TRICARE Standard coverage to TRICARE Select coverage effective January 1, 2018. All other existing TRICARE coverages will be renewed effective January 1, 2018. As noted previously, beneficiaries may elect to change their TRICARE coverage anytime during the limited grace period in calendar year 2018.

F. Additional Provisions of Interim Final Rule

The interim final rule has several other noteworthy provisions. First, there are no changes in benefits for TRICARE-for-Life beneficiaries, or generally in cost sharing levels for active duty family members. Second, although “TRICARE Standard” is terminated as a distinct TRICARE plan as of December 31, 2017, basic program benefits (as established under 32 CFR 199.4) continue under both TRICARE Prime and TRICARE Select. In addition, when a TRICARE Select beneficiary receives services covered by the basic program benefits from an authorized health care provider who is not part of the TRICARE provider network, that care is covered by TRICARE as “out-of-network” care under terms that match the old TRICARE Standard plan. Third, in order to transition enrollment fees, deductibles, and catastrophic caps from a fiscal year basis to a calendar year basis, special rules apply for the last quarter of calendar year 2017, including that a Prime enrollee's enrollment fee for the quarter is one-fourth of the enrollment fee for fiscal year 2017, and the deductible amount and the catastrophic cap amount for fiscal year 2017 will be applicable to the 15-month period of October 1, 2016, through December 31, 2017. A similar transition rule will apply to TRICARE for Life, TYA, TRR and TRS to align remaining program deductibles and/or catastrophic caps from a fiscal year to calendar year basis for consistency and ease of administration.

Additionally, the interim final rule adopts several changes to regulatory provisions applicable to the TYA, TRS, TRR, and TRDP programs to conform with new statutory requirements. In implementing section 701(a) of NDAA-17, together with section 701(j)(1)(F), the rule conforms the TYA regulation to the statutory language which established the eligibility of TYA under 10 U.S.C. 1110b to enroll in TRICARE Select and provided that the TYA premium shall apply instead of the otherwise applicable TRICARE Prime or Select enrollment fee. In implementing section 701(j)(1)(B), the rule conforms the TRICARE Reserve Select plan regulation to the statutory language which defines “TRICARE Reserve Select” as the TRICARE Select self-managed, preferred-provider network option under 10 U.S.C. 1075 made available to beneficiaries under 10 U.S.C. 1076d and requires payment of a premium for coverage instead of the TRICARE Select enrollment fee. In implementing section 701(j)(1)(C), the rule conforms the TRICARE Retired Reserve plan regulation to the statutory language which defines “TRICARE Retired Reserve” as the TRICARE Select self-managed, preferred-provider network option under 10 U.S.C. 1075 made available to beneficiaries under 10 U.S.C. 1076e and requires payment of a premium for coverage instead of the TRICARE Select enrollment fee. In implementing section 701(a) and 701(e), the rule conforms the CHCBP regulation to replace TRICARE Standard with TRICARE Select as the continuation health care benefit for Department of Defense and the other uniformed services beneficiaries losing eligibility. In implementing section 715, the rule conforms the TRDP regulation to the statutory language which authorizes an interagency agreement between the Department of Defense and the Office of Personnel Management to allow beneficiaries otherwise eligible for the TRDP to enroll in a dental insurance plan offered under the Federal Employees Dental and Vision Insurance Program. Under the statute, TRDP beneficiaries will have the opportunity to access a dental plan with significantly higher annual maximum benefit and a lower premium cost than available under the current TRDP, while giving the Department an opportunity to eliminate costs associated with procuring and administering a separate TRDP contract.

Also, the interim final rule adopts several changes to regulatory provisions applicable to benefit coverage of medically necessary food and vitamins. Section 714 of NDAA-17 confirms long-standing TRICARE policy authorizing benefit coverage of medically necessary vitamins when prescribed for management of a covered disease or condition. In addition, while section 714 confirms long-standing TRICARE policy authorizing medical nutritional therapy coverage of medically necessary food and medical equipment/supplies necessary to administer such food when prescribed for dietary management of a covered disease or condition, the law also allows the medically necessary food benefit to include coverage of low protein modified foods. Consistent with this we also recognize the role of Nutritionists and Registered Dieticians in the appropriate planning for the use of medically necessary foods.

Additionally, the interim final rule adopts several conforming changes to regulatory provisions applicable to general TRICARE administration, the TRICARE Pharmacy Benefits Program and the Extended Health Care Option to reflect transition of deductibles, catastrophic caps, and program reimbursement limitations, as applicable, from a fiscal year basis to a calendar year basis for consistency and ease of administration. Simultaneously, technical corrections are being made to the TRICARE Pharmacy Benefits Program to conform regulation provisions to statutory provisions enacted by section 702 of the National Defense Authorization Act for Fiscal Year 2016.

Finally, the interim final rule includes authority for the Director, DHA to establish preferred provider networks in areas outside the United States where it is determined to be economically in the best interests of the Department of Defense. As a result of the TRICARE Philippines Demonstration Project, which commenced in January 1, 2013, the Department has determined that the TRICARE contracted preferred provider network established in designated locations in the Philippines provided adequate access to beneficiaries with 97 percent of care delivered by network providers. It also successfully achieved the demonstration goals of reducing aberrant billing activities, reduced out-of-pocket expenses for beneficiaries, and increased overall beneficiary satisfaction while leading to a net savings to the government. Although the demonstration was projected to continue through December 31, 2018, the Philippines preferred provider network is determined to be economically in the interests of the Department of Defense and the demonstration shall terminate effective December 31, 2017, with transition of the demonstration's approved preferred provider network to a TRICARE Select preferred provider network effective January 1, 2018.

G. Recap: Cost Sharing Tables

The following two tables summarize beneficiary fees (including enrollment fees, deductibles, cost sharing amounts, and catastrophic loss protection limits) under TRICARE Select and TRICARE Prime for calendar year 2018. For future calendar years, all fees are subject to review and annual updating in accordance with sections 1075, 1075a, and 1097 of title 10, United States Code. Table 1 is for active duty family members (ADFMs); Table 2 is for retiree families. As a guide for understanding the tables:

For services listed as “to be determined (TBD)”, the Director, DHA will ensure the applicable fee for calendar year 2018 will be available at www.health.mil/rates before December 1, 2017.

For services not specifically addressed in these tables, applicable cost-sharing requirements shall be established by the Director, DHA and published annually.

For services designated as “IN”, the listed fee is for covered services or supplies obtained “in-network,” meaning received from TRICARE authorized network providers.

For TRICARE Prime beneficiaries, if covered services or supplies are not obtained in accordance with the rules and procedures of Prime (e.g., failure to obtain a required referral or unauthorized use of a non-network provider), the services or supplies will be reimbursed under a point-of-service option for which there is a deductible of $300 per person or $600 per family and a cost share of 50 percent of the allowable charges after the deductible.

For services designated as “OON”, the listed fee for TRICARE Select beneficiaries is for covered services or supplies obtained “out-of-network”, meaning received from non-network TRICARE authorized providers.

Certain preventive services have no cost sharing whether received from network or non-network providers. However, certain preventive services are not covered services for TRICARE Prime or Select beneficiaries unless obtained from network providers. Additionally, TRICARE Prime beneficiaries are required to obtain services in accordance with the rules and procedures of Prime to avoid point-of-service charges.

Enrollment fees and deductibles are listed in the tables as individual/family, indicating the dollar amounts applicable per individual or per family.

The criteria for fees associated with High Value Primary Care Outpatient Care and High Value Specialty Outpatient Care are under development but will be designed to encourage beneficiaries to receive health care services from high-value providers as highlighted in the contractor's network provider directory. When finalized, the fees will be made available at www.health.mil/rates.

Inpatient subsistence refers to the rate charged for inpatient care obtained in a military treatment facility.

“COLA” is the cost-of-living adjustment for retired pay under 10 U.S.C. 1401a by which certain fees are required to be annually indexed.

“<” means less than; ≤ means less than or equal to.

Table 1—TRICARE Select and TRICARE Prime Cost Sharing for Active Duty Family Members for Calendar Year 2018 Select Group A ADFMs Select Group B ADFMs Prime Group A ADFMs Prime Group B ADFMs Annual Enrollment $0 $0 $0 $0 Annual Deductible E1-E4: $50/$100; E5 & above: $150/$300 E1-E4: $50/$100; E5 & above: $150/$300 0 0 Annual Catastrophic Cap $1,000 $1,000 1,000 1,000 Preventive Care Outpatient Visit $0 $0 0 0 Primary Care Outpatient Visit Fixed fee to = 15% of average allowable amount IN; 20% OON $15 primary care IN; 20% OON 0 0 Specialty Care Outpatient Visit Fixed fee to = 15% of average allowable amount IN; 20% OON $25 specialty care IN; 20% OON 0 0 High-Value Primary Care Outpatient Visit Under Development; Less than normal primary care amount Under Development; Less than normal primary care amount 0 0 High-Value Specialty Care Outpatient Visit Under Development; Less than normal primary care amount Under Development; Less than normal primary care amount 0 0 Emergency Room Visit Fixed fee to = 15% of average allowable amount IN; 20% OON $40 IN; 20% OON 0 0 Urgent Care Center Same as primary care outpatient amount IN; 20% OON $20 IN; 20% OON 0 0 Ambulatory Surgery $25 $25 IN; 20% OON 0 0 Ambulance Service (not including air) Fixed fee to = 15% of average allowable amount IN; 20% OON $15 IN; 20% OON 0 0 Durable Medical Equipment 15% IN; 20% OON 10% IN; 20% OON 0 0 Inpatient Hospital Admission Subsistence charge/day, minimum $25/admission $60/admission IN; 20% OON 0 0 Inpatient Skilled Nursing/Rehab Facility Subsistence charge/day, minimum $25/admission $25/day IN; $50/day OON 0 0 Table 2—TRICARE Select and TRICARE Prime Cost Sharing for Retiree Families for Calendar Year 2018 Select Group A Retirees Select Group B Retirees Prime Group A Retirees Prime Group B Retirees Annual Enrollment $0 until 2021; $150/$300 in 2021 +COLA? $450/$900 FY17 amount ($282.60/$565.20) +COLA $350/$700. Annual Deductible $150/$300 $150/$300 IN; $300/$600 OON $0 $0. Annual Catastrophic Cap $3,000 until 2021; $3,500 in 2021 $3,500 $3,000 $3,500. Preventive Care Visit $0 $0 $0 $0. Primary Care Outpatient Visit Fixed fee that = 20% of average allowable amount IN; 25% OON $25 primary IN; 25% OON TBD, ≤$20 primary $20 primary. Specialty Care Outpatient Visit Fixed fee that = 20% of average allowable amount IN; 25% OON $40 specialty IN; 25% OON TBD, ≤$30 specialty $30 specialty. High Value Primary Care OP Visit Under Development; <normal primary care amount Under Development; <normal primary care amount Under Development; <normal primary care amount Under Development; <normal primary care amount. High Value Specialty Care OP Visit Under Development; <normal specialty care amount Under Development; <normal specialty care amount Under Development; <normal specialty care amount Under Development; <normal specialty care amount. Emergency Room Visit Fixed fee that = 20% of average allowable amount IN; 25% OON $80 IN; 25% OON TBD, ≤$60 $60. Urgent Care Center Same as primary care outpatient amount IN; 25% OON $40 IN; 25% OON TBD, ≤$30 $30. Ambulatory Surgery 20% IN; 25% OON $95 IN; 25% OON TBD, ≤$60 $60. Ambulance Service (not including air) Fixed fee that = 20% of average allowable amount IN; 25% OON $60 IN; 25% OON TBD, ≤$40 $40. Durable Med. Equip 20% IN; 25% OON 20% IN; 25% OON 20% 20%. Inpatient Admission $250/day up to 25% hosp. charge + 20% separately billed services IN; 25% OON $175/admission IN; 25% OON TBD, ≤$150/admission $150/admission. Inpatient Skilled Nursing/Rehab Admission $250/day up to 25% hospital charge + 20% separately billed services IN; 25% OON $50/day IN; Lesser of $300/day or 20% OON TBD, ≤$30/day $30/day. III. Regulatory Procedures Public Comments Invited

This is being issued as an interim final rule in order to comply with statutory specifications regarding effective dates of changes to TRICARE as a health care entitlement program. For example, the change from a fiscal year-based TRICARE plan year for purposes of enrollment fees, deductibles, and catastrophic caps to a calendar year-based TRICARE plan year requires that this regulation be in place by October 1, 2017. Many other changes must be in place by January 1, 2018, including the operation of TRICARE Select to replace TRICARE Extra and TRICARE Standard, which DoD no longer has authority to operate as of that date. In view of the statutory effective dates of the substantial changes in TRICARE, the Department finds that obtaining public comment in advance of issuing this rule is impracticable, unnecessary, and contrary to the public interest. Nonetheless, DoD invites public comments on this rule and is committed to considering all comments and issuing a final rule as soon as practicable.

Executive Order (E.O.) 13771, “Reducing Regulation and Controlling Regulatory Costs”

E.O. 13771 seeks to control costs associated with the government imposition of private expenditures required to comply with Federal regulations and to reduce regulations that impose such costs. Consistent with the analysis of transfer payments under OMB Circular A-4, this interim final rule does not involve regulatory costs subject to E.O. 13771.

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

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, distribute 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 interim final rule has been designated “significant regulatory action,” although not economically significant, under section 3(f) of Executive Order 12866. Accordingly, this rule has been reviewed by the Office of Management and Budget (OMB).

Congressional Review Act, 5 U.S.C. 804(2)

Under the Congressional Review Act, a major rule may not take effect until at least 60 days after submission to Congress of a report regarding the rule. A major rule is one that would have an annual effect on the economy of $100 million or more or have certain other impacts. This interim final rule is not a major rule under the Congressional Review Act.

Public Law 96-354, “Regulatory Flexibility Act” (RFA), (5 U.S.C. 601)

The Regulatory Flexibility Act requires that each Federal agency analyze options for regulatory relief of small businesses if a rule has a significant impact on a substantial number of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. This interim final rule is not an economically significant regulatory action, and it will not have a significant impact on a substantial number of small entities. Therefore, this rule is not subject to the requirements of the RFA.

Public Law 104-4, Sec. 202, “Unfunded Mandates Reform Act”

Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any one year of $100 million in 1995 dollars, updated annually for inflation. That threshold level is currently approximately $140 million. This interim final rule will not mandate any requirements for state, local, or tribal governments or the private sector.

Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35)

This rulemaking does not contain a “collection of information” requirement, and will not impose additional information collection requirements on the public under Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35).

Executive Order 13132, “Federalism”

This interim final rule has been examined for its impact under E.O. 13132, and it does not contain policies that have federalism implications that would have substantial direct effects on the States, on the relationship between the national Government and the States, or on the distribution of powers and responsibilities among the various levels of Government. Therefore, consultation with State and local officials is not required.

List of Subjects in 32 CFR Part 199

Claims, Dental health, Health care, Health insurance, Individuals with disabilities, Mental health, Mental health parity, Military personnel.

For the reasons stated in the preamble, the Department of Defense amends 32 CFR part 199 as set forth below:

PART 199—CIVILIAN HEALTH AND MEDICAL PROGRAM OF THE UNIFORMED SERVICES (CHAMPUS) 1. The authority citation for part 199 continues to read as follows: Authority:

5 U.S.C. 301; 10 U.S.C. chapter 55.

2. In § 199.2, paragraph (b) is amended by: a. Revising the definitions of “Basic program,” “Deductible,” “Deductible certificate,” “Former member,” and “Member.” b. Adding the definitions of “Program year” and “Retired category” in alphabetical order. c. Revising the definition of “Retiree.” d. Adding the definition of “TRICARE Extra” in alphabetical order. e. Removing the definition of “TRICARE extra plan.” f. Adding the definition of “TRICARE for Life” and “TRICARE Prime” in alphabetical order. g. Removing the definition of “TRICARE prime plan.” h. Revising the definitions of “TRICARE program” and “TRICARE Retired Reserve.” i. Adding the definitions of “TRICARE Select” and “TRICARE Standard” in alphabetical order. j. Removing the definition of “TRICARE standard plan.”

The revisions and additions read as follows:

§ 199.2 Definitions.

(b) * * *

Basic program. The primary medical benefits set forth in § 199.4, generally referred to as the Civilian Health and Medical Program of the Uniformed Services (CHAMPUS) as authorized under chapter 55 of title 10 United States Code, were made available to eligible beneficiaries under this part.

Deductible. Payment by an individual beneficiary or family of a specific first dollar amount of the TRICARE allowable amount for otherwise covered outpatient services or supplies obtained in any program year. The dollar amount of deductible per individual or family is calculated as specified by law.

Deductible certificate. A statement issued to the beneficiary (or sponsor) by a TRICARE contractor certifying to deductible amounts satisfied by a beneficiary for any applicable program year.

Former member. An individual who is eligible for, or entitled to, retired pay, at age 60, for non-Regular service in accordance with chapter 1223, title 10, United States Code but who has been discharged and who maintains no military affiliation. These former members, at age 60, and their eligible dependents are entitled to medical care, commissary, exchange, and MWR privileges. Under age 60, they and their eligible dependents are entitled to commissary, exchange, and MWR privileges only.

Member. An individual who is affiliated with a Service, either an active duty member, Reserve member, active duty retired member, or Retired Reserve member. Members in a retired status are not former members. Also referred to as the sponsor.

Program year. The appropriate year (e.g., calendar year, fiscal year, rolling 12-month period, etc.) specified in the administration of TRICARE programs for application of unique requirements or limitations (e.g., enrollment fees, deductibles, catastrophic loss protection, etc.) on covered health care services obtained or provided during the designated time period.

Retired category. Retirees and their family members who are beneficiaries covered by 10 U.S.C. 1086(c), other than Medicare-eligible beneficiaries as described in 10 U.S.C. 1086(d).

Retiree. For ease of reference in this part only, and except as otherwise specified in this part, the term means a member or former member of a Uniformed Service who is entitled to retired, retainer, or equivalent pay based on duty in a Uniformed Service.

TRICARE Extra. The preferred-provider option of the TRICARE program made available prior to January 1, 2018, under which TRICARE Standard beneficiaries may obtain discounts on cost sharing as a result of using TRICARE network providers.

TRICARE for Life. The Medicare wraparound coverage option of the TRICARE program made available to an eligible beneficiary by reason of 10 U.S.C. 1086(d).

TRICARE Prime. The managed care option of the TRICARE program established under § 199.17.

TRICARE program. The program established under § 199.17.

TRICARE Retired Reserve. The program established under 10 U.S.C. 1076e and § 199.25.

TRICARE Select. The self-managed, preferred-provider network option under the TRICARE Program established by 10 U.S.C. 1075 and § 199.17 to replace TRICARE Extra and Standard after December 31, 2017.

TRICARE Standard. The TRICARE program made available prior to January 1, 2018, under which the basic program of health care benefits generally referred to as CHAMPUS was made available to eligible beneficiaries under this part.

3. Section 199.4 is amended by: a. Adding paragraph (c)(1)(iii); b. Revising paragraph (d)(3)(iii); c. Adding paragraph (d)(3)(vi)(D); d. Revising paragraph (e)(28)(iv); e. Adding paragraph (e)(28)(v); f. Removing the words “fiscal year” everywhere they appear and adding in their place the words “calendar year” in paragraphs (f)(2) through (4) and (10); g. Adding paragraph (f)(13); h. Revising paragraph (g)(39) introductory text and adding paragraph (g)(39)(v). i. Revising paragraph (g)(57).

The revisions and additions read as follows:

§ 199.4 Basic program benefits.

(c) * * *

(1) * * *

(iii) Telehealth services. Health care services covered by TRICARE and provided through the use of telehealth modalities are covered services to the same extent as if provided in person at the location of the patient if those services are medically necessary and appropriate for such modalities. The Director will establish special procedures for payment for such services. Additionally, where appropriate, in order to incentive the use of telehealth services, the Director may modify the otherwise applicable beneficiary cost-sharing requirements in paragraph (f) of this section which otherwise apply.

(d) * * *

(3) * * *

(iii) Medical supplies and dressings (consumables)—(A) In general. In general, medical supplies and dressings (consumables) are those that do not withstand prolonged, repeated use. Such items must be related directly to an appropriate and verified covered medical condition of the specific beneficiary for whom the item was purchased and obtained from a medical supply company, a pharmacy, or authorized institutional provider. Examples of covered medical supplies and dressings are disposable syringes for a known diabetic, colostomy sets, irrigation sets, and elastic bandages. An external surgical garment specifically designed for use follow a mastectomy is considered a medical supply item.

Note 1 to paragraph (d)(3)(iii)(A):

Generally, the allowable charge of a medical supply item will be under $100. Any item over this amount must be reviewed to determine whether it would qualify as a DME item. If it is, in fact, a medical supply item and does not represent an excessive charge, it can be considered for benefits under paragraph (d)(3)(iii) of this section.

(B) Medically necessary food and medical equipment and supplies necessary to administer such food (other than durable medical equipment and supplies) when prescribed for dietary management of a covered disease or condition. (1) Medically necessary food, including a low protein modified food product or an amino acid preparation product, may be covered when:

(i) Furnished pursuant to the prescription, order, or recommendation of a TRICARE authorized provider acting within the provider's scope of license/certificate of practice, for the dietary management of a covered disease or condition;

(ii) Is a specifically formulated and processed product (as opposed to a naturally occurring foodstuff used in its natural state) for the partial or exclusive feeding of an individual by means of oral intake or enteral feeding by tube;

(iii) Is intended for the dietary management of an individual who, because of therapeutic or chronic medical needs, has limited or impaired capacity to ingest, digest, absorb, or metabolize ordinary foodstuffs or certain nutrients, or who has other special medically determined nutrient requirements, the dietary management of which cannot be achieved by the modification of the normal diet alone;

(iv) Is intended to be used under medical supervision, which may include in a home setting; and

(v) Is intended only for an individual receiving active and ongoing medical supervision under which the individual requires medical care on a recurring basis for, among other things, instructions on the use of the food.

(2) Medically necessary food does not include:

(i) Food taken as part of an overall diet designed to reduce the risk of a disease or medical condition or as weight-loss products, even if the food is recommended by a physician or other health care professional;

(ii) Food marketed as gluten-free for the management of celiac disease or non-celiac gluten sensitivity;

(iii) Food marketed for the management of diabetes; or

(iv) Such other products as the Director, Defense Health Agency determines appropriate.

(3) Covered disease or condition under paragraph (d)(3)(iii)(B) of this section means:

(i) Inborn errors of metabolism;

(ii) Medical conditions of malabsorption;

(iii) Pathologies of the alimentary tract or the gastrointestinal tract;

(iv) A neurological or physiological condition; and

(v) Such other diseases or conditions the Director, Defense Health Agency determines appropriate.

(vi) * * *

(D) Medically necessary vitamins used for the management of a covered disease or condition pursuant to a prescription, order, or recommendation of a TRICARE authorized provider acting within the provider's scope of license/certificate of practice. For purposes of this paragraph (d)(3)(vi)(D), the term “covered disease or condition” means:

(1) Inborn errors of metabolism;

(2) Medical conditions of malabsorption;

(3) Pathologies of the alimentary tract or the gastrointestinal tract;

(4) A neurological or physiological condition;

(5) Pregnancy in relation to prenatal vitamins, with the limitation the prenatal vitamins that require a prescription in the United States may be covered for prenatal care only;

(6) Such other disease or conditions the Director, Defense Health Agency determines appropriate.

(e) * * *

(28) * * *

(iv) Health promotion and disease prevention visits (which may include all of the services provided pursuant to § 199.17(f)(2)) for beneficiaries 6 years of age or older may be provided in connection with immunizations and cancer screening examinations authorized by paragraphs (e)(28)(i) and (ii) of this section).

(v) Breastfeeding support, supplies (including breast pumps and associated equipment), and counseling.

(f) * * *

(13) Special transition rule for the last quarter of calendar year 2017. In order to transition deductibles and catastrophic caps from a fiscal year basis to a calendar year basis, the deductible amount and the catastrophic cap amount specified in paragraph (f) of this section will be applicable to the 15-month period of October 1, 2016 through December 31, 2017.

(g) * * *

(39) Counseling. Educational, vocational, non-medical nutritional counseling, counseling for socioeconomic purposes, stress management, and/or lifestyle modification purposes, except the following are not excluded:

(v) Medical nutritional therapy (also referred to as medical nutritional counseling) required in the administration of the medically necessary foods, services and supplies authorized in paragraph (d)(3)(iii)(B) of this section, medically necessary vitamins authorized in paragraph (d)(3)(vi)(D) of this section, or when medically necessary for other authorized covered services.

(57) Food, food substitutes. Food, food substitutes, vitamins, or other nutritional supplements, including those related to prenatal care, except as authorized in paragraphs (d)(3)(iii)(B) and (d)(3)(vi)(D) of this section.

4. Section 199.5 is amended by: a. Removing the words “fiscal year” everywhere they appear and adding in their place the words “program year” in paragraphs (c)(7)(iii), (f)(3), (g)(2)(i), and (h)(3)(v)(A); and b. Adding paragraph (a)(3).

The addition reads as follows:

§ 199.5 TRICARE Extended Health Care Option (ECHO).

(a) * * *

(3) The Government's cost-share for ECHO or ECHO home health benefits during any program year is limited as stated in this section. In order to transition the program year from a fiscal year to a calendar year basis, the Government's annual cost-share limitation specified in paragraph (f) of this section shall be prorated for the last quarter of calendar year 2018 as authorized by 10 U.S.C. 1079(f)(2)(A).

5. Section 199.6 is amended by revising paragraphs (c)(3)(iii)(L) and (M) to read as follows:
§ 199.6 TRICARE-authorized providers.

(c) * * *

(3) * * *

(iii) * * *

(L) Nutritionist. The nutritionist must be licensed by the State in which the care is provided and must be under the supervision of a physician who is overseeing the episode of treatment or the covered program of services.

(M) Registered dietician. The dietician must be licensed by the State in which the care is provided and must be under the supervision of a physician who is overseeing the episode of treatment or the covered program of services.

§ 199.7 [Amended]
6. Section 199.7(a)(6) is amended by removing the words “fiscal year” everywhere they appear and adding in their place the words “calendar year”.
§ 199.8 [Amended]
7. Section 199.8(d)(1)(v) is amended by removing “Sec. 199.4(f)(10)” and adding in its place “§ 199.4(f)(10)” and removing the words “fiscal year” and adding in their place the words “calendar year”. 8. Section 199.11 is amended by revising paragraph (a) to read as follows:
§ 199.11 Overpayments recovery.

(a) General. Actions to recover overpayments arise when the government has a right to recover money, funds, or property from any person, partnership, association, corporation, governmental body or other legal entity, foreign or domestic, except another Federal agency, because of an erroneous payment of benefits under both CHAMPUS and the TRICARE program under this part. The term “Civilian Health and Medical Program of the Uniformed Services” (CHAMPUS) is defined in 10 U.S.C. 1072(2), referred to as the CHAMPUS basic program. Prior to January 1, 2018, the term “TRICARE program” referred to the triple-option of health benefits known as TRICARE Prime, TRICARE Extra, and TRICARE Standard. Specifically, TRICARE Standard was the TRICARE program under which the basic program of health care benefits generally referred to as CHAMPUS was made available to eligible beneficiaries under this Part 199. Effective January 1, 2018, the term “TRICARE program” is defined in 10 U.S.C. 1072(2) and includes TRICARE Prime, TRICARE Select and TRICARE for Life. It is the purpose of this section to prescribe procedures for investigation, determination, assertion, collection, compromise, waiver and termination of claims in favor of the United States for erroneous benefit payments arising out of the administration CHAMPUS and the TRICARE program. For the purpose of this section, references herein to TRICARE beneficiaries, claims, benefits, payments, or appeals shall include CHAMPUS beneficiaries, claims, benefits, payments, or appeals. A claim against several joint debtors arising from a single incident or transaction is considered one claim. The Director, or a designee, may pursue collection against all joint debtors and is not required to allocate the burden of payment between debtors.

9. Section 199.17 is revised to read as follows.
§ 199.17 TRICARE program.

(a) Establishment. The TRICARE program is established for the purpose of implementing a comprehensive managed health care program for the delivery and financing of health care services in the Military Health System.

(1) Purpose. The TRICARE program implements a number of improvements primarily through modernized managed care support contracts that include special arrangements with civilian sector health care providers and better coordination between military medical treatment facilities (MTFs) and these civilian providers to deliver an integrated, health care delivery system that provides beneficiaries with access to high quality healthcare. Implementation of these improvements, to include enhanced access, improved health outcomes, increased efficiencies and elimination of waste, in addition to improving and maintaining operational medical force readiness, includes adoption of special rules and procedures not ordinarily followed under CHAMPUS or MTF requirements. This section establishes those special rules and procedures.

(2) Statutory authority. Many of the provisions of this section are authorized by statutory authorities other than those which authorize the usual operation of the CHAMPUS program, especially 10 U.S.C. 1079 and 1086. The TRICARE program also relies upon other available statutory authorities, including 10 U.S.C. 1075 (TRICARE Select), 10 U.S.C. 1075a (TRICARE Prime cost sharing), 10 U.S.C. 1095f (referrals and pre-authorizations under TRICARE Prime), 10 U.S.C. 1099 (health care enrollment system), 10 U.S.C. 1097 (contracts for medical care for retirees, dependents and survivors: Alternative delivery of health care), and 10 U.S.C. 1096 (resource sharing agreements).

(3) Scope of the program. The TRICARE program is applicable to all the uniformed services. TRICARE Select and TRICARE-for-Life shall be available in all areas, including overseas as authorized in paragraph (u) of this section. The geographic availability of TRICARE Prime is generally limited as provided in this section. The Assistant Secretary of Defense (Health Affairs) may also authorize modifications to TRICARE program rules and procedures as may be appropriate to the area involved.

(4) Rules and procedures affected. Much of this section relates to rules and procedures applicable to the delivery and financing of health care services provided by civilian providers outside military treatment facilities. This section provides that certain rules, procedures, rights and obligations set forth elsewhere in this part (and usually applicable to CHAMPUS) are different under the TRICARE program. To the extent that TRICARE program rules, procedures, rights and obligations set forth in this section are not different from or otherwise in conflict with those set forth elsewhere in this part as applicable to CHAMPUS, the CHAMPUS provisions are incorporated into the TRICARE program. In addition, some rules, procedures, rights and obligations relating to health care services in military treatment facilities are also different under the TRICARE program. In such cases, provisions of this section take precedence and are binding.

(5) Implementation based on local action. The TRICARE program is not automatically implemented in all respects in all areas where it is potentially applicable. Therefore, not all provisions of this section are automatically implemented. Rather, implementation of the TRICARE program and this section requires an official action by the Director, Defense Health Agency. Public notice of the initiation of portions of the TRICARE program will be achieved through appropriate communication and media methods and by way of an official announcement by the Director identifying the military medical treatment facility catchment area or other geographical area covered.

(6) Major features of the TRICARE program. The major features of the TRICARE program, described in this section, include the following:

(i) Beneficiary categories. Under the TRICARE program, health care beneficiaries are generally classified into one of several categories:

(A) Active duty members, who are covered by 10 U.S.C. 1074(a).

(B) Active duty family members, who are beneficiaries covered by 10 U.S.C. 1079 (also referred to in this section as “active duty family category”).

(C) Retirees and their family members (also referred to in this section as “retired category”), who are beneficiaries covered by 10 U.S.C. 1086(c) other than those beneficiaries eligible for Medicare Part A.

(D) Medicare eligible retirees and Medicare eligible retiree family members who are beneficiaries covered by 10 U.S.C. 1086(d) as each become individually eligible for Medicare Part A and enroll in Medicare Part B.

(E) Military treatment facility (MTF) only beneficiaries are beneficiaries eligible for health care services in military treatment facilities, but not eligible for a TRICARE plan covering non-MTF care.

(ii) Health plans available. The major TRICARE health plans are as follows:

(A) TRICARE Prime. “TRICARE Prime” is a health maintenance organization (HMO)-like program. It generally features use of military treatment facilities and substantially reduced out-of-pocket costs for care provided outside MTFs. Beneficiaries generally agree to use military treatment facilities and designated civilian provider networks and to follow certain managed care rules and procedures. The primary purpose of TRICARE Prime is to support the effective operation of an MTF, which exists to support the medical readiness of the armed forces and the readiness of medical personnel. TRICARE Prime will be offered in areas where the Director determines that it is appropriate to support the effective operation of one or more MTFs.

(B) TRICARE Select. “TRICARE Select” is a self-managed, preferred provider organization (PPO) program. It allows beneficiaries to use the TRICARE provider civilian network, with reduced out-of-pocket costs compared to care from non-network providers, as well as military treatment facilities (where they exist and when space is available). TRICARE Select enrollees will not have restrictions on their freedom of choice with respect to authorized health care providers. However, when a TRICARE Select beneficiary receives services covered under the basic program from an authorized health care provider who is not part of the TRICARE provider network that care is covered by TRICARE but is subject to higher cost sharing amounts for “out-of-network” care. Those amounts are the same as under the basic program under § 199.4.

(C) TRICARE for Life. “TRICARE for Life” is the Medicare wraparound coverage plan under 10 U.S.C. 1086(d). Rules applicable to this plan are unaffected by this section; they are generally set forth in §§ 199.3 (Eligibility), 199.4 (Basic Program Benefits), and 199.8 (Double Coverage).

(D) TRICARE Standard. “TRICARE Standard” generally referred to the basic CHAMPUS program of benefits under § 199.4. While the law required termination of TRICARE Standard as a distinct TRICARE plan December 31, 2017, the CHAMPUS basic program benefits under § 199.4 continues as the baseline of benefits common to the TRICARE Prime and TRICARE Select plans.

(iii) Comprehensive enrollment system. The TRICARE program includes a comprehensive enrollment system for all categories of beneficiaries except TRICARE-for-Life beneficiaries. When eligibility for enrollment for TRICARE Prime and/or TRICARE Select exists, a beneficiary must enroll in one of the plans. Refer to paragraph (o) of this section for TRICARE program enrollment procedures.

(7) Preemption of State laws. (i) Pursuant to 10 U.S.C. 1103 the Department of Defense has determined that in the administration of 10 U.S.C. chapter 55, preemption of State and local laws relating to health insurance, prepaid health plans, or other health care delivery or financing methods is necessary to achieve important Federal interests, including but not limited to the assurance of uniform national health programs for military families and the operation of such programs at the lowest possible cost to the Department of Defense, that have a direct and substantial effect on the conduct of military affairs and national security policy of the United States.

(ii) Based on the determination set forth in paragraph (a)(7)(i) of this section, any State or local law relating to health insurance, prepaid health plans, or other health care delivery or financing methods is preempted and does not apply in connection with TRICARE regional contracts. Any such law, or regulation pursuant to such law, is without any force or effect, and State or local governments have no legal authority to enforce them in relation to the TRICARE regional contracts. (However, the Department of Defense may by contract establish legal obligations of the part of TRICARE contractors to conform with requirements similar or identical to requirements of State or local laws or regulations).

(iii) The preemption of State and local laws set forth in paragraph (a)(7)(ii) of this section includes State and local laws imposing premium taxes on health or dental insurance carriers or underwriters or other plan managers, or similar taxes on such entities. Such laws are laws relating to health insurance, prepaid health plans, or other health care delivery or financing methods, within the meaning of the statutes identified in paragraph (a)(7)(i) of this section. Preemption, however, does not apply to taxes, fees, or other payments on net income or profit realized by such entities in the conduct of business relating to DoD health services contracts, if those taxes, fees or other payments are applicable to a broad range of business activity. For purposes of assessing the effect of Federal preemption of State and local taxes and fees in connection with DoD health and dental services contracts, interpretations shall be consistent with those applicable to the Federal Employees Health Benefits Program under 5 U.S.C. 8909(f).

(b) TRICARE Prime and TRICARE Select health plans in general. The two primary plans for beneficiaries in the active duty family category and the retired category (which does not include most Medicare-eligible retirees/dependents) are TRICARE Prime and TRICARE Select. This paragraph (b) further describes the TRICARE Prime and TRICARE Select health plans.

(1) TRICARE Prime. TRICARE Prime is a managed care option that provides enhanced medical services to beneficiaries at reduced cost-sharing amounts for beneficiaries whose care is managed by a designated primary care manager and provided by an MTF or network provider. TRICARE Prime is offered in a location in which an MTF is located (other than a facility limited to members of the armed forces) that has been designated by the Director as a Prime Service Area. In addition, where TRICARE Prime is offered it may be limited to active duty family members if the Director determines it is not practicable to offer TRICARE Prime to retired category beneficiaries. TRICARE Prime is not offered in areas where the Director determines it is impracticable. If TRICARE Prime is not offered in a geographical area, certain active duty family members residing in the area may be eligible to enroll in TRICARE Prime Remote program under paragraph (g) of this section.

(2) TRICARE Select. TRICARE Select is the self-managed option under which beneficiaries may receive authorized basic program benefits from any TRICARE authorized provider. The TRICARE Select health care plan also provides enhanced program benefits to beneficiaries with access to a preferred-provider network with broad geographic availability within the United States at reduced out-of-pocket expenses. However, when a beneficiary receives services from an authorized health care provider who is not part of the TRICARE provider network, only basic program benefits (not enhanced Select care) are covered by TRICARE and the beneficiary is subject to higher cost sharing amounts for “out-of-network” care. Those amounts are the same as under the basic program under § 199.4.

(c) Eligibility for enrollment in TRICARE Prime and TRICARE Select. Beneficiaries in the active duty family category and the retired category are eligible to enroll in TRICARE Prime and/or TRICARE Select as outlined in this paragraph (c). A retiree or retiree family member who becomes eligible for Medicare Part A is not eligible to enroll in TRICARE Select; however, as provided in this paragraph (c), some Medicare eligible retirees/family members may be allowed to enroll in TRICARE Prime where available. In general, when a retiree or retiree family member becomes individually eligible for Medicare Part A and enrolls in Medicare Part B, he/she is automatically eligible for TRICARE-for-Life and is required to enroll in the Defense Enrollment Eligibility Reporting System (DEERS) to verify eligibility. Further, some rules and procedures are different for dependents of active duty members and retirees, dependents, and survivors.

(1) Active duty members. Active duty members are required to enroll in Prime where it is offered. Active duty members shall have first priority for enrollment in Prime.

(2) Dependents of active duty members. Beneficiaries in the active duty family member category are eligible to enroll in Prime (where offered) or Select.

(3) Survivors of deceased members. (i) The surviving spouse of a member who dies while on active duty for a period of more than 30 days is eligible to enroll in Prime (where offered) or Select for a 3 year period beginning on the date of the member's death under the same rules and provisions as dependents of active duty members.

(ii) A dependent child or unmarried person (as described in § 199.3(b)(2)(ii) or (iv)) of a member who dies while on active duty for a period of more than 30 days whose death occurred on or after October 7, 2001, is eligible to enroll in Prime (where offered) or Select and is subject to the same rules and provisions of dependents of active duty members for a period of three years from the date the active duty sponsor dies or until the surviving eligible dependent:

(A) Attains 21 years of age; or

(B) Attains 23 years of age or ceases to pursue a full-time course of study prior to attaining 23 years of age, if, at 21 years of age, the eligible surviving dependent is enrolled in a full-time course of study in a secondary school or in a full-time course of study in an institution of higher education approved by the Secretary of Defense and was, at the time of the sponsor's death, in fact dependent on the member for over one-half of such dependent's support.

(4) Retirees, dependents of retirees, and survivors (other than survivors of deceased members covered under paragraph (c)(3) of this section). All retirees, dependents of retirees, and survivors who are not eligible for Medicare Part A are eligible to enroll in Select. Additionally, retirees, dependents of retirees, and survivors who are not eligible for Medicare Part A based on age are also eligible to enroll in TRICARE Prime in locations where it is offered and where an MTF has, in the judgment of the Director, a significant number of health care providers, including specialty care providers, and sufficient capability to support the efficient operation of TRICARE Prime for projected retired beneficiary enrollees in that location.

(d) Health benefits under TRICARE Prime—(1) Military treatment facility (MTF) care—(i) In general. All participants in Prime are eligible to receive care in military treatment facilities. Participants in Prime will be given priority for such care over other beneficiaries. Among the following beneficiary groups, access priority for care in military treatment facilities where TRICARE is implemented as follows:

(A) Active duty service members;

(B) Active duty service members' dependents and survivors of service members who died on active duty, who are enrolled in TRICARE Prime;

(C) Retirees, their dependents and survivors, who are enrolled in TRICARE Prime;

(D) Active duty service members' dependents and survivors of deceased members, who are not enrolled in TRICARE Prime; and

(E) Retirees, their dependents and survivors who are not enrolled in TRICARE Prime. For purposes of this paragraph (d)(1), survivors of members who died while on active duty are considered as among dependents of active duty service members.

(ii) Special provisions. Enrollment in Prime does not affect access priority for care in military treatment facilities for several miscellaneous beneficiary groups and special circumstances. Those include Secretarial designees, NATO and other foreign military personnel and dependents authorized care through international agreements, civilian employees under workers' compensation programs or under safety programs, members on the Temporary Disability Retired List (for statutorily required periodic medical examinations), members of the reserve components not on active duty (for covered medical services), military prisoners, active duty dependents unable to enroll in Prime and temporarily away from place of residence, and others as designated by the Assistant Secretary of Defense (Health Affairs). Additional exceptions to the normal Prime enrollment access priority rules may be granted for other categories of individuals, eligible for treatment in the MTF, whose access to care is necessary to provide an adequate clinical case mix to support graduate medical education programs or readiness-related medical skills sustainment activities, to the extent approved by the ASD(HA).

(2) Non-MTF care for active duty members. Under Prime, non-MTF care needed by active duty members continues to be arranged under the supplemental care program and subject to the rules and procedures of that program, including those set forth in § 199.16.

(3) Civilian sector Prime benefits. Health benefits for Prime enrollees for care received from civilian providers are those under § 199.4 and the additional benefits identified in paragraph (f) of this section.

(e) Health benefits under the TRICARE Select plan—(1) Civilian sector care. The health benefits under TRICARE Select for enrolled beneficiaries received from civilian providers are those under § 199.4, and, in addition, those in paragraph (f) of this section when received from a civilian network provider.

(2) Military treatment facility (MTF) care. All TRICARE Select enrolled beneficiaries continue to be eligible to receive care in military treatment facilities on a space available basis.

(f) Benefits under TRICARE Prime and TRICARE Select—(1) In general. Except as specifically provided or authorized by this section, all benefits provided, and benefit limitations established, pursuant to this part, shall apply to TRICARE Prime and TRICARE Select.

(2) Preventive care services. Certain preventive care services not normally provided as part of basic program benefits under § 199.4 are covered benefits when provided to Prime or Select enrollees by providers in the civilian provider network. Such additional services are authorized under 10 U.S.C. 1097, including preventive care services not part of the entitlement under 10 U.S.C. 1074d and services that would otherwise be excluded under 10 U.S.C. 1079(a)(10). Other authority for such additional services includes section 706 of the National Defense Authorization Act for Fiscal Year 2017. The specific set of such services shall be established by the Director and announced annually before the open season enrollment period. Standards for preventive care services shall be developed based on guidelines from the U.S. Department of Health and Human Services. Such standards shall establish a specific schedule, including frequency or age specifications for services that may include, but are not limited to:

(i) Laboratory and imaging tests, including blood lead, rubella, cholesterol, fecal occult blood testing, and mammography;

(ii) Cancer screenings (including cervical, breast, lung, prostate, and colon cancer screenings);

(iii) Immunizations;

(iv) Periodic health promotion and disease prevention exams;

(v) Blood pressure screening;

(vi) Hearing exams;

(vii) Sigmoidoscopy or colonoscopy;

(viii) Serologic screening; and

(ix) Appropriate education and counseling services. The exact services offered shall be established under uniform standards established by the Director.

(3) Treatment of obesity. Under the authority of 10 U.S.C. 1097 and sections 706 and 729 of the National Defense Authorization Act for Fiscal Year 2017, notwithstanding 10 U.S.C. 1079(a)(10), treatment of obesity is covered under TRICARE Prime and TRICARE Select even if it is the sole or major condition treated. Such services must be provided by a TRICARE network provider and be medically necessary and appropriate in the context of the particular patient's treatment.

(4) High value services. Under the authority of 10 U.S.C. 1097 and other authority, including sections 706 and 729 of the National Defense Authorization Act for Fiscal Year 2017, for purposes of improving population-based health outcomes and incentivizing medical intervention programs to address chronic diseases and other conditions and healthy lifestyle interventions, the Director may waive or reduce cost sharing requirements for TRICARE Prime and TRICARE Select enrollees for care received from network providers for certain health care services designated for this purpose. The specific services designated for this purpose will be those the Director determines provide especially high value in terms of better health outcomes. The specific services affected for any plan year will be announced by the Director prior to the open season enrollment period for that plan year. Services affected by actions of the Director under paragraph (f)(5) of this section may be associated with actions taken for high value medications under § 199.21(j)(3) for select pharmaceutical agents to be cost-shared at a reduced or zero dollar rate.

(5) Other services. In addition to services provided pursuant to paragraphs (f)(2) through (4) of this section, other benefit enhancements may be added and other benefit restrictions may be waived or relaxed in connection with health care services provided to TRICARE Prime and TRICARE Select enrollees. Any such other enhancements or changes must be approved by the Director based on uniform standards.

(g) TRICARE Prime Remote for Active Duty Family Members—(1) In general. In geographic areas in which TRICARE Prime is not offered and in which eligible family members reside, there is offered under 10 U.S.C. 1079(p) TRICARE Prime Remote for Active Duty Family Members as an enrollment option. TRICARE Prime Remote for Active Duty Family Members (TPRADFM) will generally follow the rules and procedures of TRICARE Prime, except as provided in this paragraph (g) and otherwise except to the extent the Director determines them to be infeasible because of the remote area.

(2) Active duty family member. For purposes of this paragraph (g), the term “active duty family member” means one of the following dependents of an active duty member of the Uniformed Services:

(i) Spouse, child, or unmarried person, as defined in § 199.3(b)(2)(i), (ii), or (iv);

(ii) For a 3-year period, the surviving spouse of a member who dies while on active duty for a period of more than 30 days whose death occurred on or after October 7, 2001; and

(iii) The surviving dependent child or unmarried person, as defined in § 199.3(b)(2)(ii) or (iv), of a member who dies while on active duty for a period of more than 30 days whose death occurred on or after October 7, 2001. Active duty family member status is for a period of 3 years from the date the active duty sponsor dies or until the surviving eligible dependent:

(A) Attains 21 years of age; or

(B) Attains 23 years of age or ceases to pursue a full-time course of study prior to attaining 23 years of age, if, at 21 years of age, the eligible surviving dependent is enrolled in a full-time course of study in a secondary school or in a full-time course of study in an institution of higher education approved by the Secretary of Defense and was, at the time of the sponsor's death, in fact dependent on the member for over one-half of such dependent's support.

(3) Eligibility. (i) An active duty family member is eligible for TRICARE Prime Remote for Active Duty Family Members if he or she is eligible for CHAMPUS and, on or after December 2, 2003, meets the criteria of paragraphs (g)(3)(i)(A) and (B) or paragraph (g)(3)(i)(C) of this section or on or after October 7, 2001, meets the criteria of paragraph (g)(3)(i)(D) or (E) of this section:

(A) The family member's active duty sponsor has been assigned permanent duty as a recruiter; as an instructor at an educational institution, an administrator of a program, or to provide administrative services in support of a program of instruction for the Reserve Officers' Training Corps; as a full-time adviser to a unit of a reserve component; or any other permanent duty designated by the Director that the Director determines is more than 50 miles, or approximately one hour driving time, from the nearest military treatment facility that is adequate to provide care.

(B) The family members and active duty sponsor, pursuant to the assignment of duty described in paragraph (g)(3)(i)(A) of this section, reside at a location designated by the Director, that the Director determines is more than 50 miles, or approximately one hour driving time, from the nearest military medical treatment facility adequate to provide care.

(C) The family member, having resided together with the active duty sponsor while the sponsor served in an assignment described in paragraph (g)(3)(i)(A) of this section, continues to reside at the same location after the sponsor relocates without the family member pursuant to orders for a permanent change of duty station, and the orders do not authorize dependents to accompany the sponsor to the new duty station at the expense of the United States.

(D) For a 3 year period, the surviving spouse of a member who dies while on active duty for a period of more than 30 days whose death occurred on or after October 7, 2001.

(E) The surviving dependent child or unmarried person as defined in § 199.3(b)(2)(ii) or (iv), of a member who dies while on active duty for a period of more than 30 days whose death occurred on or after October 7, 2001, for three years from the date the active duty sponsor dies or until the surviving eligible dependent:

(1) Attains 21 years of age; or

(2) Attains 23 years of age or ceases to pursue a full-time course of study prior to attaining 23 years of age, if, at 21 years of age, the eligible surviving dependent is enrolled in a full-time course of study in a secondary school or in a full-time course of study in an institution of higher education approved by the Secretary of Defense and was, at the time of the sponsor's death, in fact dependent on the member for over one-half of such dependent's support.

(ii) A family member who is a dependent of a reserve component member is eligible for TRICARE Prime Remote for Active Duty Family Members if he or she is eligible for CHAMPUS and meets all of the following additional criteria:

(A) The reserve component member has been ordered to active duty for a period of more than 30 days.

(B) The family member resides with the member.

(C) The Director, determines the residence of the reserve component member is more than 50 miles, or approximately one hour driving time, from the nearest military medical treatment facility that is adequate to provide care.

(D) “Resides with” is defined as the TRICARE Prime Remote residence address at which the family resides with the activated reservist upon activation.

(4) Enrollment. TRICARE Prime Remote for Active Duty Family Members requires enrollment under procedures set forth in paragraph (o) of this section or as otherwise established by the Director.

(5) Health care management requirements under TRICARE Prime Remote for Active Duty Family Members. The additional health care management requirements applicable to Prime enrollees under paragraph (n) of this section are applicable under TRICARE Prime Remote for Active Duty Family Members unless the Director determines they are infeasible because of the particular remote location. Enrollees will be given notice of the applicable management requirements in their remote location.

(6) Cost sharing. Beneficiary cost sharing requirements under TRICARE Prime Remote for Active Duty Family Members are the same as those under TRICARE Prime under paragraph (m) of this section, except that the higher point-of-service option cost sharing and deductible shall not apply to routine primary health care services in cases in which, because of the remote location, the beneficiary is not assigned a primary care manager or the Director determines that care from a TRICARE network provider is not available within the TRICARE access standards under paragraph (p)(5) of this section. The higher point-of-service option cost sharing and deductible shall apply to specialty health care services received by any TRICARE Prime Remote for Active Duty Family Members enrollee unless an appropriate referral/preauthorization is obtained as required by paragraph (n) of this section under TRICARE Prime. In the case of pharmacy services under § 199.21, where the Director determines that no TRICARE network retail pharmacy has been established within a reasonable distance of the residence of the TRICARE Prime Remote for Active Duty Family Members enrollee, cost sharing applicable to TRICARE network retail pharmacies will be applicable to all CHAMPUS eligible pharmacies in the remote area.

(h) Resource sharing agreements. Under the TRICARE program, any military medical treatment facility (MTF) commander may establish resource sharing agreements with the applicable managed care support contractor for the purpose of providing for the sharing of resources between the two parties. Internal resource sharing and external resource sharing agreements are authorized. The provisions of this paragraph (h) shall apply to resource sharing agreements under the TRICARE program.

(1) In connection with internal resource sharing agreements, beneficiary cost sharing requirements shall be the same as those applicable to health care services provided in facilities of the uniformed services.

(2) Under internal resource sharing agreements, the double coverage requirements of § 199.8 shall be replaced by the Third Party Collection procedures of 32 CFR part 220, to the extent permissible under such part. In such a case, payments made to a resource sharing agreement provider through the TRICARE managed care support contractor shall be deemed to be payments by the MTF concerned.

(3) Under internal or external resource sharing agreements, the commander of the MTF concerned may authorize the provision of services, pursuant to the agreement, to Medicare-eligible beneficiaries, if such services are not reimbursable by Medicare, and if the commander determines that this will promote the most cost-effective provision of services under the TRICARE program.

(4) Under external resource sharing agreements, there is no cost sharing applicable to services provided by military facility personnel. Cost sharing for non-MTF institutional and related ancillary charges shall be as applicable to services provided under TRICARE Prime or TRICARE Select, as appropriate.

(i) General quality assurance, utilization review, and preauthorization requirements under the TRICARE program. All quality assurance, utilization review, and preauthorization requirements for the basic CHAMPUS program, as set forth in this part (see especially applicable provisions in §§ 199.4 and 199.15), are applicable to Prime and Select except as provided in this chapter. Pursuant to an agreement between a military medical treatment facility and TRICARE managed care support contractor, quality assurance, utilization review, and preauthorization requirements and procedures applicable to health care services outside the military medical treatment facility may be made applicable, in whole or in part, to health care services inside the military medical treatment facility.

(j) Pharmacy services. Pharmacy services under Prime and Select are as provided in the Pharmacy Benefits Program (see § 199.21).

(k) Design of cost sharing structures under TRICARE Prime and TRICARE Select—(1) In general. The design of the cost sharing structures under TRICARE Prime and TRICARE Select includes several major factors: beneficiary category (e.g., active duty family member category or retired category, and there are some special rules for survivors of active duty deceased sponsors and medically retired members and their dependents); date of initial military affiliation (i.e., before or on or after January 1, 2018), category of health care service received, and network or non-network status of the provider.

(2) Categories of health care services. This paragraph (k)(2) describes the categories of health care services relevant to determining copayment amounts.

(i) Preventive care visits. These are outpatient visits and related services described in paragraph (f)(2) of this section. There are no cost sharing requirements for preventive care listed under §§ 199.4(e)(28)(i) through (iv) and 199.17(f)(2). Beneficiaries shall not be required to pay any portion of the cost of these preventive services even if the beneficiary has not satisfied any applicable deductible for that year.

(ii) Primary care outpatient visits. These are outpatient visits, not occurring in an ER or urgent care center, with the following provider specialties:

(A) General Practice.

(B) Family Practice.

(C) Internal Medicine.

(D) OB/GYN.

(E) Pediatrics.

(F) Physician's Assistant.

(G) Nurse Practitioner.

(H) Nurse Midwife.

(iii) Specialty care outpatient visits. This category applies to outpatient care provided by provider specialties other than those listed under primary care outpatient visits under paragraph (k)(2)(ii) of this section and not specifically included in one of the other categories of care (e.g., emergency room visits etc.) under paragraph (k)(2) of this section. This category also includes partial hospitalization services, intensive outpatient treatment, and opioid treatment program services. The per visit fee shall be applied on a per day basis on days services are received, with the exception of opioid treatment program services reimbursed in accordance with § 199.14(a)(2)(ix)(A)(3)(i) which per visit fee will apply on a weekly basis.

(iv) Emergency room visits.

(v) Urgent care center visits.

(vi) Ambulance services. This is for ground ambulance services.

(vii) Ambulatory surgery. This is for facility-based outpatient ambulatory surgery services.

(viii) Inpatient hospital admissions.

(ix) Skilled nursing facility or rehabilitation facility admissions. This category includes a residential treatment center, or substance use disorder rehabilitation facility residential treatment program.

(x) Durable medical equipment, prosthetic devices, and other authorized supplies.

(xi) Outpatient prescription pharmaceuticals. These are addressed in § 199.21.

(3) Beneficiary categories further subdivided. For purposes of both TRICARE Prime and TRICARE Select, enrollment fees and cost sharing by beneficiary category (e.g., active duty family member category or retired category) are further differentiated between two groups:

(i) Group A consists of Prime or Select enrollees whose sponsor originally enlisted or was appointed in a uniformed service before January 1, 2018.

(ii) Group B consists of Prime or Select enrollees whose sponsor originally enlisted or was appointed in a uniformed service on or after January 1, 2018.

(l) Enrollment fees and cost sharing (including deductibles and catastrophic cap) amounts. This paragraph (l) provides enrollment fees and cost sharing requirements applicable to TRICARE Prime and TRICARE Select enrollees.

(1) Enrollment fee and cost sharing under TRICARE Prime. (i) For Group A enrollees:

(A) There is no enrollment fee for the active duty family member category.

(B) The retired category enrollment fee in calendar year 2018 is equal to the Prime enrollment fee for fiscal year 2017, indexed to calendar year 2018 and thereafter in accordance with 10 U.S.C. 1097. The Assistant Secretary of Defense (Health Affairs) may exempt survivors of active duty deceased sponsors and medically retired Uniformed Services members and their dependents from future increases in enrollment fees. The Assistant Secretary of Defense (Health Affairs) may also waive the enrollment fee requirements for Medicare-eligible beneficiaries.

(C) The cost sharing amounts are established annually in connection with the open season enrollment period. An amount is established for each category of care identified in paragraph (k)(2) of this section, taking into account all applicable statutory provisions, including 10 U.S.C. chapter 55. The amount for each category of care may not exceed the amount for Group B as set forth in 10 U.S.C. 1075a.

(D) The catastrophic cap is $1,000 for active duty families and $3,000 for retired category families.

(ii) For Group B enrollees, the enrollment fee, catastrophic cap and cost sharing amounts are as set forth in 10 U.S.C. 1075a.

(iii) For both Group A and Group B, for health care services obtained by a Prime enrollee but not obtained in accordance with the rules and procedures of Prime (e.g. failure to obtain a primary care manager referral when such a referral is required or seeing a non-network provider when Prime rules require use of a network provider and one is available) will not be paid under Prime rules but may be covered by the point-of-service option. For services obtained under the point-of-service option, the deductible is $300 per person and $600 per family. The beneficiary cost share is 50 percent of the allowable charges for inpatient and outpatient care, after the deductible. Point-of-service charges do not count against the annual catastrophic cap.

(2) Enrollment fee and cost sharing under TRICARE Select. (i) For Group A enrollees:

(A) The enrollment fee in calendar years 2018 through 2020 is zero and the catastrophic cap is as provided in 10 U.S.C. 1079 or 1086. The enrollment fee and catastrophic cap in 2021 and thereafter for certain beneficiaries in the retired category is as provided in 10 U.S.C. 1075(e), except the enrollment fee and catastrophic cap adjustment shall not apply to survivors of active duty deceased sponsors and medically retired Uniformed Services members and their dependents.

(B) The cost sharing amounts for network care for Group A enrollees are calculated for each category of care described in paragraph (k)(2) of this section by taking into account all applicable statutory provisions, including 10 U.S.C. chapter 55, as if TRICARE Extra and Standard programs were still being implemented. When determined practicable, including efficiency and effectiveness in administration, the amounts established are converted to fixed dollar amounts for each category of care for which a fixed dollar amount is established by 10 U.S.C. 1075. When determined not to be practicable, as in the categories of care including ambulatory surgery, inpatient admissions, and inpatient skilled nursing/rehabilitation admissions, the calculated cost-sharing amounts are not converted to fixed dollar amounts. The fixed dollar amount for each category is set prospectively for each calendar year as the amount (rounded down to the nearest dollar amount) equal to 15% for enrollees in the active duty family beneficiary category or 20% for enrollees in the retired beneficiary category of the projected average allowable payment amount for each category of care during the year, as estimated by the Director. The projected average allowable payment amount for primary care (including urgent care) and specialty care outpatient appointments include payments for ancillary services (e.g., laboratory and radiology services) that are provided in connection with the respective outpatient visit. As such, there is no separate cost sharing for these ancillary services.

(C) The cost share for care received from non-network providers is as provided in § 199.4.

(D) The annual deductible amount is as provided in 10 U.S.C. 1079 or 1086.

(ii) For Group B enrollees, the enrollment fee, annual deductible for services received while in an outpatient status, catastrophic cap and cost sharing amounts are as provided in 10 U.S.C. 1075 and as consistent with this section.

(3) Special cost-sharing rules. (A) There is no separate cost-sharing applicable to ancillary health care services obtained in conjunction with an outpatient primary or specialty care visit under TRICARE Prime or from network providers under TRICARE Select.

(B) Cost-sharing for maternity care services shall be determined in accordance with § 199.4(e)(16).

(4) Special transition rule for the last quarter of calendar year 2017. In order to transition enrollment fees, deductibles, and catastrophic caps from a fiscal year basis to a calendar year basis, the following special rules apply for the last quarter of calendar year 2017:

(A) A Prime enrollee's enrollment fee for the quarter is one-fourth of the enrollment fee for fiscal year 2017.

(B) The deductible amount and the catastrophic cap amount for fiscal year 2017 will be applicable to the 15-month period of October 1, 2016 through December 31, 2017.

(m) Limit on out-of-pocket costs under TRICARE Prime and TRICARE Select. For the purpose of this paragraph (m), out-of-pocket costs means all payments required of beneficiaries under paragraph (l) of this section, including enrollment fees, deductibles, and cost-sharing amounts, with the exception of point-of-service charges. In any case in which a family reaches their applicable catastrophic cap, all remaining payments that would have been required of the beneficiary under paragraph (l) of this section for authorized care, with the exception of applicable point-of-service charges pursuant to paragraph (l)(1)(iii) of this section, will be paid by the program for the remainder of that calendar year.

(n) Additional health care management requirements under TRICARE Prime. Prime has additional, special health care management requirements not applicable under TRICARE Select.

(1) Primary care manager. (i) All active duty members and Prime enrollees will be assigned a primary care manager pursuant to a system established by the Director, and consistent with the access standards in paragraph (p)(5)(i) of this section. The primary care manager may be an individual, physician, a group practice, a clinic, a treatment site, or other designation. The primary care manager may be part of the MTF or the Prime civilian provider network. The enrollee will be given the opportunity to register a preference for primary care manager from a list of choices provided by the Director. This preference will be entered on a TRICARE Prime enrollment form or similar document. Preference requests will be considered, but primary care manager assignments will be subject to availability under the MTF beneficiary category priority system under paragraph (d) of this section and subject to other operational requirements. (ii) Prime enrollees who are dependents of active duty members in pay grades E-1 through E-4 shall have priority over other active duty dependents for enrollment with MTF PCMs, subject to MTF capacity.

(2) Referral and preauthorization requirements. (i) Under TRICARE Prime there are certain procedures for referral and preauthorization.

(A) For the purpose of this paragraph (n)(2), referral addresses the issue of who will provide authorized health care services. In many cases, Prime beneficiaries will be referred by a primary care manager to a medical department of an MTF if the type of care needed is available at the MTF. In such a case, failure to adhere to that referral will result in the care being subject to point-of-service charges. In other cases, a referral may be to the civilian provider network, and again, point-of-service charges would apply to a failure to follow the referral.

(B) In contrast to referral, preauthorization addresses the issue of whether particular services may be covered by TRICARE, including whether they appear necessary and appropriate in the context of the patient's diagnosis and circumstances. A major purpose of preauthorization is to prevent surprises about coverage determinations, which are sometimes dependent on particular details regarding the patient's condition and circumstances. While TRICARE Prime has referral requirements that do not exist for TRICARE Select, TRICARE Select has some preauthorization requirements that do not exist for TRICARE Prime.

(ii) Except as otherwise provided in this paragraph (n)(2), a beneficiary enrolled in TRICARE Prime is required to obtain a referral for care through a designated primary care manager (or other authorized care coordinator) prior to obtaining care under the TRICARE program.

(iii) There is no referral requirement under paragraph (n)(2)(i) of this section in the following circumstances:

(A) In emergencies;

(B) For urgent care services for a certain number of visits per year (zero to unlimited), with the number specified by the Director and notice provided in connection with the open season enrollment period preceding the plan year; and

(C) In any other special circumstances identified by the Director, generally with notice provided in connection with the open season enrollment period for the plan year.

(iv) A primary care manager who believes a referral to a specialty care provider is medically necessary and appropriate need not obtain pre-authorization from the managed care support contractor before referring a patient to a network specialty care provider. Such preauthorization is only required with respect to a primary care manager's referral for:

(A) Inpatient hospitalization;

(B) Inpatient care at a skilled nursing facility;

(C) Inpatient care at a rehabilitation facility; and

(D) Inpatient care at a residential treatment facility.

(v) The restrictions in paragraph (n)(2)(iv) of this section on preauthorization requirements do not apply to any preauthorization requirements that are generally applicable under TRICARE, independent of TRICARE Prime referrals, such as:

(A) Under the Pharmacy Benefits Program under 10 U.S.C. 1074g and § 199.21.

(B) For laboratory and other ancillary services.

(C) Durable medical equipment.

(vi) The cost-sharing requirement for a beneficiary enrolled in TRICARE Prime who does not obtain a referral for care when it is required, including care from a non-network provider, is as provided in paragraph (l)(1)(iv) of this section concerning point-of-service care.

(vii) In the case of care for which preauthorization is not required under paragraph (n)(2)(iv) of this section, the Director may authorize a managed care support contractor to offer a voluntary pre-authorization program to enable beneficiaries and providers to confirm covered benefit status and/or medical necessity or to understand the criteria that will be used by the managed care support contractor to adjudicate the claim associated with the proposed care. A network provider may not be required to use such a program with respect to a referral.

(3) Restrictions on the use of providers. The requirements of this paragraph (n)(3) shall be applicable to health care utilization under TRICARE Prime, except in cases of emergency care and under point-of-service option (see paragraph (n)(4) of this section).

(i) Prime enrollees must obtain all primary health care from the primary care manager or from another provider to which the enrollee is referred by the primary care manager or otherwise authorized.

(ii) For any necessary specialty care and non-emergent inpatient care, the primary care manager or other authorized individual will assist in making an appropriate referral.

(iii) Though referrals for specialty care are generally the responsibility of the primary care managers, subject to discretion exercised by the TRICARE Regional Directors, and established in regional policy or memoranda of understanding, specialist providers may be permitted to refer patients for additional specialty consultation appointment services within the TRICARE contractor's network without prior authorization by primary care managers.

(iv) The following procedures will apply to health care referrals under TRICARE Prime:

(A) The first priority for referral for specialty care or inpatient care will be to the local MTF (or to any other MTF in which catchment area the enrollee resides).

(B) If the local MTF(s) are unavailable for the services needed, but there is another MTF at which the needed services can be provided, the enrollee may be required to obtain the services at that MTF. However, this requirement will only apply to the extent that the enrollee was informed at the time of (or prior to) enrollment that mandatory referrals might be made to the MTF involved for the service involved.

(C) If the needed services are available within civilian preferred provider network serving the area, the enrollee may be required to obtain the services from a provider within the network. Subject to availability, the enrollee will have the freedom to choose a provider from among those in the network.

(D) If the needed services are not available within the civilian preferred provider network serving the area, the enrollee may be required to obtain the services from a designated civilian provider outside the area. However, this requirement will only apply to the extent that the enrollee was informed at the time of (or prior to) enrollment that mandatory referrals might be made to the provider involved for the service involved (with the provider and service either identified specifically or in connection with some appropriate classification).

(E) In cases in which the needed health care services cannot be provided pursuant to the procedures identified in paragraphs (n)(3)(iv)(A) through (D) of this section, the enrollee will receive authorization to obtain services from a TRICARE-authorized civilian provider(s) of the enrollee's choice not affiliated with the civilian preferred provider network.

(iv) When Prime is operating in non-catchment areas, the requirements in paragraphs (n)(3)(iv)(B) through (E) of this section shall apply.

(4) Point-of-service option. TRICARE Prime enrollees retain the freedom to obtain services from civilian providers on a point-of service basis. Any health care services obtained by a Prime enrollee, but not obtained in accordance with the rules and procedures of Prime, will be covered by the point-of-service option. In such cases, all requirements applicable to health benefits under § 199.4 shall apply, except that there shall be higher deductible and cost sharing requirements (as set forth in paragraph (l)(1)(iii)) of this section). However, Prime rules may cover such services if the enrollee did not know and could not reasonably have been expected to know that the services were not obtained in accordance with the utilization management rules and procedures of Prime.

(5) Prime travel benefit. In accordance with guidelines issues by the Assistant Secretary of Defense (Health Affairs), certain travel expenses may be reimbursed when a TRICARE Prime enrollee is referred by the primary care manager for medically necessary specialty care more than 100 miles away from the primary care manager's office. Such guidelines shall be consistent with appropriate provisions of generally applicable Department of Defense rules and procedures governing travel expenses.

(o) TRICARE program enrollment procedures. There are certain requirements pertaining to procedures for enrollment in TRICARE Prime, TRICARE Select, and TRICARE Prime Remote for Active Duty Family Members. (These procedures do not apply to active duty members, whose enrollment is mandatory and automatic.)

(1) Annual open season enrollment. (i) As a general rule, enrollment (or a modification to a previous enrollment) must occur during the open season period prior to the plan year, which is on a calendar year basis. The open season enrollment period will be of at least 30 calendar days duration. An enrollment choice will be applicable for the plan year.

(ii) Open season enrollment procedures may include automatic re-enrollment in the same plan for the next plan year for enrollees or sponsors that will occur in the event the enrollee does not take other action during the open season period.

(2) Exceptions to the calendar year enrollment process. The Director will identify certain qualifying events that may be the basis for a change in enrollment status during a plan year, such as a change in eligibility status, marriage, divorce, birth of a new family member, relocation, loss of other health insurance, or other events. In the case of such an event, a beneficiary eligible to enroll in a plan may newly enroll, dis-enroll, or modify a previous enrollment during the plan year. Initial payment of the applicable enrollment fee shall be collected for new enrollments in accordance with established procedures. Any applicable enrollment fee will be pro-rated. A beneficiary who dis-enrolls without enrolling at the same time in another plan is not eligible to enroll in a plan later in the same plan year unless there is another qualifying event. A beneficiary who is dis-enrolled for failure to pay a required enrollment fee installment is not eligible to re-enroll in a plan later in the same plan year unless there is another qualifying event. Generally, the effective date of coverage will coincide with the date of the qualifying event.

(3) Installment payments of enrollment fee. The Director will establish procedures for installment payments of enrollment fees. (4) Effect of failure to enroll. Beneficiaries eligible to enroll in Prime or Select and who do not enroll will no longer have coverage under the TRICARE program until the next annual open season enrollment or they have a qualifying event, except that they do not lose any statutory eligibility for space-available care in military medical treatment facilities. There is a limited grace period exception to this enrollment requirement for calendar year 2018, as provided in section 701(d)(3) of the National Defense Authorization Act for Fiscal Year 2017.

(5) Automatic enrollment for certain dependents. Under 10 U.S.C. 1097a, in the case of dependents of active duty members in the grade of E-1 to E-4, such dependents who reside in a catchment area of a military treatment facility shall be enrolled in TRICARE Prime. The Director may provide for the automatic enrollment in TRICARE Prime for such dependents of active duty members in the grade of E-5 and higher. In any case of automatic enrollment under this paragraph (o)(5), the member will be provided written notice and the automatic enrollment may be cancelled at the election of the member.

(6) Grace periods. The Director may make provisions for grace periods for enrollment-related actions to facilitate effective operation of the enrollment program.

(p) Civilian preferred provider networks. A major feature of the TRICARE program is the civilian preferred provider network.

(1) Status of network providers. Providers in the preferred provider network are not employees or agents of the Department of Defense or the United States Government. Although network providers must follow numerous rules and procedures of the TRICARE program, on matters of professional judgment and professional practice, the network provider is independent and not operating under the direction and control of the Department of Defense.

(2) Utilization management policies. Preferred providers are required to follow the utilization management policies and procedures of the TRICARE program. These policies and procedures are part of discretionary judgments by the Department of Defense regarding the methods of delivering and financing health care services that will best achieve health and economic policy objectives.

(3) Quality assurance requirements. A number of quality assurance requirements and procedures are applicable to preferred network providers. These are for the purpose of assuring that the health care services paid for with government funds meet the standards called for in the contract and provider agreement.

(4) Provider qualifications. All preferred providers must meet the following qualifications:

(i) They must be TRICARE-authorized providers and TRICARE- participating providers. In addition, a network provider may not require payment from the beneficiary for any excluded or excludable services that the beneficiary received from the network provider (i.e., the beneficiary will be held harmless) except as follows:

(A) If the beneficiary did not inform the provider that he or she was a TRICARE beneficiary, the provider may bill the beneficiary for services provided.

(B) If the beneficiary was informed in writing that the specific services were excluded or excludable from TRICARE coverage and the beneficiary agreed in writing, in advance of the services being provided, to pay for the services, the provider may bill the beneficiary.

(ii) All physicians in the preferred provider network must have staff privileges in a hospital accredited by The Joint Commission (TJC) or other accrediting body determined by the Director. This requirement may be waived in any case in which a physician's practice does not include the need for admitting privileges in such a hospital, or in locations where no accredited facility exists. However, in any case in which the requirement is waived, the physician must comply with alternative qualification standards as are established by the Director.

(iii) All preferred providers must agree to follow all quality assurance, utilization management, and patient referral procedures established pursuant to this section, to make available to designated DoD utilization management or quality monitoring contractors medical records and other pertinent records, and to authorize the release of information to MTF Commanders regarding such quality assurance and utilization management activities.

(iv) All preferred network providers must be Medicare participating providers, unless this requirement is waived based on extraordinary circumstances. This requirement that a provider be a Medicare participating provider does not apply to providers who not eligible to be participating providers under Medicare.

(v) The network provider must be available to all TRICARE beneficiaries.

(vi) The provider must agree to accept the same payment rates negotiated for Prime enrollees for any person whose care is reimbursable by the Department of Defense, including, for example, Select participants, supplemental care cases, and beneficiaries from outside the area.

(vii) All preferred providers must meet all other qualification requirements, and agree to comply with all other rules and procedures established for the preferred provider network.

(viii) In locations where TRICARE Prime is not available, a TRICARE provider network will, to the extent practicable, be available for TRICARE Select enrollees. In these locations, the minimal requirements for network participation are those set forth in paragraph (p)(4)(i) of this section. Other requirements of this paragraph (p) will apply unless waived by the Director.

(5) Access standards. Preferred provider networks will have attributes of size, composition, mix of providers and geographical distribution so that the networks, coupled with the MTF capabilities (when applicable), can adequately address the health care needs of the enrollees. In the event that a Prime enrollee seeks to obtain from the managed care support contractor an appointment for care but is not offered an appointment within the access time standards from a network provider, the enrollee will be authorized to receive care from a non-network provider without incurring the additional fees associated with point-of-service care. The following are the access standards:

(i) Under normal circumstances, enrollee travel time may not exceed 30 minutes from home to primary care delivery site unless a longer time is necessary because of the absence of providers (including providers not part of the network) in the area.

(ii) The wait time for an appointment for a well-patient visit or a specialty care referral shall not exceed four weeks; for a routine visit, the wait time for an appointment shall not exceed one week; and for an urgent care visit the wait time for an appointment shall generally not exceed 24 hours.

(iii) Emergency services shall be available and accessible to handle emergencies (and urgent care visits if not available from other primary care providers pursuant to paragraph (p)(5)(ii) of this section), within the service area 24 hours a day, seven days a week.

(iv) The network shall include a sufficient number and mix of board certified specialists to meet reasonably the anticipated needs of enrollees. Travel time for specialty care shall not exceed one hour under normal circumstances, unless a longer time is necessary because of the absence of providers (including providers not part of the network) in the area. This requirement does not apply under the Specialized Treatment Services Program.

(v) Office waiting times in nonemergency circumstances shall not exceed 30 minutes, except when emergency care is being provided to patients, and the normal schedule is disrupted.

(6) Special reimbursement methods for network providers. The Director, may establish, for preferred provider networks, reimbursement rates and methods different from those established pursuant to § 199.14. Such provisions may be expressed in terms of percentage discounts off CHAMPUS allowable amounts, or in other terms. In circumstances in which payments are based on hospital-specific rates (or other rates specific to particular institutional providers), special reimbursement methods may permit payments based on discounts off national or regional prevailing payment levels, even if higher than particular institution-specific payment rates.

(q) Preferred provider network establishment. (1) The any qualified provider method may be used to establish a civilian preferred provider network. Under this method, any TRICARE-authorized provider that meets the qualification standards established by the Director, or designee, may become a part of the preferred provider network. Such standards must be publicly announced and uniformly applied. Also under this method, any provider who meets all applicable qualification standards may not be excluded from the preferred provider network. Qualifications include:

(i) The provider must meet all applicable requirements in paragraph (p)(4) of this section.

(ii) The provider must agree to follow all quality assurance and utilization management procedures established pursuant to this section.

(iii) The provider must be a participating provider under TRICARE for all claims.

(iv) The provider must meet all other qualification requirements, and agree to all other rules and procedures, that are established, publicly announced, and uniformly applies by the Director (or other authorized official).

(v) The provider must sign a preferred provider network agreement covering all applicable requirements. Such agreements will be for a duration of one year, are renewable, and may be canceled by the provider or the Director (or other authorized official) upon appropriate notice to the other party. The Director shall establish an agreement model or other guidelines to promote uniformity in the agreements.

(2) In addition to the above requirements, the Director, or designee, may establish additional categories of preferred providers of high quality/high value that require additional qualifications.

(r) General fraud, abuse, and conflict of interest requirements under TRICARE program. All fraud, abuse, and conflict of interest requirements for the basic CHAMPUS program, as set forth in this part (see especially applicable provisions of § 199.9) are applicable to the TRICARE program.

(s) [Reserved]

(t) Inclusion of Department of Veterans Affairs Medical Centers in TRICARE networks. TRICARE preferred provider networks may include Department of Veterans Affairs health facilities pursuant to arrangements, made with the approval of the Assistant Secretary of Defense (Health Affairs), between those centers and the Director, or designated TRICARE contractor.

(u) Care provided outside the United States. The TRICARE program is not automatically implemented in all respects outside the United States. This paragraph (u) sets forth the provisions of this section applicable to care received outside the United States under the following TRICARE health plans.

(1) TRICARE Prime. The Director may, in conjunction with implementation of the TRICARE program, authorize a special Prime program for command sponsored dependents of active duty members who accompany the members in their assignments in foreign countries. Under this special program, a preferred provider network may be established through contracts or agreements with selected health care providers. Under the network, Prime covered services will be provided to the enrolled covered dependents subject to applicable Prime deductibles, copayments, and point-of-service charges. To the extent practicable, rules and procedures applicable to TRICARE Prime under this section shall apply unless specific exemptions are granted in writing by the Director. The use of this authority by the Director for any particular geographical area will be published on the primary publicly available Internet Web site of the Department and on the publicly available Internet Web site of the managed care support contractor that has established the provider network under the TRICARE program. Published information will include a description of the preferred provider network program and other pertinent information. The Director shall also issue policies, instructions, and guidelines necessary to implement this special program.

(2) TRICARE Select. The TRICARE Select option shall be available outside the United States except that a preferred provider network of providers shall only be established in areas where the Director determines that it is economically in the best interest of the Department of Defense. In such a case, the Director shall establish a preferred provider network through contracts or agreements with selected health care providers for eligible beneficiaries to receive covered benefits subject to the enrollment and cost-sharing amounts applicable to the specific category of beneficiary. When an eligible beneficiary, other than a TRICARE for Life beneficiary, receives covered services from an authorized TRICARE non-network provider, including in areas where a preferred provider network has not been established by the Director, the beneficiary shall be subject to cost-sharing amounts applicable to out-of-network care. To the extent practicable, rules and procedures applicable to TRICARE Select under this section shall apply unless specific exemptions are granted in writing by the Director. The use of this authority by the Director to establish a TRICARE preferred provider network for any particular geographical area will be published on the primary publicly available Internet Web site of the Department and on the publicly available Internet Web site of the managed care support contractor that has established the provider network under the TRICARE program. Published information will include a description of the preferred provider network program and other pertinent information. The Director shall also issue policies, instructions, and guidelines necessary to implement this special program.

(3) TRICARE for Life. The TRICARE for Life (TFL) option shall be available outside the United States. Eligible TFL beneficiaries may receive covered services and supplies authorized under § 199.4, subject to the applicable catastrophic cap, deductibles and cost-shares under § 199.4, whether received from a network provider or any authorized TRICARE provider not in a preferred provider network. However, if a TFL beneficiary receives covered services from a PPN provider, the beneficiary's out-of-pocket costs will generally be lower.

(v) Administration of the TRICARE program in the state of Alaska. In view of the unique geographical and environmental characteristics impacting the delivery of health care in the state of Alaska, administration of the TRICARE program in the state of Alaska will not include financial underwriting of the delivery of health care by a TRICARE contractor. All other provisions of this section shall apply to administration of the TRICARE program in the state of Alaska as they apply to the other 49 states and the District of Columbia.

(w) Administrative procedures. The Assistant Secretary of Defense (Health Affairs), the Director, and MTF Commanders (or other authorized officials) are authorized to establish administrative requirements and procedures, consistent with this section, this part, and other applicable DoD Directives or Instructions, for the implementation and operation of the TRICARE program.

§ 199.18 [Removed and Reserved]
10. Section 199.18 is removed and reserved. 11. Section 199.20 is amended by: a. Revising paragraph (a); b. Removing the words “TRICARE Standard program” and adding in their place the words “TRICARE Select program” in paragraph (c); c. Revising paragraphs (d)(7)(i)(D) introductory text, (d)(7)(i)(D)(1) and (2), and (e)(1) and (3); d. Removing the words “TRICARE Standard” and adding in their place the words “TRICARE Select program” in paragraphs (f) through (n); e. Removing and reserving paragraph (o); f. Revising paragraph (p)(1); g. Removing the semicolon at the end of paragraph (p)(2)(iii) and adding “; and” in its place; h. Revising paragraph (p)(2)(iv); and i. Removing paragraph (p)(2)(v).

The revisions and additions read as follows:

§ 199.20 Continued Health Care Benefit Program (CHCBP).

(a) Purpose. The CHCBP is a premium-based temporary health care coverage program, authorized by 10 U.S.C. 1078a, and available to individuals who meet the eligibility and enrollment criteria as set forth in paragraph (d)(1) of this section. The CHCBP is not part of the TRICARE program. However, as set forth in this section, it functions under similar rules and procedures to the TRICARE Select program. Because the purpose of the CHCBP is to provide a continuation health care benefit for Department of Defense and the other uniformed services beneficiaries losing eligibility, it will be administered so that it appears, to the maximum extent practicable, to be part of the TRICARE Select program. Medical coverage under this program will be the same as the benefits payable under the TRICARE Select program. There is a cost for enrollment to the CHCBP and these premium costs must be paid by CHCBP enrollees before any care may be cost shared.

(d) * * *

(7) * * *

(i) * * *

(D) In the case of a former spouse of a member or former member (other than the former spouse whose marriage was dissolved after the separation of the member from the service unless such separation was by retirement), the period of coverage under the CHCBP is unlimited, if former spouse:

(1) Has not remarried before age of 55 after the marriage to the member or former member was dissolved; and

(2) Was eligible for TRICARE as a dependent or enrolled in CHCBP at any time during the 18 month period before the date of the divorce, dissolution, or annulment; and

(e) * * *

(1) In general. Except as provided in paragraph (e)(2) of this section, the provisions of § 199.4 shall apply to the CHCBP as they do to TRICARE Select under § 199.17.

(3) Beneficiary liability. For purposes of CHCBP coverage, the beneficiary deductible, catastrophic cap and cost share provisions of the TRICARE Select plan applicable to Group B beneficiaries under § 199.17(l)(2)(ii) shall apply based on the category of beneficiary (e.g., Active Duty Family Member or Retiree Family) to which the CHCBP enrollee last belonged, except that for separating active duty members, amounts applicable to TRICARE Select Active Duty Family Members shall apply. The premium under paragraph (q) of this section applies instead of any TRICARE Select plan enrollment fee under § 199.17.

(p) * * *

(1) In general. Special programs established under this part that are not part of the TRICARE Select program are not, unless specifically provided in this section, available to participants in the CHCBP.

(2) * * *

(iv) The TRICARE Prime Program under § 199.17.

12. Section 199.21 is amended by: a. Revising paragraphs (i)(2) introductory text and (i)(2)(i) through (iv); b. Removing and reserving paragraph (i)(2)(v); and c. Revising paragraphs (i)(2)(vi) through (viii) and (i)(2)(x)(A).

The revisions read as follows:

§ 199.21 TRICARE Pharmacy Benefits Program.

(i) * * *

(2) Cost-sharing amounts. Active duty members of the uniformed services do not pay cost-shares or annual deductibles. For other categories of beneficiaries, after applicable annual deductibles are met, cost-sharing amounts prior to October 1, 2016, are set forth in this paragraph (i)(2).

(i) For pharmaceutical agents obtained from a military treatment facility, there is no cost-sharing or annual deductible.

(ii) For pharmaceutical agents obtained from a retail network pharmacy there is a:

(A) $24.00 cost-share per prescription required for up to a 30-day supply of a formulary pharmaceutical agent.

(B) $10.00 cost-share per prescription for up to a 30-day supply of a generic pharmaceutical agent.

(C) $0.00 cost-share for vaccines/immunizations authorized as preventive care for eligible beneficiaries.

(iii) For formulary and generic pharmaceutical agents obtained from a retail non-network pharmacy, except as provided in paragraph (i)(2)(vi) of this section, there is a 20 percent or $20.00 cost-share (whichever is greater) per prescription for up to a 30-day supply of the pharmaceutical agent.

(iv) For pharmaceutical agents obtained under the TRICARE mail-order program there is a:

(A) $20 cost-share per prescription for up to a 90-day supply of a formulary pharmaceutical agent.

(B) $0.00 cost-share for up to a 90-day supply of a generic pharmaceutical agent.

(C) $49.00 cost-share for up to a 90-day supply of a non-formulary pharmaceutical agent.

(D) $0.00 cost-share for smoking cessation pharmaceutical agents covered under the smoking cessation program.

(vi) For TRICARE Prime beneficiaries there is no annual deductible applicable for pharmaceutical agents obtained from retail network pharmacies or the TRICARE mail-order program. However, for TRICARE Prime beneficiaries who obtain formulary or generic pharmaceutical agents from retail non-network pharmacies, an enrollment year deductible of $300 per person and $600 per family must be met after which there is a beneficiary cost-share of 50 percent per prescription for up to a 30-day supply of the pharmaceutical agent.

(vii) For TRICARE Select beneficiaries the annual deductible which must be met before the cost-sharing amounts for pharmaceutical agents in paragraph (i)(2) of this section are applicable is as provided for each category of TRICARE Select enrollee in § 199.17(l)(2).

(viii) For TRICARE beneficiaries not otherwise qualified to enroll in TRICARE Prime or Select, the annual deductible which must be met before the cost-sharing amounts for pharmaceutical agents in paragraph (i)(2) of this section are applicable is as provided in § 199.4(f).

(x) * * *

(A) Beginning October 1, 2016, the amounts specified in this paragraph (i)(2) shall be increased annually by the percentage increase in the cost-of-living adjustment by which retired pay is increased under 10 U.S.C. 1401a for the year. If the amount of the increase is equal to or greater than 50 cents, the amount of the increase shall be rounded to the nearest multiple of $1. If the amount of the increase is less than 50 cents, the increase shall not be made for that year, but shall be carried over to, and accumulated with, the amount of the increase for the subsequent year or years and made when the aggregate amount of increases for a year is equal to or greater than 50 cents.

13. In § 199.22, paragraph (a) is revised to read as follows:
§ 199.22 TRICARE Retiree Dental Program (TRDP).

(a) Establishment. The TRDP is a premium based indemnity dental insurance coverage program that will be available to certain retirees and their surviving spouses, their dependents, and certain other beneficiaries, as specified in paragraph (d) of this section. The TRDP is authorized by 10 U.S.C. 1076c.

(1) The Director will, except as authorized in paragraph (a)(2) of this section, make available a premium based indemnity dental insurance plan for eligible TRDP beneficiaries specified in paragraph (d) of this section consistent with the provisions of this section.

(2) The TRDP premium based indemnity dental insurance program under paragraph (a) of this section may be provided by allowing eligible beneficiaries specified in paragraph (d) of this section to enroll in an insurance plan under chapter 89A of title 5, United States Code that provides benefits similar to those benefits provided under paragraph (f) of this section. Such enrollment shall be authorized pursuant to an agreement entered into between the Department of Defense and the Office of Personnel Management which agreement, in the event of any inconsistency, shall take precedence over provisions in this section.

14. Section 199.24 is amended by revising paragraphs (a) introductory text, (a)(4)(i) heading, (a)(4)(i)(A), (a)(4)(iv), (c) introductory text, (d) introductory text, (d)(1)(ii) and (iii), (d)(2) and (3), (f), and (g)(1) to read as follows:
§ 199.24 TRICARE Reserve Select.

(a) Establishment. TRICARE Reserve Select offers the TRICARE Select self-managed, preferred-provider network option under § 199.17 to qualified members of the Selected Reserve, their immediate family members, and qualified survivors under this section.

(4) * * *

(i) TRICARE Select rules applicable. (A) Unless specified in this section or otherwise prescribed by the Director, provisions of TRICARE Select under § 199.17 apply to TRICARE Reserve Select.

(iv) Benefits. When their coverage becomes effective, TRICARE Reserve Select beneficiaries receive the TRICARE Select benefit including access to military treatment facility services and pharmacies, as described in §§ 199.17 and 199.21. TRICARE Reserve Select coverage features the deductible, catastrophic cap and cost share provisions of the TRICARE Select plan applicable to Group B active duty family members under § 199.17(l)(2)(ii) for both the member and the member's covered family members; however, the TRICARE Reserve Select premium under paragraph (c) of this section applies instead of any TRICARE Select plan enrollment fee under § 199.17. Both the member and the member's covered family members are provided access priority for care in military treatment facilities on the same basis as active duty service members' dependents who are not enrolled in TRICARE Prime as described in § 199.17(d)(1)(i)(D).

(c) TRICARE Reserve Select premiums. Members are charge premiums for coverage under TRICARE Reserve Select that represent 28 percent of the total annual premium amount that the Director determines on an appropriate actuarial basis as being appropriate for coverage under the TRICARE Select benefit for the TRICARE Reserve Select eligible population. Premiums are to be paid monthly, except as otherwise provided through administrative implementation, pursuant to procedures established by the Director. The monthly rate for each month of a calendar year is one-twelfth of the annual rate for that calendar year.

(d) Procedures. The Director may establish procedures for the following.

(1) * * *

(ii) Qualifying event. Procedures for qualifying events in TRICARE Select plans under § 199.17(o) shall apply to TRICARE Reserve Select coverage. Additionally, the Director may identify other events unique to needs of the Reserve Components as qualifying events.

(iii) Enrollment. Procedures for enrollment in TRICARE Select plans under § 199.17(o) shall apply to TRICARE Reserve Select enrollment. Generally, the effective date of coverage will coincide with the first day of a month unless enrollment is due to a qualifying event and a different date on or after the qualifying event is required to prevent a lapse in health care coverage.

(2) Termination. Termination of coverage for the TRS member/survivor will result in termination of coverage for the member's/survivor's family members in TRICARE Reserve Select. Procedures may be established for coverage to be terminated as follows.

(i) Coverage shall terminate when members or survivors no longer qualify for TRICARE Reserve Select as specified in paragraph (b) of this section, with one exception. If a member is involuntarily separated from the Selected Reserve under other than adverse conditions, as characterized by the Secretary concerned, and is covered by TRICARE Reserve Select on the last day of his or her membership in the Selected Reserve, then TRICARE Reserve Select coverage may terminate up to 180 days after the date on which the member was separated from the Selected Reserve. This applies regardless of type of coverage. This exception expires December 31, 2018.

(ii) Coverage may terminate for members, former members, and survivors who gain coverage under another TRICARE program.

(iii) In accordance with the provisions of § 199.17(o)(2) coverage terminates for members/survivors who fail to make premium payments in accordance with established procedures.

(iv) Coverage may be terminated for members/survivors upon request at any time by submitting a completed request in the appropriate format in accordance with established procedures.

(3) Re-enrollment following termination. Absent a new qualifying event, members/survivors (subject to paragraph (d)(1)(iv) of this section) are not eligible to re-enroll in TRICARE Reserve Select until the next annual open season.

(f) Administration. The Director may establish other rules and procedures for the effective administration of TRICARE Reserve Select, and may authorize exceptions to requirements of this section, if permitted by law.

(g) * * *

(1) Coverage. This term means the medical benefits covered under the TRICARE Select program as further outlined in § 199.17 whether delivered in military treatment facilities or purchased from civilian sources.

15. Section 199.25 is amended by revising paragraphs (a) introductory text, (a)(4)(i) heading, (a)(4)(i)(A), (a)(4)(iv), (c) introductory text, (d) introductory text, (d)(1)(ii) and (iii), (d)(2) and (3), (f), and (g)(1) to read as follows:
§ 199.25 TRICARE Retired Reserve.

(a) Establishment. TRICARE Retired Reserve offers the TRICARE Select self-managed, preferred-provider network option under § 199.17 to qualified members of the Retired Reserve, their immediate family members, and qualified survivors under this section.

(4) * * *

(i) TRICARE Select rules applicable. (A) Unless specified in this section or otherwise prescribed by the ASD (HA), provisions of TRICARE Select under § 199.17 apply to TRICARE Retired Reserve.

(iv) Benefits. When their coverage becomes effective, TRICARE Retired Reserve beneficiaries receive the TRICARE Select benefit including access to military treatment facilities on a space available basis and pharmacies, as described in § 199.17. TRICARE Retired Reserve coverage features the deductible, cost sharing, and catastrophic cap provisions of the TRICARE Select plan applicable to Group B retired members and dependents of retired members under § 199.17(l)(2)(ii); however, the TRICARE Reserve Select premium under paragraph (c) of this section applies instead of any TRICARE Select plan enrollment fee under § 199.17. Both the member and the member's covered family members are provided access priority for care in military treatment facilities on the same basis as retired members and their dependents who are not enrolled in TRICARE Prime as described in § 199.17(d)(1)(i)(E).

(c) TRICARE Retired Reserve premiums. Members are charged for coverage under TRICARE Retired Reserve that represent the full cost of the program as determined by the Director utilizing an appropriate actuarial basis for the provision of the benefits provided under the TRICARE Select program for the TRICARE Retired Reserve eligible beneficiary population. Premiums are to be paid monthly, except as otherwise provided through administrative implementation, pursuant to procedures established by the Director. The monthly rate for each month of a calendar year is one-twelfth of the annual rate for that calendar year.

(d) Procedures. The Director may establish procedures for the following.

(1) * * *

(ii) Qualifying event. Procedures for qualifying events in TRICARE Select plans under § 199.17(o) shall apply to TRICARE Retired Reserve coverage.

(iii) Enrollment. Procedures for enrollment in TRICARE Select plans under § 199.17(o) shall apply to TRICARE Retired Reserve enrollment. Generally, the effective date of coverage will coincide with the first day of a month unless enrollment is due to a qualifying event and a different date on or after the qualifying event is required to prevent a lapse in health care coverage.

(2) Termination. Termination of coverage for the TRR member/survivor will result in termination of coverage for the member's/survivor's family members in TRICARE Retired Reserve. Procedures may be established for coverage to be terminated as follows.

(i) Coverage shall terminate when members or survivors no longer qualify for TRICARE Retired Reserve as specified in paragraph (c) of this section. For purposes of this section, the member or their survivor no longer qualifies for TRICARE Retired Reserve when the member has been eligible for coverage in a health benefits plan under Chapter 89 of Title 5, U.S.C. for more than 60 days. Further, coverage shall terminate when the Retired Reserve member attains the age of 60 or, if survivor coverage is in effect, when the deceased Retired Reserve member would have attained the age of 60.

(ii) Coverage may terminate for members, former members, and survivors who gain coverage under another TRICARE program.

(iii) In accordance with the provisions of § 199.17(o)(2) coverage terminates for members/survivors who fail to make premium payments in accordance with established procedures.

(iv) Coverage may be terminated for members/survivors upon request at any time by submitting a completed request in the appropriate format in accordance with established procedures.

(3) Re-enrollment following termination. Absent a new qualifying event, members/survivors are not eligible to re-enroll in TRICARE Retired Reserve until the next annual open season.

(f) Administration. The Director may establish other rules and procedures for the effective administration of TRICARE Retired Reserve, and may authorize exceptions to requirements of this section, if permitted by law.

(g) * * *

(1) Coverage. This term means the medical benefits covered under the TRICARE Select program as further outlined in § 199.17 whether delivered in military treatment facilities or purchased from civilian sources.

16. Section 199.26 is amended by: a. Revising paragraphs (a) introductory text, (a)(4)(i)(C), (a)(4)(i)(D) introductory text, and (a)(4)(ii) and (iv); b. Removing paragraph (a)(4)(v); c. Revising paragraphs (c) introductory text, (d) introductory text, and (d)(1)(ii); d. Removing paragraph (d)(1)(iii); e. Revising paragraphs (d)(2) introductory text, (d)(2)(v), (vi), and (vii), and (f); and f. Removing paragraph (g).

The revisions read as follows:

§ 199.26 TRICARE Young Adult.

(a) Establishment. The TRICARE Young Adult (TYA) program offers options of medical benefits provided under the TRICARE program to qualified unmarried adult children of TRICARE-eligible uniformed service sponsors who do not otherwise have eligibility for medical coverage under a TRICARE program at age 21 (23 if enrolled in a full-time course of study at an approved institution of higher learning, and the sponsor provides over 50 percent of the student's financial support), and are under age 26.

(4) * * *

(i) * * *

(C) TRICARE Select is available to all TYA-eligible young adult dependents.

(D) TRICARE Prime is available to TYA-eligible young adult dependents, provided that TRICARE Prime (including the Uniformed Services Family Health Plan) is available in the geographic location where the TYA enrollee resides. TYA-eligible young adults are:

(ii) Premiums. TYA coverage is a premium based program that an eligible young adult dependent may purchase. There is only individual coverage, and a premium shall be charged for each dependent even if there is more than one qualified dependent in the uniformed service sponsor's family that qualifies for TYA coverage. Dependents qualifying for TYA status can purchase individual TRICARE Select or TRICARE Prime coverage (as applicable) according to the rules governing the TRICARE option for which they are qualified on the basis of their uniformed service sponsor's TRICARE-eligible status (active duty, retired, Selected Reserve, or Retired Reserve) and the availability of a desired option in their geographic location. Premiums shall be determined in accordance with paragraph (c) of this section.

(iv) Benefits. When their TYA coverage becomes effective, qualified beneficiaries receive the benefit of the TRICARE option that they selected, including, if applicable, access to military treatment facilities and pharmacies. TYA coverage features the cost share, deductible and catastrophic cap provisions applicable to Group B beneficiaries based on the program selected, i.e., the TRICARE Select program under § 199.17(l)(2)(ii) or the TRICARE Prime program under § 199.17(l)(ii), as well as the status of their military sponsor. Access to military treatment facilities under the system of access priorities in § 199.17(d)(1) is also based on the program selected as well as the status of the military sponsor. Premiums are not credited to deductibles or catastrophic caps; however, TYA premiums shall apply instead of any applicable TRICARE Prime or Select enrollment fee.

(c) TRICARE Young Adult premiums. Qualified young adult dependents are charged premiums for coverage under TYA that represent the full cost of the program, including reasonable administrative costs, as determined by the Director utilizing an appropriate actuarial basis for the provision of TRICARE benefits for the TYA-eligible beneficiary population. Separate premiums shall be established for TRICARE Select and Prime plans. There may also be separate premiums based on the uniformed services sponsor's status. Premiums are to be paid monthly, except as otherwise provided through administrative implementation, pursuant to procedures established by the Director. The monthly rate for each month of a calendar year is one-twelfth of the annual rate for that calendar year.

(d) Procedures. The Director may establish procedures for the following.

(1) * * *

(ii) Enrollment. Procedures for enrollment in TRICARE plans under § 199.17(o) shall apply to a qualified dependent purchasing TYA coverage. Generally, the effective date of coverage will coincide with the first day of a month unless enrollment is due to a qualifying event and a different date on or after the qualifying event is required to prevent a lapse in health care coverage.

(2) Termination. Procedures may be established for TYA coverage to be terminated as follows.

(v) Coverage may be terminated for young adult dependents upon request at any time by submitting a completed request in the appropriate format in accordance with established procedures.

(vi) In accordance with the provisions of § 199.17(o)(2), coverage terminates for young adult dependents who fail to make premium payments in accordance with established procedures.

(vii) Absent a new qualifying event, young adults are not eligible to re-enroll in TYA until the next annual open season.

(f) Administration. The Director may establish other processes, policies and procedures for the effective administration of the TYA Program and may authorize exceptions to requirements of this section, if permitted.

Dated: September 20, 2017. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2017-20392 Filed 9-28-17; 8:45 am] BILLING CODE 5001-06-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket Number USCG-2017-0172] RIN 1625-AA00 Safety Zone; Pacific Ocean, Kilauea Lava Flow Ocean Entry on Southeast Side of Island of Hawaii, HI AGENCY:

Coast Guard, DHS.

ACTION:

Temporary final rule.

SUMMARY:

The Coast Guard is extending, for an additional six months, the existing temporary safety zone surrounding the entry of lava from the Kilauea volcano into the navigable waters of the Pacific Ocean on the southeast side of the Island of Hawaii, HI. The extension of this safety zone is necessary to protect persons and vessels from hazards associated with molten lava entering the ocean while the proposed rule is reviewed.

DATES:

This rule is effective from September 28, 2017 through March 28, 2018.

ADDRESSES:

To view documents mentioned in this preamble as being available in the docket, go to https://www.regulations.gov, type USCG-2017-0172 in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this rule.

FOR FURTHER INFORMATION CONTACT:

If you have questions on this rule, call or email Lieutenant Commander John Bannon, Waterways Management Division, Coast Guard; telephone: 808-541-4359, email: [email protected]

SUPPLEMENTARY INFORMATION:

I. Table of Abbreviations BLS Bureau of Labor Statistics COTP Captain of the Port DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section symbol OMB Office of Management and Budget RFA Regulatory Flexibility Act SNPRM Supplemental notice of proposed rulemaking TFR Temporary final rule U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is extending, for an additional six months, an existing temporary safety zone for the navigable waters surrounding the entry of lava from the Kilauea Volcano into the Pacific Ocean on the southeast side of the Island of Hawaii, HI. Extending this safety zone ensures mariners remain safe from the potential hazards associated with molten lava entering the ocean while the proposed rule is being reviewed. This safety zone will continue to encompass all waters within 300 meters (984 feet) of all entry points of lava flow into the ocean. Because the entry points of the lava vary, the safety zone location will also vary. Entry of persons or vessels into this safety zone remains prohibited, unless specifically authorized by the Captain of the Port (COTP) Honolulu, or his designated representative.

Lava flow that enters the ocean can be potentially hazardous to anyone near it, particularly when lava deltas collapse. A lava delta is new land that forms when lava accumulates above sea level, and extends from the existing base of a sea cliff. Persons near active lava flow entry sites incur potential hazards, particularly when lava deltas collapse. These hazards include, but are not limited to, plumes of hot, corrosive seawater laden with hydrochloric acid, and fine volcanic particles that can irritate the skin, eyes, and lungs; explosions of debris and eruptions of scalding water from hot rock entering the ocean; sudden lava delta collapses; and waves associated with these explosions and collapses.

Lava has been entering the ocean at the Kamokuna lava delta on Kilauea Volcano's south coast since July 2016. On December 31, 2016, a large portion of lava delta collapsed into the ocean at the Kamokuna entry point. Following this collapse, portions of the adjacent sea cliff fell into the ocean, producing localized waves, and showers of debris. As of March 2017, a new delta has begun to form at the Kamokuna ocean entry point. This lava delta continues to grow and collapse, and cracks parallel to the sea cliff surrounding it persist, indicating further collapses may occur with little or no warning.

On March 28, 2017, the Coast Guard established a temporary final rule (TFR) and put into place a safety zone for mariners near lava entry points to address the hazards of the lava entering the ocean. The TFR discussed Sector Honolulu's review of nearly 30 years of delta collapse and ejecta distance observations from the Hawaii Volcano Observatory records. The TFR was published in the April 3, 2017 Federal Register (82 FR 16109).

On April 3, 2017, the Coast Guard also published a notice of proposed rulemaking (NPRM) to establish a permanent safety zone that would encompass all waters extending 300 meters (984 feet) in every direction around all entry points of lava flow into the navigable waters surrounding the entry of lava from the Kilauea Volcano into the Pacific Ocean on the southeast side of the Island of Hawaii, HI (82 FR 16142). We determined that a radius of 300 meters was a reasonable, minimum high-hazard zone around a point of active lava flow entering the ocean. The safety zone allows the Coast Guard to impose and enforce restrictions on vessels operating closely to the lava entry area, which protects persons and vessels from the potential hazards associated with molten lava entering the ocean. The NPRM addressed this concern and invited the public to comment on the safety zone. The comment period, which ended on June 2, 2017, received 67 comments. On May 8, 2017, at a public meeting held in Hilo, HI, meeting participants discussed the proposed rule and NPRM's public comments.

During the period of the TFR, four tour operators and one photographer with economic ties to lava tourism petitioned the COTP Honolulu for entry within 300 meters of the high-hazard zone. They also requested and petitioned for various levels of entry distances—ranging from a close, safe distance to 50 meters—based on sea conditions resulting from the lava entry. The COTP Honolulu granted express authorization for entry within 300 meters to the five operators. The authorization included operational restrictions and other vessel safety criteria requirements considered by the COTP Honolulu and will continue under the extended period of this TFR.

In order to review the overall impact of the final rule, a supplemental notice of proposed rulemaking (SNPRM) will be published, providing an additional 60 days for public comments and input. This TFR is necessary to promote navigational safety, provide for the safety of life and property, and facilitate the reasonable demands of commerce relating to tourism surrounding the lava entry points. It also provides an opportunity for further comment from the public. Upon publication of the SNPRM, we will invite additional public comments on this rulemaking.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Although we expect to review the SNPRM within 30 days of publication of this TFR, it would be impractical to delay the effective date of this rule. Immediate action is necessary to protect persons, vessels, and the public from the potential safety hazards associated with the ocean lava entry.

III. Legal Authority and Need for Rule

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1231. The COTP Honolulu has determined that potential hazards associated with Kilauea's active lava flow entry into the Pacific Ocean on the southeast side of the Island of Hawaii, HI is a safety concern for anyone within 300 meters (984 feet) in every direction around the entry of lava flow. The purpose of this rule is to ensure the safety of the public and vessels traveling in the navigable waters covered by the safety zone.

IV. Discussion of Comments, Changes, and the Rule

This TFR extends the existing safety zone from September 28, 2017 through March 28, 2018, or until it is no longer necessary. If the safety zone terminates prior to March 28, 2018, the Coast Guard will provide notice via established notice to mariners.

In order to review the overall impact of the rule, the Coast Guard will publish an SNPRM providing an additional 60 days for comments on the proposed final rule. This TFR is necessary to promote navigational safety, provide for the safety of life and property, and facilitate the reasonable demands of commerce relating to tourism surrounding the lava entry points.

V. Regulatory Analyses

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

A. Regulatory Planning and Review

Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) direct agencies to assess the costs and benefits of available regulatory alternatives and, if regulation is necessary, to select those approaches that maximize net benefits. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”), directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”

Under Executive Order 12866, this rule has not been designated a “significant regulatory action. Accordingly, the Office of Management and Budget (OMB) has not reviewed it. As this rule is a non-significant regulatory action, it is exempt from the requirements of Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017 titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017). A regulatory analysis follows.

This TFR extends, for an additional six months, the existing safety zone for the navigable waters surrounding the entry of lava from Kilauea volcano into the Pacific Ocean. The safety zone will remain to include waters within 300 meters (984 feet) of where lava enters the ocean. Entry of persons or vessels into the safety zone may only occur if granted permission by the COTP Honolulu, or his designated representative.

Lava has been entering the ocean at Kamokuna on Kilauea Volcano's south coast since July of 2016 and will continue to do so in the future. When lava enters the ocean, new hazards emerge: Plumes of corrosive seawater can irritate the skin, eyes, and lungs; explosions of debris and scalding water can injure passengers; sudden collapse of lava deltas can cause large waves potentially capsizing vessels. This TFR establishes a minimum safe operating distance in order to protect individuals and operators from the hazards of the Kilauea lava flow at sea.

This rule affects any vessel that would normally travel within 300 meters of points where lava reaches the ocean. Currently, four lava tour-boat operators have state licenses to operate from the Pohoiki Boat Ramp, the closest location to pick up passengers for tours of the Kilauea lava flow. The Coast Guard is also aware of one photographer who photographs the Kilauea lava flow. Since the implementation of the temporary safety zone, the COTP granted prior approval to these parties to enter the safety zone, so long as they comply with the conditions set by the COTP. These entities are required to notify the COTP by phone before each tour when entering the 300-meter safety zone.

When the Coast Guard published the original TFR on April 3, 2017, owners and operators were required to prepare and submit a written request to the COTP to enter the safety zone. The TFR is a continuation of the requirements extending the safety zone for an additional six months, and therefore, we are presenting the costs associated with this TFR.

First, the captain of a lava tour boat will initiate the request to enter the safety zone through an initial written request to the COTP. Based on waiver requests from the four state-licensed operations, the Coast Guard estimates it takes about 4-hours for an owner or operator to submit a written request to enter the safety zone. This includes the time it would take lava tour-boat owners or operators to respond to questions from the COTP concerning the waiver request. Lava tour-boat owners or operators are only required to make this written waiver request once for consideration by the COTP.

We obtained the mean hourly wage rate for a Captain of a lava tour boat from the Bureau of Labor Statistics (BLS) Occupational Employment Statistics National Occupational Employment and Wage Estimates for May 2016. Based on BLS's data, the mean hourly wage rate for Captains, Mates, and Pilots of Water Vessels with the North American Industry Classification System (NAICS) occupational code of 53-5021 in the “Scenic and Sightseeing Transportation, Water” industry is $24.42. Because this is an unloaded hourly wage rate, we added a load factor of 1.52 derived from the BLS March 2017 “Employer Cost for Compensation” databases to obtain a loaded hourly wage rate of $37.12. We estimate the one-time initial cost for an owner or operator to prepare a written request and respond to comments from the Coast Guard to be about $148.47 ($37.12 per hour × 4 hours). We estimate the total cost of the temporary final rule to be about $593.88 ($148.47 × 4 lava tour-boat owners or operators).

Since all four tour operators and the photographer were each granted permission to enter the safety zone through an initial waiver request, the only potential cost to these tour operators is the cost of the initial request. Each owner or operator also will be required to notify the COTP before entering the safety zone. These entities shall notify the Coast Guard by phone; however, we do not estimate a cost for the call because the equipment already exists onboard the vessel and operators will make their calls in the normal course of a Captain's duty.

The Federal Government also will incur costs of this temporary final rule. Government costs to implement the rule include the one-time cost of reviewing the waiver requests (we do not estimate a cost for the time to receive a call from an owner or operator to when entering a safety zone because the COTP conducts this review in the normal course of the COTP duties). To process the written request, we estimate one non-commissioned officer with a rank of E-7, and three officers with ranks of O-4, O-5, and O-6 will take about one hour each to review the written request. Based on the labor rates in table 1, we estimate the total cost to the Government of the temporary final rule to be about $378.00. Table 1 below summarizes these Government costs.1

1 We obtained the hourly wage rates from Enclosure (2) of Commandant Instruction 7310.1R (29 March 2017) using the “In Government Rate”.

Table 1—Total Government Costs of the Temporary Final Rule Rank Wage rate Labor hours Total cost E-7 $65 1 $65 O-4 92 1 92 O-5 104 1 104 O-6 117 1 117 Total 4 378

We estimate the total cost of this temporary final rule to industry and the Government to be about $972 ($593.88 for lava tour-boat owners or operators + $378 for the Government).

B. Impact on Small Entities

The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. Rules that are exempt from the Administrative Procedures Act include interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice; or when the agency for good cause finds that notice and comment are impracticable, unnecessary, or contrary to the public interest. When an agency is not required to publish an NPRM for a rule, the RFA does not require an agency to prepare a regulatory flexibility analysis. The Coast Guard was not required to publish an NPRM for this rule for the reasons stated in section II. “Background Information and Regulatory History” and therefore is not required to publish a regulatory flexibility analysis.

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

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

C. Collection of Information

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

D. Federalism and Indian Tribal Governments

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

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

E. Unfunded Mandates Reform Act

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

F. Environment

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a temporary safety zone lasting 6 months that will prohibit persons and vessels from entry into the 300 meters (984 feet) safety zone extending in all directions around the entry of lava flow into the Pacific Ocean. This safety zone is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this rule.

G. Protest Activities

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

List of Subjects in 33 CFR Part 165

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

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

Title 33—Navigation and Navigable Waters PART 165—REGULATED NAVIGATION AREAS AND LIMITED ACCESS AREAS 1. The authority citation for part 165 continues to read as follows: Authority:

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

2. Add § 165.T14-0172 to read as follows:
§ 165.T14-0172 Safety Zone; Pacific Ocean, Kilauea Lava Flow Ocean Entry on Southeast Side of Island of Hawaii, HI.

(a) Location. The safety zone area is located within the Captain of the Port (COTP) Zone (see 33 CFR 3.70-10) and it encompasses one primary area from the surface of the water to the ocean floor at the Kilauea active lava flow entry into the Pacific Ocean on the southeast side of the Island of Hawaii, HI. The entry point of the lava does change based on flow; however, the safety zone will encompass all waters extending 300 meters (984 feet) in all directions around the entry point of lava flow into the ocean associated with the lava flow at the Kamokuna lava delta.

(b) Enforcement period. This rule is effective from September 28, 2017, through March 28, 2018.

(c) Definitions. As used in this section, “designated representative” means a Coast Guard Patrol Commander, including a Coast Guard coxswain, petty officer or other officer on a Coast Guard vessel or a Federal, State, or local officer designated by or assisting the COTP in the enforcement of the safety zones.

(d) Regulations. The general regulations governing safety zones contained in § 165.23 apply to the safety zone created by this temporary final rule.

(1) All persons and vessels are required to comply with the general regulations governing safety zones found in this part.

(2) Entry into or remaining in this safety zone is prohibited unless authorized by the COTP Honolulu or his designated representative.

(3) Persons or vessels desiring to transit the safety zone identified in paragraph (a) of this section may contact the COTP Honolulu through his designated representatives at the Command Center via telephone: 808-842-2600 and 808-842-2601; fax: 808-842-2642; or on VHF channel 16 (156.8 Mhz) to request permission to transit the safety zone. All safety zone transit requests must be in writing. If permission is granted, all persons and vessels must comply with the instructions of the COTP Honolulu or his designated representative and proceed at the minimum speed necessary to maintain a safe course while in the safety zone.

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

Dated: September 25, 2017. M.C. Long, Captain, U.S. Coast Guard, Captain of the Port Honolulu.
[FR Doc. 2017-20902 Filed 9-28-17; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2017-0874] Safety Zone; Allegheny River Miles 0.0-1.0, Pittsburgh, PA AGENCY:

Coast Guard, DHS.

ACTION:

Notice of enforcement of regulation.

SUMMARY:

The Coast Guard will enforce the subject safety zone for the Pittsburgh Downtown Partnership/Light Up Night Fireworks on all navigable waters of the Allegheny River miles 0.0 to 1.0, extending the entire width of the river. The zone is needed to protect vessels transiting the area and event spectators from the hazards associated with the barge-based fireworks display. During the enforcement period, entry into, transiting, or anchoring in the safety zone is prohibited to all vessels not registered with the sponsor as participants or official patrol vessels, unless specifically authorized by the Captain of the Port Marine Safety Unit Pittsburgh (COTP) or a designated representative.

DATES:

The regulations in 33 CFR 165.801 Table 1, Sector Ohio Valley, No. 37 will be enforced on November 17, 2017.

FOR FURTHER INFORMATION CONTACT:

If you have questions about this notice of enforcement, call or email MST1 Jennifer Haggins, Marine Safety Unit Pittsburgh, U.S. Coast Guard; telephone 412-221-0807, email [email protected]

SUPPLEMENTARY INFORMATION:

The Coast Guard will enforce the Safety Zone for the Pittsburgh Downtown Partnership/Light Up Night Fireworks on the Allegheny River, listed in 33 CFR 165.801 Table 1, Sector Ohio Valley, No. 37 on November 17, 2017. Entry into the safety zone is prohibited unless authorized by the COTP or a designated representative. Persons or vessels desiring to enter into or passage through the safety zone must request permission from the COTP or a designated representative. If permission is granted, all persons and vessels shall comply with the instructions of the COTP or designated representative.

This notice of enforcement is issued under authority of 33 CFR 165.801 and 5 U.S.C. 552(a). In addition to this notice in the Federal Register, the Coast Guard will provide the maritime community with advance notification of this enforcement period via Local Notice to Mariners and updates via Marine Information Broadcasts.

Dated: September 14, 2017. L. McClain, Jr., Commander, U.S. Coast Guard, Captain of the Port Marine Safety Unit Pittsburgh.
[FR Doc. 2017-20931 Filed 9-28-17; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 165 [Docket No. USCG-2017-0679] Safety Zone; North Atlantic Ocean, Ocean City, NJ AGENCY:

Coast Guard, DHS.

ACTION:

Notice of enforcement of regulation; change of enforcement date.

SUMMARY:

On August 7, 2017, the Coast Guard provided notice in the Federal Register that the agency would enforce the North Atlantic Ocean, Ocean City, NJ, safety zone from 9:00 p.m. through 11:59 p.m. on October 10, 2017. The purpose of this document is to announce a change in the enforcement date. The zone will be enforced on October 7, 2017, instead of October 10, 2017.

DATES:

The regulations in 33 CFR 165.506 will be enforced from 9 p.m. to 11:59 p.m. on October 7, 2017, for the safety zone listed as (a.)11 in the Table to § 165.506.

FOR FURTHER INFORMATION CONTACT:

If you have questions about this notice of enforcement, you may call or email MST2 Amanda Boone, Sector Delaware Bay Waterways Management Division, U.S. Coast Guard; telephone 215-271-4889, email [email protected]

SUPPLEMENTARY INFORMATION:

Please refer to the notice of enforcement published in the Federal Register on August 7, 2017 (82 FR 36688), FR Doc. 2017-16506.

Dated: September 22, 2017. Scott E. Anderson, Captain, U.S. Coast Guard, Captain of the Port Delaware Bay.
[FR Doc. 2017-20900 Filed 9-28-17; 8:45 am] BILLING CODE 9110-04-P
DEPARTMENT OF EDUCATION 34 CFR Parts 668, 674, 682, and 685 Federal Student Aid Programs (Student Assistance General Provisions, Federal Perkins Loan Program, Federal Family Education Loan Program, and the Federal Direct Loan Program) AGENCY:

Office of Postsecondary Education, Department of Education.

ACTION:

Updated waivers and modifications of statutory and regulatory requirements.

SUMMARY:

The Secretary is issuing updated waivers and modifications of statutory and regulatory requirements governing the Federal student financial aid programs under the authority of the Higher Education Relief Opportunities for Students Act of 2003 (HEROES Act). The HEROES Act requires the Secretary to publish a document in the Federal Register announcing the waivers or modifications of statutory or regulatory requirements applicable to the student financial assistance programs under title IV of the Higher Education Act of 1965, as amended (HEA), to assist individuals who are performing qualifying military service, and individuals who are affected by a disaster, war or other military operation, or national emergency, as described in the SUPPLEMENTARY INFORMATION section of this document.

DATES:

The waivers and modifications begin on September 29, 2017. The waivers and modifications in this document expire on September 30, 2022.

FOR FURTHER INFORMATION CONTACT:

For provisions related to the title IV loan programs (Federal Perkins Loan Program, Federal Family Education Loan (FFEL) Program, and Federal Direct Loan (Direct Loan) Program): Barbara Hoblitzell, U.S. Department of Education, 400 Maryland Ave. SW., Room 6W253, Washington, DC 20202. Telephone: (202) 453-7583 or by email: [email protected] or Brian Smith, U.S. Department of Education, 400 Maryland Ave. SW., Room 7E222, Washington, DC 20202. Telephone: (202) 453-7440 or by email: [email protected] For other provisions: Wendy Macias, U.S. Department of Education, 400 Maryland Ave. SW., Room 6C111, Washington, DC 20202. Telephone: (202) 203-9155 or by email: [email protected]

If you use a telecommunications device for the deaf (TDD) or text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

Individuals with disabilities can obtain this document in an accessible format (e.g., Braille, large print, audiotape, or compact disc) by contacting Wendy Macias, U.S. Department of Education, 400 Maryland Ave. SW., Room 6C111, Washington, DC 20202. Telephone: (202) 203-9155 or by email: [email protected]

SUPPLEMENTARY INFORMATION:

In a document published in the Federal Register on December 12, 2003 (68 FR 69312), the Secretary exercised the authority under the HEROES Act (Pub. L. 108-76, 20 U.S.C. 1098bb(b)) and announced waivers and modifications of statutory and regulatory provisions designed to assist “affected individuals.” Under 20 U.S.C. 1098ee(2), the term “affected individual” means an individual who:

• Is serving on active duty during a war or other military operation or national emergency;

• Is performing qualifying National Guard duty during a war or other military operation or national emergency;

• Resides or is employed in an area that is declared a disaster area by any Federal, State, or local official in connection with a national emergency; or

• Suffered direct economic hardship as a direct result of a war or other military operation or national emergency, as determined by the Secretary.

Please note that these waivers and modifications do not apply to an individual who resides or is employed in an area declared a disaster area by any Federal, State, or local official unless that declaration has been made in connection with a national emergency.

Under the HEROES Act, the Secretary's authority to provide the waivers and modifications would have expired on September 30, 2005. However, Public Law 109-78, enacted on September 30, 2005, extended the expiration date of the Secretary's authority to September 30, 2007. Accordingly, in a document in the Federal Register published on October 20, 2005 (70 FR 61037), the Secretary extended the expiration of the waivers and modifications published on December 12, 2003, to September 30, 2007.

Public Law 110-93, enacted on September 30, 2007, eliminated the September 30, 2007, expiration date of the HEROES Act, thereby making permanent the Secretary's authority to issue waivers and modifications of statutory and regulatory provisions.

On December 26, 2007, the Secretary published a document in the Federal Register (72 FR 72947) extending the waivers and modifications published on December 12, 2003, to September 30, 2012. In that document, the Secretary also indicated an intent to review the waivers and modifications published on December 12, 2003, in light of statutory and regulatory changes and to consider whether to change some or all of the published waivers and modifications.

In a document in the Federal Register published on September 27, 2012 (77 FR 59311), the Secretary published updated waivers and modifications to reflect the results of the review. Under that document, the updated waivers and modifications expire on September 30, 2017.

The Secretary is updating the waivers and modifications to reflect statutory and regulatory changes that have occurred since the September 27, 2012, document was published. The waivers and modifications in this document will expire on September 30, 2022. With a few limited exceptions, the waivers and modifications in this document are the same waivers and modifications published in the September 27, 2012, Federal Register document. However, the 2012 waivers and modifications have been updated in the following areas:

(1) The Secretary updated the need analysis modification to reflect the change in which tax year's information is collected on the Free Application for Federal Student Aid (FAFSA) and used to calculate the applicant's expected family contribution (EFC). Previously when completing a FAFSA, a student provided income information from the most recently completed tax year prior to the beginning of the financial aid application cycle (e.g., 2015 income information for the 2016-2017 FAFSA). Beginning with the 2017-2018 FAFSA, income information is collected from one tax year earlier—referred to as the “prior-prior year.” This change was made under the authority of section 480(a)(1)(B) of the HEA. This modification was also updated to make it consistent with the modification to professional judgment included in this document, which provides three options that a financial aid administrator (FAA) may use to make adjustments to the values of the items used to calculate the EFC to reflect a student's special circumstances.

(2) For the professional judgment modification, the Secretary clarified that in addition to using income information from the first or second calendar year of the award year, an institution may use another annual income that more accurately reflects the family's current financial circumstances.

(3) The Secretary updated the modifications related to verification of adjusted gross income (AGI) and U.S. income tax paid so that affected individuals under this category are no longer required to provide a signature on the statement certifying that he or she has not filed an income tax return or a request for a filing extension because he or she was called up for active duty or for qualifying National Guard duty during a war or other military operation or national emergency; or certifying the amount of AGI and U.S. income tax paid for the specified year.

(4) The Secretary extended the waiver assisting affected individuals with regard to the annual reevaluation requirements for FFEL and Direct Loan borrowers who are repaying loans under the Income-Based Repayment (IBR) plan, and Direct Loan borrowers who are repaying loans under the Income-Contingent Repayment (ICR) plan to include borrowers who are repaying Direct Loans under the Pay As You Earn (PAYE) or Revised Pay As You Earn (REPAYE) repayment plans.

(5) For the fourth category of affected individuals to which waivers and modifications apply, as described later in this document, the Secretary removed the reference to spouses of affected individuals who are serving on active duty or performing qualifying National Guard duty during a war or other military operation or national emergency, since the waivers under this category only pertain to the dependent student of such affected individuals.

(6) The Secretary updated the waiver related to verification signature requirements to waive the requirement for a parental signature on any verification documentation required for title IV eligibility for a dependent student because of the parent's status as an affected individual.

(7) The Secretary made a technical change to the waiver related to the section on required signatures on the FAFSA, the Student Aid Report (SAR), and the Institutional Student Information Record (ISIR), replacing the reference to “ISIR” with “or submitting corrections electronically”. The Secretary also changed the reference to “responsible parent” to “relevant parent” to mean the parent whose information is reported on the FAFSA.

The Secretary is issuing these waivers and modifications under the authority of the HEROES Act, 20 U.S.C. 1098bb(a). In accordance with the HEROES Act, the Secretary is providing the waivers and modifications of statutory and regulatory requirements applicable to the student financial assistance programs under title IV of the HEA that the Secretary believes are appropriate to ensure that:

• Affected individuals who are recipients of student financial assistance under title IV are not placed in a worse position financially in relation to that financial assistance because they are affected individuals;

• Affected individuals who are recipients of student financial assistance are not unduly subject to administrative burden or inadvertent, technical violations or defaults;

• Affected individuals are not penalized when a determination of need for student financial assistance is calculated;

• Affected individuals are not required to return or repay an overpayment of grant funds based on the HEA's Return of Title IV Funds provision; and

• Entities that participate in the student financial assistance programs under title IV of the HEA and that are located in areas that are declared disaster areas by any Federal, State, or local official in connection with a national emergency, or whose operations are significantly affected by such a disaster, receive temporary relief from administrative requirements.

In 20 U.S.C. 1098bb(b)(1), the HEROES Act further provides that section 437 of the General Education Provisions Act (20 U.S.C. 1232) and section 553 of the Administrative Procedure Act (5 U.S.C. 553) do not apply to the contents of this document.

The following terms used in this document are defined in 20 U.S.C. 1098ee: Active duty, military operation, national emergency, qualifying National Guard duty during a war or other military operation or national emergency, and serving on active duty during a war or other military operation or national emergency.

The following waivers and modifications are grouped into four categories, according to the affected individuals to whom they apply.

Category 1: The Secretary is waiving or modifying the following requirements of title IV of the HEA and the Department of Education's (Department's) regulations for ALL affected individuals.

Need Analysis

Section 480 of the HEA provides that, in the calculation of an applicant's EFC, the term “total income,” which is used in the determination of “annual adjusted family income” and “available income,” is equal to the applicant's, the applicant's spouse's, or the applicant's parent's AGI plus untaxed income and benefits for the second preceding tax year minus excludable income. The HEROES Act allows an institution to substitute AGI plus untaxed income and benefits received in the first calendar year of the award year for which such determination is made for any affected individual, and for his or her spouse and dependents, if applicable, in order to reflect more accurately the financial condition of an affected individual and his or her family. The Secretary has determined that an institution has the option of using the applicant's original EFC (the EFC based on the income and tax information reported on the FAFSA), the EFC based on the data from the first calendar year of the award year, or the EFC based on another annual income that more accurately reflects the family's current financial circumstances.

If an institution chooses to use anything other than the original EFC, it should use the administrative professional judgment options discussed in the following section.

Professional Judgment

Section 479A of the HEA specifically gives the FAA at an institution the authority to use professional judgment to make, on a case-by-case basis, adjustments to the cost of attendance or to the values of the items used in calculating the EFC to reflect a student's special circumstances. The Secretary is modifying this provision by removing the requirement that adjustments be made on a case-by-case basis for affected individuals. The use of professional judgment in Federal need analysis is discussed in the Federal Student Aid Handbook available at www.ifap.ed.gov.

The Secretary encourages FAAs to use professional judgment to reflect more accurately the financial need of affected individuals. To that end, the Secretary encourages institutions to determine an affected individual's need using one of the options listed below:

• Using the AGI plus untaxed income and benefits received in the first calendar year of the award year;

• Using another annual income that more accurately reflects the family's current financial circumstances; or

• Making no modifications.

The FAA must clearly document the reasons for any adjustment and the facts supporting the decision. In almost all cases, the FAA should have documentation from a third party with knowledge of the student's special circumstances. As usual, any professional judgment decisions made by an FAA that affect a student's eligibility for a subsidized student financial assistance program must be reported to the Central Processing System.

Return of Title IV Funds—Grant Overpayments Owed by the Student

Section 484B(b)(2) of the HEA and 34 CFR 668.22(h)(3)(ii) require a student to return or repay, as appropriate, unearned grant funds for which the student is responsible under the Return of Title IV Funds calculation. For a student who withdraws from an institution because of his or her status as an affected individual, the Secretary is waiving these statutory and regulatory requirements so that a student is not required to return or repay any overpayment of grant funds based on the Return of Title IV Funds provisions.

For these students, the Secretary also waives 34 CFR 668.22(h)(4), which:

• Requires an institution to notify a student of a grant overpayment and the actions the student must take to resolve the overpayment;

• Denies eligibility to a student who owes a grant overpayment and does not take an action to resolve the overpayment; and

• Requires an institution to refer a grant overpayment to the Secretary under certain conditions.

Therefore, an institution is not required to contact the student, notify the National Student Loan Data System, or refer the overpayment to the Secretary. However, the institution must document in the student's file the amount of any overpayment as part of the documentation of the application of this waiver.

The student is not required to return or repay an overpayment of grant funds based on the Return of Title IV Funds provision. Therefore, an institution must not apply any title IV credit balance to the grant overpayment prior to: Using a credit balance to pay authorized charges; paying any amount of the title IV credit balance to the student or parent, in the case of a parent PLUS loan; or using the credit balance to reduce the student's title IV loan debt (with the student's authorization) as provided in Dear Colleague Letter GEN-04-03 (February 2004; revised November 2004).

Verification of AGI and U.S. Income Tax Paid

Pursuant to 34 CFR 668.57(a)(3)(ii), for an individual who is required to file a U.S. income tax return and has been granted a filing extension by the Internal Revenue Service (IRS), an institution must accept, in lieu of an income tax return for verification of AGI or U.S. income tax paid:

• A copy of IRS Form 4868, “Application for Automatic Extension of Time to File U.S. Individual Income Tax Return,” that the individual filed with the IRS for the specified year, or a copy of the IRS's approval of an extension beyond the automatic six-month extension if the individual requested an additional extension of the filing time; and

• A copy of each IRS Form W-2 that the individual received for the specified year or, for a self-employed individual, a statement signed by the individual certifying the amount of AGI and U.S. income tax paid for the specified year.

The Secretary is modifying the requirement of this provision so that the submission of a copy of IRS Form 4868 or a copy of the IRS's approval of an extension beyond the six-month extension is not required if an affected individual has not filed an income tax return by the filing deadline.

For these individuals, an institution must accept, in lieu of an income tax return for verification of AGI and U.S. income tax paid:

• A statement from the individual certifying that he or she has not filed an income tax return or a request for a filing extension because he or she was called up for active duty or for qualifying National Guard duty during a war or other military operation or national emergency; and

• A copy of each W-2 received for the specified year or, for a self-employed individual, a statement by the individual certifying the amount of AGI and U.S. income tax paid for the specified year.

An institution may request that an individual granted a filing extension submit tax information using the IRS Data Retrieval Tool, or by obtaining a tax return transcript from the IRS that lists tax account information for the specified year after the income tax return is filed. If an institution receives the tax information, it must verify the income information of the tax filer(s).

Category 2: The Secretary is waiving or modifying requirements in the following provisions of title IV of the HEA and the Department's regulations for affected individuals who are serving on active duty or performing qualifying National Guard duty during a war or other military operation or national emergency, or who reside or are employed in a disaster area.

Return of Title IV Funds—Post-Withdrawal Disbursements of Loan Funds

Under 34 CFR 668.22(a)(6)(iii)(A)(5) and (D), a student (or parent for a parent PLUS loan) must be provided a post-withdrawal disbursement of a title IV loan if the student (or parent) responds to an institution's notification of the post-withdrawal disbursement within 14 days of the date that the institution sent the notice, or a later deadline set by the institution. If a student or parent submits a late response, an institution may, but is not required to, make the post-withdrawal disbursement.

The Secretary is modifying this requirement so that, for a student who withdraws because of his or her status as an affected individual in this category and who is eligible for a post-withdrawal disbursement, the 14-day time period in which the student (or parent) must normally respond to the offer of the post-withdrawal disbursement is extended to 45 days, or to a later deadline set by the institution. If the student or parent submits a response after the designated period, the institution may, but is not required to, make the post-withdrawal disbursement. As required under the current regulations, if the student or parent submits the timely response instructing the institution to make all or a portion of the post-withdrawal disbursement, or the institution chooses to make a post-withdrawal disbursement based on receipt of a late response, the institution must disburse the funds within 180 days of the date of the institution's determination that the student withdrew.

Leaves of Absence

Under 34 CFR 668.22(d)(3)(iii)(B), a student is required to provide a written, signed, and dated request, which includes the reason for that request, for an approved leave of absence prior to the leave of absence. However, if unforeseen circumstances prevent a student from providing a prior written request, the institution may grant the student's request for a leave of absence if the institution documents its decision and collects the written request at a later date. It may be appropriate in certain limited cases for an institution to provide an approved leave of absence to a student who must interrupt his or her enrollment because he or she is an affected individual in this category. Therefore, the Secretary is waiving the requirement that the student provide a written request for affected individuals who have difficulty providing a written request as a result of being an affected individual in this category. The institution's documentation of its decision to grant the leave of absence must include, in addition to the reason for the leave of absence, the reason for waiving the requirement that the leave of absence be requested in writing.

Treatment of Title IV Credit Balances When a Student Withdraws

Under 34 CFR 668.164(h)(2), an institution must pay any title IV credit balance to the student, or parent in the case of a parent PLUS loan, as soon as possible, but no later than: 14 days after the balance occurred if the balance occurred after the first day of class of a payment period; or 14 days after the first day of class of a payment period if the balance occurred on or before the first day of class of that payment period. If the student (or parent) has provided authorization, an institution may use a title IV credit balance to reduce the borrower's total title IV loan debt, not just the title IV loan debt for the period for which the Return of Title IV Funds calculation is performed.

For students who withdraw because they are affected individuals in this category, the Secretary finds that the institution has met the 14-day requirement under 34 CFR 668.164(h)(2) if, within that timeframe, the institution attempts to contact the student (or parent) to suggest that the institution be authorized to return the credit balance to the loan program(s).

Based upon the instructions of the student (or parent), the institution must promptly return the funds to the title IV loan programs or pay the credit balance to the student (or parent).

In addition, if an institution chooses to attempt to contact the student (or parent) for authorization to apply the credit balance to reduce the student's title IV loan debt, it must allow the student (or parent) 45 days to respond. If there is no response within 45 days, the institution must promptly pay the credit balance to the student (or parent) or return the funds to the title IV programs if the student (or parent) cannot be located.

Consistent with the guidance provided in Dear Colleague Letter GEN-04-03 (February 2004; revised November 2004), the institution may also choose to pay the credit balance to the student (or parent) without first requesting permission to apply the credit balance to reduce the student's title IV loan debt.

Cash Management—Student or Parent Request for Loan or TEACH Grant Cancellation

Under 34 CFR 668.165(a)(4)(ii), an institution must return loan or TEACH Grant proceeds, cancel the loan or TEACH Grant, or do both, if the institution receives a loan or TEACH Grant cancellation request from a student or parent:

• By the later of the first day of a payment period or 14 days after the date the institution notifies the student or parent of his or her right to cancel all or a portion of a loan or TEACH Grant, if the institution obtains affirmative confirmation from the student under 34 CFR 668.165(a)(6)(i); or

• Within 30 days of the date the institution notifies the student or parent of his or her right to cancel all or a portion of a loan, if the institution does not obtain affirmative confirmation from the student under 34 CFR 668.165(a)(6)(i).

Under 34 CFR 668.165(a)(4)(iii), if an institution receives a loan cancellation request from a borrower after the period specified in 34 CFR 668.165(a)(4)(ii), the institution may, but is not required to, comply with the request. For a student or parent who is an affected individual in this category, the Secretary is modifying this requirement so that an institution must allow at least 60 days for the student or parent to request the cancellation of all or a portion of a loan or TEACH Grant for which proceeds have been credited to the account at the institution. If an institution receives a loan or TEACH Grant cancellation request after the 60-day period, the institution may, but is not required to, comply with the request.

Cash Management—Student and Parent Authorizations

Under 34 CFR 668.165(b)(1), an institution must obtain a written authorization from a student or parent, as applicable, to:

• Use title IV funds to pay for educationally related charges incurred by the student at the institution other than charges for tuition and fees and, as applicable, room and board; and

• Hold on behalf of the student or parent any title IV funds that would otherwise be paid directly to the student or parent.

The Secretary is modifying these requirements to permit an institution to accept an authorization provided by a student (or parent for a parent PLUS loan) orally, rather than in writing, if the student or parent is prevented from providing a written authorization because of his or her status as an affected individual in this category. The institution must document the oral consent or authorization.

Satisfactory Academic Progress

Institutions may, in cases where a student failed to meet the institution's satisfactory academic progress standards as a direct result of being an affected individual in this category, apply the exception provision of “other special circumstances” contained in 34 CFR 668.34(a)(9)(ii).

Borrowers in a Grace Period

Sections 428(b)(7)(D) and 464(c)(7) of the HEA and 34 CFR 674.31(b)(2)(i)(C), 682.209(a)(5), and 685.207(b)(2)(ii) and (c)(2)(ii) exclude from a Federal Perkins Loan, FFEL, or Direct Loan borrower's (title IV borrower's) initial grace period any period during which a borrower who is a member of an Armed Forces reserve component is called or ordered to active duty for a period of more than 30 days. The statutory and regulatory provisions further require that any single excluded period may not exceed three years and must include the time necessary for the borrower to resume enrollment at the next available regular enrollment period. Lastly, any borrower who is in a grace period when called or ordered to active duty is entitled to another six- or nine-month grace period, as applicable, upon completion of the excluded period of service.

The Secretary is modifying these statutory and regulatory requirements to exclude from a title IV borrower's initial grace period, any period, not to exceed three years, during which a borrower is an affected individual in this category. Any excluded period must include the time necessary for an affected individual in this category to resume enrollment at the next available enrollment period.

Borrowers in an “In-School” Period

A title IV borrower is considered to be in an “in-school” status and is not required to make payments on a title IV loan that has not entered repayment as long as the borrower is enrolled at an eligible institution on at least a half-time basis. Under sections 428(b)(7) and 464(c)(1)(A) of the HEA and 34 CFR 674.31(b)(2), 682.209(a), and 685.207(b), (c), and (e)(2) and (3), when a title IV borrower ceases to be enrolled at an eligible institution on at least a half-time basis, the borrower is obligated to begin repayment of the loan after a six- or nine-month grace period, depending on the title IV loan program and the terms of the borrower's promissory note. The Secretary is modifying the statutory and regulatory requirements that obligate an “in-school” borrower who has dropped below half-time status to begin repayment if the borrower is an affected individual in this category, by requiring the holder of the loan to maintain the loan in an “in-school” status for a period not to exceed three years, including the time necessary for the borrower to resume enrollment in the next regular enrollment period, if the borrower is planning to go back to school. The Secretary will pay interest that accrues on a subsidized Stafford Loan as a result of the extension of a borrower's in-school status under this modification.

Borrowers in an In-School, Graduate Fellowship, or Rehabilitation Training Program Deferment

Under sections 427(a)(2)(C)(i), 428(b)(1)(M)(i), 428B(a)(2) and (d)(1), 428C(b)(4)(C), 455(f)(2)(A), and 464(c)(2)(A)(i) of the HEA and 34 CFR 674.34(b)(1), 682.210(b)(1)(i), (ii), and (iii), 682.210(s)(2), (3), and (4), 685.204(b), 685.204(d), and 685.204(e), a title IV borrower is eligible for a deferment on the loan during periods after the commencement or resumption of the repayment period on the loan when the borrower is enrolled and in attendance as a regular student on at least a half-time basis (or full-time, if required by the terms of the borrower's promissory note) at an eligible institution; enrolled and in attendance as a regular student in a course of study that is part of a graduate fellowship program; engaged in an eligible rehabilitation training program; or, for Federal Perkins Loan borrowers, engaged in graduate or post-graduate fellowship-supported study outside the United States. The borrower's deferment period ends when the borrower no longer meets one of the above conditions.

The Secretary is waiving the statutory and regulatory eligibility requirements for this deferment for title IV borrowers who were required to interrupt a graduate fellowship or rehabilitation training program deferment, or who were in an in-school deferment but who left school, because of their status as an affected individual in this category. The holder of the loan is required to maintain the loan in the graduate fellowship, rehabilitation training program, or in-school deferment status for a period not to exceed three years during which the borrower is an affected individual in this category. This period includes the time necessary for the borrower to resume his or her graduate fellowship program, resume a rehabilitation training program, or resume enrollment in the next regular enrollment period if the borrower returns to school. The Secretary will pay interest that accrues on a FFEL subsidized Stafford Loan or not charge interest on a Direct subsidized Stafford Loan as a result of extending a borrower's eligibility for deferment under this waiver.

Forbearance

Under section 464(e) of the HEA and 34 CFR 674.33(d)(2), there is a three-year cumulative limit on the length of forbearances that a Federal Perkins Loan borrower can receive. To assist Federal Perkins Loan borrowers who are affected individuals in this category, the Secretary is waiving these statutory and regulatory requirements so that any forbearance based on a borrower's status as an affected individual in this category is excluded from the three-year cumulative limit.

Under section 464(e) of the HEA and 34 CFR 674.33(d)(2) and (3), a school must receive a request and supporting documentation from a Federal Perkins Loan borrower before granting the borrower a forbearance, the terms of which must be in the form of a written agreement. The Secretary is waiving these statutory and regulatory requirements to require an institution to grant forbearance based on the borrower's status as an affected individual in this category for a one-year period, including a three-month “transition period” immediately following, without supporting documentation or a written agreement, based on the written or oral request of the borrower, a member of the borrower's family, or another reliable source. The purpose of the three-month transition period is to assist borrowers so that they will not be required to reenter repayment immediately after they are no longer affected individuals in this category. In order to grant the borrower forbearance beyond the initial twelve- to fifteen-month period, supporting documentation from the borrower, a member of the borrower's family, or another reliable source is required.

Under 34 CFR 682.211(i)(1), a FFEL borrower who requests forbearance because of a military mobilization must provide the loan holder with documentation showing that he or she is subject to a military mobilization. The Secretary is waiving this requirement to allow a borrower who is not otherwise eligible for the military service deferment under 34 CFR 682.210(t), 685.204(h), and 674.34(h) to receive forbearance at the request of the borrower, a member of the borrower's family, or another reliable source for a one-year period, including a three-month transition period that immediately follows, without providing the loan holder with documentation. To grant the borrower forbearance beyond this period, documentation supporting the borrower's military mobilization must be submitted to the loan holder.

The Secretary will apply the forbearance waivers and modifications in this section to loans held by the Department.

Collection of Defaulted Loans

In accordance with 34 CFR part 674, subpart C—Due Diligence, and 682.410(b)(6), schools and guaranty agencies must attempt to recover amounts owed from defaulted Federal Perkins Loan and FFEL borrowers, respectively. The Secretary is waiving the regulatory provisions that require schools and guaranty agencies to attempt collection on defaulted loans for the time period during which the borrower is an affected individual in this category and for a three-month transition period. The school or guaranty agency may stop collection activities upon notification by the borrower, a member of the borrower's family, or another reliable source that the borrower is an affected individual in this category. Collection activities must resume after the borrower has notified the school or guaranty agency that he or she is no longer an affected individual and the three-month transition period has expired. The loan holder must document in the loan file why it has suspended collection activities on the loan, and the loan holder is not required to obtain evidence of the borrower's status while collection activities have been suspended. The Secretary will apply the waivers described in this paragraph to loans held by the Department.

Loan Cancellation

Depending on the loan program, borrowers may qualify for loan cancellation if they are employed fulltime in specified occupations, such as teaching or in law enforcement, pursuant to sections 428J, 460(b)(1), and 465(a)(2)(A)-(M) and (3) of the HEA, and 34 CFR 674.53, 674.55, 674.55(b), 674.56, 674.57, 674.58, 674.60, 682.216, and 685.217. Generally, to qualify for loan cancellation, borrowers must perform uninterrupted, otherwise qualifying service for a specified length of time (for example, one year) or for consecutive periods of time, such as five consecutive years.

For borrowers who are affected individuals in this category, the Secretary is waiving the requirements that apply to the various loan cancellations that such periods of service be uninterrupted or consecutive, if the reason for the interruption is related to the borrower's status as an affected individual in this category. Therefore, the service period required for the borrower to receive or retain a loan cancellation for which he or she is otherwise eligible will not be considered interrupted by any period during which the borrower is an affected individual in this category, including the three-month transition period. The Secretary will apply the waivers described in this paragraph to loans held by the Department.

Rehabilitation of Defaulted Loans

A borrower of a Direct Loan or FFEL Loan must make nine voluntary on-time, monthly payments over ten consecutive months to rehabilitate a defaulted loan in accordance with section 428F(a) of the HEA and 34 CFR 682.405 and 685.211(f). Federal Perkins Loan borrowers must make nine consecutive, on-time monthly payments to rehabilitate a defaulted Federal Perkins Loan in accordance with section 464(h)(1)(A) of the HEA and 34 CFR 674.39. To assist title IV borrowers who are affected individuals in this category, the Secretary is waiving the statutory and regulatory requirements that payments made to rehabilitate a loan must be consecutive or made over no more than ten consecutive months. Loan holders should not treat any payment missed during the time that a borrower is an affected individual in this category, or during the three-month transition period, as an interruption in the number of monthly, on-time payments required to be made consecutively, or the number of consecutive months in which payment is required to be made, for loan rehabilitation. If there is an arrangement or agreement in place between the borrower and loan holder and the borrower makes a payment during this period, the loan holder must treat the payment as an eligible payment in the required series of payments. When the borrower is no longer an affected individual in this category, and the three-month transition period has expired, the required sequence of qualifying payments may resume at the point they were discontinued as a result of the borrower's status. The Secretary will apply the waivers described in this paragraph to loans held by the Department.

Reinstatement of Title IV Eligibility

Under sections 428F(b) and 464(h)(2) of the HEA and under the definition of “satisfactory repayment arrangement” in 34 CFR 668.35(a)(2), 674.2(b), 682.200(b), and 685.102(b), a defaulted title IV borrower may make six consecutive, on-time, voluntary, full, monthly payments to reestablish eligibility for title IV student financial assistance. To assist title IV borrowers who are affected individuals in this category, the Secretary is waiving statutory and regulatory provisions that require the borrower to make consecutive payments to reestablish eligibility for title IV student financial assistance. Loan holders should not treat any payment missed during the time that a borrower is an affected individual in this category as an interruption in the six consecutive, on-time, voluntary, full, monthly payments required for reestablishing title IV eligibility. If there is an arrangement or agreement in place between the borrower and loan holder and the borrower makes a payment during this period, the loan holder must treat the payment as an eligible payment in the required series of payments. When the borrower is no longer an affected individual or in the three-month transition period for purposes of this document, the required sequence of qualifying payments may resume at the point they were discontinued as a result of the borrower's status. The Secretary will apply the waivers described in this paragraph to loans held by the Department.

Consolidation of Defaulted Loans

Under the definition of “satisfactory repayment arrangement” in 34 CFR 685.102(b), a defaulted FFEL or Direct Loan borrower may establish eligibility to consolidate a defaulted loan in the Direct Consolidation Loan Program by making three consecutive, voluntary, on-time, monthly, full payments on the loan. The Secretary is waiving the regulatory requirement that such payments be consecutive. FFEL loan holders should not treat any payment missed during the time that a borrower is an affected individual in this category as an interruption in the three consecutive, voluntary, monthly, full, on-time payments required for establishing eligibility to consolidate a defaulted loan in the Direct Consolidation Loan Program. If there is an arrangement or agreement in place between the borrower and loan holder and the borrower makes a payment during this period, the loan holder must treat the payment as an eligible payment in the required series of payments. When the borrower is no longer an affected individual in this category or in the three-month transition period, the required sequence of qualifying payments may resume at the point they were discontinued as a result of the borrower's status as an affected individual. The Secretary will apply the waivers described in this paragraph to loans held by the Department.

Annual Income Documentation Requirements for Direct Loan and FFEL Borrowers Under the IBR, PAYE, REPAYE, and ICR Plans

Section 493C(c) of the HEA requires the Secretary to establish procedures for annually determining a borrower's eligibility for the IBR plan, including verification of a borrower's annual income and the annual amount due on the total amount of the borrower's loans. Section 455(e)(1) of the HEA provides that the Secretary may obtain such information as is reasonably necessary regarding the income of a borrower for the purpose of determining the annual repayment obligation of the borrower under an income-contingent repayment plan. Under 34 CFR 682.215(e), 685.209(a)(5), (b)(3), and (c)(4), and 685.221(e), borrowers repaying under the IBR, PAYE, REPAYE, or ICR plans must annually provide their loan holder with documentation of their income and family size so that the loan holder may, if necessary, adjust the borrower's monthly payment amount based on changes in the borrower's income or family size. Borrowers are required to provide information about their annual income and family size to the loan holder each year by a deadline specified by the holder. If a borrower who is repaying his or her loans under the IBR, PAYE, or ICR plans fails to provide the required information by the specified deadline, the borrower's monthly payment amount is adjusted and is no longer based on the borrower's income. This adjusted monthly payment amount is generally higher than the payment amount that was based on the borrower's income.

The Secretary is waiving these statutory and regulatory provisions to require loan holders to maintain an affected borrower's payment at the most recently calculated IBR, PAYE, REPAYE, or ICR monthly payment amount for up to a three-year period, including a three-month transition period immediately following the three-year period, if the borrower's status as an affected individual in this category has prevented the borrower from providing documentation of updated income and family size by the specified deadline.

Category 3: The Secretary is waiving or modifying the following provisions of title IV of the HEA and the Department's regulations for affected individuals who are serving on active duty or performing qualifying National Guard duty during a war or other military operation or national emergency.

Institutional Charges and Refunds

The HEROES Act encourages institutions to provide a full refund of tuition, fees, and other institutional charges for the portion of a period of instruction that a student was unable to complete, or for which the student did not receive academic credit, because he or she was called up for active duty or for qualifying National Guard duty during a war or other military operation or national emergency. Alternatively, the Secretary encourages institutions to provide a credit in a comparable amount against future charges.

The HEROES Act also recommends that institutions consider providing easy and flexible reenrollment options to students who are affected individuals in this category. At a minimum, an institution must comply with the requirements of 34 CFR 668.18, which addresses the readmission requirements for service members serving for a period of more than 30 consecutive days under certain conditions. Some institutions must also abide by the protections provided by the Principles of Excellence (Executive Order 13607, issued April 27, 2012) to service members who are absent for shorter periods of service. Institutions agree to comply with the Principles of Excellence through arrangements with the Department of Defense and the Department of Veterans Affairs. Executive Order 13607 is available at www.whitehouse.gov/the-press-office/2012/04/27/executive-order-establishing-principles-excellence-educational-instituti.

Of course, an institution may provide such treatment to affected individuals other than those who are called up to active duty or for qualifying National Guard duty during a war or other military operation or national emergency.

Before an institution makes a refund of institutional charges, it must perform the required Return of Title IV Funds calculations based upon the originally assessed institutional charges. After determining the amount that the institution must return to the title IV Federal student aid programs, any reduction of institutional charges may take into account the funds that the institution is required to return. In other words, we do not expect that an institution would both return funds to the Federal programs and also provide a refund of those same funds to the student.

Category 4: The Secretary is waiving or modifying the following provisions of the HEA and the Department's regulations for dependents of affected individuals who are serving on active duty or performing qualifying National Guard duty during a war or other military operation or national emergency.

Verification Signature Requirements

The Department's regulations in 34 CFR 668.57(b), (c), and (d) require signatures to verify the number of family members in the household, the number of family members enrolled in postsecondary institutions, or other information specified in the annual Federal Register document that announces the FAFSA information that an institution and an applicant may be required to verify, as well as the acceptable documentation for verifying that FAFSA information. The Secretary is waiving the requirement for a parent's signature on any verification documentation required for title IV eligibility for a dependent student when no relevant parent can provide the required signature because of the parent's status as an affected individual in this category.

Required Signatures on the FAFSA, SAR, or in Connection With Submitting Corrections Electronically

Generally, when a dependent applicant for title IV aid submits the FAFSA or submits corrections to a previously submitted FAFSA, at least one parent's signature is required on the FAFSA, SAR, or in connection with submitting corrections electronically. The Secretary is waiving this requirement so that an applicant need not provide a parent's signature when there is no relevant parent who can provide the required signature because of the parent's status as an affected individual in this category. In these situations, a student's high school counselor or the FAA may sign on behalf of the parent as long as the applicant provides adequate documentation concerning the parent's inability to provide a signature due to the parent's status as an affected individual in this category.

Electronic Access to This Document: The official version of this document is the document published in the Federal Register. Free internet access to the official edition of the Federal Register and the Code of Federal Regulations is available via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text or Portable Document Format (PDF). To use PDF you must have Adobe Acrobat Reader, which is available free at the site. You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

(Catalog of Federal Domestic Assistance Numbers: 84.007 Federal Supplemental Educational Opportunity Grant Program; 84.032 Federal Family Education Loan Program; 84.032 Federal PLUS Program; 84.033 Federal Work Study Program; 84.038 Federal Perkins Loan Program; 84.063 Federal Pell Grant Program; and 84.268 William D. Ford Federal Direct Loan Program.) Program Authority:

20 U.S.C. 1071, 1082, 1087a, 1087aa, Part F-1.

Kathleen A. Smith, Acting Assistant Secretary for Postsecondary Education.
[FR Doc. 2017-20844 Filed 9-28-17; 8:45 am] BILLING CODE 4000-01-P
ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R02-OAR-2016-0413; FRL-9968-63-Region 2] Approval and Promulgation of Implementation Plans; New Jersey; Regional Haze Five-Year Progress Report State Implementation Plan AGENCY:

Environmental Protection Agency (EPA).

ACTION:

Final rule.

SUMMARY:

The Environmental Protection Agency (EPA) is approving New Jersey's regional haze progress report, submitted on June 28, 2016, as a revision to its State Implementation Plan (SIP). New Jersey's SIP revision addresses requirements of the Clean Air Act and the EPA's rules that require each state to submit periodic reports describing progress towards reasonable progress goals established for regional haze and a determination of the adequacy of the state's existing regional haze SIP. The EPA is approving New Jersey's determination that the State's regional haze SIP is adequate to meet these reasonable progress goals for the first implementation period which extends through 2018.

DATES:

This rule is effective on October 30, 2017.

ADDRESSES:

The EPA has established a docket for this action under Docket ID No. EPA-R02-OAR-2016-0413. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available through www.regulations.gov, or please contact the person identified in the For Further Information Contact section for additional availability information.

FOR FURTHER INFORMATION CONTACT:

Kirk J. Wieber, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10278, (212) 637-3381 or [email protected]

SUPPLEMENTARY INFORMATION:

I. Background

Under the Regional Haze Rule,1 each state was required to submit its first implementation plan addressing regional haze visibility impairment to the EPA no later than December 17, 2007. See 40 CFR 51.308(b). New Jersey submitted its regional haze plan on July 28, 2009. On January 3, 2012, the EPA approved New Jersey's regional haze SIP submittal addressing the requirements of the first implementation period for regional haze. 77 FR 19 (Jan.3, 2012).

1 40 CFR part 51, subpart P.

Each state is also required to submit a progress report in the form of a SIP revision that evaluates progress towards the reasonable progress goals (RPGs) for each mandatory Class I Federal area within the state and for each mandatory Class I Federal area outside the state which may be affected by emissions from within the state. See 40 CFR 51.308(g). Each state is also required to submit, at the same time as the progress report, a determination of the adequacy of its existing regional haze SIP. See 40 CFR 51.308(h). The progress report SIP was due five years after submittal of the initial regional haze SIP.

On June 28, 2016, New Jersey submitted to the EPA, as a revision to its SIP, a report on progress made towards the RPGs for Class I areas in the State and for Class I areas outside the State that are affected by emissions from sources within the State. In its progress report SIP, New Jersey concludes the elements and strategies relied on in its original regional haze SIP are sufficient to enable New Jersey and neighboring states to meet all established RPGs. In a notice of proposed rulemaking (NPRM) published on August 1, 2017 (82 FR 35734), the EPA proposed to approve New Jersey's progress report as satisfying the requirements of 40 CFR 51.308(g) and 51.308(h). No comments were received on the August 1, 2017 proposed rulemaking.

II. Final Action

EPA is finalizing approval of New Jersey's Regional Haze Progress Report SIP revision, submitted by New Jersey on June 28, 2016, as meeting the requirements of 40 CFR 51.308(g) and 51.308(h).

III. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

In addition, this rule 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(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 28, 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).

List of Subjects in 40 CFR Part 52

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

Dated: September 19, 2017. Catherine R. McCabe, Acting Regional Administrator, Region 2.

Part 52 chapter I, title 40 of the Code of Federal Regulations is amended as follows:

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

42 U.S.C. 7401 et seq.

Subpart FF—New Jersey 2. In § 52.1570(e), the table titled “EPA APPROVED NEW JERSEY NONREGULATORY AND QUASI-REGULATORY PROVISIONS” is amended by adding the entry “Regional Haze Five-Year Progress Report” at the end of the table to read as follows:
§ 52.1570 Identification of plan.

(e) * * *

EPA-Approved New Jersey Nonregulatory and Quasi-Regulatory Provisions SIP element Applicable
  • geographic or
  • nonattainment area
  • New Jersey
  • submittal date
  • EPA
  • approval date
  • Explanation
    *         *         *         *         *         *         * Regional Haze Five-Year Progress Report State-wide June 28, 2016 September 29, 2017, [Federal Register page citation]
    [FR Doc. 2017-20821 Filed 9-28-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R04-OAR-2016-0362; FRL-9968-10-Region 4] Air Plan Approval; North Carolina Miscellaneous Rules AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving several changes to the North Carolina State Implementation Plan (SIP) submitted by the State of North Carolina, through the North Carolina Department of Environmental Quality (NCDEQ), on December 14, 2004, and March 1, 2016. The March 1, 2016, submission adds a new rule to the “Exclusionary Rules” of the North Carolina SIP, and the portion of the December 14, 2004, submission EPA is approving adds two new rules under a new section called “Permit Exemptions.” This action is being taken pursuant to the Clean Air Act (CAA or Act).

    DATES:

    This rule will be effective October 30, 2017.

    ADDRESSES:

    EPA has established a docket for this action under Docket Identification No. EPA-R04-OAR-2016-0362. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through www.regulations.gov or in hard copy at the Air Regulatory Management Section, Air Planning and Implementation Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW., Atlanta, Georgia 30303-8960. EPA requests that if at all possible, you contact the person listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday 8:30 a.m. to 4:30 p.m., excluding Federal holidays.

    SUPPLEMENTARY INFORMATION:

    I. Background

    On December 14, 2004, and March 1, 2016, the State of North Carolina, through NCDEQ, submitted revisions to the North Carolina SIP. The March 1, 2016, submission which adds a new rule—15A NCAC 02Q .0809 Concrete Batch Plants—and a portion of the December 14, 2004, submission which adds two new rules—15A NCAC 02Q .0901, Purpose and Scope and .0902 Portable Crushers. In a proposed rulemaking published on July 10, 2017 (82 FR 31739), EPA proposed to approve these SIP revisions. The details of North Carolina's SIP revision and the rationale for EPA's action are explained in the proposed rulemaking. Comments on the proposed rulemaking were due on or before August 9, 2017. EPA did not receive any comments on the proposed action.

    II. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of North Carolina Rules 15A NCAC 02Q .0809 entitled “Concrete Batch Plants” effective April 1, 2004, a new exclusionary rule for concrete batch that excludes from Title V permitting requirements such facilities that operate below a specified annual production rate; 15A NCAC 02Q .0901 entitled “Purpose and Scope” effective January 1, 2005, a new exclusionary rule which provides for exclusions from construction and operating permits for certain types of sources and activities; and 15A NCAC 02Q .0902 entitled “Portable Crushers” effective January 1, 2005, an exclusionary rule which provides for exclusions from construction and operating permits for portable crusher operations.

    Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally-enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1 EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 4 Office (please contact the person identified in the “For Further Information Contact” section of this preamble for more information).

    1 62 FR 27968 (May 22, 1997).

    III. Final Action

    EPA is approving North Carolina's March 1, 2016, submission and a portion of the December 14, 2004, submission. The changes pertain to the addition of two new rules under a new section “Permit Exemptions” and a new rule to the “Exclusionary Rules” of the North Carolina SIP. These rule adoptions do not contravene federal permitting requirements or existing EPA policy, nor will they impact the NAAQS or interfere with any other applicable requirement of the Act. See 42 U.S.C. 7410(l).

    IV. Statutory and Executive Order Reviews

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

    • Are 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);

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

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

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

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

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

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

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

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

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

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 28, 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).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: September 13, 2017. Onis “Trey” Glenn, III, Regional Administrator, Region 4.

    40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart II—North Carolina 2. In § 52.1770, table 1 in paragraph (c) is amended under the heading “Subchapter 2Q Air Quality Permits” by: a. Adding “Sect .0809” in numerical order. b. Adding the heading “Section .0900 Permit Exemptions” and the entries “Sect .0901” and “Sect .0902” at the end of the table.

    The additions read as follows:

    § 52.1770 Identification of plan.

    (c) * * *

    Table 1—EPA-Approved North Carolina Regulations State citation Title/subject State effective date EPA approval date Explanation *         *         *         *         *         *         * Subchapter 2Q Air Quality Permits *         *         *         *         *         *         * Section .0800 Exclusionary Rules *         *         *         *         *         *         * Sect .0809 Concrete Batch Plants 4/1/2004 9/27/2017, [insert Federal Register citation] *         *         *         *         *         *         * Section .0900 Permit Exemptions Sect .0901 Purpose and Scope 1/1/2005 9/27/2017, [insert Federal Register citation] Sect .0902 Portable Crushers 1/1/2005 9/27/2017, [insert Federal Register citation]
    [FR Doc. 2017-20325 Filed 9-28-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2017-0398; FRL-9968-5-Region 3] Approval and Promulgation of Air Quality Implementation Plans; Maryland; Nonattainment New Source Review Requirements for the 2008 8-Hour Ozone Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to approve a revision to the State of Maryland's state implementation plan (SIP). The revision is in response to EPA's February 3, 2017 Findings of Failure to Submit for various requirements relating to the 2008 8-hour ozone national ambient air quality standards (NAAQS). This SIP revision is specific to nonattainment new source review (NNSR) requirements. EPA is approving this revision in accordance with the requirements of the Clean Air Act (CAA).

    DATES:

    This rule is effective on November 28, 2017 without further notice, unless EPA receives adverse written comment by October 30, 2017. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R03-OAR-2017-0398 at https://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the Web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the For Further Information Contact section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Mrs. Amy Johansen, (215) 814-2156, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    On May 8, 2017, the Maryland Department of the Environment (MDE) submitted on behalf of the State of Maryland a formal revision, requesting EPA's approval for the SIP of its NNSR Certification for the 2008 Ozone Standard (Revision 17-01). The SIP revision is in response to EPA's final 2008 8-hour ozone NAAQS Findings of Failure to Submit for NNSR requirements. See 82 FR 9158 (February 3, 2017). Specifically, Maryland is certifying that its existing NNSR program, covering the Baltimore Nonattainment Area (which includes Anne Arundel, Baltimore, Carroll, Harford, and Howard Counties and the city of Baltimore), the Philadelphia-Wilmington-Atlantic City Nonattainment Area (which includes Cecil County in Maryland), and the Washington, DC Nonattainment Area (which includes Calvert, Charles, Frederick, Montgomery, and Prince Georges Counties in Maryland) for the 2008 8-hour ozone NAAQS, is at least as stringent as the requirements at 40 CFR 51.165, as amended by the final rule titled “Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements” (SIP Requirements Rule), for ozone and its precursors.1 See 80 FR 12264 (March 6, 2015).

    1 The SIP Requirements Rule addresses a range of nonattainment area SIP requirements for the 2008 8-hour ozone NAAQS, including requirements pertaining to attainment demonstrations, reasonable further progress (RFP), reasonably available control technology, reasonably available control measures, major new source review, emission inventories, and the timing of SIP submissions and of compliance with emission control measures in the SIP. The rule also revokes the 1997 ozone NAAQS and establishes anti-backsliding requirements.

    A. 2008 8-Hour Ozone NAAQS

    On March 12, 2008, EPA promulgated a revised 8-hour ozone NAAQS of 0.075 parts per million (ppm). See 73 FR 16436 (March 27, 2008). Under EPA's regulations at 40 CFR 50.15, the 2008 8-hour ozone NAAQS is attained when the 3-year average of the annual fourth-highest daily maximum 8-hour average ambient air quality ozone concentrations is less than or equal to 0.075 ppm.

    Upon promulgation of a new or revised NAAQS, the CAA requires EPA to designate as nonattainment any area that is violating the NAAQS based on the three most recent years of ambient air quality data at the conclusion of the designation process. The Philadelphia-Wilmington-Atlantic City Area and the Washington, DC Area were classified as marginal nonattainment areas, and the Baltimore Area was classified as a moderate nonattainment for the 2008 8-hour ozone NAAQS on May 21, 2012 (effective July 20, 2012) using 2008-2010 ambient air quality data. See 77 FR 30088. On March 6, 2015, EPA issued the final SIP Requirements Rule, which establishes the requirements that state, tribal, and local air quality management agencies must meet as they develop implementation plans for areas where air quality exceeds the 2008 8-hour ozone NAAQS. See 80 FR 12264. Areas that were designated as marginal ozone nonattainment areas were required to attain the 2008 8-hour ozone NAAQS no later than July 20, 2015, based on 2012-2014 monitoring data. See 40 CFR 51.1103. The Philadelphia-Wilmington-Atlantic City Area and the Washington, DC Area did not attain the 2008 8-hour ozone NAAQS by July 20, 2015; however, these areas did meet the CAA section 181(a)(5) criteria, as interpreted in 40 CFR 51.1107, for a 1-year attainment date extension. See 81 FR 26697 (May 4, 2016). Therefore, on April 11, 2016, the EPA Administrator signed a final rule extending the Philadelphia-Wilmington-Atlantic City Area and the Washington, DC Area 2008 8-hour ozone NAAQS attainment date from July 20, 2015 to July 20, 2016.2

    2 EPA proposed approval of a Determination of Attainment (DOA) for the 2008 8-hour ozone NAAQS for the Philadelphia-Wilmington-Atlantic City Area and the Washington, DC Area on April 18, 2017 and April 25, 2017, respectively. These proposed actions were based on complete, certified, and quality assured ambient air quality monitoring data for the 2013-2015 monitoring period. See 82 FR 18268 (April 18, 2017) and 82 FR 19011 (April 25, 2017). It should be noted that a DOA does not alleviate the need for Maryland to certify that their existing SIP approved NNSR program is as stringent as the requirements at 40 CFR 51.165, as NNSR applies in nonattainment areas until an area has been redesignated to attainment. EPA expects to finalize the April 18, 2017 and April 25, 2017 DOAs in future rulemaking actions.

    Moderate areas, such as the Baltimore Area, are required to attain the 2008 8-hour ozone NAAQS no later than July 20, 2018, six years after the effective date of the initial nonattainment designations.3 See 40 CFR 51.1103. The statutorily required DOA, for the Baltimore Area, which is due prior to the attainment date for the Area, has not passed and will be addressed in a future rulemaking action.

    3 On June 1, 2015, EPA finalized a clean data determination (CDD) for the Baltimore Area. This determination was based upon complete, quality-assured, and certified ambient air quality monitoring data that shows the Baltimore Area has monitored attainment of the 2008 8-hour ozone NAAQS for the 2012-2014 monitoring period. As a result of this determination, the requirement for the Baltimore Area to submit an attainment demonstration and associated reasonably available control measures (RACM), reasonable further progress plans (RFP), contingency measures, and other SIP revisions related to attainment of the standard are suspended for as long as the area continues to attain the 2008 8-hour ozone standard. See 80 FR 30941 (June 2, 2015). This action did not alleviate the need for Maryland to submit a NNSR Certification SIP revision, which is the subject of this rulemaking action.

    Based on initial nonattainment designations for the 2008 8-hour ozone standard, as well as the March 6, 2015 final SIP Requirements Rule, Maryland was required to develop a SIP revision addressing certain CAA requirements for the Philadelphia-Wilmington-Atlantic City, Washington, DC, and Baltimore Areas, and submit to EPA a NNSR Certification SIP or SIP revision no later than 36 months after the effective date of area designations for the 2008 8-hour ozone NAAQS (i.e., July 20, 2015). See 80 FR 12264 (March 6, 2015). EPA is taking action on Maryland's May 8, 2017 NNSR Certification SIP revision. EPA's analysis of how this SIP revision addresses the NNSR requirements for the 2008 8-hour ozone NAAQS is provided in Section II below.

    B. 2017 Findings of Failure To Submit SIP for the 2008 8-Hour Ozone NAAQS

    Areas designated nonattainment for the ozone NAAQS are subject to the general nonattainment area planning requirements of CAA section 172 and also to the ozone-specific planning requirements of CAA section 182.4 States in the ozone transport region (OTR), such as Maryland, are additionally subject to the requirements outlined in CAA section 184.

    4 Ozone nonattainment areas are classified based on the severity of their ozone levels (as determined based on the area's “design value,” which represents air quality in the area for the most recent 3 years). The possible classifications for ozone nonattainment areas are Marginal, Moderate, Serious, Severe, and Extreme. See CAA section 181(a)(1).

    Ozone nonattainment areas in the lower classification levels have fewer and/or less stringent mandatory air quality planning and control requirements than those in higher classifications. For a marginal area, such as the Philadelphia-Wilmington-Atlantic City Area and the Washington, DC Area, a state is required to submit a baseline emissions inventory, adopt a SIP requiring emissions statements from stationary sources, and implement a NNSR program for the relevant ozone standard. See CAA section 182(a). For a moderate area, such as the Baltimore Area, a state needs to comply with the marginal area requirements, plus additional requirements, including the requirement to submit a demonstration that the area will attain in 6 years, the requirement to adopt and implement certain emissions controls, such as reasonably available control technology (RACT), and the requirement for greater emissions offsets for new or modified major stationary sources under the state's NNSR program. For each higher ozone nonattainment classification, a state needs to comply with all lower area classification requirements, plus additional emissions controls and more expansive NNSR offset requirements.

    The CAA sets out specific requirements for states in the OTR.5 Upon promulgation of the 2008 8-hour ozone NAAQS, states in the OTR were required to submit a SIP revision for RACT. See 40 CFR 51.1116. This requirement is the only recurring obligation for an OTR state upon revision of a NAAQS, unless that state also contains some portion of a nonattainment area for the revised NAAQS. In that case, the nonattainment requirements described previously also apply to those portions of that state.

    5 CAA section 184 details specific requirements for a group of states (and the District of Columbia) that make up the OTR. States in the OTR are required to submit RACT SIP revisions and mandate a certain level of emissions control for the pollutants that form ozone, even if the areas in the state meet the ozone standards.

    In the March 6, 2015 SIP Requirements Rule, EPA detailed the requirements applicable to ozone nonattainment areas, as well as requirements that apply in the OTR, and provided specific deadlines for SIP submittals.

    On February 3, 2017, EPA found that 15 states and the District of Columbia failed to submit SIP revisions in a timely manner to satisfy certain requirements for the 2008 8-hour ozone NAAQS that apply to nonattainment areas and/or states in the OTR. See 82 FR 9158. As explained in that rulemaking action, consistent with the CAA and EPA regulations, these findings of failure to submit established certain deadlines for the imposition of sanctions, if a state does not submit a timely SIP revision addressing the requirements for which the finding is being made, and for the EPA to promulgate a federal implementation plan (FIP) to address any outstanding SIP requirements.

    EPA found that the State of Maryland failed to submit SIP revisions in a timely matter to satisfy NNSR requirements for its marginal and moderate nonattainment areas, specifically the Philadelphia-Wilmington-Atlantic City Area, the Washington, DC Area, and the Baltimore Area.6 Maryland submitted its May 8, 2017 SIP revision to address the specific NNSR requirements for the 2008 8-hour ozone NAAQS, located in 40 CFR 51.160-165, as well as its obligations under EPA's February 3, 2017 Findings of Failure to Submit. EPA's analysis of how this SIP revision addresses the NNSR requirements for the 2008 8-hour ozone NAAQS and the Findings of Failure to Submit is provided in Section II below.

    6 The EPA found that the State of Maryland also failed to submit SIP revisions for inspection and maintenance (I/M) basic and nitrogen oxide RACT for major sources. These SIP requirements will be addressed in separate rulemaking actions and will not be discussed here. See 82 FR 9158 (February 3, 2017).

    II. Summary of SIP Revision and EPA Analysis

    This rulemaking action is specific to Maryland's NNSR requirements. NNSR is a preconstruction review permit program that applies to new major stationary sources or major modifications at existing sources located in a nonattainment area.7 The specific NNSR requirements for the 2008 8-hour ozone NAAQS are located in 40 CFR 51.160-165. The SIP Requirements Rule explained that, for each nonattainment area, a NNSR plan or plan revision was due no later than 36 months after the effective date of area designations for the 2008 8-hour ozone standard (i.e., July 20, 2015).8

    7See CAA sections 172(c)(5), 173 and 182.

    8 With respect to states with nonattainment areas subject to a finding of failure to submit NNSR SIP revisions, such revisions would no longer be required if the area were redesignated to attainment. The CAA's prevention of significant deterioration (PSD) program requirements apply in lieu of NNSR after an area is redesignated to attainment. For areas outside the OTR, NNSR requirements do not apply in areas designated as attainment.

    The minimum SIP requirements for NNSR permitting programs for the 2008 8-hour ozone NAAQS are located in 40 CFR 51.165. See 40 CFR 51.1114. These NNSR program requirements include those promulgated in the “Phase 2 Rule” implementing the 1997 8-hour ozone NAAQS (75 FR 71018 (November 29, 2005)) and the SIP Requirements Rule implementing the 2008 8-hour ozone NAAQS. Under the Phase 2 Rule, the SIP for each ozone nonattainment area must contain NNSR provisions that: Set major source thresholds for oxides of nitrogen (NOX) and volatile organic compounds (VOC) pursuant to 40 CFR 51.165(a)(1)(iv)(A)(1)(i)-(iv) and (2); classify physical changes as a major source if the change would constitute a major source by itself pursuant to 40 CFR 51.165(a)(1)(iv)(A)(3); consider any significant net emissions increase of NOX as a significant net emissions increase for ozone pursuant to 40 CFR 51.165(a)(1)(v)(E); consider certain increases of VOC emissions in extreme ozone nonattainment areas as a significant net emissions increase and a major modification for ozone pursuant to 40 CFR 51.165(a)(1)(v)(F); set significant emissions rates for VOC and NOX as ozone precursors pursuant to 40 CFR 51.165(a)(1)(x)(A)-(C) and (E); contain provisions for emissions reductions credits pursuant to 40 CFR 51.165(a)(3)(ii)(C)(1)-(2); provide that the requirements applicable to VOC also apply to NOX pursuant to 40 CFR 51.165(a)(8); and set offset ratios for VOC and NOX pursuant to 40 CFR 51.165(a)(9)(i)-(iii) (renumbered as (a)(9)(ii)-(iv) under the SIP Requirements Rule for the 2008 8-hour ozone NAAQS). Under the SIP Requirements Rule for the 2008 8-hour ozone NAAQS, the SIP for each ozone nonattainment area designated nonattainment for the 2008 8-hour ozone NAAQS and designated nonattainment for the 1997 ozone NAAQS on April 6, 2015, must also contain NNSR provisions that include the anti-backsliding requirements at 40 CFR 51.1105. See 40 CFR 51.165(a)(12).

    Maryland's longstanding SIP approved NNSR program, established in Code of Maryland Regulations (COMAR) Air Quality Rule COMAR 26.11.17—Nonattainment Provisions for Major New Sources and Major Modifications, applies to the construction and modification of major stationary sources in nonattainment areas. In its May 8, 2017 SIP revision, Maryland certifies that the version of the Air Quality Rule COMAR 26.11.17 in the SIP is at least as stringent as the federal NNSR requirements for the Philadelphia-Wilmington-Atlantic City Area, the Washington, DC Area, and the Baltimore Area. EPA last approved revisions to the SIP approved version of Maryland's NNSR rule in 2012 addressing, among other things, NSR Reform and NOX as a precursor to ozone. See 77 FR 45949 (August 2, 2012).9

    9 On August 30, 2012, EPA published a rulemaking correcting minor errors in their August 2, 2012 final rule. The correction of these errors did not change EPA's final action to approve the Maryland regulations. See 77 FR 52605.

    EPA notes that neither COMAR 26.11.17 nor Maryland's approved SIP have the regulatory provision for any emissions change of VOC in extreme nonattainment areas, specified in 40 CFR 51165(a)(1)(v)(F), because Maryland has never had an area designated extreme nonattainment for any of the ozone NAAQS. Thus, the Maryland SIP is not required to have this requirement for VOC in extreme nonattainment areas until such time as Maryland has an extreme ozone nonattainment area. Additionally, there are no anti-backsliding provisions found in 40 CFR 51.165(a)(12) in either COMAR 26.11.17 or the Maryland SIP because Maryland's major stationary source thresholds were established for the 1997 8-hour ozone NAAQS nonattainment designations, which were and continue to be more stringent. Thus, antibacksliding requirements are not required. Maryland has not changed these major stationary source threshold provisions in COMAR 26.11.17.01(17), so they remain in Maryland's federally-approved SIP.10 All of the sources located in the 2008 8-hour ozone nonattainment areas in Maryland are required to meet a major stationary source threshold of 25 tons or more per year of VOC or NOX.

    10 Under the 1997 8-hour ozone NAAQS, the Baltimore Area was classified as serious nonattainment and the Philadelphia-Wilmington-Atlantic City and Washington, DC Areas were classified as moderate nonattainment.

    The version of COMAR 26.11.17 that is contained in the current SIP has not changed since the 2012 rulemaking where EPA last approved Maryland's NNSR provisions. This version of the rule covers the Philadelphia-Wilmington-Atlantic City, Washington, DC, and Baltimore Nonattainment Areas and remains adequate to meet all applicable NNSR requirements for the 2008 8-hour ozone NAAQS in 40 CFR 51.165, the Phase 2 Rule and the SIP Requirements Rule. A detailed description of the state submittal and EPA's evaluation is included in a technical support document (TSD) prepared in support of this rulemaking action. A copy of the TSD is available, upon request, from the EPA Regional Office listed in the ADDRESSES section of this document or is also available electronically within the Docket for this rulemaking action.

    III. Final Action

    EPA is approving Maryland's May 8, 2017 SIP revision addressing the NNSR requirements for the 2008 ozone NAAQS for the Philadelphia-Wilmington-Atlantic City, Washington, DC, and Baltimore Areas. EPA has concluded that the State's submission fulfills the 40 CFR 51.1114 revision requirement, meets the requirements of CAA sections 110 and 172 and the minimum SIP requirements of 40 CFR 51.165, as well as its obligations under EPA's February 3, 2017 Findings of Failure to Submit. 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 today's 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 November 28, 2017 without further notice unless EPA receives adverse comment by October 30, 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.

    IV. Statutory and Executive Order Reviews A. General Requirements

    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 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.

    B. Submission to Congress and the Comptroller General

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

    C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 28, 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 today's 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 Maryland's 2008 8-hour ozone NAAQS Certification SIP revision for NNSR may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: September 14, 2017. Cecil Rodrigues, Acting Regional Administrator, Region III.

    40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart V—Maryland 2. In § 52.1070, the table in paragraph (e) is amended by adding the entry “2008 8-Hour Ozone NAAQS Nonattainment New Source Review Requirements” at the end of the table to read as follows:
    § 52.1070 Identification of plan.

    (e) * * *

    Name of non-regulatory SIP revision Applicable geographic area State
  • submittal
  • date
  • EPA
  • approval
  • date
  • Additional
  • explanation
  • *         *         *         *         *         *         * 2008 8-Hour Ozone NAAQS Nonattainment New Source Review Requirements The Baltimore Area (includes Anne Arundel, Baltimore, Carroll, Harford, and Howard Counties and the city of Baltimore), the Philadelphia-Wilmington-Atlantic City Area (includes Cecil County in Maryland), and the Washington, DC Area (includes Calvert, Charles, Frederick, Montgomery, and Prince Georges Counties in Maryland) 5/8/17 9/29/17 [insert Federal Register citation]
    [FR Doc. 2017-20834 Filed 9-28-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2017-0517; FRL-9968-66-Region 7] Approval of Iowa Air Quality Implementation Plans; Elements of the Infrastructure SIP Requirements for the 2012 Annual Fine Particulate Matter (PM2.5) National Ambient Air Quality Standard (NAAQS) AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to approve elements of a State Implementation Plan (SIP) submission, for the 2012 Annual Fine Particulate Matter (PM2.5) National Ambient Air Quality Standard (NAAQS). Infrastructure SIPs address the applicable requirements of Clean Air Act (CAA) section 110, which requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of each new or revised NAAQS promulgated by the EPA. These SIPs are commonly referred to as “infrastructure” SIPs. The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA.

    DATES:

    This direct final rule is effective November 28, 2017, without further notice, unless EPA receives adverse comment by October 30, 2017. If EPA receives adverse comment, we will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R07-OAR-2017-0517, to https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Heather Hamilton, Air Planning and Development Branch, U.S. Environmental Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, KS 66219 at (913) 551-7039, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

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

    I. What is being addressed in this document? II. Have the requirements for approval of a SIP revision been met? III. What action is EPA taking? IV. Statutory and Executive Order Reviews I. What is being addressed in this document?

    EPA is approving elements of the 2012 PM2.5 NAAQS infrastructure SIP submission from the State of Iowa, dated December 15, 2015, and received on December 22, 2015. Specifically, EPA is approving the following elements of section 110(a)(2): (A), (B), (C), (D)(i)(II)—prevent significant deterioration of air quality (prong 3), (D)(ii) (E) through (H), and (J) through (M).

    A Technical Support Document (TSD) is included as part of the docket to discuss the details of this action, including analysis of how the SIP meets the applicable 110 requirements for infrastructure SIPs.

    II. Have the requirements for approval of a SIP revision been met?

    The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The state held a 30-day comment period, and a public hearing on November 16, 2015. No oral or written comments were received. This submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the technical support document which is part of this docket, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

    III. What action is EPA taking?

    EPA is approving elements of the December 15, 2015, infrastructure SIP submission from the State of Iowa, which addresses the requirements of CAA sections 110(a)(1) and (2) as applicable to the 2012 PM2.5 NAAQS. As stated above, EPA is approving the following elements of section 110(a)(2): (A), (B), (C), (D), (D)(i)(II)—prevent significant deterioration of air quality (prong 3), (D)(ii), (E) through (H), and (J) through (M). Details of the submission are addressed in a TSD as part of the docket to discuss this approval action.

    EPA is not taking action on section 110(a)(2)(I). Section 110(a)(2)(I) requires that in the case of a plan or plan revision for areas designated as nonattainment areas, states must meet applicable requirements of part D of the CAA, relating to SIP requirements for designated nonattainment areas. EPA does not expect infrastructure SIP submissions to address element (I). The specific SIP submissions for designated nonattainment areas, as required under CAA title I, part D, are subject to different submission schedules than those for section 110 infrastructure elements. EPA will take action on part D attainment plan SIP submissions through a separate rulemaking governed by the requirements for nonattainment areas, as described in part D.

    EPA is not taking action on section 110(a)(2)(D)(i)(I) prongs 1 and 2, and section 110(a)(2)(D)(i)(II) prong 4.

    We are publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of this issue of the Federal Register, we are publishing a separate document that will serve as the proposed rule to approve the SIP revision if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We will address all public comments in any subsequent final rule based on the proposed rule.

    IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 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).

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

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 28, 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).)

    List of Subjects in 40 CFR Part 52

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

    Dated: September 20, 2017. Cathy Stepp, Acting Regional Administrator, Region 7.

    For the reasons stated in the preamble, EPA amends 40 CFR part 52 as set forth below:

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

    42 U.S.C. 7401 et seq.

    Subpart Q Iowa 2. Amend § 52.820(e) by adding an entry for “(49) Sections 110(a)(1) and (2) Infrastructure Requirements 2012 annual PM2.5 NAAQS” in numerical order at the end of the table to read as follows:
    § 52.820 Identification of plan.

    (e) * * *

    EPA-Approved Iowa Nonregulatory SIP Provisions Name of non-regulatory SIP provision Applicable
  • geographic or
  • nonattainment
  • area
  • State
  • submittal
  • date
  • EPA approval date Explanation
    *         *         *         *         *         *         * (49) Sections 110(a)(1) and (2) Infrastructure Requirements 2012 annual PM2.5 NAAQS Statewide 12/15/15 09/29/17 and [Insert Federal Register citation] This action addresses the following CAA elements: 110(a)(2)(A), (B), (C), (D)(i)(II) prong 3, (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). 110(a)(2)(I) is not applicable. [EPA-R07-OAR-2017-0517; FRL-XXXX-Region 7.]
    [FR Doc. 2017-20829 Filed 9-28-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-HQ-OAR-2016-0598; FRL-9968-46-OAR] RIN 2060-AT16 Interstate Transport of Fine Particulate Matter: Revision of Federal Implementation Plan Requirements for Texas AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is finalizing withdrawal of the federal implementation plan (FIP) provisions that require affected electricity generating units (EGUs) in Texas to participate in Phase 2 of the Cross-State Air Pollution Rule (CSAPR) trading programs for annual emissions of sulfur dioxide (SO2) and nitrogen oxides (NOX). Withdrawal of the FIP requirements is intended to address a decision of the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) remanding the CSAPR Phase 2 SO2 budget for Texas to the EPA for reconsideration. With this action, the EPA is also determining that, following withdrawal of the FIP requirements, sources in Texas do not contribute significantly to nonattainment in, or interfere with maintenance by, any other state with regard to the 1997 national ambient air quality standard (NAAQS) for fine particulate matter (PM2.5). Accordingly, we are also determining that the EPA has no obligation to issue new FIP requirements for Texas sources to address transported PM2.5 pollution under Clean Air Act (CAA) section 110(a)(2)(D)(i)(I) with regard to that NAAQS. Finally, the EPA is also affirming the continued validity of the Agency's 2012 determination that participation in CSAPR meets the Regional Haze Rule's criteria for an alternative to the application of source-specific best available retrofit technology (BART). The EPA has determined that changes to CSAPR's geographic scope resulting from the actions EPA has taken or expects to take in response to the D.C. Circuit's remand do not affect the continued validity of participation in CSAPR as a BART alternative, because the changes in geographic scope would not have adversely affected the results of the air quality modeling analysis upon which the EPA based the 2012 determination.

    DATES:

    This final rule is effective on September 29, 2017.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2016-0598. All documents in the docket are listed and publicly available at http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Questions about the withdrawal of CSAPR FIP requirements for Texas EGUs should be directed to David Lifland, Clean Air Markets Division, Office of Atmospheric Programs, U.S. Environmental Protection Agency, MC 6204M, 1200 Pennsylvania Avenue NW., Washington, DC 20460; telephone number: (202) 343-9151; email address: [email protected] Questions about the sensitivity analysis regarding CSAPR participation as a BART alternative should be directed to Melinda Beaver, Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, 109 T.W. Alexander Drive, Mail Code C539-04, Research Triangle Park, NC 27709; telephone number: (919) 541-1062; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Regulated Entities. Entities regulated under CSAPR are fossil fuel-fired boilers and stationary combustion turbines that serve generators producing electricity for sale, including combined cycle units and units operating as part of systems that cogenerate electricity and other useful energy output. Regulated categories and entities include:

    Category NAICS * code Examples of potentially regulated industries Industry 221112 Fossil fuel-fired electric power generation. * North American Industry Classification System.

    This table is not intended to be exhaustive, but rather provides a guide for readers regarding entities likely to be regulated. To determine whether your facility is affected by this action, you should carefully examine the applicability provisions in 40 CFR 97.404 and 97.704. If you have questions regarding the applicability of CSAPR to a particular entity, consult the person listed in the FOR FURTHER INFORMATION CONTACT section above.

    Table of Contents I. Overview II. Background A. History and Summary of CSAPR B. CSAPR Participation as a BART Alternative III. Withdrawal of CSAPR FIP Requirements Related to Texas' Transport Obligations With Regard to the 1997 Annual PM2.5 NAAQS A. Summary B. Adequacy of Rationale for Finding No Remaining Transport Obligation C. Responsiveness to the D.C. Circuit's Remand Instructions D. Consistency of Responses To Remand Across States E. Consistency of Consideration of D.C. Circuit's Holding Across States F. Potential Use of Texas FIP Budgets To Address a Different PM2.5 NAAQS IV. Sensitivity Analysis Regarding CSAPR Participation as a BART Alternative A. Summary B. Continued CSAPR Participation by Georgia and South Carolina C. Appropriateness of Continued Reliance on Original CSAPR-Better-than-BART Analysis D. Possible Changes in the Geographic Distribution of Emissions E. Validity of 2012 Analytic Demonstration Prior to CSAPR Changes V. Description of Amendments to Regulatory Text VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review, and Executive Order 13563: Improving Regulation and Regulatory Review B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs C. Paperwork Reduction Act D. Regulatory Flexibility Act E. Unfunded Mandates Reform Act F. Executive Order 13132: Federalism G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments H. Executive Order 13045: Protection of Children from Environmental Health and Safety Risks I. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use J. National Technology Transfer Advancement Act K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations L. Congressional Review Act M. Judicial Review and Determinations Under CAA Section 307(b)(1) and (d) I. Overview

    The EPA promulgated CSAPR in 2011 in order to address the obligations of states—and of the EPA when states have not met their obligations—under CAA section 110(a)(2)(D)(i)(I) to prohibit air pollution contributing significantly to nonattainment in, or interfering with maintenance by, any other state with regard to several NAAQS, including the 1997 annual PM2.5 NAAQS.1 To address Texas' transport obligation under CAA section 110(a)(2)(D)(i)(I) with regard to this NAAQS, CSAPR established FIP requirements for affected EGUs in Texas, including statewide emissions budgets that apply to the EGUs' collective annual emissions of SO2 and NOX.

    1 Federal Implementation Plans; Interstate Transport of Fine Particulate Matter and Ozone and Correction of SIP Approvals, 76 FR 48208 (August 8, 2011).

    In 2012, the EPA promulgated an amendment to the Regional Haze Rule allowing a state whose EGUs participate in one of the CSAPR trading programs for a given pollutant to rely on its sources' participation in CSAPR as an alternative to source-specific BART requirements—the so-called CSAPR-better-than-BART rule, codified at 40 CFR 51.308(e)(4).2 This rule relied on a regional analytic demonstration that included an air quality modeling analysis comparing the projected visibility impacts of CSAPR implementation and BART implementation. To project emissions under CSAPR, the EPA assumed that the geographic scope and state emissions budgets for CSAPR would be implemented as finalized and amended in 2011 and 2012.3

    2 Regional Haze: Revisions to Provisions Governing Alternatives to Source-Specific Best Available Retrofit Technology (BART) Determinations, Limited SIP Disapprovals, and Federal Implementation Plans, 77 FR 33642 (June 7, 2012).

    3 CSAPR was amended three times in 2011 and 2012 to add five states to the seasonal NOX program and to increase certain state budgets. 76 FR 80760 (December 27, 2011); 77 FR 10324 (February 21, 2012); 77 FR 34830 (June 12, 2012). The CSAPR-better-than-BART final rule reflected consideration of these changes to CSAPR.

    In July 2015, the D.C. Circuit issued a decision on a range of challenges to CSAPR in EME Homer City Generation, L.P. v. EPA (EME Homer City II), denying most claims but remanding several CSAPR emissions budgets to the EPA for reconsideration, including the Phase 2 SO2 budget for Texas.4 Because the remand created the potential for changes in the geographic scope and stringency of CSAPR as evaluated for purposes of the 2012 comparison to BART implementation, the EPA recognizes that how the Agency addresses the remand could raise questions as to whether states and the EPA should continue to rely on the CSAPR-better-than-BART rule.

    4EME Homer City Generation, L.P. v. EPA (EME Homer City II), 795 F.3d 118, 138 (D.C. Cir. 2015). The court also remanded the Phase 2 SO2 budgets for three other states and the Phase 2 seasonal NOX budgets for eleven states, including Texas. Id.

    The EPA issued a proposal to address the remand of the Texas Phase 2 SO2 budget and to resolve any questions about continued reliance on the CSAPR-better-than-BART rule on November 3, 2016, and solicited comment on the proposal.5 Four commenters provided substantive comments, and this final rule takes those comments into consideration. The Agency's responses to the principal comments are provided below. The remaining comments are addressed in the Response to Comments document available in the docket for this action.

    5 Interstate Transport of Fine Particulate Matter: Revision of Federal Implementation Plan Requirements for Texas, Proposed Rule, 81 FR 78954 (November 10, 2016).

    In this final action, as proposed, the EPA is withdrawing the FIP provisions requiring Texas EGUs to participate in the CSAPR SO2 Group 2 Trading Program and the CSAPR NOX Annual Trading Program during Phase 2 of these programs, which began with 2017 emissions.6 Removal of Texas EGUs from Phase 2 of these CSAPR trading programs renders it necessary to evaluate whether EPA should use other means to address any remaining transport obligation for Texas under CAA section 110(a)(2)(D)(i)(I) with regard to the 1997 annual PM2.5 NAAQS. However, the EPA is finalizing its proposed determination that Texas does not have any such remaining 1997 annual PM2.5 NAAQS transport obligation as of the beginning of Phase 2 of the CSAPR trading programs for SO2 and annual NOX. Accordingly, the EPA is also determining that the Agency has no obligation to issue new FIP requirements for Texas sources to address transported PM2.5 pollution under CAA section 110(a)(2)(D)(i)(I) with regard to this NAAQS.

    6 With regard to each of the other remanded budgets, the EPA either has already withdrawn or expects to withdraw the FIP provisions requiring the EGUs in the affected states to participate in the corresponding CSAPR federal trading programs in Phase 2 through other actions, as discussed in section III below.

    Also in this action, the EPA is concluding, based on consideration of the sensitivity analysis included in the proposal and additional analysis included in this final action, that the 2012 analytic demonstration supporting the conclusion that CSAPR participation qualifies as a BART alternative is not adversely affected by the actions being taken to respond to the D.C. Circuit's remand of CSAPR Phase 2 budgets.7 As a result, no revisions are needed to the CSAPR-better-than-BART rule.

    7 In addition to this action, the full set of actions being taken to respond to the remand includes the 2016 CSAPR Update withdrawing the remanded seasonal NOX budgets for eleven states and establishing new seasonal NOX budgets to address a more recent ozone NAAQS for eight of those states, the action approving Alabama's SIP revision establishing state CSAPR trading programs for SO2 and annual NOX to replace the corresponding federal CSAPR trading programs, and the expected actions to approve proposed SIP revisions for Georgia and South Carolina comparable to Alabama's SIP revision (see notes 14, 53, and 57 below). These additional actions are described in more detail in sections II.A and III.D below.

    At the same time, however, because Texas EGUs will no longer participate in a CSAPR SO2 trading program, Texas will no longer be eligible to rely on CSAPR participation as an alternative to the application of source-specific SO2 BART for its BART-eligible EGUs under 40 CFR 51.308(e)(4). That obligation and any other remaining regional haze obligations for Texas are not addressed in this action and will need to be addressed through other actions as appropriate.8

    8 The EPA notes that under 40 CFR 51.308(e)(4), CSAPR implementation is available as a NOX BART alternative for a state whose EGUs are subject to CSAPR requirements for either annual NOX or seasonal NOX emissions. See 77 FR at 33652. Texas EGUs continue to participate in a CSAPR trading program for seasonal NOX. In a separate proposed action, the EPA has proposed to address NOX BART for Texas EGUs through reliance on participation in CSAPR as a NOX BART alternative. 82 FR 917 (January 4, 2017).

    This final rule is effective immediately upon publication in the Federal Register. As discussed in section VI.L below, the EPA is issuing this rule under CAA section 307(d). While Administrative Procedure Act (APA) section 553(d)9 generally provides that rules may not take effect earlier than 30 days after they are published in the Federal Register, CAA section 307(d)(1) clarifies that “[t]he provisions of [APA] section 553 . . . shall not, except as expressly provided in this section, apply to actions to which this subsection applies.” Thus, APA section 553(d) does not apply to this rule. Nevertheless, in making this rule effective immediately upon publication, the EPA has considered the purposes underlying APA section 553(d). The primary purpose of the prescribed 30-day waiting period is to give affected parties a reasonable time to adjust their behavior and prepare before a final rule takes effect. This rule does not impose any new regulatory requirements and therefore does not necessitate time for affected sources to adjust their behavior or otherwise prepare for implementation. Further, APA section 553(d) expressly allows an effective date less than 30 days after publication for a rule that “grants or recognizes an exemption or relieves a restriction.” This rule relieves Texas EGUs of certain FIP requirements that would otherwise apply. Consequently, making this rule effective immediately upon publication is consistent with the purposes of APA section 553(d).

    9 5 U.S.C. 553(d).

    II. Background A. History and Summary of CSAPR

    The EPA initially promulgated CSAPR in 2011 to address the obligations of states—and of the EPA when states have not met their obligations—under CAA section 110(a)(2)(D)(i)(I), often referred to as the “good neighbor” provision, to prohibit transported air pollution contributing significantly to nonattainment in, or interfering with maintenance by, any other state with regard to the 1997 annual PM2.5 NAAQS, the 2006 24-hour PM2.5 NAAQS, and the 1997 8-hour ozone NAAQS.10 To reduce transported PM2.5 pollution, CSAPR sets limits on annual emissions of NOX and SO2 as precursors to PM2.5. To reduce transported ozone pollution during the May-September ozone season, CSAPR sets limits on seasonal emissions of NOX as a precursor to ozone. The CSAPR requirements were initially established in FIPs, but states can voluntarily replace the CSAPR FIPs with CSAPR state implementation plans (SIPs) that include equally stringent budgets.11 Upon approval of such a CSAPR SIP, the corresponding CSAPR FIP is automatically withdrawn.12

    10See generally 76 FR 48208.

    11E.g., 40 CFR 52.39(i).

    12E.g., 40 CFR 52.39(j).

    As explained in the proposal, a number of petitioners challenged CSAPR, and in 2015 the D.C. Circuit issued a decision remanding the Phase 2 SO2 emissions budgets for Alabama, Georgia, South Carolina, and Texas and the Phase 2 seasonal NOX budgets for eleven states to the EPA for reconsideration.13 In response to the remand of the Phase 2 SO2 emissions budgets, the EPA has engaged the affected states to determine appropriate next steps to address the decision with regard to each state. As discussed in the proposal and also in section III below, the EPA expects that EGUs in Alabama, Georgia, and South Carolina will continue to participate in CSAPR trading programs for SO2 and annual NOX pursuant to approved SIP revisions (with equally stringent emissions budgets), making Texas the only state whose EGUs will no longer participate in these programs to reduce transported PM2.5 pollution as a result of actions taken to address the remand.

    13EME Homer City II, 795 F.3d at 138.

    Also as explained in the proposal, in the CSAPR Update rule issued in 2016, the EPA responded to the remand of eleven states' original Phase 2 seasonal NOX budgets (which had been established to address transport obligations with regard to the 1997 8-hour ozone NAAQS) by withdrawing the FIP provisions requiring EGUs to comply with those budgets for emissions after 2016.14 The EPA determined that none of those eleven states has a remaining transport obligation under CAA section 110(a)(2)(D)(i)(I) with regard to the 1997 8-hour ozone NAAQS, but for eight of those states, including Texas, the CSAPR Update rule also established new budgets to address transport obligations with regard to the more stringent 2008 8-hour ozone NAAQS.15 EGUs in the three states with remanded Phase 2 seasonal NOX budgets for which the EPA did not establish new budgets—Florida, North Carolina, and South Carolina—are no longer required to participate in a CSAPR trading program for seasonal NOX emissions to address ozone transport obligations after 2016. However, because EGUs in North Carolina and South Carolina16 are expected to continue to participate in a CSAPR trading program for annual NOX emissions in order to address PM2.5-related transport obligations, Florida is expected to be the only state originally covered by CSAPR for NOX emissions for which all such coverage is ending as a result of the EPA's set of actions to address the remand.17

    14 Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS (CSAPR Update), 81 FR 74504, 74576 (October 26, 2016).

    15Id. at 74524.

    16 North Carolina EGUs remain subject to FIP provisions requiring participation in a CSAPR trading program for annual NOX emissions. The EPA's expectation that South Carolina EGUs will continue to participate in a CSAPR program for annual NOX emissions is based on South Carolina's submission of a SIP revision that includes such requirements, as discussed in sections III and V below.

    17 For discussion of the EPA's response to the remand of the Florida seasonal NOX budget, and the assessment of the implications of that response for the CSAPR-better-than-BART analytical demonstration, see 81 FR at 78962.

    Prior to this action, Texas EGUs have been subject to CSAPR FIP provisions requiring participation in the CSAPR SO2 Group 2 Trading Program and the CSAPR NOX Annual Trading Program. With this action, the EPA is withdrawing the FIP provisions requiring Texas EGUs to participate in these CSAPR federal trading programs. (Although the court's decision specifically remanded only Texas' Phase 2 SO2 budget, the court's rationale for remanding that budget also implicates Texas' Phase 2 annual NOX budget because the SO2 and annual NOX budgets were developed through an integrated analysis and were promulgated to meet a common PM2.5 transport obligation under CAA section 110(a)(2)(D)(i)(I).) This action has no effect on the separate CSAPR requirements applicable to Texas EGUs relating to seasonal NOX emissions, which, as discussed in the preceding paragraph, were promulgated in the CSAPR Update rule and are not subject to the D.C. Circuit's remand.

    B. CSAPR Participation as a BART Alternative

    The proposal provides a detailed explanation of the Regional Haze Rule requirements for best available retrofit technology (BART) and the criteria for demonstrating that an alternative measure achieves greater reasonable progress than source-specific BART.18

    18 81 FR at 78957.

    In 2012, the EPA amended the Regional Haze Rule to provide that participation by a state's EGUs in a CSAPR trading program for a given pollutant—either a CSAPR federal trading program implemented through a CSAPR FIP or a CSAPR state trading program implemented through an approved CSAPR SIP revision—qualifies as a BART alternative for those EGUs for that pollutant.19 In promulgating this CSAPR-better-than-BART rule, the EPA relied on an analytic demonstration of the improvement in visibility from CSAPR implementation relative to BART implementation based on an air quality modeling study.20 Since the EPA promulgated this amendment, numerous states covered by CSAPR have come to rely on the provision through either SIPs or FIPs.21 Additionally, many states have submitted or are planning to submit SIPs relying on the CSAPR-better-than-BART rule for BART or visibility transport purposes, or to replace regional haze FIPs with SIPs.

    19 40 CFR 51.308(e)(4); see also generally 77 FR 33642. Legal challenges to the CSAPR-better-than-BART rule from conservation groups and other petitioners are pending. Utility Air Regulatory Group v. EPA, No. 12-1342 (D.C. Cir. filed August 6, 2012).

    20See Technical Support Document for Demonstration of the Transport Rule as a BART Alternative, Docket ID No. EPA-HQ-OAR-2011-0729-0014 (December 2011) (2011 CSAPR/BART Technical Support Document), and memo entitled “Sensitivity Analysis Accounting for Increases in Texas and Georgia Transport Rule State Emissions Budgets,” Docket ID No. EPA-HQ-OAR-2011-0729-0323 (May 29, 2012), both available in the docket for this action.

    21 The EPA has promulgated FIPs relying on CSAPR participation for BART purposes for Georgia, Indiana, Iowa, Kentucky, Michigan, Missouri, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, and West Virginia, 77 FR at 33654, and Nebraska, 77 FR 40150, 40151 (July 6, 2012). The EPA has approved SIPs relying on CSAPR participation for BART purposes for Minnesota, 77 FR 34801, 34806 (June 12, 2012), and Wisconsin, 77 FR 46952, 46959 (August 7, 2012).

    As explained in the proposal, the 2012 analytic demonstration that CSAPR provides for greater reasonable progress than BART included Texas EGUs as subject to CSAPR for SO2 and annual NOX (as well as seasonal NOX) and included Florida EGUs as subject to CSAPR for seasonal NOX. The EPA recognizes that the treatment of these EGUs in the analysis would have been different if the Florida FIP withdrawal finalized in the CSAPR Update rule and the Texas FIP withdrawal finalized in this action had been known at the time of the demonstration. In order to address any potential concern about continuing to rely on CSAPR participation as a BART alternative for EGUs in the remaining CSAPR states, in the proposal for this action the EPA provided a sensitivity analysis explicitly addressing the potential effect on that demonstration of the removal of Texas and Florida EGUs from the relevant CSAPR trading programs in response to the D.C. Circuit's remand. As discussed in section IV, the sensitivity analysis indicates clearly that the demonstration remains valid despite these changes in CSAPR's geographic scope, supporting the continued validity of EPA's 2012 conclusion that CSAPR participation meets the Regional Haze Rule's criteria for a BART alternative.22 Consequently, in this action the EPA is affirming the current Regional Haze Rule provision at 40 CFR 51.308(e)(4) authorizing the use of CSAPR participation as a BART alternative for BART-eligible EGUs for a given pollutant in states whose EGUs continue to participate in a CSAPR trading program for that pollutant.

    22 With respect to each of the remanded budgets, the EPA has responded or expects to respond to the remand by withdrawing the FIP provisions requiring compliance with the remanded budget. Thus, all changes to CSAPR arising directly from the Agency's response to the remand are changes in CSAPR's geographic scope rather than changes in the stringency of state budgets. Although the EPA has also promulgated new CSAPR seasonal NOX budgets for 22 states (including eight states with remanded seasonal NOX budgets) in order to address a more stringent NAAQS, see generally 81 FR 74504, for purposes of the sensitivity analysis the EPA has conservatively not considered the generally increased stringency of the new seasonal NOX budgets, but the EPA did consider the changes in CSAPR's geographic scope—that is, the fact that the remaining three states with remanded seasonal NOX budgets will no longer participate in CSAPR for seasonal NOX.

    III. Withdrawal of CSAPR FIP Requirements Related to Texas' Transport Obligations With Regard to the 1997 Annual PM2.5 NAAQS A. Summary

    In this action, as proposed, the EPA is responding to the remand of the CSAPR Phase 2 SO2 budget for Texas by withdrawing the FIP provisions requiring Texas EGUs to participate in the CSAPR SO2 Group 2 Trading Program and the CSAPR NOX Annual Trading Program with regard to emissions during Phase 2 of those programs, which began in 2017. In EME Homer City II, the court remanded the CSAPR Phase 2 SO2 budget for Texas to the EPA for reconsideration on the grounds that the budget may be more stringent than necessary to address the state's obligation under CAA section 110(a)(2)(D)(i)(I) to reduce transported pollution with respect to the 1997 annual PM2.5 NAAQS.23 Upon review of options for responding to the remand, the EPA has determined, for the reasons discussed in this section, that withdrawal of the FIP provisions identified above, rather than issuance of revised FIP provisions for Texas with a higher (i.e., less stringent) Phase 2 SO2 budget as advocated by some commenters, is the appropriate response. Withdrawal of the FIP provisions related to the CSAPR SO2 trading program encompasses withdrawal of the requirement for Texas EGUs to comply with the remanded Phase 2 SO2 budget, thereby addressing the specific rule provision remanded by the court. The EPA is withdrawing the FIP provisions related to annual NOX (in addition to the requirements related to SO2) because the CSAPR FIP requirements for SO2 and annual NOX were determined through an integrated analysis and were promulgated in combination to remedy covered states' PM2.5 transport obligations; the court's finding that CSAPR's Phase 2 requirements may be more stringent than necessary to address Texas' PM2.5 transport obligation therefore implicates the state's Phase 2 budgets for both SO2 and annual NOX.

    23 795 F.3d at 128-29. A more detailed discussion of how the EPA established the CSAPR Phase 2 SO2 budget for Texas and why the court found the budget invalid is included in the proposal for this action. 81 FR at 78958.

    Withdrawal of the previous CSAPR FIP requirements revives the need to consider Texas' transport obligation under CAA section 110(a)(2)(D)(i)(I) with regard to the 1997 annual PM2.5 NAAQS and to address any remaining obligation through other means. However, as proposed, the Agency is further determining that Texas has no remaining transport obligation under this CAA provision with regard to this NAAQS following withdrawal of the previous FIP requirements, and consequently is also determining that the EPA has no obligation to issue new FIP requirements as to Texas's transport obligation under CAA section 110(a)(2)(D)(i)(I) with regard to the 1997 annual PM2.5 NAAQS.

    In the CSAPR final rule, the EPA determined that 23 states, including Texas, had transport obligations with regard to the 1997 annual PM2.5 NAAQS, the 2006 24-hour PM2.5 NAAQS, or both, and established SO2 and annual NOX emissions budgets for each of the states.24 The budgets were implemented through FIP provisions requiring the affected EGUs in each covered state to participate in CSAPR allowance trading programs. In the case of Texas, the PM2.5-related FIP requirements were imposed based solely on the state's transport obligations with regard to the 1997 annual PM2.5 NAAQS.25

    24 The EPA also determined in CSAPR and a related supplemental rule that 25 states, including Texas, had transport obligations with regard to the 1997 8-hour ozone NAAQS. In all, 28 states were determined to have transport obligations related to either PM2.5, ozone, or both. The EPA's process for determining states' emissions limitations under CSAPR and the associated CSAPR FIP requirements is described at length in the preamble to the CSAPR final rule. See generally 77 FR at 48222-71.

    25 As noted in the proposal and further discussed below, the modeling for the CSAPR final rule also linked Texas to a downwind air quality problem with regard to the 2006 24-hour PM2.5 NAAQS, but the EPA did not rely on the linkage with regard to that NAAQS as a basis for establishing CSAPR FIP requirements for Texas EGUs. 81 FR at 78960 n.42; see also 76 FR at 48243, 48214.

    Following issuance of the D.C. Circuit's decision in EME Homer City II remanding the CSAPR Phase 2 SO2 budget for Texas, the EPA reevaluated its earlier conclusions regarding Texas' PM2.5 transport obligations by reexamining the data in the final CSAPR record in light of the D.C. Circuit's holdings in the decision, including the holdings regarding the CSAPR Phase 2 seasonal NOX budgets for several states, as explained in the proposal.26 The final CSAPR record contained “base case” modeling projections of air quality at monitoring locations throughout the country both for 2012, the intended start year of Phase 1 of the CSAPR trading programs, and for 2014, the intended start year of Phase 2 of the programs. The base case projections were designed to represent projected air quality at these monitoring locations without any emission reductions from CSAPR. In the CSAPR rulemaking, the EPA used the 2012 base case air quality projections for purposes of identifying ozone receptors projected to have air quality problems and determining states that were linked to those receptors and that therefore might have transport obligations under both Phase 1 and Phase 2 of the CSAPR trading programs. However, in EME Homer City II, the D.C. Circuit agreed with petitioners27 that the EPA should also have considered the 2014 base case air quality projections for these purposes, and that in instances of receptors where the 2014 base case projections did not show air quality problems, the EPA lacked authority to require any emission reductions in Phase 2 of the CSAPR trading programs based on linkages to those receptors only occurring in Phase 1 of the programs. On these grounds, the court found that EPA lacked authority to establish Phase 2 seasonal NOX emission limitations for EGUs in ten states linked solely to ozone receptors whose 2014 air quality projections did not show air quality problems.28

    26 81 FR at 78960.

    27See Opening Brief of Industry and Labor Petitioners on Remand 8, 14, EME Homer City Generation, L.P. v. EPA, No. 11-1302 (D.C. Cir. filed December 10, 2014).

    28EME Homer City II, 795 F.3d at 129-30. The court also remanded the Phase 2 seasonal NOX budget for an eleventh state (Texas), but on different grounds.

    While not discussed in the court's decision, the projections of 2014 air quality for a PM2.5 receptor in Madison County, Illinois (the only PM2.5 receptor with projected air quality problems to which Texas was linked) in the final CSAPR record are analogous to the 2014 air quality projections for the ozone receptors described above, in that the air quality problems at the Madison County receptor were projected to be resolved in 2014 before any emission reductions from CSAPR. In light of the court's holding as to the legal import of the 2014 base case air quality projections for the ozone receptors described above, the EPA considered the legal import of the analogous 2014 base case air quality projections for the Madison County PM2.5 receptor with respect to Texas' PM2.5-related obligations under CSAPR. There are three relevant record data elements. First, the record indicates that the only PM2.5 receptor to which Texas is linked for purposes of determining possible obligations under the good neighbor provision is the receptor in Madison County, Illinois.29 Second, the projected maximum design value 30 for annual PM2.5 at the Madison County receptor is 15.02 micrograms per cubic meter (µg/m3) in the 2014 base case.31 Finally, the value that the EPA used to determine whether a particular PM2.5 receptor should be identified as having air quality problems that may trigger transport obligations with regard to the 1997 annual PM2.5 NAAQS is 15.05 µg/m3, which is higher than the Madison County maximum design value in the 2014 base case.32 Thus, the reevaluation of the final CSAPR record in light of the D.C. Circuit's holding indicates that the record does not support a finding of a transport obligation for Texas under CAA section 110(a)(2)(D)(i)(I) with regard to this NAAQS as of the beginning of Phase 2 of the CSAPR trading programs for SO2 and annual NOX, and the Agency accordingly finds that the state's obligation is resolved without a need for further emission reductions, including the emission reductions from CSAPR. The finding that Texas's transport obligation with regard to this NAAQS is resolved as of the start of Phase 2 of the CSAPR trading programs without the need for any emission reductions from CSAPR removes the EPA's authority to issue new FIP requirements for purposes of responding to the court's remand of the state's CSAPR Phase 2 SO2 budget. The finding likewise eliminates any obligation of the EPA to issue new FIP requirements addressing a remaining transport obligation of the state with regard to this NAAQS following withdrawal of the existing CSAPR FIP requirements, because the state has no such remaining transport obligation following the withdrawal.

    29See 76 FR at 48241, tables V.D-2 and V.D-3.

    30 The EPA independently considered linkages to “nonattainment” and “maintenance” receptors. If both the projected average design value and the projected maximum design values for a receptor were above the triggering threshold, the receptor was considered a nonattainment receptor. If the projected maximum design value was above the triggering threshold but the projected average design value was not, the receptor was considered a maintenance receptor. Thus, if the projected maximum design value was not above the triggering threshold, the receptor was not considered either a nonattainment receptor or a maintenance receptor. See 76 FR at 48233.

    31See projected 2014 base case maximum annual PM2.5 design value for Madison County, Illinois receptor 171191007 at B-41 of the Air Quality Modeling Final Rule Technical Support Document, Docket ID No. EPA-HQ-OAR-2009-0491-4140 (June 2011) (CSAPR Final Rule Technical Support Document), available in the docket for this action.

    32 76 FR at 48233.

    As noted in the proposal, the modeling for the CSAPR final rule also linked Texas to a downwind air quality problem with regard to the 2006 24-hour PM2.5 NAAQS, but the EPA did not rely on the linkage with regard to this NAAQS as a basis for establishing CSAPR FIP requirements for Texas EGUs. In the proposal, the EPA indicated that data in the final CSAPR record, reevaluated in light of EME Homer City II, would show that Texas no longer has a transport obligation with regard to the 2006 24-hour PM2.5 NAAQS as of the beginning of Phase 2 of the CSAPR trading programs for SO2 and annual NOX, but that because Texas was not subject to CSAPR requirements with regard to this NAAQS, the EPA was not proposing to make a determination in this action as to any obligation of Texas with regard to this NAAQS. Nevertheless, because commenters raise the 2006 24-hour PM2.5 NAAQS in their comments, the EPA will explain how the court's reasoning would apply with respect to the data for this NAAQS. The analysis for the 2006 24-hour PM2.5 NAAQS is essentially identical to the analysis described above with regard to the 1997 annual PM2.5 NAAQS. Specifically, the Madison County receptor is the only PM2.5 receptor to which Texas was linked for this NAAQS; 33 the projected maximum design value for 24-hour PM2.5 at the Madison County receptor is 35.3 µg/m3 in the 2014 base case; 34 and the value that the EPA used to determine whether a particular PM2.5 receptor should be identified as having air quality problems that may trigger transport obligations with regard to the 2006 24-hour PM2.5 NAAQS is 35.5 µg/m3, which is higher than the Madison County maximum design value in the 2014 base case.35 Thus, the reevaluation of the final CSAPR record in light of the D.C. Circuit's holding also indicates that the record would not support a finding of a transport obligation for Texas with regard to the 2006 24-hour PM2.5 NAAQS as of the beginning of Phase 2 of the CSAPR trading programs for SO2 and annual NOX.

    33See 76 FR at 48242-44, tables V.D-5 and V.D-6.

    34See projected 2014 base case maximum 24-hour PM2.5 design value for Madison County, Illinois receptor 171191007 at B-70 of the CSAPR Final Rule Technical Support Document, available in the docket for this action.

    35 76 FR at 48234-35.

    Overall, on the subject of the proposed withdrawal of the FIP provisions and the proposed finding that Texas will no longer have a transport obligation following withdrawal of the FIP provisions, the EPA received substantive comments from two parties.36 The remainder of this section summarizes these commenters' principal comments on this topic and provides the Agency's response.

    36 A third commenter states without further elaboration that it does not oppose the FIP withdrawal.

    B. Adequacy of Rationale for Finding No Remaining Transport Obligation

    The commenters state that the Agency's explanation for the proposed finding that Texas no longer has a transport obligation under CAA section 110(a)(2)(D)(i)(I) with regard to the 1997 annual PM2.5 NAAQS as of the beginning of Phase 2 of the CSAPR trading programs for SO2 and annual NOX is inadequate or confusing, and that the Agency must provide additional explanation for changing its position on the continued existence of a Texas transport obligation from the contrary position taken by the Agency when promulgating the CSAPR final rule.

    The EPA disagrees with these comments. The proposal contained a complete explanation of the Agency's basis for this finding, including all necessary supporting data and documentation.37 As fully explained in the proposal and reiterated above, the Agency's change in position as to Texas' transport obligation between the CSAPR final rule and this action is readily attributable to the D.C. Circuit's holding in EME Homer City II with regard to the legal import of the 2014 base case air quality projections in the final CSAPR record. The court's holding clarifies the legal standard the Agency should have used when considering the information in the final CSAPR record, which includes those air quality projections.

    37 81 FR at 78960.

    C. Responsiveness to the D.C. Circuit's Remand Instructions

    The commenters assert that withdrawal of the remanded Texas SO2 budget without issuance of a presumably less stringent replacement budget is not responsive to the D.C. Circuit's remand instructions. According to the commenters, the court directed the EPA to develop a revised CSAPR FIP SO2 budget for Texas EGUs that does not over-control, and the EPA must either do so or, alternatively, must allow Texas to submit a CSAPR SIP with a higher SO2 budget. The commenters' argument is intended to provide a continued basis for reliance on CSAPR participation as an SO2 BART alternative for Texas EGUs. Underlying the commenters' arguments is an apparent belief that a revised, higher CSAPR budget, whether issued through a FIP or approved through a SIP, would automatically enable Texas to rely on CSAPR participation as an alternative to source-specific SO2 BART requirements for the State's EGUs under 40 CFR 51.308(e)(4).

    The EPA disagrees with these comments. As an initial matter, the D.C. Circuit in fact did not direct the Agency to develop replacement budgets for the Texas SO2 budget or any of the other remanded CSAPR Phase 2 budgets. Rather, the court found that certain budgets were invalid and remanded to the EPA to “reconsider” them,38 a general instruction that encompasses a range of possible Agency actions upon reconsideration. The commenters cite no statement from the court's opinion that requires the establishment of replacement budgets, but assert that such a requirement must be inferred from the court's other statements or determinations. For example, the commenters suggest that because the court remanded the budgets without vacatur instead of vacating the budgets outright, the court must have intended for the Agency to replace rather than simply withdraw the budgets. However, the court actually provided a different rationale for remanding without vacatur, including the statement that “some good neighbor obligations may be appropriate for some of the relevant states.” 39 The reference to “some” of the states indicates that the court considered it likely that replacement budgets would not be established in every instance, and the use of the word “may” indicates that the court considered it possible that replacement budgets would not be established in any instance. Thus, contrary to the commenters' claims, the court's opinion clearly affords the Agency the discretion to determine the appropriate response to the remand and does not prevent the Agency from determining upon reconsideration that the program is no longer needed for a particular state with respect to a particular pollutant and consequently not establishing a replacement budget.

    38EME Homer City II, 795 F.3d at 124, 138.

    39Id. at 132 (emphasis added).

    The commenters make several additional arguments in support of their contention that the FIP withdrawal is not responsive to the D.C. Circuit's instructions. One commenter asserts that because the court stated that the Agency could consider new information in responding to the remand, the court must have intended for the Agency's response to involve the establishment of replacement budgets. This claim is a non sequitur—the court's acknowledgement that additional information may be considered says nothing about what the Agency may or must conclude from consideration of that information. The same commenter also asserts that the Agency may not rely on lack of FIP authority as the basis for not establishing a revised budget because lack of FIP authority was not the basis cited by the court for remanding the budget. This claim is also a non sequitur—the Agency lacks authority to issue a revised budget and therefore may not do so, regardless of what additional defects the court may have cited in ordering the remand.

    The other commenter asserts that the FIP withdrawal would disrupt allowance markets, contrary to the concern expressed by the D.C. Circuit that outright vacatur, rather than remand without vacatur, could have that impact. While the EPA agrees with the concern expressed by the court and the commenter regarding the potentially disruptive effects of outright vacatur on allowance markets, the Agency does not agree that the court's concern regarding unintended consequences of a judicial vacatur provides a basis for not taking final action at this time to withdraw the Texas FIP requirements, for two reasons. First, the EPA believes that the court did not intend for its expression of concern to constrain the Agency's range of possible responses to the remand. As discussed above, it is clear from the opinion that the court anticipated the possibility that upon reconsideration the EPA would determine that some, or even all, of the remanded budgets should be withdrawn and not replaced. Second, in this instance, emissions data reported by the EGUs covered by the CSAPR trading programs for SO2 and annual NOX demonstrate that withdrawal of the FIP provisions requiring Texas EGUs to participate in these programs will not cause allowance market disruption for the programs' remaining participants. Under both programs, the totals of the emissions reported by participating EGUs for both 2015 and 2016 in states other than Texas were less than the sums of the Phase 2 emissions budgets for these other states.40 Likewise, under both programs the totals of the emissions reported by Texas EGUs for both 2015 and 2016 were less than the Texas Phase 2 budgets.41 The elimination from the programs of Texas EGUs and the allowances allocated to Texas EGUs is therefore not expected to cause either shortages of allowances available for purchase by EGUs in the other states or the loss of an important market for sale of surplus allowances by EGUs in the other states. In these circumstances, the EPA anticipates that the FIP withdrawal will have little impact on the allowance market in either trading program.

    40See “2015-2016 Compliance Summary for CSAPR SO2 Group 2 and NOX Annual Trading Programs,” available in the docket for this action.

    41Id.

    With regard to the two commenters' preferred response to the remand—that the EPA establish a revised, less stringent SO2 budget for Texas EGUs and implement that budget through a revised FIP—such an action is infeasible because the Agency lacks the necessary legal authority. In this action, the EPA is finalizing the proposed finding that Texas no longer has a transport obligation under CAA section 110(a)(2)(D)(i)(I) for the 1997 annual PM2.5 NAAQS. That finding addresses the deficiency in the Texas SIP that was the basis for issuance of the withdrawn FIP requirements and, therefore, because there is no longer a deficiency, the Agency no longer has authority to issue revised FIP requirements.42 The reasons for the finding are discussed above and were discussed at length in the proposal.43

    42See CAA section 110(c).

    43 81 FR at 78960.

    With regard to the commenters' suggested alternative response to the remand—that the EPA allow Texas to submit a CSAPR SIP with a higher SO2 budget in order to allow the state to rely on CSAPR participation as an SO2 BART alternative even if the state's EGUs are no longer subject to a CSAPR FIP SO2 budget—the comment is not properly directed to the EPA, because Texas has not expressed interest in submitting a CSAPR SIP.44 Moreover, even if consideration of Texas' BART obligations were relevant for our action on remand, reliance on CSAPR participation with a higher budget would not automatically qualify as an SO2 BART alternative under the terms of the CSAPR-better-than-BART rule. That rule allows a state to rely on its EGUs' participation in a CSAPR SIP trading program only if the EPA approves the SIP as “meeting the requirements of” the CSAPR regulations at 40 CFR 52.38 and 52.39.45 As relevant here, the CSAPR regulations at § 52.39 expressly preclude a state's SO2 emissions budget from exceeding the SO2 emissions budget established under the CSAPR FIP trading program that the CSAPR SIP trading program would replace.46 Thus, even if the D.C. Circuit's remand could serve as a basis for the EPA to approve a SIP revision that does not satisfy § 52.39 on the grounds that the state's transport obligations can be addressed by a less stringent budget, the CSAPR-better-than-BART rule at 40 CFR 51.308(e)(4) would not be satisfied. A SIP approved on such a basis could in theory provide a mechanism for Texas EGUs to participate in CSAPR with a higher SO2 budget than the remanded FIP budget despite the Agency's lack of authority to set a revised SO2 budget through a revised FIP. However, because of the increased SO2 budget, such a SIP would not “meet[] the requirements of . . . § 52.39” and therefore would not allow the state to rely on its EGUs' participation in the CSAPR SIP trading program as an alternative to source-specific BART for SO2.47

    44 Texas did not submit comments on the proposal for this action.

    45 40 CFR 51.308(e)(4).

    46 40 CFR 52.39(i)(1)(i).

    47 To the extent the commenters are suggesting that the D.C. Circuit's holdings in EME Homer City II require the Agency to find that a SIP with a revised, higher SO2 budget would somehow satisfy the CSAPR-better-than-BART rule despite its plain language, the Agency disagrees. The court held that the remanded budgets may over-control relative to the states' transport obligations, but did not determine that the budgets are more stringent than necessary to serve as an alternative to source-specific BART. Further, the CSAPR-better-than-BART rule rests on an evaluation of the projected visibility impacts from CSAPR implementation assuming the final CSAPR Phase 2 budget stringencies (including the 2012 CSAPR budget revisions, which were accounted for in the analysis for the final CSAPR-better-than-BART rule). Given this, continuing to enforce the CSAPR-better-than-BART rule's requirement that a state's participation in CSAPR through a SIP must “meet[] the requirements of . . . § 52.39”—including the requirement for a state budget no less stringent than was analyzed for purposes of promulgating the rule—is entirely reasonable.

    D. Consistency of Responses to Remand Across States

    One commenter states that by withdrawing the FIP requirements the EPA is arbitrarily singling Texas out as the only state with a remanded CSAPR budget whose EGUs will lose the ability to rely on CSAPR participation as a BART alternative. The commenter further asserts that the Agency's “sole purpose” in withdrawing the FIP requirements is to facilitate the imposition of source-specific SO2 BART requirements on Texas EGUs through a different action.

    The EPA disagrees with these comments, which are entirely contrary to the record. First, on the question of uniform application of the CSAPR-better-than-BART regulations, no state whose EGUs do not participate in a CSAPR trading program for a given pollutant can rely on CSAPR participation as a BART alternative for that pollutant. In response to the D.C. Circuit's remand of CSAPR Phase 2 budgets, the EPA has withdrawn or expects to withdraw all fifteen remanded budgets. As explained in the proposal, in thirteen instances, the state will retain eligibility to rely on the CSAPR-better-than-BART rule for the pollutant in question through either the EPA's establishment of a new CSAPR budget to address a more stringent NAAQS (eight seasonal NOX budgets), the state's sources' continued participation in a different CSAPR trading program for the same pollutant (two seasonal NOX budgets), or the state's voluntary adoption in a SIP revision of a CSAPR state budget as stringent as the remanded CSAPR FIP budget (three SO2 budgets).48 In the remaining two instances where a remanded budget is being withdrawn and none of the three options for preserving eligibility to rely on CSAPR-better-than-BART applies—Texas' SO2 budget and Florida's seasonal NOX budget—the state is losing the opportunity to rely on CSAPR participation as a BART alternative for that pollutant.49 Thus, Texas is being treated the same as every other state with respect to use of the CSAPR-better-than-BART rule.50

    48 71 FR at 78956-57.

    49 As noted in the proposal, 81 FR at 78962, n.55, the EPA has already approved the incorporation into Florida's SIP of determinations regarding source-specific NOX BART. 77 FR 71111, 71113-14 (November 29, 2012); 78 FR 53250, 53267 (August 29, 2013).

    50 As a further example of the consistent treatment of Texas, the EPA notes that, despite the withdrawal of the Texas FIP requirements relating to annual NOX emissions, the state will be able to continue to rely on the CSAPR-better-than-BART rule for NOX as long as the state's EGUs continue to participate in a CSAPR trading program for seasonal NOX emissions. See 81 FR at 78955 n.4 and 78956 n.7.

    Second, on the question of the EPA's purpose in withdrawing the FIP requirements, that purpose is to address the court's remand. As explained in the proposal, before initiating this action, the EPA communicated with officials in all four states with remanded SO2 budgets—Alabama, Georgia, South Carolina, and Texas—regarding the EPA's intent to respond to the remand of the Phase 2 SO2 budgets by withdrawing the FIP provisions requiring the states' EGUs to participate in the CSAPR federal trading programs for SO2 and annual NOX.51 The EPA explained that each state would lose its ability to rely on CSAPR participation as a BART alternative for SO2 and/or NOX if its EGUs no longer participated in the CSAPR trading programs, but that the state could preserve that ability, if desired, by submitting a CSAPR SIP revision replacing the CSAPR federal trading programs with CSAPR state trading programs applying state-established budgets no less stringent than the remanded federally-established budgets (i.e., budgets consistent with the 2012 CSAPR-better-than-BART analytic demonstration).52 Alabama, Georgia, and South Carolina indicated their preference to pursue the SIP revision option. The EPA approved Alabama's CSAPR SIP revision in 2016 and, accordingly, the FIP provisions requiring its EGUs to participate in the CSAPR federal trading programs for SO2 and annual NOX have been automatically withdrawn.53 Georgia and South Carolina committed to the EPA in 2016 to submit similar CSAPR SIP revisions by deadlines falling in September 2017 and August 2017, respectively.54 Georgia has in fact now submitted its SIP to the EPA for approval,55 South Carolina has submitted its proposed state CSAPR trading program rules and has requested that the EPA begin the SIP approval process under the Agency's parallel processing procedure,56 and the EPA has proposed to approve both SIP revisions.57 The CSAPR FIP provisions remain in place for the time being for EGUs in Georgia and South Carolina, and the EPA is not proposing their withdrawal at this time based on the reasonable expectation that such withdrawal will be automatically accomplished as a result of the Agency's action on those states' SIP submittals, just as with Alabama.58 Because Texas has indicated that it will not submit a CSAPR SIP revision, the EPA is proceeding with this action to withdraw the FIP requirements for Texas EGUs, consistent with the intended approach previously communicated to officials for all four states. Texas has had the same set of options available to all four states with remanded SO2 budgets and has selected a different option than the other three states.

    51See memo entitled “The U.S. Environmental Protection Agency's Plan for Responding to the Remand of the Cross-State Air Pollution Rule Phase 2 SO2 Budgets for Alabama, Georgia, South Carolina and Texas” from Janet G. McCabe, EPA Acting Assistant Administrator for Air and Radiation, to EPA Regional Air Division Directors (June 27, 2016), available in the docket for this action. The memo directs the Regional Air Division Directors to share the memo with state officials. The EPA also communicated orally with officials in Alabama, Georgia, South Carolina, and Texas in advance of the memo.

    52 Although the D.C. Circuit remanded the states' Phase 2 SO2 budgets because it determined that the budgets may be more stringent than necessary to address the states' identified PM2.5 transport obligations, nothing in the court's decision affects the states' authority to seek incorporation into their SIPs of state-established budgets as stringent as the remanded federally-established budgets or limits the EPA's authority to approve such SIP revisions. See CAA sections 116, 110(k)(3).

    53 Air Plan Approval; Alabama; Cross-State Air Pollution Rule, 81 FR 59869 (August 31, 2016).

    54See letters to Heather McTeer Toney, Regional Administrator, EPA Region 4, from Judson H. Turner, Director of the Environmental Protection Division, Georgia Department of Natural Resources (May 26, 2016) and from Myra C. Reece, Director of Environmental Affairs, South Carolina Department of Health and Environmental Control (April 19, 2016), available in the docket for this action. The EPA has conditionally approved the CAA section 110(a)(2)(D)(i)(II) prong 4 visibility element for multiple NAAQS in the Georgia and South Carolina SIPs based on each state's commitment to submit a CSAPR SIP revision. 81 FR 65899, 65900 (September 26, 2016) (Georgia); 81 FR 56512, 56513 (August 22, 2016) (South Carolina). Each state committed to submit its CSAPR SIP revision within one year of the date of the Agency's final conditional approval of the state's prong 4 SIP revision. Failure of a state to meet a commitment serving as the basis for a conditional SIP approval results in automatic conversion of the conditional approval to a disapproval.

    55See letter to V. Anne Heard, Acting Regional Administrator, EPA Region 4, from Richard E. Dunn, Director, Environmental Protection Division, Georgia Department of Natural Resources (July 26, 2017), available in the docket for this action.

    56See letter to V. Anne Heard, Acting Regional Administrator, EPA Region 4, from Myra C. Reece, Director of Environmental Affairs, South Carolina Department of Health and Environmental Control (May 26, 2017), available in the docket for this action. Under the parallel processing procedure, the EPA works closely with the state agency during regulatory development, and the state submits a copy of its proposed regulations to the EPA before completion of the state's public notice and adoption process. The EPA reviews the proposed state action, prepares a notice of proposed EPA action (approval or disapproval) for publication in the Federal Register, and provides public notice concurrently with the state's process. After the state adopts its final regulations and submits its formal SIP revision request, the EPA reviews the SIP submission for changes from proposal and either prepares a notice of final EPA action or, if the state has made significant changes, may re-propose before taking final EPA action. The public comment period on South Carolina's proposed regulations ended on June 26, 2017, and the state expects its final regulations to become effective in August 2017. Id.

    57 Air Plan Approval; Georgia; Cross-State Air Pollution Rule, 82 FR 38866 (August 16, 2017); Air Plan Approval; South Carolina; Cross-State Air Pollution Rule, 82 FR 37389 (August 10, 2017).

    58 If the EPA disapproves Georgia's or South Carolina's SIP submittal, the EPA will propose to withdraw the FIP provisions requiring that state's EGUs to participate in the CSAPR federal trading programs for SO2 and annual NOX, consistent with the action taken here for Texas EGUs.

    E. Consistency of Consideration of D.C. Circuit's Holding Across States

    One commenter asserts that the EPA has not analyzed whether other states covered by CSAPR are linked only to receptors for which the 2014 base case projections do not show air quality problems, and that “[b]y not performing that analysis, the EPA is arbitrarily singling Texas out for removal from the CSAPR program.”

    The EPA disagrees with these comments. With respect to the budgets that were not remanded by the court, the Agency has confirmed for each such budget that the state is linked to at least one receptor for which the base case 2014 air quality projections showed air quality problems. The court's holding as to lack of authority to establish Phase 2 emission reduction requirements for a state in the absence of any linkage to a projected air quality problem in the 2014 base case therefore does not extend to these budgets.59

    59See 76 FR at 48241-44, tables V.D-2, V.D-3, V.D-5, and V.D-6 (annual and 24-hour PM2.5 linkages); id. at 48246, tables V.D-8 and V.D-9 (ozone linkages); CSAPR Final Rule Technical Support Document at B-35 to B-92 (2014 base case maximum design values for annual and 24-hour PM2.5); id. at B-4 to B-34 (2014 base case maximum design values for ozone). As discussed above, the relevant triggering values for annual and 24-hour PM2.5 are 15.05 µg/m3 and 35.5 µg/m3, respectively. The relevant triggering value for ozone is 85 parts per billion (ppb). 76 FR at 48236.

    With respect to the remanded budgets, the EPA again rejects the suggestion that Texas is being treated differently than any other state. As noted in the response above to the comments concerning the consistency of the Agency's responses to the remand, the FIP requirements to comply with all the remanded budgets, not just the remanded Texas SO2 budget, have been withdrawn or are expected to be withdrawn. Further, as discussed above, in the cases of ten of the eleven remanded seasonal NOX budgets, the absence of air quality problems at the relevant receptors in the 2014 base case projections was expressly cited by the court as the basis for remanding the budgets. The EPA's reliance on the court's holding as applied to those states' ozone-related transport obligations with regard to the 1997 8-hour ozone NAAQS is indistinguishable from the EPA's reliance on the same holding as applied to Texas' PM2.5-related transport obligations with regard to the 1997 annual PM2.5 NAAQS.60

    60 In the case of the last remanded seasonal NOX budget—for Texas—the court remanded the budget on different grounds, and the EPA subsequently determined through further analysis that the state has no remaining transport obligation under CAA section 110(a)(2)(D)(i)(I) with respect to the 1997 8-hour ozone NAAQS. See 81 FR at 74524. In the cases of the remanded SO2 budgets for Alabama, Georgia, and South Carolina, the states are adopting equally stringent CSAPR SIP budgets to replace the withdrawn FIP budgets in order to preserve the states' options to rely on the CSAPR-better-than-BART rule, thereby rendering moot any questions about the states' remaining transport obligations and EPA's authority or obligation to issue revised FIP budgets to address such transport obligations.

    F. Potential Use of Texas FIP Budgets To Address a Different PM2.5 NAAQS

    Finally, the commenters state that the EPA should consider Texas's obligations to address interstate transport with respect to the 2006 24-hour PM2.5 NAAQS and/or the 2012 annual PM2.5 NAAQS before withdrawing Texas' FIP obligations. As noted in the proposal and discussed above, in the case of Texas, CSAPR FIP obligations related to PM2.5 pollution were established with respect to the 1997 annual PM2.5 NAAQS only, even though for other states the CSAPR FIPs were based on the states' transport obligations with respect to both the 1997 annual PM2.5 NAAQS and the 2006 24-hour PM2.5 NAAQS.61 The commenters assert that failure to consider Texas' potential transport obligations with respect to the 2006 24-hour PM2.5 NAAQS now before withdrawing the FIP obligations would be inconsistent with the manner in which the EPA responded to the D.C. Circuit's remand of seasonal NOX budgets and inconsistent with data in the CSAPR record that links Texas to downwind air quality problems with respect to the 2006 24-hour PM2.5 NAAQS.62

    61See 81 FR at 78960 n.42; see also 76 FR at 48213, table III-1.

    62 One of the commenters asserts that “under EPA's own theory,” the existence of this data in the CSAPR final record mandates that the EPA consider the state's transport obligations with respect to the 2006 24-hour PM2.5 NAAQS before withdrawing the FIP requirements. Wrongly attributing this “theory” to the Agency, the commenter ignores other factors the Agency must take into account before promulgating FIP requirements, such as whether a statutory condition establishing FIP authority has been satisfied. In any event, for this final action the Agency has expressly considered (and rejected) the option of leaving the Texas FIP requirements in place to address the state's transport obligations with respect to this NAAQS, as discussed in this section.

    The EPA disagrees with this comment for three reasons. First, as noted above, the Agency is responding to the court's remand of all fifteen CSAPR Phase 2 SO2 and seasonal NOX budgets in the same way, namely by withdrawing the FIP provisions requiring affected EGUs to comply with the remanded budgets.63 The differences noted by the commenters are differences only in the actions that are being coordinated with the responses, not differences in the responses themselves.

    63 As discussed in the proposal, addressing the remanded budgets by withdrawing the FIP requirements is also fully consistent with the manner in which EPA has responded to previous judicial remands regarding obligations of individual states under other EPA rules addressing multiple states' transport obligations. 81 FR at 78959.

    Second, the differences in the coordinated actions are reasonable given the differences in other regulatory activities being undertaken for the two pollutants. The EPA coordinated the withdrawal of the eleven remanded seasonal NOX budgets addressing the 1997 8-hour ozone NAAQS with the establishment of new budgets for eight of those states addressing the 2008 8-hour ozone NAAQS because a rulemaking to address transported pollution with respect to the 2008 8-hour ozone NAAQS was actively under development at the time of the court's decision.64 Under this circumstance, such coordination was efficient and fully consistent with the court's expressed intent to minimize market disruption and to continue to address statutory obligations to reduce transported pollution where appropriate. In contrast, no analogous opportunity is available to coordinate withdrawal of the remanded SO2 budgets with another rulemaking addressing a more recent PM2.5 NAAQS because states' transport obligations with respect to the 2006 24-hour PM2.5 NAAQS have already been largely addressed through either SIPs or the CSAPR rulemaking, and the Agency has not identified interstate transport problems with respect to the 2012 annual PM2.5 NAAQS sufficient to justify a new national rulemaking at this time.

    64 As noted in the proposal, for three of the eleven states with remanded seasonal NOX budgets addressing the 1997 8-hour ozone NAAQS—Florida, North Carolina, and South Carolina—the EPA found no transport obligations with respect to the 2008 8-hour ozone NAAQS and did not establish seasonal NOX budgets addressing that NAAQS. 81 FR at 78959.

    Third, the EPA lacks authority to rely on a transport obligation for Texas with respect to either the 2006 24-hour PM2.5 NAAQS or the 2012 annual PM2.5 NAAQS as the legal basis to support imposing an SO2 budget for the state via a FIP. Under CAA section 110(c), the Agency's authority to issue a FIP with respect to a particular state obligation arises either when the Agency finds that a state has failed to submit a required SIP or when the Agency disapproves a submitted SIP. Neither of these predicate events has occurred with regard to Texas' transport obligations under either the 2006 24-hour PM2.5 NAAQS or the 2012 annual PM2.5 NAAQS.65 Commenters are correct that data in the final CSAPR record, as evaluated by the Agency when CSAPR was promulgated, showed that PM2.5 pollution transported from Texas to downwind states exceeded the minimum threshold level used to establish which states might have transport obligations for the 2006 24-hour PM2.5 NAAQS. However, as noted in the proposal 66 and discussed above, the 2014 base case air quality projections in the final CSAPR record, when reevaluated in light of the D.C. Circuit's holdings in EME Homer City II, would support a finding that as of the beginning of Phase 2 of the CSAPR trading programs for SO2 and annual NOX, Texas does not have an ongoing transport obligation with respect to the 2006 24-hour PM2.5 NAAQS. Thus, even if the EPA had taken final action disapproving Texas' outstanding SIP submission addressing transported pollution with regard to the 2006 24-hour PM2.5 NAAQS, such a disapproval would no longer provide a basis for the Agency to issue a FIP in this instance, because without any remaining transport obligation, there is no remaining SIP deficiency to address through a FIP.

    65 Texas has submitted SIPs intended to address its transport obligations under each of these NAAQS. In the case of the 2006 24-hour PM2.5 NAAQS, the EPA has proposed to disapprove the state's transport SIP submittal, 76 FR 20602 (April 13, 2011), but has yet not taken final action. In the case of the 2012 annual PM2.5 NAAQS, the EPA has not yet taken any action on the state's transport SIP submittal.

    66 81 FR at 78955 n.5.

    IV. Sensitivity Analysis Regarding CSAPR Participation as a BART Alternative A. Summary

    As explained in the proposal and summarized in section II.B, the EPA amended the Regional Haze Rule in 2012 to authorize states whose EGUs participate in CSAPR trading programs for a given pollutant to rely on CSAPR participation as a BART alternative for that pollutant. The CSAPR-better-than-BART rule rests on an analytic demonstration that implementation of CSAPR as expected to take effect at that time would achieve greater reasonable progress than BART toward the national goal of natural visibility conditions in Class I areas. As part of the proposal for this action, the EPA included a sensitivity analysis to the 2012 analytic demonstration showing that the 2012 analysis would have supported the same conclusion if the actions being taken in response to the D.C. Circuit's remand of various CSAPR Phase 2 budgets 67 had been reflected in the 2012 analysis. In this action, upon consideration of comments received, the EPA is affirming the sensitivity analysis from the proposal that concluded that the 2012 analytic demonstration is still valid and is consequently affirming that there is no need for revision of the CSAPR-better-than-BART rule as a result of the changes in CSAPR's geographic scope resulting from the Agency's set of responses to the EME Homer City II decision.

    67 As described in sections II.A and III.D above, in addition to this action, the full set of actions being taken to respond to the remand includes the 2016 CSAPR Update (see note 14 above) withdrawing the remanded seasonal NOX budgets for eleven states and establishing new seasonal NOX budgets to address a more recent ozone NAAQS for eight of those states, the action approving Alabama's SIP revision establishing state CSAPR trading programs for SO2 and annual NOX to replace the corresponding federal CSAPR trading programs (see note 53 above), and expected actions to approve proposed SIP revisions for Georgia and South Carolina comparable to Alabama's SIP revision (see note 57 above).

    The original 2012 analytic demonstration supporting participation in CSAPR as a BART alternative was based on an air quality modeling analysis comparing projected visibility conditions at relevant locations (referred to in the proposal and here simply as “Class I areas”) under three scenarios.68 The first scenario reflected no implementation of either CSAPR or BART, the second scenario reflected implementation of presumptive source-specific BART for both SO2 and NOX at BART-eligible EGUs nationwide, and the third scenario reflected implementation of CSAPR in covered states and presumptive source-specific BART for each pollutant in states where CSAPR did not apply for that pollutant (the three scenarios are referred to here as the base case scenario, the BART scenario, and the original CSAPR scenario, respectively). The EPA used the results of the three scenarios to compare the projected visibility impacts of CSAPR and BART under a two-pronged “better-than-BART” test.69 The first prong—a requirement that visibility must not decline in any Class I area under the proposed BART alternative—was evaluated by comparing the projected visibility conditions under the original CSAPR scenario and the base case scenario. The second prong—a requirement that there must be an overall visibility improvement on average across all affected Class I areas under the proposed BART alternative relative to source-specific BART—was evaluated by comparing the projected visibility conditions under the original CSAPR scenario and the BART scenario. Based on these comparisons, and also taking account of revisions made to CSAPR after the 2011 modeling but before or contemporaneous with the 2012 CSAPR-better-than-BART rule, the EPA concluded that the original CSAPR scenario satisfied both prongs of the test.

    68 This background is set forth in greater detail in the proposal. See 81 FR at 78961-62.

    69 As described in the proposal, satisfaction of the two-pronged test based on an air quality modeling analysis is one of three ways that an alternative measure may be demonstrated to be “better than BART” under the Regional Haze Rule. 81 FR at 78957.

    The EPA's proposed sensitivity analysis is set forth in detail in the proposal for this action.70 To reiterate briefly, for the sensitivity analysis, the Agency identified a total of five changes in CSAPR's geographic scope expected to occur as a result of actions responding to the D.C. Circuit's remand: The removal of Florida, North Carolina, and South Carolina from CSAPR for seasonal NOX; the removal of Texas from CSAPR for annual NOX; and the removal of Texas from CSAPR for SO2.71 With respect to each of the four changes related to NOX, the EPA explained that the change would not have caused a sufficiently large change in the modeled NOX emissions in the original CSAPR scenario to materially alter the visibility impacts comparison. For North Carolina and South Carolina, this assessment was based on the fact that the states' EGUs would, or were expected to, remain subject to CSAPR for annual NOX after the end of their CSAPR obligations for seasonal NOX.72 For Florida and Texas, this assessment was based on the small magnitudes of the differences in projected total NOX emissions from the EGUs in each of those states between the original CSAPR scenario and the relevant other modeled scenarios, combined with the dominance of sulfate impacts compared to nitrate impacts on visibility (especially in the South).73 With respect to the removal of Texas from CSAPR for SO2, the EPA explained that the change would have caused a large reduction in the Texas SO2 emissions as modeled in the original CSAPR scenario,74 thereby causing the visibility impacts comparison to support the Agency's determination that CSAPR participation met the criteria for a BART alternative even more strongly than the comparison as originally performed in 2012. Thus, because the only material change from the original 2012 analytic demonstration would be the relative visibility improvement in a revised CSAPR scenario resulting from the removal of Texas from CSAPR for SO2, the sensitivity analysis as proposed indicated that the 2012 analytic demonstration remains valid.

    70 81 FR at 78961-64.

    71 For purposes of the sensitivity analysis, the EPA conservatively did not consider the increased stringency of the CSAPR seasonal NOX budgets established in the CSAPR Update. See generally 81 FR 74504.

    72 81 FR at 78962.

    73Id. at 78962 (Florida), 78963 (Texas).

    74 As noted above and discussed in the proposal, the original CSAPR scenario reflected projected implementation of CSAPR in covered states and presumptive source-specific BART in states where CSAPR did not apply for a pollutant. If Texas had not been expected to be covered by CSAPR for SO2, the CSAPR scenario would therefore have reflected SO2 emissions from Texas EGUs consistent with the implementation of presumptive source-specific SO2 BART instead of participation in CSAPR. While EPA projected that the CSAPR region overall would have substantially lower SO2 emissions under CSAPR than under source-specific BART, for some individual states, including Texas, SO2 emissions under source-specific BART were projected to be lower than under CSAPR. Thus, removing Texas from CSAPR for SO2 in the CSAPR-better-than-BART analytic demonstration would have resulted in a decrease in projected SO2 emissions in the CSAPR scenario as modeled for the demonstration. See 81 FR at 78962-63. In the proposal, the EPA identified the minimum amount of the projected decrease in Texas SO2 emissions as 127,300 tons, based on the difference between projected Texas SO2 emissions under the original CSAPR and BART scenarios. Id.; see also “Projected Changes in Texas Emissions, Fossil Generation, and Fuel Usage Between the Base Case, BART, and Original CSAPR Scenarios,” available in the docket for this action.

    The EPA received substantive comments from two parties with respect to the proposed sensitivity analysis. One commenter agrees with the EPA's conclusion and with all but one detail of the EPA's methodology (which, if changed as suggested by the commenter, would strengthen the Agency's conclusion). The other commenter does not agree with either the conclusion or the methodology, providing several reasons. The remainder of this section summarizes the opposing commenter's principal comments on this topic and provides the Agency's response.

    B. Continued CSAPR Participation by Georgia and South Carolina

    The commenter states that in order to analyze the impacts on the CSAPR-better-than-BART analytic demonstration from changes caused by the remand, in addition to any other changes evaluated, the EPA must also evaluate the removal of Georgia and South Carolina from CSAPR's SO2 programs, both because the D.C. Circuit remanded their SO2 budgets as invalid and because in the commenter's view it is impermissible to rely in such a sensitivity analysis on mere commitments from those states to submit CSAPR SIPs in the future. Further, according to the commenter, allowing these states to continue to participate in CSAPR and then rely on such participation as a BART alternative after their SO2 budgets have been remanded would be inconsistent with the EPA's previous determinations that states could no longer indefinitely rely on participation in the former Clean Air Interstate Rule (CAIR) trading programs as a BART alternative after the D.C. Circuit found CAIR to be an invalid rule that must be replaced.75

    75 In 2005, the EPA promulgated the Clean Air Interstate Rule (CAIR) addressing certain interstate air pollution reduction obligations, 70 FR 25162 (May 12, 2005), and amended the Regional Haze Rule to allow participation in CAIR to be relied on as a BART alternative (the CAIR-better-than-BART rule), 70 FR 39104 (July 6, 2005). The D.C. Circuit upheld the CAIR-better-than-BART rule, Utility Air Regulatory Group v. EPA, 471 F.3d 1333 (D.C. Cir. 2006), but later found CAIR invalid and remanded that rule to the Agency for replacement, North Carolina v. EPA, 531 F.3d 896 (D.C. Cir. 2008), modified on rehearing, 550 F.3d 1176 (D.C. Cir. 2008). The Agency then replaced CAIR with CSAPR, 76 FR 48208, and replaced the CAIR-better-than-BART rule with the CSAPR-better-than-BART rule, 77 FR 33642. In addition, following the remand of CAIR, the Agency disapproved SIP submissions for several states seeking to rely on CAIR as a BART alternative, e.g., 77 FR at 33647.

    The EPA disagrees with the comment that the Agency must consider Georgia and South Carolina ineligible to continue to participate in CSAPR's SO2 programs as a consequence of the remand of their FIP budgets. The CSAPR regulations expressly provide for approval of CSAPR SIPs that meet certain conditions as replacements for CSAPR FIPs, and Georgia and South Carolina (as well as Alabama) have elected to submit such SIPs. The comparison that the commenter draws to the EPA's previous findings that states may no longer rely on participation in CAIR as a BART alternative is inapt, because the basis for such previous findings was that CAIR itself (including its trading programs) would not exist, not that particular CAIR budgets were invalid. Here, the CSAPR trading program will still exist, making it possible for the states to continue to participate in CSAPR through voluntary SIPs notwithstanding the invalidation of the EPA's authority to require compliance with the remanded budgets through FIPs addressing the states' transport obligations.

    The EPA considers the comment about reliance on mere commitments to submit SIPs to be largely moot because in the interval between submission of the comment and finalization of this action, Georgia has submitted its SIP revision and South Carolina has submitted its proposed state regulations and has requested that EPA begin the SIP approval process under the Agency's parallel processing procedure.76 Each of the state trading program rules includes a state budget for SO2 or annual NOX emissions equal to that state's current FIP budget. To the extent the commenter believes that for purposes of a sensitivity analysis the Agency may rely only on a SIP that has been approved and not on a SIP or proposed state rule that has been submitted for EPA approval but not yet approved, the Agency disagrees. Both states' rules take the approach of incorporating by reference the federal CSAPR trading program rules, including the relevant budget amounts, so there are no substantive differences between the state trading program rules being adopted by the states for inclusion in their SIPs and the federal trading program rules that are being replaced. The Agency has proposed to approve both states' SIP revisions 77 and at this time is unaware of any reason why the proposed approvals should not be finalized. In these circumstances, the EPA believes it is reasonable to rely on the SIP submittals for purposes of supporting an analytic assumption that Georgia and South Carolina will continue to participate in CSAPR's SO2 and annual NOX programs at the states' current budget levels.78

    76See supra notes 55 and 56.

    77See supra note 57.

    78 As discussed in section III.D above, both states continue to participate in the CSAPR SO2 and annual NOX programs through FIPs while Agency action on their SIP submittals is pending.

    C. Appropriateness of Continued Reliance on Original CSAPR-Better-Than-BART Analysis

    The commenter states that the sensitivity analysis is arbitrary because it is based on outdated material, and that instead of evaluating whether the 2012 analytic demonstration remains valid, the EPA must perform an entirely new analytic demonstration based on a new air quality modeling analysis using more current data.

    The EPA disagrees with this comment. While criticizing aspects of the Agency's analytic methodology, the commenter does not dispute that the sensitivity analysis as conducted by the EPA using that methodology shows that the 2012 analytic demonstration would have been strengthened rather than weakened by the changes in CSAPR's geographic scope that are occurring as a result of the D.C. Circuit's remand. (The methodological criticisms are addressed as the next comment below.) Further, the commenter offers no compelling support for the suggestion that, in the absence of any reason to doubt the conclusion from the 2012 analytic demonstration, the EPA must nevertheless conduct an entirely new demonstration. As an asserted legal rationale for the need for a new analysis, the commenter cites the Regional Haze Rule provisions for approval of BART alternatives, noting that the provision that the EPA followed in approving the CSAPR-better-than-BART rule requires a demonstration based on an air quality modeling analysis.79 The EPA has performed one such air quality modeling analysis and in this action has shown that the analysis already performed would continue to support a conclusion that CSAPR meets the criteria for a BART alternative notwithstanding changes in CSAPR's geographic scope. Contrary to the commenter's suggestion, the regulations do not say that the EPA must perform an entirely new analysis. Similarly, the commenter's assertion that changes in industry data since 2011 necessitate a new analytic demonstration amounts to a call for recurring demonstrations that a BART alternative results in greater reasonable progress than BART as the industry evolves, rather than a one-time demonstration when the alternative is approved. The regulations include no such requirement for recurring demonstrations.

    79See 40 CFR 51.308(e)(3).

    D. Possible Changes in the Geographic Distribution of Emissions

    The commenter states that the EPA's methodology for conducting the sensitivity analysis as set forth in the proposal failed to adequately consider whether changes in a revised CSAPR scenario regarding the geographic distribution of emissions across states or within individual states might lead to violations of the analytic criteria that the EPA relied on to find that CSAPR qualifies as a BART alternative. In particular, the commenter raises the theoretical possibility that, in a revised CSAPR scenario where Texas EGUs no longer participate in CSAPR for SO2, some individual sources in other CSAPR states could buy additional allowances and increase their emissions, and that such increases in emissions in turn could cause adverse visibility impacts in some individual Class I areas (thereby violating the first prong of the two-pronged test described above). More generally, the commenter asserts that without new modeling the EPA “has no data” and has “simply assume[d]” that the two prongs of the test would be satisfied under such a revised scenario.

    As an initial matter, the EPA disagrees with the commenter's summary characterization of the proposed sensitivity analysis as not being grounded in data. To the contrary, the Agency's proposed conclusions explicitly rely on data drawn from the modeling results in the record for the CSAPR-better-than-BART rule. The EPA explained in the proposal, first, how the data from the earlier rulemaking record showed that a revised CSAPR scenario would reflect a projected reduction in Texas SO2 emissions of 127,300 tons (or more) 80 along with projected increases in Florida and Texas NOX emissions of at most a few thousand tons and, second, why it was logical to conclude from these projected emissions changes that, relative to the modeled BART and base case scenarios, the revised CSAPR scenario would have shown even larger visibility improvements than the original CSAPR scenario.81 The commenter provides no data of any kind, let alone data that might challenge the data presented in the proposal.

    80 The 127,300-ton amount was described in the proposal as the minimum reduction in projected Texas SO2 emissions because it did not reflect a 50,500-ton increase in the Texas SO2 budget that occurred after the original CSAPR scenario was modeled. If that budget increase had been reflected in the original CSAPR scenario, modeled Texas EGU SO2 emissions in that scenario would likely have been higher, potentially by the full 50,500-ton amount. The CSAPR budget increase would have had no effect on Texas EGUs' modeled SO2 emissions under BART. As a consequence, the 127,300-ton minimum estimate of the reduction in projected Texas SO2 emissions caused by removing Texas EGUs from CSAPR for SO2, which are computed as the difference between Texas EGUs' collective emissions in the original CSAPR scenario and the BART scenario, may be understated by as much as 50,500 tons.

    81 81 FR at 78962-64.

    Turning to the commenter's more specific methodological criticism—that the Agency has not sufficiently considered whether shifts in the geographic distribution of emissions might lead to violations of the two-pronged test—the EPA agrees that the potential for such shifts was not expressly addressed in the sensitivity analysis as proposed. For the final action, the EPA has therefore performed further analysis to address this comment, focusing on the specific circumstance identified by the commenter—shifts associated with the removal of Texas EGUs from CSAPR for SO2—because the Agency agrees that this is the most significant change to CSAPR among the actions that have been or are expected to be taken in response to the D.C. Circuit's remand.82 The further analysis is based on state- and unit-level data disaggregated from the projections of electricity generation, fuel usage, and emissions developed for the base case, BART, and original CSAPR scenarios that were compared in the 2012 analytic demonstration.83

    82 As summarized above, the Agency explained in the proposal that the removal of Florida, North Carolina, South Carolina, and Texas EGUs from CSAPR for either seasonal or annual NOX, as applicable, would not have caused sufficient changes in modeled NOX emissions in a revised CSAPR scenario to materially alter the visibility impacts comparison, in some instances because the EGUs would remain subject to another CSAPR NOX program and in some instances because of the small magnitudes of the differences in projected total NOX emissions from the EGUs in each of those states between the original CSAPR scenario and the relevant other modeled scenarios, combined with the dominance of sulfate impacts compared to nitrate impacts on visibility (especially in the South). The EPA believes these same factors likewise indicate that the visibility impacts of any potential shifts in the geographic distribution of NOX emissions related to removal of these states from the CSAPR NOX programs would not be material to either prong of the two-pronged visibility impacts comparison.

    83 The state- and plant-level data are derived from the unit-level data in three spreadsheets included in the final CSAPR-better-than-BART rulemaking record and available in the docket for this action: IPM Parsed File for CSAPR Base Case Scenario 2014 (EPA-HQ-OAR-2011-0729-0004), IPM Parsed File for National BART Scenario 2014 (EPA-HQ-OAR-2011-0729-0008), and IPM Parsed File for CSAPR-BART Scenario 2014 (EPA-HQ-OAR-2011-0729-0006).

    Based on this additional analysis, the EPA finds that, in addition to the projected SO2 emissions reduction of at least 127,300 tons in Texas identified in the proposal,84 a revised CSAPR scenario without Texas in CSAPR for SO2 could also reflect a projected aggregated increase in SO2 emissions of approximately 22,300 tons in the six other states in the CSAPR SO2 Group 2 trading program (Alabama, Georgia, Kansas, Minnesota, Nebraska, and South Carolina). The reason for this adjustment is that in the original CSAPR scenario, Texas EGUs were projected to emit 22,300 tons of SO2 in excess of the state's SO2 budget.85 This would have been possible through the use of allowances purchased from EGUs in other SO2 Group 2 states. Under a revised CSAPR scenario where Texas EGUs are no longer part of the CSAPR trading program, Texas EGUs would no longer purchase the 22,300 allowances from the other states, and the EGUs in those other states could potentially use those allowances to increase their own collective SO2 emissions. Much or all of the total potential increase in emissions in the other states would be projected to occur in Alabama and Georgia, because in the original CSAPR scenario the collective emissions from Kansas EGUs were projected to already be at the state's “assurance level”—the emissions level above which EGUs trigger a CSAPR provision requiring the surrender of three allowances instead of one allowance per ton of emissions—and the collective emissions from Minnesota, Nebraska, and South Carolina EGUs were projected to already be close to their states' respective assurance levels.86 After accounting for the potential 22,300-ton offsetting adjustment, the net regional SO2 reduction under the revised CSAPR scenario relative to the original CSAPR scenario would be projected to be approximately 105,000 tons (or more) instead of 127,300 tons (or more) as described in the proposed sensitivity analysis.87 For the reasons below, the EPA has considered both the projected decrease in Texas SO2 emissions and the projected aggregated increase in SO2 emissions in the other states and has concluded that the two-pronged CSAPR-better-than-BART test described above would continue to be satisfied.

    84See supra note 74.

    85See “Projected Interstate Trading of CSAPR SO2 Group 2 Allowances in the Original CSAPR Scenario,” available in the docket for this action.

    86Id.

    87 It is possible that if the original CSAPR scenario that includes Texas in CSAPR for SO2 had been remodeled to include the 50,500 increase in the Texas SO2 budget described in the proposal and in footnote 80, Texas EGUs would have been projected to purchase either more or less than 22,300 allowances from EGUs in other CSAPR SO2 Group 2 states, and that a revised CSAPR scenario in which Texas was removed from CSAPR for SO2 would therefore have shown the other Group 2 states increasing their SO2 emissions by this different amount. Regardless of the amount or direction of any modeled change in Texas EGUs' CSAPR allowance purchases, that change would generally have been matched by an equal and opposite change in Texas EGUs' projected emissions under CSAPR, with the result that the overall net projected reduction in emissions caused by removing Texas from CSAPR for SO2 would continue to be at least 105,000 tons. The maximum amount of CSAPR SO2 allowances that Texas could purchase from other states and use in a given year without incurring 3-for-1 allowance surrender requirements is approximately 53,000 tons, which is the amount of Texas' SO2 variability limit—the difference between the state's budget and its assurance level—under the CSAPR regulations. See 40 CFR 97.710(b)(7).

    As summarized above, the first prong of the two-pronged test requires that visibility conditions must not decline in any Class I area. In the 2012 analytic demonstration, the EPA evaluated this prong by comparing visibility impacts at each affected Class I area under the original CSAPR scenario and the base case scenario. The situation identified by the commenter in which emissions under a revised CSAPR scenario might rise at some individual EGUs sufficiently to cause a decline in visibility at some individual Class I area relative to visibility conditions in the base case scenario—that is, without either CSAPR or BART—would be a very unusual event and likely can be ruled out as impossible, or nearly so, in a scenario such as the revised CSAPR scenario being considered. Under the base case scenario, EGUs incur no cost at all under CSAPR for emitting a ton of SO2. In contrast, under either the original CSAPR scenario or a revised CSAPR scenario, EGUs would incur some cost per ton of SO2 emissions under CSAPR, and where that new cost is the principal change from the base case scenario, EGUs that emit SO2 would generally be projected to either decrease or maintain their emissions relative to the base case scenario where that cost was not present. If in a revised CSAPR scenario, allowances are more plentiful and the cost incurred per ton of SO2 emissions therefore is less than the cost per ton under the original CSAPR scenario, some EGUs that emit SO2 would be projected to reduce their SO2 emissions by a smaller amount than in the original CSAPR scenario, but they generally would not be projected to significantly increase their emissions relative to the base case scenario. An exception to this general principle could occur if some other factor influencing EGUs' operating decisions, such as electricity demand or relative fuel prices, also changed. The EPA therefore considered whether the removal of Texas from CSAPR could have been projected to result in any material change in demand for generation from other states or relative fuel prices in other states in a revised CSAPR scenario compared to the original CSAPR scenario.88

    88 Although the analysis focuses on other CSAPR states, consistent with the concerns raised by the commenter, the EPA notes that absent changes in generation demand or relative fuel prices, removal of Texas from CSAPR would also be expected not to affect the operating decisions of EGUs in non-CSAPR states.

    With respect to the possibility of changes in electricity demand in other states, record data show that, relative to the original CSAPR scenario, aggregated 2014 generation from fossil-fired Texas EGUs was projected to increase by 0.2% in the BART scenario (which is used here as a proxy representing the operating behavior of Texas EGUs in a revised CSAPR scenario), indicating that removal of Texas EGUs from CSAPR for SO2 and implementation of SO2 BART would not be projected to result in an increase in emissions outside Texas caused by a shift in generation from Texas to other states.89

    89See “Projected Changes in Texas Emissions, Fossil Generation, and Fuel Usage Between the Base Case, BART, and Original CSAPR Scenarios,” available in the docket for this action. Because there is little difference in NOX emissions from Texas EGUs between the original CSAPR scenario, the BART scenario, and the base case scenario, id., the EPA considers the BART scenario a reasonable emissions proxy for a revised CSAPR scenario in which Texas EGUs would be subject to BART for SO2 but not for NOX.

    With respect to changes in relative fuel prices in other states, record data show that, relative to the original CSAPR scenario, in the BART scenario Texas EGUs were projected to decrease their use of subbituminous coal by 68 trillion Btus (TBtu), increase their use of lignite by 66 TBtu, and increase their use of other fossil fuels (predominantly natural gas) by 11 TBtu.90 The changes in projected Texas usage of subbituminous coal and natural gas are less than 1% of the projected total industry usage of those fuels nationwide under the original CSAPR scenario, indicating that there is no reason to expect material impacts on prices or usage of those fuels in other states. Unlike subbituminous coal and natural gas, lignite is an inherently local fuel that is consumed near the point of extraction because the fuel's low energy content per unit of weight makes shipment over long distances uneconomic. Thus, although the increase in Texas EGUs' projected usage of lignite is fairly large (8.2% of projected national usage of lignite under the original CSAPR scenario), any resulting increase in the local prices of lignite would not be expected to affect the mix of fuels used in other states.

    90See id.

    For further confirmation of the applicability here of the general principle discussed above—namely, that in a modeled CSAPR scenario, EGUs that emit SO2 would generally be projected to either decrease or maintain their emissions and not to increase their emissions relative to the base case scenario—the EPA compared the projected unit-level SO2 emissions in the original CSAPR and base case scenarios for all coal-fired EGUs in the seven states in the CSAPR SO2 Group 2 trading program. The results of the comparison clearly indicate that the general principle applies in this instance: 77 Units were projected to reduce their SO2 emissions by 1,000 tons or more (in amounts up to 57,000 tons), 106 units were projected to essentially maintain their SO2 emissions (increasing or decreasing by between 0 and 1,000 tons), and 2 units were projected to increase their SO2 emissions by approximately 1,100 tons each.91 A similar comparison at the state level shows that collective SO2 emissions from the sets of EGUs in each of the seven states were also projected to decrease from the base case scenario to the original CSAPR scenario (in amounts ranging from 1,900 tons for Nebraska to 248,800 tons for Alabama).92 In combination with the data above showing that removal of Texas from CSAPR for SO2 would not be expected to cause changes in demand for generation or relative fuel prices in other states, the EPA believes that these data on how EGUs were projected to comply with CSAPR in the original CSAPR scenario indicate that in a revised CSAPR scenario where Texas is removed from CSAPR for SO2 and 22,300 additional allowances (or up to 53,000 allowances, as noted earlier 93 ) therefore become available to the EGUs in the other SO2 Group 2 states, few if any EGUs would respond to the availability of the additional allowances by increasing their emissions materially above their emissions in the base case scenario. Further, even if some EGUs did increase their emissions above their emissions in the base case scenario, because of the regional nature of sulfate formation from SO2 emissions and the very large decreases in SO2 emissions across the broader region, the EPA believes that any such local increase would be unlikely to cause localized visibility degradation in any Class I area near a CSAPR state affected by the removal of Texas from CSAPR for SO2. In consequence, the Agency finds it reasonable to conclude that in such a revised CSAPR scenario, no such Class I areas would experience declines in visibility conditions relative to the base case scenario.

    91See “Projected Changes in Unit-Level Emissions Between the Base Case and Original CSAPR Scenarios,” available in the docket for this action.

    92See id.

    93See supra note 87.

    The second prong of the two-pronged test requires the average projected visibility improvement across all affected Class I areas to be greater under the BART alternative than under BART. In the proposal, the EPA proposed to conclude that this prong would be easily satisfied under the revised CSAPR scenario because Texas EGUs would be modeled in the revised CSAPR scenario as subject to SO2 BART instead of being subject to CSAPR for SO2, and the record data showed that Texas EGUs' projected SO2 emissions would be at least 127,300 tons lower under BART than under CSAPR. As discussed above, based on further analysis the EPA concludes that the decrease in projected Texas SO2 emissions could potentially be partially offset by an increase in projected SO2 emissions in other CSAPR SO2 Group 2 states, most likely Alabama or Georgia. The EPA believes that such a revised CSAPR scenario would continue to show greater average visibility improvement than the BART scenario (and greater than the original CSAPR scenario), again easily passing the second prong of the two-pronged test. Any reduction in visibility improvement in Class I areas near Alabama, Georgia, or the other Group 2 states relative to the original CSAPR scenario would be more than offset by greater visibility improvement in Class I areas near Texas.94 Due to the regional nature of sulfate particulate matter formation, it is highly likely that, like the original CSAPR scenario, the revised CSAPR scenario would show greater visibility improvement on average across all Class I areas than the BART scenario. The commenters did not present any information to indicate otherwise, and the EPA is not aware of any such information.

    94 The CSAPR-better-than-BART record shows that the Class I areas most impacted by Texas were projected to have greater modeled visibility improvement in the BART scenario (on the 20% best days) than in the CSAPR scenario. This indicates that there would have been additional visibility improvement in a revised CSAPR scenario in which Texas is not in CSAPR for SO2 and is therefore modeled at BART SO2 levels. Note that the average visibility improvements across all affected Class I areas as computed in the original CSAPR and BART scenarios are much closer on the 20% best days than on the 20% worst days. Therefore, in determining whether the second prong of the two-pronged test will be passed under a revised CSAPR scenario, the modeled results on the 20% best days are particularly important.

    E. Validity of 2012 Analytic Demonstration Prior to CSAPR Changes

    Finally, the commenter asserts that regardless of the character of the sensitivity analysis itself, the original 2012 CSAPR-better-than-BART analytic demonstration was arbitrary, rendering any sensitivity analysis performed regarding the original demonstration arbitrary. In support of this claim, the commenter incorporates by reference all criticisms of the original analytic demonstration contained in the comments submitted by the commenter in the original CSAPR-better-than-BART rulemaking as well as all criticisms contained in the commenter's brief in the pending litigation challenging the CSAPR-better-than-BART rule.

    The EPA rejects these comments as both improperly raised and outside the scope of this proceeding. The EPA appreciates the value of public input in the rulemaking process and seeks to fulfill its legal obligation to consider and respond to all substantive comments that are “raised with reasonable specificity,” 95 but catch-all references to whatever statements may have been made in another proceeding do not meet this standard. Moreover, even if they had been properly raised, comments concerning the legal validity of the original 2012 analytic demonstration are beyond the scope of this rulemaking, which concerns only the sensitivity analysis addressing the effect on the 2012 analytic demonstration of changes in CSAPR's geographic scope resulting from the D.C. Circuit's remand (as well as the withdrawal of Texas CSAPR FIP requirements for SO2 and annual NOX and the finding as to Texas' remaining transport obligation under CAA section 110(a)(2)(D)(i)(I) regarding the 1997 annual PM2.5 NAAQS). Arguments concerning the original 2012 analytic demonstration should be, and have been, raised in the original CSAPR-better-than-BART rulemaking and in the pending litigation over that rule.

    95 CAA section 307(d)(7)(B).

    V. Description of Amendments to Regulatory Text

    In order to implement the withdrawal of the FIP provisions requiring Texas EGUs to participate in the CSAPR NOX Annual Trading Program and the CSAPR SO2 Group 2 Trading Program with regard to emissions occurring in Phase 2 of those programs, the EPA is amending the regulatory text at 40 CFR 52.38(a)(2), 52.39(c), 52.2283(c), and 52.2284(c) to provide that Texas EGUs are subject to requirements under these two programs with regard to emissions occurring in 2015 and 2016 only. Conforming amendments to cross-references are being made at § 52.38(a)(3), (a)(4), (a)(5), (a)(6), and (a)(8)(iii) and § 52.39(g), (h), (i), (j), and (m)(3).

    The EPA is also clarifying the CSAPR regulations by adding the introductory headings “Annual emissions” and “Ozone season emissions” to § 52.38(a) and (b), respectively, and by amending the wording of the regulatory text at §§ 52.38(b)(2)(i) and 52.39(b) to parallel the wording of the newly amended regulatory text at §§ 52.38(a)(2)(i) and 52.39(c)(1). These editorial clarifications do not alter any existing regulatory requirements.

    Finally, the EPA is correcting the CSAPR regulations applicable to South Carolina EGUs by amending the regulatory text at § 52.2141(b) to reference CSAPR SO2 Group 2 allowances and 40 CFR part 97, subpart DDDDD instead of CSAPR SO2 Group 1 allowances and 40 CFR part 97, subpart CCCCC. The corrections make the text at § 52.2141(b) consistent with the existing text at § 52.2141(a), and the two paragraphs together now correctly reflect the existing regulatory requirements applicable to South Carolina EGUs as already set forth at § 52.39(c) and (k).

    VI. Statutory and Executive Order Reviews

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

    A. Executive Order 12866: Regulatory Planning and Review, and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and therefore was not submitted to the Office of Management and Budget (OMB) for review.

    B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

    This action is not expected to be an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

    C. Paperwork Reduction Act

    This action does not impose any new information collection burden under the Paperwork Reduction Act. The OMB has previously approved the information collection activities contained in the existing regulations and has assigned OMB control number 2060-0667. The withdrawal of the FIP provisions in this action will eliminate the obligations of Texas sources to comply with the existing monitoring, recordkeeping, and reporting requirements under the CSAPR SO2 Group 2 Trading Program and the CSAPR NOX Annual Trading Program.

    D. Regulatory Flexibility Act

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act. 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 action withdraws existing regulatory requirements for some entities and does not impose new requirements on any entity. We have therefore concluded that this action will either relieve or have no net regulatory burden for all directly regulated small entities.

    E. Unfunded Mandates Reform Act

    This action does not contain any unfunded mandate as described in the Unfunded Mandates Reform Act, 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 simply eliminates certain federal regulatory requirements that the D.C. Circuit has held invalid.

    F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. This action simply eliminates certain federal regulatory requirements that the D.C. Circuit has held invalid.

    G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications as specified in Executive Order 13175. It will not have substantial direct effects on tribal governments, on the relationship between the federal government and Indian tribes, or on the distribution of power and responsibilities between the federal government and Indian tribes. This action simply eliminates certain federal regulatory requirements that the D.C. Circuit has held invalid. Thus, Executive Order 13175 does not apply to this action. Consistent with the EPA Policy on Consultation and Coordination with Indian Tribes, the EPA consulted with tribal officials while developing CSAPR. A summary of that consultation is provided in the preamble for CSAPR, 76 FR 48208, 48346 (August 8, 2011).

    H. Executive Order 13045: Protection of Children From Environmental Health and Safety Risks

    The EPA interprets Executive Order 13045 as applying only to those regulatory actions that concern environmental health or safety risks that the EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it simply eliminates certain federal regulatory requirements that the D.C. Circuit has held invalid.

    I. Executive Order 13211: Actions That Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211, because it is not a significant regulatory action under Executive Order 12866.

    J. National Technology Transfer Advancement Act

    This rulemaking does not involve technical standards.

    K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action is not subject to Executive Order 12898 because it does not establish an environmental health or safety standard. This action simply eliminates certain federal regulatory requirements that the D.C. Circuit has held invalid. Consistent with Executive Order 12898 and the EPA's environmental justice policies, the EPA considered effects on low-income populations, minority populations, and indigenous peoples while developing CSAPR. The process and results of that consideration are described in the preamble for CSAPR, 76 FR 48208, 48347-52 (August 8, 2011).

    L. Congressional Review Act

    This action is subject to the Congressional Review Act, and the 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).

    M. Judicial Review and Determinations Under CAA Section 307(b)(1) and (d)

    CAA section 307(b)(1) indicates which federal appellate courts have venue for petitions of review of final actions by the EPA. This section provides, in part, that petitions for review must be filed in the D.C. Circuit Court of Appeals if (i) the agency action consists of “nationally applicable regulations promulgated, or final action taken, by the Administrator,” or (ii) such action is locally or regionally applicable, if “such action is based on a determination of nationwide scope or effect and if in taking such action the Administrator finds and publishes that such action is based on such a determination.” This final action is “nationally applicable.” In addition, the EPA finds that all aspects of this action are based on a determination of “nationwide scope and effect” within the meaning of section 307(b)(1).

    First, the EPA's withdrawal of FIP requirements under the CSAPR program for Texas is being undertaken in response to a remand by the D.C. Circuit in litigation that challenged numerous aspects of CSAPR with implications for multiple states and resulted in the remand of fifteen budgets for thirteen states. Retaining review in the D.C. Circuit is appropriate and avoids the potential that another court is forced to interpret the remand order of a sister circuit. Also, the finding that, after the FIP withdrawal, Texas has no remaining obligation to address interstate transport with respect to the 1997 annual PM2.5 NAAQS is based on a common core of factual findings and analyses concerning the transport of pollutants between the different states subject to CSAPR, which is a nationally applicable program. Further, this action is based on a determination that modifies the scope and effect of CSAPR; thus, any judicial review of this action will necessarily implicate the national-level policies, technical analyses, or interpretations that undergird this nationwide program.

    Second, in express consideration of the effect of the withdrawal of Texas FIP requirements accomplished through this final action, the EPA is affirming the continued validity of 40 CFR 51.308(e)(4), a regulatory provision available to each of the 27 States whose sources currently participate in one or more CSAPR trading programs. This determination affects the rights and interests of regulated parties and other stakeholders throughout the eastern United States relying on or otherwise affected by that regulatory provision.

    For these reasons, this final action is nationally applicable and, in addition, the Administrator finds that this final action is based on a determination of nationwide scope and effect for purposes of section 307(b)(1). Thus, pursuant to section 307(b) any petitions for review of this action must be filed in the D.C. Circuit within 60 days from the date of publication of this action in the Federal Register.

    In addition, pursuant to CAA sections 307(d)(1)(B), 307(d)(1)(J), and 307(d)(1)(V), the Administrator determines that this action is subject to the provisions of section 307(d). CAA section 307(d)(1)(B) provides that section 307(d) applies to, among other things, “the promulgation or revision of an implementation plan by the Administrator under [CAA section 110(c)].” 42 U.S.C. 7607(d)(1)(B). Under section 307(d)(1)(J), the provisions of section 307(d) apply to the “promulgation or revision of regulations . . . relating to . . . protection of visibility.” 42 U.S.C. 7607(d)(1)(J). Under section 307(d)(1)(V), the provisions of section 307(d) also apply to “such other actions as the Administrator may determine.” 42 U.S.C. 7607(d)(1)(V). The agency has complied with the procedural requirements of CAA section 307(d) during the course of this rulemaking.

    CAA section 307(b)(1) also provides that filing a petition for reconsideration by the Administrator of this rule does not affect the finality of the rule for the purposes of judicial review, does not extend the time within which a petition for judicial review may be filed, and does not postpone the effectiveness of the rule. Under CAA section 307(b)(2), the requirements established by this rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce these requirements.

    List of Subjects in 40 CFR Part 52

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

    Dated: September 21, 2017. E. Scott Pruitt, Administrator.

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

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

    42 U.S.C. 7401 et seq.

    Subpart A—General Provisions 2. Section 52.38 is amended by: a. Adding a paragraph (a) heading; b. Revising paragraph (a)(2); c. In paragraph (a)(3) introductory text, removing the text “(a)(2)” and in its place adding the text “(a)(2)(i) or (ii)”; d. In paragraph (a)(4) introductory text, removing the text “(a)(2)” and in its place adding the text “(a)(2)(i)”; e. In paragraphs (a)(5) introductory text and (a)(6), removing the text “(a)(2)” and in its place adding the text “(a)(2)(i)”, and removing the text “(a)(1) through (4)” and in its place adding the text “(a)(1), (a)(2)(i), and (a)(3) and (4)”; f. In paragraph (a)(8)(iii), removing the text “(a)(1) through (4)” and in its place adding the text “(a)(1), (a)(2)(i), and (a)(3) and (4)”; g. Adding a paragraph (b) heading; and h. In paragraph (b)(2)(i), after the word “emissions” adding the word “occurring”.

    The additions and revisions read as follows:

    § 52.38 What are the requirements of the Federal Implementation Plans (FIPs) for the Cross-State Air Pollution Rule (CSAPR) relating to emissions of nitrogen oxides?

    (a) Annual emissions. * * *

    (2)(i) The provisions of subpart AAAAA of part 97 of this chapter apply to sources in each of the following States and Indian country located within the borders of such States with regard to emissions occurring in 2015 and each subsequent year: Alabama, Georgia, Illinois, Indiana, Iowa, Kansas, Kentucky, Maryland, Michigan, Minnesota, Missouri, Nebraska, New Jersey, New York, North Carolina, Ohio, Pennsylvania, South Carolina, Tennessee, Virginia, West Virginia, and Wisconsin.

    (ii) The provisions of subpart AAAAA of part 97 of this chapter apply to sources in each of the following States and Indian country located within the borders of such States with regard to emissions occurring in 2015 and 2016 only: Texas.

    (b) Ozone season emissions. * * *

    3. Section 52.39 is amended by: a. In paragraph (b), before the colon, adding the text “with regard to emissions occurring in 2015 and each subsequent year”; b. Revising paragraph (c); c. In paragraph (g) introductory text, removing the text “(c)” and in its place adding the text “(c)(1) or (2)”; d. In paragraph (h) introductory text, removing the text “(c)” and in its place adding the text “(c)(1)”; e. In paragraphs (i) introductory text and (j), removing the text “(c)” two times and in its place adding the text “(c)(1)”; and f. In paragraph (m)(3), removing the text “(c)” and in its place adding the text “(c)(1)”.

    The revision reads as follows:

    § 52.39 What are the requirements of the Federal Implementation Plans (FIPs) for the Cross-State Air Pollution Rule (CSAPR) relating to emissions of sulfur dioxide?

    (c)(1) The provisions of subpart DDDDD of part 97 of this chapter apply to sources in each of the following States and Indian country located within the borders of such States with regard to emissions occurring in 2015 and each subsequent year: Alabama, Georgia, Kansas, Minnesota, Nebraska, and South Carolina.

    (2) The provisions of subpart DDDDD of part 97 of this chapter apply to sources in each of the following States and Indian country located within the borders of such States with regard to emissions occurring in 2015 and 2016 only: Texas.

    Subpart PP—South Carolina
    § 52.2141 [Amended]
    4. Section 52.2141, paragraph (b) is amended by removing the text “Group 1” two times and in its place adding the text “Group 2”, and removing the text “CCCCC” two times and in its place adding the text “DDDDD”. Subpart SS—Texas 5. Section 52.2283 is amended by revising paragraph (c)(1) and removing and reserving paragraph (c)(2).

    The revision reads as follows:

    § 52.2283 Interstate pollutant transport provisions; What are the FIP requirements for decreases in emissions of nitrogen oxides?

    (c)(1) The owner and operator of each source and each unit located in the State of Texas and Indian country within the borders of the State and for which requirements are set forth under the CSAPR NOX Annual Trading Program in subpart AAAAA of part 97 of this chapter must comply with such requirements with regard to emissions occurring in 2015 and 2016.

    6. Section 52.2284 is amended by revising paragraph (c)(1) and removing and reserving paragraph (c)(2).

    The revision reads as follows:

    § 52.2284 Interstate pollutant transport provisions; What are the FIP requirements for decreases in emissions of sulfur dioxide?

    (c)(1) The owner and operator of each source and each unit located in the State of Texas and Indian country within the borders of the State and for which requirements are set forth under the CSAPR SO2 Group 2 Trading Program in subpart DDDDD of part 97 of this chapter must comply with such requirements with regard to emissions occurring in 2015 and 2016.

    [FR Doc. 2017-20832 Filed 9-28-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2017-0267; FRL-9968-62-Region 7] Approval of Implementation Plans; State of Iowa; Elements of the Infrastructure SIP Requirements for the 2010 Sulfur Dioxide National Ambient Air Quality Standard (NAAQS) AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to approve elements of a State Implementation Plan (SIP) submission, and an amended SIP submission from the State of Iowa for the 2010 Sulfur Dioxide (SO2) National Ambient Air Quality Standard (NAAQS). Infrastructure SIPs address the applicable requirements of Clean Air Act (CAA) section 110, which requires that each state adopt and submit a SIP for the implementation, maintenance, and enforcement of each new or revised NAAQS promulgated by the EPA. These SIPs are commonly referred to as “infrastructure” SIPs. The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA.

    DATES:

    This direct final rule will be effective November 28, 2017, without further notice, unless EPA receives adverse comment by October 30, 2017. If EPA receives adverse comment, we will publish a timely withdrawal of the direct final rule in the Federal Register informing the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R07-OAR-2017-0267, to https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Heather Hamilton, Air Planning and Development Branch, U.S. Environmental Protection Agency, Region 7, 11201 Renner Boulevard, Lenexa, KS 66219 at (913) 551-7039, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

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

    I. What is being addressed in this document?

    II. Have the requirements for approval of a SIP revision been met?

    III. What action is EPA taking?

    IV. Statutory and Executive Order Reviews

    I. What is being addressed in this document?

    EPA is approving elements of the 2010 SO2 NAAQS infrastructure SIP submission from the State of Iowa received on July 29, 2013. Specifically, EPA is approving the following elements of section 110(a)(2): (A),(B),(C),(D)(i)(II)—prevent of significant deterioration of air quality (prong 3), and (D)(ii), (E) through (H), and (J) through (M). A Technical Support Document (TSD) is included as part of the docket to discuss the details of this action, including analysis of how the SIP meets the applicable 110 requirements for infrastructure SIPs.

    II. Have the requirements for approval of a SIP revision been met?

    The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The state initiated public comment from April 6, 2013, to May 8, 2013. One comment was received and adequately addressed in the final SIP submission. This submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained in above preamble and in more detail in the TSD which is part of this docket, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

    III. What action is EPA taking?

    EPA is approving elements of the July 23, 2013, infrastructure SIP submission from the State of Iowa, which addresses the requirements of CAA sections 110(a)(1) and (2) as applicable to the 2010 SO2 NAAQS. As stated above, EPA is approving the following elements of section 110(a)(2): (A),(B),(C),(D)(i)(II)—prevent of significant deterioration of air quality (prong 3), and (D)(ii), (E) through (H), and (J) through (M). Details of the submission are addressed in the TSD, included as part of the docket, and discuss this approval action.

    EPA is not taking action on section 110(a)(2)(I). Section 110(a)(2)(I) requires that in the case of a plan or plan revision for areas designated as nonattainment areas, states must meet applicable requirements of part D of the CAA, relating to SIP requirements for designated nonattainment areas. EPA does not expect infrastructure SIP submissions to address element (I). The specific SIP submissions for designated nonattainment areas, as required under CAA title I, part D, are subject to different submission schedules than those for section 110 infrastructure elements. EPA will take action on part D attainment plan SIP submissions through a separate rulemaking governed by the requirements for nonattainment areas, as described in part D.

    EPA is not taking action on section 110(a)(2)(D)(i)(I) prongs 1 and 2, and section 110(a)(2)(D)(i)(II) prong 4.

    We are publishing this direct final rule without a prior proposed rule because we view this as a noncontroversial action and anticipate no adverse comment. However, in the “Proposed Rules” section of this issue of the Federal Register, we are publishing a separate document that will serve as the proposed rule to approve the SIP revision if adverse comments are received on this direct final rule. We will not institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information about commenting on this rule, see the ADDRESSES section of this document. If EPA receives adverse comment, we will publish a timely withdrawal in the Federal Register informing the public that this direct final rule will not take effect. We will address all public comments in any subsequent final rule based on the proposed rule.

    IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable Federal regulations. 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).

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

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by November 28, 2017. Filing a petition for reconsideration by the Administrator of this direct final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2)).

    List of Subjects in 40 CFR Part 52

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

    Dated: September 20, 2017. Cathy Stepp, Acting Regional Administrator, Region 7.

    For the reasons stated in the preamble, EPA amends 40 CFR part 52 as set forth below:

    PART52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart Q—Iowa 2. In § 52.820, the table in paragraph (e) is amended by adding the entry “(48) Sections 110(a)(1) and (2) Infrastructure Requirements 2010 Sulfur Dioxide NAAQS” in numerical order to read as follows:
    § 52.820 Identification of plan.

    (e) * * *

    EPA-Approved Iowa Nonregulatory Provisions Name of nonregulatory SIP provision Applicable
  • geographic or
  • nonattainment area
  • State
  • submittal date
  • EPA approval date Explanation
    *         *          *         *          *         *         * (48) Sections 110(a)(1) and (2) Infrastructure Requirements 2010 Sulfur Dioxide NAAQS Statewide 7/23/13 9/29/17, [insert Federal Register citation] This action addresses the following CAA elements: 110(a)(2)(A),(B),(C), (D)(i)(II) prong 3, and (D)(ii), (E),(F),(G),(H),(J),(K),(L), and (M).
  • 110(a)(2)(I) is not applicable. [EPA-R07-OAR-2017-0267; FRL-9968-62-Region 7].
  • [FR Doc. 2017-20964 Filed 9-28-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R02-OAR-2015-0498; FRL-9968-64-Region 2] Approval and Promulgation of Implementation Plans; New York; Regional Haze Five-Year Progress Report State Implementation Plan AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving New York's regional haze progress report, submitted on June 16, 2015, as a revision to its State Implementation Plan (SIP). New York's SIP revision addresses requirements of the Clean Air Act and the EPA's rules that require each state to submit periodic reports describing progress towards reasonable progress goals established for regional haze and a determination of the adequacy of the state's existing regional haze SIP. The EPA is approving New York's determination that the State's regional haze SIP is adequate to meet these reasonable progress goals for the first implementation period which extends through 2018.

    DATES:

    This rule is effective on October 30, 2017.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R02-OAR-2015-0498. All documents in the docket are listed on the www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., confidential business information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available through www.regulations.gov, or please contact the person identified in the For Further Information Contact section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Kirk J. Wieber, Air Programs Branch, Environmental Protection Agency, 290 Broadway, 25th Floor, New York, New York 10278, (212) 637-3381 or wiebe[email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    Under the Regional Haze Rule,1 each state was required to submit its first implementation plan addressing regional haze visibility impairment to the EPA no later than December 17, 2007. See 40 CFR 51.308(b). New York submitted its regional haze plan on March 15, 2010. On August 28, 2012, the EPA approved New York's regional haze SIP submittal addressing the requirements of the first implementation period for regional haze. 77 FR 51915 (Aug. 28, 2012).

    1 40 CFR part 51, subpart P.

    Each state is also required to submit a progress report, in the form of a SIP revision that evaluates progress towards the reasonable progress goals (RPGs) for each mandatory Class I Federal area within the state and for each mandatory Class I Federal area outside the state which may be affected by emissions from within the state. See 40 CFR 51.308(g). Each state is also required to submit, at the same time as the progress report, a determination of the adequacy of its existing regional haze SIP. See 40 CFR 51.308(h). The first progress report was due five years after submittal of the initial regional haze SIP.

    On June 16, 2015, New York submitted to the EPA, as a revision to its SIP, a report on progress made towards the RPGs for Class I areas outside the State that are affected by emissions from sources within the State. There are no Class I areas in New York State. In its progress report SIP, New York concludes the elements and strategies relied on in its original regional haze SIP are sufficient for neighboring states affected by emissions from New York to meet all established RPGs. In a notice of proposed rulemaking (NPRM) published on August 1, 2017 (82 FR 35738), the EPA proposed to approve New York's progress report as satisfying the requirements of 40 CFR 51.308(g) and 51.308(h). No comments were received on the August 1, 2017 proposed rulemaking.

    II. Final Action

    EPA is finalizing approval of New York's Regional Haze Progress Report SIP revision, submitted by New York on June 16, 2015, as meeting the requirements of 40 CFR 51.308(g) and 51.308(h).

    III. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

    In addition, this rule 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(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 28, 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).

    List of Subjects in 40 CFR Part 52

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

    Dated: September 19, 2017. Catherine R. McCabe, Acting Regional Administrator, Region 2.

    Part 52 chapter I, title 40 of the Code of Federal Regulations is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart HH—New York 2. In § 52.1670(e) the table titled “EPA APPROVED NEW YORK NONREGULATORY AND QUASI-REGULATORY PROVISIONS” is amended by adding the entry “Regional Haze Five-Year Progress Report” at the end of the table to read as follows:
    § 52.1670 Identification of plan.

    (e) * * *

    EPA-Approved New York Nonregulatory and Quasi-Regulatory Provisions SIP element Applicable geographic or nonattainment area New York
  • submittal date
  • EPA
  • approval date
  • Explanation
    *         *         *         *         *         *         * Regional Haze Five-Year Progress Report State-wide June 16, 2015 September 29, 2017; [Insert Federal Register page citation]
    [FR Doc. 2017-20823 Filed 9-28-17; 8:45 am] BILLING CODE 6560-50-P
    CHEMICAL SAFETY AND HAZARD INVESTIGATION BOARD 40 CFR Part 1601 [Agency Docket Number CSB 17-1] Freedom of Information Act Program AGENCY:

    Chemical Safety and Hazard Investigation Board.

    ACTION:

    Interim final rule.

    SUMMARY:

    This interim final rule revises the Chemical Safety and Hazard Investigation Board's (CSB) Freedom of Information Act (FOIA) rule. The purpose of this revision is to ensure consistency with the FOIA Improvement Act of 2016 and to update certain other provisions of the CSB's current rule. This interim final rule supersedes all previous CSB rules and guidance that supplement and implement the CSB FOIA Program.

    DATES:

    Effective date: This rule is effective September 29, 2017.

    Comment date: Comments must be received by October 30, 2017.

    ADDRESSES:

    You may send comments by any of the following methods:

    (a) Email to: [email protected] In the subject line of the message include “Comment—Interim Final FOIA Rule.”

    (b) Fax: 202-261-7650, attention: Kara Wenzel, Acting General Counsel, Chemical Safety and Hazard Investigation Board.

    (c) Mail to: Kara Wenzel, Acting General Counsel, Chemical Safety and Hazard Investigation Board, 1750 Pennsylvania Ave. NW., Suite 910, Washington, DC 20006.

    (d) Hand Delivery/Courier: Kara Wenzel, Acting General Counsel, Chemical Safety and Hazard Investigation Board, 1750 Pennsylvania Ave. NW., Suite 910, Washington, DC 20006.

    Instructions: All submissions must include the title “Interim Final FOIA Rule” and the agency docket number for this rulemaking, CSB 17-1. The CSB will post all comments received by the due date to the CSB's Web site, http://www.csb.gov/, including any personal information provided. For additional details on submitting comments, see “Public Participation” in the SUPPLEMENTARY INFORMATION section of this document.

    Docket information: For access to the docket to read a compilation of all comments submitted, please visit http://www.csb.gov/ after the final date for submission of comments.

    FOR FURTHER INFORMATION CONTACT:

    Kara Wenzel, Acting General Counsel, 202-261-7600, or [email protected].

    SUPPLEMENTARY INFORMATION:

    Executive Summary

    The FOIA, 5 U.S.C. 552, establishes basic procedures for public access to agency records. The FOIA requires federal agencies to issue regulations to establish procedures to implement the FOIA. The CSB's current FOIA rule is codified at 40 CFR part 1601.

    This interim rule revises 40 CFR part 1601 to implement provisions of the FOIA Improvement Act of 2016 and to make additional legal updates. Specifically, this interim rule implements changes to conform to the requirements of the following amendments to the FOIA since the adoption of the CSB's current FOIA rule: The OPEN Government Act of 2007, Public Law 110-175, the OPEN FOIA Act of 2009, Public Law 111-83, and the FOIA Improvement Act of 2016, Public Law 114-185.

    For example, the FOIA Improvement Act of 2016 introduced several changes to current law, including, but not limited to the following: An increase in the minimum time for an administrative appeal to ninety (90) day; increased opportunities for dispute resolution services at various times throughout the FOIA process; waiver of fees if agencies do not meet mandated time limits; proactive disclosure of records of general interest to the public that are appropriate for such disclosure; and application of the Department of Justice's “foreseeable harm” standard as the basis for withholding information pursuant to a FOIA exemption, 5 U.S.C. 552(a)(8)(A)(i)(I).

    Public Participation

    The CSB is issuing an interim final rule to revise its current FOIA regulation because these changes are required by statutory amendments to FOIA since the adoption of the CSB's original FOIA rule in 2000. By issuing an interim final rule, these regulatory changes will take effect sooner than would be possible with the publication of a Notice of Proposed Rulemaking. Even though the CSB has issued an interim final rule, the CSB welcomes public comments from interested persons regarding any aspect of the changes made by this interim final rule. Please refer to the ADDRESSES section above for guidance on submitting comments. The CSB will consider all public comments in drafting the final rule.

    All comments must be submitted in English, or if not, accompanied by an English translation.

    Please note that all comments received are considered part of the public record and will be made available for public inspection online at http://www.csb.gov/disclaimers/legal-affairs-foia. Posted information made available on the CSB Web site will include personal identifying information (such as name and address) voluntarily submitted by the commenter, unless the CSB receives a specific request as described below to withhold such information.

    If you want to submit personal identifying information (such as your name and address) as part of your comment, but do not want it to be posted online, you must include the phrase “PERSONAL IDENTIFYING INFORMATION” in the first paragraph of your comment. You also must locate all the personal identifying information you do not want posted online in the first paragraph of your comment and identify what information you want redacted. If you want to submit confidential business information as part of your comment, but do not want it to be posted online, you must include the phrase “CONFIDENTIAL BUSINESS INFORMATION” in the first paragraph of your comment. You also must prominently identify any confidential business information to be redacted within the comment. If a comment has so much confidential business information that it cannot be effectively redacted, all or part of that comment may not be posted on http://www.csb.gov/.

    Personal identifying information and confidential business information identified and located as set forth above will be placed in the agency's records, but not posted online.

    The CSB reserves the right, but has no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from http://www.csb.gov/ that it may deem to be inappropriate for publication, such as obscene language. All submissions that have been redacted or removed that contain comments on the merits of the rulemaking will be retained in the rulemaking record and will be considered as required under the Administrative Procedure Act and other applicable laws, and may be accessible under the FOIA.

    Regulatory Procedures Administrative Procedure Act (5 U.S.C. Ch. 5)

    The CSB's implementation of this rule as an interim final rule, with provision for post-promulgation public comment, is based on section 553(b) of the Administrative Procedure Act. 5 U.S.C. 553(b). Under section 553(b), an agency may issue a rule without notice of proposed rulemaking and the pre-promulgation opportunity for public comment, with regard to “interpretative rules, general statements of policy, or rules of agency organization, procedure, or practice.” The CSB has determined that many of the revisions are to interpretive rules issued by the CSB, as they merely advise the public of the CSB's implementation of recent amendments to the FOIA. Moreover, the CSB has determined that the remaining revisions are rules of agency procedure or practice, as they do not change the substantive standards the agency applies in implementing the FOIA. The CSB has also concluded that there is good cause to find that a pre-publication public comment period is unnecessary. These revisions to the existing regulations in 40 CFR part 1601 merely implement statutory changes, align the CSB's regulations with controlling judicial decisions, and clarify agency procedures.

    Unfunded Mandates Reform Act (2 U.S.C. Ch. 25)

    This interim final rule is not subject to the Unfunded Mandates Reform Act because it does not contain a Federal mandate that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100,000,000.00 or more in any one year. Nor will it have a significant or unique effect on small governments.

    Regulatory Flexibility Act (5 U.S.C. Ch. 6)

    This interim final rule is not subject to the Regulatory Flexibility Act. The CSB has reviewed this regulation and by approving it certifies that this regulation will not have a significant economic impact on a substantial number of small entities. The rule implements the procedures for processing FOIA requests within the CSB. Under the FOIA, agencies may recover only the direct costs of searching for, reviewing, and duplicating the records processed for the requesters. Thus, fees accessed by CSB will be nominal. Further, the “small entities” that make FOIA requests, as compared with individual and other requesters, are relatively few in number.

    Paperwork Reduction Act (44 U.S.C. Ch. 35)

    This interim final rule does not impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995. The Paperwork Reduction Act imposes certain requirements on Federal agencies in connection with the conducting or sponsoring of any collection of information. This interim rule does not contain any new collection of information requirement within the meaning of the Act.

    Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. Ch. 6)

    This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (as amended), 5 U.S.C. 804. This rule will not result in an annual effect on the economy of $100,000,000.00 or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based enterprises to compete with foreign-based enterprises in domestic and export markets.

    National Environmental Policy Act of 1969 (5 U.S.C. 804)

    This interim final rule will not have significant effect on the human environment. Accordingly, this rule is categorically excluded from environmental analysis under 43 CFR 46.210(i).

    E-Government Act of 2002 (44 U.S.C. 3504)

    Section 206 of the E-Government Act requires agencies, to the extent practicable, to ensure that all information about that agency required to be published in the Federal Register is also published on a publicly accessible Web site. All information about the CSB required to be published in the Federal Register may be accessed at http://www.csb.gov/. This Act also requires agencies to accept public comments “by electronic means.” See the “Public Participation” heading of the SUPPLEMENTARY INFORMATION section of this document, for directions on the electronic submission of public comments on this interim final rule.

    Finally, the E-Government Act requires, to the extent practicable, that agencies ensure that a publicly accessible Federal Government Web site contains electronic dockets for rulemakings under the Administrative Procedure Act of 1946 (5 U.S.C. 551 et seq.). Under this Act, an electronic docket consists of all submissions under section 553(c) of title 5, United States Code; and all other materials that by agency rule or practice are included in the rulemaking docket under section 553(c) of title 5, United States Code, whether or not submitted electronically. The Web site http://www.csb.gov/ will contain an electronic dockets for this rulemaking.

    Plain Writing Act of 2010 (5 U.S.C. 301)

    Under this Act, the term “plain writing” means writing that is clear, concise, well-organized, and follows other best practices appropriate to the subject or field and intended audience. To ensure that this rulemaking has been written in plain and clear language so that it can be used and understood by the public, the CSB has modeled the language of this interim final rule on the Federal Plain Language Guidelines.

    List of Subjects in 40 CFR Part 1601

    Administrative practice and procedure, Archives and records, Confidential business information, Freedom of information, Privacy.

    For the reasons stated in the preamble, the CSB revises 40 CFR part 1601 to read as follows:

    PART 1601—PROCEDURES FOR DISCLOSURE OF RECORDS UNDER THE FREEDOM OF INFORMATION ACT Subpart A—Purpose, Scope, and Applicability Sec. 1601.1 Purpose and scope. 1601.2 Applicability. Subpart B—Procedures for Requesting and Disclosing Records 1601.10 Proactive disclosures. 1601.11 Requirements for making requests. 1601.12 Responsibility for responding to requests. 1601.13 Timing of responses to requests. 1601.14 Responses to requests. 1601.15 Special procedures for confidential commercial information. Subpart C—Appeals 1601.20 Processing of appeals. Subpart D—Administration 1601.30 Protection of records. 1601.31 Preservation of records pertaining to requests under this part. 1601.32 Other rights and services. Subpart E—Fees 1601.40 Procedures for fees. Authority:

    5 U.S.C. 552.

    Subpart A—Purpose, Scope, and Applicability
    § 1601.1 Purpose and scope.

    (a) In general. This part contains the Chemical Safety and Hazard Investigation Board (“CSB” or “agency”) regulations implementing the Freedom of Information Act (“FOIA”), 5 U.S.C. 552. These regulations provide the procedures by which members of the public may obtain access to records compiled, created, and maintained by the CSB, along with the CSB procedures for responding to such requests. The rules in this subpart are to be read in conjunction with the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the White House Office of Management and Budget (OMB Guidelines).

    (b) Definitions.

    (1) Chairperson means the Chairperson of the CSB.

    (2) Chief FOIA Officer means the person designated by Chairperson who has overall responsibility for the CSB's compliance with the FOIA.

    (3) FOIA Officer means a person designated by the Chief FOIA Officer to process requests for the CSB documents under the FOIA.

    (4) Record means information regardless of its physical form or characteristics including information created, stored, and retrievable by electronic means that is created or obtained by the CSB and under the control of the CSB at the time of the request, including information maintained for the CSB by an entity under Government contract for records management purposes. Record includes any writing, drawing, map, recording, tape, film, photo, or other documentary material by which information is preserved.

    (5) Requester means any person, including an individual, Indian tribe, partnership, corporation, association, or public or private organization other than a Federal agency that requests access to records in the possession of the CSB pursuant to 5 U.S.C. 552.

    § 1601.2 Applicability.

    (a) In general. The FOIA and the regulations in this part apply to all CSB documents and information. However, if another law sets specific procedures for disclosure that supersede the FOIA, then CSB must process a request in accordance with the procedures that apply to those specific documents. If a request is received for disclosure of a document to the public that is not required to be released under the provisions of law other than the FOIA, then the CSB must consider the request under the FOIA and the regulations in this part. Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed in accordance with CSB's Privacy Act regulations (part 1602 of this chapter), as well as under this subpart.

    (b) Disclosure of requested records. The CSB will only withhold information under the FOIA if the agency reasonably foresees that disclosure would harm an interest protected by an exemption or disclosure is prohibited by law. The FOIA Officer will make requested records available to the public to the greatest extent possible in keeping with the FOIA, except for the following types of records, which are exempt from the disclosure requirements:

    (1) Records specifically authorized under criteria established by an Executive Order (E.O.) to be kept secret in the interest of national defense or foreign policy and which are, in fact, properly classified pursuant to such E.O.;

    (2) Records related solely to the internal personnel rules and practices of the CSB;

    (3) Records specifically exempted from disclosure by statute (other than 5 U.S.C. 552(b)) provided that such statute requires that the matters be withheld from the public in such a manner as to leave no discretion on the issue or that the statute establishes particular criteria for withholding information or refers to particular types of matters to be withheld; and if enacted after the date of enactment of the OPEN FOIA Act of 2009, specifically cites to 5 U.S.C. 552(b)(3);

    (4) Records containing trade secrets and commercial or financial information obtained from a person and privileged or confidential;

    (5) Interagency or intra-agency memoranda or letters which would not be available by law to a party other than an agency in litigation with the CSB, provided that the deliberative process privilege shall not apply to records created twenty-five (25) years or more before the date on which the records were requested;

    (6) Personnel and medical files and similar files the disclosure of which would constitute a clearly unwarranted invasion of personal privacy;

    (7) Records or information compiled for law enforcement purposes, but only to the extent that the production of such law enforcement records or information:

    (i) Could reasonably be expected to interfere with enforcement proceedings;

    (ii) Would deprive a person of a right to a fair trial or an impartial adjudication;

    (iii) Could reasonably be expected to constitute an unwarranted invasion of personal privacy;

    (iv) Could reasonably be expected to disclose the identity of a confidential source, including a State, local or foreign agency or authority or any private institution which furnished information on a confidential basis, and in the case of a record or information compiled by criminal law enforcement authority in the course of a criminal investigation or by an agency conducting a lawful national security intelligence investigation, information furnished by a confidential source;

    (v) Would disclose techniques and procedures for law enforcement investigations or prosecutions, or would disclose guidelines for law enforcement investigations or prosecutions if such disclosure could reasonably be expected to risk circumvention of the law; or

    (vi) Could reasonably be expected to endanger the life or physical safety of any individual.

    (8) Records contained in or related to examination, operating, or condition reports prepared by, or on behalf of, or for the use of an agency responsible for the regulation or supervision of financial institutions;

    (9) Geological or geophysical information and data, including maps, concerning wells.

    (c) Disclosure of segregable nonexempt material. The CSB will consider whether partial disclosure of information is possible whenever the agency determines that a full disclosure of a requested record is not possible. If a requested record contains exempted material along with nonexempted material, all reasonably segregable nonexempt material must be disclosed.

    (d) Records available through routine distribution procedures. If the record requested includes material published and offered for sale, e.g., by the Superintendent of Documents of the Government Printing Office, or by an authorized private distributor, then the CSB will refer the requester to those sources. Nevertheless, if the requester is not satisfied with the alternative sources, then the CSB will process the request under its usual FOIA procedures, noting that the CSB will likely withhold copyrighted records under Exemption 4.

    Subpart B—Procedures for Requesting and Disclosing Records
    § 1601.10 Proactive disclosures.

    (a) In general. Records that the FOIA requires the CSB to make available for public inspection in an electronic format may be accessed through the CSB's Web site (which can be found at http://www.csb.gov/disclaimers/legal-affairs-foia/). The CSB is responsible for determining which of its records must be made publicly available, for identifying additional records of interest to the public that are appropriate for public disclosure, and for posting and indexing such records. The CSB must ensure that its Web site of posted records and indices is reviewed and updated on an ongoing basis. The CSB has a FOIA Contact and FOIA Public Liaison who can assist individuals in locating records particular to the CSB. The most up to date contact information for the CSB's FOIA Contact and the CSB's FOIA Public Liaison is available at http://www.foia.gov/report-makerequest.html.

    (b) Definitions.

    (1) Disclose or disclosure means making records available for examination or copying, or furnishing a copy of nonexempt responsive records.

    (2) FOIA Contact means the name, address and phone number at the CSB where a requester can make a FOIA request.

    (3) FOIA Public Liaison means the official who supervises the FOIA Requester Service Center.

    § 1601.11 Requirements for making requests.

    (a) General information. (1) To make a request for records, a requester should write directly to the FOIA office of the agency that maintains the records sought. A request will receive the quickest possible response if the request is addressed to the FOIA office of the agency that maintains the records sought. If the CSB is the agency that maintains the records sought, then the contact information for the CSB's FOIA office is listed at http://www.foia.gov/report-makerequest.html, and any additional requirements for submitting a request can be found herein. Additionally, requesters who have questions or concerns about making a request, and those who have made a request who have questions or concerns, may discuss their request(s) with the CSB's FOIA Contact or FOIA Public Liaison.

    (2) A requester who is making a request for records about himself or herself must comply with the verification of identity requirements described in this section. Requesters must provide either a notarized statement or a statement signed under penalty of perjury stating that the requester is the person they claim to be. This certification is required in order to protect the requester's privacy and to ensure that private information about the requester is not disclosed inappropriately to another individual.

    (3) Where a request for records pertains to a third party, a requester may receive greater access by submitting either a notarized authorization signed by that individual or a declaration made in compliance with the requirements set forth in 28 U.S.C. 1746 by that individual authorizing disclosure of the records to the requester, or by submitting proof that the individual is deceased (e.g., a copy of a death certificate or an obituary). As an exercise of administrative discretion, the CSB can require a requester to supply additional information, if necessary, in order to verify that a particular individual has consented to disclosure.

    (b) Addressing requests. (1) All requests for records to the CSB must be made in writing.

    (2) For hard copy requests: The envelope and the request both should be clearly marked “FOIA Request” and addressed to: Chief FOIA Officer—FOIA Request, Chemical Safety and Hazard Investigation Board, 1750 Pennsylvania Ave. NW., Suite 910, Washington, DC 20006.

    (3) For electronic requests: The subject line of the request should be marked “FOIA Request” and the request may be submitted by email to [email protected]

    (4) A request that is improperly addressed will be deemed to have been received by the CSB on the date that it is actually received by the CSB, or would have been received with the exercise of due diligence, by the FOIA Officer.

    (c) Description of records sought. (1) Requesters must describe the records sought in sufficient detail to enable the CSB's personnel to locate them with a reasonable amount of effort.

    (2) To the extent possible, requesters should include specific information that may help the CSB identify the requested records, such as the date, title or name, author, recipient, subject matter of the record, case number, file designation, or reference number. In general, requesters should include as much detail as possible about the specific records or the types of records that they are seeking. Before submitting their requests, requesters may contact the CSB's FOIA Contact or FOIA Public Liaison to discuss the records they seek and to receive assistance in describing the records.

    (3) If, after receiving a request, the CSB determines that the request does not reasonably describe the records sought, then the CSB must inform the requester what additional information is needed or why the request is otherwise insufficient. Requesters who are attempting to reformulate or modify such a request may discuss their request with the CSB's FOIA Contact or with the CSB's FOIA Public Liaison. If a request does not reasonably describe the records sought, the CSB's response to the request may be delayed.

    (d) Form of records. Requests may specify the preferred form or format (including electronic formats) for the records that the requester seeks. The CSB must accommodate requests if the record is readily reproducible in that form or format. If a person seeks information from the CSB in a format that does not currently exist, then the CSB must make reasonable efforts to provide the information in the format requested. The CSB will not create a new record of information to satisfy a request.

    (e) Contact information. Requesters must provide their first and last name along with their contact information, such as their phone number, email address, and/or mailing address, to assist the CSB in communicating with them and providing released records.

    (f) Agreement to pay fees. The CSB considers a FOIA request an agreement by the requester to pay all applicable fees charged unless the requester seeks a waiver of fees. The CSB ordinarily will confirm this agreement in an acknowledgement letter. The CSB will not charge any fee if the total cost of the response is less than $25.00. See § 1601.40 [discussing fees in more detail]. If the fee will be greater than $25.00, then the CSB must contact the requester to discuss how the requester wants to proceed.

    (g) Types of records not available. The FOIA does not require the CSB to:

    (1) Compile or create records solely for the purpose of satisfying a request for records;

    (2) Provide records not yet in existence, even if such records may be expected to come into existence at some future time; or

    (3) Restore records destroyed or otherwise disposed of, except that the FOIA Officer must notify the requester that the requested records have been destroyed or otherwise disposed of.

    § 1601.12 Responsibility for responding to requests.

    (a) In general. The agency that first receives a request for a record and maintains that record is the agency responsible for responding to the request. In determining which records are responsive to a request, the CSB ordinarily will include only records in its possession as of the date that it begins its search. If any other date is used, the CSB must inform the requester of that date. A record that is excluded from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), is not considered responsive to a request.

    (b) Authority to grant or deny requests. The Chief FOIA Officer or a designee is authorized to grant or to deny any initial request for records that are maintained by the CSB and to determine any appropriate fees.

    (c) Consultation, referral, and coordination. When reviewing records, the CSB must determine whether another agency of the Federal Government is better able to determine whether the record is exempt from disclosure under the FOIA. As to any such record, the CSB must proceed in one of the following ways:

    (1) Consultation. When records originated with the CSB, but contain within them information of interest to another agency or other Federal Government office, the CSB should consult with that other entity prior to making a release determination.

    (2) Referral. (i) When the CSB believes that a different agency or component of a different agency is best able to determine whether to disclose the record, the CSB should refer the responsibility for responding to the request regarding that record to that agency or component. Ordinarily, the agency that originated the record is presumed to be the best agency to make the disclosure determination. However, if the CSB and the originating agency jointly agree that the CSB is in the best position to respond regarding the record, then the record may be handled as a consultation.

    (ii) Whenever the CSB refers any part of the responsibility for responding to a request to another agency, it must document the referral, maintain a copy of the record that it refers, and notify the requester of the referral, informing the requester of the name(s) of the agency to which the record was referred, including that agency's FOIA contact information.

    (3) Coordination. The standard referral procedure is not appropriate where disclosure of the identity of the agency to which the referral would be made could harm an interest protected by an applicable exemption, such as the exemptions that protect personal privacy or national security interests. For example, if a non-law enforcement agency responding to a request for records on a living third party locates within its files records originating with a law enforcement agency, and if the existence of that law enforcement interest in the third party was not publicly known, then to disclose that law enforcement interest could cause an unwarranted invasion of the personal privacy of the third party. Similarly, if an agency locates within its files material originating with an Intelligence Community agency, and the involvement of that agency in the matter is classified and not publicly acknowledged, then to disclose or give attribution to the involvement of that Intelligence Community agency could cause national security harms. In such instances, in order to avoid harm to an interest protected by an applicable exemption, the CSB must coordinate with the originating agency to seek its views on whether the record can be disclosed. The release determination for the record that is the subject of the coordination will then be conveyed to the requester by the CSB.

    (d) Classified information. Upon receipt of any request involving classified information, the CSB must determine whether the information is currently and properly classified in accordance with applicable classification rules. Whenever a request involves a record containing information that has been classified or may be appropriate for classification by another agency under any applicable E.O. concerning the classification of records, the CSB must refer the responsibility for responding to the request regarding that information to the agency that classified the information, or to the agency that should consider the information for classification. Whenever the CSB's record contains information that has been derivatively classified (for example, when it contains information classified by another agency), the CSB must refer the responsibility for responding to that portion of the request to the agency that classified the underlying information.

    (e) Timing of responses to consultations and referrals. All consultations and referrals received by the CSB must be handled according to the date that the first agency received the perfected FOIA request.

    (f) Agreements regarding consultations and referrals. The CSB may establish agreements with other agencies to eliminate the need for consultations or referrals with respect to particular types of records.

    (g) No responsive record. If no records are responsive to the request, the FOIA Officer will so notify the requester in writing.

    § 1601.13 Timing of responses to requests.

    (a) In general. The CSB ordinarily will respond to requests according to their order of receipt.

    (b) Definitions.

    (1) Working day means a Federal workday; Saturdays, Sundays, and Federal holidays are excluded in computing the response time for processing FOIA requests.

    (2) [Reserved]

    (c) Multitrack processing. The CSB has a specific track for requests that are granted expedited processing, in accordance with the standards set forth in paragraph (f) of this section. In addition, the CSB uses two standard processing tracks- one for simple requests and a separate track for complex requests. The CSB will assign requests to the simple or complex track based on the estimated amount of work or time needed to process the request. Among the factors the CSB may consider are the number of records requested, the number of pages involved in processing the request and the need for consultations or referrals. The CSB must advise each requester of the track into which their request falls and, when appropriate, will offer a requester an opportunity to narrow or modify their request so that it can be placed in the simple processing track.

    (d) Unusual circumstances. Whenever the CSB cannot meet the statutory time limit for processing a request because of “unusual circumstances,” as defined in the FOIA, and the CSB extends the time limit on that basis, the CSB must, before expiration of the twenty (20) day period to respond, notify the requester in writing of the unusual circumstances involved and of the date by which the CSB estimates processing of the request will be completed. Where the extension exceeds ten (10) working days, the CSB must, as described by the FOIA, provide the requester with an opportunity to modify the request or arrange an alternative time period for processing the original or modified request. The CSB must make available its designated FOIA Contact or its FOIA Public Liaison for this purpose. A list of agency FOIA Public Liaisons is available at http://www.foia.gov/report-makerequest.html. The CSB must also alert requesters to the availability of the Office of Government Information Services (OGIS) to provide dispute resolution services.

    (e) Aggregating requests. To satisfy unusual circumstances under the FOIA, the CSB may aggregate requests in cases where it reasonably appears that multiple requests, submitted either by a requester, or by a group of requesters acting in concert, constitute a single request that would otherwise involve unusual circumstances. The CSB must not aggregate multiple requests that involve unrelated matters.

    (f) Expedited processing. (1) The CSB must process requests and appeals on an expedited basis whenever it is determined that they involve:

    (i) Circumstances in which the lack of expedited processing could reasonably be expected to pose an imminent threat to the life or physical safety of an individual;

    (ii) An urgency to inform the public about an actual or alleged Federal Government activity, if made by a person who is primarily engaged in disseminating information;

    (iii) The loss of substantial due process rights; or

    (iv) A matter of widespread and exceptional media interest in which there exists possible questions about the government's integrity that affect public confidence.

    (2) A request for expedited processing may be made at any time. Requests based on paragraphs (f)(1)(i) through (iv) of this section must be submitted to the CSB. When making a request for expedited processing of an administrative appeal, the request must be submitted to the CSB's FOIA Appeals Officer in accordance with § 1601.20.

    (3) A requester who seeks expedited processing must submit a statement, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. For example, under paragraph (f)(1)(ii) of this section, a requester who is not a full-time member of the news media must establish that the requester is a person whose primary professional activity or occupation is information dissemination, though it need not be the requester's sole occupation. Such a requester also must establish a particular urgency to inform the public about the government activity involved in the request—one that extends beyond the public's right to know about government activity generally. The existence of numerous articles published on a given subject can be helpful in establishing the requirement that there be an “urgency to inform” the public on the topic. As a matter of administrative discretion, the CSB may waive the formal certification requirement.

    (4) The CSB must notify the requester within ten (10) calendar days of the receipt of a request for expedited processing of its decision whether to grant or deny expedited processing. If expedited processing is granted, then the request must be given priority, placed in the processing track for expedited requests, and must be processed as soon as practicable. If a request for expedited processing is denied, then the CSB must act on any appeal of that decision expeditiously.

    § 1601.14 Responses to requests.

    (a) In general. The CSB, to the extent practicable, will communicate electronically with requesters having access to the Internet, such as by email or web portal.

    (b) Acknowledgments of requests. The CSB must acknowledge the request in writing and assign it an individualized tracking number if it will take longer than ten (10) working days to process. The CSB must include in the acknowledgment a brief description of the records sought to allow requesters to more easily keep track of their requests.

    (c) Estimated dates of completion and interim responses. Upon request, the CSB must provide an estimated date by which the CSB expects to provide a response to the requester. If a request involves a voluminous amount of material, or searches in multiple locations, the CSB may provide interim responses, releasing the records on a rolling basis.

    (d) Grants of requests. Once the CSB determines it will grant a request in full or in part, it must notify the requester in writing. The notice must describe the manner in which the record or records will be disclosed, whether by providing a copy of the record or records with the response, or providing them at a later date, or by making a copy of the record available to the requester for inspection at a reasonable time and place. The procedure for such an inspection must not unreasonably disrupt the operation of the CSB. The CSB must also inform the requester of any fees charged under § 1601.40 and must disclose the requested records to the requester promptly upon payment of any applicable fees. The CSB must inform the requester of the availability of its FOIA Public Liaison to offer assistance.

    (e) Adverse determinations of requests. If the CSB makes an adverse determination denying a request in any respect, it must notify the requester of that determination in writing. Adverse determinations, or denials of requests, include decisions that: The requested record is exempt, in whole or in part; the request does not reasonably describe the records sought; the information requested is not a record subject to the FOIA; the requested record does not exist, cannot be located, or has been destroyed; or the requested record is not readily reproducible in the form or format sought by the requester. Adverse determinations also include denials involving fees or fee waiver matters or denials of requests for expedited processing.

    (f) Content of denial. The denial must be signed by the Chairperson or the FOIA Officer and must include:

    (1) The name and title or position of the person responsible for the denial;

    (2) A brief statement of the reasons for the denial, including any FOIA exemption(s) applied by the CSB in denying the request;

    (3) An estimate of the volume of any records or information withheld, such as the number of pages or some other reasonable form of estimation, although such an estimate is not required if the volume is otherwise indicated by deletions marked on records that are disclosed in part or if providing an estimate would harm an interest protected by an applicable exemption; and

    (4) A statement that the denial may be appealed under § 1601.20, and a description of the appeal requirements.

    (5) A statement notifying the requester of the assistance available from the CSB's FOIA Public Liaison and the dispute resolution services offered by the OGIS.

    (g) Markings on released documents. Records disclosed in part must be marked clearly to show the amount of information deleted and the exemption under which the deletion was made unless doing so would harm an interest protected by an applicable exemption. The location of the information deleted must also be indicated on the record, if technically feasible.

    (h) Use of record exclusions. (1) In the event that the CSB identifies records that may be subject to exclusion from the requirements of the FOIA pursuant to 5 U.S.C. 552(c), the CSB must confer with Department of Justice, Office of Information Policy (OIP), to obtain approval to apply the exclusion.

    (2) When invoking an exclusion, the CSB must maintain an administrative record of the process of invocation and approval of the exclusion by OIP.

    § 1601.15 Special procedures for confidential commercial information.

    (a) In general. Confidential commercial information provided to the CSB by a submitter must not be disclosed pursuant to a FOIA request except in accordance with this section.

    (b) Definitions.

    (1) Confidential commercial information means commercial or financial information obtained by the CSB from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).

    (2) Submitter means any person or entity, including a corporation, State, or foreign government, Indian tribal governments but not including another Federal Government entity, that provides confidential commercial information, either directly or indirectly to the Federal Government.

    (c) Designation of confidential commercial information. A submitter of confidential commercial information must make good faith efforts to designate by appropriate markings, at the time of submission, any portion of its submission that it considers to be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4). These designations expire ten (10) years after the date of the submission unless the submitter requests and provides justification for a longer designation period.

    (d) When notice to submitters is required. (1) The CSB must promptly provide written notice to the submitter of confidential commercial information whenever records containing such information are requested under the FOIA if the CSB determines that it may be required to disclose the records, provided:

    (i) The requested information has been designated in good faith by the submitter as information considered protected from disclosure under Exemption 4; or

    (ii) The CSB has a reason to believe that the requested information may be protected from disclosure under Exemption 4, but has not yet determined whether the information is protected from disclosure.

    (2) The notice must either describe the commercial information requested or include a copy of the requested records or portions of records containing the information. In cases involving a voluminous number of submitters, the CSB may post or publish a notice in a place or manner reasonably likely to inform the submitters of the proposed disclosure, instead of sending individual notifications.

    (e) Exceptions to submitter notice requirements. The notice requirements of this section do not apply if:

    (1) The CSB determines that the information is exempt under the FOIA, and therefore will not be disclosed;

    (2) The information has been lawfully published or has been officially made available to the public;

    (3) Disclosure of the information is required by a statute other than the FOIA or by a regulation issued in accordance with the requirements of E.O. 12600 of June 23, 1987; or

    (4) The designation made by the submitter under paragraph (c) of this section appears obviously frivolous. In such case, the CSB must give the submitter written notice of any final decision to disclose the information within a reasonable number of days prior to a specified disclosure date.

    (f) Opportunity to object to disclosure. (1) The CSB must specify a reasonable time period within which the submitter must respond to the notice referenced above.

    (2) If a submitter has any objections to disclosure, it should provide the CSB a detailed written statement that specifies all grounds for withholding the particular information under any exemption of the FOIA. In order to rely on Exemption 4 as basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is privileged or confidential. Whenever possible, the business submitter's claim of confidentiality should be supported by a statement or certification by an officer or authorized representative of the business submitter. Information provided by a submitter pursuant to this paragraph may itself be subject to disclosure under the FOIA.

    (3) A submitter who fails to respond within the time period specified in the notice will be considered to have no objection to disclosure of the information. The CSB is not required to consider any information received after the date of any disclosure decision. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA.

    (g) Analysis of objections. The CSB must consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.

    (h) Notice of intent to disclose. Whenever the CSB decides to disclose information over the objection of a submitter, the CSB must provide the submitter written notice, which must include:

    (1) A statement of the reasons why each of the submitter's disclosure objections was not sustained;

    (2) A description of the information to be disclosed or copies of the records as the CSB intends to release them; and

    (3) A specified disclosure date, which must be a reasonable time after the notice.

    (i) Notice of FOIA lawsuit. Whenever a requester files a lawsuit seeking to compel the disclosure of confidential commercial information, the CSB must promptly notify the submitter.

    (j) Requester notification. The CSB must notify the requester whenever it provides the submitter with notice and an opportunity to object to disclosure because the request includes information that may arguably be exempt from disclosure under Exemption 4 of the FOIA; whenever it notifies the submitter of its intent to disclose the requested information; and whenever a submitter files a lawsuit to prevent the disclosure of the information.

    Subpart C—Appeals
    § 1601.20 Processing of appeals.

    (a) Right of appeal. If a request has been denied in whole or in part, the requester may appeal the denial to the CSB's FOIA Appeals Officer.

    (b) Definitions.

    (1) FOIA Appeal means an independent review of an adverse determination initial determination made in response to a FOIA request.

    (2) FOIA Appeals Officer means the person designated by the Chairperson to process and to decide a FOIA appeal.

    (c) Requirements for making an appeal. (1) A requester may appeal any adverse determinations to the FOIA Appeals Officer. Examples of adverse determinations are provided in § 1601.14(e).

    (2) The requester must make the appeal in writing. Requesters can submit appeals by mail or email in accordance with the following requirements herein, which are also listed on the CSB's Web site. To facilitate handling, the requester should mark both the appeal letter and envelope, or subject line of the electronic transmission, “Freedom of Information Act Appeal” or “FOIA Appeal.”

    (i) For hard copy requests: The envelope and the request both should addressed to: FOIA Appeals Officer—FOIA Appeal, Chemical Safety and Hazard Investigation Board, 1750 Pennsylvania Ave. NW., Suite 910, Washington, DC 20006.

    (ii) For electronic requests: The appeal should addressed to the FOIA Appeals Officer and may be submitted by email to [email protected]

    (3) To be considered timely, an appeal must be postmarked, or in the case of electronic submissions, transmitted, within ninety (90) calendar days after the date of the adverse determination that is the subject of the appeal. For purposes of apply the ninety (90) calendar day deadline, the CSB will treat an appeal that is improperly addressed as being received on the date on the date that it is actually received by the CSB, or would have been received with the exercise of due diligence, by the FOIA Appeals Officer.

    (4) The appeal should clearly identify the adverse determination that is being appealed and the assigned request number.

    (5) An appeal should also include a copy of the initial request, a copy of the letter denying the request in whole or in part, and a statement of the circumstances, reasons, or arguments advanced in support of disclosure of the requested record.

    (d) Adjudication of appeals. (1) The CSB FOIA Appeals Officer or designee will act on behalf of the CSB's Chief FOIA Officer on all appeals under this section.

    (2) An appeal ordinarily will not be adjudicated if the request becomes a matter of FOIA litigation.

    (3) On receipt of any appeal involving classified information, the FOIA Appeals Officer must take appropriate action to ensure compliance with applicable classification rules.

    (e) Decisions on appeals. The CSB must provide its decision on an appeal in writing. The disposition of an appeal will be in writing and will constitute the final action of the CSB on a request. A decision that upholds the CSB's determination in whole or in part will contain a statement that identifies the reasons for the affirmance, including any FOIA exemptions applied. The decision will provide the requester with notification of the statutory right to file a lawsuit and will also inform the requester of the mediation services offered by the OGIS of the National Archives and Records Administration as a non-exclusive alternative to litigation. If the CSB's decision is remanded or modified on appeal, the CSB must notify the requester of that determination in writing. The CSB must then further process the request in accordance with that appeal determination and will respond directly to the requester.

    (f) Engaging in dispute resolution services provided by OGIS. Dispute resolution is a voluntary process. If the CSB agrees to participate in the dispute resolution services provided by OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute.

    (g) When appeal is required. Before seeking review by a court of the CSB's adverse determination, a requester generally must first submit a timely administrative appeal.

    Subpart D—Administration
    § 1601.30 Protection of records.

    (a) In general. (1) Except as authorized by this part or as otherwise necessary in performing official duties, CSB employees must not disclose or permit disclosure of any document or information in the possession of the CSB that is confidential or otherwise of a nonpublic nature, including that regarding the CSB, the Environmental Protection Agency or the Occupational Safety and Health Administration.

    (2) No person may, without permission, remove from the place where it is made available any record made available to him for inspection or copying. Stealing, altering, mutilating, obliterating, or destroying a Federal record, in whole or in part, is a violation of Federal law.

    (b) [Reserved]

    § 1601.31 Preservation of records pertaining to requests under this part.

    The CSB must preserve all correspondence pertaining to the requests that it receives under this subpart, as well as copies of all requested records, until disposition or destruction is authorized pursuant to title 44 of the United States Code and the General Records Schedule 4.2 of the National Archives and Records Administration. The CSB must not dispose of or destroy records while they are the subject of a pending request, appeal, or lawsuit under the FOIA.

    § 1601.32 Other rights and services.

    Nothing in this subpart will be construed to entitle any person, as of right, to any service or to the disclosure of any record to which such person is not entitled under the FOIA.

    Subpart E—Fees
    § 1601.40 Procedures for fees.

    (a) In general. The CSB must charge for processing requests under the FOIA in accordance with the provisions of this section and with the OMB Guidelines. For purposes of assessing fees, the FOIA establishes three categories of requesters: Commercial use requesters, non-commercial scientific or educational institutions or news media requesters, and all other requesters. Different fees are assessed depending on the category. Requesters may seek a fee waiver. The CSB must consider requests for fee waivers in accordance with the requirements in paragraph (k) of this section. To resolve any fee issues that arise under this section, the CSB may contact a requester for additional information. The CSB must ensure that searches, review, and duplication are conducted in the most efficient and the least expensive manner. The CSB ordinarily will collect all applicable fees before sending copies of records to a requester. Requesters must pay fees by check or money order made payable to the Treasury of the United States, or by another method as determined by the CSB.

    (b) Definitions.

    (1) Commercial use request is a request that asks for information for a use or a purpose that furthers a commercial, trade, or profit interest, which can include furthering those interests through litigation. The CSB's decision to place a requester in the commercial use category will be made on a case-by-case basis based on the requester's intended use of the information. The CSB must notify requesters of their placement in this category.

    (2) Direct costs are those expenses that the CSB incurs in searching for and duplicating (and, in the case of commercial use requests, reviewing) records in order to respond to a FOIA request. For example, direct costs include the salary of the employee performing the work (i.e., the basic rate of pay for the employee, plus sixteen percent (16%) of that rate to cover benefits) and the cost of operating computers and other electronic equipment, such as photocopiers and scanners. Direct costs do not include overhead expenses such as the costs of space, and of heating or lighting a facility.

    (3) Duplication is reproducing a copy of a record, or of the information contained in it, necessary to respond to a FOIA request. Copies can take the form of paper, audiovisual materials, or electronic records, among others. The copies provided must be in a form that is reasonably usable by requesters.

    (4) Educational institution is any school that operates a program of scholarly research. A requester in this fee category must show that the request is made in connection with the requester's role at the educational institution. The CSB may seek verification from the requester that the request is in furtherance of scholarly research and the CSB must advise requesters of their placement in this category.

    (i) Example 1. A request from a professor of geology at a university for records relating to soil erosion, written on letterhead of the Department of Geology, would be presumed to be from an educational institution.

    (ii) Example 2. A request from the same professor of geology seeking drug information from the Food and Drug Administration in furtherance of a murder mystery he is writing would not be presumed to be an institutional request, regardless of whether it was written on institutional stationery.

    (iii) Example 3. A student who makes a request in furtherance of the student's coursework or other school-sponsored activities and provides a copy of a course syllabus or other reasonable documentation to indicate the research purpose for the request, would qualify as part of this fee category.

    (5) Noncommercial scientific institution is an institution that is not operated on a “commercial” basis, as defined in paragraph (b)(1) of this section and that is operated solely for the purpose of conducting scientific research the results of which are not intended to promote any particular product or industry. A requester in this category must show that the request is authorized by and is made under the auspices of a qualifying institution and that the records are sought to further scientific research and are not for a commercial use. The CSB must advise requesters of their placement in this category.

    (6) Representative of the news media is any person or entity that gathers information of potential interest to a segment of the public, uses its editorial skills to turn the raw materials into a distinct work, and distributes that work to an audience. Accordingly, the term includes any person actively gathering news for an entity that is organized and operated to publish or broadcast news to the public. The term news means information that is about current events or that would be of current interest to the public. Examples of news media entities include television or radio stations that broadcast news to the public at large, and publishers of periodicals that disseminate news and make their products available through a variety of means to the general public, including news organizations that make their products available for purchase by or subscription by or free distribution to the general public, including those solely on the Internet. These examples are not all-inclusive. Moreover, as methods of news delivery evolve (for example, the adoption of the electronic dissemination of newspapers through telecommunications services), such alternative media shall be considered to be news-media entities. A request for records supporting the news-dissemination function of the requester will not be considered to be for a commercial use. Freelance journalists who demonstrate a solid basis for expecting publication through a news media entity will be considered as a representative of the news media. A publishing contract would provide the clearest evidence that publication is expected; however, the CSB can also consider a requester's past publication record in making this determination. The CSB will advise requesters of their placement in this category.

    (7) Review is the examination of a record located in response to a FOIA request in order to determine whether any portion of it is exempt from disclosure under one or more of the FOIA exemptions. Review time includes processing any record for disclosure, such as doing all that is necessary to prepare the record for disclosure, including the process of redacting the record and marking the appropriate exemptions. Review costs are properly charged even if a record ultimately is not disclosed. Review time also includes time spent both obtaining and considering any formal objection to disclosure made by a confidential commercial information submitter under § 1601.15, but it does not include time spent resolving general legal or policy issues regarding the application of exemptions.

    (8) Search is the process of looking for and retrieving records or information responsive to a request. Search time includes page-by-page or line-by-line identification of information within records and the reasonable efforts expended to locate and retrieve information from electronic records.

    (c) Charging fees. In responding to FOIA requests, the CSB will charge the following fees unless a waiver or reduction of fees has been granted under paragraph (k) of this section. Because the fee amounts provided below already account for the direct costs associated with a given fee type, the CSB should not add any additional costs to charges calculated under this section.

    (1) Search. (i) Requests made by educational institutions, noncommercial scientific institutions, or representatives of the news media are not subject to search fees. The CSB must charge search fees for all other requesters, subject to the restrictions of paragraph (d) of this section. The CSB may properly charge for time spent searching even if they do not locate any responsive records or if they determine that the records are entirely exempt from disclosure.

    (ii) For each quarter hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees will be charged as follows: $6.00 for clerical personnel; $11.00 for professional personnel; and $15.00 for managerial personnel.

    (iii) The CSB must charge the direct costs associated with conducting any search that requires the creation of a new computer program to locate the requested records. The CSB must notify the requester of the costs associated with creating such a program, and the requester must agree to pay the associated costs before the costs may be incurred.

    (iv) For requests that require the retrieval of records stored by the CSB at a Federal records center operated by the National Archives and Records Administration (NARA), the CSB must charge additional costs in accordance with the Transactional Billing Rate Schedule established by NARA.

    (2) Duplication. The CSB will charge duplication fees to all requesters, subject to the restrictions of paragraph (d) of this section. The CSB must honor a requester's preference for receiving a record in a particular form or format where the CSB can readily reproduce it in the form or format requested. Where photocopies are supplied, the CSB must provide one copy per request at the cost of $0.17 per page. For copies of records produced on tapes, disks, or other media, the CSB must charge the direct costs of producing the copy, including operator time. Where paper documents must be scanned in order to comply with a requester's preference to receive the records in an electronic format, the requester must also pay the direct costs associated with scanning those materials. For other forms of duplication, the CSB must charge the direct costs.

    (3) Review. The CSB must charge review fees to requesters who make commercial use requests. Review fees will be assessed in connection with the initial review of the record, i.e., the review conducted by the CSB to determine whether an exemption applies to a particular record or portion of a record. No charge will be made for review at the administrative appeal stage of exemptions applied at the initial review stage. However, if a particular exemption is deemed to no longer apply, any costs associated with the CSB's re-review of the records in order to consider the use of other exemptions may be assessed as review fees. Review fees will be charged at the same rates as those charged for a search under paragraph (c)(1)(ii) of this section.

    (d) Restrictions on charging fees. (1) When the CSB determines that a requester is an educational institution, non-commercial scientific institution, or representative of the news media, and the records are not sought for commercial use, it will not charge search fees.

    (2)(i) If the CSB fails to comply with the FOIA's time limits in which to respond to a request, it may not charge search fees, or, in the instances of requests from requesters described in paragraph (d)(1) of this section, may not charge duplication fees, except as described in paragraphs (d)(2)(ii)-(iv).

    (ii) If the CSB has determined that unusual circumstances as defined by the FOIA apply and the CSB provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit must be excused for an additional ten (10) days.

    (iii) If the CSB has determined that unusual circumstances as defined by the FOIA apply, and more than 5,000 pages are necessary to respond to the request, the CSB may charge search fees, or, in the case of requesters described in paragraph (d)(1) of this section, may charge duplication fees, if the following steps are taken. The CSB must have provided timely written notice of unusual circumstances to the requester in accordance with the FOIA and the CSB must have discussed with the requester via written mail, email, or telephone (or made not less than three good-faith attempts to do so) how the requester could effectively limit the scope of the request in accordance with 5 U.S.C. 552(a)(6)(B)(ii). If this exception is satisfied, the CSB may charge all applicable fees incurred in the processing of the request.

    (iv) If a court has determined that exceptional circumstances exist as defined by the FOIA, a failure to comply with the time limits shall be excused for the length of time provided by the court order.

    (3) No search or review fees will be charged for a quarter-hour period unless more than half of that period is required for search or review.

    (4) Except for requesters seeking records for a commercial use, the CSB must provide without charge:

    (i) The first 100 pages of duplication (or the cost equivalent for other media); and

    (ii) The first two hours of search.

    (5) No fee will be charged when the total fee, after deducting the 100 free pages (or its cost equivalent) and the first two hours of search, is equal to or less than $25.00.

    (e) Notice of anticipated fees in excess of $25.00. (1) When the CSB determines or estimates that the fees to be assessed in accordance with this section will exceed $25.00, the CSB must notify the requester of the actual or estimated amount of the fees, including a breakdown of the fees for search, review or duplication, unless the requester has indicated a willingness to pay fees as high as those anticipated. If only a portion of the fee can be estimated readily, the CSB must advise the requester accordingly. If the request is for non-commercial use, the notice will specify that the requester is entitled to the statutory entitlements of 100 pages of duplication at no charge and, if the requester is charged search fees, two hours of search time at no charge, and will advise the requester whether those entitlements have been provided.

    (2) If the CSB notifies the requester that the actual or estimated fees are in excess of $25.00, the request will not be considered received and further work will not be completed until the requester commits in writing to pay the actual or estimated total fee, or designates some amount of fees the requester is willing to pay, or in the case of a non-commercial use requester who has not yet been provided with the requester's statutory entitlements, designates that the requester seeks only that which can be provided by the statutory entitlements. The requester must provide the commitment or designation in writing, and must, when applicable, designate an exact dollar amount the requester is willing to pay. The CSB is not required to accept payments in installments. Requesters must respond to their fee estimate within thirty (30) working days, or the CSB will assume that the requester is no longer interested in their FOIA request(s), and the case will be administratively closed.

    (3) If the requester has indicated a willingness to pay some designated amount of fees, but the CSB estimates that the total fee will exceed that amount, the CSB will toll the processing of the request when it notifies the requester of the estimated fees in excess of the amount the requester has indicated a willingness to pay. The CSB will inquire whether the requester wishes to revise the amount of fees the requester is willing to pay or modify the request. Once the requester responds, the time to respond will resume from where it was at the date of the notification.

    (4) The CSB must make available its FOIA Public Liaison or anther FOIA professional to assist any requester in reformulating a request to meet the requester's needs at a lower cost.

    (f) Charges for other services. Although not required to provide special services, if the CSB chooses to do so as a matter of administrative discretion, the direct costs of providing the service will be charged. Examples of such services include certifying that records are true copies, providing multiple copies of the same document, or sending records by means other than first class mail.

    (g) Charging interest. The CSB may charge interest on any unpaid bill starting on the thirty-first (31) day following the date of billing the requester. Interest charges will be assessed at the rate provided in 31 U.S.C. 3717 and will accrue from the billing date until payment is received by the CSB. The CSB must follow the provisions of the Debt Collection Act of 1982 (Pub. L. 97-365, 96 Stat. 1749), as amended, and its administrative procedures, including the use of consumer reporting agencies, collection agencies, and offset.

    (h) Aggregating requests. When the CSB reasonably believes that a requester or a group of requesters acting in concert is attempting to divide a single request into a series of requests for the purpose of avoiding fees, the CSB may aggregate those requests and charge accordingly. The CSB may presume that multiple requests of this type made within a thirty (30) day period have been made in order to avoid fees. For requests separated by a longer period, the CSB must aggregate them only where there is a reasonable basis for determining that aggregation is warranted in view of all the circumstances involved. Multiple requests involving unrelated matters cannot be aggregated.

    (i) Advance payments. (1) For requests other than those described in paragraphs (i)(2) or (i)(3) of this section, the CSB must not require the requester to make an advance payment before work is commenced or continued on a request. Payment owed for work already completed (i.e., payment before copies are sent to a requester) is not an advance payment.

    (2) When the CSB determines or estimates that a total fee to be charged under this section will exceed $250.00, it may require that the requester make an advance payment up to the amount of the entire anticipated fee before beginning to process the request. The CSB may elect to process the request prior to collecting fees when it receives a satisfactory assurance of full payment from a requester with a history of prompt payment.

    (3) Where a requester has previously failed to pay a properly charged FOIA fee to the CSB within thirty (30) calendar days of the billing date, the CSB may require that the requester pay the full amount due, plus any applicable interest on that prior request, and the CSB may require that the requester make an advance payment of the full amount of any anticipated fee before the CSB begins to process a new request or continues to process a pending request or any pending appeal. Where the CSB has a reasonable basis to believe that a requester has misrepresented the requester's identity in order to avoid paying outstanding fees, it may require that the requester provide proof of identity.

    (4) In cases in which the CSB requires advance payment, the request will not be considered received and further work will not be completed until the required payment is received. If the requester does not pay the advance payment within thirty (30) calendar days after the date of the CSB's fee determination, the request will be closed.

    (j) Other statutes specifically providing for fees. The fee schedule of this section does not apply to fees charged under any statute that specifically requires the CSB to set and collect fees for particular types of records. In instances where records responsive to a request are subject to a statutorily-based fee schedule program, the CSB must inform the requester of the contact information for that program.

    (k) Requirements for waiver or reduction of fees. (1) Requesters may seek a waiver of fees by submitting a written application demonstrating how disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester.

    (2) The CSB must furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that disclosure of the requested information is in the public interest because it is likely to contribute significantly to public understanding of the operations or activities of the government and is not primarily in the commercial interest of the requester. In deciding whether this standard is satisfied the CSB must consider the factors described in paragraphs (k)(2)(i) through (iii) of this section:

    (i) Disclosure of the requested information would shed light on the operations or activities of the government. The subject of the request must concern identifiable operations or activities of the Federal Government with a connection that is direct and clear, not remote or attenuated.

    (ii) Disclosure of the requested information is likely to contribute significantly to public understanding of those operations or activities. This factor is satisfied when the following criteria are met:

    (A) Disclosure of the requested records must be meaningfully informative about government operations or activities. The disclosure of information that already is in the public domain, in either the same or a substantially identical form, would not be meaningfully informative if nothing new would be added to the public's understanding.

    (B) The disclosure must contribute to the understanding of a reasonably broad audience of persons interested in the subject, as opposed to the individual understanding of the requester. A requester's expertise in the subject area as well as the requester's ability and intention to effectively convey information to the public must be considered. The CSB will presume that a representative of the news media will satisfy this consideration.

    (iii) The disclosure must not be primarily in the commercial interest of the requester. To determine whether disclosure of the requested information is primarily in the commercial interest of the requester, the CSB must consider the following criteria:

    (A) The CSB must identify whether the requester has any commercial interest that would be furthered by the requested disclosure. A commercial interest includes any commercial, trade, or profit interest. Requesters must be given an opportunity to provide explanatory information regarding this consideration.

    (B) If there is an identified commercial interest, the CSB must determine whether that is the primary interest furthered by the request. A waiver or reduction of fees is justified when the requirements of paragraphs (k)(2)(i) and (ii) are satisfied and any commercial interest is not the primary interest furthered by the request. The CSB ordinarily will presume that when a news media requester has satisfied the factors in paragraphs (k)(2)(i) and (ii) of this section, the request is not primarily in the commercial interest of the requester. Disclosure to data brokers or others who merely compile and market government information for direct economic return will not be presumed to primarily serve the public interest.

    (3) Where only some of the records to be released satisfy the requirements for a waiver of fees, a waiver must be granted for those records.

    (4) Requests for a waiver or reduction of fees should be made when the request is first submitted to the CSB and should address the criteria referenced above. A requester may submit a fee waiver request at a later time so long as the underlying record request is pending or on administrative appeal. When a requester who has committed to pay fees subsequently asks for a waiver of those fees and that waiver is denied, the requester must pay any costs incurred up to the date the fee waiver request was received.

    Dated: September 25, 2017 Kara Wenzel, Acting General Counsel, Chemical Safety and Hazard Investigation Board.
    [FR Doc. 2017-20853 Filed 9-28-17; 8:45 am] BILLING CODE 6350-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES 42 CFR Part 10 RIN 0906-AB11 340B Drug Pricing Program Ceiling Price and Manufacturer Civil Monetary Penalties Regulation AGENCY:

    Health Resources and Services Administration, HHS.

    ACTION:

    Final rule; further delay of effective date.

    SUMMARY:

    The Health Resources and Services Administration (HRSA) administers section 340B of the Public Health Service Act (PHSA), known as the “340B Drug Pricing Program” or the “340B Program.” HRSA published a final rule on January 5, 2017, that set forth the calculation of the ceiling price and application of civil monetary penalties. The final rule applied to all drug manufacturers that are required to make their drugs available to covered entities under the 340B Program. On August 21, 2017, HHS solicited comments on further delaying the effective date of the January 5, 2017, final rule to July 1, 2018 (82 FR 39553). HHS proposed this action to allow a more deliberate process of considering alternative and supplemental regulatory provisions and to allow for sufficient time for additional rulemaking. After consideration of the comments received on the proposed rule, HHS is delaying the effective date of the January 5, 2017, final rule, to July 1, 2018.

    DATES:

    As of September 29, 2017, the effective date of the final rule published in the Federal Register (82 FR 1210, January 5, 2017) is further delayed to July 1, 2018.

    FOR FURTHER INFORMATION CONTACT:

    CAPT Krista Pedley, Director, Office of Pharmacy Affairs, Healthcare Systems Bureau, HRSA, 5600 Fishers Lane, Mail Stop 08W05A, Rockville, MD 20857, or by telephone at 301-594-4353.

    SUPPLEMENTARY INFORMATION:

    I. Background

    On September 30, 2010, HHS published an advanced notice of proposed rulemaking (ANPRM) in the Federal Register, “340B Drug Pricing Program Manufacturer Civil Monetary Penalties” (75 FR 57230, September 20, 2010). HHS subsequently published a notice of proposed rulemaking (NPRM) on June 17, 2015, to implement CMPs for manufacturers that knowingly and intentionally charge a covered entity more than the ceiling price for a covered outpatient drug; to provide clarity regarding the requirement that manufacturers calculate the 340B ceiling price on a quarterly basis; and to establish the requirement that a manufacturer charge $.01 (penny pricing) for drugs when the ceiling price calculation equals zero (80 FR 34583, June 17, 2015). The public comment period closed on August 17, 2015, and HRSA received 35 comments. After review of the initial comments, HHS reopened the comment period (81 FR 22960, April 19, 2016) to invite additional comments on the following areas of the NPRM: 340B ceiling price calculations that result in a ceiling price that equals zero (penny pricing); the methodology that manufacturers use when estimating the ceiling price for a new covered outpatient drug; and the definition of the “knowing and intentional” standard to be applied when assessing a CMP for manufacturers that overcharge a covered entity. The comment period closed May 19, 2016, and HHS received 72 comments.

    On January 5, 2017, HHS published a final rule in the Federal Register (82 FR 1210, January 5, 2017); comments from both the original comment period established in the NPRM and the reopened comment period announced in the April 19, 2016 notice were considered in the development of the final rule. The provisions of that final rule were to be effective March 6, 2017; however, HHS issued a subsequent final rule (82 FR 12508, March 6, 2017) delaying the effective date to March 21, 2017, in accordance with a January 20, 2017, memorandum from the Assistant to the President and Chief of Staff, titled “Regulatory Freeze Pending Review.” 1 In the January 5, 2017, final rule, HHS acknowledged that the effective date fell during the middle of a quarter and stakeholders needed time to adjust systems and update their policies and procedures. As such, HHS stated that it intended to enforce the requirements of the final rule at the start of the next quarter, which began April 1, 2017.

    1 See: https://www.whitehouse.gov/the-press-office/2017/01/20/memorandum-heads-executive-departments-and-agencies.

    After further consideration and to provide affected parties sufficient time to make needed changes to facilitate compliance, and because questions were raised, HHS issued an interim final rule (82 FR 14332, March 20, 2017), to delay the effective date of the final rule to May 22, 2017, and solicited additional comments on whether that date should be further extended to October 1, 2017. HHS received 51 comments on the interim final rule, some supporting and some opposing the delay of the effective date to May 22, 2017, or alternatively to October 1, 2017. After careful consideration of the comments received, HHS delayed the effective date of the January 5, 2017, final rule to October 1, 2017 (82 FR 22893, May 19, 2017).

    HHS subsequently published a proposed rule (82 FR 39553, August 21, 2017) to further delay the effective date of the final rule to July 1, 2018. The further delay allows necessary time to fully consider the substantial questions of fact, law, and policy raised by the rule, consistent with the aforementioned “Regulatory Freeze Pending Review,” memorandum. Requiring manufacturers to make targeted and potentially costly changes to pricing systems and business procedures in order to comply with a rule that is under further consideration and for which substantive questions have been raised would be disruptive. The further delay allows HHS to consider objections regarding the timing of the effective date and challenges associated with complying with the rule, as well as other objections to the rule.

    In addition, Executive Order 13765 (82 FR 8351) titled, “Minimizing the Economic Burden of the Patient Protection and Affordable Care Act Pending Repeal,” specifically instructs HHS and all other heads of executive offices to utilize all authority and discretion available to delay the implementation of certain provisions or requirements of the Patient Protection and Affordable Care Act.2 HHS based the January 5, 2017, final rule on changes made to the 340B Program by the Patient Protection and Affordable Care Act. HHS proposed to delay the effective date of the January 5, 2017, final rule to July 1, 2018, to allow for a sufficient amount of time to consider the regulatory burdens that may be posed by this final rule. HHS continues to examine important substantive issues in matters covered by the rule and intends to engage in additional rulemaking on these issues.

    2 See: https://www.whitehouse.gov/the-press-office/2017/01/2/executive-order-minimizing-economic-burden-patient-protection-and.

    HHS received a number of comments on the proposed rule both supporting and opposing the delay of the effective date to July 1, 2018. After careful consideration of the comments received, HHS has decided to delay the effective date of the January 5, 2017, final rule to July 1, 2018. As HHS changed the effective date of the final rule to July 1, 2018, enforcement will be delayed to July 1, 2018. HHS continues to believe that the delay of the effective date provides regulated entities sufficient time to implement the requirements of the rule, as well as allowing a more deliberate process of considering alternative and supplemental regulatory provisions, and to allow for sufficient time for additional rulemaking.

    Section 553(d) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq.) requires that Federal agencies provide at least 30 days after publication of a final rule in the Federal Register before making it effective, unless good cause can be found not to do so. HHS finds good cause for making this final rule effective less than 30 days after publication in the Federal Register given that failure to do so would result in the final rule published on January 5, 2017, going into effect on October 1, 2017, for several weeks before a final rule delaying the effective date until July 1, 2018, would go into effect. To preclude this uncertainty in the marketplace and to ease the burdens of stakeholders, HHS believes that a clear effective date is an important goal and one that becomes particularly important when it is paired with potential civil monetary penalties. The additional time provided to the public before the rule takes effect will assist stakeholders in preparing to comply with these new program requirements.

    II. Analysis and Responses to Public Comments

    In the proposed rule, HHS solicited comments regarding whether we should delay the January 5, 2017, final rule to July 1, 2018. We received 97 comments containing a number of issues from covered entities, manufacturers, and groups representing these stakeholders. In this final rule, we will only respond to comments related to whether HHS should delay the January 5, 2017, final rule to July 1, 2018. We did not consider and do not address comments that raised issues beyond the narrow scope of the proposed rule, including comments related to withdrawal of the rule or comments related to broader policy matters. However, HHS intends to engage in further rulemaking on issues covered in the January 5, 2017, final rule. We have summarized the relevant comments received and provided our responses below.

    Comment: Some commenters supported HHS's proposed delay of the effective date of the final rule until not only July 1, 2018, but until HHS fulfills its commitment to engage in additional rulemaking that cures the substantive legal and practical concerns with the final rule. These commenters recommend that HRSA tie the further delay of the effective date of the final rule to the completion of such rulemaking, as opposed to a certain date.

    Response: HHS has decided to delay the effective date to July 1, 2018, to provide affected parties sufficient time to make needed changes to facilitate compliance and because HHS continues to examine important substantive issues arising from the January 5, 2017, final rule. After reviewing the comments received from stakeholders regarding objections on the timing of the effective date and challenges associated with complying with the final rule, HHS has determined that delaying the effective date to July 1, 2018, is necessary to consider some of the issues raised. HHS believes that delaying the effective date to July 1, 2018, provides sufficient time to address these issues and does not believe a further delay is necessary at this time.

    Comment: Some commenters stated that the January 5, 2017, final rule contains several policies that are inconsistent with the 340B statute and imposes needless burdens on manufacturers. These commenters urge HHS to delay the effective date to July 1, 2018, and use the additional time to reconsider the policies included in the final rule.

    Responses: HHS intends to engage in further rulemaking and believes that this delay will provide HHS with time to consider the substantial questions of fact, law, and policy raised by the rule.

    Comment: Several commenters explained that a delay in the effective date of the final rule is also necessary to align with the Administration priorities of analyzing final, but not yet effective, regulations, and removing or minimizing unwarranted economic and regulatory burdens related to the Affordable Care Act, the law that added the provisions of the 340B statute that are the subject of the final rule.

    Response: HHS agrees with the commenters. Executive Order 13765 instructs agencies to use discretion to delay the implementation of certain provisions of requirements of the Patient Protection and Affordable Care Act. As previously mentioned, HHS based the January 5, 2017, final rule on changes made to the 340B Program by the Patient Protection and Affordable Care Act. As such, HHS is complying with Executive Order 13765 to delay implementation on provisions of that law that “. . . impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.” The policies finalized in the January 5, 2017, final rule will require targeted and potentially costly changes to pricing systems and business procedures for manufacturers affected by the rule. Thus, HHS is delaying the effective date to July 1, 2018.

    Comment: Some commenters recommend that HHS delay the effective date of the final rule until HHS concurrently addresses 340B covered entity compliance obligations and penalties under the 340B statute, which is necessary to strengthen the integrity of the 340B Program.

    Response: HHS plans to issue separate policy documents for the different areas of the 340B program integrity provisions in the 340B statute and disagrees with the commenters advising HHS to address these issues concurrently.

    Comment: Many commenters opposed delaying the effective date to July 1, 2018. Commenters recommended that HHS use its statutory rulemaking authority to balance the scales of enforcement and oversight in the 340B Program, and expressed concern that drug manufacturers have engaged in discriminatory pricing strategies due to a lack of oversight and enforcement with respect to manufacturer behavior. They explained that various factors, including extensive data regarding overcharging covered entities, HHS's inability to address overcharges, and HHS's admission that many manufacturers are still out of compliance highlight the need for the final rule to go into effect immediately. They further explained that the January 5, 2017, final rule is critical to ensuring that drug manufacturers uphold the intent of the 340B Program. The commenters also disagreed that “a more deliberative process is needed” as there have been multiple delays and stakeholders were given various opportunities to comment.

    Response: HHS does not agree that that we should enforce the final rule immediately. We are delaying the effective date of the January 5, 2017, final rule to July 1, 2018, because the delay will provide stakeholders with additional time to come into compliance and provide time to consider the substantial questions of fact, law, and policy raised by the rule. The final rule does not represent the only method for HHS to address manufacturer overcharges. In addition to the final rule, HHS performs audits of manufacturers, investigates all allegations of overcharging, and participates in settlements that have returned millions of dollars to covered entities. HHS believes that it would be disruptive to require stakeholders to make potentially costly changes to pricing systems and business procedures in order to comply with a rule that is under further consideration and for which substantive questions have been raised.

    While stakeholders had the opportunity to provide comments on the final rule, the 340B Program is a complex program that is affected by changes in other areas of health care. HHS has determined that this complexity and changing environment warrants further review of the final rule.

    Comment: Many commenters supported further delaying the effective date to July 1, 2018, at a minimum, and agreed with HHS that more time was needed for stakeholders to come into compliance and to consider substantial questions of fact, law and policy raised by the January 5, 2017, final rule.

    Response: HHS agrees with the commenters and will delay the effective date of the January 5, 2017, final rule to July 1, 2018.

    III. Regulatory Impact Analysis

    HHS examined the effects of this final rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 8, 2011), the Regulatory Flexibility Act (Pub. L. 96-354, September 19, 1980), the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999), the Congressional Review Act, and Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs (January 30, 2017).

    Executive Orders 12866, 13563 and 13771

    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review as established in Executive Order 12866, emphasizing the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more in any 1 year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order.

    A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year), and a “significant” regulatory action is subject to review by the Office of Management and Budget (OMB) and is therefore, not a major rule under the Congressional Review Act.

    HHS does not believe that a delay of the effective date of the January 5, 2017, final rule will have an economic impact of $100 million or more, and is, therefore, not designated as an “economically significant” rule under section 3(f)(1) of the Executive Order 12866. Therefore, the economic impact of having no rule in place related to the policies addressed in the final rule is believed to be minimal, as the policies would not yet be required or enforceable.

    Executive Order 13771, titled “Reducing Regulation and Controlling Regulatory Costs,” was issued on January 30, 2017. This final rule is not expected to be an EO 13771 regulatory action because this final rule is not significant under EO 12866.

    The Regulatory Flexibility Act (RFA)

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA) and the Small Business Regulatory Enforcement and Fairness Act of 1996, which amended the RFA, require HHS to analyze options for regulatory relief of small businesses. If a rule has a significant economic effect on a substantial number of small entities, the Secretary must specifically consider the economic effect of the rule on small entities and analyze regulatory options that could lessen the impact of the rule. HHS will use an RFA threshold of at least a 3 percent impact on at least 5 percent of small entities.

    For purposes of the RFA, HHS considers all health care providers to be small entities either by meeting the Small Business Administration (SBA) size standard for a small business, or by being a nonprofit organization that is not dominant in its market. The current SBA size standard for health care providers ranges from annual receipts of $7 million to $35.5 million. As of January 1, 2017, over 12,000 covered entities participate in the 340B Program, which represent safety-net health care providers across the country. HHS has determined, and the Secretary certifies that this final rule will not have a significant impact on the operations of a substantial number of small manufacturers; therefore, we are not preparing an analysis of impact for this RFA. HHS estimates that the economic impact on small entities and small manufacturers will be minimal.

    Unfunded Mandates Reform Act

    Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year.” In 2017, that threshold is approximately $148 million. HHS does not expect this rule to exceed the threshold.

    Executive Order 13132—Federalism

    HHS has reviewed this final rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” This final rule would not “have substantial direct effects on the States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

    Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that OMB approve all collections of information by a federal agency from the public before they can be implemented. This final rule is projected to have no impact on current reporting and recordkeeping burden for manufacturers under the 340B Program. This final rule would result in no new reporting burdens. Comments are welcome on the accuracy of this statement.

    Dated: September 22, 2017. George Sigounas, Administrator, Health Resources and Services Administration. Thomas E. Price, Secretary, Department of Health and Human Services.
    [FR Doc. 2017-20911 Filed 9-28-17; 8:45 am] BILLING CODE 4165-15-P
    DEPARTMENT OF TRANSPORTATION National Highway Traffic Safety Administration 49 CFR Part 571 Federal Motor Vehicle Safety Standards CFR Correction

    In Title 49 of the Code of Federal Regulations, Parts 400 to 571, revised as of October 1, 2016, on page 319, in § 571.106, standard S5.3.11 is reinstated to read as follows:

    § 571.106 Standard No. 106; Brake hoses.

    S5. Requirements—hydraulic brake hose, brake hose assemblies, and brake hose end fittings.

    S5.3.11 Dynamic ozone test. A hydraulic brake hose shall not show cracks visible without magnification after having been subjected to a 48-hour dynamic ozone test (S6.9).

    [FR Doc. 2017-21085 Filed 9-28-17; 8:45 am] BILLING CODE 1301-00-D
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 300 [Docket No. 170815764-7877-01] RIN 0648-BH12 International Fisheries; Pacific Tuna Fisheries; Revised 2017 Fishing Restrictions for Tropical Tuna in the Eastern Pacific Ocean AGENCY:

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

    ACTION:

    Final rule.

    SUMMARY:

    NMFS is issuing regulations under the Tuna Conventions Act to implement amendments to Resolution C-17-01 (Conservation of Tuna in the Eastern Pacific Ocean During 2017) per Resolution C-17-02 (Conservation Measures for Tropical Tunas in the Eastern Pacific Ocean During 2018-2020 and Amendment to Resolution C-17-01) which was adopted by the Inter-American Tropical Tuna Commission (IATTC or Commission) in July 2017. Applicable to the purse seine fleet fishing for tropical tunas (bigeye, yellowfin, and skipjack tuna) in the eastern Pacific Ocean (EPO) and only for the remainder of the 2017 calendar year, the amendments to Resolution C-17-01 remove the total allowable catches (TACs) for bigeye tuna (BET) and yellowfin tuna (YFT), and replace them with an extension in the purse seine closure period from 62 days to 72 days. Additionally, to ensure that the time/area closure, known as the corralito, does not overlap with the extended closure periods, the amendments also shift the dates for the corralito closure. This rule is necessary for the conservation of tropical tuna stocks in the EPO and for the United States to satisfy its obligations as a member of the IATTC.

    DATES:

    This final rule is effective September 29, 2017.

    ADDRESSES:

    Copies of supporting documents that were prepared for this final rule, including the regulatory impact review (RIR) are available via the Federal e-Rulemaking Portal: http://www.regulations.gov, docket NOAA-NMFS-2017-0024 or contact with the Regional Administrator, Barry A. Thom, NMFS West Coast Region, 1201 NE Lloyd Blvd., Suite 1100, Portland, OR 97232-1274, or [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Taylor Debevec, NMFS at 562-980-4066.

    SUPPLEMENTARY INFORMATION:

    Background on the IATTC

    The United States is a member of the IATTC, which was established under the 1949 Convention for the Establishment of an Inter-American Tropical Tuna Commission. In 2003, the IATTC took the first step to dramatically revise the 1949 Convention by adopting the Convention for the Strengthening of the IATTC Established by the 1949 Convention between the United States of America and the Republic of Costa Rica (Antigua Convention), which did not enter into force until 2010 when the requite number of members agreed to the revisions. After the Antigua Convention had entered into force in 2010, the United States acceded to the Antigua Convention on February 24, 2016. The full text of the Antigua Convention is available at: https://www.iattc.org/PDFFiles2/Antigua_Convention_Jun_2003.pdf.

    The IATTC consists of 21 member nations and four cooperating non-member nations and facilitates scientific research into, as well as the conservation and management of, tuna and tuna-like species in the IATTC Convention Area. The IATTC Convention Area is defined as waters of the EPO within the area bounded by the west coast of the Americas and by 50° N. latitude, 150° W. longitude, and 50° S. latitude. The IATTC maintains a scientific research and fishery monitoring program and regularly assesses the status of tuna, sharks, and billfish stocks in the EPO to determine appropriate catch limits and other measures deemed necessary to promote sustainable fisheries and prevent the overexploitation of these stocks.

    International Obligations of the United States Under the Antigua Convention

    As a Party to the Antigua Convention and a member of the IATTC, the United States is legally bound to implement decisions of the IATTC. The Tuna Conventions Act (16 U.S.C. 951 et seq.) directs the Secretary of Commerce, in consultation with the Secretary of State and, with respect to enforcement measures, the U.S. Coast Guard, to promulgate such regulations as may be necessary to carry out the United States' obligations under the Antigua Convention, including recommendations and decisions adopted by the IATTC. The authority of the Secretary of Commerce to promulgate such regulations has been delegated to NMFS.

    IATTC Resolution on Tropical Tuna Conservation

    The IATTC adopted Resolution C-17-02 by consensus at its 92nd meeting in July 2017. While the Resolution contains management measures for tropical tuna in the Convention Area for 2018-2020, it also contains amendments to C-17-01, which is applicable in 2017 only. The measures for 2018-2020 will be implemented in a different rulemaking. In contrast, this rule implements only the amendments to C-17-01 because they are applicable immediately and therefore need to be expeditiously implemented.

    The IATTC adopted Resolution C-17-01 in February 2017. C-17-01 included a provision not previously utilized in recent IATTC resolutions: Convention Area-wide TACs for yellowfin and bigeye tuna caught by purse seine vessels. As the 92nd Meeting of the IATTC approached in July 2017, the purse seine catch levels were monitored by the IATTC staff, who notified the IATTC that the TAC for class size 4 to 6 purse seine vessels fishing on floating objects (97,711 metric tons) was near its limit. Due to the negative impacts an August closure would have on several countries, the Commission formulated an alternative solution that would relieve those social-financial impacts to industry while still protecting the stocks from overfishing. The IATTC scientific staff analyzed the conservation benefit of various alternatives for 2017 management of tropical tunas and recommended, as they had during previous meetings, extending the 62-day purse seine closure period.

    Accordingly, the Commission agreed to amend C-17-01 to eliminate the TACs and extend the two closure period options from 62 days to 72 days. Two additional provisions of the amendment include:

    • Allowing vessels that harvest tunas by encircling dolphins 1 to fish with that method during the 10-day extension of the closure period (because the separate TAC for that fishery was not close to being reached at the time of agreement to Resolution C-17-02), and

    1 Some tuna fishing vessels in the Eastern Tropical Pacific Ocean intentionally chase pods of dolphin that are swimming along the ocean surface and set their nets around the dolphins in order to harvest the yellowfin tuna swimming beneath the dolphins. This practice is lawful and regulated.

    • shifting the dates of the time/area closure known as the corralito so that it does not overlap with the new dates of the closure periods.

    Most provisions of Resolution C-17-01 remain unchanged by the amendments, including: Full retention of tropical tunas on purse seine vessels, an opportunity to apply for exemption to the purse seine closure periods due to force majeure, and a country-specific bigeye tuna catch limit for longline vessels greater than 24 meters in length.

    Final Regulations—Tuna Conservation Measures for 2017

    This final rule is implemented under the Tuna Conventions Act (16 U.S.C. 951 et seq.), as amended on November 5, 2015, by title II of Public Law 114-81.

    This rule removes the two TACs for yellowfin and bigeye tuna codified at 50 CFR 300.25(d): Class size 4 to 6 purse seine vessels that fish on floating objects—97,711 mt, and class size 6 vessels fishing in association (chasing and encircling) with dolphins—162,182 mt. Under 50 CFR 300.25(e), the two closure period options for class 4 to 6 purse seine vessels (each vessel must choose only one by which it will abide) are extended from 62 days to 72 days as follows: July 29, 2017-October 8, 2017, or November 9, 2017-January 19, 2018. Purse seine vessels with a dolphin mortality limit may fish during the 10 days that are being added to the extended closure period they are observing, provided the vessels are not used to make sets on floating objects during those 10 days. Those periods are respectively September 29, 2017-October 8, 2017, or November 9, 2017-November 18, 2017. Lastly, the corralito area remains unchanged, but the dates of the closure are shifted to October 9, 2017-November 8, 2017.

    Classification

    The NMFS Assistant Administrator has determined that this final rule is consistent with the Tuna Conventions Act of 1950 and other applicable laws.

    This final rule has been determined to be not significant for purposes of Executive Order 12866.

    There are no new collection-of-information requirements associated with this action that are subject to the Paperwork Reduction Act (PRA), and the existing collection-of-information requirements still apply under Control Number 0648-0387. Notwithstanding any other provision of the law, no person is required to respond to, and no person shall be subject to penalty for failure to comply with, a collection of information subject to the requirements of the PRA, unless that collection of information displays a currently valid OMB control number. All currently approved NOAA collections of information may be viewed at: http://www.cio.noaa.gov/services_programs/prasubs.html.

    The Assistant Administrator for Fisheries finds good cause, pursuant to 5 U.S.C. 553(b)(B), to waive advance notice and comment. The decision by the IATTC that is being implemented by this rule was made on July 28, 2017. NMFS has no discretion to change this decision. This decision is binding under international law, and failure to ensure domestic implementation would render the nation out of compliance with our international treaty obligations, as well as failing to adequately conserve and manage target stocks of tropical tuna. Therefore, providing advance notice and consideration of public comments before implementing this decision would be impracticable because the first closed period (described above) under the existing regulations ends on September 27, 2017, but under the newly adopted international treaty obligations, the United States must ensure that vessels subject to that first closed period are prevented from fishing beginning on September 28 for an additional 10 days. The public interest dictates that the nation adheres to international legal obligations and continues to adequately conserve and manage tropical tunas in the Pacific. Therefore, it would be impracticable and contrary to the public interest to publish a proposed rule and provide advance notice and comment before implementing the revisions to IATTC Resolution C-17-01.

    The Assistant Administrator for Fisheries also finds good cause, pursuant to 5 U.S.C. 553(d)(3), to waive the 30-day delay in effectiveness of the rule. Since the binding IATTC resolution makes these measures effective immediately, and the extended closure dates begin on September 28, 2017, this rule must be enforceable at least by that date. As explained above, this date is set in a binding resolution and cannot be changed by NMFS. Failure to implement the resolution by this date would risk putting the United States out of compliance with our international Treaty obligations, as well as failing to adequately conserve and manage tropical tuna stocks in the Pacific.

    Ensuring conservation of tropical tuna stocks in the EPO, and remaining in compliance with binding international obligations of the United States, by expedient domestic implementation of Resolution C-17-02 through issuing this final rule now rather than risking violation of our obligations or the health of tuna stocks is in the public's interest. Therefore, there is good cause to waive the otherwise applicable requirement for a 30-day delay in effectiveness.

    The Regulatory Flexibility Act (RFA), 5 U.S.C. 605(b), requires an RFA analysis only for rules subject to notice and comment rulemaking under Section 553(b) of the Administrative Procedure Act or any other law. Because notice and comment are not required for this rule, as described above, no regulatory flexibility analysis is required and none has been prepared.

    List of Subjects in 50 CFR Part 300

    Fish, Fisheries, Fishing, Fishing vessels, International organizations, Marine resources, Reporting and recordkeeping requirements, Treaties.

    Dated: September 26, 2017. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For the reasons set out in the preamble, 50 CFR part 300, subpart C is amended as follows:

    PART 300—INTERNATIONAL FISHERIES REGULATIONS 1. The authority citation for 50 CFR part 300, subpart C, continues to read as follows: Authority:

    16 U.S.C. 951 et seq.

    § 300.24 [Amended]
    2. In § 300.24, remove paragraph (ii). 3. In § 300.25, remove and reserve paragraph (d) and revise paragraphs (e)(1), (e)(3), and (e)(6) to read as follows:
    § 300.25 Fisheries management.

    (e) * * *

    (1) Closure periods—(i) General rule. A commercial purse seine fishing vessel of the United States of class size 4-6 (more than 182 metric tons carrying capacity) may not be used to fish with purse seine gear in the Convention Area for 72 days during one of the following two closure periods:

    (A) From 0000 hours Coordinated Universal Time (UTC) July 29, 2017, to 2400 hours UTC October 8, 2017; or,

    (B) From 0000 hours UTC November 9, 2017, to 2400 hours UTC January 19, 2018.

    (ii) Vessels with DMLs. Notwithstanding paragraph (e)(1)(i) of this section, a purse seine vessel for which a dolphin mortality limit has been assigned may fish during 10 days of the closure period the vessel selected, if the vessel makes no floating object sets during this period. The respective 10-day periods are:

    (A) From 0000 hours UTC September 29, 2017, to 2400 hours UTC October 8, 2017; and,

    (B) From 0000 hours UTC November 9, 2017, to 2400 hours UTC November 18, 2017.

    (3) If written notification is not submitted per paragraph (e)(2) of this section for a vessel subject to the requirements under paragraph (e)(1)(i) of this section, that vessel must adhere to the closure period under paragraph (e)(1)(i)(B) of this section.

    (6) A fishing vessel of the United States of class size 4-6 (more than 182 metric tons carrying capacity) may not be used from 0000 hours on October 9 to 2400 hours on November 8 in 2017 to fish with purse seine gear within the area bounded at the east and west by 96° and 110° W. longitude and bounded at the north and south by 4° N. and 3° S. latitude.

    [FR Doc. 2017-20950 Filed 9-28-17; 8:45 am] BILLING CODE 3510-22-P
    82 188 Friday, September 29, 2017 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 989 [Doc. No. AO-FV-16-0016; AMS-SC-16-0011; SC16-989-1] Raisins Produced From Grapes Grown in California; Secretary's Decision and Referendum Order on Proposed Amendments to Marketing Order No. 989 AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Proposed rule and referendum order.

    SUMMARY:

    This decision proposes amendments to Marketing Order No. 989 (order), which regulates the handling of raisins produced from grapes grown in California and provides producers with the opportunity to vote in a referendum to determine if they favor the changes. Five amendments proposed by the Raisin Administrative Committee (RAC or Committee), the agency responsible for local administration of the order, would: Authorize production research; establish new nomination procedures for independent producer member and alternate member seats; add authority to regulate quality; add authority to establish different regulations for different markets; and add a continuance referenda requirement.

    In addition, the Agricultural Marketing Service (AMS) proposed to: Remove order language pertaining to volume regulation and reserve pool authority; establish term limits for Committee members; and, to make any such changes as may be necessary to the order to conform to any amendment that may be adopted, or to correct minor inconsistencies and typographical errors.

    These proposed amendments would update the order to reflect changes in the industry and potential future changes, and would improve the operation and administration of the order.

    DATES:

    The referendum will be conducted from December 4 through 15, 2017. The representative period for the purpose of the referendum is August 1, 2016, through July 31, 2017.

    ADDRESSES:

    Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., Stop 0237, Washington, DC 20250-0237.

    FOR FURTHER INFORMATION CONTACT:

    Melissa Schmaedick, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, Post Office Box 952, Moab, UT 84532; Telephone: (202) 557-4783, Fax: (435) 259-1502, or Julie Santoboni, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., Stop 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected] or [email protected]

    Small businesses may request information on this proceeding by contacting Richard Lower, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 1400 Independence Avenue SW., Stop 0237, Washington, DC 20250-0237; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Prior documents in this proceeding: Notice of Hearing issued on April 14, 2016, and published in the April 22, 2016, issue of the Federal Register (81 FR 23650) and a Recommended Decision issued on May 3, 2017, and published in the May 31, 2017, issue of the Federal Register (82 FR 24882).

    This action is governed by the provisions of sections 556 and 557 of title 5 of the United States Code and is therefore excluded from the requirements of Executive Orders 12866, 13563, and 13175. Additionally, because this rule does not meet the definition of a significant regulatory action, it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled, “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

    Notice of this rulemaking action was provided to tribal governments through the Department of Agriculture's (USDA) Office of Tribal Relations.

    Preliminary Statement

    The proposed amendments are based on the record of a public hearing held on May 3 and 4, 2016, in Clovis, California. The hearing was held pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), hereinafter referred to as the “Act,” and the applicable rules of practice and procedure governing the formulation of marketing agreements and orders (7 CFR part 900). Notice of this hearing was published in the Federal Register on April 22, 2016 (81 FR 23650). The notice of hearing contained five proposals submitted by the Committee and three proposals by USDA.

    The amendments in this decision would:

    (1) Authorize production research;

    (2) Establish new nomination procedures for independent producer member and alternate member seats;

    (3) Add authority to regulate quality;

    (4) Add authority to establish different regulations for different markets;

    (5) Add a continuance referenda requirement;

    (6) Remove order language pertaining to volume regulation and reserve pool authority;

    (7) Establish term limits for Committee members; and

    (8) Make any such changes as may be necessary to the order to conform to any amendment that may be adopted, or to correct minor inconsistencies and typographical errors.

    Conforming changes and corrections proposed by USDA include: Revising all references of “offgrade” to “off-grade”; revising all references of “nonnormal” to “non-normal”; and, revising all references to “committee” to “Committee”. These corrections would result in consistent spelling of these terms throughout the order.

    In addition, the words “Processed Products Standardization and Inspection Branch” in §§ 989.58(d) and 989.59(d) should be changed to “Specialty Crops Inspection Division.” Similarly, “Processed Products Branch, Fruit and Vegetable Division” in § 989.102 should be changed to “Specialty Crops Inspection Division.” These corrections would reflect the official name change of the AMS's inspection service office for fruit, vegetables and specialty crops.

    Lastly, an additional correction has been added to change the amendatory language in § 989.55, 989.56, 989.65, 989.66, 989.67, 989.71, 989.72, 989.82, 989.154, 989.156, 989.166, 989.167, 989.221, 989.257 and 989.401, from “remove” to “delete and reserve”. This change would prevent the unintentional renumbering of remaining sections of the order.

    Upon the basis of evidence introduced at the hearing and the record thereof, the Administrator of AMS on May 3, 2017, filed with the Hearing Clerk, USDA, a Recommended Decision and Opportunity to File Written Exceptions thereto by June 30, 2017. One exception was filed.

    The exception filed opposed the proposed amendment to establish term limits. The commenter, representing the Raisin Bargaining Association (RBA), stated that the RBA Board of Directors voted unanimously to use the association's block voting option to vote against the term limits proposal. The commenter reasoned that the RAC has an active and diverse membership, and that current RAC meetings are well attended and benefit from membership discussions. The commenter further argued that term limits, if implemented, would limit the industry's choice as to who may represent them on the RAC and would prevent experienced persons from continuing to participate. Lastly, the commenter stated that the RAC had also unanimously voted against the term limits proposal in meetings held prior to the public hearing.

    Currently, the term of office of each member and alternate member of the RAC is two years. There are no provisions related to term limits in the marketing order. USDA is proposing that members serve no more than four consecutive two-year terms, or a total of eight years. Once a member has served on the RAC for four consecutive terms, or eight years, the member could not serve as a member for at least one year before being eligible to serve again.

    The USDA believes that all marketing order programs should include tenure limitations for Committee membership. Incorporating the proposed amendment into the order would uphold the intent of the 1982 USDA Fruit, Vegetable and Specialty Crop Marketing Order Guidelines, which resulted from a 1981 Presidential Task Force on Regulatory Relief study finding that tenure should be limited. Further, if implemented, term limits would increase the number of individuals in the industry with Committee experience and provide the Committee with new perspectives and ideas. Therefore, the proposal to add a provision for term limits to the order is not removed as a result of the filed exception.

    Final Regulatory Flexibility Analysis

    Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA), AMS has considered the economic impact of this action on small entities. Accordingly, AMS has prepared this final regulatory flexibility analysis.

    The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be unduly or disproportionately burdened. Marketing orders and amendments thereto are unique in that they are normally brought about through group action of essentially small entities for their own benefit.

    According to the hearing transcript, there are approximately 3,000 raisin producers in California. According to National Agricultural Statistics Service data presented at the hearing, the total value of production of raisins in the 2014/15 crop year is $598,052,000. Taking the total value of production for raisins and dividing it by the total number of raisin producers provides an average return per producer of $199,950.67. A small producer as defined by the Small Business Administration (SBA) (13 CFR 121.201) is one that grosses less than $750,000 annually. Therefore, a majority of raisin producers are considered small entities under SBA's standards.

    According to the industry, there were 23 handlers for the 2015/16 crop year. A small agricultural service firm as defined by the SBA is one that grosses less than $7,500,000 annually. Based on Committee data, 13 handlers would be considered small entities under SBA's standards. Slightly more than half of the industry's handlers are considered small entities under SBA's standards.

    The production area regulated under the order covers the state of California. Acreage devoted to raisin production in the regulated area has declined in recent years. According to data presented at the hearing, bearing acreage for raisins reached a high of 280,000 acres during the 2000/01 crop year. Since then, bearing acreage for raisins has decreased 32 percent to 190,000 acres in 2014/15. As a result, the total production of raisins reached a high during the 2000/01 crop year of 484,500 tons (dried basis). Since the 2000/01 crop year, total production for raisins has decreased 32 percent to 328,600 tons in 2014/15.

    During the hearing held May 3 and 4, 2016, interested persons were invited to present evidence at the hearing on the probable regulatory and informational impact of the proposed amendments to the order on small businesses. The evidence presented at the hearing shows that none of the proposed amendments would have any burdensome effects or a significant economic impact on a substantial number of small agricultural producers or firms.

    Material Issue Number 1—Authorize Production Research

    The proposal described in Material Issue 1 would amend § 989.53 to authorize production research.

    Currently, the California Raisin Marketing Board (CRMB) is the funding source for production research for the California raisin industry. Three years ago, payments of assessments to the CRMB were suspended due to the results of litigation. Without funding the CRMB has been unable to conduct any new production research projects. If amended, this proposal would authorize the RAC to conduct production research without having to rely on the CRMB.

    Witnesses supported this proposal and stated that future research could potentially impact producers in many ways, such as reducing pesticide usage or the development of new varieties that are less labor intensive. Production research would provide the raisin industry the ability to meet the needs of the ever changing domestic and international markets. According to a witness's testimony, the benefits of the proposed amendment would outweigh any costs.

    For the reasons described above, it is determined that the proposed amendment would benefit industry participants and improve administration of the order. The costs of implementing this proposal would be minimal, and not have a significant impact on a substantial number of small entities.

    Material Issue Number 2—Authorize Separate Nominations for Independent Producer Member and Independent Producer Alternate Member Seats

    The proposal described in Material Issue 2 would amend §§ 989.29 and 989.129 to authorize separate nominations for independent producer members and independent producer alternate member seats.

    Currently, the RAC has difficulty filling Committee seats designated for independent producer members and independent producer alternate members. Independent producer alternate member seats have gone unfilled for several consecutive years.

    According to witnesses' testimony, the purpose of the proposal is to increase the participation of independent producers willing to participate on the Committee. Full participation would give the independent producers their represented voice on RAC decisions.

    In conclusion, it is determined that the benefits of increased Committee participation by independent producers would outweigh any costs associated with the implementation of the proposed amendment. The costs of implementing this proposal would be minimal, and would not have a significant impact on a substantial number of small entities.

    Material Issue Number 3—Add Authority To Regulate Quality

    The proposal described in Material Issue 3 would amend §§ 989.58, 989.59 and 989.61 to add authority to regulate quality. A corresponding change would also revise the heading prior to § 989.58 to include quality.

    Currently, §§ 989.58 and 989.59 of the order state that the Committee has the authority to recommend grade and condition standards regulation under the order. The attribute “quality” is not specifically mentioned. The proposed amendment would add language to include “quality” as an attribute that can be regulated under the order.

    According to a witness, the proposed amendment would give the Committee flexibility to ensure consumer safety by setting quality standards for residue levels for herbicides, pesticides or fungicides. The quality standards would be equally applied to all handlers of raisins within the U.S.; some handlers are already testing for certain types of fungicides so the increased costs would be minimal.

    It is determined that the additional costs incurred to regulate quality would be greatly outweighed by the increased flexibility for the industry to respond to changing quality regulations, increased consumer safety, and other benefits gained from implementing this proposal. The costs of implementing this proposal would not have a significant impact on a substantial number of small entities.

    Material Issue Number 4—Add Authority To Establish Different Regulations for Different Markets

    The proposal described in Material Issue 4 would amend § 989.59 to add authority to establish different regulations for different markets.

    The order does not currently allow for different quality or grade standards to be applied to different foreign markets. The language in the order only has two classifications for grade and condition standards, Grade A or Grade B. The current grade and condition standards are consistent across all markets.

    The proposed amendment would give the Committee the authority to develop regulations for individual foreign markets that would be best suited for that specific destination. This proposal would give the industry flexibility to tailor product attributes to meet the foreign consumer profile and the customer demands for each individual market.

    For the reasons described above, it is determined that any additional costs incurred for this proposal would be outweighed by the increased flexibility for the industry to respond to a changing global marketplace. The costs of implementing this proposal would not have a significant impact on a substantial number of small entities.

    Material Issue Number 5—Continuance Referenda

    The proposal described in Material Issue 5 would amend § 989.91 to require continuance referenda.

    The proposed amendment would require the USDA to conduct a continuance referenda between year five and year six for the first referendum and every six years thereafter to assure that the order is responsive to industry needs and changing circumstances. A witness testified that a continuance referenda is the best tool for assuring that the order remains responsive to the needs of the industry. While a continuance referenda will not directly improve producer returns, it will indirectly assure that the industry believes that the order is operating in the producer's best interest.

    For these reasons, it is determined that the benefits of conducting a continuance referenda would outweigh the potential costs of implementing this proposal. The costs of implementing this proposal would be minimal, and would not have a significant impact on a substantial number of small entities.

    Material Issue Number 6—Remove Volume Regulations and Reserve Pool Authority

    The proposal described in Material Issue 6 would amend the order to remove volume regulation and reserve pool authority. This would include: deleting and reserving §§ 989.55 and 989.56, §§ 989.65 through 989.67, §§ 989.71, 989.72, 989.82, 989.154, 989.156, 989.166, 989.167, 989.221, 989.257, and 989.401; revising §§ 989.11, 989.53, 989.54, 989.58, 989.59, 989.60, 989.73, 989.79, 989.80, 989.84, 989.158, 989.173, and 989.210; and re-designating § 989.70 as § 989.96. Corresponding changes would also remove the following headings: “Volume Regulation” prior to § 989.65; “Volume Regulation” prior to § 989.166; and, “Subpart-Schedule of Payments” prior to § 989.401.

    The proposed amendment would remove all authority for the RAC to establish volume restrictions and a reserve pool. On June 22, 2015, the United States Supreme Court, in Horne v. USDA, ruled that the application of the marketing order's reserve pool authority to the Hornes was a taking under the Fifth Amendment to the U.S. Constitution. By a July 16, 2015, letter to the RAC, USDA stated, “In light of the Horne decision, the U.S. Department of Agriculture has decided not to authorize the reserve program of the Federal marketing order for California raisins for the foreseeable future, effective immediately.”

    One witness explained that bearing acres have declined the past ten years that supports the theory that the California raisin industry is adjusting to a decreasing or flat demand for the product. The witness stated that, in the future, supply will likely remain in better balance with demand and, therefore, the reserve pool and volume regulation are no longer as relevant as they were in higher production times. To further the point, the witness stated that the order's reserve pool authority has not been utilized since 2010.

    The proposal would be a relaxation of regulations, for this reason, it is determined that no significant impact on small business entities is anticipated from this proposed change.

    Material Issue Number 7—Establish Term Limits

    The proposal described in Material Issue 7 would amend § 989.28 to establish term limits.

    The proposed amendment would establish term limits of up to four consecutive two-year terms for members only, not alternate members. If implemented, in no event would any member serve more than eight consecutive years on the Committee. The proposal for term limits would conform the order to other existing programs. USDA strives to maintain continuity in the service of its members.

    According to a witness's testimony, term limits in other marketing orders have generally proven to have the intended impact of increased participation and diversity. For these reasons, it is determined that the benefits of the proposal would outweigh the potential costs of implementation.

    The costs attributed to these proposed changes are minimal; therefore, there will not be a significant impact on a substantial number of small entities.

    USDA has not identified any relevant Federal rules that duplicate, overlap or conflict with this proposed rule. These amendments are intended to improve the operation and administration of the order and to assist in the marketing of California raisins.

    RAC meetings regarding these proposals, as well as the hearing date and location, were widely publicized throughout the California raisin industry, and all interested persons were invited to attend the meetings and the hearing to participate in RAC deliberations on all issues. All RAC meetings and the hearing were public forums, and all entities, both large and small, were able to express views on these issues. Finally, interested persons were invited to submit information on the regulatory and informational impacts of this action on small businesses.

    Paperwork Reduction Act

    Current information collection requirements for Part 989 are approved by OMB, under OMB Number 0581-0189—“Generic OMB Fruit Crops.” No changes are anticipated in these requirements as a result of this proceeding. Should any such changes become necessary, they would be submitted to OMB for approval.

    As with all Federal marketing order programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies.

    AMS is committed to complying with the Government Paperwork Elimination Act, which requires Government agencies in general to provide the public the option of submitting information or transacting business electronically to the maximum extent possible.

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

    Civil Justice Reform

    The amendments to the order proposed herein have been reviewed under Executive Order 12988, Civil Justice Reform. They are not intended to have retroactive effect. If adopted, the proposed amendments would not preempt any State or local laws, regulations, or policies, unless they present an irreconcilable conflict with this proposal.

    The Act provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the Act, any handler subject to an order may file with USDA a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law and request a modification of the order or to be exempted therefrom. A handler is afforded the opportunity for a hearing on the petition. After the hearing, USDA would rule on the petition. The Act provides that the district court of the United States in any district in which the handler is an inhabitant, or has his or her principal place of business, has jurisdiction to review USDA's ruling on the petition, provided an action is filed no later than 20 days after the date of entry of the ruling.

    Findings and Conclusions; Discussion of Exception

    The findings and conclusions, rulings, and general findings and determinations included in the Recommended Decision set forth in the May 31, 2017, issue of the Federal Register are hereby approved and adopted.

    One exception was filed in opposition to the proposal to implement term limits. The commenter reasoned that the RAC has an active and diverse membership, and that current RAC meetings are well attended and benefit from membership discussions. The commenter further argued that term limits, if implemented, would limit the industry's choice as to who may represent them on the RAC and would prevent experienced persons from continuing to participate.

    The USDA believes that all marketing order programs should include tenure limitations for Committee membership. Incorporating the proposed amendment into the order would uphold the intent of the 1982 USDA Fruit, Vegetable and Specialty Crop Marketing Order Guidelines, which resulted from a 1981 Presidential Task Force on Regulatory Relief study finding that tenure should be limited.

    Ruling on Exception

    In arriving at the findings and conclusions and the regulatory provisions of this decision, the exception filed to the Recommended Decision was carefully considered in conjunction with the recorded evidence. To the extent that the findings and conclusions and the regulatory provisions of this decision are at variance with the exception, such exception is denied.

    Marketing Order

    Annexed hereto and made a part hereof is the document entitled “Order Amending the Order Regulating the Handling of Raisins Produced from Grapes Grown in California.” This document has been decided upon as the detailed and appropriate means of effectuating the foregoing findings and conclusions.

    It is hereby ordered, That this entire decision be published in the Federal Register.

    Referendum Order

    It is hereby directed that a referendum be conducted in accordance with the procedure for the conduct of referenda (7 CFR 900.400-407) to determine whether the annexed order amending the order regulating the handling of raisins produced from grapes grown in California is approved or favored by producers, as defined under the terms of the order, who during the representative period were engaged in the production of raisins in the production area.

    The representative period for the conduct of such referendum is hereby determined to be August 1, 2016, through July 31, 2017.

    The agents of the Secretary to conduct such referendum are hereby designated to be Jeffrey Smutny and Kathie Notoro, California Marketing Field Office, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA, 2202 Monterey St., Ste. 102B, Fresno, California 93721-3129; telephone: (559) 487-5901; or fax: (559) 487-5906, or Email: [email protected] or [email protected], respectively.

    Order Amending the Order Regulating the Handling of Raisins Produced From Grapes Grown in California 1

    1 This order shall not become effective unless and until the requirements of § 900.14 of the rules of practice and procedure governing proceedings to formulate marketing agreements and marketing orders have been met.

    Findings and Determinations

    The findings and determinations hereinafter set forth are supplementary to the findings and determinations that were previously made in connection with the issuance of the marketing order; and all said previous findings and determinations are hereby ratified and affirmed, except insofar as such findings and determinations may be in conflict with the findings and determinations set forth herein.

    (a) Findings and Determinations Upon the Basis of the Hearing Record

    Pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), and the applicable rules of practice and procedure effective thereunder (7 CFR part 900), a public hearing was held upon proposed further amendment of Marketing Order No. 989, regulating the handling of raisins produced from grapes grown in California. Upon the basis of the record, it is found that:

    (1) The marketing order, as amended, and as hereby proposed to be further amended, and all of the terms and conditions thereof, would tend to effectuate the declared policy of the Act;

    (2) The marketing order, as amended, and as hereby proposed to be further amended, regulates the handling of raisins produced from grapes grown in the production area in the same manner as, and are applicable only to, persons in the respective classes of commercial and industrial activity specified in the marketing order upon which a hearing has been held;

    (3) The marketing order, as amended, and as hereby proposed to be further amended, is limited in its application to the smallest regional production area that is practicable, consistent with carrying out the declared policy of the Act, and the issuance of several orders applicable to subdivisions of the production area would not effectively carry out the declared policy of the Act;

    (4) The marketing order, as amended, and as hereby proposed to be further amended, prescribes, insofar as practicable, such different terms applicable to different parts of the production area as are necessary to give due recognition to the differences in the production and marketing of raisins produced from grapes grown in the production area; and

    (5) All handling of raisins produced from grapes grown in the production area as defined in the marketing order is in the current of interstate or foreign commerce or directly burdens, obstructs, or affects such commerce.

    Order Relative to Handling

    It is therefore ordered, That on and after the effective date hereof, all handling of raisins produced from grapes grown in California shall be in conformity to, and in compliance with, the terms and conditions of the said order as hereby proposed to be amended as follows:

    The provisions of the proposed marketing order amending the order contained in the Recommended Decision issued on May 3, 2017, and published in the May 31, 2017, issue of the Federal Register (82 FR 24882) will be and are the terms and provisions of this order amending the order and are set forth in full herein.

    List of Subjects in 7 CFR Part 989

    Raisins, Marketing agreements, Reporting and recordkeeping requirements.

    For the reasons set out in the preamble, 7 CFR part 989 is proposed to be amended as follows:

    PART 989—RAISINS PRODUCED BY GRAPES GROWN IN CALIFORNIA 1. The authority citation for 7 CFR part 989 continues to read as follows: Authority:

    7 U.S.C. 601-674.

    Subpart A—[Amended] 2. Designate the subpart labeled “Order Regulating Handline” as subpart A. 3. Section 989.11 is revised to read as follows:
    § 989.11 Producer.

    Producer means any person engaged in a proprietary capacity in the production of grapes which are sun-dried or dehydrated by artificial means until they become raisins.

    4. Revise § 989.28 to read as follows:
    § 989.28 Term of office.

    (a) The term of office of all representatives serving on the Committee shall be for two years and shall end on April 30 of even numbered calendar years; Provided, That each such member and alternate member shall continue to serve until their successor is selected and has qualified.

    (b) Representatives may serve up to four consecutive, two-year terms of office. In no event shall any representative serve more than eight consecutive years on the Committee. For purposes of determining when a representative has served four consecutive terms, the accrual of terms shall begin following any period of at least twelve consecutive months out of office. This limitation on tenure shall not include service on the Committee prior to implementation of this amendment. This limitation on tenure shall not apply to the service of alternate members.

    5. In § 989.29: a. Revise paragraph (b)(2)(ii); b. Redesignate paragraph (b)(2)(iii) as paragraph (b)(2)(iv); c. Add a new paragraph (b)(2)(iii); and d. Revise newly redesignated paragraph (b)(2)(iv).

    The revisions and addition read as follows:

    § 989.29 Initial members and nomination of successor members.

    (b) * * *

    (2) * * *

    (i) * * *

    (ii) Each such producer whose name is offered in nomination for producer member positions to represent on the Committee independent producers or producers who are affiliated with cooperative marketing association(s) handling less than 10 percent of the total raisin acquisitions during the preceding crop year shall be given the opportunity to provide the Committee a short statement outlining qualifications and desire to serve if selected. Similarly, each such producer whose name is offered in nomination for producer alternate member positions to represent on the Committee independent producers or producers who are affiliated with cooperative marketing association(s) handling less than 10 percent of the total raisin acquisitions during the preceding crop year shall be given the opportunity to provide the Committee a short statement outlining qualifications and desire to serve if selected. These brief statements, together with a ballot and voting instructions, shall be mailed to all independent producers and producers who are affiliated with cooperative marketing associations handling less than 10 percent of the total raisin acquisitions during the preceding crop year of record with the Committee in each district. The producer member candidate receiving the highest number of votes shall be designated as the first member nominee, the second highest shall be designated as the second member nominee until nominees for all producer member positions have been filled. Similarly, the producer alternate member candidate receiving the highest number of votes shall be designated as the first alternate member nominee, the second highest shall be designated as the second alternate member nominee until nominees for all member positions have been filled.

    (iii) In the event that there are more producer member nominees than positions to be filled and not enough producer alternate member nominees to fill all positions, producer member nominees not nominated for a member seat may be nominated to fill vacant alternate member seats. Member seat nominees shall indicate, prior to the nomination vote, whether they are willing to accept nomination for an alternate seat in the event they are not nominated for a member seat and there are vacant alternate member seats. Member seat nominees that do not indicate willingness to be considered for vacant alternate member seats shall not be considered.

    (iv) Each independent producer or producer affiliated with cooperative marketing association(s) handling less than 10 percent of the total raisin acquisitions during the preceding crop year shall cast only one vote with respect to each position for which nominations are to be made. Write-in candidates shall be accepted. The person receiving the most votes with respect to each position to be filled, in accordance with paragraph (b)(2)(ii) and (iii) of this section, shall be the person to be certified to the Secretary as the nominee. The Committee may, subject to the approval of the Secretary, establish rules and regulations to effectuate this section.

    6. In § 989.53(a), revise the introductory text and remove the text that follows paragraph (a)(5) to read as follows:
    § 989.53 Research and development.

    (a) General. The Committee, with the approval of the Secretary, may establish or provide for the establishment of projects involving production research, market research and development, marketing promotion including paid advertising, designed to assist, improve, or promote the production, marketing, distribution, and consumption of raisins in domestic and foreign markets. These projects may include, but need not be limited to those designed to:

    7. In § 989.54: a. Remove paragraphs (a) through (d) and (g); b. Remove paragraph (e)(4); c. Redesignate paragraphs (e)(5) through (e)(10) as (e)(4) through (e)(9), respectively; d. Redesignate paragraphs (e), (f), and (h) as paragraphs (a), (b), and (c), respectively; and e. Revise newly redesignated paragraphs (a) introductory text, (a)(1), (a)(4), (a)(5) and (c).

    The revisions read as follows:

    § 989.54 Marketing policy.

    (a) Each crop year, the Committee shall prepare and submit to the Secretary a report setting forth its recommended marketing policy, including quality regulations for the pending crop. In developing the marketing policy, the Committee may give consideration to the production, harvesting, processing, and storage conditions of that crop, as well as the following factors:

    (1) The estimated tonnage held by producers and handlers at the beginning of the crop year;

    (4) An estimated desirable carryout at the end of the crop year;

    (5) The estimated market demand for raisins, considering the estimated world raisin supply and demand situation;

    (c) Publicity. The Committee shall promptly give reasonable publicity to producers, dehydrators, handlers, and the cooperative bargaining association(s) of each meeting to consider a marketing policy or any modification thereof, and each such meeting shall be open to them. Similar publicity shall be given to producers, dehydrators, handlers, and the cooperative bargaining association(s) of each marketing policy report or modification thereof, filed with the Secretary and of the Secretary's action thereon. Copies of all marketing policy reports shall be maintained in the office of the Committee, where they shall be made available for examination by any producer, dehydrator, handler, or cooperative bargaining association representative. The Committee shall notify handlers, dehydrators and the cooperative bargaining association(s), and give reasonable publicity to producers of its computation.

    §§ 989.55 and 989.56 [Removed and reserved].
    8. Sections 989.55 and 989.56 are removed and reserved. 9. Revise the undesignated heading prior to § 989.58 to read as follows: “Grade, Quality, and Condition Standards”. 10. In § 989.58, revise paragraphs (a), (b), (d)(1), (e)(1), and (e)(4) to read as follows:
    § 989.58 Natural condition raisins.

    (a) Regulation. No handler shall acquire or receive natural condition raisins which fail to meet such minimum grade, quality, and condition standards as the Committee may establish, with the approval of the Secretary, in applicable rules and regulations: Provided, That a handler may receive raisins for inspection, may receive off-grade raisins for reconditioning and may receive or acquire off-grade raisins for use in eligible non-normal outlets: And provided further, That a handler may acquire natural condition raisins which exceed the tolerance established for maturity under a weight dockage system established pursuant to rules and regulations recommended by the Committee and approved by the Secretary. Nothing contained in this paragraph shall apply to the acquisition or receipt of natural condition raisins of a particular varietal type for which minimum grade, quality, and condition standards are not applicable or then in effect pursuant to this part.

    (b) Changes in minimum grade, quality, and condition standards for natural condition raisins. The Committee may recommend to the Secretary changes in the minimum grade, quality, and condition standards for natural condition raisins of any varietal type and may recommend to the Secretary that minimum grade, quality, and condition standards for any varietal type be added to or deleted. The Committee shall submit with its recommendation all data and information upon which it acted in making its recommendation, and such other information as the Secretary may request. The Secretary shall approve any such change if he finds, upon the basis of data submitted to him by the Committee or from other pertinent information available to him, that to do so would tend to effectuate the declared policy of the Act.

    (d) * * *

    (1) Each handler shall cause an inspection and certification to be made of all natural condition raisins acquired or received by him, except with respect to:

    (i) An interplant or interhandler transfer of off-grade raisins as described in paragraph (e)(2) of this section, unless such inspection and certification are required by rules and procedures made effective pursuant to this amended subpart;

    (ii) An interplant or interhandler transfer of standard raisins as described in § 989.59(e);

    (iii) Raisins received from a dehydrator which have been previously inspected pursuant to paragraph (d)(2) of this section;

    (iv) Any raisins for which minimum grade, quality, and condition standards are not then in effect;

    (v) Raisins received from a cooperative bargaining association which have been inspected and are in compliance with requirements established pursuant to paragraph (d)(3) of this section; and

    (vi) Any raisins, if permitted in accordance with such rules and procedures as the Committee may establish with the approval of the Secretary, acquired or received for disposition in eligible non-normal outlets. Except as otherwise provided in this section, prior to blending raisins, acquiring raisins, storing raisins, reconditioning raisins, or acquiring raisins which have been reconditioned, each handler shall obtain an inspection certification showing whether or not the raisins meet the applicable grade, quality, and condition standards: Provided, That the initial inspection for infestation shall not be required if the raisins are fumigated in accordance with such rules and procedures as the Committee shall establish with the approval of the Secretary. The handler shall submit or cause to be submitted to the Committee a copy of such certification, together with such other documents or records as the Committee may require. Such certification shall be issued by inspectors of the Processed Products Standardization and Inspection Branch of the U.S. Department of Agriculture, unless the Committee determines, and the Secretary concurs in such determination, that inspection by another agency would improve the administration of this amended subpart. The Committee may require that raisins held on memorandum receipt be re-inspected and certified as a condition for their acquisition by a handler.

    (e) * * *

    (1) Any natural condition raisins tendered to a handler which fail to meet the applicable minimum grade, quality, and condition standards may:

    (i) Be received or acquired by the handler for disposition, without further inspection, in eligible non-normal outlets;

    (ii) Be returned unstemmed to the person tendering the raisins; or

    (iii) Be received by the handler for reconditioning. Off-grade raisins received by a handler under any one of the three described categories may be changed to any other of the categories under such rules and procedures as the Committee, with the approval of the Secretary, shall establish. No handler shall ship or otherwise dispose of off-grade raisins which he does not return to the tenderer, transfer to another handler as provided in paragraph (e)(2) of this section, or recondition so that they at least meet the minimum standards prescribed in or pursuant to this amended subpart, except into eligible non-normal outlets.

    (4) If the handler is to acquire the raisins after they are reconditioned, his obligation with respect to such raisins shall be based on the weight of the raisins (if stemmed, adjusted to natural condition weight) after they have been reconditioned.

    11. In § 989.59, revise paragraphs (a), (b), (d), (e), and (g) to read as follows:
    § 989.59 Regulation of the handling of raisins subsequent to their acquisition by handlers.

    (a) Regulation. Unless otherwise provided in this part, no handler shall:

    (1) Ship or otherwise make final disposition of natural condition raisins unless they at least meet the effective and applicable minimum grade, quality, and condition standards for natural condition raisins; or

    (2) Ship or otherwise make final disposition of packed raisins unless they at least meet such minimum grade quality, and condition standards established by the Committee, with the approval of the Secretary, in applicable rules and regulations or as later changed or prescribed pursuant to the provisions of paragraph (b) of this section: Provided, That nothing contained in this paragraph shall prohibit the shipment or final disposition of any raisins of a particular varietal type for which minimum standards are not applicable or then in effect pursuant to this part. And provided further, That a handler may grind raisins, which do not meet the minimum grade, quality, and condition standards for packed raisins because of mechanical damage or sugaring, into a raisin paste. The Committee may establish, with approval of the Secretary, different grade, quality, and condition regulations for different markets.

    (b) The Committee may recommend changes in the minimum grade, quality, or condition standards for packed raisins of any varietal type and may recommend to the Secretary that minimum grade, quality, or condition standards for any varietal type be added or deleted. The Committee shall submit with its recommendation all data and information upon which it acted in making its recommendation, and such other information as the Secretary may request. The Secretary shall approve any such change if he finds, upon the basis of data submitted to him by the Committee or from other pertinent information available to him, that to do so would tend to effectuate the declared policy of the Act.

    (d) Inspection and certification. Unless otherwise provided in this section, each handler shall, at his own expense, before shipping or otherwise making final disposition of raisins, cause an inspection to be made of such raisins to determine whether they meet the then applicable minimum grade, quality, and condition standards for natural condition raisins or the then applicable minimum standards for packed raisins. Such handler shall obtain a certificate that such raisins meet the aforementioned applicable minimum standards and shall submit or cause to be submitted to the Committee a copy of such certificate together with such other documents or records as the Committee may require. The certificate shall be issued by the Processed Products Standardization and Inspection Branch of the United States Department of Agriculture, unless the Committee determines, and the Secretary concurs in such determination, that inspection by another agency will improve the administration of this amended subpart. Any certificate issued pursuant to this paragraph shall be valid only for such period of time as the Committee may specify, with the approval of the Secretary, in appropriate rules and regulations.

    (e) Inter-plant and inter-handler transfers. Any handler may transfer from his plant to his own or another handler's plant within the State of California any raisins without having had such raisins inspected as provided in paragraph (d) of this section. The transferring handler shall transmit promptly to the Committee a report of such transfer, except that transfers between plants owned or operated by the same handler need not be reported. Before shipping or otherwise making final disposition of such raisins, the receiving handler shall comply with the requirements of this section.

    (g) Exemption of experimental and specialty packs. The Committee may establish, with the approval of the Secretary, rules and procedures providing for the exemption of raisins in experimental and specialty packs from one or more of the requirements of the minimum grade, quality, or condition standards of this section, together with the inspection and certification requirements if applicable.

    12. Amend § 989.60 by revising paragraph (a) to read as follows:
    § 989.60 Exemption.

    (a) Notwithstanding any other provisions of this amended subpart, the Committee may establish, with the approval of the Secretary, such rules and procedures as may be necessary to permit the acquisition and disposition of any off-grade raisins, free from any or all regulations, for uses in non-normal outlets.

    13. Section 989.61 is revised to read as follows:
    § 989.61 Above parity situations.

    The provisions of this part relating to minimum grade, quality, and condition standards and inspection requirements, within the meaning of section 2(3) of the Act, and any other provisions pertaining to the administration and enforcement of the order, shall continue in effect irrespective of whether the estimated season average price to producers for raisins is in excess of the parity level specified in section 2(1) of the Act.

    14. Remove the undesignated heading “Volume Regulation” prior to § 989.65.
    §§ 989.65-989.67 [Removed and reserved].
    15. Sections 989.65, 989.66, and 989.67 are removed and reserved. 16. Redesignate § 989.70 as § 989.96.
    §§ 989.71-989.72 [Removed and reserved].
    17. Sections 989.71 and 989.72 are removed and reserved. 18. Amend § 989.73 by revising paragraph (b) to read as follows:
    § 989.73 Reports.

    (b) Acquisition reports. Each handler shall submit to the Committee in accordance with such rules and procedures as are prescribed by the Committee, with the approval of the Secretary, certified reports, for such periods as the Committee may require, with respect to his acquisitions of each varietal type of raisins during the particular period covered by such report, which report shall include, but not be limited to:

    (1) The total quantity of standard raisins acquired;

    (2) The total quantity of off-grade raisins acquired pursuant to § 989.58(e)(1)(i); and

    (3) Cumulative totals of such acquisitions from the beginning of the then current crop year to and including the end of the period for which the report is made. Upon written application made to the Committee, a handler may be relieved of submitting such reports after completing his packing operations for the season. Upon request of the Committee, each handler shall furnish to the Committee, in such manner and at such times as it may require, the name and address of each person from whom he acquired raisins and the quantity of each varietal type of raisins acquired from each such person.

    19. Section 989.79 is revised to read as follows:
    § 989.79 Expenses.

    The Committee is authorized to incur such expenses as the Secretary finds are reasonable and likely to be incurred by it during each crop year, for the maintenance and functioning of the Committee and for such purposes as he may, pursuant to this subpart, determine to be appropriate. The funds to cover such expenses shall be obtained levying assessments as provided in § 989.80. The Committee shall file with the Secretary for each crop year a proposed budget of these expenses and a proposal as to the assessment rate to be fixed pursuant to § 989.80, together with a report thereon. Such filing shall be not later than October 5 of the crop year, but this date may be extended by the Committee not more than 5 days if warranted by a late crop.

    20. In § 989.80, revise paragraphs (a) through (c) to read as follows:
    § 989.80 Assessments.

    (a) Each handler shall pay to the Committee, upon demand, his pro rata share of the expenses which the Secretary finds will be incurred, as aforesaid, by the Committee during each crop year less any amounts credited pursuant to § 989.53. Such handler's pro rata share of such expenses shall be equal to the ratio between the total raisin tonnage acquired by such handler during the applicable crop year and the total raisin tonnage acquired by all handlers during the same crop year.

    (b) Each handler who reconditions off-grade raisins but does not acquire the standard raisins recovered therefrom shall, with respect to his assessable portion of all such standard raisins, pay to the Committee, upon demand, his pro rata share of the expenses which the Secretary finds will be incurred by the Committee each crop year. Such handler's pro rata share of such expenses shall be equal to the ratio between the handler's assessable portion (which shall be a quantity equal to such handler's standard raisins which are acquired by some other handler or handlers) during the applicable crop year and the total raisin tonnage acquired by all handlers.

    (c) The Secretary shall fix the rate of assessment to be paid by all handlers on the basis of a specified rate per ton. At any time during or after a crop year, the Secretary may increase the rate of assessment to obtain sufficient funds to cover any later finding by the Secretary relative to the expenses of the Committee. Each handler shall pay such additional assessment to the Committee upon demand. In order to provide funds to carry out the functions of the Committee, the Committee may accept advance payments from any handler to be credited toward such assessments as may be levied pursuant to this section against such handler during the crop year. The payment of assessments for the maintenance and functioning of the Committee, and for such purposes as the Secretary may pursuant to this subpart determine to be appropriate, may be required under this part throughout the period it is in effect, irrespective of whether particular provisions thereof are suspended or become inoperative.

    § 989.82 [Removed and reserved].
    21. Section 989.82 is removed and reserved. 22. Section 989.84 is revised to read as follows:
    § 989.84 Disposition limitation.

    No handler shall dispose of standard raisins, off-grade raisins, or other failing raisins, except in accordance with the provisions of this subpart or pursuant to regulations issued by the committee.

    23. In § 989.91: a. Redesignate paragraphs (c) and (d) as paragraphs (d) and (e), respectively, and; b. Add a new paragraph (c).

    The addition to read as follows:

    § 989.91 Suspension or termination.

    (c) No less than five crop years and no later than six crop years after the effective date of this amendment, the Secretary shall conduct a referendum to ascertain whether continuance of this part is favored by producers. Subsequent referenda to ascertain continuance shall be conducted every six crop years thereafter. The Secretary may terminate the provisions of this part at the end of any crop year in which the Secretary has found that continuance of this part is not favored by a two-thirds majority of voting producers, or a two-thirds majority of volume represented thereby, who, during a representative period determined by the Secretary, have been engaged in the production for market of grapes used in the production of raisins in the State of California. Such termination shall be announced on or before the end of the crop year.

    Subpart B—Administrative Requirements 24. Designate the subpart labeled “Administrative Rules and Regulations” as subpart B and revise the heading as shown above. 25. Section 989.129 is revised to read as follows:
    § 989.129 Voting at nomination meetings.

    Any person (defined in § 989.3 as an individual, partnership, corporation, association, or any other business unit) who is engaged, in a proprietary capacity, in the production of grapes which are sun-dried or dehydrated by artificial means to produce raisins and who qualifies under the provisions of § 989.29(b)(2) shall be eligible to cast one ballot for a nominee for each producer member position and one ballot for a nominee for each producer alternate member position on the committee which is to be filled for his district. Such person must be the one who or which: (a) Owns and farms land resulting in his or its ownership of such grapes produced thereon; (b) rents and farms land, resulting in his or its ownership of all or a portion of such grapes produced thereon; or (c) owns land which he or it does not farm and, as rental for such land, obtains the ownership of a portion of such grapes or the raisins. In this connection, a partnership shall be deemed to include two or more persons (including a husband and wife) with respect to land the title to which, or leasehold interest in which, is vested in them as tenants in common, joint tenants, or under community property laws, as community property. In a landlord-tenant relationship, wherein each of the parties is a producer, each such producer shall be entitled to one vote for a nominee for each producer member position and one vote for each producer alternate member position. Hence, where two persons operate land as landlord and tenant on a share-crop basis, each person is entitled to one vote for each such position to be filled. Where land is leased on a cash rental basis, only the person who is the tenant or cash renter (producer) is entitled to vote. A partnership or corporation, when eligible, is entitled to cast only one vote for a nominee for each producer position to be filled in its district.

    § 989.154 [Removed and reserved].
    § 989.156 [Removed and reserved].
    26. Sections 989.154 and 989.156 are removed and reserved. 27. Amend § 989.158 by revising paragraph (c)(4)(i) to read as follows:
    § 989.158 Natural condition raisins.

    (c) * * *

    (4) * * *

    (i) The handler shall notify the inspection service at least one business day in advance of the time such handler plans to begin reconditioning each lot of raisins, unless a shorter period is acceptable to the inspection service. Such notification shall be provided verbally or by other means of communication, including email. Natural condition raisins which have been reconditioned shall continue to be considered natural condition raisins for purposes of reinspection (inspection pursuant to § 989.58(d)) after such reconditioning has been completed, if no water or moisture has been added; otherwise, such raisins shall be considered as packed raisins. The weight of the raisins reconditioned successfully shall be determined by reweighing, except where a lot, before reconditioning, failed due to excess moisture only. The weight of such raisins resulting from reconditioning a lot failing account excess moisture may be determined by deducting 1.2 percent of the weight for each percent of moisture in excess of the allowable tolerance. When necessary due to the presence of sand, as determined by the inspection service, the requirement for deducting sand tare and the manner of its determination, as prescribed in paragraph (a)(1) of this section, shall apply in computing the net weight of any such successfully reconditioned natural condition raisins. The weight of the reconditioned raisins acquired as packed raisins shall be adjusted to natural condition weight by the use of factors applicable to the various degrees of processing accomplished. The applicable factor shall be that selected by the inspector of the reconditioned raisins from among factors established by the Committee with the approval of the Secretary.

    28. Remove the undesignated heading “Volume Regulation” prior to § 989.166 is removed.
    § 989.166-989.167 [Removed and reserved].
    29. Sections 989.166 and 989.167 are removed and reserved. 30. In § 989.173: a. Remove paragraphs (b)(2)(ii), (f), and (g)(1)(ii); b. Redesignate paragraph (b)(2)(iii), (g) and (g)(1)(iii) as paragraphs (b)(2)(ii), (f) introductory text and (f)(1)(ii), respectively; and c. Revise paragraphs (a), (b)(2)(i), newly redesignated paragraph (b)(2)(ii), (c)(1), (d)(1), (d)(1)(v), newly redesignated paragraph (f)(1)(ii), (f)(2)(i) and (f)(3).

    The revisions read as follows:

    § 989.173 Reports.

    (a) Inventory reports. Each handler shall submit to the Committee as of the close of business on July 31 of each crop year, and not later than the following August 6, an inventory report which shall show, with respect to each varietal type of raisins held by such handler, the quantity of off-grade raisins segregated as to those for reconditioning and those for disposition as such. Provided, That, for the Other Seedless varietal type, handlers shall report the information required in this paragraph separately for the different types of Other Seedless raisins. Upon request by the Committee, each handler shall file at other times, and as of other dates, any of the said information which may reasonably be necessary and which the Committee shall specify in its request.

    (b) * * *

    (2) * * *

    (i) The total net weight of the standard raisins acquired during the reporting period; and

    (ii) The cumulative totals of such acquisitions from the beginning of the then current crop year.

    (c) * * *

    (1) Each month each handler who is not a processor shall furnish to the Committee, on an appropriate form provided by the Committee and so that it is received by the Committee not later than the seventh day of the month, a report showing the aggregate quantity of each varietal type of packed raisins and standard natural condition raisins which were shipped or otherwise disposed of by such handler during the preceding month (exclusive of transfers within the State of California between plants of any such handler and from such handler to other handlers): Provided, That, for the Other Seedless varietal type, handlers shall report such information for the different types of Other Seedless raisins. Such required information shall be segregated as to:

    (d) * * *

    (1) Any handler who transfers raisins to another handler within the State of California shall submit to the Committee not later than five calendar days following such transfer a report showing:

    (v) If packed, the transferring handler shall certify that such handler is transferring only acquired raisins that meet all applicable marketing order requirements, including reporting, incoming inspection, and assessments.

    (f) * * *

    (1) * * *

    (i) The quantity of raisins, segregated as to locations where they are stored and whether they are natural condition or packed;

    (ii) * * *

    (2) * * *

    (i) The total net weight of the standard raisins acquired during the reporting period; and

    (3) Disposition report of organically-produced raisins. No later than the seventh day of each month, handlers who are not processors shall submit to the Committee, on an appropriate form provided by the Committee, a report showing the aggregate quantity of packed raisins and standard natural condition raisins which were shipped or otherwise disposed of by such handler during the preceding month (exclusive of transfer within the State of California between the plants of any such handler and from such handler to other handlers). Such information shall include:

    Subpart C—Supplementary Requirements 31. Designate the subpart labeled “Supplementary Regulations” as subpart C and revise the heading as shown above. 32. In § 989.210: a. Remove paragraphs (b), (c) and (e); b. Redesignate paragraph (d) as (b), paragraph (f) as (c), and paragraph (g) as (d); and c. Revise newly redesignated paragraph (b).

    The revision to read as follows:

    § 989.210 Handling of varietal types of raisins acquired pursuant to a weight dockage system.

    (b) Assessments. Assessments on any lot of raisins of the varietal types specified in paragraph (a) of this section acquired by a handler pursuant to a weight dockage system shall be applicable to the creditable weight of such lot.

    34. Sections 989.221 and 989.257 are deleted and reserved. Subpart D—[Amended] 35. Designate the subpart labeled “Assessment Rates” as subpart D. 36. The subpart heading “Subpart-Schedule of Payments” prior to § 989.401 is removed. 37. Section 989.401 is removed and reserved. Subpart E—[Amended] 38. Designate the subpart labeled “Conversion Factors” as subpart E. Subpart F—[Amended] 39. Designate the subpart labeled “Quality Control” as subpart F. Subpart G—[Amended] 40. Designate the subpart labeled “Antitrust Immunity and Liability” as subpart G. 41. In part 989 all references of “offgrade” are revised to read “off-grade”. 42. In part 989 all references to “nonnormal” are revised to read “non-normal”. 43. In part 989 all references to “committee” are revised to read “Committee”. 44. In the list below, for each section indicated in the left column, remove the title indicated in the middle column from wherever it appears in the section, and add the title indicated in the right column: Section Remove Add 989.58(d) Processed Products Standardization and Inspection Branch Specialty Crops Inspection Division. 989.59(d) Processed Products Standardization and Inspection Branch Specialty Crops Inspection Division. 989.102 Processed Products Branch, Fruit and Vegetable Division Specialty Crops Inspection Division. Dated: September 19, 2017. Bruce Summers, Acting Administrator, Agricultural Marketing Service.
    [FR Doc. 2017-20347 Filed 9-28-17; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-0901; Product Identifier 2017-NM-106-AD] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    We propose to adopt a new airworthiness directive (AD) for all The Boeing Company Model 757-300 series airplanes. This proposed AD was prompted by reports of scribe line damage on fuselage skin. This proposed AD would require detailed inspections of fuselage skin for the presence of scribe lines, and applicable on-condition actions. We are proposing this AD to address the unsafe condition on these products.

    DATES:

    We must receive comments on this proposed AD by November 13, 2017.

    ADDRESSES:

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

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

    Fax: 202-493-2251.

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

    Hand Delivery: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this NPRM, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Standards Branch, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0901.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0901; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this NPRM, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    David Truong, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5224; fax: 562-627-5210; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Comments Invited

    We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2017-0901; Product Identifier 2017-NM-106-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

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

    Discussion

    We have received a report indicating that scribe line damage, caused by sharp tools used during fuselage maintenance, has been found on the fuselage skin of a number of Boeing Model 757-300 series airplanes. This condition, if not corrected, could result in the development of cracks in fuselage skin that can potentially lead to rapid decompression and the inability of the principal structural element to sustain limit load.

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin 757-53A0107, dated July 20, 2017. The service information describes procedures for detailed inspections of fuselage skin for the presence of scribe lines, and applicable on-condition actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination

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

    Proposed AD Requirements

    This proposed AD would require accomplishment of the actions identified as “RC” (required for compliance) in the Accomplishment Instructions of Boeing Alert Service Bulletin 757-53A0107, dated July 20, 2017, described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.

    For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0901.

    Costs of Compliance

    We estimate that this proposed AD affects 37 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

    Estimated Costs for Required Actions Action Labor cost Parts cost Cost per product Cost on U.S. operators Inspections Up to 149 work-hours × $85 per hour = $12,665 per inspection cycle $0 Up to $12,665 per inspection cycle Up to $468,605 per inspection cycle.

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

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    The Proposed Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): The Boeing Company: Docket No. FAA-2017-0901; Product Identifier 2017-NM-106-AD. (a) Comments Due Date

    We must receive comments by November 13, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to all The Boeing Company Model 757-300 series airplanes, certificated in any category.

    (d) Subject

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

    (e) Unsafe Condition

    This AD was prompted by reports of scribe line damage on fuselage skin, caused by sharp tools used during fuselage maintenance. We are issuing this AD to detect and correct scribe line damage. Failure to detect and completely remove scribe lines may lead to fatigue cracking, rapid decompression, and inability of the principal structural element to sustain limit load.

    (f) Compliance

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

    (g) Required Actions

    Except as required by paragraph (h) of this AD: At the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 757-53A0107, dated July 20, 2017, do all applicable actions identified as “RC” (required for compliance) in, and in accordance with, the Accomplishment Instructions of Boeing Alert Service Bulletin 757-53A0107, dated July 20, 2017.

    (h) Exceptions to Service Information Specifications

    (1) For purposes of determining compliance with the requirements of this AD, the phrase “the effective date of this AD” may be substituted for “the original issue date of this service bulletin,” as specified in Boeing Alert Service Bulletin 757-53A0107, dated July 20, 2017.

    (2) Where Boeing Alert Service Bulletin 757-53A0107, dated July 20, 2017, specifies contacting Boeing, and specifies that action as RC: This AD requires repair using a method approved in accordance with the procedures specified in paragraph (i) of this AD.

    (i) Alternative Methods of Compliance (AMOCs)

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

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

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

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

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

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

    (j) Related Information

    (1) For more information about this AD, contact David Truong, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5224; fax: 562-627-5210; email: [email protected]

    (2) For service information identified in this AD, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Standards Branch, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

    Issued in Renton, Washington, on September 20, 2017. Dionne Palermo, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2017-20830 Filed 9-28-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF COMMERCE Bureau of the Census 15 CFR Part 30 [Docket Number: 140905758-7736-01] RIN 0607-AA54 Foreign Trade Regulations (FTR): Clarification on the Collection and Confidentiality of Kimberley Process Certificates AGENCY:

    Bureau of the Census, Commerce.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The U.S. Census Bureau (Bureau of the Census) proposes to amend its regulations in order to clarify that the data collected from the Kimberley Process Certificates (KPCs) are collected in compliance with the Clean Diamond Trade Act and not under the Census Bureau's laws and regulations. In addition, this rule clarifies the submission requirements and permissible uses of the KPCs.

    DATES:

    Written comments must be received on or before November 28, 2017.

    ADDRESSES:

    Please direct all written comments on this proposed rule to the Chief, International Trade Management Division, U.S. Census Bureau, Room 5K158, Washington, DC 20233-6010. You may also submit comments, identified by RIN number 0607-AA54 or by the e-Rulemaking Docket ID USBC-2017-0003, to the Federal e-Rulemaking Portal: http://www.regulations.gov. All comments received are part of the public record. No comments will be posted to http://www.regulations.gov for public viewing until after the comment period has closed. Comments will generally be posted without change. All Personally Identifiable Information (for example, name and address) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. The Census Bureau will accept anonymous comments (enter N/A in the required fields, if you wish to remain anonymous). You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

    FOR FURTHER INFORMATION CONTACT:

    Dale C. Kelly, Chief, International Trade Management Division, U.S. Census Bureau, Room 5K158, Washington, DC 20233-6010, by phone (301) 763-6937, by fax (301) 763-8835, or by email [[email protected]].

    SUPPLEMENTARY INFORMATION:

    Background

    The Census Bureau is amending the Foreign Trade Regulations (FTR) (15 CFR, part 30) to clarify that the Kimberley Process Certificates (KPCs) are not collected under Title 13 of the United States Code. Instead, the KPCs are collected under the Clean Diamond Trade Act (CDTA) (Pub. L. 108-19, 19 U.S.C. 3901, et seq.) and Executive Order 13312, entitled “Implementing the Clean Diamond Trade Act” (68 FR 45151, July 29, 2003). The CDTA and Executive Order 13312 require that the importation into, and exportation from, the United States of any rough diamonds be controlled through the Kimberley Process Certification Scheme (KPCS). The KPCS calls on Participants (i.e. governments participating in the KPCS), including the United States, to ensure that any shipment of rough diamonds exported to, or imported from, a Participant be accompanied by a valid KPC, and maintain and publish statistics on the importation and exportation of rough diamonds. The CDTA further provides that the United States should produce statistics on imports and exports of rough diamonds and to make these statistics available for analysis by interested parties, including other governments participating in the KPCS.

    Consistent with the CDTA, Executive Order 13312, and the KPCS, the Office of Foreign Assets Control's Rough Diamonds Control Regulations (Title 31 CFR, part 592) require that a shipment of rough diamonds imported into, or exported from, the United States be accompanied by an original KPC, and the Census Bureau's FTR requires that KPCs for all import and export shipments be provided to the Census Bureau. The data collected from the KPCs are separate and distinct from the statistical data collected under Title 13 of the United States Code, and are not governed by the confidentiality provisions of that title.

    Finally, the U.S. Department of Homeland Security and the U.S. Department of State concur with the revisions to the FTR as required by 13 U.S.C. 303, and Public Law 107-228, division B, title XIV, section 1404.

    Program Requirements

    Consistent with the CDTA and Executive Order 13312, the Census Bureau is revising the FTR in CFR Title 15, part 30, in sections 30.1, 30.4, 30.7, 30.50, 30.60, and 30.70, as follows:

    • Revise § 30.1(c) to add the definition “Kimberley Process Certificate” as a technical amendment.

    • Revise § 30.1(c) to add the definition “Voided Kimberley Process Certificate” to clarify the term.

    • Revise § 30.4 to add paragraph (e) to clarify the filing procedures for voided KPCs and to address that the collection of KPCs are not pursuant to Title 13, of the United States Code .

    • Revise § 30.7(c) to clarify that KPCs must be provided to the Census Bureau immediately after export of the shipment from the United States.

    • Revise § 30.50(c) to clarify that KPCs must be provided to the Census Bureau immediately after entry of the shipment in the United States.

    • Revise § 30.60 to add a note clarifying that KPCs are not considered Electronic Export Information and are not confidential under Title 13 of the United States Code.

    • Revise § 30.70 to clarify how violations of the CDTA will be enforced.

    Rulemaking Requirements Regulatory Flexibility Act

    The Chief Counsel for Regulation of the Department of Commerce certified to the Chief Counsel for Advocacy of the Small Business Administration (SBA) that this proposed rule will not have a significant impact on a substantial number of small entities. Currently, a KPC must be submitted for all imports or exports of rough diamonds. This rulemaking requires that KPCs be provided to the Census Bureau immediately after either entry in or export from the United States. It replaces the previous requirement to provide the KPC to the Census Bureau in advance.

    This action requires that U.S. Principal Parties in Interest (USPPIs) or authorized agents in the United States file export information to the Automated Export System (AES) for all shipments where an Electronic Export Information (EEI) record is required under the FTR. The SBA's table of size standards indicates that businesses that are the USPPI or authorized agent and file export information are considered small businesses if they employ less than 500 people. Based on Exhibit 7a of the 2015 Profile of U.S. Exporting Companies, the Census Bureau estimates that there are 295,000 USPPIs that are considered small business entities under the SBA definition. And more than 90 percent of these USPPIs use an authorized agent to file export information. An estimate of the number of authorized agents is not known and is unable to be determined.

    The Census Bureau anticipates that the clarification of requirements will not significantly affect the small businesses that file through the AES. The majority of agents require use of a computer to perform routine tasks, such as filing through the AES. These agents are unlikely to be significantly affected by these clarifications of requirements, as they already possess the necessary technology and equipment to submit the information through the AES. In addition, it is not necessary for small businesses to purchase software for this task because a free Internet-based system, AESDirect, is provided for the electronic submission of export information. The proposed new requirements will have minimal impact on response burden. For these reasons, this rule will not have a significant economic impact on a substantial number of small entities.

    Executive Orders

    This rule has been determined to be not significant for purposes of Executive Order 12866. This proposed rule is not an Executive Order 13771 regulatory action because this proposed rule is not significant under Executive Order 12866. This rulemaking does not contain policies with federalism implications as that term is defined under Executive Order 13132.

    Paperwork Reduction Act

    Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with, a collection of information subject to the requirements of the Paperwork Reduction Act (PRA), unless that collection of information displays a current, valid Office of Management and Budget (OMB) control number. This rule contains a collection-of-information subject to the requirements of the PRA (44 U.S.C. 3501 et seq.) and that has been approved under OMB control number 0607-0152.

    List of Subjects in 15 CFR Part 30

    Economic statistics, Exports, Foreign trade, Reporting and recordkeeping requirements.

    For the reasons set out in the preamble, the Census Bureau is proposing to amend Title 15, CFR part 30, as follows:

    PART 30—FOREIGN TRADE REGULATIONS 1. The authority citation for 15 CFR part 30 continues to read as follows: Authority:

    5 U.S.C. 301; 13 U.S.C. 301-307; Reorganization plan No. 5 of 1990 (3 CFR 1949-1953 Comp., p. 1004); Department of Commerce Organization Order No. 35-2A, July 22, 1987, as amended, and No. 35-2B, December 20, 1996, as amended; Pub. L. 107-228, 116 Stat. 1350.

    2. Amend § 30.1(c) by adding definitions for “Kimberley Process Certificate (KPC)” and “Voided Kimberley Process Certificate” to read as follows:
    § 30.1 Purpose and definitions.

    (c) * * *

    Kimberley Process Certificate (KPC). A forgery resistant document used to certify the origin of rough diamonds from sources which are free of conflict.

    Voided Kimberley Process Certificate. A Kimberley Process Certificate intended to be used for the exportation of rough diamonds from the United States that has been cancelled for reasons such as loss or error.

    3. Amend § 30.4 by adding paragraph (e) to read as follows:
    § 30.4 Electronic Export Information filing procedures, deadlines, and certification statements.

    (e) Collection of KPCs and voided KPCs. Any voided KPC must be faxed by the voiding party to the Census Bureau on (800) 457-7328, or provided by other methods as permitted by the Census Bureau immediately upon voiding. The collection of KPCs, including voided KPCs, is performed pursuant to the Clean Diamond Trade Act, Public Law 108-19, 19 U.S.C. Section 3901 et seq. (CDTA) and Executive Order 13312, and not Title 13, U.S.C.

    4. Amend § 30.7 by revising paragraph (c) to read as follows:
    § 30.7 Annotating the bill of lading, air waybill, or other commercial loading documents with proof of filing citations, and exemption legends.

    (c) Exports of rough diamonds classified under HS subheadings 7102.10, 7102.21, 7102.31 require the proof of filing citation, as stated in paragraph (b) of this section, to be indicated on the Kimberley Process Certificate (KPC). In addition, the KPC must be faxed to the Census Bureau on (800) 457-7328, or provided by other methods as permitted by the Census Bureau, immediately after export of the shipment from the United States.

    5. Amend § 30.50 by revising paragraph (c) to read as follows:
    § 30.50 General requirements for filing import entries.

    (c) The Kimberley Process Certificate (KPC) for all imports of rough diamonds classified under HS subheadings 7102.10, 7102.21, 7102.31 must be faxed by the importer or customs broker to the Census Bureau on (800) 457-7328, or provided by other methods as permitted by the Census Bureau, immediately after entry of the shipment in the United States.

    6. Amend § 30.60 by adding a note to read as follows:
    § 30.60 Confidentiality of Electronic Export Information. Note to § 30.60:

    Kimberley Process Certificates (KPCs), including voided KPCs, provided to the Census Bureau pursuant to the Clean Diamond Trade Act, Executive Order 13312, and this Part are not considered EEI and are not confidential under Title 13.

    7. Amend § 30.70 by revising the introductory text to read as follows:
    § 30.70 Violation of the Clean Diamond Trade Act.

    Section 8(c) of the Clean Diamond Trade Act (CDTA) authorizes U.S. Customs and Border Protection (CBP) and U.S. Immigration and Customs Enforcement (ICE) to enforce the laws and regulations governing exports of rough diamonds. The Treasury Department's Office of Foreign Assets Control's (OFAC) also has enforcement authority pursuant to section 5(a) of the CDTA, Executive Order 13312, and Rough Diamonds Control Regulations (31 CFR 592). CBP, ICE, and the OFAC are authorized to enforce provisions of the CDTA that provide for the following civil and criminal penalties:

    Dated: September 22, 2017. Ron S. Jarmin, Associate Director for Economic Programs, Performing the Non-Exclusive Functions and Duties of the Director, Bureau of the Census.
    [FR Doc. 2017-20920 Filed 9-28-17; 8:45 am] BILLING CODE 3510-07-P
    DEPARTMENT OF TRANSPORTATION Federal Highway Administration 23 CFR Parts 771 and 774 Federal Railroad Administration 49 CFR Part 264 Federal Transit Administration 49 CFR Part 622 [Docket No. FHWA-2015-0011] FHWA RIN 2125-AF60 FRA RIN 2130-AC64 FTA RIN 2132-AB26 Environmental Impacts and Related Procedures AGENCY:

    Federal Highway Administration (FHWA), Federal Railroad Administration (FRA), Federal Transit Administration (FTA), DOT.

    ACTION:

    Supplemental notice of proposed rulemaking (SNPRM).

    SUMMARY:

    This SNPRM provides interested parties the opportunity to comment on the proposed revisions to the FHWA and FTA joint regulations implementing the National Environmental Policy Act (NEPA) and Section 4(f) requirements. The FHWA, FRA, and FTA (hereafter referred to as “the Agencies”) propose these revisions after the enactment of the Fixing America's Surface Transportation (FAST) Act, which requires a rulemaking to address programmatic approaches in environmental reviews and makes other changes to existing law that should be addressed in a rulemaking. In this SNPRM the Agencies also propose to add FRA to regulations governing environmental impact and related procedures and the parks, recreation areas, wildlife and waterfowl refuges, and historic site, making those regulations FRA's NEPA implementing procedures and FRA's Section 4(f) implementing regulations, respectively. This SNPRM proposes to modify the FHWA/FTA Environmental Impact and Related Procedures due to changes to the environmental review process made by the FAST Act and to modify the Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Sites regulations due to new exceptions created by the FAST Act. Lastly, the Agencies request comments regarding the current FHWA and FTA definition of “existing operational right-of-way” in their respective categorical exclusion sections. The Agencies seek comments on the proposals in this document.

    DATES:

    The Agencies must receive comments on or before November 28, 2017.

    ADDRESSES:

    To ensure you do not duplicate your docket submissions, please submit them by only one of the following means:

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

    Mail: Docket Management Facility, U.S. Department of Transportation, 1200 New Jersey Ave. SE., West Building Ground Floor, Room W12-140, Washington, DC 20590-0001.

    Hand Delivery: West Building Ground Floor, Room W12-140, 1200 New Jersey Ave. SE., between 9 a.m.-5 p.m., Monday through Friday, except Federal holidays. The telephone number is (202) 366-9329.

    Instructions: You must include the agency name and docket number or the Regulatory Identification Number (RIN) for the rulemaking at the beginning of your comments. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

    FOR FURTHER INFORMATION CONTACT:

    For FHWA: Neel Vanikar, Office of Project Delivery and Environmental Review, HEPE, (202) 366-2068, [email protected], or Diane Mobley, Office of the Chief Counsel, (202) 366-1366, [email protected] For FRA: Michael Johnsen, Office of Program Delivery, (202) 493-1310, [email protected], or Christopher Van Nostrand, Office of Chief Counsel, (202) 493-6058, [email protected] For FTA: Megan Blum, Office of Planning and Environment, (202) 366-0463, [email protected], or Helen Serassio, Office of Chief Counsel, (202) 366-1974, [email protected] The Agencies are located at 1200 New Jersey Ave. SE., Washington, DC 20590-0001. Office hours are from 8:00 a.m. to 4:30 p.m. E.T., Monday through Friday, except Federal holidays.

    SUPPLEMENTARY INFORMATION:

    Background

    On December 4, 2015, President Obama signed into law the FAST Act (Pub. L. 114-94, 129 Stat. 1312). The FAST Act contains new requirements the Agencies must follow to comply with NEPA (42 U.S.C. 4321 et seq.) and Section 4(f) (23 U.S.C. 138 and 49 U.S.C. 303). This SNPRM includes proposed changes to 23 CFR part 771 to address the following issues: (1) Section 1304(k) which requires a rulemaking regarding programmatic approaches; (2) certain amendments to 23 U.S.C. 139 made by section 1304; and (3) the section 11503 requirement that the Secretary of Transportation (Secretary) apply, to the greatest extent feasible, the project development procedures described in 23 U.S.C. 139 to railroad projects requiring the Secretary's approval under NEPA (49 U.S.C. 24201(a)). With respect to 23 CFR part 774, the SNPRM includes proposed changes to the Agencies' Section 4(f) procedures to reflect the two new Section 4(f) exceptions created in the FAST Act (sections 1303 and 11502). In addition, FRA also proposes joining 23 CFR part 774.

    General Discussion of the Proposals

    The following sections of the FAST Act affect 23 CFR parts 771 and 774, and are addressed in this SNPRM:

    • Section 1303 amends Section 4(f) to create an exception for certain common post-1945 concrete or steel bridges and culverts;

    • Section 1304 revises certain elements of the Agencies' environmental review process at 23 U.S.C. 139;

    • Section 1304(k) replaces a rulemaking requirement created by the Moving Ahead for Progress in the 21st Century Act (MAP-21), Public Law 112-141, 126 Stat. 405, with a new rulemaking requirement to implement the programmatic approaches provision in 23 U.S.C. 139(b)(3);

    • Section 11502 amends Section 4(f) to create a railroad or rail transit line exception when certain conditions are met; and,

    • Section 11503 requires the Secretary apply, to the greatest extent feasible, the project development procedures described in 23 U.S.C. 139 to railroad projects requiring the Secretary's approval under NEPA.

    SNPRM Rationale

    This SNPRM supplements the notice of proposed rulemaking (NPRM) FHWA and FTA issued on November 20, 2015 (November 2015 NPRM) (80 FR 72624, Docket No. FHWA-2015-0011). The November 2015 NPRM proposed changes to the FHWA/FTA Environmental Impact and Related Procedures regulations (23 CFR part 771) and the Parks, Recreation Areas, Wildlife and Waterfowl Refuges, and Historic Site regulations (23 CFR part 774). Primarily, FHWA and FTA issued the November 2015 NPRM to address certain changes to the environmental review process imposed by MAP-21.

    The comment period for the November 2015 NPRM closed on January 19, 2016. The FHWA and FTA received 14 comment letters for consideration. During the November 2015 NPRM comment period, President Obama signed the FAST Act into law. The FHWA and FTA did not pursue a final rule following the November 2015 NPRM because certain FAST Act provisions affected portions of the regulatory provisions addressed in the November 2015 NPRM and because certain other FAST Act provisions are appropriately addressed in a rulemaking. The Agencies now propose addressing those changes to parts 771 and 774 in this SNPRM.

    The Agencies used the proposals in the November 2015 NPRM as the baseline for this SNPRM (e.g., section/paragraph organization and language). All substantive comments received on the November 2015 NPRM and this SNPRM, as well as the appropriate responses to both sets of comments, will be addressed in a final rule should a final rule be issued. The docket contains a redline that captures both the November 2015 NPRM and this SNPRM's changes.

    This SNPRM contains proposals satisfying the rulemaking requirements in FAST Act sections 1304(k) and 11503, and addresses changes to 23 U.S.C. 139 (Efficient Environmental Reviews for Project Decisionmaking), 23 U.S.C. 138 (Preservation of Parklands), and 49 U.S.C. 303 (Policy on Lands, Wildlife and Waterfowl Refuges, and Historic Sites) FAST Act sections 1304, 1303, and 11502 made, respectively. The SNPRM also proposes to add FRA to parts 771 and 774.

    Applicability of 23 CFR Part 771 to FRA Actions

    Section 11503 of the FAST Act requires the Secretary, among other things, to apply, to the greatest extent feasible, the project development procedures described in 23 U.S.C. 139 (Efficient Environmental Reviews for Project Decisionmaking) to railroad projects requiring the Secretary's approval under NEPA. The Secretary must incorporate into FRA regulations and procedures for railroad projects aspects of the 23 U.S.C. 139 project development procedures, or portions thereof, that increase the efficiency of the review of railroad projects consistent with section 11503.

    The FRA has determined that applying 23 CFR part 771 to railroad actions is the most efficient way to comply with section 11503. By joining part 771, FRA would not need to develop entirely new NEPA regulations for railroads projects. On June 9, 2016, FRA published a notice in the Federal Register requesting public comment on the application of part 771 to FRA's railroad projects (81 FR 37237, June 9, 2016). The comment period ended on July 11, 2016. The FRA received one comment on this notice from the Association of American Railroads (AAR). The commenter suggested that FRA develop its own regulations rather than adopt 23 CFR part 771 because of perceived difficulties applying certain requirements to freight railroad projects on privately owned infrastructure. While many of the FHWA and FTA actions are sponsored by government entities (e.g., State DOTs), the regulations can be applied to the actions on privately owned railroad infrastructure. This SNPRM proposes certain modifications to 23 CFR part 771 to accommodate railroad projects.

    Section 11503 of the FAST Act also required FRA to survey its use of NEPA categorical exclusions (CE) in railroad projects since 2005. On June 2, 2016, FRA published a notice in the Federal Register providing the public with a review of FRA's survey, requesting comments on two new classes of actions that might be appropriate for categorical exclusion, and requesting suggestions for additional categories of activities appropriate for exclusion (81 FR 35437, June 2, 2016) (June Notice). The comment period ended on July 5, 2016. The FRA received comments from the AAR, the Michigan Department of Transportation and the Oregon Department of Transportation which are addressed in the section-by-section analysis below. This SNPRM satisfies the FAST Act section 11503 requirement that the Secretary publish an NPRM proposing new and existing CEs for railroad projects requiring the Secretary's approval.

    The FRA proposes to join the 23 CFR part 774 regulations implementing Section 4(f). FRA determined joining 23 CFR part 774 would further align its environmental review processes with the FHWA and FTA processes. This would create consistency implementing Section 4(f) and provide clarity to FRA's applicants and project sponsors. Additionally, it eliminates FRA's need to update the Section 4(f) sections of its existing Environmental Procedures; if FRA only joined 23 CFR part 771, the part 771 regulations would supersede most, if not all, of FRA's Environmental Procedures, and FRA would still need to revise the Section 4(f) sections. In addition, FRA currently follows 23 CFR part 774 and associated FHWA and FTA guidance as guidance when it applies Section 4(f) to railroad projects and officially joining the regulations would not significantly change FRA's current practice. In the future, DOT may consider proposing a Department-wide rule or updating Department-wide guidance on the implementation of Section 4(f).

    This SNPRM would also amend part 264 in title 49 to add a cross reference 23 CFR part 771 and 23 CFR part 774, and the Agencies propose changing the heading to “Environmental Impact and Related Procedures.”

    Section-by-Section Discussion of the Proposals NEPA Regulation Changes (Part 771) General

    There are two general proposals to note. First, the Agencies propose to list the Agencies in alphabetical order (e.g., “FHWA, FRA, and FTA”) whenever it is necessary to list all three agencies. This change would apply throughout the regulation. Second, the Agencies propose “final EIS” as the acronym for “final environmental impact statement” (instead of “FEIS”) throughout 23 CFR part 771 to provide consistency.

    Section 771.101 Purpose

    The Agencies propose to modify this section to add the appropriate references to FRA and railroad projects, which would allow FRA to use part 771 as its procedures for implementing NEPA. The Agencies also propose updating the list of references in the last sentence to remove MAP-21 section 1319 because it was codified at 23 U.S.C. 139(n) and 49 U.S.C. 304a, and to add FAST Act section 1304.

    Section 771.105 Policy

    Through the November 2015 NPRM, FHWA and FTA proposed several revisions to 23 CFR part 771 to satisfy the programmatic approaches rulemaking requirement created by MAP-21, section 1305. To satisfy the programmatic approaches rulemaking requirement created by FAST Act, section 1304(k), the Agencies propose revising paragraph (b), originally proposed in the November 2015 NPRM, by including the parenthetical “(including the requirements found at 23 U.S.C. 139(b))” after the words “environmental requirements.”

    The Agencies also propose a non-substantive change to paragraph (e)(2) in the first sentence to correct a typo (“fo” to “of”).

    The Agencies are proposing to revise § 771.105 to directly address 23 U.S.C. 139(d)(8)-Single NEPA Document, which requires the Agencies develop a single NEPA document that can be used for all Federal permits and reviews for a project to the maximum extent practicable and consistent with Federal law. The Agencies propose revising paragraph (a) by replacing “to the fullest extent possible” with “to the maximum extent practicable and consistent with Federal law” to reflect 23 U.S.C. 139(d)(8) language. The policy statement applies broadly to the environmental review process and specifically encourages all environmental reviews and requirements (including permits) be addressed in a single process and environmental review document.

    Section 771.107 Definitions

    The Agencies propose to modify three definitions to add FRA's railroad projects. Specifically, the Agencies propose adding “railroad” projects, “FRA,” and “rulemakings” to the list of examples of major Federal actions in the definition of “Action,” and the Agencies propose adding “FRA” in all locations where FHWA and FTA are listed in the definition of “Administration.” The Agencies also propose similar changes to the definition of “Administration action” by adding “FRA” approval, and “rulemakings” to the list of activities needing Agency approval.

    Section 771.109 Applicability and Responsibilities

    In paragraph (a)(1), the Agencies propose to clarify that the part 771 regulations and the Council on Environmental Quality (CEQ) regulations (40 CFR parts 1500-1508) apply where one of the Agencies exercises sufficient control to condition an approval, not just a “permit or project approval,” by including “other” prior to “approvals” (i.e., “. . . condition the permit, project, or other approvals”). The Agencies are proposing this change to accommodate FRA's potential actions related to its safety programs.

    The Agencies are not proposing to modify paragraph (a)(3) to specifically address when the regulations would apply to FRA projects. The FRA would apply these regulations to projects initiated (through publishing a notice of intent for an environmental impact statement or determining to initiate an environmental assessment) after the Agencies issue a final rule, if one is issued. Until such time, FRA will continue to follow its Procedures for Considering Environmental Impacts (Environmental Procedures) (64 FR 28545, May 26, 1999, updated 78 FR 2713, Jan. 14, 2013). However, as required by the FAST Act, FRA will also follow the project development procedures described in 23 U.S.C. 139 for its railroad projects initiated after December 4, 2015 unless the project is subject to a funding arrangement under title 49, U.S.C. the Secretary approved before December 4, 2015.

    In paragraph (b)(1), the Agencies propose to add “FRA” as an agency that will assure implementation of committed mitigation measures by including the mitigation measures by reference in the grant agreement, followed by reviews of design and construction inspections.

    In paragraph (c)(2), FRA added reference to FRA's financial assistance programs.

    In paragraph (c)(7), the Agencies propose several revisions to reflect changes to participating agencies' responsibilities under section 1304 of the FAST Act, codified at 23 U.S.C. 139(c)(6), (d)(9), (f)(4), and (g)(1). Section 139(c)(6)(C) requires the lead agency consider and respond to comments within a participating agency's special expertise or jurisdiction. Similarly, section 139(d)(9) requires participating agencies to provide comments, responses, studies, or methodologies within the agency's special expertise or jurisdiction, and to use the process to address its environmental issues of concern. Section 139(f)(4)(A)(ii) mandates participating agencies limit their agency's comments to the subject matter areas within their agency's special expertise or jurisdiction, to the maximum extent practicable and consistent with Federal law. Lastly, section 139(g)(1)(B) now requires the coordination plan that the lead agency develops under 23 U.S.C. 139 include a schedule, which must receive participating agency concurrence.

    In response to these changes to 23 U.S.C. 139, the Agencies propose adding that participating agencies are responsible for providing input within their agency's special expertise or jurisdiction and providing concurrence on the schedule that now must be included in the coordination plan. The Agencies propose paragraph (c)(7) reads as set out in the regulatory text below. The Agencies interpret the proposed language “providing input, as appropriate” to include the requirement at 23 U.S.C. 139(d)(9) that participating agencies' input include “comments, responses, studies, or methodologies on those areas within the special expertise or jurisdiction of the agency” and, therefore, did not specifically list those activities in this paragraph or elsewhere in the regulation. The Agencies determined that listing those four specific activities is unnecessarily limiting and could lead a project sponsor to believe an unlisted method of providing input is not permitted.

    The Agencies further propose adding a new paragraph (e), which describes FRA's requirements for third party contracting where the project sponsor is a private entity and there is no qualified applicant as defined in § 771.107. In that situation, FRA proposes to require third party contracting for all EISs and may also require them for EAs. When using a third party contract, the project sponsor retains a contractor to assist FRA in conducting the environmental review, and the contractor works under the direction, supervision and control of FRA. A third party contracting structure would be memorialized in a memorandum of understanding among FRA, the contractor, and the project sponsor. This paragraph is intended to ensure compliance with FRA's responsibilities for EIS preparation in the CEQ implementing regulations at 40 CFR 1506.5(c).

    The Agencies propose an associated change to the beginning of paragraph (b)(6), which addresses the role of a project sponsor that is a private entity. The proposed change reads, “Subject to paragraph (e).”

    Section 771.111 Early Coordination, Public Involvement, and Project Development

    The Agencies propose several additions to § 771.111 to reflect various FAST Act changes to 23 U.S.C. 139. To reflect planning and environmental tools not previously listed, the Agencies propose adding references to 23 U.S.C. 139(f) (Purpose and need; alternatives analysis) and 23 U.S.C. 169 (Development of programmatic mitigation plans) to the list in paragraph (a)(2)(i). Section 139(f)(4)(E) of title 23 U.S.C. establishes a new process for reducing duplication between the planning and NEPA evaluation of alternatives processes by eliminating planning alternatives from detailed consideration under NEPA when certain conditions are met. Section 169 of title 23 U.S.C. includes an optional framework for creating programmatic mitigation plans during the transportation planning process, and gives substantial weight to programmatic mitigation plans in the environmental review process. Note that a recent final rule (81 FR 34049, May 27, 2016; Docket No. FHWA-2013-0037) modified 23 CFR part 450, which implements 23 U.S.C. 168 and 169. Please visit the docket for more information regarding specific changes to the planning and environmental linkages processes. The Agencies also added “as applicable” to paragraph (a)(2)(i) to acknowledge the three Agencies may have different processes or requirements authorized by statute among themselves. For example, 23 U.S.C. 139 applies to FRA, but 23 U.S.C. 168 does not.

    The Agencies propose adding the requirement that a lead agency, in consultation with participating agencies, will develop an environmental checklist, as appropriate, to assist in resource and agency identification to the end of paragraph (a)(3) to reflect the new environmental checklist language found at 23 U.S.C. 139(e)(5). The Agencies interpret the statutory language in 23 U.S.C. 139(e)(5)(A) (“The lead agency for a project . . . shall develop, as appropriate, a checklist to help project sponsors identify potential natural, cultural, and historic resources . . . .”) as providing flexibility through the phrase “as appropriate.” The Agencies are, therefore, proposing “will develop an environmental checklist, as appropriate” to reflect the statutory flexibility that allows lead agencies, including project sponsors, to develop environmental checklists when needed to facilitate the environmental process.

    The Agencies propose renumbering existing paragraph (b) as (b)(1) and adding a new paragraph (b)(2). Proposed paragraph (b)(2) would state that for projects to be evaluated with an EIS, the Administration will respond in writing to a project sponsor's formal project notification within 45 days of receipt. This to respond to the new “review of application” paragraph at 23 U.S.C. 139(e)(3), which builds off the existing project notification process established under the Safe, Accountable, Flexible, Efficient Transportation Equity Act: A Legacy of Users (SAFETEA-LU). The Agencies identify EISs in the proposed language because the procedures outlined in 23 U.S.C. 139 are “applicable to all projects for which an [EIS] is prepared under [NEPA]” (23 U.S.C. 139(b)(1)). The Agencies may apply the section 139 procedures to other classes of projects on a case-by-case basis but section 139 is only required for EISs, and the Agencies want to underscore that fact.

    In paragraph (c), the Agencies propose adding that a project sponsor may request the Secretary to designate the lead Federal agency when project elements fall within multiple DOT agencies' expertise. This addition responds to 23 U.S.C. 139(e)(4), but adds clarity regarding the provision's applicability. In most instances, the Agencies expect project sponsors will continue to contact FHWA, FRA, or FTA to determine the Federal lead agency, as is current practice.

    The Agencies propose building on the existing language regarding cooperating and participating agency invitations in paragraph (d) by adding timing language for those agencies' identification. The Agencies would require that the lead agencies identify participating agencies within 45 days from publication of the notice of intent at the end of paragraph (d) to address the new requirement to identify participating agencies within 45 days at 23 U.S.C. 139(d)(2).

    The Agencies propose adding a reference to FRA programs to paragraph (i) and its subordinate paragraphs, clarifying that FRA is adopting the approach that applicants in FTA's capital assistance programs use to engage the public. The Agencies also propose to add a reference to “the scope of the NEPA analysis” as an issue that the public or agencies might comment on during the 30-day period following the publication of a Notice of Intent.

    Additionally, the Agencies propose replacing “NEPA documents” with “environmental documents” in paragraph (i)(3) to be consistent with 40 CFR 1508.10. CEQ uses the term “environmental document” to refer to EIS, EA, finding of no significant impact, and record of decision documents broadly, which also is the Agencies' intent in paragraph (i)(3).

    The Agencies propose to add FRA's contact information to paragraph (j).

    Section 771.113 Timing of Administration Activities

    In paragraph (a), the Agencies propose to add the word “environmental” before the word “studies” for consistency with the term's use in the regulation.

    The Agencies propose to add paragraph (d)(4), which would create an FRA-specific exemption to the paragraph (a)(1) prohibition on proceeding with final design activities, property acquisition, purchase of construction materials or rolling stock, or project construction until the NEPA process is complete. The proposal is consistent with FRA policy and allows FRA to makes certain case-by-case exceptions for the purchase of railroad components or materials that can be used in other projects or resold. This is not a blanket exemption, and FRA would make case-by-case determinations based on the information available at the time to ensure such activities would not improperly influence the outcome of the NEPA process.

    Section 771.115 Classes of Actions

    In paragraph (a)(4), the Agencies propose to change “highway facility” to “transportation right-of-way” for consistency in this section and across modes. This change is not meant to change the meaning of the term.

    The Agencies propose to add paragraph (a)(6), which would provide examples of FRA actions it finds normally require an EIS. Under this proposal, FRA would typically prepare an EIS for “new construction of major railroad lines or facilities (e.g., terminal passenger stations, freight transfer yards, or railroad equipment maintenance facilities) that will not be located within an existing transportation right-of-way.” These examples are generally consistent with FRA's existing NEPA procedures and also the examples of FHWA and FTA actions normally requiring an EIS.

    In paragraph (b), the Agencies propose to add a reference to FRA's CEs in section 771.116.

    Section 771.116 FRA Categorical Exclusions

    The Agencies propose to add a new § 771.116. Although the Agencies collectively propose to add this section, the development of the proposed CEs for each Agency is based on each Agency's particular mission and programs, unique experiences, and existing lists of CEs. As a result, this section focuses on FRA's proposed CEs. One commenter suggests that DOT have one uniform set of CEs and identified specific FHWA CEs that FRA should adopt for its railroad projects. Typically, DOT operating administrations (OA) identify categories of actions appropriate for categorical exclusion based on the individual OA's experience. The FRA has identified and substantiated this proposed list of CEs based on its experience with these categories of actions. However, since many of the FHWA, FRA, and FTA actions are often similar, the actions may be covered in each OA's CE list but with appropriate differences reflecting the experiences of the OAs. Additionally, 49 U.S.C. 304 authorizes the use by one OA of another OA's CE in certain multimodal situations.

    Paragraph (a) of this section proposes to adopt the current text of §§ 771.117(a) and 771.118(a), as modified to apply to FRA. This proposed paragraph would define a CE as an action meeting the definition in the CEQ regulation and, based on FRA's past experience, does not involve significant environmental impacts. Paragraph (b) of this section proposes to describe the circumstances FRA would use to determine whether an activity, normally meeting the requirements of a CE, would require further environmental study. The FRA's proposal to adopt the FTA and FHWA list of unusual circumstances addresses a comment recommending FRA redraft its existing list of circumstances requiring further environmental study (Environmental Procedures, section 4(e)). Proposed paragraph (b) clearly articulates the circumstances requiring further environmental study for FRA's railroad projects and provides consistency with FHWA and FTA.

    One commenter suggests FRA identify a subset of CEs that require documentation and those that do not need “further NEPA approvals by FRA.” The FRA understands this comment as a suggestion to adopt a “(c)” and “(d)” list similar to those used by FHWA and FTA. The FRA considered this approach but does not propose to distinguish between different classes of CEs and will instead continue to use one comprehensive list and decide the appropriate standards for documentation on a project-by-project basis.

    Paragraph (c) of this section proposes to include the activities for categorical exclusion. The proposed list of activities in paragraph (c) is based on the CEs identified in FRA's Environmental Procedures, including those CEs added in 2013. Since 2013, FRA has conducted an internal review of its CEs to ensure their continued appropriate use and usefulness. Based on FRA's internal review and the comments received on the June Notice, paragraph (c) of this section proposes to make minor edits to several of the existing CEs; to eliminate unnecessary or duplicative CEs; and to add two new CEs.

    Support for FRA's proposals is included in a CE substantiation document. The CE substantiation document relies on internal FRA expert opinion, FRA's experience managing projects and other activities related to railroad safety and infrastructure development, and FRA's review of similar CEs used by other DOT OAs and other Federal agencies (often referred to as “comparative benchmarking”). For additional information, including a description of the CEs FRA proposes to eliminate, please see the CE substantiation document, which FRA has included in the docket for public review. The following discussion focuses on the proposed new CEs and those FRA proposes to modify.

    Paragraph (c) proposes no changes to the following CEs (as compared to FRA's current Procedures for Considering Environmental Impacts): Paragraph (c)(2) covering personnel actions; paragraph (c)(6) covering rulemakings issued under section 17 of the Noise Control Act of 1972; paragraph (c)(8) covering hearings, meetings, or public affairs activities; paragraph (c)(16) covering alterations to existing facilities, locomotives, stations, and rail cars to make them accessible for the elderly and persons with disabilities; paragraph (c)(19) covering the installation, repair and replacement of equipment and small structures designed to promote transportation safety, security, accessibility, communication or operational efficiency; paragraph (c)(22) covering the assembly or construction of facilities or stations; and paragraph (c)(23) covering track and track structure maintenance and improvements.

    Proposed paragraph (c)(1) provides a CE addressing administrative procurements, contracts for personal services, and training. Proposed paragraph (c)(3) modifies an existing FRA CE by adding “training” to the list of covered activities.

    Proposed paragraph (c)(3) provides a CE addressing planning or design activities that do not commit FRA to a particular course of action affecting the environment. Proposed paragraph (c)(3) is a modification of an existing FRA CE as it eliminates the limitation that the planning or design activity must be funded through FRA's financial assistance or FRA's own procurement process.

    Proposed paragraph (c)(4) provides a CE addressing localized geotechnical and other investigations that provide information for preliminary design and for environmental analyses and permitting purposes, such as: Drilling test bores for soil sampling; archeological investigations for archeology resources assessment or similar survey; and wetland surveys. This proposed CE covers investigations and surveys that inform environmental analyses and preliminary engineering for rail projects. These activities include geotechnical, geophysical, and other subsurface investigations, pedestrian and ground disturbing archaeological surveys and testing to determine eligibility for the National Register of Historic Places, and wetland surveys for purposes of wetland delineation or jurisdictional determinations. In FRA's experience, the impacts of these activities are generally minor in nature and any impacts are localized to the investigation or survey sites. This CE is consistent with existing FHWA and FTA CEs at 23 CFR 771.117(c)(24) and 23 CFR 771.118(c)(16), respectively. FRA identified these activities as potentially appropriate for categorical exclusion in the June Notice. The FRA received one comment supporting this CE.

    Proposed paragraph (c)(5) provides a CE addressing internal orders, policies, and procedures that FRA is not required to publish in the Federal Register under the Administrative Procedure Act, 5 U.S.C. 552(a)(1). This proposed CE is similar to an existing FRA CE. However, proposed paragraph (c)(5) would add “policies” to the list of activities covered by the CE.

    Proposed paragraph (c)(7) provides a CE addressing the provision of financial assistance for a project where the financial assistance would fund a completed activity. For example, FRA may be involved in projects where an applicant requests financial assistance to refinance a loan. In that case, the agency's decision is merely a financial transaction that would not itself lead to any environmental impacts. The FRA identified these activities as potentially being appropriate for categorical exclusion in the June Notice. FRA received one comment supporting this CE.

    Proposed paragraph (c)(9) provides a CE addressing maintenance or repair of existing railroad equipment. The proposed CE is a modified version of an existing FRA CE. Specifically, paragraph (c)(9) would move the phrase “existing railroad facilities” to the beginning of the CE. This clarifies that the list including equipment; track and bridge structures; and electrification, communication, signaling or security facilities are non-exclusive examples of existing railroad facilities. Paragraph (c)(9) would also clarify the scope of the CE to include “repair” activities. In FRA's experience, the scope of the potential impacts resulting from repair activities is generally similar to those that might occur during routine maintenance. The primary difference between the two is that unlike maintenance, repair activities may not occur on a regular or reoccurring basis. Paragraph (c)(9) would also remove the definition of maintenance because it is unnecessary. One commenter suggests modifying paragraph (c)(9) to add a reference to right-of-way in the definition of “maintenance.” However, this modification is unnecessary since FRA's proposal would eliminate the definition of maintenance.

    Proposed paragraph (c)(10) provides a CE addressing the emergency repair or replacement of an essential rail facility damaged by a natural disaster or catastrophic failure. This proposed CE is similar to an existing FRA CE; however, proposed paragraph (c)(10) would clarify that repairs following an emergency are also covered by the CE; define repair and replacement to include reconstruction, restoration, or retrofitting; clarify that when conducting the repair and replacement, the rail facility may be upgraded as necessary to meet existing codes and standards; remove the unnecessary limitation that the CE apply only to “temporary” replacements; and remove the reference to the immediacy of the repairs in relation to the disaster or catastrophic failure. One commenter suggests that FRA adopt the “emergency repairs” CE applied by FHWA and FTA at 23 CFR 771.117(c)(9) and 23 CFR 771.118(c)(11), respectively. In this SNPRM, FRA proposes modifications to its existing emergency repair CE, including the incorporation of relevant language and concepts from 23 CFR 771.117(c)(9) and 23 CFR 771.118(c)(11).

    Proposed paragraph (c)(11) provides a CE addressing operating assistance to a railroad to continue existing service or an increase in service to meet demand. This proposed CE is similar to an existing FRA CE. The existing CE applies if the assistance will not result in a change in the impact or effect to the environment whereas proposed paragraph (c)(11) would modify the CE to focus on whether the project would result in significant changes to traffic density. The FRA finds focusing on change in traffic density for a CE covering operating assistance is more appropriate than the current imprecise limitation that the assistance will not result in a change in the effect on the environment.

    One commenter suggests revising proposed paragraph (c)(12) by removing the word “minor” before “rail line additions,” adding the phrase “or within existing right-of-way,” and modifying the CE's limitations by adding the requirement that the project can be constructed in less than 6 months and substantially within the existing right-of-way, and will not have additional significant environmental impacts beyond the existing rail yard or existing right-of-way. The FRA will not adopt the suggested change to remove “minor” because FRA cannot substantiate such an expansion of the CE. However, FRA proposes to adopt the suggested phrase “or within existing right-of-way” since it is consistent with the current scope of the CE and appropriately limits construction to within the existing right-of-way. The FRA also proposes to keep its existing limitations (i.e., “[the] additions are not inconsistent with existing zoning, do not involve acquisition of a significant amount of right-of-way, and do not significantly alter the traffic density characteristics of the existing rail lines or rail facilities.”) which are consistent with FRA's experience with railroad projects rather than adopt the commenter's suggestion which unnecessarily narrows the applicability of the CE.

    Proposed paragraph (c)(13) provides a CE addressing the acquisition, transfer and right to use real property and certain railroad infrastructure. The proposed CE would modify an existing version of this FRA CE by eliminating the reference to “existing railroad equipment” because acquisition of equipment would be covered by the CE proposed in paragraph (c)(18). Proposed paragraph (c)(13) also would allow the acquisition of “real property.” The FRA proposes this addition because acquisition alone does not impact the environment. In addition, the proposed CE would move the phrase “existing railroad facilities” to the beginning of the CE to clarify that the list including equipment; track and bridge structures; and electrification, communication, signaling or security facilities are non-exclusive examples of existing railroad facilities. This is also consistent with the proposed structure of paragraph (c)(9). The proposed paragraph (c)(13) would also add “transfer” to the list of covered activities to accommodate potential FRA involvement in the transfer of real property or existing railroad facilities. This is consistent with an FTA CE at 23 CFR 771.118(c)(6).

    Proposed paragraph (c)(14) provides a CE addressing research, development, and demonstration activities. This proposed CE is similar to an existing FRA CE. However, proposed paragraph (c)(14) would expand the scope of the existing CE to include research, development, and demonstration activities beyond the development of signal, communication, or train control systems. While in the past this CE was almost exclusively used for the testing of train control systems, including Positive Train Control, FRA funds other research, development, and demonstration activities similar in scope, but involving different rail systems or infrastructure, are also appropriate for categorical exclusion.

    Proposed paragraph (c)(15) provides a CE addressing the promulgation of rules, the issuance of policy statements, the waiver of modification of existing regulatory requirements, and discretionary approvals. This proposed CE is similar to an existing FRA CE; however, proposed paragraph (c)(15) would add the waiver or modification of existing regulatory requirements and discretionary approvals, and remove the limitation that these activities be related to railroad safety. This proposed CE would retain the existing limitation for increases in environmental impacts and would not be used if FRA finds the activity would significantly increase emissions of air or water pollutants or noise. However, FRA proposes striking the clause in the existing CE reading “or increased traffic congestion in any mode of transportation.”

    Proposed paragraph (c)(17) provides a CE addressing rehabilitation, reconstruction, removal, construction, or replacement of bridges. This proposed CE is similar to an existing FRA CE but adds “removal” of bridges to the scope of covered activities. The FRA finds it is sometimes necessary to remove old railroad bridges without simultaneously building a new bridge. In those cases, the removal of the bridge is not substantially different then construction, rehabilitation, or replacement activities and would have similar types of impacts. The FRA is also proposing minor edits to the existing FRA CE for clarity.

    Proposed paragraph (c)(18) addresses acquisition, rehabilitation, transfer, or maintenance of vehicles or equipment. The proposed CE is similar to an existing FRA CE but moves the examples of vehicles and equipment to precede the CE's proposed limitation. The FRA also proposes to focus the CE's limitation on whether the activity significantly alters the traffic density characteristics of an existing rail line rather than whether the activity causes a substantial increase in the use of infrastructure within the existing right-of-way. This proposed change will create consistency with other FRA CEs.

    Proposed paragraph (c)(20) provides a CE addressing environmental restoration, remediation and pollution prevention activities. This proposed CE is similar to an existing FRA CE. However, proposed paragraph (c)(20) would remove the limitation that activities occur “in or proximate to existing and former railroad track, infrastructure, stations, or facilities.” In many cases, environmental restoration and natural resource management activities do not occur in close proximity to existing or former railroad track, infrastructure, stations, or facilities. Instead, these activities—including mitigation—must frequently be located to optimize the ecological value or benefit of the activity and are sited in consultation with, or at the direction of, various permitting agencies.

    One commenter suggests FRA adopt a number of existing FHWA CEs from the “(c)-list” with minor modifications to accommodate railroad projects. Most of the activities covered by the identified FHWA CEs are already included in one or more of FRA's proposed CEs. With respect to the FHWA CEs identified by the commenter, the activities described in § 771.117(c)(7) (landscaping) and § 771.117(c)(6) (installation of noise barriers or alternations to existing publically owned buildings to provide for noise reduction) are included in the non-exclusive list of activities in proposed paragraph (c)(20); the activities described in § 771.117(c)(8)) (installation of fencing, signs, pavement markings, small passenger shelters, traffic signals, and railroad warning devises where no substantial land acquisition or traffic disruption will occur) and § 771.117(c)(27) (highway safety or traffic operations improvement projects, including the installation of ramp metering control devices and lighting, if the project meets the constraints in paragraph (e) of the section) are included in proposed paragraph (c)(19); the activities described in § 771.117(c)(14)) (bus and rail car rehabilitation), § 771.117(c)(17) (the purchase of vehicles where the use of the vehicles can be accommodated by existing facilities or new facilities which themselves are within a CE), and § 771.117(c)(19) (purchase and installation of operating or maintenance equipment to be located within the transit facility and with no significant impacts off the site) are covered by proposed FRA CE paragraph (c)(18); the activities described in § 771.117(c)(18) (track and rail bed maintenance and improvements when carried out within the existing right-of-way) are covered by proposed paragraph (c)(22); and the activities described in § 771.117(c)(28) (bridge rehabilitation, reconstruction, or replacement or the construction of grade separation to replace existing at-grade railroad crossings, if the actions meet the constraints in paragraph (e) of the section) are covered by proposed paragraph (c)(17).

    The same commenter also suggests FRA adopt § 771.117(c)(2) (approval of utility installations along or across a transportation facility). At this time and based on FRA's experience, FRA does not have a sufficient need for a CE addressing utility installations. To the extent utility work is being completed as part of an FRA action, the work is typically incidental to a railroad project and as such is generally analyzed in an environmental document (which may be a CE if appropriate) for that project. The commenter also suggests FRA adopt § 771.117(d)(1) (modernization of a highway by resurfacing, restoration, rehabilitation, reconstruction, adding shoulders, or adding auxiliary lanes (e.g. parking, weaving, turning, climbing)). The FRA is proposing CEs similar in scope but directly applicable to railroad projects (e.g., proposed paragraphs (c)(9) and (22)).

    One commenter suggests FRA modify paragraph (c)(16) to allow alterations to existing facilities, locomotives, stations, and rail cars even where the alterations are not for the purpose of making them accessible for the elderly and persons with disabilities. This modification would change the scope of the CE FRA added in 2013 based on FRA's experience with projects intended to improve accessibility. However, FRA notes that these same activities may be covered by another FRA CE (e.g., proposed paragraph (c)(18)).

    One commenter suggests FRA adopt one FHWA “(d)-list” CE modified slightly to accommodate railroad projects. Specifically, the commenter suggests FRA adopt § 771.117(d)(8) (construction of new bus storage and maintenance facilities in areas used predominantly for industrial or transportation purposes where such construction is not inconsistent with existing zoning and located on or near a street with adequate capacity to handle anticipated bus and support vehicle traffic). These activities are included in proposed paragraph (c)(21).

    One commenter asks FRA to address the authority provided by MAP-21 section 1308 and FAST Act section 1315 allowing State DOTs to enter into agreements with FHWA to make CE determinations on FHWA's behalf. The FRA does not have the legal authority to participate in this program and will therefore not include it in this section. The same commenter suggests that FRA address 49 U.S.C. 304, Application of Categorical Exclusions for Multimodal Projects. That section does not create new CEs but rather sets up a process by which OAs can use the CEs of another OA under certain multimodal project circumstances. Since this process applies to all OAs, not just the Agencies, it is appropriately addressed by separate guidance, likely issued by DOT's Office of the Secretary, and not in this SNPRM.

    One commenter also asked that FRA apply its CEs less strictly and exercise more flexibility in considering which projects qualify as a CE. The FRA will continue to review each FRA action on an individual basis to ensure the action meets the definition of one or more FRA CEs and does not involve circumstances requiring further environmental study. Where there are unusual circumstances present, FRA will, in cooperation with the applicant, conduct appropriate environmental studies to determine whether application of the CE is still proper.

    Two commenters supported the CEs FRA proposed in the June Notice. The FRA appreciates the commenters' support.

    Section 771.117 FHWA Categorical Exclusions and Section 771.118 FTA Categorical Exclusions

    The Agencies propose to modify paragraph (a) under §§ 771.117 and 771.118 to begin with “CEs” because the Agencies introduce the acronym earlier in the regulation. Additionally, the Agencies propose clarifying in the first sentence of §§ 771.117(a) and 771.118(a) that the actions are based on FHWA's and FTA's past experience, respectively. These are non-substantive changes providing clarity to paragraph (a) in both sections.

    Following 3 years of implementation, FHWA and FTA request comments regarding the definition of “operational right-of-way” for the CEs located at 23 CFR 771.117(c)(22) and 771.118(c)(12), respectively. As currently defined in the regulation and as discussed in the January 13, 2014, final rule establishing the CEs (see 79 FR 2111-2112), the Agencies attemped to define “operational right-of-way” broadly with few conditions, thereby allowing flexibility in the application of those CEs. The Agencies are soliciting feedback from the public on how operational right-of-way is currently defined in the regulation and request detailed proposals on ways to further clarify the existing definition. Is the scope of “operational right-of-way” appropriately broad? Should fewer conditions be applied? If so, what conditions? Can the definition be revised to allow for greater flexibility in the application of the CE? If so, how? Please provide specific examples and any data (e.g., cost and benefit information) to help justify your proposal.

    Section 771.119 Environmental Assessments

    The Agencies propose to add a new paragraph (a)(3) to address, for FRA, situations when a private entity proposes a project that can be analyzed in an EA and there is no applicant as defined in § 771.107. In those situations, this paragraph would give FRA the discretion to require the project sponsor to procure and use a third party contractor, as described in § 771.109(e), to prepare the EA. The Agencies also propose to add a requirement for contractors to execute a conflict of interest disclosure statement similar to the language in paragraph (a)(2) (previously proposed paragraph (a)(ii)), applicable to FTA projects and which FHWA and FTA proposed in the November 2015 NPRM.

    The Agencies also propose to clarify in paragraph (d) that an EA must be made available for public inspection at the applicant's office and at the appropriate Administration field office, or for FRA at Headquarters offices, for 30 days. This does not change any substantive or procedural requirement.

    Lastly, the Agencies propose to fix a typo in paragraph (h) by moving the period outside the last parenthesis after “(See 40 CFR 1501.4(e)(2)).”

    Section 771.123 Draft Environmental Impact Statements

    In paragraphs (a) and existing (b) (proposed paragraph (b)(1), as discussed below), the Agencies propose modifying the existing language in the last sentence of each paragraph to encourage announcing the intent to prepare an EIS by the appropriate means at the State level, as well as the local level.

    The Agencies propose renumbering paragraph (b) as paragraph (b)(1) and adding a new paragraph (b)(2) regarding timing of the coordination plan in relation to notice of intent publication. This proposal reflects the changes to 23 U.S.C. 139(g)(1)-coordination plan.

    In paragraph (c), the Agencies propose replacing “discuss” with “document” in the second sentence, which more accurately describes the action needing to occur. Additionally, in paragraph (c), the Agencies propose adding language to reflect the FAST Act changes to 23 U.S.C. 139(f)(4) regarding the range of alternatives. The proposed language would fulfill the statutory intent of mandating use of the range of alternatives for all Federal environmental reviews and permit processes, to the maximum extent practicable and consistent with Federal law, while directing the reader to the statute for the specific exception requirements. The Agencies propose inserting after the second sentence a statement that the range of alternatives considered for further study shall be used for all Federal environmental reviews and permit processes, to the maximum extent practicable and consistent with Federal law, unless the lead and participating agencies agree to modify the alternatives in order to address significant new information and circumstances or to fulfill NEPA responsibilities in a timely manner, in accordance with 23 U.S.C. 139(f)(4)(B).

    Section 771.124 Final Environmental Impact Statement/Record of Decision

    The Agencies propose two non-substantive changes in this section. In paragraph (a)(1), the Agencies propose to replace “record of decision” with “ROD” because the term is introduced earlier in the regulation. In paragraph (a)(1)(ii), the Agencies propose deleting “and” after “environmental concerns” because it is awkward and unnecessary.

    Additionally, the Agencies propose inserting “pursuant to 40 CFR 1503.4(c)” at the end of the clause “an errata sheet may be attached to the draft statement” in paragraph (a)(3) to provide consistency with 23 CFR 771.125(g).

    Section 771.125 Final Environmental Impact Statements

    While the Agencies propose to add FRA to part 771, the Agencies are not proposing to change the general requirement in paragraph (c) that the Agencies submit certain Final EISs to the Administration's Headquarters for prior concurrence. The FRA currently administers its environmental program from Headquarters. If FRA establishes field offices in the future, Headquarters' prior concurrence for the actions described in paragraph (c) will still be required.

    In addition, in paragraph (d) the Agencies propose to replace “grant request” with “request for financial assistance” to clarify that approval of the final EIS does not commit the Administration to provide any future financial assistance (not just grant funding) for the preferred alternative.

    Section 771.129 Re-Evaluations

    In paragraph (c), the Agencies proposed re-inserting the sentence regarding consultations being documented when determined necessary by the Administration, which is existing language in 23 CFR 771.129(c) but was inadvertently deleted when the November 2015 NPRM was published for public review and comment. This is a non-substantive change.

    Section 771.131 Emergency Action Procedures

    The Agencies propose capitalizing “headquarters” in order to be consistent with other references to Headquarters in the regulation; this is a non-substantive change.

    The Agencies also propose to add a reference to FRA's CE covering the response to emergencies and disasters.

    Section 771.139 Limitation on Actions

    The Agencies propose modifying the title and text of this section by replacing “actions” with “claims” to address a potential inconsistency with the definition of “Action” in 23 CFR 771.107(b). The Agencies seek to clarify that the limitation is on legal claims arising out of an “Action,” not on an “Action” itself. This is a non-substantive change. Additionally, the Agencies propose adding the word “time” before the word “barred” throughout this section to clarify that this is a time limitation on claims. This is also a non-substantive change.

    The Agencies propose modifying this section to clearly describe the different limitations on claims. The Agencies propose to clarify the 150-day limitation is limited to FHWA and FTA. The Agencies also propose to add a sentence immediately following addressing FRA's 2-year limitation on claims for railroad projects requiring the approval of the Secretary under NEPA created by section 11503 of the FAST Act (49 U.S.C. 24201(a)(4)). Furthermore, the Agencies would revise the second reference to 150 days in the existing language to broadly refer to the two standards by stating “These time periods do not lengthen any shorter time period . . .”

    The Agencies also propose to delete the footnote in this section to be consistent with the November 2015 NPRM. In that NPRM the Agencies proposed removing references to specific guidance documents, such as the footnote in this section, in order to maximize flexibility of this regulation. The Agencies are currently updating the “SAFETEA-LU Environmental Review Process: Final Guidance,” so the current reference is outdated.

    Section 4(f) Regulation Changes (Part 774) Section 774.3 Section (f) Approvals

    As part of the review of regulatory provisions in drafting this SNPRM, the Agencies are proposing to modify the footnote in paragraph (d) to refer the reader to FHWA's Section 4(f) Programmatic Evaluations Web page (www.environment.fhwa.dot.gov/4f/4fnationwideevals.asp) rather than listing the Section 4(f) programmatic evaluations in the regulation. By providing a Web page, the reader would have access to the most recent list of programmatic evaluations available, and the regulation would stay current whenever the Agencies revise the list of Section 4(f) programmatic evaluations. In addition, the Web site may be used to provide guidance on use of the programmatic approaches.

    Section 774.13 Exceptions

    This section sets forth a number of exceptions to otherwise applicable Section 4(f) requirements. The exceptions are either founded in statute or reflect case law and longstanding practices governing when to apply Section 4(f).

    Paragraph (a) is an exception from the Section 4(f) process for projects involving work on a transportation facility that is itself historic. This exception reflects the Agencies' longstanding policy that when a project involves a historic facility that is already dedicated to a transportation purpose and does not adversely affect the historic qualities of that facility, then the project does not “use” the facility within the meaning of Section 4(f). The exception applies to all types of transportation facilities, including elements, structures, and features of a highway, transit, or rail facility.

    In the FAST Act, Congress created two new exceptions from Section 4(f) for historic transportation facilities in certain circumstances. The Agencies propose to amend paragraph (a) to incorporate the new exceptions. Specifically, the Agencies propose to incorporate the two new exceptions from the Section 4(f) process for historic transportation facilities by renumbering paragraph (a) as paragraph (a)(3) and adding new paragraphs (a)(1) and (2). The Agencies propose to add to paragraph (a) the introductory phrase “the use of historic transportation facilities in certain circumstances:” to match the other existing exceptions in section 774.13.

    The Agencies propose new paragraph (a)(1) to incorporate section 1303 of the FAST Act which exempts from Section 4(f) the use of common concrete and steel bridges and culverts, built after 1945, that the Advisory Council on Historic Preservation exempted from individual Section 106 review under a Program Comment.1 The Program Comment applies to bridges lacking distinction, not previously listed or determined eligible for listing on the National Register, and not located in or adjacent to historic districts, and only becomes available in a particular State after the State Department of Transportation, the State Historic Preservation Officer, and the applicable FHWA Division office consult and reach agreement on whether the State has any exceptional bridges that the Program Comment will not cover. While FHWA proposed the Program Comment, it can be used by any Federal agency, including FTA and FRA.

    1 “Program Comment Issue for Streamlining Section 106 Review for Actions Affecting Post-1945 Concrete and Steel Bridges,” 77 FR 68790 (Nov. 16, 2012).

    The intent of this new Section 4(f) exception is to eliminate unnecessary Section 4(f) processes for the hundreds of thousands of common “cookie-cutter” bridges constructed after 1945, which are not exceptional, in those States that have reported the results of the consultation required by the Program Comment. To date, 35 States and Puerto Rico have completed this requirement, as reflected on the Bridge Program Comment Excepted Bridges list available at https://www.environment.fhwa.dot.gov/histpres/bridges_list.asp.

    The Agencies propose new paragraph (a)(2) to incorporate section 11502 of the FAST Act, which exempts improvements to historic railroad and transit lines and their elements from Section 4(f).

    The Agencies interpret the words “improvements to” in section 11502 as inclusive of the other activities listed in section 11502: Maintenance, rehabilitation, or operation of railroad or rail transit lines. For clarity, the Agencies expanded the list of examples of activities that may occur on elements of railroad or rail transit lines that may improve the transportation function of those railroad and rail transit lines. The Agencies believe that preservation, modernization, reconstruction, and replacement of an element of a historic transportation facility are types of “improvements” to railroad and rail transit lines and thus propose to include these activities in the exception. The Agencies further believe that any type of safety improvement to a highway crossing of an active railroad or transit line—whether at grade or grade separated—should be considered an “improvement to” the railroad or transit line by virtue of making travel safer for the public, and thus would be covered by the new exception.

    While the Agencies chose not to further define the terms “railroad or rail transit lines or elements thereof” within the regulation text, they view these terms as including all elements related to the historic or current transportation function such as railroad or rail transit track, elevated support structures, rights-of-way, substations, communication devices, and maintenance facilities. The Agencies do not propose to include historic sites unrelated to transportation but located within or adjacent to railroads or rail transit lines, or elements thereof in this exception. Examples of such exclusions include archeological sites unrelated to railroad or rail transit and sites of traditional religious and cultural importance to Indian tribes.

    Per section 11502 of the FAST Act, all stations, and certain bridges and tunnels, are not included in the proposed paragraph (a)(2) exception. Specifically, bridges and tunnels on railroad lines that have been abandoned, as determined by the Surface Transportation Board through the process described in 49 CFR part 1152, are not included in the proposed exception, except for bridges and tunnels on railroads that have been railbanked, as defined in 16 U.S.C. 1247(d) or otherwise preserved for future transportation use. In addition, the Agencies are proposing that bridges and tunnels on rail transit lines that are not in use and over which regular service has never operated are not included in the exception.

    The proposed new paragraph (a)(3) reads as set out in the regulatory text below. This paragraph mirrors existing § 774.13(a). The Agencies are not proposing to change the short list of activities: “restoration, rehabilitation, or maintenance” that are included in the existing regulatory text now located under paragraph (a)(3), but the Agencies specifically request that commenters consider whether the list of covered activities should be expanded to mirror the activities included in paragraph (a)(2) which is proposed to read: “maintenance, preservation, rehabilitation, operation, modernization, reconstruction, and replacement.” Under this option, there would still be two important conditions for the exception to apply under paragraph (a)(3): The Agencies must determine through a Section 106 consultation that the work would not adversely affect the historic qualities of the historic transportation facility that cause it to be listed on or eligible for the National Register of Historic Places and the official(s) with jurisdiction must not object to that determination. Having the same list of activities in both subparagraphs is desirable because it would simplify administration of the exception. The Agencies seek comment, including examples, regarding whether the two conditions in paragraph (a)(3) would adequately protect significant historic transportation facilities in the case of projects to operate, modernize, reconstruct or replace the transportation facility.

    Section 774.15 Constructive Use Determinations

    In paragraph (f)(2), the Agencies propose to reorganize the paragraph and to add railroad projects to the sentence referencing the FTA guidelines for transit noise and vibration assessments because FRA has applied FTA criteria to evaluate noise impacts resulting from railroad operations for decades. In addition, the Agencies propose to add a new situation in which a constructive use would not occur. Specifically, the Agencies are proposing to add a reference to high-speed ground transportation projects having moderate noise impacts according to FRA's established high-speed ground transportation noise and vibration guidelines. The FRA first developed these guidelines, available at https://www.fra.dot.gov/eLib/Details/L04090, in the late 1990s and they apply to train operations over 90 miles per hour.

    Section 774.17 Definitions

    In the definition of “Administration” the Agencies propose to add FRA.

    In the definition of “CE” the Agencies propose to add a reference to FRA's and FTA's CEs in 23 CFR 771.116 and 23 CFR 771.118, respectively.

    49 CFR Part 264—Environmental Impact and Related Procedures

    The Agencies propose to amend part 264 in 49 CFR to include references to 23 CFR part 771 and 23 CFR part 774. A cross reference would assist potential FRA applicants, State and Federal agencies, and the public.

    Rulemaking Analyses and Notices Statutory/Legal Authority for This Rulemaking

    The Agencies derive explicit authority for this rulemaking action from 49 U.S.C. 322(a), which provides authority to “[a]n officer of the Department of Transportation [to] prescribe regulations to carry out the duties and powers of the officer.” The Secretary delegated this authority to prescribe regulations in 49 U.S.C. 322(a) to the Agencies' Administrators under 49 CFR 1.81(a)(3), The Secretary also delegated authority to the Agencies' Administrators to implement NEPA and Section 4(f), the statutes implemented by this rule, in 49 CFR 1.81(a)(4) and (5). Moreover, the CEQ regulations that implement NEPA provide at 40 CFR 1507.3 that agencies shall continue to review their policies and NEPA implementing procedures and revise them as necessary to ensure full compliance with the purposes and provisions of NEPA.

    Rulemaking Analyses and Notices

    The Agencies will consider all comments received before the close of business on the comment closing date indicated above and will make such comments available for examination in the docket (FHWA-2015-0011) at regulations.gov. Comments received after the comment closing date will be filed in the docket and the Agencies will consider them to the extent practicable. In addition to late comments, the Agencies will also continue to file relevant information in the docket as it becomes available after the comment period closing date. Interested persons should continue to examine the docket for new material. The Agencies may publish a final rule at any time after close of the comment period.

    Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review), Executive Order 13771 (Reducing Regulation and Controlling Regulatory Costs), and DOT Regulatory Policies and Procedures

    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). The Agencies have determined preliminarily that this action would not be a significant regulatory action under section 3(f) of Executive Order 12866 and would not be significant within the meaning of U.S. Department of Transportation regulatory policies and procedures (44 FR 11032). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. The Agencies anticipate that the economic impact of this rulemaking would be minimal. The Agencies do not have specific data to assess the monetary value of the benefits from the proposed changes because such data does not exist and would be difficult to develop. This proposed rule is not expected to be an Executive Order 13771 regulatory action because this proposed rule is not significant under Executive Order 12866.

    This SNPRM proposes to modify 23 CFR parts 771 and 774 in order to be consistent with changes introduced by MAP-21 and the FAST Act, make the regulation more consistent with the FHWA and FTA practices, and add FRA to parts 771 and 774. These proposed changes would not adversely affect, in any material way, any sector of the economy. In addition, these changes would not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required. The Agencies anticipate that the changes in this SNPRM would enable projects to move more expeditiously through the Federal review process and would reduce the preparation of extraneous environmental documentation and analysis not needed for compliance with NEPA or Section 4(f) while still ensuring that projects are built in an environmentally responsible manner and consistent with Federal law. The Agencies request comment, including data and information on the experiences of project sponsors, on the likely effects of the changes being proposed.

    Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), the Agencies have evaluated the effects of this proposed rule on small entities and anticipate that this action would not have a significant economic impact on a substantial number of small entities. “Small entities” include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations under 50,000. The proposed revisions are expected to expedite environmental review and thus are anticipated to be less burdensome than any current impact on small business entities.

    Unfunded Mandates Reform Act of 1995

    This proposed rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). This proposed rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $148.1 million or more in any one year (2 U.S.C. 1532). Further, in compliance with the Unfunded Mandates Reform Act of 1995, the Agencies will evaluate any regulatory action that might be proposed in subsequent stages of the proceeding to assess the effects on State, local, and tribal governments and the private sector.

    Executive Order 13132 (Federalism Assessment)

    Executive Order 13132 requires agencies to ensure meaningful and timely input by State and local officials in the development of regulatory policies that may 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. The Agencies analyzed this proposed action in accordance with the principles and criteria contained in Executive Order 13132 and determined that it would not have sufficient federalism implications to warrant the preparation of a federalism assessment. The Agencies have also determined that this proposed action would not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions. The Agencies invite State and local governments with an interest in this rulemaking to comment on the effect that adoption of specific proposals may have on State or local governments.

    Executive Order 13175 (Tribal Consultation)

    The Agencies have analyzed this action under Executive Order 13175, and determined that it would not have substantial direct effects on one or more Indian tribes; would not impose substantial direct compliance costs on Indian tribal governments; and would not preempt tribal law. Therefore, a tribal summary impact statement is not required.

    Executive Order 13211 (Energy Effects)

    The Agencies have analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The Agencies have determined that this action is not a significant energy action under Executive Order 13211 because it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects under Executive Order 13211 is not required.

    Executive Order 12372 (Intergovernmental Review)

    The DOT's regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities (49 CFR part 17) apply to this program. Accordingly, the Agencies solicit comments on this issue.

    Paperwork Reduction Act

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501, et seq.), Federal agencies must obtain approval from the Office of Management and Budget for each collection of information they conduct, sponsor, or require through regulations. The Agencies have determined that this proposal does not contain collection of information requirements for the purposes of the PRA.

    Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

    Executive Order 12898 (Environmental Justice)

    Executive Order 12898, Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations, and DOT Order 5610.2(a), 91 FR 27534 (May 10, 2012) (available online at www.fhwa.dot.gov/environment/environmental_justice/ej_at_dot/order_56102a/index.cfm), require DOT agencies to achieve environmental justice (EJ) as part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects, including interrelated social and economic effects, of their programs, policies, and activities on minority populations and low-income populations in the United States. The DOT Order requires DOT agencies to address compliance with the Executive Order and the DOT Order in all rulemaking activities. In addition, FHWA and FTA have issued additional documents relating to administration of the Executive Order and the DOT Order. On June 14, 2012, FHWA issued an update to its EJ order, FHWA Order 6640.23A, FHWA Actions to Address Environmental Justice in Minority Populations and Low Income Populations (available online at www.fhwa.dot.gov/legsregs/directives/orders/664023a.cfm). The FTA also issued an update to its EJ policy, FTA Policy Guidance for Federal Transit Recipients, 77 FR 42077 (July 17, 2012) (available online at http://www.fta.dot.gov/legislation_law/12349_14740.html).

    The Agencies have evaluated this proposed rule under the Executive Order, the DOT Order, the FHWA Order, and the FTA Circular. The Agencies have determined that the proposed changes to 23 CFR parts 771 and 774, if finalized as proposed, would not cause disproportionately high and adverse human health and environmental effects on minority or low income populations.

    At the time the Agencies apply the NEPA implementing procedures in 23 CFR part 771, the Agencies would have an independent obligation to conduct an evaluation of the proposed action under the applicable EJ orders and guidance to determine whether the proposed action has the potential for EJ effects. The rule would not affect the scope or outcome of that EJ evaluation. In any instance where there are potential EJ effects resulting from a proposed Agency action covered under any of the NEPA classes of action in 23 CFR part 771, public outreach under the applicable EJ orders and guidance would provide affected populations with the opportunity to raise any concerns about those potential EJ effects. See DOT Order 5610.2(a), FHWA Order 6640.23A, and FTA Policy Guidance for Transit Recipients (available at links above). Indeed, outreach to ensure the effective involvement of minority and low income populations where there is potential for EJ effects is a core aspect of the EJ orders and guidance. For these reasons, the Agencies have determined that no further EJ analysis is needed and no mitigation is required in connection with the proposed revisions to the Agencies' NEPA and Section 4(f) implementing regulations (23 CFR parts 771 and 774).

    Executive Order 13045 (Protection of Children)

    The Agencies have analyzed this action under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The Agencies certify that this action would not be an economically significant rule and would not cause an environmental risk to health or safety that may disproportionately affect children.

    Executive Order 12630 (Taking of Private Property)

    The Agencies do not anticipate that this action would affect a taking of private property or otherwise have taking implications under Executive Order 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights.

    National Environmental Policy Act

    Agencies are required to adopt implementing procedures for NEPA that establish specific criteria for, and identification of, three classes of actions: those that normally require preparation of an EIS; those that normally require preparation of an EA; and those that are categorically excluded from further NEPA review (40 CFR 1507.3(b)). The CEQ regulations do not direct agencies to prepare a NEPA analysis or document before establishing agency procedures (such as this regulation) that supplement the CEQ regulations for implementing NEPA. The changes proposed in this rule are part of those agency procedures, and therefore establishing the proposed changes does not require preparation of a NEPA analysis or document. Agency NEPA procedures are generally procedural guidance to assist agencies in the fulfillment of agency responsibilities under NEPA, but are not the agency's final determination of what level of NEPA analysis is required for a particular proposed action. The requirements for establishing agency NEPA procedures are set forth at 40 CFR 1505.1 and 1507.3.

    Regulation Identifier Number

    A regulation identifier number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

    List of Subjects 23 CFR Part 771

    Environmental review process, Environmental protection, Grant programs—transportation, Highways and roads, Historic preservation, Programmatic approaches, Public lands, Railroads, Recreation areas, Reporting and recordkeeping requirements.

    23 CFR Part 774

    Environmental protection, Grant programs—transportation, Highways and roads, Historic preservation, Mass transportation, Public lands, Railroads recreation areas, Reporting and recordkeeping requirements, Wildlife refuges.

    49 CFR Part 264

    Environmental impact statements, Environmental review process, Environmental protection, Grant programs—transportation, Programmatic approaches, Railroads, Reporting and recordkeeping requirements.

    49 CFR Part 622

    Environmental impact statements, Environmental review process, Grant programs—transportation, Historic preservation, Programmatic approaches, Public lands, Public transportation, Recreation areas, Reporting and recordkeeping requirements, Transit.

    Issued in Washington, DC, under authority delegated in 49 CFR 1.85 and 1.91:

    Brandye L. Hendrickson, Acting Administrator, Federal Highway Administration. Heath Hall, Acting Administrator, Federal Railroad Administration. Jane Williams, Acting Administrator, Federal Transit Administration.

    In consideration of the foregoing, the Agencies propose to amend title 23, Code of Federal Regulations parts 771 and 774, and title 49, Code of Federal Regulations parts 264 and 622, as follows:

    Title 23—Highways PART 771—ENVIRONMENTAL IMPACT AND RELATED PROCEDURES 1. Revise the authority citation for part 771 to read as follows: Authority:

    42 U.S.C. 4321 et seq.; 23 U.S.C. 106, 109, 128, 138, 139, 315, 325, 326, and 327; 49 U.S.C. 303; 40 CFR parts 1500 through 1508; 49 CFR 1.81, 1.85, and 1.91; Pub. L. 109-59, 119 Stat. 1144, Sections 6002 and 6010; Pub. L. 112-141, 126 Stat. 405, Sections 1315, 1316, 1317, 1318, and 1319; and Public Law 114-94, 129 Stat. 1312, Sections 1314 and 1432.

    2. Revise § 771.101 to read as follows:
    § 771.101 Purpose.

    This regulation prescribes the policies and procedures of the Federal Highway Administration (FHWA), the Federal Railroad Administration (FRA), and the Federal Transit Administration (FTA) for implementing the National Environmental Policy Act of 1969 as amended (NEPA), and supplements the NEPA regulation of the Council on Environmental Quality (CEQ), 40 CFR parts 1500 through 1508 (CEQ regulation). Together these regulations set forth all FHWA, FRA, FTA and Department of Transportation (DOT) requirements under NEPA for the processing of highway, public transportation, and railroad projects. This regulation also sets forth procedures to comply with 23 U.S.C. 109(h), 128, 138, 139, 325, 326, and 327; 49 U.S.C. 303 and 5323(q); Public Law 112-141, 126 Stat. 405, section 1301 as applicable; and Public Law 114-94, 129 Stat. 1312, section 1304.

    3. Further amend § 771.105, as proposed to be amended at 80 FR 72624 (November 20, 2015), by removing the introductory text and revising paragraphs (a), (b), and the first sentence in (e)(2) to read as follows:
    § 771.105 Policy.

    (a) To the maximum extent practicable and consistent with Federal law, all environmental investigations, reviews, and consultations be coordinated as a single process, and compliance with all applicable environmental requirements be reflected in the environmental review document required by this regulation.1

    1 FHWA, FRA, and FTA have supplementary guidance on environmental documents and procedures for their programs available on the Internet at http://www.fhwa.dot.gov, http://www.fra.dot.gov, and http://www.fta.dot.gov, or in hardcopy by request.

    (b) Programmatic approaches be developed for compliance with environmental requirements (including the requirements found at 23 U.S.C. 139(b)), coordination among agencies and/or the public, or to otherwise enhance and accelerate project development.

    (e) * * *

    (2) The proposed mitigation represents a reasonable public expenditure after considering the impacts of the action and the benefits of the proposed mitigation measures. * * *

    4. Further amend § 771.107, as proposed to be amended at 80 FR 72624 (November 20, 2015), by revising the defintions for “Action,” “Administration,” and “Administration action” to read as follows:
    § 771.107 Definitions.

    Action. A highway, transit, or railroad project proposed for FHWA, FRA, or FTA funding. It also includes activities such as joint and multiple use permits, changes in access control, rulemakings, etc., which may or may not involve a commitment of Federal funds.

    Administration. The FHWA, FRA, or FTA, whichever is the designated Federal lead agency for the proposed action. A reference herein to the Administration means the FHWA, FRA, or FTA, or a State when the State is functioning as the FHWA, FRA, or FTA in carrying out responsibilities delegated or assigned to the State in accordance with 23 U.S.C. 325, 326, or 327, or other applicable law. A reference herein to the FHWA, FRA, or FTA means the State when the State is functioning as the FHWA, FRA, or FTA, respectively in carrying out responsibilities delegated or assigned to the State in accordance with 23 U.S.C. 325, 326, or 327, or other applicable law. Nothing in this definition alters the scope of any delegation or assignment made by FHWA, FRA, or FTA.

    Administration action. FHWA, FRA, or FTA approval of the applicant's request for Federal funds for construction. It also includes approval of activities such as joint and multiple use permits, changes in access control, rulemakings, etc., which may or may not involve a commitment of Federal funds.

    5. Further amend § 771.109, as proposed to be amended at 80 FR 72624 (November 20, 2015), by revising paragraphs (a)(1), (b)(1), and (c)(2), (6), and (7) and adding paragrpah (e) to read as follows:
    § 771.109 Applicability and responsibilities.

    (a)(1) The provisions of this regulation and the CEQ regulation apply to actions where the Administration exercises sufficient control to condition the permit, project, or other approvals. Actions taken by the applicant which do not require Federal approvals, such as preparation of a regional transportation plan are not subject to this regulation.

    (b)(1) The applicant, in cooperation with the Administration, is responsible for implementing those mitigation measures stated as commitments in the environmental documents prepared pursuant to this regulation unless the Administration approves of their deletion or modification in writing. The FHWA will assure that this is accomplished as a part of its stewardship and oversight responsibilities. The FRA and FTA will assure implementation of committed mitigation measures by including the mitigation measures by reference in the grant agreement, followed by reviews of designs and construction inspections.

    (c) * * *

    (2) Any applicant that is a State or local governmental entity that is, or is expected to be, a direct recipient of funds under title 23, U.S. Code or chapter 53 of title 49, U.S. Code for the action or is, or is expected to be, a direct recipient of financial assistance for which FRA is responsible (e.g., Subtitle V of Title 49, U.S. Code) shall serve as a joint lead agency with the Administration in accordance with 23 U.S.C. 139, and may prepare environmental review documents if the Administration furnishes guidance and independently evaluates the documents.

    (6) Subject to paragraph (e) of this section, the role of a project sponsor that is a private institution or firm is limited to providing technical studies and commenting on environmental review documents.

    (7) A participating agency is responsible for providing input, as appropriate, during the times specified in the coordination plan under 23 U.S.C. 139(g) and within the agency's special expertise or jurisdiction. Participating agencies provide comments, if any, and concurrence on the schedule within the coordination plan.

    (e) When FRA is the lead Federal agency, and the project sponsor is a private entity, and there is no applicant acting as a joint-lead agency, FRA shall use a qualified third-party contractor to prepare an EIS. Third-party contracting is a voluntary arrangement whereby the project sponsor retains a contractor to assist in conducting the environmental review under the direction, supervision, and control of the Administration. FRA must oversee the preparation of the EIS and retains ultimate control over the third-party contractor's work product. FRA may require use of a third-party contractor for preparation of an EA at its discretion. FRA, the project sponsor, and the contractor will enter into a memorandum of understanding (MOU) that outlines at a minimum the conditions and procedures to be followed in carrying out the MOU and the responsibilities of the parties to the MOU.

    6. Further amend § 771.111, as proposed to be amended at 80 FR 72624 (November 20, 2015), by revising paragraphs (a)(2)(i), (a)(3), (b), (c), (d), (i), and (j) to read as follows:
    § 771.111 Early coordination, public involvement, and project development.

    (a) * * *

    (2)(i) The information and results produced by, or in support of, the transportation planning process may be incorporated into environmental review documents in accordance with 40 CFR parts 1500 through 1508, 23 CFR part 450, or 23 U.S.C. 139(f), 168, or 169, as applicable.

    (3) Applicants intending to apply for funds should notify the Administration at the time that a project concept is identified. When requested, the Administration will advise the applicant, insofar as possible, of the probable class of action (see § 771.115) and related environmental laws and requirements and of the need for specific studies and findings that would normally be developed during the environmental review process. A lead agency, in consultation with participating agencies, will develop an environmental checklist, as appropriate, to assist in resource and agency identification.

    (b)(1) The Administration will identify the probable class of action as soon as sufficient information is available to identify the probable impacts of the action.

    (2) For projects to be evaluated with an EIS, the Administration shall respond to a project sponsor's formal project notification within 45 days of receipt and in writing.

    (c) When the FHWA, FRA, or FTA are involved in the development of an action, or when the FHWA, FRA, or FTA act as a joint lead agency with another Federal agency, a mutually acceptable process will be established on a case-by-case basis. A project sponsor may request the Secretary to designate the lead Federal agency when project elements fall within multiple DOT agencies' expertise.

    (d) During the early coordination process, the lead agencies may request other agencies having an interest in the action to participate, and must invite such agencies if the action is subject to the project development procedures in 23 U.S.C. 139. Agencies with special expertise may be invited to become cooperating agencies. Agencies with jurisdiction by law must be requested to become cooperating agencies. The lead agencies identify participating agencies within 45 days from publication of the notice of intent.

    (i) Applicants for FRA programs or the FTA capital assistance program:

    (1) Achieve public participation on proposed actions through activities that engage the public, including public hearings, town meetings, and charrettes, and seeking input from the public through scoping for the environmental review process. Project milestones may be announced to the public using electronic or paper media (e.g., newsletters, note cards, or emails) pursuant to 40 CFR 1506.6. For actions requiring EISs, an early opportunity for public involvement in defining the purpose and need for the action and the range of alternatives must be provided, and a public hearing will be held during the circulation period of the draft EIS.

    (2) May participate in early scoping as long as enough project information is known so the public and other agencies can participate effectively. Early scoping constitutes initiation of NEPA scoping while local planning efforts to aid in establishing the purpose and need and in evaluating alternatives and impacts are underway. Notice of early scoping must be made to the public and other agencies. If early scoping is the start of the NEPA process, the early scoping notice must include language to that effect. After development of the proposed action at the conclusion of early scoping, FRA or FTA will publish the Notice of Intent if it is determined at that time that the proposed action requires an EIS. The Notice of Intent will establish a 30-day period for comments on the purpose and need, alternatives, and the scope of the NEPA analysis.

    (3) Are encouraged to post and distribute materials related to the environmental review process, including but not limited to, environmental documents (e.g., EAs and EISs), environmental studies (e.g., technical reports), public meeting announcements, and meeting minutes, through publicly-accessible electronic means, including project Web sites. Applicants are encouraged to keep these materials available to the public electronically until the project is constructed and open for operations.

    (4) Are encouraged to post all findings of no significant impact (FONSI), combined final environmental impact statement (final EIS)/records of decision (ROD), and RODs on a project Web site until the project is constructed and open for operation.

    (j) Information on the FHWA environmental process may be obtained from: FHWA Director, Office of Project Development and Environmental Review, Federal Highway Administration, Washington, DC 20590, or www.fhwa.dot.gov. Information on the FRA environmental process may be obtained from: FRA Chief, Environmental and Corridor Planning Division, Office of Program Delivery, Federal Railroad Administration, Washington, DC 20590, or www.fra.dot.gov. Information on the FTA environmental process may be obtained from: FTA Director, Office of Environmental Programs, Federal Transit Administration, Washington, DC 20590, or www.fta.dot.gov.

    7. Further amend § 771.113, as proposed to be amended at 80 FR 72624 (November 20, 2015), by revising the second sentence in paragraph (a) and adding paragraph (d)(4) to read as follows:
    § 771.113 Timing of Administration activities.

    (a) * * * This work includes drafting environmental documents and completing environmental studies, related engineering studies, agency coordination, and public involvement. * * *

    (d) * * *

    (4) FRA makes exceptions on a case-by-case basis for purchases of railroad components or materials that can be used for other projects or resold.

    8. Further amend § 771.115, as proposed to be amended at 80 FR 72624 (November 20, 2015), by removing the introductory text, revising paragraphs (a) introductory text and (a)(4), adding paragraph (a)(6), and revising paragraph (b) to read as follows:
    § 771.115 Classes of actions.

    (a) EIS (Class I). Actions that significantly affect the environment require an EIS (40 CFR 1508.27). The following are examples of actions that normally require an EIS:

    (4) For FHWA actions, new construction or extension of a separate roadway for buses or high occupancy vehicles not located within an existing transportation right-of-way.

    (6) For FRA actions, new construction of major railroad lines or facilities (e.g. terminal passenger stations, freight transfer yards, or railroad equipment maintenance facilities) that will not be located within an existing transportation right-of-way.

    (b) CE (Class II). Actions that do not individually or cumulatively have a significant environmental effect are excluded from the requirement to prepare an EA or EIS. A specific list of CEs normally not requiring NEPA documentation is set forth in § 771.117(c) for FHWA actions or pursuant to § 771.118(c) for FTA actions. When appropriately documented, additional projects may also qualify as CEs pursuant to § 771.117(d) for FHWA actions or pursuant to § 771.118(d) for FTA actions. FRA's CEs are listed in § 771.116.

    9. Add § 771.116 to read as follows:
    § 771.116 FRA categorical exclusions.

    (a) CEs are actions which meet the definition contained in 40 CFR 1508.4, and, based on FRA's past experience with similar actions, do not involve significant environmental impacts. They are actions which: Do not induce significant impacts to planned growth or land use for the area; do not require the relocation of significant numbers of people; do not have a significant impact on any natural, cultural, recreational, historic or other resource; do not involve significant air, noise, or water quality impacts; do not have significant impacts on travel patterns; or do not otherwise, either individually or cumulatively, have any significant environmental impacts.

    (b) Any action which normally would be classified as a CE but could involve unusual circumstances will require FRA, in cooperation with the applicant, to conduct appropriate environmental studies to determine if the CE classification is proper. Such unusual circumstances include:

    (1) Significant environmental impacts;

    (2) Substantial controversy on environmental grounds;

    (3) Significant impact on properties protected by Section 4(f) of the DOT Act or Section 106 of the National Historic Preservation Act; or

    (4) Inconsistencies with any Federal, State, or local law, requirement or administrative determination relating to the environmental aspects of the action.

    (c) Actions that FRA determines fall within the following categories of FRA CEs and that meet the criteria for CEs in the CEQ regulation (40 CFR 1508.4) and paragraph (a) of this section may be designated as CEs only after FRA approval. Where there is a project applicant or sponsor, it must submit documentation which demonstrates that the specific conditions or criteria for these CEs are satisfied and that significant environmental effects will not result.

    (1) Administrative procurements (e.g., for general supplies), contracts for personal services, and training.

    (2) Personnel actions.

    (3) Planning or design activities that do not commit to a particular course of action affecting the environment.

    (4) Localized geotechnical and other investigations to provide information for preliminary design and for environmental analyses and permitting purposes, such as drilling test bores for soil sampling; archeological investigations for archeology resources assessment or similar survey; and wetland surveys.

    (5) Internal orders, policies, and procedures not required to be published in the Federal Register under the Administrative Procedure Act, 5 U.S.C. 552(a)(1).

    (6) Rulemakings issued under section 17 of the Noise Control Act of 1972, 42 U.S.C. 4916.

    (7) Financial assistance to an applicant where the financial assistance funds an action that is already completed, such as refinancing outstanding debt.

    (8) Hearings, meetings, or public affairs activities.

    (9) Maintenance or repair of existing railroad facilities where the maintenance or repair activities do not change the existing character of the facility, including equipment; track and bridge structures; electrification, communication, signaling, or security facilities; stations; tunnels; maintenance-of-way and maintenance-of-equipment bases.

    (10) Emergency repair or replacement, including reconstruction, restoration, or retrofitting of an essential rail facility damaged by the occurrence of a natural disaster or catastrophic failure. Such repair or replacement may include upgrades to meet existing codes and standards as well as upgrades warranted to address conditions that have changed since the rail facility's original construction.

    (11) Operating assistance to a railroad to continue existing service or to increase service to meet demand, where the assistance will not significantly alter the traffic density characteristics of existing rail service.

    (12) Minor rail line additions, including construction of side tracks, passing tracks, crossovers, short connections between existing rail lines, and new tracks within existing rail yards or right-of-way, provided that such additions are not inconsistent with existing zoning, do not involve acquisition of a significant amount of right of way, and do not significantly alter the traffic density characteristics of the existing rail lines or rail facilities.

    (13) Acquisition or transfer of real property or existing railroad facilities including: Track and bridge structures; electrification, communication, signaling or security facilities; stations; and maintenance of way and maintenance of equipment bases or the right to use such real property and railroad facilities, for the purpose of conducting operations of a nature and at a level of use similar to those presently or previously existing on the subject properties or facilities.

    (14) Research, development, or demonstration activities on existing railroad lines or at existing facilities, where such activities do not require the acquisition of a significant amount of right-of-way, and do not significantly alter the traffic density characteristics of the existing rail line or facility, such as advances in signal communication or train control sytems, equipment, track, or track structures.

    (15) Promulgation of rules, the issuance of policy statements, the waiver or modification of existing regulatory requirements, or discretionary approvals that do not result in significantly increased emissions of air or water pollutants or noise.

    (16) Alterations to existing facilities, locomotives, stations, and rail cars in order to make them accessible for the elderly and persons with disabilities, such as modifying doorways, adding or modifying lifts, constructing access ramps and railings, modifying restrooms, and constructing accessible platforms.

    (17) The rehabilitation, reconstruction, removal, or replacement of bridges, the rehabilitation or maintenance of the rail elements of docks or piers for the purposes of intermodal transfers, and the construction of bridges, culverts, or grade separation projects that are predominantly within existing right-of-way and that do not involve extensive in-water construction activities, such as projects replacing bridge components including stringers, caps, piles, or decks, the construction of roadway overpasses to replace at-grade crossings, construction or reconstruction of approaches or embankments to bridges, or construction or replacement of short span bridges.

    (18) Acquisition (including purchase or lease), rehabilitation, transfer, or maintenance of vehicles or equipment that does not significantly alter the traffic density characteristics of an existing rail line, including locomotives, passenger coaches, freight cars, trainsets, and construction, maintenance or inspection equipment.

    (19) Installation, repair and replacement of equipment and small structures designed to promote transportation safety, security, accessibility, communication or operational efficiency that take place predominantly within the existing right-of-way and do not result in a major change in traffic density on the existing rail line or facility, such as the installation, repair or replacement of surface treatments or pavement markings, small passenger shelters, passenger amenities, benches, signage, sidewalks or trails, equipment enclosures, and fencing, railroad warning devices, train control systems, signalization, electric traction equipment and structures, electronics, photonics, and communications systems and equipment, equipment mounts, towers and structures, information processing equipment, and security equipment, including surveillance and detection cameras.

    (20) Environmental restoration, remediation, pollution prevention, and mitigation activities conducted in conformance with applicable laws, regulations and permit requirements, including activities such as noise mitigation, landscaping, natural resource management activities, replacement or improvement to storm water oil/water separators, installation of pollution containment systems, slope stabilization, and contaminated soil removal or remediation activities.

    (21) Assembly or construction of facilities or stations that are consistent with existing land use and zoning requirements, do not result in a major change in traffic density on existing rail or highway facilities and result in approximately less than ten acres of surface disturbance, such as storage and maintenance facilities, freight or passenger loading and unloading facilities or stations, parking facilities, passenger platforms, canopies, shelters, pedestrian overpasses or underpasses, paving, or landscaping.

    (22) Track and track structure maintenance and improvements when carried out predominantly within the existing right-of-way that do not cause a substantial increase in rail traffic beyond existing or historic levels, such as stabilizing embankments, installing or reinstalling track, re-grading, replacing rail, ties, slabs and ballast, installing, maintaining, or restoring drainage ditches, cleaning ballast, constructing minor curve realignments, improving or replacing interlockings, and the installation or maintenance of ancillary equipment.

    10. Revise § 771.117(a) to read as follows:
    § 771.117 FHWA categorical exclusions.

    (a) CEs are actions which meet the definition contained in 40 CFR 1508.4, and, based on FHWA's past experience with similar actions, do not involve significant environmental impacts. They are actions which: Do not induce significant impacts to planned growth or land use for the area; do not require the relocation of significant numbers of people; do not have a significant impact on any natural, cultural, recreational, historic or other resource; do not involve significant air, noise, or water quality impacts; do not have significant impacts on travel patterns; or do not otherwise, either individually or cumulatively, have any significant environmental impacts.

    11. Revise § 771.118(a) to read as follows:
    § 771.118 FTA categorical exclusions.

    (a) CEs are actions which meet the definition contained in 40 CFR 1508.4, and, based on FTA's past experience with similar actions, do not involve significant environmental impacts. They are actions which: Do not induce significant impacts to planned growth or land use for the area; do not require the relocation of significant numbers of people; do not have a significant impact on any natural, cultural, recreational, historic or other resource; do not involve significant air, noise, or water quality impacts; do not have significant impacts on travel patterns; or do not otherwise, either individually or cumulatively, have any significant environmental impacts.

    12. Further amend § 771.119, as proposed to be amended at 80 FR 72624 (November 20, 2015), by redesignating paragraphs (a)(i) and (ii) as paragraphs (a)(1) and (2), adding paragraph (a)(3), and revising paragraphs (d) and (h) to read as follows:
    § 771.119 Environmental assessments.

    (a) * * *

    (3) For FRA actions: When FRA or the applicant, as joint lead agency, select a contractor to prepare the EA, then the contractor must execute an FRA conflict of interest disclosure statement. In the absence of an applicant, FRA may require private project sponsors to provide a third party contractor to prepare the EA as described in § 771.109(e).

    (d) The applicant does not need to circulate the EA for comment but the document must be made available for public inspection at the applicant's office and at the appropriate Administration field offices or, for FRA at Headquarters, for 30 days and in accordance with paragraphs (e) and (f) of this section. The applicant shall send the notice of availability of the EA, which briefly describes the action and its impacts, to the affected units of Federal, State and local government. The applicant shall also send notice to the State intergovernmental review contacts established under Executive Order 12372.

    (h) When the FHWA expects to issue a FONSI for an action described in § 771.115(a), copies of the EA shall be made available for public review (including the affected units of government) for a minimum of 30 days before the Administration makes its final decision (See 40 CFR 1501.4(e)(2)). This public availability shall be announced by a notice similar to a public hearing notice.

    13. Further amend § 771.123, as proposed to be amended at 80 FR 72624 (November 20, 2015), by revising paragraphs (a), (b) and (c) to read as follows:
    § 771.123 Draft environmental impact statements.

    (a) A draft EIS shall be prepared when the Administration determines that the action is likely to cause significant impacts on the environment. When the applicant, after consultation with any project sponsor that is not the applicant, has notified the Administration in accordance with 23 U.S.C. 139(e) and the decision has been made by the Administration to prepare an EIS, the Administration will issue a Notice of Intent (40 CFR 1508.22) for publication in the Federal Register. Applicants are encouraged to announce the intent to prepare an EIS by appropriate means at the State or local level.

    (b)(1) After publication of the Notice of Intent, the lead agencies, in cooperation with the applicant (if not a lead agency), will begin a scoping process that may take into account any planning work already accomplished, in accordance with 23 CFR 450.212, 450.318, or any applicable provisions of the CEQ regulations at 40 CFR parts 1500 through 1508. The scoping process will be used to identify the purpose and need, the range of alternatives and impacts, and the significant issues to be addressed in the EIS and to achieve the other objectives of 40 CFR 1501.7. Scoping is normally achieved through public and agency involvement procedures required by § 771.111. If a scoping meeting is to be held, it should be announced in the Administration's Notice of Intent and by appropriate means at the State or local level.

    (2) The lead agencies must establish a coordination plan, including a schedule, within 90 days of notice of intent publication.

    (c) The draft EIS shall be prepared by the lead agencies, in cooperation with the applicant (if not a lead agency). The draft EIS shall evaluate all reasonable alternatives to the action and document the reasons why other alternatives, which may have been considered, were eliminated from detailed study. The range of alternatives considered for further study shall be used for all Federal environmental reviews and permit processes, to the maximum extent practicable and consistent with Federal law, unless the lead and participating agencies agree to modify the alternatives in order to address significant new information and circumstances or to fulfill NEPA responsibilities in a timely manner, in accordance with 23 U.S.C. 139(f)(4)(B). The draft EIS shall also summarize the studies, reviews, consultations, and coordination required by environmental laws or Executive orders to the extent appropriate at this stage in the environmental process.

    14. Further amend § 771.124, as proposed to be amended at 80 FR 72624 (November 20, 2015), by revising paragraphs (a)(1) introductory text, (a)(1)(ii), and (a)(3) to read as follows:
    § 771.124 Final environmental impact statement/record of decision document.

    (a)(1) After circulation of a draft EIS and consideration of comments received, the lead agencies, in cooperation with the applicant (if not a lead agency), shall combine the final EIS and ROD, to the maximum extent practicable, unless:

    (ii) There are significant new circumstances or information relevant to environmental concerns that bear on the proposed action or the impacts of the proposed action.

    (3) If the comments on the draft EIS are minor and confined to factual corrections or explanations that do not warrant additional agency response, an errata sheet may be attached to the draft statement pursuant to 40 CFR 1503.4(c), which together shall then become the combined final EIS/ROD.

    15. Further amend § 771.125, as proposed to be amended at 80 FR 72624 (November 20, 2015), by revising paragraph (d) to read as follows:
    § 771.125 Final environmental impact statements.

    (d) Approval of the final EIS is not an Administration action as defined in paragraph (c) of § 771.107 and does not commit the Administration to approve any future request for financial assistance to fund the preferred alternative.

    16. Further amend § 771.129, as proposed to be amended at 80 FR 72624 (November 20, 2015), by revising paragraph (c) to read as follows:
    § 771.129 Re-evaluations.

    (c) After the Administration issues a combined final EIS/ROD, ROD, FONSI, or CE designation, the applicant shall consult with the Administration prior to requesting any major approvals or grants to establish whether or not the approved environmental document or CE designation remains valid for the requested Administration action. These consultations will be documented when determined necessary by the Administration.

    17. Revise § 771.131 to read as follows:
    § 771.131 Emergency action procedures.

    Responses to some emergencies and disasters are categorically excluded under § 771.117 for FHWA, § 771.118 for FTA, or § 771.116 for FRA. Otherwise, requests for deviations from the procedures in this regulation because of emergency circumstances (40 CFR 1506.11) shall be referred to the Administration's Headquarters for evaluation and decision after consultation with CEQ.

    18. Revise § 771.139 to read as follows:
    § 771.139 Limitations on claims.

    Notices announcing decisions by the Administration or by other Federal agencies on a transportation project may be published in the Federal Register indicating that such decisions are final within the meaning of 23 U.S.C. 139(l). Claims arising under Federal law seeking judicial review of any such decisions by FHWA or FTA are time barred unless filed within 150 days after the date of publication of the limitations on claims notice. Claims arising under Federal law seeking judicial review of any such decisions by FRA are time barred unless filed within 2 years after the date of publication of the limitations on claims notice. These time periods do not lengthen any shorter time period for seeking judicial review that otherwise is established by the Federal law under which judicial review is allowed. This provision does not create any right of judicial review or place any limit on filing a claim that a person has violated the terms of a permit, license, or approval.

    PART 774—PARKS, RECREATION AREAS, WILDLIFE AND WATERFOWL REFUGES, AND HISTORIC SITES (SECTION 4(f)) 19. Revise the authority citation for part 774 to read as follows: Authority:

    23 U.S.C. 103(c), 109(h), 138, 325, 326, 327 and 204(h)(2); 49 U.S.C. 303; Section 6009, Pub. L. 109-59, Aug. 10, 2005, 119 Stat. 1144; 49 CFR 1.81 and 1.91; and, Pub. L. 114-94, 129 Stat. 1312, Sections 1303 and 11502.

    20. Amend § 774.3 by revising footnote 1 to read as follows:
    § 774.3 Section 4(f) approvals.

    1 FHWA Section 4(f) Programmatic Evaluations can be found at www.environment.fhwa.dot.gov/4f/4fnationwideevals.asp.

    21. Amend § 774.13 by revising paragraph (a) to read as follows:
    § 774.13 Exceptions.

    (a) The use of historic transportation facilities in certain circumstances:

    (1) Common post-1945 concrete or steel bridges and culverts that are exempt from individual review under 54 U.S.C. 306108.

    (2) Improvement of railroad or rail transit lines that are in use or were historically used for the transportation of goods or passengers, including, but not limited to, maintenance, preservation, rehabilitation, operation, modernization, reconstruction, and replacement of elements of such railroad or rail transit lines except for:

    (i) Stations;

    (ii) Bridges or tunnels on railroad lines that have been abandoned or transit lines not in use over which regular service has never operated, and that have not been railbanked or otherwise reserved for the transportation of goods or passengers; and

    (iii) Historic sites unrelated to the railroad or rail transit lines.

    (3) Restoration, rehabilitation, or maintenance of other types of historic transportation facilities, if the Administration concludes, as a result of the consultation under 36 CFR 800.5, that:

    (i) Such work will not adversely affect the historic qualities of the facility that caused it to be on or eligible for the National Register; and

    (ii) The official(s) with jurisdiction over the Section 4(f) resource have not objected to the Administration conclusion in paragraph (a)(3)(i) of this section.

    22. Amend § 774.15 by revising paragraph (f)(2) to read as follows:
    § 774.15 Constructive use determinations.

    (f) * * *

    (2) For projected noise levels:

    (i) The impact of projected traffic noise levels of the proposed highway project on a noise-sensitive activity do not exceed the FHWA noise abatement criteria as contained in Table 1 in part 772 of this chapter; or

    (ii) The projected operational noise levels of the proposed transit or railroad project do not exceed the noise impact criteria for a Section 4(f) activity in the FTA guidelines for transit noise and vibration impact assessment or the moderate impact criteria in the FRA guidelines for high-speed transportation noise and vibration impact assessment;

    23. Amend § 774.17 by revising the definitions for “Administration” and “CE” to read as follows:
    § 774.17 Definitions.

    Administration. The FHWA, FRA, or FTA, whichever is approving the transportation program or project at issue. A reference herein to the Administration means the State when the State is functioning as the FHWA, FRA, or FTA in carrying out responsibilities delegated or assigned to the State in accordance with 23 U.S.C. 325, 326, 327, or other applicable law.

    CE. Refers to a Categorical Exclusion, which is an action with no individual or cumulative significant environmental effect pursuant to 40 CFR 1508.4 and § 771.116, § 771.117, or § 771.118 of this chapter; unusual circumstances are taken into account in making categorical exclusion determinations.

    Title 49—Transportation
    PART 264—ENVIRONMENTAL IMPACT AND RELATED PROCEDURES 24. Revise the authority citation for part 264 to read as follows: Authority:

    42 U.S.C. 4321 et seq.; 49 U.S.C. 303; 23 U.S.C. 139; 40 CFR parts 1500 through 1508; 49 CFR 1.81; Pub. L. 112-141, 126 Stat. 405, Section 1319; and Pub. L. 114-94, 129 Stat. 1312, Sections 1432 and 11502.

    25. Revise the heading for part 264 to read as set forth above. 26. Revise § 264.101 to read as follows:
    § 264.101 Procedures for complying with the surface transportation project delivery program application requirements and termination.

    The procedures for complying with the National Environmental Policy Act of 1969, as amended (42 U.S.C. 4321 et seq.), and related statutes, regulations, and orders are set forth in part 771 of title 23 of the Code of Federal Regulations. The procedures for complying with 49 U.S.C. 303, commonly known as “Section 4(f),” are set forth in part 774 of title 23 of the Code of Federal Regulations. The procedures for com