Federal Register Vol. 82, No.192,

Federal Register Volume 82, Issue 192 (October 5, 2017)

Page Range46369-46653
FR Document

82_FR_192
Current View
Page and SubjectPDF
82 FR 46653 - Honoring the Victims of the Tragedy in Las Vegas, NevadaPDF
82 FR 46649 - Delegation of Authority Under the Consolidated Appropriations Act, 2017PDF
82 FR 46529 - Sunshine Act MeetingPDF
82 FR 46411 - Examinations of Working Places in Metal and Nonmetal MinesPDF
82 FR 46535 - Sunshine Act MeetingsPDF
82 FR 46487 - Upcoming Secretary-Led International Trade Administration Multi-Sector Trade Mission to ChinaPDF
82 FR 46454 - Arizona: Authorization of State Hazardous Waste Management Program RevisionsPDF
82 FR 46490 - Notice of Intent To Establish Voluntary Criteria for Radon Credentialing Organizations; Extension of the Comment PeriodPDF
82 FR 46493 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
82 FR 46511 - ``Partnering to Prevent Hypoglycemia'' Listening SessionPDF
82 FR 46606 - Notice of Opportunity for Public Comment on Surplus Property Release at Greenville SCTAC Airport, Greenville, South CarolinaPDF
82 FR 46513 - Solicitation of Nominations for Appointment to the Advisory Committee on Minority HealthPDF
82 FR 46537 - Advisory Committee on Reactor Safeguards (ACRS); Meeting of the ACRS Subcommittee on Planning and Procedures; Notice of MeetingPDF
82 FR 46541 - NextEra Energy Duane Arnold, LLC.; Duane Arnold Energy Center, Unit No. 1PDF
82 FR 46536 - Vogtle Electric Generating Plant, Units 3 and 4; Southern Nuclear Operating Company; Hydrogen Venting from Passive Core Cooling System (PXS) CompartmentsPDF
82 FR 46544 - Southern Nuclear Operating Company, Inc., Vogtle Electric Generating Plant, Units 3 and 4; Standardization of Instrumentation Setpoint NomenclaturePDF
82 FR 46537 - Vogtle Electric Generating Plant, Units 3 and 4 Southern Nuclear Operating Company; Resolution of Auxiliary Building Wall Thickness and Description InconsistenciesPDF
82 FR 46500 - Clarification of the Food and Drug Administration and Environmental Protection Agency Jurisdiction Over Mosquito-Related Products; Guidance for Industry; AvailabilityPDF
82 FR 46450 - Approval and Promulgation of Implementation Plans; Texas; Reasonably Available Control Technology for Volatile Organic Compound Emissions in the Dallas-Fort Worth Ozone Nonattainment AreaPDF
82 FR 46509 - Agency Information Collection Activities: Submission to OMB for Review and Approval; Public Comment Request; Information Collection Request Title: Scientific Registry of Transplant Recipients Information Collection Effort for Potential Donors for Living Organ DonationPDF
82 FR 46590 - Grant Guideline, NoticePDF
82 FR 46511 - Agency Information Collection Activities: Submission to OMB for Review and Approval; Public Comment Request; Information Collection Request Title: Federal Tort Claims Act (FTCA) Program Deeming Applications for Free Clinics [OMB No. 0915-0293-Extension]PDF
82 FR 46518 - Area Maritime Security Advisory Committee (AMSC), Eastern Great Lakes and Regional Sub-Committee VacanciesPDF
82 FR 46388 - Mortality Tables for Determining Present Value Under Defined Benefit Pension PlansPDF
82 FR 46611 - Open Meeting of the Taxpayer Advocacy Panel Taxpayer Assistance Center Improvements Project CommitteePDF
82 FR 46610 - Open Meeting of the Taxpayer Advocacy Panel Special Projects CommitteePDF
82 FR 46494 - Information Collection Approved by the Office of Management and BudgetPDF
82 FR 46491 - Information Collection Being Submitted for Review and Approval to the Office of Management and BudgetPDF
82 FR 46611 - Open Meeting of the Taxpayer Advocacy Panel Taxpayer Communications Project CommitteePDF
82 FR 46610 - Open Meeting of the Taxpayer Advocacy Panel Joint CommitteePDF
82 FR 46610 - Open Meeting of the Taxpayer Advocacy Panel Tax Forms and Publications Project CommitteePDF
82 FR 46610 - Open Meeting of the Taxpayer Advocacy Panel Toll-Free Phone Line Project CommitteePDF
82 FR 46479 - In the Matter of: Tayabi Fazal Hussain, Lathifa Tower, Apt #1107, Al Nahda 1, Dubai, UAEPDF
82 FR 46480 - In the Matter of: Mark Henry (a/k/a Weida Zheng, a/k/a Scott Russel, a/k/a Bob Wilson, a/k/a Joanna Zhong), Inmate Number: 75602-053, FCI Schuylkill, Federal Correctional Institution, Satellite Camp, P.O. Box 670, Minersville, PA 17954; Respondent; Dahua Electronics Corporation (a/k/a Bao An Corporation), 134-12 59th Avenue, Flushing, NY 11355, Related Person Order Denying PrivilegesPDF
82 FR 46476 - Order Denying Export PrivilegesPDF
82 FR 46481 - In the Matter of: Robert J. Shubert, Sr., Currently Incarcerated at: Inmate Number: 96749-020, FCI Coleman Low, P.O. Box 1031, Coleman, FL 33521; and With a Prior Known Address at: 417 Hedlund Drive, Warner Robbins, GA 31088PDF
82 FR 46478 - In the Matter of: Shehzad John, Currently Incarcerated at: Inmate Number: 91045-054, FCI Ashland, Federal Correctional Institution, P.O. Box 6001, Ashland, KY 41105, and With an Address at: 207 Border Street, Columbus, OH 43207PDF
82 FR 46482 - Order Denying Export PrivilegesPDF
82 FR 46413 - Special Local Regulation; Ohio River, Louisville, KYPDF
82 FR 46476 - Foreign-Trade Zone (FTZ) 283-West Tennessee Area; Authorization of Production Activity; MTD Consumer Group Inc.; Subzone 283A; (Landscaping Equipment and Off-Road Utility Vehicles); Martin, TennesseePDF
82 FR 46422 - Fisheries of the Exclusive Economic Zone Off Alaska; Exchange of Flatfish in the Bering Sea and Aleutian Islands Management AreaPDF
82 FR 46487 - Fisheries of the South Atlantic; South Atlantic Fishery Management Council; Public MeetingPDF
82 FR 46488 - Gulf of Mexico Fishery Management Council; Public MeetingPDF
82 FR 46487 - New England Fishery Management Council; Public MeetingPDF
82 FR 46489 - Fisheries of the South Atlantic; Southeast Data, Assessment, and Review (SEDAR); Public MeetingPDF
82 FR 46485 - Certain Welded Carbon Steel Pipes and Tubes From India, Thailand, and Turkey: Final Results of the Expedited Fourth Sunset Reviews of the Antidumping Duty OrdersPDF
82 FR 46483 - Oil Country Tubular Goods From the Republic of Turkey: Amendment of Countervailing Duty OrderPDF
82 FR 46589 - Presidential Declaration Amendment of a Major Disaster for the State of GeorgiaPDF
82 FR 46545 - New Postal ProductsPDF
82 FR 46534 - Arts Advisory Panel MeetingsPDF
82 FR 46607 - Qualification of Drivers; Exemption Applications; HearingPDF
82 FR 46606 - Agency Information Collection Activities; Reinstatement of an Information Collection: Practices of Household Goods Brokers; CorrectionPDF
82 FR 46590 - Presidential Declaration Amendment of a Major Disaster for the State of GeorgiaPDF
82 FR 46589 - Presidential Declaration of a Major Disaster for the Seminole Tribe of FloridaPDF
82 FR 46589 - Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the Commonwealth of Puerto RicoPDF
82 FR 46476 - Agenda and Notice of Public Meeting of the South Dakota Advisory CommitteePDF
82 FR 46590 - Presidential Declaration Amendment of a Major Disaster for the Commonwealth of Puerto RicoPDF
82 FR 46535 - Notice of Permit Applications Received Under the Antarctic Conservation Act of 1978PDF
82 FR 46427 - National Performance Management Measures; Assessing Performance of the National Highway System, Freight Movement on the Interstate System, and Congestion Mitigation and Air Quality Improvement ProgramPDF
82 FR 46608 - Notice of Intent To Grant a Buy America Waiver to the City of Raleigh To Use Certain Non-Domestic Components of a Fire Alarm SystemPDF
82 FR 46497 - Science Advisory Board to the National Center for Toxicological Research Advisory Committee; Notice of MeetingPDF
82 FR 46503 - Animal Drug User Fee Act; Public Meeting; Request for CommentsPDF
82 FR 46506 - Animal Generic Drug User Fee Act; Public Meeting; Request for CommentsPDF
82 FR 46508 - Health Canada and United States Food and Drug Administration Joint Public Consultation on International Council for Harmonisation of Technical Requirements for Pharmaceuticals for Human Use; Public Meeting and WebcastPDF
82 FR 46498 - Determination of Regulatory Review Period for Purposes of Patent Extension; IMPELLA 2.5 SYSTEMPDF
82 FR 46502 - Determination of Regulatory Review Period for Purposes of Patent Extension; TECFIDERAPDF
82 FR 46612 - Agency Information Collection Activity Under OMB Review: Acquisition Regulation (VAAR) Construction Provisions and Clauses 852.236-72, 852.236.80, 852.236-82, 852.236-83, 852.236-84 and 852.236-88PDF
82 FR 46614 - Agency Information Collection Activity Under OMB Review: General Release for Medical Provider Information to the Department of Veterans Affairs (VA) and Authorization and Consent To Release Information to the Department of Veterans AffairsPDF
82 FR 46614 - Agency Information Collection Activity Under OMB Review: Decision Ready Claims (DRC) Exam ReviewPDF
82 FR 46614 - Agency Information Collection Activity: Information Regarding Apportionment of Beneficiary's AwardPDF
82 FR 46533 - Records Schedules; Availability and Request for CommentsPDF
82 FR 46524 - Stainless Steel Butt-Weld Pipe Fittings From Italy, Malaysia, and the Philippines; Scheduling of Expedited Five-Year ReviewsPDF
82 FR 46522 - Cold-Drawn Mechanical Tubing From China, Germany, India, Italy, Korea, and Switzerland; Scheduling of the Final Phase of Countervailing Duty and Antidumping Duty InvestigationsPDF
82 FR 46519 - Steel Nails From the United Arab EmiratesPDF
82 FR 46519 - Certain Semiconductor Devices, Semiconductor Packages, and Products Containing Same: Commission Determination To Review in Part a Final Initial Determination Finding in Part a Violation of Section 337; Schedule for Filing Written Submissions on the Issues Under Review and on Remedy, the Public Interest, and Bonding; and Denial of a Motion To Modify the Administrative Protective OrderPDF
82 FR 46495 - Mine Safety and Health Research Advisory Committee (MSHRAC)PDF
82 FR 46495 - Board of Scientific Counselors, National Center for Environmental Health/Agency for Toxic Substances and Disease Registry (BSC, NCEH/ATSDR)PDF
82 FR 46496 - Determination of Regulatory Review Period for Purposes of Patent Extension; KOVALTRYPDF
82 FR 46543 - Information Collection: Notices, Instructions and Reports to Workers: Inspection and InvestigationsPDF
82 FR 46609 - Hazardous Materials: Emergency Waiver No. 5PDF
82 FR 46587 - Notice of Applications for Deregistration Under Section 8(f) of the Investment Company Act of 1940PDF
82 FR 46575 - Self-Regulatory Organizations; NYSE American LLC; Order Approving Proposed Rule Change To Amend the Complimentary Products and Services Available to Certain Eligible New Listings Pursuant to Section 146 of the NYSE American Company GuidePDF
82 FR 46586 - Self-Regulatory Organizations; NYSE National, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Adopt Rules To Establish a Rule Numbering Framework in Connection With the Re-Launch of Trading on the ExchangePDF
82 FR 46559 - Self-Regulatory Organizations; Financial Industry Regulatory Authority, Inc.; Order Approving a Proposed Rule Change Relating to Capital Acquisition Broker Rules 203 (Engaging in Distribution and Solicitation Activities With Government Entities) and 458 (Books and Records Requirements for Government Distribution and Solicitation Activities)PDF
82 FR 46583 - Self-Regulatory Organizations; Bats BZX Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Extend the Implementation Date for Certain Changes to Exchange Rules 14.11 and 14.12PDF
82 FR 46548 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Make Technical and Conforming Changes to Section 703.02 of the NYSE Listed Company ManualPDF
82 FR 46552 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Extend the Implementation Date for Certain Changes to the NYSE Arca Rule 5 and Rule 8 SeriesPDF
82 FR 46558 - Self-Regulatory Organizations; National Securities Clearing Corporation; Order Approving Proposed Rule Change To Amend and Clarify a Margin Charge Relating to CNS Fails PositionsPDF
82 FR 46581 - Self-Regulatory Organizations; The NASDAQ Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Extend the Implementation Date for Certain Changes to the Rule 5700 Series and Rule 5810PDF
82 FR 46576 - Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 716(c) on the Block Order MechanismPDF
82 FR 46564 - Self-Regulatory Organizations; Nasdaq GEMX, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 716(c) on the Block Order MechanismPDF
82 FR 46554 - Self-Regulatory Organizations; C2 Options Exchange, Incorporated; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Rule 6.45 Relating to Disaster RecoveryPDF
82 FR 46580 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the NYSE Arca Options Fee SchedulePDF
82 FR 46566 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing of Proposed Rule Change To List and Trade Shares of the JPMorgan Managed Futures ETF Under NYSE Arca Rule 8.600-EPDF
82 FR 46550 - Self-Regulatory Organizations; Nasdaq MRX, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Rule 716(c) on the Block Order MechanismPDF
82 FR 46561 - Self-Regulatory Organizations; Chicago Stock Exchange, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change Related to Sponsored AccessPDF
82 FR 46546 - Order Granting Limited Exemptions From Exchange Act Rule 10b-17 and Rules 101 and 102 of Regulation M to VanEck Vectors NDR CMG Long/Flat Allocation ETF Pursuant to Exchange Act Rule 10b-17(b)(2) and Rules 101(d) and 102(e) of Regulation MPDF
82 FR 46512 - Advisory Council on Alzheimer's Research, Care, and Services; MeetingPDF
82 FR 46579 - Olden Lane Securities LLC and Olden Lane Trust; Notice of ApplicationPDF
82 FR 46530 - Workforce Information Advisory Council (WIAC)PDF
82 FR 46531 - Agency Information Collection Activities; Comment Request; Guam Military Base Realignment Contractor Recruitment StandardsPDF
82 FR 46530 - Notice of Lodging of Proposed Consent Decree Under the Comprehensive Environmental Response, Compensation, and Liability ActPDF
82 FR 46515 - National Institute of Mental Health; Notice of Closed MeetingsPDF
82 FR 46453 - Approval of Nebraska's Air Quality Implementation Plan, Operating Permits Program, and 112(l) Program; Revision to Nebraska Administrative CodePDF
82 FR 46517 - National Institute of General Medical Sciences; Notice of Closed MeetingsPDF
82 FR 46515 - National Institute of General Medical Sciences; Notice of Closed MeetingPDF
82 FR 46516 - National Institute on Aging; Notice of Closed MeetingPDF
82 FR 46518 - National Cancer Institute Amended; Notice of MeetingPDF
82 FR 46517 - National Cancer Institute; Notice of Closed MeetingsPDF
82 FR 46516 - Center for Scientific Review; Notice of Closed MeetingsPDF
82 FR 46514 - Center for Scientific Review; Notice of Closed MeetingsPDF
82 FR 46420 - Approval of Nebraska's Air Quality Implementation Plan, Operating Permits Program, and 112(l) Program; Revision to Nebraska Administrative CodePDF
82 FR 46525 - Warren B. Dailey, M.D.; Decision and OrderPDF
82 FR 46433 - Approval of Nebraska Air Quality Implementation Plans; Adoption of a New Chapter Under the Nebraska Administrative CodePDF
82 FR 46527 - William J. O'Brien, III, D.O.; Decision and OrderPDF
82 FR 46415 - Approval of Nebraska Air Quality Implementation Plans; Adoption of a New Chapter Under the Nebraska Administrative CodePDF
82 FR 46444 - Approval of Arizona Air Plan Revision; San Manuel, Arizona; Second 10-Year Sulfur Dioxide Maintenance PlanPDF
82 FR 46611 - Joint Biomedical Laboratory Research and Development and Clinical Science Research and Development Services Scientific Merit Review Board Notice of MeetingsPDF
82 FR 46491 - Pesticides; Draft Guidance for Pesticide Registrants on Notifications, Non-Notifications and Minor Formulation Amendments; Extension of Comment PeriodPDF
82 FR 46434 - Air Plan Approval; Illinois; Nonattainment Plans for the Lemont and Pekin SO2PDF
82 FR 46426 - Proposed Amendment of Class E Airspace; Fort Scott, KS; and Phillipsburg, KSPDF
82 FR 46618 - Endangered and Threatened Wildlife and Plants; 12-Month Findings on Petitions To List 25 Species as Endangered or Threatened SpeciesPDF
82 FR 46458 - Waste Prevention, Production Subject to Royalties, and Resource Conservation; Delay and Suspension of Certain RequirementsPDF
82 FR 46379 - Airworthiness Directives; Honeywell International Inc. Turbofan EnginesPDF
82 FR 46490 - Draft FY 2018-2022 Environmental Protection Agency Strategic PlanPDF
82 FR 46386 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous AmendmentsPDF
82 FR 46385 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous AmendmentsPDF
82 FR 46369 - Record Disclosure and PrivacyPDF
82 FR 46425 - Regulations Issued Under Authority of the Export Apple Act and Export Grapes and Plums; Changes to Export Reporting Requirements; WithdrawalPDF
82 FR 46417 - Approval and Promulgation of Air Quality Implementation Plans; State of Utah; Revisions to Ozone Offset Requirements in Davis and Salt Lake CountiesPDF
82 FR 46382 - Airworthiness Directives; The Boeing Company AirplanesPDF

Issue

82 192 Thursday, October 5, 2017 Contents Agricultural Marketing Agricultural Marketing Service PROPOSED RULES Regulations Issued Under Authority of Export Apple Act and Export Grapes and Plums: Changes to Export Reporting Requirements; Withdrawal, 46425-46426 2017--21183 Agriculture Agriculture Department See

Agricultural Marketing Service

Centers Disease Centers for Disease Control and Prevention NOTICES Meetings: Board of Scientific Counselors, National Center for Environmental Health/Agency for Toxic Substances and Disease Registry, 46495 2017--21422 Mine Safety and Health Research Advisory Committee, 46495-46496 2017--21423 Civil Rights Civil Rights Commission NOTICES Meetings: South Dakota Advisory Committee, 46476 2017--21450 Coast Guard Coast Guard RULES Special Local Regulations: Ohio River, Louisville, KY, 46413-46414 2017--21468 NOTICES Requests for Nominations: Area Maritime Security Advisory Committee, Eastern Great Lakes and Regional Sub-Committee Vacancies, 46518-46519 2017--21486 Commerce Commerce Department See

Foreign-Trade Zones Board

See

Industry and Security Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Drug Drug Enforcement Administration NOTICES Decisions and Orders: Warren B. Dailey, M.D., 46525-46527 2017--21382 William J. O'Brien, III, D.O., 46527-46529 2017--21380 Employment and Training Employment and Training Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Guam Military Base Realignment Contractor Recruitment Standards, 46531-46533 2017--21395 Meetings: Workforce Information Advisory Council, 46530-46531 2017--21397 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Nebraska; Air Quality Implementation Plan, Operating Permits Program, and 112(l) Program; Revision to Nebraska Administrative Code, 46420-46422 2017--21383 Nebraska; Air Quality Implementation Plans; Adoption of New Chapter Under Nebraska Administrative Code, 46415-46417 2017--21379 Utah; Revisions to Ozone Offset Requirements in Davis and Salt Lake Counties, 46417-46420 2017--21111 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Arizona; Air Plan Revision; San Manuel, Arizona; Second 10-Year Sulfur Dioxide Maintenance Plan, 46444-46449 2017--21378 Illinois; Nonattainment Plans for Lemont and Pekin SO2 Nonattainment Areas, 46434-46444 2017--21371 Nebraska; Air Quality Implementation Plan, Operating Permits Program, and 112(l) Program; Revision to Nebraska Administrative Code, 46453-46454 2017--21391 Nebraska; Air Quality Implementation Plans; Adoption of New Chapter Under Nebraska Administrative Code, 46433 2017--21381 Texas; Reasonably Available Control Technology for Volatile Organic Compound Emissions in Dallas-Fort Worth Ozone Nonattainment Area, 46450-46453 2017--21491 State Hazardous Waste Management Program Revisions; Final Authorizations: Arizona, 46454-46458 2017--21522 NOTICES Draft Fiscal Years 2018-2022 Strategic Plan, 46490 2017--21245 Pesticides: Draft Guidance for Pesticide Registrants on Notifications, Non-Notifications and Minor Formulation Amendments; Extension of Comment Period, 46491 2017--21373 Voluntary Criteria for Random Credentialing Organizations, 46490-46491 2017--21519 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Honeywell International Inc. Turbofan Engines, 46379-46382 2017--21285 The Boeing Company Airplanes, 46382-46385 2017--19041 Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures: Miscellaneous Amendments, 46385-46388 2017--21220 2017--21222 PROPOSED RULES Class E Airpsace; Amendments: Fort Scott, KS; and Phillipsburg, KS, 46426-46427 2017--21362 NOTICES Surplus Property Releases: Greenville SCTAC Airport, Greenville, SC, 46606 2017--21501 Federal Communications Federal Communications Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 46491-46495 2017--21481 2017--21482 2017--21516 Federal Highway Federal Highway Administration PROPOSED RULES National Performance Management Measures: Assessing Performance of National Highway System, Freight Movement on Interstate System, and Congestion Mitigation and Air Quality Improvement Program, 46427-46433 2017--21442 Federal Motor Federal Motor Carrier Safety Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Practices of Household Goods Brokers; Correction, 46606-46607 2017--21454 Qualification of Drivers; Exemption Applications: Hearing, 46607-46608 2017--21455 Federal Railroad Federal Railroad Administration NOTICES Buy American Waivers: City of Raleigh To Use Certain Non-Domestic Components of a Fire Alarm System, 46608-46609 2017--21441 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Species: 12-Month Findings on Petitions To List 25 Species as Endangered or Threatened, 46618-46645 2017--21352 Food and Drug Food and Drug Administration NOTICES Determinations of Regulatory Review Periods for Purposes of Patent Extensions: IMPELLA 2.5 SYSTEM, 46498-46500 2017--21436 KOVALTRY, 46496-46497 2017--21421 TECFIDERA, 46502-46503 2017--21435 Guidance: Clarification of the Food and Drug Administration and Environmental Protection Agency Jurisdiction Over Mosquito-Related Products, 46500-46501 2017--21494 Meetings: Animal Drug User Fee Act, 46503-46505 2017--21439 Animal Generic Drug User Fee Act, 46506-46508 2017--21438 Joint Public Consultation on International Council for Harmonisation of Technical Requirements for Pharmaceuticals for Human Use, 46508-46509 2017--21437 Science Advisory Board to National Center for Toxicological Research Advisory Committee, 46497-46498 2017--21440 Foreign Claims Foreign Claims Settlement Commission NOTICES Meetings; Sunshine Act, 46529-46530 2017--21613 Foreign Trade Foreign-Trade Zones Board NOTICES Production Activities: MTD Consumer Group Inc., Foreign-Trade Zone 283, West Tennessee Area, 46476 2017--21467 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

NOTICES Meetings: Advisory Council on Alzheimer's Research, Care, and Services, 46512-46513 2017--21399 Partnering To Prevent Hypoglycemia; Listening Session, 46511-46512 2017--21503 Requests for Nominations: Advisory Committee on Minority Health, 46513-46514 2017--21500
Health Resources Health Resources and Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Federal Tort Claims Act Program Deeming Applications for Free Clinics, 46511 2017--21488 Scientific Registry of Transplant Recipients Information Collection Effort for Potential Donors for Living Organ Donation, 46509-46510 2017--21490 Homeland Homeland Security Department See

Coast Guard

Industry Industry and Security Bureau NOTICES Export Privileges; Denials: John Francis Stribling, 46482-46483 2017--21471 Mark Henry, 46480-46481 2017--21475 Robert J. Shubert, Sr., 46481-46482 2017--21473 Shantia Hassanshahi, 46476-46477 2017--21474 Shehzad John, 46478-46479 2017--21472 Tayabi Fazal Hussain, 46479-46480 2017--21476 Interior Interior Department See

Fish and Wildlife Service

See

Land Management Bureau

Internal Revenue Internal Revenue Service RULES Mortality Tables for Determining Present Value Under Defined Benefit Pension Plans, 46388-46411 2017--21485 NOTICES Meetings: Taxpayer Advocacy Panel Joint Committee, 46610 2017--21479 Taxpayer Advocacy Panel Special Projects Committee, 46610 2017--21483 Taxpayer Advocacy Panel Tax Forms and Publications Project Committee, 46610 2017--21478 Taxpayer Advocacy Panel Taxpayer Assistance Center Improvements Project Committee, 46611 2017--21484 Taxpayer Advocacy Panel Taxpayer Communications Project Committee, 46611 2017--21480 Taxpayer Advocacy Panel Toll-Free Phone Line Project Committee, 46610-46611 2017--21477 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Welded Carbon Steel Pipes and Tubes From India, Thailand, and Turkey, 46485-46487 2017--21461 Oil Country Tubular Goods From Republic of Turkey, 46483-46485 2017--21460 Upcoming Secretary-Led International Trade Administration Multi-Sector Trade Mission to China, 46487 2017--21565 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain Semiconductor Devices, Semiconductor Packages, and Products Containing Same, 46519-46522 2017--21426 Cold-Drawn Mechanical Tubing From China, Germany, India, Italy, Korea, and Switzerland, 46522-46524 2017--21428 Stainless Steel Butt-Weld Pipe Fittings From Italy, Malaysia, and Philippines, 46524-46525 2017--21429 Steel Nails From United Arab Emirates, 46519 2017--21427 Justice Department Justice Department See

Drug Enforcement Administration

See

Foreign Claims Settlement Commission

NOTICES Proposed Consent Decrees: CERCLA, 46530 2017--21394
Labor Department Labor Department See

Employment and Training Administration

See

Mine Safety and Health Administration

Land Land Management Bureau PROPOSED RULES Waste Prevention, Production Subject to Royalties, and Resource Conservation; Delay and Suspension of Certain Requirements, 46458-46475 2017--21294 Mine Mine Safety and Health Administration RULES Examinations of Working Places in Metal and Nonmetal Mines, 46411-46413 2017--21594 National Archives National Archives and Records Administration NOTICES Records Schedules, 46533-46534 2017--21430 National Endowment for the Arts National Endowment for the Arts NOTICES Meetings: Arts Advisory Panel, 46534-46535 2017--21456 National Foundation National Foundation on the Arts and the Humanities See

National Endowment for the Arts

National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 46514-46517 2017--21384 2017--21385 National Cancer Institute, 46517-46518 2017--21386 2017--21387 National Institute of General Medical Sciences, 46515-46518 2017--21389 2017--21390 National Institute of Mental Health, 46515 2017--21392 2017--21393 National Institute on Aging, 46516 2017--21388 National Labor National Labor Relations Board NOTICES Meetings; Sunshine Act, 46535 2017--21592 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone Off Alaska: Exchange of Flatfish in Bering Sea and Aleutian Islands Management Area, 46422-46424 2017--21466 NOTICES Meetings: Fisheries of the South Atlantic; South Atlantic Fishery Management Council, 46487-46488 2017--21465 Fisheries of the South Atlantic; Southeast Data, Assessment, and Review, 46489-46490 2017--21462 Gulf of Mexico Fishery Management Council, 46488-46489 2017--21464 New England Fishery Management Council, 46487 2017--21463 National Science National Science Foundation NOTICES Antarctic Conservation Act Permits, 46535-46536 2017--21446 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Notices, Instructions and Reports to Workers: Inspection and Investigations, 46543-46544 2017--21418 Environmental Assessments; Availability, etc.: NextEra Energy Duane Arnold, LLC., Duane Arnold Energy Center, Unit No. 1, 46541-46543 2017--21498 License Amendment Applications: Vogtle Electric Generating Plant, Units 3 and 4 Southern Nuclear Operating Co. Resolution of Auxiliary Building Wall Thickness and Description Inconsistencies, 46537-46541 2017--21495 License Amendments: Southern Nuclear Operating Co., Inc., Vogtle Electric Generating Plant, Units 3 and 4; Standardization of Instrumentation Setpoint Nomenclature, 46544-46545 2017--21496 Vogtle Electric Generating Plant, Units 3 and 4; Southern Nuclear Operating Co. Hydrogen Venting from Passive Core Cooling System Compartments, 46536-46537 2017--21497 Meetings: Advisory Committee on Reactor Safeguards; Subcommittee on Planning and Procedures, 46537 2017--21499 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Hazardous Materials: Emergency Waiver No. 5, 46609-46610 2017--21417 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 46545-46546 2017--21457 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: Honoring the Victims of the Tragedy in Las Vegas, NV (Proc. 9651), 46651-46653 2017--21720 ADMINISTRATIVE ORDERS Consolidated Appropriations Act, 2017; Delegation of Authority (Memorandum of September 25, 2017), 46647-46649 2017--21704 Securities Securities and Exchange Commission NOTICES Applications for Deregistrations, 46587-46589 2017--21416 Applications: Olden Lane Securities, LLC and Olden Lane Trust, 46579-46580 2017--21398 Exemptions: VanEck Vectors NDR CMG Long/Flat Allocation ETF, 46546-46548 2017--21400 Self-Regulatory Organizations; Proposed Rule Changes: Bats BZX Exchange, Inc., 46583-46586 2017--21412 C2 Options Exchange, Inc., 46554-46558 2017--21405 Chicago Stock Exchange, Inc., 46561-46564 2017--21401 Financial Industry Regulatory Authority, Inc., 46559-46561 2017--21413 Nasdaq GEMX, LLC, 46564-46566 2017--21406 Nasdaq ISE, LLC, 46576-46579 2017--21407 Nasdaq MRX, LLC, 46550-46552 2017--21402 NASDAQ Stock Market, LLC, 46581-46583 2017--21408 National Securities Clearing Corp., 46558-46559 2017--21409 New York Stock Exchange, LLC, 46548-46550 2017--21411 NYSE American, LLC, 46575-46576 2017--21415 NYSE Arca, Inc., 46552-46554, 46566-46574, 46580-46581 2017--21403 2017--21404 2017--21410 NYSE National, Inc., 46586-46587 2017--21414 Small Business Small Business Administration RULES Record Disclosure and Privacy, 46369-46379 2017--21204 NOTICES Major Disaster Declarations: Florida, Seminole Tribe, 46589 2017--21452 Georgia, 46589-46590 2017--21453 2017--21458 Puerto Rico, 46590 2017--21449 Puerto Rico; Amendment 4, 46589-46590 2017--21451 State Justice State Justice Institute NOTICES Grant Guidelines, 46590-46606 2017--21489 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

Federal Motor Carrier Safety Administration

See

Federal Railroad Administration

See

Pipeline and Hazardous Materials Safety Administration

Treasury Treasury Department See

Internal Revenue Service

Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Acquisition Regulation Construction Provisions and Clauses, 46612-46613 2017--21434 Decision Ready Claims Exam Review, 46614 2017--21432 General Release for Medical Provider Information; Authorization and Consent To Release Information, 46614 2017--21433 Information Regarding Apportionment of Beneficiary's Award, 46614-46615 2017--21431 Meetings: Joint Biomedical Laboratory Research and Development and Clinical Science Research and Development Services Scientific Merit Review Board, 46611-46612 2017--21376 Separate Parts In This Issue Part II Interior Department, Fish and Wildlife Service, 46618-46645 2017--21352 Part III Presidential Documents, 46647-46649 2017--21704 Part IV Presidential Documents, 46651-46653 2017--21720 Reader Aids

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82 192 Thursday, October 5, 2017 Rules and Regulations SMALL BUSINESS ADMINISTRATION 13 CFR Part 102 RIN 3245-AG52 Record Disclosure and Privacy AGENCY:

U.S. Small Business Administration.

ACTION:

Direct final rule; request for comments.

SUMMARY:

The U.S. Small Business Administration (SBA) is issuing this direct final rule to amend its regulations for disclosure and production of information under the Freedom of Information Act (FOIA). This rule updates and streamlines the language of several procedural provisions and incorporates changes brought about by amendments to the FOIA under the OPEN Government Act of 2007, the OPEN FOIA Act of 2009, and the FOIA Improvement Act of 2016.

DATES:

This rule is effective January 3, 2018 without further action, unless adverse comment is received by November 6, 2017. If adverse comment is received, the U.S. Small Business Administration will publish a timely withdrawal of the rule in the Federal Register.

ADDRESSES:

Identify your comments by RIN 3245-AG52 and submit them by one of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov, follow the Web site instructions for submitting comments.

Mail or Hand Deliver/Courier: Oreoluwa Fashola, Freedom of Information/Privacy Acts (FOI/PA) Office, 409 Third Street SW., Mail Code 2441, Washington, DC 20416.

Please be aware that SBA will only accept comments for this direct final rule on http://www.regulations.gov, which will be posted publicly.

If you wish to submit confidential business information (CBI) as defined in the User Notice at www.regulations.gov, you must submit such information to the Chief, Freedom of Information/Privacy Acts (FOI/PA) Office, 409 Third Street SW., Mail Code 2441, Washington, DC 20416, or send an email to [email protected] Highlight the information that you consider to be CBI and explain why you believe SBA should withhold this information as confidential. SBA will review your information and determine whether it will make the information public.

FOR FURTHER INFORMATION CONTACT:

Oreoluwa Fashola, Freedom of Information/Privacy Acts (FOI/PA) Office, at 202-401-8203 or [email protected]

SUPPLEMENTARY INFORMATION:

SBA is issuing this direct final rule to amend its regulations for disclosure and production of information under the Freedom of Information Act, 5 U.S.C. 552 (FOIA). This direct final rule updates and streamlines the language of several procedural provisions and incorporates certain changes brought about by amendments to the FOIA under the Openness Promotes Effectiveness in our National Government Act of 2007 (OPEN Government Act), Public Law 110-175 (2007), and the OPEN FOIA Act of 2009, Public Law 111-83 (2009), which have been incorporated into agency practice but not reflected in the regulations, and the FOIA Improvement Act of 2016, Public Law 114-185 (2016). The FOIA Improvement Act of 2016 provides, among other things, that agencies must allow a minimum of 90 days for requesters to file an administrative appeal. The Act also requires that agencies notify requesters of the availability of dispute resolution services at various times throughout the FOIA process. This rule updates the Agency's regulations in 13 CFR part 102, subpart A to reflect those statutory changes.

Section-by-Section Analysis

Section 102.1 (General provisions) is revised to remove outdated wording and to incorporate additional policies and procedures relevant to the FOIA process. SBA is also amending this section to more clearly define a component. Component is defined in § 102.1(b) as each separate bureau, office, division, district office, regional office, area office service center, loan processing center or central office duty station within the SBA that is responsible for processing FOIA requests. A full list of the types of records maintained by different SBA components is provided in Appendix A of this rule. This section is being revised to include the current definition of a record under the FOIA. Section 9 of the OPEN Government Act amended the definitions section of the FOIA, 5 U.S.C. 552(f), by including within the definition of “record” any information “maintained for an agency by an entity under Government contract, for the purposes of records management.” This amendment makes clear that records, in the possession of Government contractors for purposes of records management, are considered agency records for purposes of the FOIA. Through this change to the regulations, SBA adopts the statutory definition of “record.”

Section 102.2 (Proactive disclosure of records) is revised to more clearly reflect the FOIA Improvement Act of 2016's requirement that records the FOIA requires agencies to make available for public inspection must be in an electronic format, rather than simply made available for public inspection and copying. Such records are available via the internet through the electronic reading rooms of each component. For those individuals with no access to the internet, the SBA FOI/PA Office or the component Public Liaison can provide assistance with access to records available in the electronic reading rooms.

Section 102.3 (Requirements pertaining to the submission of requests) is revised to explain that the requester will receive the quickest response if the request is directed to the component that maintains the records. This section also provides that requesters may discuss their requests with the component's FOIA Contact or the FOIA Public Liaison in advance of making a request, as well as to clarify a request already made. New paragraph (b), which describes the process under which SBA may administratively close a request if a requester fails to comply with a request for additional information.

Section 102.4 (Responsibility for responding to requests) is revised to advise requesters of who may grant or deny requests, re-routing of misdirected requests, and of the need to consult, refer, or coordinate with another component and/or agency.

Section 102.5 (Timing of responses to requests) formerly § 102.4 is revised to include a requirement that components notify requesters of the availability of assistance from the Office of Government Information Services (OGIS) at the National Archives and Records Administration when the component gives notice to requesters that the request involves unusual circumstances. This notification is required by the FOIA Improvement Act of 2016.

Section 102.6 (Responses to requests) is revised to include requirements that components notify requesters of the availability of assistance from a FOIA Public Liaison and OGIS when providing requesters with responses to their requests. These notifications are required by the FOIA Improvement Act of 2016.

Section 102.7 (Confidential commercial information) is revised to update the language of the current definitions and provide a more detailed description for SBA processes for notification to a submitter of business information.

Section 102.8 (Fees) is revised to identify the different types of requester fee categories and clarify some of the definitions used by SBA in determining a requester's fee category. For instance, “Commercial use request,” would clarify that components will make determinations on commercial use on a case-by-case basis. Also this section is revised to conform to recent decisions of the D.C. Circuit Court of Appeals addressing two FOIA fee categories: “representative of the news media” and “educational institution.” See Cause of Action v. FTC, 799 F.3d 1108 (D.C. Cir. 2015); Sack v. DOD, 823 F.3d 687 (D.C. Cir. 2016). The Agency's existing FOIA regulations state that a representative of the news media is any person or entity that is organized and operated to publish or broadcast news to the public that actively 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. In Cause of Action, 799 F.3d at 1125, the court held that a representative of the news media need not work for an entity that is “organized and operated” to publish or broadcast news. Therefore, the definition of “representative of the news media” is revised to remove the “organized and operated” requirement. The definition of “educational institution” is revised to reflect the holding in Sack, 823 F.3d at 688 that students who make FOIA requests in furtherance of their coursework or other school-sponsored activities may qualify under this requester category. Several examples are being added to help requesters understand the analysis that SBA will apply to determine whether a requester meets the criteria to be considered an educational institution.

Paragraph (d) “Charging fees,” changes the current fee schedule that SBA uses for search and review which is currently at a rate of $30 per hour, to $46 per hour for professional staff (GS-9 to GS-14) and $83 per hour for managerial staff (GS-15 and above) to be consistent with other Federal Agency costs. Because these and similar changes are consistent with current regulations and describe current processes, SBA does not expect that they will result in significant additional costs for the government or the public. Paragraph (d)(1)(iii), which discusses direct costs associated with conducting any search that requires the creation of a new computer program. This change is intended to improve comprehension and to more accurately describe the circumstances under which a requester may be charged for a computerized search or a search of electronic records. It does not represent a change in practice, as SBA currently charges direct costs for specialized data searches.

Paragraph (e) addresses restrictions on charging fees when the FOIA's time limits are not met and is revised to reflect changes made to those restrictions by the FOIA Improvement Act of 2016. Specifically, these changes reflect that agencies may not charge search fees (or duplication fees for representatives of the news media and educational/non-commercial scientific institution requesters) when the agency fails to comply with the FOIA's time limits. The restriction on charging fees is excused and the agency may charge fees as usual when it satisfies one of three exceptions detailed at 5 U.S.C. 552(a)(4)(A)(viii)(II).

This rule also revises paragraph (l), which addresses the requirements for a waiver or reduction of fees, to specify that requesters may seek a waiver of fees and to streamline and simplify the description of the factors to be considered by components when making fee waiver determinations. These updates do not substantively change the analysis, but instead present the factors in a way that is clearer to both components and requesters. Rather than six factors, the amended section provides for three overall factors. Specifically, a requester should be granted a fee waiver if the requested information (1) sheds light on the activities and operations of the government; (2) is likely to contribute significantly to public understanding of those operations and activities; and (3) is not primarily in the commercial interest of the requester. This streamlined description facilitates easier understanding and application of the statutory standard.

Again, because these changes are consistent with current regulations and case law which describe current processes, SBA does not expect that they will result in significant additional costs for the government or the public. Finally, this section is amended to include a chart showing fee applicability, for ease of reference.

Section 102.9 (Administrative appeals) is revised to extend the time to file an administrative appeal to 90 days, in conformity with the 90-day minimum time period established by the FOIA Improvement Act of 2016. This section is also revised to include a new paragraph regarding engaging in dispute resolution services provided by OGIS.

Section 102.10 (Preservation of records) outlines SBA responsibilities maintaining records responsive to FOIA requests in accordance with 44 U.S.C. or the General Records Schedule 14 of the National Archives and Records Administration.

102.11 (Subpoenas), formerly at 102.10, the text of this section remains the same as before.

Appendix A is added to list the type of records that SBA typically releases or withholds.

SBA is issuing this direct final rule to amend its procedures for disclosure and production of information under the Freedom of Information Act (5 U.S.C. 552) (FOIA), which are in 13 CFR part 102, subpart A.

Since these are conforming amendments, with no extraneous interpretation or other expanded materials, SBA expects no significant adverse comments. Based on that fact, SBA has decided to proceed with a direct final rule giving the public 30 days to comment. If SBA receives a significant adverse comment during the comment period, SBA will withdraw the rule, and proceed with a new rule.

Compliance With Executive Orders 12866, 12988, 13132, 13563, 13771, the Regulatory Flexibility Act (5 U.S.C. 601-612), and the Paperwork Reduction Act (44 U.S.C. Ch. 35) Executive Order 12866

The Office of Management and Budget (OMB) has determined that this direct final rule does not constitute a significant regulatory action under Executive Order 12866. This direct final rule is also not a major rule under the Congressional Review Act, 5 U.S.C. 800.

Executive Order 12988

This action meets applicable standards set forth in Sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden. The action does not have retroactive or preemptive effect.

Executive Order 13132

For purposes of Executive Order 13132, SBA has determined that this direct final rule will not have any 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. Therefore, for the purpose of Executive Order 13132, Federalism, SBA has determined that this direct final rule has no federalism implications warranting the preparation of a federalism assessment.

Executive Order 13563

Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. SBA developed this rule in a manner consistent with these requirements with guidance provided by the Department of Justice, Office of Information Policy.

Executive Order 13771

This rule is not an Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs, regulatory action because this rule is not significant under Executive Order 12866.

Regulatory Flexibility Act, 5 U.S.C. 601-612

The Regulatory Flexibility Act (RFA), 5 U.S.C. 601, requires administrative agencies to consider the effect of their action on small entities, including small businesses. According to the RFA, when an agency issues a rule, the agency must prepare an analysis to determine whether the impact of the rule will have significant economic impact on a substantial number of small entities. However, section 605 of the RFA allows an agency to certify a rule in lieu of preparing an analysis, if the rulemaking is not expected to have a significant impact on a substantial number of small entities. SBA has determined that this direct final rule will not have a significant economic impact on a substantial number of small entities. Under the FOIA, agencies may recover only the direct costs of searching for, reviewing, and duplicating the records processed for requesters. Thus, fees assessed by SBA are nominal. Within the meaning of RFA, SBA certifies that this direct final rule will not have a significant economic impact on a substantial number of small entities.

Paperwork Reduction Act, 44 U.S.C. Ch. 35

SBA has determined that this direct final rule does not impose additional reporting or recordkeeping requirements under the Paperwork Reduction Act, 44 U.S.C. Chapter 35.

List of Subjects in 13 CFR Part 102

Freedom of information, Privacy.

Accordingly, for the reasons set forth in the preamble, the U.S. Small Business Administration is amending 13 CFR part 102 as follows:

PART 102—[AMENDED] 1. The authority citation for part 102 is revised to read as follows: Authority:

5 U.S.C. 301, 552, 552a; 31 U.S.C. 3717, 9701; 44 U.S.C. 3501.

2. Subpart A is revised to read as follows: Subpart A—Disclosure of Information Sec. 102.1 General provisions. 102.2 Proactive disclosure of records. 102.3 Requirements pertaining to the submission of requests. 102.4 Responsibility for responding to requests. 102.5 Timing of responses to requests. 102.6 Responses to requests. 102.7 Confidential commercial information. 102.8 Fees. 102.9 Administrative appeals. 102.10 Preservation of records. 102.11 Subpoenas. Appendix A to Subpart A—Records Maintained by SBA Subpart A—Disclosure of Information
§ 102.1 General provisions.

(a) This subpart contains the rules that SBA follows in processing requests for records under the Freedom of Information Act (“FOIA”), 5 U.S.C. 552. The rules in this subpart should be read in conjunction with the text of the FOIA and the Uniform Freedom of Information Fee Schedule and Guidelines published by the Office of Management and Budget (“OMB Guidelines”). Requests made by individuals for records about themselves under the Privacy Act of 1974, 5 U.S.C. 552a, are processed under subpart B of this part as well as under this subpart.

(b) As referenced in this subpart, “component” means each separate bureau, office, division, district office, regional office, area office, service center, loan processing center or central office duty location within the SBA that is responsible for processing FOIA requests. See appendix A to this subpart for a list of information generally exempt from disclosure. For contact information for each office visit https://www.sba.gov/foia and for a detailed description of the function of each office to help ascertain the types of records maintained by each component, please visit https://www.sba.gov/about-sba. The rules described in this regulation that apply to SBA also apply to its components.

(c) The SBA has a decentralized system for processing requests, with each component handling requests for its records.

(d) The term record means:

(1) Any information that would be an agency record subject to the requirements of this section when maintained by SBA in any format, including written or electronic format; and

(2) Any information described under paragraph (d)(1) of this section that is maintained for SBA by an entity under Government contract, for purposes of records management.

§ 102.2 Proactive disclosure of records.

Records that are required by the FOIA to be made available for public inspection in an electronic format may be accessed through the SBA's Web site at https://www.sba.gov/foia. Each component of SBA is responsible for determining which of its records are required to be made publicly available, as well as for identifying additional records of interest to the public that are appropriate for public disclosure, and for posting and indexing such records. Each component shall ensure that its Web site of posted records and indices is reviewed and updated on an ongoing basis. Each component has a FOIA Public Liaison who can assist individuals in locating records particular to a component. A list of the SBA's FOIA Public Liaisons is available at https://www.sba.gov/foia.

§ 102.3 Requirements pertaining to the submission of requests.

(a) General information. (1) The SBA has a decentralized system for responding to FOIA requests, with each component handling requests for its records. All components have the capability to receive requests electronically either through email or a web portal. To make a request for records, a requester should write directly to the Freedom of Information/Privacy Acts (FOI/PA) Office by mail to 409 3rd St SW., Washington, DC 20416 or submit a fax to 202-205-7059 or email to [email protected] Requesters may also submit their request through the FOIA online portal at https://foiaonline.regulations.gov/foia/action/public/home. Additional information for submitting a request to SBA is listed at https://www.sba.gov/foia. However, a request will receive the quickest possible response if it is addressed to the component that maintains the records sought.

(2) A requester who is making a request for records about himself or herself must comply with the verification of identity provision set forth in subpart B of this part. The Certification of Identity form, available at http://www.justice.gov/oip/forms/cert_ind.pdf, may be used by individuals who are making requests for records pertaining to themselves.

(3) Where a request for records pertains to another individual, 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, each component can require a requester to supply additional information if necessary in order to verify that a particular individual has consented to disclosure.

(b) Description of records sought. Requesters must describe the records sought in sufficient detail to enable agency personnel to locate them with a reasonable amount of effort. To the extent possible, requesters should include specific information that may help the component in identifying the requested records, such as the date, title or name, author, recipient, subject matter of the record, case number, file designation, reference number, the timeframe for which the records are sought, the office that created the records, or any other information that will assist the component in locating documents responsive to the request. Before submitting their requests, requesters may contact the component's FOIA Contact or FOIA Public Liaison to discuss the records they are seeking and to receive assistance in describing the records. If, after receiving a request, a component determines that the request does not adequately describe the records sought, the component will inform the requester what additional information is needed or why the request is otherwise insufficient. The component will also notify the requester that it will not be able to comply with their request unless the additional information it has requested is received from them in writing within 20 working days after the component has requested it. If this type of notification is received, a requester may wish to discuss it with the FOIA Public Liaison. If the component does not receive a written response containing the additional information within 20 working days after it has been requested, the SBA will presume that the requester is no longer interested in the records and will close the file on the request. Requesters who are attempting to reformulate or modify such a request may discuss their request with the component's designated FOIA Contact or its FOIA Public Liaison, or a representative of the FOI/PA Office, each of whom is available to assist the requester in reasonably describing the records sought. If a request does not reasonably describe the records sought, the SBA's response to the request may be delayed.

(c) Form or format. Requests may specify the preferred form or format (including electronic formats) for the records sought. The SBA will accommodate the request if the record is readily reproducible in that form or format.

(d) Contact information. Requesters must provide contact information, such as their phone number, email address, and mailing address, to assist the SBA in communicating with the requester and providing the released records.

§ 102.4 Responsibility for responding to requests.

(a) In general. Except in the instances described in paragraphs (c) and (d) of this section, the component that first receives a request for a record and maintains that record is the component responsible for responding to the request. In determining which records are responsive to a request, a component ordinarily will include only records in its possession as of the date that it begins its search. If any other date is used, the component shall 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 head of a component, or designee, is authorized to grant or to deny any requests for records that are maintained by that component.

(c) Re-routing of misdirected requests. Where a component determines that a request was misdirected within the SBA, the receiving component shall route the request to the proper component(s).

(d) Consultation, referral, and coordination. When reviewing records located by a component in response to a request, the component shall determine whether another component of SBA or 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 component shall proceed in one of the following ways:

(1) Consultation. When records originated with the component processing the request, but contain within them information of interest to another component, agency, or other Federal Government office, the component processing the request should typically consult with that other component or agency prior to making a release determination.

(2) Referral. (i) When the component processing the request believes that a different component, agency, or other Federal Government office is best able to determine whether to disclose the record, the component typically should refer the responsibility for responding to the request regarding that record, as long as the referral is to a component or agency that is subject to the FOIA. Ordinarily, the component or agency that originated the record will be presumed to be best able to make the disclosure determination. However, if the component processing the request and the originating component or agency jointly agrees that the former is in the best position to respond regarding the record, then the record may be handled as a consultation.

(ii) Whenever a component refers any part of the responsibility for responding to a request to another component or agency, it shall document the referral, maintain a copy of the record that it refers, and notify the requester of the referral and inform the requester of the name(s) of the component or agency to which the record was referred, including that component's or agency's FOIA Contact information.

(3) Coordination. The standard referral procedure is not appropriate where disclosure of the identity of the component or 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 component 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 a component 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 component that received the request should coordinate with the originating component or agency to seek its views on the disclosure of the record. The release determination for the record that is the subject of the coordination should then be conveyed to the requester by the component that originally received the request.

(e) Classified information. On receipt of any request involving classified information, the component shall determine whether the information is currently and properly classified and take appropriate action to ensure compliance. Whenever a request involves a record containing information that has been classified or may be appropriate for classification by another component or agency under any applicable executive order concerning the classification of records, the receiving component shall refer the responsibility for responding to the request regarding that information to the component or agency that classified the information, or that should consider the information for classification. Whenever a component's record contains information that has been derivatively classified (for example, when it contains information classified by another component or agency), the component shall refer the responsibility for responding to that portion of the request to the component or agency that classified the underlying information.

(f) Agreements regarding consultations and referrals. Components of SBA may establish agreements with other components of SBA or other Federal agencies to eliminate the need for consultations or referrals with respect to particular types of records.

(g) Timing of responses to consultations and referrals. All consultations and referrals received by the SBA will be handled according to the date that the FOIA request initially was received by the first component or agency.

§ 102.5 Timing of responses to requests.

(a) In general. Components ordinarily will respond to requests according to their order of receipt. In instances involving misdirected requests that are re-routed pursuant to § 102.4(c), the response time will commence on the date that the request is received by the proper component's office that is designated to receive requests, but in any event not later than 10 working days after the request is first received by any component's office that is designated by these regulations to receive requests.

(b) Multitrack processing. All components will designate a specific track for requests that are granted expedited processing, in accordance with the standards set forth in paragraph (e) of this section. A component may also designate additional processing tracks that distinguish between simple and more complex requests based on the estimated amount of work or time needed to process the request. Among the factors that may be considered are the number of records requested, the number of pages involved in processing the request and the need for consultations or referrals. Components shall advise requesters of the track into which their request falls and, when appropriate, should offer the requester an opportunity to narrow or modify the request so that it can be placed in a different processing track.

(c) Unusual circumstances. Whenever the statutory time limit for processing a request cannot be met because of “unusual circumstances,” as defined in the FOIA, and the component extends the time limit on that basis, the component shall, before expiration of the 20-working day period to respond, notify the requester in writing of the unusual circumstances involved and of the date by which the component estimates processing of the request will be completed. Where the extension exceeds 10 working days, the component shall, as prescribed by the FOIA, provide the requester with an opportunity to modify the request or to arrange an alternative time period for processing the original or modified request. The component shall make available its designated FOIA Contact or its FOIA Public Liaison for this purpose. The component must also alert requesters to the availability of the Office of Government Information Services (OGIS) to provide dispute resolution services.

(d) Aggregating requests. For the purposes of determining unusual circumstances under the FOIA, components 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. Components shall not aggregate multiple requests that involve unrelated matters.

(e) Expedited processing. (1) Requests and appeals shall be processed 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 exist 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 (e)(1)(i) through (iii) of this section must be submitted to the component that maintains the records requested. When making a request for expedited processing of an administrative appeal, the request should be submitted to the FOI/PA Office. Requests for expedited processing that are based on paragraph (e)(1)(iv) of this section must be submitted to the component processing the request. A component that receives a misdirected request for expedited processing under the standard set forth in paragraph (e)(1)(iv) of this section shall forward it immediately to the FOI/PA Office for its determination. The time period for making the determination on the request for expedited processing under paragraph (e)(1)(iv) of this section shall commence on the date that the FOI/PA Office receives the request, provided that it is routed within 10 working days.

(3) A requester who seeks expedited processing must submit a notarized statement, such as an affidavit or declaration, certified to be true and correct, explaining in detail the basis for making the request for expedited processing. For example, under paragraph (e)(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 SBA may waive the formal certification requirement.

(4) A component shall notify the requester within 10 working 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, 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, any appeal of that decision shall be acted on expeditiously.

§ 102.6 Responses to requests.

(a) In general. Components should, to the extent practicable, communicate with requesters having access to the Internet using electronic means, such as email or web portal.

(b) Acknowledgments of requests. A component shall acknowledge the request in writing and assign it an individualized tracking number. Components shall 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, components shall provide an estimated date by which they expect to provide a response to the requester. If a request involves a voluminous amount of material, or searches in multiple locations, the SBA or component may provide interim responses, releasing the records on a rolling basis.

(d) Grants of requests. Once a component determines it will grant a request in full or in part, it will notify the requester in writing. The component shall inform the requester of any fees charged under § 102.8 and shall disclose the requested records to the requester promptly upon payment of any applicable fees. The component must inform the requester of the availability of its FOIA Public Liaison to offer assistance.

(e) Adverse determinations of requests. A component making an adverse determination denying a request in any respect shall notify the requester of that determination in writing. Adverse determinations, or denials of requests, include denials involving fees or fee waiver matters, denials of requests for expedited processing, and decisions where:

(1) The requested record is exempt, in whole or in part;

(2) The request does not reasonably describe the records sought;

(3) The information requested is not a record subject to the FOIA;

(4) The requested record does not exist, cannot be located, or has been destroyed; or

(5) The requested record is not readily reproducible in the form or format sought by the requester.

(f) Content of denial. The denial must be signed by the head of the component or designee 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 applied by the component 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;

(4) A statement that the denial may be appealed under § 102.9, and a description of the appeal requirements; and

(5) A statement notifying the requester of the assistance available from the component's FOIA Public Liaison or designee, and the dispute resolution services offered by 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.

§ 102.7 Confidential commercial information.

(a) Definitions. For purposes of this section:

Confidential commercial information means commercial or financial information obtained by the SBA from a submitter that may be protected from disclosure under Exemption 4 of the FOIA, 5 U.S.C. 552(b)(4).

Submitter means any person or entity, including a corporation, State, or foreign government, but not including another Federal Government entity, that provides information, either directly or indirectly to the Federal Government.

(b) Designation of confidential commercial information. A submitter of confidential commercial information must use good faith efforts to designate by appropriate markings, either at the time of submission or within a reasonable time thereafter, any portion of its submission that it considers to be protected from disclosure under Exemption 4. These designations shall expire 10 years after the date of the submission unless the submitter requests and provides justification for a longer designation period.

(c) When notice to submitters is required. (1) A component shall promptly provide written notice to a submitter of confidential commercial information whenever records containing such information are requested under the FOIA if, after reviewing the request, the responsive records, and any appeal by the requester, the component 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 component 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 under that exemption or any other applicable exemption.

(2) The notice shall 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, notice may be made by posting or publishing the notice in a place or manner reasonably likely to accomplish it.

(d) Exceptions to submitter notice requirements. The notice requirements of this section shall not apply if:

(1) The component determines that the information is exempt under the FOIA;

(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 Executive Order 12600 of June 23, 1987; or

(4) The designation made by the submitter under paragraph (b) of this section appears obviously frivolous, except that, in such a case, the component shall give the submitter written notice of any final decision to disclose the information and must provide that notice within a reasonable number of days prior to a specified disclosure date.

(e) Opportunity to object to disclosure. (1) A component shall specify a reasonable time period within which the submitter must respond to the notice referenced above. If the submitter has any objections to disclosure, it should provide the component 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 the basis for nondisclosure, the submitter must explain why the information constitutes a trade secret or commercial or financial information that is privileged or confidential.

(2) A submitter who fails to respond within the time period specified in the notice shall be considered to have no objection to disclosure of the information. Information received by the component after the date of any disclosure decision shall not be considered by the component. Any information provided by a submitter under this subpart may itself be subject to disclosure under the FOIA.

(f) Analysis of objections. A component shall consider a submitter's objections and specific grounds for nondisclosure in deciding whether to disclose the requested information.

(g) Notice of intent to disclose. Whenever a component decides to disclose information over the objection of a submitter, the component shall provide the submitter written notice, which shall 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; and

(3) A specified disclosure date, which shall be a reasonable time subsequent to the notice.

§ 102.8 Fees.

(a) In general. Components shall charge for processing requests under the FOIA in accordance with the provisions of this section and with the OMB Guidelines. In order to resolve any fee issues that arise under this section, a component may contact a requester for additional information. Components shall ensure that searches, review, and duplication are conducted in the most efficient and the least expensive manner. A component 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 Small Business Administration, addressed to the component assessing the fee.

(b) Categories of requesters. Different fees are assessed depending on the requester category. Requesters may seek a fee waiver. Requests for fee waivers will be considered in accordance with the requirements in paragraph (l) of this section. For purposes of assessing fees, the FOIA establishes four categories of requesters:

(1) Commercial use requesters;

(2) Non-commercial scientific/educational institutions requesters;

(3) News media requesters, and;

(4) All other requesters.

(c) Definitions. For purposes of this section:

(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. A component'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.

(2) Direct costs are those expenses that the SBA 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 16 percent 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. This will be in addition to search, review, and duplication fees, and shall be paid by requesters categorized as commercial and other.

(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.

(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 his or her role at the educational institution. Components may seek verification from the requester that the request is in furtherance of scholarly research and will advise requesters of their placement in this category.

Example 1 to paragraph (c)(4). 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.

Example 2 to paragraph (c)(4). 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.

Example 3 to paragraph (c)(4). A student, who makes a request in furtherance of their 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 (c)(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.

(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. 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 disseminate solely on the Internet. 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, a requester's past publication record will be considered in making a determination.

(7) Review is the examination of a record located in response to a request in order to determine whether any portion of it is exempt from disclosure. 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 § 102.7, 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.

(d) Charging fees. In responding to FOIA requests, components will charge the following fees unless a waiver or reduction of fees has been granted under paragraph (l) of this section. Because the fee amounts provided below already account for the direct costs associated with a given fee type, components will 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. Search fees shall be charged for all other requesters, subject to the restrictions of paragraph (e) of this section. Components 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 hour spent by personnel searching for requested records, including electronic searches that do not require new programming, the fees will be charged as follows: Professional (GS 9-14)—$46; and managerial (GS 15 and above)—$83.

(iii) Requesters shall be charged the direct costs associated with conducting any search that requires the creation of a new computer program to locate the requested records. Requesters shall be notified of the costs associated with creating such a program and must agree to pay the associated costs before the costs may be incurred.

(iv) For requests that require the retrieval of records stored by SBA at a Federal Records Center operated by the National Archives and Records Administration (NARA), additional costs shall be charged in accordance with the Transactional Billing Rate Schedule established by NARA.

(2) Duplication. Duplication fees will be assessed to all requesters, subject to the restrictions of paragraph (e) of this section. A component shall honor a requester's preference for receiving a record in a particular form or format where it can be readily reproduced in the form or format requested. Where photocopies are supplied, SBA will provide one copy per request at the cost of $.10 per page. For copies of records produced on tapes, disks, or other media, SBA will 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, components shall charge the direct costs.

(3) Review. (i) Review fees will be assessed 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 a component 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 SBA'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 (d)(1)(ii) of this section.

(ii) The following table summarizes the fees for each type of requester.

Table 1 to § 102.8—Summary of Fees Requester category Search Review Duplication fees Direct costs Commercial Use Yes Yes Yes Yes. Educational/Noncommercial Scientific Institutions No No Yes (first 100 pages, or equivalent volume free) No. News Media No No Yes (first 100 pages, or equivalent volume free) No. All Others Yes (first 2 hours free) No Yes (first 100 pages, or equivalent volume free) Yes.

(e) Restrictions on charging fees. (1) When a component 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.

(i) If a component fails to comply with the 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 (c)(1) of this section, may not charge duplication fees, except as described in paragraphs (d)(1)(ii) through (iv) of this section.

(ii) If a component has determined that unusual circumstances as defined by the FOIA apply and SBA provided timely written notice to the requester in accordance with the FOIA, a failure to comply with the time limit shall be excused for an additional 10 working days.

(iii) If a component 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 component may charge search fees, or, in the case of requesters described in paragraph (c)(1) of this section, may charge duplication fees, if the following steps are taken. The component shall provide a timely written notice of unusual circumstances to the requester in accordance with the FOIA and SBA 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 component 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.

(2) 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.

(3) Except for requesters seeking records for a commercial use, components shall 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.

(4) 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 $46.00.

(f) Notice of anticipated fees in excess of $46.00. (1) When a component determines or estimates that the fees to be assessed in accordance with this section will exceed $46.00, the component shall 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 component shall advise the requester accordingly. If the request is not for noncommercial 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) In cases in which a requester has been notified that the actual or estimated fees are in excess of $46.00, the request shall 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 noncommercial 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. Components are not required to accept payments in installments.

(3) If the requester has indicated a willingness to pay some designated amount of fees, but the component estimates that the total fee will exceed that amount, the component 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 component shall 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) Components shall make available their FOIA Public Liaison or other designee to assist any requester in reformulating a request to meet the requester's needs at a lower cost.

(g) Charges for other services. Although not required to provide special services, if a component 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.

(h) Charging interest. Components may charge interest on any unpaid bill starting on the 31st 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 component. Components shall 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.

(i) Aggregating requests. When a component 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 component may aggregate those requests and charge accordingly. Components may presume that multiple requests of this type made within a 30-day period have been made in order to avoid fees. For requests separated by a longer period, components shall 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.

(j) Advance payments. (1) For requests other than those described in paragraphs (j)(2) or (j)(3) of this section, components cannot 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 a component 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. Components 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 any component or SBA within 30 working days of the billing date, a component may require that the requester pay the full amount due, plus any applicable interest on that prior request, and the component may require that the requester make an advance payment of the full amount of any anticipated fee before SBA begins to process a new request or continues to process a pending request or any pending appeal. When a component 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 advanced payment is required, 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 30 working days after the date of the fee determination, the request will be closed.

(k) Other statutes specifically providing for fees. The fee schedule of this section does not apply to fees charged under any statute that specifically requires SBA 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 requester will be informed of the contact information for that program.

(l) Requirements for waiver or reduction of fees. (1) Requesters may seek a waiver of fees by submitting written correspondence 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. Records responsive to a request shall be furnished without charge or at a reduced rate below the rate established under paragraph (d) of this section, where a component determines, based on all available information, that the requester has demonstrated that:

(i) 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

(ii) Disclosure of the information is not primarily in the commercial interest of the requester.

(2) Components shall furnish records responsive to a request without charge or at a reduced rate when it determines, based on all available information, that the factors described in paragraphs (l)(2)(i) through (iii) of this section are satisfied:

(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. Components shall 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 following criteria will be considered:

(A) 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, a determination will be made whether the primary interest is furthered by the request. A waiver or reduction of fees is justified when the requirements of paragraphs (l)(2)(i) and (ii) of this section are satisfied and any commercial interest is not the primary interest furthered by the request. Ordinarily there will be a presumption, that when a news media requester has satisfied factors (l)(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 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.

§ 102.9 Administrative appeals.

(a) Requirements for making an appeal. A requester may appeal any adverse determinations to the FOI/PA Office. The contact information is contained in §  102.3(a)(1). Examples of adverse determinations are provided in § 102.6(e). The requester must make the appeal in writing and to be considered timely it must be postmarked, or in the case of electronic submissions, transmitted, within 90 working days after the date of the response. The appeal should clearly identify the component's determination that is being appealed and the assigned request number. 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.”

(b) Adjudication of appeals. (1) The Chief, FOI/PA or designee will act on behalf of the SBA 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 FOI/PA Office shall take appropriate action to ensure compliance with Executive Orders 13467 and 13526.

(c) Decisions on appeals. A decision on an appeal will be made in writing. A decision that upholds a component's determination 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 inform the requester of the mediation services offered by OGIS as a non-exclusive alternative to litigation. If a component's decision is remanded or modified on appeal, the requester will be notified of that determination in writing. The component will thereafter, further process the request in accordance with that appeal determination and respond directly to the requester.

(d) Time limit for issuing appeal decision. The statutory time limit for responding to appeals is generally 20 working days after receipt. However, the Appeals Officer may extend the time limit for responding to an appeal provided the circumstances set forth in 5 U.S.C. 552(a)(6)(B)(i) are met.

(e) Engaging in dispute resolution services provided by OGIS. Mediation is a voluntary process. If a component agrees to participate in the mediation services provided by OGIS, it will actively engage as a partner to the process in an attempt to resolve the dispute.

(f) When an appeal is required. Before seeking review by a court of a component's adverse determination, a requester generally must first submit a timely administrative appeal.

§ 102.10 Preservation of records.

Each component shall 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 or the General Records Schedule 14 of the National Archives and Records Administration. Records shall not be disposed of or destroyed while they are the subject of a pending request, appeal, or lawsuit under the FOIA.

§ 102.11 Subpoenas.

(a) The person to whom the subpoena is directed must consult with SBA counsel in the relevant SBA office, who will seek approval for compliance from the Associate General Counsel for Litigation. Except where the subpoena requires the testimony of an employee of the Inspector General's office, or records within the possession of the Inspector General, the Associate General Counsel may delegate the authorization for appropriate production of documents or testimony to local SBA counsel.

(b) If SBA counsel approves compliance with the subpoena, SBA will comply.

(c) If SBA counsel disapproves compliance with the subpoena, SBA will not comply, and will base such noncompliance on an appropriate legal basis such as privilege or a statute.

(d) SBA counsel must provide a copy of any subpoena relating to a criminal matter to SBA's Inspector General prior to its return date.

Appendix A to Subpart A of Part 102—Records Maintained by SBA I. Information Generally Exempt From Disclosure

a. Non-statistical information on pending, declined, withdrawn, or canceled applications.

b. Non-statistical information on defaults, delinquencies, losses etc.

c. Loan status, other than charged-off or paid-in-full.

d. Home disaster loan status and interest rate.

e. Financial statements, credit reports, business plans, plant lay-outs, marketing strategy, advertising plans, fiscal projections, pricing information, payroll information, private sector experience and contracts, IRS forms, purchase information, banking information, corporate structure, research plans and client list of applicant/recipient.

f. Portions of: Certificate of Competency records, Requests for Size Determinations, 8(a) Business Development Plans, loan applications, SBIC applications, loan officer's reports.

g. Internal documents not incorporated into final Agency action, pending internal recommendations on applications for assistance, SBA/attorney-client communications, pending litigation documents and investigatory documents. Discretionary disclosure policy must be utilized.

h. Personal history and financial statements, tax forms, resumes, all non-government career experience, communications regarding applicant's character, home addresses and telephone numbers, social security numbers, birth dates and medical records. Portions of Inspector General (IG) reports, audit reports, program investigation records and any other records which, if released, would interfere with the Government's law enforcement proceedings and/or would reveal the identity of a confidential source and documents relating to pending litigation and investigations. Requests for IG documents must be referred to the Office of the Inspector General, Counsel Division.

i. Financial information on portfolio companies.

j. Information originating from other agencies should be referred to those agencies for disclosure determinations.

II. Information Generally Disclosed

a. Names and business addresses of recipients of approved loans, SBIC licenses, Certificates of Competency, lease guarantees, surety bond guarantees and requests for counseling.

b. Names of officers, directors, stockholders or partners of recipient firms.

c. Kinds and amounts of loans, loan terms, interest rates (except on home disaster loans), maturity dates, general purpose, etc.

d. Statistical data on assistance, loans, defaults, contracts, counseling, etc.

e. Decisions, rulings and records showing final Agency actions in specific factual situations if identifying details exempt from disclosure are first deleted.

f. Awarded contracts: names, amounts, dates, contracting agencies.

g. Identity of participating banks.

h. List of 8(a) participants, date of entry, FPPT dates and NAICS codes.

i. OHA opinions and decisions.

j. Names of SBA employees, grades, titles, and duty stations.

Linda E. McMahon, Administrator.
[FR Doc. 2017-21204 Filed 10-4-17; 8:45 am] BILLING CODE 8025-01-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-0034; Product Identifier 2016-NE-32-AD; Amendment 39-19063; AD 2017-20-06] RIN 2120-AA64 Airworthiness Directives; Honeywell International Inc. Turbofan Engines AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain Honeywell International Inc. (Honeywell) AS907-1-1A turbofan engines. This AD was prompted by reports of loss of power due to failure of the second stage low-pressure turbine (LPT2) blade. This AD requires a one-time inspection of the LPT2 blades and, if the blades fail the inspection, the replacement of the blades with a part eligible for installation. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective November 9, 2017.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 9, 2017.

ADDRESSES:

For service information identified in this final rule, contact Honeywell International Inc., 111 S 34th Street, Phoenix, AZ 85034-2802; phone: 800-601-3099; Internet: https://myaerospace.honeywell.com/wps/portal. You may view this service information at the FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA 01803. For information on the availability of this material at the FAA, call (781) 238-7125. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0034.

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-2017-0034; 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 final rule, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Document Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Joseph Costa, Aerospace Engineer, Los Angeles ACO Branch, FAA, 3960 Paramount Blvd., Lakewood, CA 90712-4137; phone: 562-627-5246; fax: 562-627-5210; email: [email protected]

SUPPLEMENTARY INFORMATION:

Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Honeywell International Inc. (Honeywell) AS907-1-1A turbofan engines. The NPRM published in the Federal Register on June 20, 2017 (82 FR 28028). The NPRM was prompted by reports of loss of power due to failure of the second stage LPT2 blade from high-cycle fatigue in the blade's dovetail region. The NPRM proposed to require a one-time inspection of the LPT2 blades and, if the blades fail the inspection, the replacement of the blades with a part eligible for installation. We are issuing this AD to prevent failure of the LPT2 blades, failure of one or more engines, and loss of the airplane.

Comments

We gave the public the opportunity to participate in developing this final rule. We received no comments on the NPRM or on the determination of the cost to the public.

Conclusion

We reviewed the relevant data and determined that air safety and the public interest require adopting this final rule as proposed except for minor editorial changes. We have determined that these minor changes:

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

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

Related Service Information Under 1 CFR Part 51

We reviewed Honeywell Service Bulletin (SB) AS907-72-9067, Revision 1, dated March 20, 2017. This SB describes procedures for inspecting the LPT2 blades. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Other Related Service Information

We reviewed Honeywell SB AS907-72-9067, Revision 0, dated December 12, 2016, which also describes procedures for inspecting the LPT2 blades. We also reviewed the Honeywell Light Maintenance Manual, AS907-1-1A, 72-00-00, Section 72-05-12, dated May 25, 2016, and Section 72-55-03, dated September 27, 2011, which provide additional guidance for performing borescope inspections.

Costs of Compliance

We estimate that this AD affects 40 engines installed on airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Borescope inspection 10 work-hours × $85 per hour = $850 $0 $850 $34,000 Report results of inspection 1 work-hour × $85 per hour = $85 0 85 3,400

    We estimate the following costs to do any necessary replacements that would be required based on the results of the inspection. We estimate that 40 engines will need this replacement.

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Replacement of the LPT2 blade set 50 work-hours × $85 per hour = $4,250 $50,000 $54,250
    Paperwork Reduction Act

    A federal agency may not conduct or sponsor, and a person is not required to respond to, nor shall a person be subject to penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act unless that collection of information displays a current valid OMB control number. The control number for the collection of information required by this AD is 2120-0056. The paperwork cost associated with this AD has been detailed in the Costs of Compliance section of this document and includes time for reviewing instructions, as well as completing and reviewing the collection of information. Therefore, all reporting associated with this AD is mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at 800 Independence Ave., SW., Washington, DC 20591. ATTN: Information Collection Clearance Officer, AES-200.

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

    (3) Will not affect intrastate aviation in Alaska to the extent that it justifies making a regulatory distinction, and

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2017-20-06 Honeywell International Inc.: Amendment 39-19063; Docket No. FAA-2017-0034; Product Identifier 2016-NE-32-AD. (a) Effective Date

    This AD is effective November 9, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Honeywell International Inc. (Honeywell) AS907-1-1A turbofan engines with second stage low-pressure turbine (LPT2) rotor blades, part number (P/N) 3035602-1, installed.

    (d) Subject

    Joint Aircraft System Component (JASC) Code 7250, Turbine Section.

    (e) Unsafe Condition

    This AD was prompted by reports of loss of power due to failure of the LPT2 blade. We are issuing this AD to prevent failure of the LPT2 blades, failure of one or more engines, and loss of the airplane.

    (f) Compliance

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

    (1) For LPT2 rotor blades, P/N 3035602-1 that have more than 8,000 hours since new on the effective date of this AD, perform a one-time borescope inspection for wear of the Z gap contact area at the blade tip shroud for each of the 62 LPT2 rotor blades within 200 hours time in service after the effective date of this AD.

    (2) Use the Accomplishment Instructions, Paragraph 3.B.(1), of Honeywell Service Bulletin (SB) AS907-72-9067, Revision 1, dated March 20, 2017, to do the inspection.

    (3) If the measured wear and/or fretting of any Z gap contact area is greater than 0.005 inch, replace the LPT2 rotor assembly with a part eligible for installation before further flight.

    (4) Do the following actions within 200 hours time in service after the effective date of this AD:

    (i) Using a borescope make a clear digital image of the Z gap contact area at the blade tip shroud of the 62 LPT2 rotor blades.

    (ii) Identify the three Z gap contact areas with the greatest amount of wear and/or fretting.

    (iii) Record the blade position on the LPT2 rotor assembly and the measured wear of the three Z gap contact areas with the greatest amount of wear and/or fretting.

    (iv) Send the results to Honeywell at [email protected] within 30 days after completing these actions.

    (g) Credit for Previous Actions

    You may take credit for the actions required by paragraphs (f)(1) and (4) of this AD, if you performed these actions before the effective date of this AD using Honeywell SB AS907-72-9067, Revision 0, dated December 12, 2016.

    (h) Paperwork Reduction Act Burden Statement

    A federal agency may not conduct or sponsor, and a person is not 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 unless that collection of information displays a current valid OMB Control Number. The OMB Control Number for this information collection is 2120-0056. Public reporting for this collection of information is estimated to be approximately 5 minutes per response, including the time for reviewing instructions, completing and reviewing the collection of information. All responses to this collection of information are mandatory. Comments concerning the accuracy of this burden and suggestions for reducing the burden should be directed to the FAA at: 800 Independence Ave. SW., Washington, DC 20591, Attn: Information Collection Clearance Officer, AES-200.

    (i) Alternative Methods of Compliance (AMOCs)

    (1) The Manager, Los Angeles ACO Branch, FAA, may 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 Los Angeles ACO Branch, send it to the attention of the person identified in paragraph (j) of this AD.

    (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.

    (j) Related Information

    For more information about this AD, contact Joseph Costa, Aerospace Engineer, Los Angeles ACO Branch, FAA, 3960 Paramount Blvd., Lakewood, CA 90712-4137; phone: 562-627-5246; fax: 562-627-5210; email: [email protected]

    (k) Material Incorporated by Reference

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

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

    (i) Honeywell Service Bulletin AS907-72-9067, Revision 1, dated March 20, 2017.

    (ii) Reserved.

    (3) For Honeywell service information identified in this AD, contact Honeywell International Inc., 111 S 34th Street, Phoenix, AZ 85034-2802; phone: 800-601-3099; Internet: https://myaerospace.honeywell.com/wps/portal.

    (4) You may view this service information at FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7125.

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

    Issued in Burlington, Massachusetts, on September 22, 2017. Robert J. Ganley, Manager, Engine and Propeller Standards Branch, Aircraft Certification Service.
    [FR Doc. 2017-21285 Filed 10-4-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2016-9183; Product Identifier 2016-NM-059-AD; Amendment 39-19029; AD 2017-18-20] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for The Boeing Company Model 707 airplanes equipped with a main cargo door (MCD). This AD was prompted by analysis of the cam support assemblies of the MCD that indicated the repetitive high frequency eddy current (HFEC) inspections required by the existing maintenance program are not adequate to detect cracks before two adjacent cam support assemblies of the MCD could fail. This AD requires repetitive ultrasonic inspections for cracking of the cam support assemblies of the MCD, and replacement if necessary. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective November 9, 2017.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 9, 2017.

    ADDRESSES:

    For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; Internet https://www.myboeingfleet.com. You may view this service information at the FAA, Transport Standards Branch, 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-2016-9183.

    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-2016-9183; 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 final rule, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Chandra Ramdoss, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5239; fax: 562-627-5210; email: [email protected].

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 707 airplanes. The NPRM published in the Federal Register on October 4, 2016 (81 FR 68376) (“the NPRM”). The NPRM was prompted by analysis of the cam support assemblies of the MCD that indicated the repetitive HFEC inspections required by the existing maintenance program are not adequate to detect cracks before two adjacent cam support assemblies of the MCD could fail. The NPRM proposed to require repetitive ultrasonic inspections for cracking of the cam support assemblies of the MCD, and replacement if necessary. We are issuing this AD to detect and correct cracking of the cam support assemblies of the MCD. Such cracking could result in reduced structural integrity of the MCD and consequent rapid decompression of the airplane.

    Comments

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

    Request To Revise Applicability

    Boeing stated that Boeing 707 Alert Service Bulletin A3542, dated February 12, 2016, affects only Boeing factory and Boeing-converted freighters, but the proposed AD extends the applicability to all Model 707 airplanes, including the ones that have been converted by non-Boeing supplemental type certificates (STCs).

    We infer the commenter is requesting that the actions of the service information only be required for Model 707 airplanes identified in the Effectivity paragraph of Boeing 707 Alert Service Bulletin A3542, dated February 12, 2016. We agree that the applicability of the proposed AD should not include Model 707 airplanes that do not have an MCD. However, we disagree that the AD applicability should be limited to the airplanes identified in the Effectivity paragraph of Boeing 707 Alert Service Bulletin A3542, dated February 12, 2016, which only identifies Boeing factory and Boeing-converted freighters. The cam support assemblies having the affected part number could be installed at original aircraft manufacture, or during passenger-to-freighter modification. We expect that the actions specified in Boeing 707 Alert Service Bulletin A3542, dated February 12, 2016, can be accomplished on airplanes that are not identified in that service information. However, if an operator with a Model 707 freighter that is not a part of Boeing type design cannot accomplish the required actions in the service information, or prefers to use different service information that is specific to their design, approval of an alternative method of compliance (AMOC) can be requested in accordance with paragraph (j) of this AD. We revised this AD to limit the applicability to Model 707 airplanes equipped with an MCD.

    Request To Supersede AD 80-08-10 R1, Amendment 39-3830 (45 FR 46343, July 10, 1980) (“AD 80-08-10 R1”)

    Boeing requested that we revise the NPRM to supersede AD 80-08-10 R1. Boeing stated that AD 80-08-10 R1 mandates HFEC inspections of MCD cam support assemblies having part numbers (P/Ns) 69-23588-1 and 69-23588-2, as specified in Boeing Service Bulletin 707-A3387. Boeing explained that the NPRM is adding cam support assemblies having P/Ns 69-23588-1 and 69-23588-2 to the list in Boeing 707 Alert Service Bulletin A3542, dated February 12, 2016. Boeing asserted that the addition of these components to the list of affected parts would mean that the operators have to perform HFEC inspections of cam support assemblies having P/Ns 69-23588-1 and 69-23588-2, as specified in AD 80-08-10 R1, and perform ultrasonic inspections of the same components, as specified in the proposed AD. Boeing explained that cracking initiates at the bottom of the lubrication hole on the inside of the cam support fitting lug and is not visible until it breaks to the surface of the lug. The subsurface detection capability of the ultrasonic inspection provides a more reliable inspection.

    We partially agree with Boeing's request to supersede the inspections which are still required per AD 80-08-10 Rl. These inspections will overlap with the newly mandated repetitive inspections. We disagree with the request to revise this AD to supersede AD 80-08-10 Rl. Instead, we have added language to paragraph (i) of this AD to state that accomplishing the initial inspection and all applicable replacements required by paragraph (h) of this AD on an airplane terminates the requirements of AD 80-08-10 R1, for that airplane only.

    Request To Revise Compliance Time

    Boeing requested that we revise the compliance time in paragraph (g)(l) of the proposed AD from “before the accumulation of 18,000 total flight cycles” to “before the accumulation of 18,000 door flight cycles, or within 10 years after the utilization of MCD cam support assemblies, whichever occurs first. If the door flight cycles are not known, use total airplane flight cycles.” Boeing explained that this change would provide relief for the operators that use converted freighters by delaying the required inspection for the MCDs that have been in service less than 18,000 total door flight cycles, but are installed on the airplanes that have more than 18,000 total airframe flight cycles. Boeing also stated that the 10-year time limit is included in Boeing 707 Alert Service Bulletin A3542, dated February 12, 2016, to address the low utilization rate of Model 707/720 airplanes.

    We agree with Boeing's request. For the airplanes that have been converted to freighters, the compliance time for the initial inspection should be based on the number of cycles the MCD cam support assembly has been in service. We have revised paragraph (g)(l) of this AD accordingly. In addition, we have revised paragraph (h) of this AD to refer to the compliance times specified in paragraphs (g)(1) and (g)(2) of this AD instead of referring to Boeing 707 Alert Service Bulletin A3542, dated February 12, 2016. We have also removed the exception to the service information that was in paragraph (i) of the proposed AD.

    Conclusion

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

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

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

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

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing 707 Alert Service Bulletin A3542, dated February 12, 2016. The service information describes procedures for an ultrasonic inspection of the cam support assemblies of the MCD for cracking, and replacement if necessary. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD will affect 12 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S. operators Inspection 6 work-hours × $85 per hour = $510 per inspection cycle $0 $510 per inspection cycle $22,950 per inspection cycle.

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

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Replacement 60 work-hours × $85 per hour = $5,100 $14,107 $19,207
    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2017-18-20 The Boeing Company: Amendment 39-19029; Docket No. FAA-2016-9183; Product Identifier 2016-NM-059-AD. (a) Effective Date

    This AD is effective November 9, 2017.

    (b) Affected ADs

    This AD affects AD 80-08-10 R1, Amendment 39-3830 (45 FR 46343, July 10, 1980).

    (c) Applicability

    This AD applies to The Boeing Company Model 707-100 Long Body, -200, -100B Long Body, and -100B Short Body series airplanes; and Model 707-300, -300B, -300C, and -400 series airplanes; certificated in any category; equipped with a main cargo door (MCD).

    (d) Subject

    Air Transport Association (ATA) of America Code 52, Doors.

    (e) Unsafe Condition

    This AD was prompted by analysis of the cam support assemblies of the MCD that indicated the repetitive high frequency eddy current (HFEC) inspections required by the existing maintenance program are not adequate to detect cracks before two adjacent cam support assemblies of the MCD could fail. We are issuing this AD to detect and correct cracking of the cam support assemblies of the MCD. Such cracking could result in reduced structural integrity of the MCD and consequent rapid decompression of the airplane.

    (f) Compliance

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

    (g) Inspection to Determine Part Numbers

    At the later of the times specified in paragraphs (g)(1) and (g)(2) of this AD: Inspect the cam support assemblies of the MCD to determine whether part number (P/N) 69-23588-1, 69-23588-2, 69-23588-5, 69-23588-6, 69-23588-9, or 69-23588-10 is installed. A review of airplane maintenance records is acceptable in lieu of this inspection if the part number(s) of the cam support assemblies of the MCD can be conclusively determined from that review.

    (1) Before the accumulation of 18,000 total flight cycles since installation of the door, or before the accumulation of 10 years on the MCD cam support assemblies, whichever occurs first. If the number of flight cycles since installation of the door are not known, use total airplane flight cycles.

    (2) Within 1,790 flight cycles or 24 months after the effective date of this AD, whichever occurs later.

    (h) Repetitive Inspections of the Cam Support Assemblies of the MCD and Corrective Actions

    If, during any inspection required by paragraph (g) of this AD, any cam support assembly of the MCD having P/N 69-23588-1, 69-23588-2, 69-23588-5, 69-23588-6, 69-23588-9, or 69-23588-10 is determined to be installed: At the later of the times specified in paragraphs (g)(1) and (g)(2) of this AD, do an ultrasonic inspection to detect cracking of the affected cam support assemblies of the MCD, and do all applicable replacements, in accordance with the Accomplishment Instructions of Boeing 707 Alert Service Bulletin A3542, dated February 12, 2016. Do all applicable replacements before further flight. Repeat the inspections thereafter at the applicable time specified in paragraph 1.E., “Compliance,” of Boeing 707 Alert Service Bulletin A3542, dated February 12, 2016.

    (i) Terminating Action for AD 80-08-10 R1, Amendment 39-3830 (45 FR 46343, July 10, 1980)

    Accomplishment of the initial inspection and all applicable replacements on an airplane, as required by paragraph (h) of this AD, terminates all the requirements of AD 80-08-10 R1, Amendment 39-3830 (45 FR 46343, July 10, 1980), for that airplane only.

    (j) Alternative Methods of Compliance (AMOCs)

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

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

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

    (4) For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (j)(4)(i) and (j)(4)(ii) of this AD apply.

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

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

    (k) Related Information

    For more information about this AD, contact Chandra Ramdoss, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5239; fax: 562-627-5210; email: [email protected]

    (l) Material Incorporated by Reference

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

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

    (i) Boeing 707 Alert Service Bulletin A3542, dated February 12, 2016.

    (ii) Reserved.

    (3) 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.

    (4) You may view this 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.

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

    Issued in Renton, Washington, on August 31, 2017. Dionne Palermo, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2017-19041 Filed 10-4-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 31154; Amdt. No. 3765] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This rule establishes, amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures (ODPs) for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.

    DATES:

    This rule is effective October 5, 2017. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.

    The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of October 5, 2017.

    ADDRESSES:

    Availability of matters incorporated by reference in the amendment is as follows:

    For Examination

    1. U.S. Department of Transportation, Docket Ops-M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590-0001.

    2. The FAA Air Traffic Organization Service Area in which the affected airport is located;

    3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,

    4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

    Availability

    All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center at nfdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from the FAA Air Traffic Organization Service Area in which the affected airport is located.

    FOR FURTHER INFORMATION CONTACT:

    Thomas J. Nichols, Flight Procedure Standards Branch (AFS-420), Flight Technologies and Programs Divisions, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082, Oklahoma City, OK 73125) Telephone: (405) 954-4164.

    SUPPLEMENTARY INFORMATION:

    This rule amends Title 14 of the Code of Federal Regulations, Part 97 (14 CFR part 97), by establishing, amending, suspending, or removes SIAPS, Takeoff Minimums and/or ODPS. The complete regulatory description of each SIAP and its associated Takeoff Minimums or ODP for an identified airport is listed on FAA form documents which are incorporated by reference in this amendment under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR part 97.20. The applicable FAA forms are FAA Forms 8260-3, 8260-4, 8260-5, 8260-15A, and 8260-15B when required by an entry on 8260-15A.

    The large number of SIAPs, Takeoff Minimums and ODPs, their complex nature, and the need for a special format make publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, Takeoff Minimums or ODPs, but instead refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP, Takeoff Minimums and ODP listed on FAA form documents is unnecessary. This amendment provides the affected CFR sections and specifies the types of SIAPs, Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure, and the amendment number.

    Availability and Summary of Material Incorporated by Reference

    The material incorporated by reference is publicly available as listed in the ADDRESSES section.

    The material incorporated by reference describes SIAPS, Takeoff Minimums and/or ODPS as identified in the amendatory language for part 97 of this final rule.

    The Rule

    This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP, Takeoff Minimums and ODP as Amended in the transmittal. Some SIAP and Takeoff Minimums and textual ODP amendments may have been issued previously by the FAA in a Flight Data Center (FDC) Notice to Airmen (NOTAM) as an emergency action of immediate flight safety relating directly to published aeronautical charts.

    The circumstances that created the need for some SIAP and Takeoff Minimums and ODP amendments may require making them effective in less than 30 days. For the remaining SIAPs and Takeoff Minimums and ODPs, an effective date at least 30 days after publication is provided.

    Further, the SIAPs and Takeoff Minimums and ODPs contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied to the conditions existing or anticipated at the affected airports. Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C 553(d), good cause exists for making some SIAPs effective in less than 30 days.

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT Regulatory Policies and Procedures (44 FR 11034; February 26,1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR part 97

    Air Traffic Control, Airports, Incorporation by reference, Navigation (Air).

    Issued in Washington, DC on September 8, 2017. John S. Duncan, Director, Flight Standards Service. Adoption of the Amendment

    Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) is amended by establishing, amending, suspending, or removing Standard Instrument Approach Procedures and/or Takeoff Minimums and Obstacle Departure Procedures effective at 0901 UTC on the dates specified, as follows:

    PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.

    2. Part 97 is amended to read as follows: Effective 12 October 2017 Deadhorse, AK, Deadhorse, ILS OR LOC RWY 6, Amdt 3 Deadhorse, AK, Deadhorse, RNAV (GPS) Z RWY 6, Amdt 2 Deadhorse, AK, Deadhorse, RNAV (GPS) Z RWY 24, Amdt 2 Deadhorse, AK, Deadhorse, Takeoff Minimums and Obstacle DP, Amdt 3A Deadhorse, AK, Deadhorse, VOR RWY 5, Amdt 4A, CANCELED Deadhorse, AK, Deadhorse, VOR RWY 6, Amdt 3 Deadhorse, AK, Deadhorse, VOR Y RWY 24, Amdt 6B Deadhorse, AK, Deadhorse, VOR Z RWY 24, Amdt 5 Mena, AR, Mena Intermountain Muni, ILS OR LOC RWY 27, Amdt 1B Mena, AR, Mena Intermountain Muni, NDB RWY 27, Amdt 1A Mena, AR, Mena Intermountain Muni, VOR/DME-A, Amdt 10, CANCELED Los Angeles, CA, Los Angeles Intl, ILS OR LOC RWY 24R, ILS RWY 24R (CAT II), ILS RWY 24R (CAT III), Amdt 26 Los Angeles, CA, Los Angeles Intl, ILS OR LOC RWY 25L, ILS RWY 25L (CAT II), ILS RWY 25L (CAT III), Amdt 14A Los Angeles, CA, Los Angeles Intl, RNAV (GPS) Y RWY 24R, Amdt 3 Los Angeles, CA, Los Angeles Intl, RNAV (GPS) Y RWY 25L, Amdt 4A Los Angeles, CA, Los Angeles Intl, RNAV (RNP) Z RWY 24R, Amdt 1A Los Angeles, CA, Los Angeles Intl, RNAV (RNP) Z RWY 25L, Amdt 2A Dover/Cheswold, DE, Delaware Airpark, RNAV (GPS) RWY 9, Orig Dover/Cheswold, DE, Delaware Airpark, RNAV (GPS) RWY 9, Amdt 2A, CANCELED Dover/Cheswold, DE, Delaware Airpark, RNAV (GPS RWY 27, Orig Dover/Cheswold, DE, Delaware Airpark, RNAV (GPS) RWY 27, Amdt 1B, CANCELED Dover/Cheswold, DE, Delaware Airpark, Takeoff Minimums and Obstacle DP, Orig Dover/Cheswold, DE, Delaware Airpark, Takeoff Minimums and Obstacle DP, Orig, CANCELED Dover/Cheswold, DE, Delaware Airpark, VOR RWY 27, Orig Dover/Cheswold, DE, Delaware Airpark, VOR RWY 27, Amdt 6C, CANCELED Cordele, GA, Crisp County-Cordele, LOC RWY 10, Amdt 1 Iowa City, IA, Iowa City Muni, RNAV (GPS) RWY 30, Orig-B Mc Call, ID, Mc Call Muni, RNAV (GPS) RWY 16, Amdt 1 Mc Call, ID, Mc Call Muni, RNAV (GPS) RWY 34, Amdt 1 Mc Call, ID, Mc Call Muni, RNAV (GPS) Y RWY 34, Amdt 1, CANCELED Muncie, IN, Delaware County Rgnl, ILS OR LOC RWY 32, Amdt 9D Muncie, IN, Delaware County Rgnl, RNAV (GPS) RWY 32, Orig-B Lawrence, MA, Lawrence Muni, ILS Y OR LOC Y RWY 5, Amdt 5 Lawrence, MA, Lawrence Muni, ILS Z OR LOC Z RWY 5, Amdt 1 Lawrence, MA, Lawrence Muni, RNAV (GPS) RWY 5, Amdt 1 Lawrence, MA, Lawrence Muni, RNAV (GPS) RWY 23, Amdt 1 Lawrence, MA, Lawrence Muni, VOR RWY 23, Amdt 12 Long Prairie, MN, Todd Field, RNAV (GPS) RWY 34, Amdt 2 Laurel, MT, Laurel Muni, RNAV (GPS) RWY 4, Amdt 1B Laurel, MT, Laurel Muni, RNAV (GPS) RWY 22, Amdt 1B Garrison, ND, Garrison Muni, RNAV (GPS) RWY 13, Amdt 1A Garrison, ND, Garrison Muni, RNAV (GPS) RWY 31, Amdt 1A New Philadelphia, OH, Harry Clever Field, RNAV (GPS) RWY 15, Orig-C New Philadelphia, OH, Harry Clever Field, VOR-A, Amdt 2A Altoona, PA, Altoona-Blair County, RNAV (GPS) Y RWY 3, Amdt 1A Altoona, PA, Altoona-Blair County, RNAV (GPS) Z RWY 3, Orig-B Selinsgrove, PA, Penn Valley, RNAV (GPS) RWY 17, Amdt 1 Selinsgrove, PA, Penn Valley, RNAV (GPS) RWY 35, Orig Columbia, SC, Columbia Metropolitan, ILS OR LOC RWY 11, ILS RWY 11 (CAT II), ILS RWY 11 (CAT III), Amdt 15A Columbia, SC, Columbia Metropolitan, ILS OR LOC RWY 29, Amdt 3I Columbia, SC, Columbia Metropolitan, VOR-A, Amdt 16A Bristol/Johnson/Kingsport, TN, Tri-Cities, TRICITIES TWO, Graphic DP Abingdon, VA, Virginia Highlands, RNAV (GPS) RWY 24, Amdt 2 Melfa, VA, Accomack County, LOC RWY 3, Amdt 1 Melfa, VA, Accomack County, RNAV (GPS) RWY 3, Amdt 2 Melfa, VA, Accomack County, RNAV (GPS) RWY 21, Amdt 1 Melfa, VA, Accomack County, VOR RWY 3, Amdt 2
    [FR Doc. 2017-21220 Filed 10-4-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 31155; Amdt. No. 3766] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This rule amends, suspends, or removes Standard Instrument Approach Procedures (SIAPs) and associated Takeoff Minimums and Obstacle Departure Procedures for operations at certain airports. These regulatory actions are needed because of the adoption of new or revised criteria, or because of changes occurring in the National Airspace System, such as the commissioning of new navigational facilities, adding new obstacles, or changing air traffic requirements. These changes are designed to provide for the safe and efficient use of the navigable airspace and to promote safe flight operations under instrument flight rules at the affected airports.

    DATES:

    This rule is effective October 5, 2017. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.

    The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of October 5, 2017.

    ADDRESSES:

    Availability of matter incorporated by reference in the amendment is as follows:

    For Examination

    1. U.S. Department of Transportation, Docket Ops—M30, 1200 New Jersey Avenue SE., West Bldg., Ground Floor, Washington, DC 20590-0001;

    2. The FAA Air Traffic Organization Service Area in which the affected airport is located;

    3. The office of Aeronautical Navigation Products, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 or,

    4. The National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

    Availability

    All SIAPs and Takeoff Minimums and ODPs are available online free of charge. Visit the National Flight Data Center online at nfdc.faa.gov to register. Additionally, individual SIAP and Takeoff Minimums and ODP copies may be obtained from the FAA Air Traffic Organization Service Area in which the affected airport is located.

    FOR FURTHER INFORMATION CONTACT:

    Thomas J. Nichols, Flight Procedure Standards Branch (AFS-420) Flight Technologies and Procedures Division, Flight Standards Service, Federal Aviation Administration, Mike Monroney Aeronautical Center, 6500 South MacArthur Blvd., Oklahoma City, OK 73169 (Mail Address: P.O. Box 25082 Oklahoma City, OK 73125) telephone: (405) 954-4164.

    SUPPLEMENTARY INFORMATION:

    This rule amends Title 14, Code of Federal Regulations, Part 97 (14 CFR part 97) by amending the referenced SIAPs. The complete regulatory description of each SIAP is listed on the appropriate FAA Form 8260, as modified by the National Flight Data Center (NFDC)/Permanent Notice to Airmen (P-NOTAM), and is incorporated by reference under 5 U.S.C. 552(a), 1 CFR part 51, and 14 CFR 97.20. The large number of SIAPs, their complex nature, and the need for a special format make their verbatim publication in the Federal Register expensive and impractical. Further, airmen do not use the regulatory text of the SIAPs, but refer to their graphic depiction on charts printed by publishers of aeronautical materials. Thus, the advantages of incorporation by reference are realized and publication of the complete description of each SIAP contained on FAA form documents is unnecessary.

    This amendment provides the affected CFR sections, and specifies the SIAPs and Takeoff Minimums and ODPs with their applicable effective dates. This amendment also identifies the airport and its location, the procedure and the amendment number.

    Availability and Summary of Material Incorporated by Reference

    The material incorporated by reference is publicly available as listed in the ADDRESSES section.

    The material incorporated by reference describes SIAPs, Takeoff Minimums and ODPs as identified in the amendatory language for part 97 of this final rule.

    The Rule

    This amendment to 14 CFR part 97 is effective upon publication of each separate SIAP and Takeoff Minimums and ODP as amended in the transmittal. For safety and timeliness of change considerations, this amendment incorporates only specific changes contained for each SIAP and Takeoff Minimums and ODP as modified by FDC permanent NOTAMs.

    The SIAPs and Takeoff Minimums and ODPs, as modified by FDC permanent NOTAM, and contained in this amendment are based on the criteria contained in the U.S. Standard for Terminal Instrument Procedures (TERPS). In developing these changes to SIAPs and Takeoff Minimums and ODPs, the TERPS criteria were applied only to specific conditions existing at the affected airports. All SIAP amendments in this rule have been previously issued by the FAA in a FDC NOTAM as an emergency action of immediate flight safety relating directly to published aeronautical charts.

    The circumstances that created the need for these SIAP and Takeoff Minimums and ODP amendments require making them effective in less than 30 days.

    Because of the close and immediate relationship between these SIAPs, Takeoff Minimums and ODPs, and safety in air commerce, I find that notice and public procedure under 5 U.S.C. 553(b) are impracticable and contrary to the public interest and, where applicable, under 5 U.S.C. 553(d), good cause exists for making these SIAPs effective in less than 30 days.

    The FAA has determined that this regulation only involves an established body of technical regulations for which frequent and routine amendments are necessary to keep them operationally current. It, therefore—(1) is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under DOT regulatory Policies and Procedures (44 FR 11034; February 26, 1979) ; and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. For the same reason, the FAA certifies that this amendment will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    List of Subjects in 14 CFR Part 97

    Air Traffic Control, Airports, Incorporation by reference, Navigation (Air).

    Issued in Washington, DC on September 8, 2017. John S. Duncan, Director, Flight Standards Service. Adoption of the Amendment

    Accordingly, pursuant to the authority delegated to me, Title 14, Code of Federal regulations, Part 97, (14 CFR part 97), is amended by amending Standard Instrument Approach Procedures and Takeoff Minimums and ODPs, effective at 0901 UTC on the dates specified, as follows:

    PART 97—STANDARD INSTRUMENT APPROACH PROCEDURES 1. The authority citation for part 97 continues to read as follows: Authority:

    49 U.S.C. 106(f), 106(g), 40103, 40106, 40113, 40114, 40120, 44502, 44514, 44701, 44719, 44721-44722.

    2. Part 97 is amended to read as follows:

    By amending: § 97.23 VOR, VOR/DME, VOR or TACAN, and VOR/DME or TACAN; § 97.25 LOC, LOC/DME, LDA, LDA/DME, SDF, SDF/DME; § 97.27 NDB, NDB/DME; § 97.29 ILS, ILS/DME, MLS, MLS/DME, MLS/RNAV; § 97.31 RADAR SIAPs; § 97.33 RNAV SIAPs; and § 97.35 COPTER SIAPs, Identified as follows:

    * * * Effective Upon Publication AIRAC date State City Airport FDC No. FDC date Subject 12-Oct-17 MT Libby Libby 7/6820 8/22/17 This NOTAM, published in TL 17-21, is hereby rescinded in its entirety. 12-Oct-17 AK Central Central 7/0453 8/29/17 RNAV (GPS) RWY 8, Orig-A. 12-Oct-17 AK Central Central 7/0454 8/29/17 RNAV (GPS) RWY 26, Orig-A. 12-Oct-17 AK Homer Homer 7/0473 8/29/17 RNAV (GPS) Y RWY 4, Amdt 1B. 12-Oct-17 AK Homer Homer 7/0475 8/29/17 LOC/DME RWY 4, Amdt 10A. 12-Oct-17 AK Koliganek Koliganek 7/0477 8/29/17 RNAV (GPS) RWY 27, Amdt 1. 12-Oct-17 AK Kaltag Kaltag 7/0478 8/29/17 RNAV (GPS) RWY 3, Orig-C. 12-Oct-17 AK Mountain Village Mountain Village 7/0479 8/29/17 RNAV (GPS) RWY 20, Amdt 1B. 12-Oct-17 AK Pilot Point Pilot Point 7/0480 8/29/17 RNAV (GPS) RWY 25, Orig-B. 12-Oct-17 AK Pilot Point Pilot Point 7/0482 8/29/17 RNAV (GPS) RWY 7, Orig-B. 12-Oct-17 AK Ruby Ruby 7/0492 8/29/17 RNAV (GPS) RWY 3, Amdt 1A. 12-Oct-17 CA Bishop Bishop 7/0499 8/29/17 RNAV (GPS) Y RWY 12, Orig-B. 12-Oct-17 CA Bishop Bishop 7/0500 8/29/17 RNAV (GPS) Z RWY 12, Orig-C. 12-Oct-17 CA Davis University 7/0503 8/29/17 RNAV (GPS) RWY 17, Orig-B. 12-Oct-17 CA Bakersfield Bakersfield Muni 7/0506 8/29/17 RNAV (GPS) RWY 34, Orig-B. 12-Oct-17 CA San Diego/El Cajon Gillespie Field 7/0509 8/29/17 RNAV (GPS) RWY 17, Amdt 2D. 12-Oct-17 CO Meeker Meeker Coulter Fld 7/0513 8/29/17 RNAV (GPS) RWY 3, Amdt 3B. 12-Oct-17 OR Bend Bend Muni 7/0515 8/29/17 RNAV (GPS) Y RWY 16, Amdt 2A. 12-Oct-17 OR Mc Minnville Mc Minnville Muni 7/0517 8/29/17 RNAV (GPS) RWY 4, Orig-A. 12-Oct-17 OR Tillamook Tillamook 7/0519 8/29/17 RNAV (GPS) RWY 13, Orig-B. 12-Oct-17 OK Goldsby David Jay Perry 7/1922 8/14/17 VOR/DME RWY 31, Amdt 2. 12-Oct-17 GA Dalton Dalton Muni 7/3954 8/22/17 ILS OR LOC RWY 14, Amdt 1. 12-Oct-17 MT Libby Libby 7/3967 8/22/17 GPS-A, Orig-C. 12-Oct-17 WA Seattle Boeing Field/King County Intl 7/4152 8/22/17 ILS OR LOC RWY 31L, Amdt 1B.
    [FR Doc. 2017-21222 Filed 10-4-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD9826] RIN 1545-BM71 Mortality Tables for Determining Present Value Under Defined Benefit Pension Plans AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Final regulations.

    SUMMARY:

    This document contains final regulations prescribing mortality tables to be used by most defined benefit pension plans. The tables specify the probability of survival year-by-year for an individual based on age, gender, and other factors. This information is used (together with other actuarial assumptions) to calculate the present value of a stream of expected future benefit payments for purposes of determining the minimum funding requirements for a defined benefit plan. These mortality tables are also relevant in determining the minimum required amount of a lump-sum distribution from such a plan. In addition, this document contains final regulations updating the requirements that a plan sponsor must meet to obtain IRS approval to use mortality tables specific to the plan for minimum funding purposes (instead of using the generally applicable mortality tables). These regulations affect participants in, beneficiaries of, employers maintaining, and administrators of certain retirement plans.

    DATES:

    Effective date: These regulations are effective on October 5, 2017.

    Applicability date: These regulations apply to plan years beginning on or after January 1, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Concerning the regulations, Arslan Malik at (202) 317-6700; concerning the construction of the base mortality tables and the static mortality tables for 2018, Michael Spaid at (206) 946-3480.

    SUPPLEMENTARY INFORMATION:

    Background A. Generally Applicable Mortality Tables

    Section 412 of the Internal Revenue Code (Code) prescribes minimum funding requirements for defined benefit pension plans. Section 430 specifies the minimum funding requirements that apply generally to defined benefit plans that are not multiemployer plans.1 Section 430(a) defines the minimum required contribution for a plan year by reference to the plan's funding target for the plan year. Under section 430(d)(1), a plan's funding target for a plan year generally is the present value of all benefits accrued or earned under the plan as of the first day of that plan year.

    1 Section 302 of the Employee Retirement Income Security Act of 1974, Public Law 93-406, as amended (ERISA), sets forth funding rules that are parallel to those in section 412 of the Code, and section 303 of ERISA sets forth additional funding rules for defined benefit plans (other than multiemployer plans) that are parallel to those in section 430 of the Code. Under section 101 of Reorganization Plan No. 4 of 1978 (43 FR 47713) and section 302 of ERISA, the Secretary of the Treasury has interpretive jurisdiction over the subject matter addressed in these regulations for purposes of ERISA, as well as the Code. Thus, these Treasury regulations issued under section 430 of the Code also apply for purposes of section 303 of ERISA.

    Section 430(h)(3) contains rules regarding the mortality tables to be used under section 430. Under section 430(h)(3)(A), except as provided in section 430(h)(3)(C) or (D), the Secretary is to prescribe by regulation mortality tables to be used in determining any present value or making any computation under section 430. Those mortality tables must be based on the actual mortality experience of pension plan participants and projected trends in that experience. In prescribing those mortality tables, the Secretary is required to take into account results of available independent studies of mortality of individuals covered by pension plans.2 Under section 430(h)(3)(B), the Secretary is required to make revisions to any table in effect under section 430(h)(3)(A) at least every 10 years to reflect actual mortality experience of pension plan participants and projected trends in that experience.

    2 The standards prescribed for developing these mortality tables are the same as the standards that are prescribed for developing mortality tables for multiemployer plans under section 431(c)(6)(D)(iv)(II) (which are used to determine current liability as part of the calculation of the minimum full funding limitation under section 431(c)(6)(B)). These standards also apply for purposes of determining current liability as part of the calculation of the minimum full funding limitation under section 433(c)(7)(C) for a CSEC plan (as defined in section 414(y)).

    Section 430(h)(3)(C) prescribes rules for a plan sponsor's use of substitute mortality tables reflecting the specific mortality experience of a plan's population instead of using the generally applicable mortality tables. Under section 430(h)(3)(C), the plan sponsor may request the Secretary's approval to use plan-specific substitute mortality tables that meet requirements specified in the statute.

    Section 430(h)(3)(D) provides for the use of separate mortality tables with respect to certain individuals who are entitled to benefits on account of disability. These separate mortality tables are permitted to be used with respect to disabled individuals in lieu of the generally applicable mortality tables provided pursuant to section 430(h)(3)(A) or the substitute mortality tables under section 430(h)(3)(C). The Secretary is to establish separate tables for individuals with disabilities occurring in plan years beginning before January 1, 1995, and in later plan years, with the mortality tables for individuals with disabilities occurring in those later plan years applying only to individuals who are disabled within the meaning of Title II of the Social Security Act.

    Final regulations (TD 9419) under section 430(h)(3) were published in the Federal Register for July 31, 2008 (73 FR 44632). The final regulations issued in 2008 include rules regarding generally applicable mortality tables, which are set forth in § 1.430(h)(3)-1 (the 2008 general mortality table regulations), as well as rules regarding substitute mortality tables, which are set forth in § 1.430(h)(3)-2 (the 2008 substitute mortality table regulations).

    The 2008 general mortality table regulations prescribe a base mortality table and a set of mortality improvement rates that are used to project mortality rates for years after the year 2000. The mortality tables included in those regulations are based on the mortality tables included in the RP-2000 Mortality Tables Report (based on an experience study for the period 1990-1994 and referred to in this preamble as the RP-2000 mortality tables) released by the Society of Actuaries in July 2000 (updated in May 2001). The mortality improvement rates included in those regulations are the Scale AA Projection Factors (which are based on mortality improvement for the period 1977 through 1993), which were included in the RP-2000 Mortality Tables Report for use in conjunction with the RP-2000 mortality tables.3

    3 The RP-2000 Mortality Tables Report is available at https://www.soa.org/experience-studies/2000-2004/research-rp-2000-mortality-tables/.

    The 2008 general mortality table regulations prescribe the use of generational mortality tables,4 but include an option for plans to use static mortality tables. The static mortality tables (which are updated annually) use a single mortality table for all years of birth to approximate the present value that would be determined using the generational mortality tables. The 2008 general mortality table regulations set forth static mortality tables for valuation dates occurring in 2008 and provide that static mortality tables for valuation dates occurring in later years will be published in the Internal Revenue Bulletin. Static mortality tables for valuation dates occurring during 2009-2013 were published in Notice 2008-85 (2008-1 C.B. 747 (March 28, 2008)). Updated static mortality tables for valuation dates occurring during 2014 and 2015 were published in Notice 2013-49 (2013-32 I.R.B. 127 (July 10, 2013)). Updated static mortality tables for valuation dates occurring in 2016 and 2017 were published in Notice 2015-53 (2015-33 I.R.B. 190 (July 31, 2015)) and Notice 2016-50 (2016-38 I.R.B. 371 (September 2, 2016)), respectively.

    4 Generational mortality tables are a series of mortality tables, one for each year of birth, each of which fully reflects projected trends in mortality for individuals who are born in a particular year.

    Notice 2013-49 also requested comments on whether a separate disability mortality table is still warranted with respect to participants who became disabled before 1995. In addition, Notice 2013-49 noted that the Treasury Department (Treasury) and the IRS were aware that the Society of Actuaries was conducting a mortality study of pension plan participants and specifically requested comments on whether other studies of actual mortality experience of pension plan participants and projected trends of that experience were available that should be considered for use in developing mortality tables for future use under section 430(h)(3).

    In October 2014, the Retirement Plans Experience Committee (RPEC) of the Society of Actuaries issued a new mortality study of participants in private pension plans. The study, which is based on mortality experience for the years 2004 to 2008, is referred to as the RP-2014 Mortality Tables Report (and sets forth mortality tables that are referred to as the RP-2014 mortality tables). The RP-2014 Mortality Tables Report, as revised November 2014, is available at www.soa.org/Research/Experience-Study/pension/research-2014-rp.aspx. At the same time, RPEC issued a companion study of mortality improvement, referred to as the Mortality Improvement Scale MP-2014 Report (which sets forth mortality improvement rates that are referred to as the Scale MP-2014 rates). As described in the Mortality Improvement Scale MP-2014 Report (available at www.soa.org/Research/Experience-Study/pension/research-2014-mp.aspx), the Scale MP-2014 rates were based on mortality improvement experience for the general population through 2009.

    In October 2015, RPEC released an update to the Scale MP-2014 rates. The updated rates, referred to as the Scale MP-2015 rates, were released as part of the Mortality Improvement Scale MP-2015 Report (available at https://www.soa.org/Research/Experience-Study/Pension/research-2015-mp.aspx). The Scale MP-2015 rates were created using historical data for mortality improvement for the general population through 2011 and the same model and parameters that were used to produce the Scale MP-2014 rates. In conjunction with the release of the updated rates, RPEC indicated the intent to reflect the latest data available by providing future annual updates to the model as soon as practicable following the public release of updated data upon which the model is constructed.

    In October 2016, RPEC released a further update to the Scale MP-2014 rates, which are referred to as the Scale MP-2016 rates. The Scale MP-2016 rates take into account data for mortality improvement for the general population for 2012 and 2013, along with an estimate of mortality rates for 2014. As described in the Mortality Improvement Scale MP-2016 Report (available at www.soa.org/Research/Experience-Study/Pension/research-2016-mp.aspx), in developing the Scale MP-2016 rates, RPEC changed some of the parameters from those that were used in developing the Scale MP-2014 rates.

    B. Plan-Specific Substitute Mortality Tables

    Section 430(h)(3)(C) permits a plan sponsor to request approval by the Secretary to use plan-specific substitute mortality tables in lieu of the generally applicable mortality tables. If the Secretary determines that the proposed tables meet the statutory standards and approves the request, the substitute mortality tables are used to determine present values and make computations under section 430 during the period of consecutive plan years (not to exceed 10) specified in the request. Under the statute, a substitute mortality table may be used for a plan, only if: (1) The plan has a sufficient number of plan participants and has been maintained for a sufficient period of time to have credible mortality information necessary to create a substitute mortality table; and (2) the table reflects the actual mortality experience of the plan's participants and projected trends in general mortality experience. Except as provided by the Secretary, a plan sponsor may not use substitute mortality tables for any plan unless substitute mortality tables are established and used for each plan maintained by the plan sponsor or a member of its controlled group.

    The 2008 substitute mortality table regulations provide for review by the Commissioner of a plan sponsor's request for approval to use substitute mortality tables. Under those regulations, to use substitute mortality tables with respect to a plan, a plan sponsor must submit a written request to the Commissioner that demonstrates that those substitute mortality tables comply with applicable requirements. A request for approval to use substitute mortality tables must specify the first plan year and the term of years for which the tables are requested to be used.

    Substitute mortality tables may not be used for a plan year unless the plan sponsor submits the request at least 7 months before the first day of the first plan year for which the substitute mortality tables are to apply. The Commissioner has 180 days to review a request for approval to use substitute mortality tables. If the Commissioner does not deny the request within this 180-day period, the request is deemed to have been approved unless the Commissioner and the plan sponsor have agreed to extend that period.

    Under the 2008 substitute mortality table regulations, substitute mortality tables for a plan must be established separately for each gender, and a substitute mortality table may be established for a gender only if there is credible mortality experience with respect to that gender. If the mortality experience for one gender is credible but the mortality experience for the other gender is not credible, the substitute mortality tables are used for the gender that has credible mortality experience, and the generally applicable mortality tables are used for the gender that does not have credible mortality experience.

    Under the 2008 substitute mortality table regulations, there is credible mortality experience with respect to a gender if and only if, over the period covered by the experience study, there are at least 1,000 deaths of individuals of that gender.5 For this purpose, the minimum length of the experience study period is 2 years and the maximum length of the experience study period generally is 5 years. Furthermore, the last day of the final year reflected in the experience data must be less than three years before the first day of the first plan year for which the substitute mortality tables are to apply.

    5 The 1,000-death threshold for credible mortality experience under the regulations was intended to provide a high degree of confidence that the plan's past mortality experience will be predictive of its future mortality, and is consistent with relevant actuarial literature (see, for example, Thomas N. Herzog, Introduction to Credibility Theory (1999); Stuart A. Klugman, et. al., Loss Models: From Data to Decisions (2004)).

    Under the 2008 substitute mortality table regulations, development of substitute mortality tables for a plan requires creation of a base table and identification of a base year, which are then used to determine the substitute mortality tables. The base table must be developed from a study of the mortality experience of the plan using amounts-weighted data. Under those regulations, a plan's substitute mortality tables must be generational mortality tables that are determined using the base mortality tables developed from the experience study and the Scale AA Projection Factors (that is, using the same basis for mortality improvement that is used under 2008 general mortality table regulations).

    Under the 2008 substitute mortality table regulations, the use of substitute mortality tables is terminated early in certain circumstances, including pursuant to a replacement of the generally applicable mortality tables. The early termination pursuant to such a replacement must be effective as of a date specified in guidance published in the Internal Revenue Bulletin.

    Rev. Proc. 2008-62 (2008-2 C.B. I.R.B. 935) sets forth the procedure by which a plan sponsor of a defined benefit plan may request and obtain approval to use plan-specific substitute mortality tables in accordance with section 430(h)(3)(C). The revenue procedure specifies the information that must be provided in a request for approval to use substitute mortality tables and specifies two alternative acceptable methods of construction for base substitute mortality tables. Under section 11 of Rev. Proc. 2008-62, a base table for a population may be created from the unadjusted base table for the population through the application of a graduation method generally used by the actuarial profession in the United States.6 Section 12 of Rev. Proc. 2008-62 provides for an alternative method of constructing a base table through the application of a fixed percentage to the mortality rates of a standard mortality table, projected to the base year.

    6 The revenue procedure identifies the Whittaker-Henderson Type B graduation method or the Karup-King graduation method as acceptable methods.

    Section 503 of the Bipartisan Budget Act of 2015, Public Law 114-74 (129 Stat. 584 (2015)), which was enacted November 2, 2015, provides for changes to the rules on the use of substitute mortality tables. Under that section, “the determination of whether plans have credible information shall be made in accordance with established actuarial credibility theory, which (1) is materially different from the rules under [section 430(h)(3)(C)], including Revenue Procedure 2007-37,7 that are in effect on [November 2, 2015]; and (2) permits the use of tables that reflect adjustments to the tables described in [section 430(h)(3)(A) and (B)]” if those adjustments are based on the actual experience of the pension plan maintained by the plan sponsor.

    7 Rev. Proc. 2007-37, 2007-1 CB 1433, was not in effect on November 2, 2015. It was issued in 2007 in conjunction with proposed regulations regarding substitute mortality tables (REG-143601-06, 72 FR 29456) and was replaced by Rev. Proc. 2008-62 when those regulations were finalized in 2008.

    Proposed regulations regarding revisions to mortality tables under section 430(h)(3) (REG-112324-15) were published in the Federal Register on December 29, 2016 (81 FR 95911). The proposed regulations contain revisions to the generally applicable mortality tables (based on the RP-2014 Mortality Tables Report), as well as new rules regarding substitute mortality tables that reflect section 503 of the Bipartisan Budget Act of 2015. Comments were received on the proposed regulations, and a public hearing was held on April 13, 2017. After consideration of the comments, the proposed regulations are adopted by this Treasury decision subject to certain changes, the most significant of which are described in this preamble under the heading Explanation of Provisions.

    Explanation of Provisions I. Overview

    These final regulations revise the methodology for developing the generally applicable mortality tables that are used to determine present value or make any computation under section 430. Pursuant to section 417(e)(3)(B), a modified version of these tables will be used for purposes of determining the amount of a single-sum distribution (or another accelerated form of distribution). This revised methodology for developing tables under section 430(h)(3)(A) is being issued pursuant to the requirement under section 430(h)(3)(B) to revise the mortality tables used under section 430 at least every 10 years to reflect the actual mortality experience of pension plan participants and projected trends in that experience. As under the 2008 general mortality table regulations, the methodology involves the separate determination of base tables and the projection of mortality improvement.

    These regulations also revise the rules regarding substitute mortality tables. This revision is being made pursuant to section 503 of the Bipartisan Budget Act of 2015, which requires that the determination of whether a plan has credible information be made in accordance with established actuarial credibility theory. Following enactment of that requirement, Treasury and the IRS undertook a review of actuarial literature regarding credibility theory and consulted with experts on that topic from the Society of Actuaries. Based on that review and analysis, these regulations set forth a method for developing substitute mortality tables that is materially different from the method that is required under the 2008 substitute mortality table regulations and the associated revenue procedure. The method for developing substitute mortality tables that is set forth in the final regulations is simpler than the graduation method that applies under the 2008 substitute mortality table regulations and also accommodates the use of substitute mortality tables for plans with smaller populations that have only partially credible mortality experience.

    II. Generally Applicable Mortality Tables A. Base Mortality Tables

    Under these regulations, the generally applicable base mortality tables are derived from the tables contained in the RP-2014 Mortality Tables Report. In response to Notice 2013-49, commenters generally recommended that the RP-2014 mortality tables form the basis for the mortality tables used under section 430. After reviewing the RP-2014 mortality tables, the accompanying report published by the Society of Actuaries, and related public comments, Treasury and the IRS determined that the experience study used to develop the RP-2014 mortality tables is the best available study of the actual mortality experience of pension plan participants (other than disabled individuals). As a result, Treasury and the IRS issued proposed regulations that use the RP-2014 mortality tables as the foundation for the base mortality tables used to project the mortality rates of pension plan participants (other than disabled individuals).8

    8 Mortality tables that may be used as an alternative to the tables provided in these regulations with respect to certain disabled individuals are provided in Rev. Rul. 96-7 (1996-1 CB 59).

    Most commenters supported the selection of the base mortality tables in the proposed regulations. One commenter opposed this selection but did not suggest any alternative. Accordingly, the base mortality tables under these final regulations are the same as in the proposed regulations. Like the mortality tables provided in the 2008 general mortality table regulations, the mortality tables under these final regulations are gender-distinct because of significant differences between expected male mortality and expected female mortality. In addition, as under the 2008 general mortality table regulations, these regulations set forth separate mortality rates for annuitants and nonannuitants.

    The base tables that are set forth in these final regulations are used to develop the mortality tables for future years. These base tables have a base year of 2006 (the central year of the experience study used to develop the mortality tables in the RP-2014 Mortality Tables Report). These base tables generally have the same mortality rates as the RP-2014 mortality tables after factoring out the mortality improvements from 2007 to 2014 (calculated using the Scale MP-2014 rates). However, these base tables also include nonannuitant mortality rates for ages below age 18 and above age 80 and annuitant mortality rates for ages below age 50. This generally is the same approach that was used to develop the base tables included in the 2008 general mortality table regulations.

    B. Mortality Improvement and Static Mortality Tables

    The proposed regulations, like the 2008 general mortality table regulations, provided that expected trends in mortality experience must be taken into account through the use of either generational or annually updated static mortality tables. In accordance with section 430(h)(3)(B), the proposed regulations updated the mortality improvement rates used under the 2008 general mortality table regulations. To select up-to-date mortality improvement rates, Treasury and the IRS reviewed the Mortality Improvement Scale MP-2014 Report, related public comments, the data sources cited in those comments, the Mortality Improvement Scale MP-2015 Report, the Mortality Improvement Scale MP-2016 Report, and other published data sources.9 After that review, Treasury and the IRS issued proposed regulations that applied the MP-2016 rates to develop mortality tables for use in 2018.

    9 See the August 2013 Literature Review and Assessment of Mortality Improvement Rates in the U.S. Population: Past Experience and Future Long-Term Trends, available at www.soa.org/Files/Research/Exp-Study/research-2013-lit-review.pdf.

    Some commenters supported the selection of the mortality improvement rates in the proposed regulations, while other commenters expressed concerns about the selection of those rates. Those commenters who expressed concern about the mortality improvement rates noted that the selection of a long-term mortality improvement rate assumption is inherently speculative and cautioned against using the assumptions regarding the rate of long-term mortality improvement that were used by RPEC (which are a long-term rate of 1.0 percent per year for ages 85 and younger, grading down to 0.85 percent at age 95, and further grading down to 0 at age 115). Instead of the RPEC assumptions, these commenters suggested that Treasury and the IRS use assumptions regarding the rate of long-term mortality improvement that are closer to the rates that are used by the Office of the Actuary within the Social Security Administration. Those rates also vary by age group, and the documentation accompanying the 2017 report of the Board of Trustees of the Federal Old-Age, Survivors Insurance and Disability Insurance Trust Funds indicates that, under the intermediate assumptions (which reflect the Trustees' best estimates of future experience), the weighted average over all ages of those assumed long-term mortality improvement rates is 0.72 percent per year.10

    10 See “The Long-Range Demographic Assumptions for the 2017 Trustees Report,” Office of the Chief Actuary, Social Security Administration (July 13, 2017), at Mortality, page 17 (available at https://www.ssa.gov/OACT/TR/2017/2017_Long-Range_Demographic_Assumptions.pdf).

    Treasury and the IRS carefully considered the assumptions used by Office of the Actuary within the Social Security Administration and compared it with the long-term assumptions currently recommended by RPEC. In evaluating the merits of each, Treasury and the IRS took into consideration the views of the Technical Panel of the Social Security Advisory Board. The Social Security Advisory Board is an independent federal government agency, and the Technical Panel, which is comprised of actuaries, economists and demographers, is charged by the Advisory Board with reviewing the assumptions and methods used in the annual report of the Board of Trustees of the Federal Old-Age, Survivors Insurance and Disability Insurance Trust Funds. The Technical Panel, which issues a report every 4 years, has consistently recommended that the mortality improvement assumption used by the Office of the Actuary be increased.11 In addition, the Congressional Budget Office uses a faster rate of mortality improvement in evaluating Social Security solvency than the Office of the Actuary.12

    11 See “2015 Technical Panel on Assumptions and Methods Report to the Social Security Advisory Board,” available at www.ssab.gov/Details-Page/ArticleID/656/2015-Technical-Panel-on-Assumptions-and-Methods-A-Report-to-the-Board-September-2015.

    12 See Comparing CBO's Long-Term Projections with Those of the Social Security Trustees: Hearing before the Subcommittee on Social Security, Committee on Ways and Means, U.S. House of Representatives, 114th Cong. September 21, 2016 (Testimony of Keith Hall), available at https://www.cbo.gov/sites/default/files/114th-congress-2015-2016/reports/51988-socialsecuritytestimony.pdf.

    After review and consideration of the comments, the documentation accompanying the Trustees' Report, and the views of the Technical Panel of the Social Security Advisory Board, Treasury and the IRS have concluded that the procedures that RPEC used to develop the Scale MP-2016 rates generate mortality improvement rates that currently are the appropriate rates for use in developing mortality tables to be used for purposes of pension funding. Accordingly, these regulations provide that the mortality improvement rates for valuation dates in 2018 are the Scale MP-2016 rates.

    Treasury and the IRS understand that RPEC expects to issue updated mortality improvement rates that reflect new data for mortality improvement trends for the general population on an annual basis. As noted by the commenters, while the rate of mortality improvement has fluctuated significantly on a year-to-year basis, there has been a significant reduction in the rate of improvement over the past few years compared to the rate of improvement for the past 25 years. RPEC has indicated the intent to continually review the methodology used in its mortality improvement model in an effort to improve the overall effectiveness of the model, especially with respect to year-over-year stability and forecast accuracy, and it has identified the assumed long-term rate of mortality improvement and graduation techniques as two of the items included in this review. In establishing the mortality improvement rates to be used under section 430(h)(3) for valuation dates in years after 2018, Treasury and the IRS will continue to take into account RPEC's updates (including any modifications to RPEC's methodology), as well as other sources of data or analyses regarding mortality improvement. These regulations provide that the mortality improvement rates applicable for those future valuation dates will be specified in guidance to be published in the Internal Revenue Bulletin. See § 601.601(d)(2)(ii)(b) of this chapter. If Treasury and the IRS determine that significant revisions to the mortality improvement rates are appropriate, the revisions may first be proposed in a new rulemaking in order to allow for public comment before the rule is finalized.

    Some commenters asked that Treasury and the IRS commit to providing the mortality improvement rates for a calendar year at least 12 months before the start of that year. Treasury and the IRS understand that a significant motivation for this request is to avoid the issuance of new mortality improvement rates in the early part of a calendar year (because issuance of new mortality improvement rates at that time could result in the need to revise calculations that have already been made in the course of preparing a plan sponsor's financial statement as of the previous December 31). While Treasury and the IRS intend that the mortality improvement rates for a calendar year generally will be issued more than 12 months in advance of that year, the final regulations do not include a provision requiring that the mortality improvement rates for a calendar year be issued within this timeframe. Retaining the flexibility to issue mortality improvement rates closer to the date they would become effective will allow additional time for the possibility that certain revisions to the mortality improvement rates will first be published in proposed form.

    Other commenters requested that Treasury and the IRS consider updating the mortality tables on a less frequent basis than annually. Although the RPEC indicated its intent to issue updated mortality improvement rates on an annual basis, the final regulations do not require the mortality improvement rates under section 430(h)(3) to be updated annually. However, to minimize the discontinuities in mortality rates that could arise from infrequent updates, Treasury and the IRS contemplate that generally the rates will be updated annually. If the changes from one year to the next are minimal, Treasury and the IRS may choose not to update the rates for that year.

    As under the 2008 general mortality table regulations, the proposed regulations take into account the limitations of some current actuarial software that is not designed to use generational mortality tables and continue to permit the use of static mortality tables. These static mortality tables, when used to determine the present value of an annuity, approximate the present value that would be determined using the generational mortality tables. All but one commenter supported the option to use static mortality tables, and these final regulations provide for this option. These static tables consist of separate gender-specific tables, which are updated annually. The static mortality tables that will be used for 2018 are included in these regulations. For later years, updated static mortality tables will be set forth in guidance published in the Internal Revenue Bulletin. See § 601.601(d)(2)(ii)(b) of this chapter.

    C. Use of Section 430 Mortality Tables for Other Provisions

    Section 417(e)(3) generally provides that the present value of certain benefits under a qualified pension plan (including single-sum distributions) must not be less than the present value of the accrued benefit using applicable interest rates and the applicable mortality table. Section 417(e)(3)(B) defines the term “applicable mortality table” as the mortality table specified for the plan year for minimum funding purposes under section 430(h)(3)(A) (without regard to the rules for substitute mortality tables under section 430(h)(3)(C) or mortality tables for disabled individuals under section 430(h)(3)(D)), modified as appropriate by the Secretary. The modifications to the section 430(h)(3)(A) mortality table used to determine the section 417(e)(3)(B) applicable mortality table are not addressed in these regulations and are currently provided in Revenue Ruling 2007-67 (2007-2 C.B. 1047).

    As under the proposed regulations, the final regulations provide that the same mortality assumptions that apply for purposes of section 430(h)(3)(A) and § 1.430(h)(3)-1(a)(2) are used to determine a plan's current liability for purposes of applying the full-funding rules of section 431(c)(6) (in the case of a multiemployer plan) and section 433(c)(7)(C) (in the case of a CSEC plan). For this purpose, a multiemployer plan or CSEC plan is permitted to apply either the annually-adjusted static mortality tables or the generational mortality tables.

    D. Effective Date

    The proposed regulations provide that the regulations will be effective beginning in 2018. Some commenters expressed concern that this effective date would not allow adequate time for compliance. One commenter requested that the effective date of the regulations be no sooner than 18 months after the regulations are finalized in order to give plan sponsors adequate time to plan for the higher level of contributions that will be required under the new mortality assumptions. Treasury and the IRS understand that most employers have been planning for the issuance of updated mortality tables for the purposes of section 430 since the RP-2014 Mortality Tables Report was issued in 2014 and many of those employers are already using updated mortality tables for financial reporting purposes. Furthermore, any additional required contributions for a plan resulting from the adoption of the new tables will not be due before September 15, 2019. For a plan with a calendar plan year, this date is 81/2 months after the end of the first plan year for which the regulations apply.13

    13 However, new mortality tables may affect plan operations relating to the requirements of section 436 during the 2018 plan year.

    Moreover, as described in section II.C of this Explanation of Provisions, the amount of a single-sum distribution computed as the present value of an annuity is determined using a mortality table that is based on the generally applicable mortality tables used for minimum funding purposes. Thus, retaining the mortality tables under existing regulations for the 2018 plan year, as requested by some commenters, would result in inappropriately depressing the amount of single-sum distributions payable to affected participants during the 2018 plan year (resulting in a permanent loss of retirement assets for those participants). A 2013 study indicates that approximately 56 percent of retiring participants in a traditional defined benefit plan with an unlimited single-sum option choose that option.14 In addition, the Government Accountability Office recently issued a study examining the increase in “lump-sum window” offers—typically, limited time offers to participants who are no longer employed by the sponsor but still waiting for their pension benefit to begin in the future, or retirees already receiving their pension annuity payments.15 Similarly, Willis Towers Watson reported significant risk transferring activity in recent years through lump sum windows and other means.16

    14 Sudipto Banerjee, Ph.D., Employee Benefits Research Institute, Issue Brief: Annuity and Lump-Sum Decisions in Defined Benefit Plans: The Role of Plan Rules, January 2013, available at https://www.ebri.org/pdf/briefspdf/EBRI_IB_01-13.No381.LSDs2.pdf.

    15 U.S. Government Accountability Office, GAO 15-74, Participants Need Better Information When Offered Lump Sums That Replace Their Lifetime Benefits (January 2015). This report also notes the substantial financial advantages that exist for plan sponsors implementing lump sum windows and attributes the recent increase in lump-sum window offers, in part, to the outdated mortality tables in the current regulations, which result in reduced payments to plan participants. Id. at pp. 16-17.

    16 Brendan McFarland, After a few ups and downs, corporate pension funding levels showed little change in 2016: Late-year rise in interest rates and stock market performance mitigate earlier downturn in funded status, Willis Towers Watson Insider, Vol. 27, No. 2 (February 2017) at p. 3, available at https://www.towerswatson.com/en-US/Insights/Newsletters/Americas/insider.

    Because these rules were proposed in December of 2016 to be applicable as final regulations for plan years beginning on and after January 1, 2018, the Treasury Department and the IRS believe that many plan sponsors have had adequate time to set aside funds needed for additional pension contributions for the 2018 plan year. Furthermore, because the steps that plan sponsors will need to take to update their administrative systems in response to these final regulations are not significantly different from the steps they would need to take in response to the annual update of mortality tables that has previously occurred at this time of the year, the Treasury Department and the IRS believe that plan sponsors generally will have sufficient time to make any needed changes to these administrative systems.17

    17 See section 4. of the Regulatory Impact Assessment provided under the heading Special Analyses, Regulatory Planning and Review (Executive Orders 12866 and 13563) in this preamble for a discussion of needed changes in administrative systems.

    The final regulations generally retain the effective date that was proposed, and apply to plan years beginning on or after January 1, 2018. In response to comments indicating that this effective date may create certain administrative or financial difficulties, the final regulations provide an option that may be used in certain circumstances for the 2018 plan year to apply the regulations that were formerly in effect. Specifically, for a plan for which substitute mortality tables are not used for the 2018 plan year, mortality tables determined in accordance with regulations previously in effect may be used for purposes of applying the rules of section 430 for a valuation date occurring during 2018 if the plan sponsor (1) concludes that the use of mortality tables determined in accordance with the final regulations for the plan year would be administratively impracticable or would result in an adverse business impact that is greater than de minimis, and (2) informs the actuary of the intent to apply this option. While this option provides significant flexibility to plan sponsors, the use of the option will not affect the mortality table used to determine minimum present value for distributions with annuity starting dates in stability periods that begin during 2018 (which is based on the generally applicable mortality tables under section 430(h)(3)(A) that apply if this option is not used). Therefore, the lump-sum distributions received by participants retiring in 2018 will appropriately reflect their expected longevity.

    III. Plan-Specific Substitute Mortality Tables A. Application of Established Actuarial Credibility Theory

    These final regulations contain a comprehensive revision of the rules regarding plan-specific substitute mortality tables for plans that are subject to the rules of section 430.18 These regulations carry over many of the rules regarding substitute mortality tables from the 2008 substitute mortality table regulations. However, after analyzing the actuarial literature regarding credibility theory, Treasury and the IRS made a number of changes to the rules relating to the development of substitute mortality tables. Specifically, these final regulations, like the proposed regulations, generally require that a substitute mortality table be constructed by multiplying the mortality rates from a projected version of the generally applicable base mortality table by a mortality ratio (that is, a ratio of the actual deaths for the population to the expected deaths determined using the standard mortality tables for that population).

    18 There is no provision for defined benefit plans that are not subject to the requirements of section 430 (such as multiemployer plans) to request approval to use of substitute mortality tables. However, the mortality tables under section 430(h)(3) are required to be used for those plans only for very limited purposes (and the mortality tables used for those plans for most purposes, while subject to the requirements of section 431(c)(3) or 433(c)(3), are not tables specified by statute or regulations).

    Use of mortality ratios (rather than providing for the graduation of raw mortality rates as under the 2008 substitute mortality table regulations) will make it easier for plan sponsors to develop substitute mortality tables because it eliminates the need to apply a complex graduation technique. It also facilitates efficient IRS review of applications for approval to use substitute mortality tables, which is particularly important in light of the other major change made in the regulations (permitting the use of substitute mortality tables for a plan that has mortality experience that is only partially credible). As a result of the changes made in these regulations, Treasury and the IRS expect that significantly more plan sponsors will request approval to use substitute mortality tables.

    B. Development of Substitute Mortality Tables for Plans With Full Credibility

    The substitute mortality table for a population with full credibility must be determined by applying projected mortality improvement to a base substitute mortality table developed using an experience study of the population. Like the proposed regulations, the final regulations use the same general requirements for an experience study as under the 2008 substitute mortality table regulations but reflect certain changes from the proposed regulations in response to comments. Specifically, the experience study generally must cover a period of at least 2 (and no more than 5) consecutive 12-month periods that ends less than 3 years before the first day of the first plan year for which the substitute mortality tables are to apply, and must cover the same period for all populations within a plan.19 However the final regulations include an exception that permits the use of an earlier study period if the submission is made more than 1 year (and less than 2 years) before the first day of the first plan year for which the substitute mortality tables are proposed to apply. Under this exception, the last day of the experience study period is permitted to be 3 years or more before the first day of the first plan year for which the substitute mortality tables are proposed to apply, provided that the last day of the experience study period is less than 2 years before the application is submitted.

    19 As under the 2008 regulations and the proposed regulations, the final regulations provide for permissive aggregation of plans of a plan sponsor for purposes of developing and using substitute mortality tables. The final regulations clarify that if two or more plans with different plan years are aggregated, the experience study may consist of data that is collected over different periods for plans with different plan years, subject to certain conditions.

    A base substitute mortality table generally is determined by multiplying the mortality rates from the corresponding standard mortality table (that is, the generally applicable base mortality table for the population, projected with mortality improvement to the base year for the base substitute mortality table) by the mortality ratio for the population. For this purpose, the mortality improvement rates that apply for the calendar year during which the plan sponsor submits the request for approval to use substitute mortality tables are used to project the generally applicable base mortality table to the base year for the base substitute mortality table.20 The mortality ratio is determined as a fraction, the numerator of which is the number of actual deaths during the experience study period (with each death weighted by the benefit amount) and the denominator of which is the number of expected deaths during that period (determined using the standard mortality table) weighted by the benefit amount. An individual's benefit amount (which is used to determine amounts-weighted mortality rates and for other purposes in the construction of base substitute mortality tables) is the individual's accrued benefit expressed in the form of an annual benefit commencing at normal retirement age (or at the current age, if later) if the individual has not commenced benefits, and the individual's annual payment if the individual has commenced benefits. Consistent with section 503 of the Bipartisan Budget Act of 2015 (and unlike § 1.430(h)(3)-2(c)(2)(ii)(D) of the 2008 substitute mortality table regulations, which provides that the Commissioner may permit the use of other recognized mortality tables to construct the base substitute mortality table), the regulations provide that the standard mortality table that must be used for this purpose is the generally applicable base mortality table projected with mortality improvement to the base year for the base substitute mortality table.

    20 If the plan sponsor submits such a request during 2017, then mortality improvement is reflected using the mortality improvement rates that generally apply for use for 2018, which are the Scale MP-2016 rates.

    Some commenters pointed out that multiplying mortality ratios for a population by the mortality rates in the applicable standard mortality table could yield inappropriate results at extremely old ages. In response to those comments, the final regulations provide that mortality rates under the base substitute mortality tables must be the same as the mortality rates under the standard mortality table for ages above 109 and that a modified mortality ratio is used for ages from 96 through 109 (to accomplish a gradual transition to the standard mortality table while avoiding inappropriate results). If the mortality ratio for the population is greater than 1.0, the modified mortality ratio for an age within this range is equal to the mortality ratio for the population reduced by 1/15th of the excess of the mortality ratio over 1.0 for each year by which the age exceeds 95. If the mortality ratio for the population is less than 1.0, the modified mortality ratio for an age within this range is equal to the mortality ratio for the population increased by 1/15th of the excess of 1.0 over the mortality ratio for each year by which the age exceeds 95.

    C. Standards for Full Credibility

    The proposed regulations revised the standard for full credibility of a population under the 2008 substitute mortality table regulations (which is 1,000 actual deaths for the relevant population during the experience study period) to better reflect established actuarial credibility theory. Under established actuarial credibility theory, the 1,000-death threshold (which is a rounding down of the 1,082 actual deaths that would be needed for a 90% confidence level that the measured rate is within 5% of the underlying mortality rate) should apply to the credibility for a single mortality rate and not an entire mortality table.21 Moreover, the 1,000 death threshold did not take into account the well-established actuarial principle that mortality experience within a population will vary predictably based on the amount of the annuity (or life insurance, as applicable). The base tables for the generally applicable mortality tables were constructed on an amounts-weighted basis (under which the individuals with higher benefit amounts have a greater weight in the computation of the mortality rate for a particular age); accordingly, substitute mortality tables should be constructed using the same principle.

    21 Although the use of a graduation technique under Rev. Proc. 2008-62 enables a plan with fewer than 1,000 deaths at each age to have credible mortality experience that may be used to establish a substitute mortality table, the statutory instruction providing that the determination of whether a plan has credible mortality information be made in accordance with established actuarial credibility theory which is materially different than the rules in effect on November 2, 2015, led to the elimination of that technique.

    Using established actuarial credibility theory to evaluate whether a population has fully credible mortality experience entails the use of a threshold that takes into account the dispersion of benefits within the population. Accordingly, under the proposed regulations, the number of deaths that are needed for a population within a plan to have fully credible mortality experience is determined as the product of 1,082 and the benefit dispersion factor for the population.22 The benefit dispersion factor for a population is equal to the number of expected deaths for the population during the experience study period, multiplied by the sum of the mortality-weighted squares of the benefits, divided by the square of the sum of the mortality-weighted benefits.23

    22 This formula for the number of deaths needed for full credibility is based on the assumption that the distribution of releases from liability due to deaths follows a compound Poisson model. See www.actuaries.ca/members/publications/2002/202037e.pdf.

    23 See Gavin Benjamin, Selecting Mortality Tables: A Credibility Approach, available at www.soa.org/Files/Research/Projects/research-2008-benjamin.pdf.

    Commenters supported the actuarial soundness of the standard for fully credible mortality information under the proposed regulations, and the final regulations adopt the provisions of the proposed regulations regarding full credibility. At the request of commenters, the regulations include expressions of various formulas in mathematical notation to assist actuaries in making computations under the regulations.24

    24 In the proposed regulations, these formulas were stated as amounts to be computed separately for each age and then summed for the population. The final regulations instead state these formulas more concisely as amounts to be computed for the entire population. These two approaches yield mathematically identical results.

    One commenter noted that the increase of the threshold for full credibility (together with the inability to reflect the pattern of the plan's mortality experience at different ages) may produce substitute mortality tables that are substantially different than those that are currently in use. To address this concern, in part, the final regulations include an option to increase the credibility of a plan's mortality experience by basing it on the combined mortality experience of both genders.25

    25 This option is described in section III.F.2 of this Explanation of Provisions (Option to use combined male and female mortality experience).

    D. Partial Credibility

    As under the proposed regulations, the final regulations permit substitute mortality tables to be used for a plan that does not have sufficient deaths to have fully credible mortality information. In accordance with established actuarial credibility theory, the substitute mortality table used for such a plan is the weighted average of the standard mortality table and the substitute mortality table that would be developed for the plan if it were to have fully credible mortality information. The weight for the substitute mortality table that would be developed for the plan if the plan were to have fully credible mortality information is the square root of a fraction, the numerator of which is the actual number of deaths for the population within the experience study period and the denominator of which is the number of deaths needed for the plan to have fully credible mortality information.

    E. Controlled Group Consistency Requirement

    Under section 430(h)(3)(iv) there is a general consistency requirement for the use of substitute mortality tables with respect to all plans within a controlled group. Thus, use of substitute mortality tables for a plan is generally permitted only if substitute mortality tables are used for all plans subject to section 430 that are maintained within the controlled group of the plan sponsor.

    The 2008 substitute mortality table regulations set forth an exception from this consistency requirement for plans that did not have credible mortality experience. As a result of the change permitting the use of substitute mortality tables for plans that have only partially credible mortality information, Treasury and the IRS concluded that the exception should be modified so that it only applies to plans with a relatively small population. Accordingly, the regulations provide that a population does not have credible mortality information (and so a substitute mortality table is neither permitted nor required to be used for that population) if the actual number of deaths for that population during the experience study period is less than 100. For this purpose, the length of the experience study period must be the same length as the longest experience study period for any plan in the controlled group 26 and must end less than 3 years before the first day of the first plan year for which the substitute mortality tables are to apply. Treasury and the IRS proposed the use of a threshold of 100 deaths to balance the benefit of the use of substitute mortality tables for a plan with a relatively small population (which would be small, given the relatively low weight assigned to that plan's partially credible mortality experience) against the burden of developing substitute mortality tables for that plan (which would be required to comply with the controlled group consistency requirement). No comments were received objecting to this threshold or recommending a different threshold. As a result, the final regulations adopt the proposed 100-death threshold.

    26 If a plan has credible mortality information for one gender but not for the other gender, the length of the period of this demonstration is the length of the experience study for that plan.

    F. Other Rules Relating to the Use of Substitute Mortality Tables 1. Multiple-Employer Plans

    In response to comments, the final regulations provide rules regarding the use of substitute mortality tables in connection with multiple-employer plans. Under the final regulations, the application for use of substitute mortality tables in the case of a multiple-employer plan must be made by the plan administrator, and the substitute mortality tables must apply on a plan-wide basis (even if the plan is subject to the rules of section 413(c)(4)(A)).

    In addition, the final regulations provide special rules for the application of the controlled group consistency rule in the case of a multiple-employer plan. Under this special rule, an employer participating in a multiple-employer plan is treated as maintaining that plan if and only if the proportion of the plan's funding target attributable to the employees and former employees of the employer and members of the employer's controlled group is greater than 50 percent. Thus, such an employer is subject to the controlled group consistency rule with respect to the multiple-employer plan and any other plans subject to section 430 maintained by that employer (or any member of that employer's controlled group). By contrast, if the proportion of the multiple-employer plan's funding target attributable to the employees and former employees of the employer and members of the employer's controlled group is less than or equal to 50 percent, then that employer is not subject to the controlled group consistency rule with respect to the multiple-employer plan and any other plans subject to section 430 maintained by that employer (and any member of that employer's controlled group).

    2. Option To Use Combined Male and Female Mortality Experience

    Some commenters requested the ability to develop and use substitute mortality tables based on the combined experience of both males and females in the plan, to increase the credibility of mortality experience for a smaller population. Treasury and the IRS have determined that this approach is consistent with established actuarial credibility theory. Accordingly, the final regulations provide that a single mortality ratio may be developed for both genders and then used to construct separate gender-specific base substitute mortality tables for the plan. If this option is applied for a plan, then substitute mortality tables used for all plans in the plan sponsor's controlled group must be constructed in this manner (except for plans for which both the male and female populations, considered separately, have mortality experience with full credibility). In addition, if this option is applied for a plan, then the mortality experience for both genders must be combined for all other purposes under the regulations, including the determination of: (1) Whether a plan has credible mortality information for purposes of the controlled group consistency requirement; (2) whether the mortality experience for a plan has full credibility; and (3) the partial credibility weighting factor.

    3. Special Rules for Newly-Affiliated Plans

    The proposed regulations provide for a transition period during which the controlled group consistency requirement does not apply with respect to a newly-affiliated plan (that is, a plan that has become maintained within the new controlled group in connection with a transaction described in § 1.410(b)-2(f)). In response to comments, the final regulations extend the transition period during which the controlled group consistency requirement does not apply with respect to a newly-affiliated plan so that it ends on the last day of the plan year that immediately follows the period described in section 410(b)(6)(C)(ii) for any of the plans in the controlled group (whichever ends latest). For example, if all of the plans involved have a plan year that is the calendar year and a corporate transaction occurs during 2017, then the transition period during which the controlled group consistency requirement does not apply ends on December 31, 2019 (the end of the plan year that immediately follows December 31, 2018, which is the end of the period described in section 410(b)(6)(C)(ii)). This longer transition period will ensure that the plan sponsor has adequate time to complete an experience study covering the newly-affiliated plan for use in its submission for approval of substitute mortality tables for a plan year beginning January 1, 2020. As under the proposed regulations, the final regulations provide that this experience study may exclude the pre-affiliation data and the experience study period may be as short as 1 year (instead of 2 years). Therefore, under the facts of this example, the experience study used to develop substitute mortality tables for the plan may cover only calendar year 2018.27

    27 However, if the experience study is used to demonstrate a lack of credible mortality information, the experience study period may be shorter than required under the otherwise applicable rules only if it starts on the date the plan becomes a newly-affiliated plan.

    4. Early Termination of Use of Substitute Mortality Tables and Transition Rule

    The final regulations retain the rules from the 2008 substitute mortality table regulations regarding the termination of use of substitute mortality tables before their originally scheduled expiration. Among the circumstances that lead to early termination is the replacement of the generally applicable mortality tables (other than annual updates to the static mortality tables or changes to the mortality improvement rates).

    In response to comments, the final regulations include a transition rule under which previously approved base substitute mortality tables continue to apply for plan years beginning in 2018 (assuming that plan year is covered by the original approval and that substitute mortality tables are used by all of the plans within the controlled group that have credible mortality experience under the standards in the 2008 substitute mortality table regulations). In addition, previously approved base substitute mortality tables continue to apply to later plan years during the term of their original approval, provided that the plan sponsor satisfies the requirement that substitute mortality tables be used for all plans in the controlled group that have credible mortality information under the standards in these regulations. However, the mortality improvement rates under the final regulations, rather than the Scale AA Projection Factors (which were used under the 2008 substitute mortality table regulations), must be applied to previously approved base substitute mortality tables beginning in 2019.

    G. Effective Date

    These regulations regarding substitute mortality tables apply to plan years beginning on or after January 1, 2018, subject to certain transition relief. In addition to the transition relief for previously approved base mortality tables described in section III.F.4 of the Explanation of Provisions portion of this preamble, the requirement that a plan sponsor apply for approval to use substitute mortality tables at least 7 months before the beginning of the plan year will be treated as satisfied if the plan sponsor's application is submitted on or before February 28, 2018, provided that the plan sponsor agrees to a 90-day extension of the 180-day review period.

    Statement of Availability of IRS Documents

    IRS Revenue Rulings, Revenue Procedures, and Notices cited in this document are published in the Internal Revenue Bulletin (or Cumulative Bulletin) and are available from the Superintendent of Documents, U.S. Government Printing Office, Washington, DC 20402, or by visiting the IRS Web site at www.irs.gov.

    Special Analyses Regulatory Planning and Review (Executive Orders 12866 and 13563)

    It has been determined that these regulations constitute a significant regulatory action as defined in Executive Order 12866, as supplemented by Executive Order 13563. Accordingly, these rules have been reviewed by the Office of Management and Budget. The Regulatory Impact Assessment prepared by Treasury for these regulations is provided below. This rule is not subject to the requirements of Executive Order 13771 because this rule results in no more than de minimis costs.

    1. Description of Need for the Regulations

    Section 430 of the Internal Revenue Code specifies the minimum funding requirements that apply generally to defined benefit plans that are not multiemployer plans. Section 430(h)(3) contains rules regarding the mortality tables to be used under section 430. Under section 430(h)(3)(A), the Secretary is to prescribe by regulation mortality tables to be used in determining any present value or making any computation under section 430.28 Under section 430(h)(3)(B), the Secretary is required to revise any mortality table in effect under section 430(h)(3)(A) at least every 10 years to reflect actual mortality experience of pension plan participants and projected trends in that experience.

    28 Those mortality tables must be based on the actual mortality experience of pension plan participants and projected trends in that experience. In prescribing those mortality tables, the Secretary is required to take into account results of available independent studies of mortality of individuals covered by pension plans.

    Section 430(h)(3)(C) prescribes rules for a plan sponsor's use of substitute mortality tables reflecting the specific mortality experience of a plan's population. Section 503 of the Bipartisan Budget Act of 2015 requires certain changes in the rules for developing a plan's substitute mortality tables.

    The existing regulations regarding mortality tables were issued in 2008, for use beginning in 2008. Those tables were based on a study of mortality experience of pension plan participants covering the years 1990-1994 that was published in 2000. Since that time, studies have shown that people are living longer. For example, a study that RPEC published in 2014 indicates that the mortality tables issued under the 2008 general mortality table regulations no longer reflect the actual mortality experience of pension plan participants and projected trends in that experience. In accordance with section 430(h)(3)(B), the Secretary is required to revise the mortality tables in the existing regulations as a result of these changes in the actual mortality experience and projected trends in that experience. In addition, changes in the existing regulations regarding substitute mortality tables are required under the provisions of the Bipartisan Budget Act of 2015.

    2. Affected Population

    The final regulations affect participants in private-sector defined benefit plans and employers sponsoring those plans.

    3. Baseline and Summary of Impacts

    As required by OMB Circular A-4, the following table summarizes the estimated economic impact of the final regulations. The baseline for this estimate is the mortality tables issued under the existing regulations. Because the new tables reflect the fact that participants are living longer, the primary impact of the final regulations is to increase the reported liability for future benefit payments from pension plans; this higher reported liability will result in higher pension contributions. The higher liability will also result in an increase in PBGC premiums, which are a function of a plan's funded status. Because pension contributions and premiums are deductible from firms' incomes, tax revenues will fall.

    As described in the effective date discussion in section II.D of the Explanation of Provisions portion of this preamble, these regulations include an option for a plan sponsor that is not using plan-specific mortality tables to delay the application of the new tables in certain circumstances. Because it is difficult to predict how many plan sponsors will utilize this option, the following tables provide a range of estimates of the economic impact of these regulations. The first row of numbers in the tables, labeled “full take-up amount,” is based on the assumption that all plan sponsors will use the option to delay the application of the new mortality tables; the second row of numbers, labeled “no take-up amount,” is based on the assumption that no plan sponsors will use the option to delay application of the new mortality tables. As noted in the effective date discussion in section II.D of the Explanation of Provisions portion of this preamble, the use of this option will not affect the mortality table used to determine minimum present value under section 417(e).

    29 The present values are discounted to the beginning of 2019.

    Year 2018 2019 2020 2021 2022 2023 2024 2025 2026 2027 Estimated change in tax revenue (in millions of 2017 dollars) Full take-up amount 0 −123 −499 −914 −1,170 −1,278 −1,216 −1,081 −807 −353 No take-up amount −84 −362 −717 −1,025 −1,241 −1,314 −1,238 −1,042 −604 −228 Present Value 29 with full take-up of delay option (3% Discount Rate): −$6,372 million Present Value with no take-up of delay option (3% Discount Rate): −$6,821 million Present Value with full take-up of delay option (7% Discount Rate): −$5,245 million Present Value with no take-up of delay option (7% Discount Rate): −$5,718 million Annualized Estimate with full take-up of delay option (3% Discount Rate): −$747 million Annualized Estimate with no take-up of delay option (3% Discount Rate): −$800 million Annualized Estimate with full take-up of delay option (7% Discount Rate): −$747 million Annualized Estimate with no take-up of delay option (7% Discount Rate): −$814 million Estimated change in contributions (in millions of 2017 dollars) Full take-up amount 0 2,933 4,873 6,071 6,574 6,069 5,322 3,667 750 407 No take-up amount 2,151 3,631 5,418 6,391 6,694 6,194 5.373 1,751 815 797 Present Value with full take-up of delay option (3% Discount Rate): $32,417 million Present Value with no take-up of delay option (3% Discount Rate): $35,100 million Present Value with full take-up of delay option (7% Discount Rate): $27,784 million Present Value with no take-up of delay option (7% Discount Rate): $30,595 million Annualized Estimate with full take-up of delay option (3% Discount Rate): $3,800 million Annualized Estimate with no take-up of delay option (3% Discount Rate): $4,115 million Annualized Estimate with full take-up of delay option (7% Discount Rate): $3,956 million Annualized Estimate with no take-up of delay option (7% Discount Rate): $4,356 million Estimated change in PBGC premiums (in millions of 2017 dollars) Full take-up amount 0 293 287 187 91 0 0 0 0 81 No take-up amount 293 287 280 183 89 0 0 0 0 80 Present Value with full take-up of delay option (3% Discount Rate): 869 million Present Value with no take-up of delay option (3% Discount Rate): 1,143 million Present Value with full take-up of delay option (7% Discount Rate): $791 million Present Value with no take-up of delay option (7% Discount Rate): $1,067 million Annualized Estimate with full take-up of delay option (3% Discount Rate): $102 million Annualized Estimate with no take-up of delay option (3% Discount Rate): $134 million Annualized Estimate with full take-up of delay option (7% Discount Rate): $113 million Annualized Estimate with no take-up of delay option (7% Discount Rate): $152 million

    For pension payments that are paid over a retiree's lifetime, the actual liability will depend on how long the retiree actually lives, and the impact of reflecting longer life expectancies in the calculation of present values under these regulations will merely accelerate the time when additional contributions attributable to longer lifetimes will need to be made. For pension payments that are lump-sum settlements in lieu of lifetime payments, the new tables will increase the amount of the lump sum. If the plan has a lump sum-based benefit formula, such as a cash balance plan, there will be no impact on the amount of a lump sum, but the optional annuity may be smaller.30 However, it is difficult to quantify the impact of these changes.

    30 The optional annuity may be smaller because, when converting the lump sum in which the participant's benefit is stated under the plan to an stream of annuity payments for the life of the participant (and the life of the participant's spouse if applicable), the lifetime(s) over which the payments must be paid will generally be assumed to be longer if the new tables are used for this purpose rather than the prior tables. To pay a fixed sum over a longer period, the amount of the periodic payments must be reduced. However, a plan is not required to use these tables for this purpose and a recent study indicates that relatively few participants take an annuity distribution from plans with lump sum based benefit formulas See Sudipto Banerjee, Ph.D., Employee Benefits Research Institute, Issue Brief: Annuity and Lump-Sum Decisions in Defined Benefit Plans: The Role of Plan Rules, January 2013, available at https://www.ebri.org/pdf/briefspdf/EBRI_IB_01-13.No381.LSDs2.pdf.

    4. Cost Associated With the Regulation

    Substantially all of the amounts involved (decreased tax revenue, increased plan contributions and PBGC premiums) constitute transfer payments, rather than costs. This is because these amounts are monetary payments from one entity to another that do not affect total resources available to society.

    We believe that the incremental administrative costs to implement this regulation are negligible, because plan sponsors would have to incur the same costs to update their plan administration software to reflect the new mortality tables under these regulations as they would incur in implementing the annual update to the mortality tables that would apply in the absence of these regulations. Moreover, the specific mortality rates used to calculate benefits for individuals normally are not provided to individual plan participants, so there will be no need to distribute information about the new mortality tables. Rather, plan sponsors and administrators provide individual participants who are considering retiring in the near future with individualized estimates of their benefits and that process is not dependent on the specific mortality rates used to determine benefits under the plan. Furthermore, Treasury and the IRS are issuing these regulations at a similar time of year as mortality tables were issued in prior years (and close in time to the issuance of the earliest interest rates that may be used in calculating the amount of a lump sum benefit to be distributed during a plan year beginning in 2018). In other words, these costs are included in the baseline of the analysis, not as new incremental costs associated with this rulemaking.

    In terms of the use of the mortality tables for purposes of applying the funding requirements of section 430, these regulations (like the current regulations) permit actuaries to use static mortality tables that approximate the present value determined using the generational mortality tables. Even if a plan's actuary chooses to use generational mortality tables (including plan-specific mortality tables) instead of the static mortality tables, actuarial software capable of applying that approach (including generational mortality tables determined using mortality improvement rates that vary by both age and calendar year) should be readily available, as such generational mortality tables determined using varying mortality improvement rates have been used routinely for financial reporting purposes by large employers since the Mortality Improvement Scale MP-2014 Report was issued in 2014. In addition, these regulations permit any previously approved plan-specific mortality tables to continue to be used for the duration of the original approval period. Accordingly, any additional cost as a result of the issuance of these regulations should be negligible.

    Regulatory Flexibility Act (5 U.S.C. Chapter 6)

    It is hereby certified that this rule will not have a significant economic impact on a substantial number of small entities. This rule applies to all employers that sponsor defined benefit plans regardless of size. As stated above, this rule implements the statutorily-required updates and any compliance costs related to this rule are small and are consistent with previously issued annual updates.

    Pursuant to section 7805(f) of the Internal Revenue Code, the notice of proposed rulemaking preceding these regulations was submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business.

    Drafting Information

    The principal authors of these regulations are Arslan Malik and Linda S.F. Marshall of the Office of Associate Chief Counsel (Tax Exempt and Government Entities). However, other personnel from Treasury and the IRS participated in the development of these regulations.

    List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

    Adoption of Amendments to the Regulations

    Accordingly, 26 CFR part 1 is amended as follows:

    PART 1—INCOME TAXES Paragraph 1. The authority citation for part 1 continues to read, in part, as follows: Authority:

    26 U.S.C. 7805 * * *

    Par. 2. Section 1.430(h)(3)-1 is revised to read as follows:
    § 1.430(h)(3)-1 Mortality tables used to determine present value.

    (a) Basis for mortality tables—(1) In general. Pursuant to section 430(h)(3)(A), this section provides generally applicable mortality tables that are used to determine present value for purposes of section 430, and rules regarding the use of those mortality tables. Either the generational mortality tables under paragraph (a)(2) of this section or the static mortality tables under paragraph (a)(3) of this section may be used for a plan. In lieu of using the mortality tables provided under this section, plan-specific substitute mortality tables may be used pursuant to section 430(h)(3)(C), provided that the requirements of § 1.430(h)(3)-2 are satisfied. Mortality tables that may be used with respect to disabled individuals are provided in guidance published in the Internal Revenue Bulletin. See § 601.601(d)(2)(ii)(b) of this chapter.

    (2) Generational mortality tables—(i) In general—(A) Use of generational mortality tables. The generational mortality tables that are permitted to be used under section 430(h)(3)(A) and paragraph (a)(1) of this section are determined using the base mortality tables described in paragraph (a)(2)(i)(B) of this section and the mortality improvement rates described in paragraph (a)(2)(i)(C) of this section.

    (B) Base mortality tables. The base mortality tables are set forth in paragraph (d) of this section. The base year for those tables is 2006.

    (C) Mortality improvement rates. The mortality improvement rates for valuation dates occurring during 2018 are the mortality improvement rates contained in the Mortality Improvement Scale MP-2016 Report (issued by the Retirement Plans Experience Committee (RPEC) of the Society of Actuaries and available at www.soa.org/Research/Experience-Study/Pension/research-2016-mp.aspx). For later years, updated mortality improvement rates that take into account new data for mortality improvement trends of the general population will be provided in guidance published in the Internal Revenue Bulletin. See § 601.601(d)(2)(ii)(b) of this chapter.

    (D) Application of mortality improvement rates. Under the generational mortality tables described in this paragraph (a)(2), the probability of an individual's death at a particular age in the future is determined as the individual's base mortality rate that applies at that age (that is, the applicable mortality rate from the table set forth in paragraph (d) of this section for that age, gender, and status as an annuitant or a nonannuitant) multiplied by the cumulative mortality improvement factor for the individual's gender and for that age for the period from 2006 through the calendar year in which the individual is projected to reach the particular age. Paragraph (a)(2)(ii) of this section shows how the base mortality tables in paragraph (d) of this section and the mortality improvement rates for valuation dates occurring during 2018 are combined to determine projected mortality rates.

    (E) Cumulative mortality improvement factor. The cumulative mortality improvement factor for an age and gender for a period is the product of the annual mortality improvement factors for that age and gender for each year within that period.

    (F) Annual mortality improvement factor. The annual mortality improvement factor for an age and gender for a year is 1 minus the mortality improvement rate that applies for that age and gender for that year.

    (ii) Example of calculation—(A) Calculation of mortality rate. The mortality rate for 2018 that is applied to male annuitants who are age 66 in 2018 is equal to the product of the mortality rate for 2006 that applied to male annuitants who were age 66 in 2006 (0.013855) and the cumulative mortality improvement factor for age 66 males from 2006 to 2018. The cumulative mortality improvement factor for age 66 males for the period from 2006 to 2018 is 0.8929, and the mortality rate for 2018 for male annuitants who are age 66 in that year would be 0.012371, as shown in the following table.

    Calendar year Scale MP-2016 mortality improvement rate Annual
  • mortality
  • improvement
  • factor
  • (1- scale MP-2016 rate)
  • Cumulative
  • mortality
  • improvement
  • factor
  • Mortality rate
    2006 n/a n/a n/a 0.013855 2007 0.0237 0.9763 0.9763 2008 0.0211 0.9789 0.9557 2009 0.0180 0.9820 0.9385 2010 0.0142 0.9858 0.9252 2011 0.0099 0.9901 0.9160 2012 0.0053 0.9947 0.9112 2013 0.0043 0.9957 0.9072 2014 0.0035 0.9965 0.9041 2015 0.0030 0.9970 0.9014 2016 0.0028 0.9972 0.8988 2017 0.0030 0.9970 0.8961 2018 0.0036 0.9964 0.8929 0.012371

    (B) Probability of survival for an individual. After the projected mortality rates are derived for each age for each year, the rates are used to calculate the present value of a benefit stream that depends on the probability of survival year-by-year. For example, for purposes of calculating the present value (for a 2018 valuation date) of future payments in a benefit stream payable for a male annuitant who is age 66 in 2018, the probability of survival for the annuitant is based on the mortality rate for a male annuitant who is age 66 in 2018 (0.012371), and the projected mortality rate for a male annuitant who will be age 67 in 2019 (0.013302), age 68 in 2020 (0.014321), and so on.

    (3) Static mortality tables. The static mortality tables that are permitted to be used under section 430(h)(3)(A) and paragraph (a)(1) of this section are updated annually by the IRS according to the methodology described in paragraph (c)(2) of this section. Paragraph (e) of this section sets forth static tables that are permitted to be used for valuation dates in 2018. For valuation dates in later years, static mortality tables will be provided in guidance published in the Internal Revenue Bulletin. See § 601.601(d)(2)(ii)(b) of this chapter.

    (b) Use of the tables—(1) Separate tables for annuitants and nonannuitants—(i) In general. Separate tables are provided for use for annuitants and nonannuitants. The nonannuitant mortality table is applied to determine the probability of survival for a nonannuitant for the period before the nonannuitant is projected to commence receiving benefits. The annuitant mortality table is applied to determine the present value of benefits for each annuitant. In addition, the annuitant mortality table is applied for each nonannuitant with respect to each assumed commencement of benefits for the period beginning with that assumed commencement. For purposes of this section, an annuitant means a plan participant who has commenced receiving benefits, and a nonannuitant means a plan participant who has not yet commenced receiving benefits (for example, an active employee or a terminated vested participant). A participant whose benefit has partially commenced is treated as an annuitant with respect to the portion of the benefit that has commenced and treated as a nonannuitant with respect to the balance of the benefit. In addition, with respect to a beneficiary of a participant, the annuitant mortality table applies for the period beginning with each assumed commencement of benefits for the participant. If the participant has died (or to the extent the participant is assumed to die before commencing benefits), the annuitant mortality table applies with respect to the beneficiary for the period beginning with each assumed commencement of benefits for the beneficiary.

    (ii) Examples of calculation using separate annuitant and nonannuitant tables. With respect to a 45-year-old active participant who is projected to commence receiving an annuity at age 55, the funding target is determined using the nonannuitant mortality table for the period before the participant attains age 55 (so that, if the static mortality tables are used pursuant to paragraph (a)(3) of this section, the probability of an active male participant living from age 45 to age 55 using the table that applies for a valuation date in 2018 is 0.988857) and using the annuitant mortality table for the period ages 55 and above. Similarly, for a 45-year-old terminated vested participant who is projected to commence an annuity at age 65, the funding target is determined using the nonannuitant mortality table for the period before the participant attains age 65 and using the annuitant mortality table for ages 65 and above.

    (2) Small plan tables. If static mortality tables are used pursuant to paragraph (a)(3) of this section, as an alternative to the separate static tables specified for annuitants and nonannuitants pursuant to paragraph (b)(1) of this section, combined static tables that apply the same mortality rates to both annuitants and nonannuitants are permitted to be used for a small plan. For this purpose, a small plan is defined as a plan with 500 or fewer total participants (including both active and inactive participants and beneficiaries of deceased participants) on the valuation date. The combined static tables that are permitted to be used for small plans pursuant to this paragraph (b)(2) are constructed from the separate nonannuitant and annuitant static mortality tables using the weighting factors for small plans that are set forth in paragraph (d) of this section. The weighting factors are applied to develop these combined static tables using the following equation: Combined mortality rate = [nonannuitant rate * (1 − weighting factor)] + [annuitant rate * weighting factor].

    (c) Static tables—(1) Source of rates. The static mortality tables that are used pursuant to paragraph (a)(3) of this section are determined using the base mortality tables described in paragraph (a)(2)(i)(B) of this section taking into account the mortality improvement rates described in paragraph (a)(2)(i)(C) of this section, in accordance with the rules of paragraph (c)(3) of this section.

    (2) Selection of static tables. The static mortality tables that are used for a valuation date are the static mortality tables for the calendar year that contains the valuation date.

    (3) Projection of mortality improvements—(i) General rule. Except as provided in paragraph (c)(3)(iii) of this section, the static mortality tables for a calendar year are determined by multiplying the applicable mortality rate for each age from the base mortality tables by both—

    (A) The cumulative mortality improvement factor (determined under the rules of paragraph (a)(2) of this section) for the period from 2006 through that calendar year; and

    (B) The cumulative mortality improvement factor (determined under the rules of paragraph (a)(2) of this section) for the period beginning in that calendar year and continuing beyond that calendar year for the number of years in the projection period described in paragraph (c)(3)(ii) of this section.

    (ii) Projection period for static mortality tables—(A) In general. The projection period is 8 years for males and 9 years for females, as adjusted based on age as provided in paragraph (c)(3)(ii)(B) of this section.

    (B) Age adjustment. For ages below 80, the projection period is increased by 1 year for each year below age 80. For ages above 80, the projection period is reduced (but not below zero) by 1/3 year for each year above 80.

    (iii) Fractional projection periods. If for an age the number of years in the projection period determined under this paragraph (c)(3) is not a whole number, then the mortality rate for that age is determined by using linear interpolation between—

    (A) The mortality rate for that age that would be determined under paragraph (c)(3)(i) of this section if the number of years in the projection period were the next lower whole number; and

    (B) The mortality rate for that age that would be determined under paragraph (c)(3)(i) of this section if the number of years in the projection period were the next higher whole number.

    (iv) Example. The following example illustrates how the mortality rates in the static mortality tables issued under the provisions of this paragraph (c) are calculated:

    Example.

    At age 85, the projection period for a male is 61/3 years (8 years minus 1/3 year for each of the 5 years above age 80). For a valuation date in 2018, the mortality rate in the static mortality table for an 85-year-old male is based on a projection of mortality improvement for 61/3 years beyond 2018. Under paragraph (c)(3)(iii) of this section, the mortality rate for an 85-year-old male annuitant in the static mortality table for 2018 is 2/3 times the projected mortality rate for a male annuitant that age in 2024 plus 1/3 times the projected mortality rate for a male annuitant that age in 2025. Accordingly, the mortality rate for an 85-year-old male annuitant in the static mortality table for 2018 is 0.075196 (2/3 times the projected mortality rate for an 85-year old male annuitant in 2024 (0.075447) plus 1/3 times the projected mortality rate for an 85-year old male annuitant in 2025 (0.074693)).

    (d) Base mortality tables. The following are the base mortality tables. The base year for these tables is 2006.

    Age Males Non-annuitant Annuitant Weighting
  • factor for small plans
  • Females Non-annuitant Annuitant Weighting
  • factor for small plans
  • 0 0.008878 0.008878 0 0.007278 0.007278 0 1 0.000515 0.000515 0 0.000451 0.000451 0 2 0.000348 0.000348 0 0.000295 0.000295 0 3 0.000289 0.000289 0 0.000220 0.000220 0 4 0.000225 0.000225 0 0.000165 0.000165 0 5 0.000197 0.000197 0 0.000149 0.000149 0 6 0.000177 0.000177 0 0.000137 0.000137 0 7 0.000156 0.000156 0 0.000127 0.000127 0 8 0.000132 0.000132 0 0.000117 0.000117 0 9 0.000107 0.000107 0 0.000109 0.000109 0 10 0.000090 0.000090 0 0.000102 0.000102 0 11 0.000095 0.000095 0 0.000105 0.000105 0 12 0.000142 0.000142 0 0.000121 0.000121 0 13 0.000187 0.000187 0 0.000137 0.000137 0 14 0.000230 0.000230 0 0.000151 0.000151 0 15 0.000274 0.000274 0 0.000165 0.000165 0 16 0.000318 0.000318 0 0.000177 0.000177 0 17 0.000364 0.000364 0 0.000187 0.000187 0 18 0.000412 0.000412 0 0.000196 0.000196 0 19 0.000463 0.000463 0 0.000202 0.000202 0 20 0.000510 0.000510 0 0.000202 0.000202 0 21 0.000552 0.000552 0 0.000197 0.000197 0 22 0.000587 0.000587 0 0.000191 0.000191 0 23 0.000599 0.000599 0 0.000190 0.000190 0 24 0.000594 0.000594 0 0.000188 0.000188 0 25 0.000545 0.000545 0 0.000186 0.000186 0 26 0.000510 0.000510 0 0.000186 0.000186 0 27 0.000486 0.000486 0 0.000188 0.000188 0 28 0.000472 0.000472 0 0.000192 0.000192 0 29 0.000468 0.000468 0 0.000198 0.000198 0 30 0.000470 0.000470 0 0.000209 0.000209 0 31 0.000480 0.000480 0 0.000222 0.000222 0 32 0.000495 0.000495 0 0.000238 0.000238 0 33 0.000514 0.000514 0 0.000257 0.000257 0 34 0.000534 0.000534 0 0.000278 0.000278 0 35 0.000557 0.000557 0 0.000301 0.000301 0 36 0.000581 0.000581 0 0.000325 0.000325 0 37 0.000611 0.000611 0 0.000355 0.000355 0 38 0.000648 0.000648 0 0.000389 0.000389 0 39 0.000694 0.000694 0 0.000428 0.000428 0 40 0.000750 0.000750 0 0.000471 0.000471 0 41 0.000814 0.000823 .0045 0.000518 0.000515 0 42 0.000890 0.000969 .0091 0.000570 0.000603 0 43 0.000982 0.001188 .0136 0.000628 0.000735 0 44 0.001088 0.001480 .0181 0.000691 0.000911 0 45 0.001207 0.001846 .0226 0.000758 0.001131 .0084 46 0.001342 0.002285 .0272 0.000831 0.001395 .0167 47 0.001487 0.002797 .0317 0.000908 0.001703 .0251 48 0.001643 0.003382 .0362 0.000986 0.002055 .0335 49 0.001807 0.004040 .0407 0.001065 0.002451 .0419 50 0.001979 0.004771 .0453 0.001151 0.002891 .0502 51 0.002159 0.005059 .0498 0.001242 0.002993 .0586 52 0.002351 0.005343 .0686 0.001344 0.003124 .0744 53 0.002539 0.005592 .0953 0.001458 0.003291 .0947 54 0.002741 0.005839 .1288 0.001588 0.003499 .1189 55 0.002967 0.006102 .2066 0.001735 0.003755 .1897 56 0.003231 0.006399 .3173 0.001902 0.004065 .2857 57 0.003548 0.006746 .3780 0.002091 0.004435 .3403 58 0.003932 0.007155 .4401 0.002302 0.004869 .3878 59 0.004396 0.007639 .4986 0.002537 0.005373 .4360 60 0.004954 0.008211 .5633 0.002795 0.005942 .4954 61 0.005616 0.008878 .6338 0.003080 0.006581 .5805 62 0.006392 0.009646 .7103 0.003388 0.007283 .6598 63 0.007291 0.010523 .7902 0.003724 0.008043 .7520 64 0.008320 0.011514 .8355 0.004089 0.008870 .8043 65 0.009486 0.012621 .8832 0.004482 0.009760 .8552 66 0.010668 0.013855 .9321 0.005004 0.010731 .9118 67 0.011973 0.015221 .9510 0.005575 0.011790 .9367 68 0.013414 0.016736 .9639 0.006205 0.012952 .9523 69 0.015006 0.018421 .9714 0.006898 0.014226 .9627 70 0.016761 0.020288 .9740 0.007662 0.015628 .9661 71 0.018690 0.022348 .9766 0.008507 0.017170 .9695 72 0.020824 0.024638 .9792 0.009438 0.018861 .9729 73 0.023176 0.027176 .9818 0.010470 0.020723 .9763 74 0.025770 0.029992 .9844 0.011615 0.022780 .9797 75 0.028623 0.033113 .9870 0.012887 0.025057 .9830 76 0.031761 0.036585 .9896 0.014301 0.027590 .9864 77 0.035214 0.040457 .9922 0.015885 0.030438 .9898 78 0.039007 0.044778 .9948 0.017656 0.033653 .9932 79 0.043169 0.049605 .9974 0.019639 0.037296 .9966 80 0.047750 0.055022 1.0 0.021859 0.041440 1.0 81 0.049804 0.061087 1.0 0.023791 0.046181 1.0 82 0.053911 0.067902 1.0 0.027655 0.051564 1.0 83 0.060072 0.075550 1.0 0.033451 0.057714 1.0 84 0.068286 0.084162 1.0 0.041179 0.064709 1.0 85 0.078554 0.093775 1.0 0.050838 0.072601 1.0 86 0.090876 0.104507 1.0 0.062429 0.081490 1.0 87 0.105251 0.116487 1.0 0.075952 0.091444 1.0 88 0.121680 0.129770 1.0 0.091407 0.102470 1.0 89 0.140162 0.144470 1.0 0.108794 0.114635 1.0 90 0.160698 0.160698 1.0 0.128113 0.128113 1.0 91 0.177741 0.177741 1.0 0.142619 0.142619 1.0 92 0.195154 0.195154 1.0 0.157939 0.157939 1.0 93 0.212642 0.212642 1.0 0.173886 0.173886 1.0 94 0.230055 0.230055 1.0 0.190319 0.190319 1.0 95 0.247257 0.247257 1.0 0.207191 0.207191 1.0 96 0.265940 0.265940 1.0 0.225057 0.225057 1.0 97 0.284940 0.284940 1.0 0.243507 0.243507 1.0 98 0.304432 0.304432 1.0 0.262587 0.262587 1.0 99 0.324272 0.324272 1.0 0.282171 0.282171 1.0 100 0.344364 0.344364 1.0 0.302162 0.302162 1.0 101 0.364420 0.364420 1.0 0.322282 0.322282 1.0 102 0.384058 0.384058 1.0 0.342371 0.342371 1.0 103 0.403188 0.403188 1.0 0.362210 0.362210 1.0 104 0.421533 0.421533 1.0 0.381534 0.381534 1.0 105 0.438903 0.438903 1.0 0.400321 0.400321 1.0 106 0.455492 0.455492 1.0 0.418418 0.418418 1.0 107 0.470810 0.470810 1.0 0.435390 0.435390 1.0 108 0.484965 0.484965 1.0 0.451459 0.451459 1.0 109 0.498023 0.498023 1.0 0.466408 0.466408 1.0 110 0.509768 0.509768 1.0 0.480123 0.480123 1.0 111 0.512472 0.512472 1.0 0.492664 0.492664 1.0 112 0.509296 0.509296 1.0 0.503970 0.503970 1.0 113 0.506193 0.506193 1.0 0.507361 0.507361 1.0 114 0.503061 0.503061 1.0 0.503564 0.503564 1.0 115 0.500000 0.500000 1.0 0.500000 0.500000 1.0 116 0.500000 0.500000 1.0 0.500000 0.500000 1.0 117 0.500000 0.500000 1.0 0.500000 0.500000 1.0 118 0.500000 0.500000 1.0 0.500000 0.500000 1.0 119 0.500000 0.500000 1.0 0.500000 0.500000 1.0 120 1.000000 1.000000 1.0 1.000000 1.000000 1.0

    (e) Static tables for 2018. The following static mortality tables are used pursuant to paragraph (a)(3) of this section for determining present value or making any computation under section 430 with respect to valuation dates occurring during 2018.

    Age Males Non-annuitant Annuitant Optional
  • combined
  • table for
  • small plans
  • Females Non-annuitant Annuitant Optional
  • combined
  • table for
  • small plans
  • 0 0.002420 0.002420 0.002420 0.002234 0.002234 0.002234 1 0.000142 0.000142 0.000142 0.000140 0.000140 0.000140 2 0.000097 0.000097 0.000097 0.000092 0.000092 0.000092 3 0.000081 0.000081 0.000081 0.000070 0.000070 0.000070 4 0.000064 0.000064 0.000064 0.000053 0.000053 0.000053 5 0.000056 0.000056 0.000056 0.000048 0.000048 0.000048 6 0.000051 0.000051 0.000051 0.000045 0.000045 0.000045 7 0.000046 0.000046 0.000046 0.000042 0.000042 0.000042 8 0.000039 0.000039 0.000039 0.000039 0.000039 0.000039 9 0.000032 0.000032 0.000032 0.000037 0.000037 0.000037 10 0.000027 0.000027 0.000027 0.000035 0.000035 0.000035 11 0.000029 0.000029 0.000029 0.000036 0.000036 0.000036 12 0.000044 0.000044 0.000044 0.000042 0.000042 0.000042 13 0.000058 0.000058 0.000058 0.000048 0.000048 0.000048 14 0.000072 0.000072 0.000072 0.000053 0.000053 0.000053 15 0.000087 0.000087 0.000087 0.000059 0.000059 0.000059 16 0.000102 0.000102 0.000102 0.000064 0.000064 0.000064 17 0.000118 0.000118 0.000118 0.000068 0.000068 0.000068 18 0.000135 0.000135 0.000135 0.000072 0.000072 0.000072 19 0.000153 0.000153 0.000153 0.000075 0.000075 0.000075 20 0.000170 0.000170 0.000170 0.000076 0.000076 0.000076 21 0.000192 0.000192 0.000192 0.000078 0.000078 0.000078 22 0.000214 0.000214 0.000214 0.000080 0.000080 0.000080 23 0.000229 0.000229 0.000229 0.000084 0.000084 0.000084 24 0.000238 0.000238 0.000238 0.000087 0.000087 0.000087 25 0.000230 0.000230 0.000230 0.000090 0.000090 0.000090 26 0.000226 0.000226 0.000226 0.000094 0.000094 0.000094 27 0.000226 0.000226 0.000226 0.000099 0.000099 0.000099 28 0.000230 0.000230 0.000230 0.000105 0.000105 0.000105 29 0.000238 0.000238 0.000238 0.000111 0.000111 0.000111 30 0.000249 0.000249 0.000249 0.000120 0.000120 0.000120 31 0.000263 0.000263 0.000263 0.000130 0.000130 0.000130 32 0.000278 0.000278 0.000278 0.000142 0.000142 0.000142 33 0.000294 0.000294 0.000294 0.000155 0.000155 0.000155 34 0.000309 0.000309 0.000309 0.000168 0.000168 0.000168 35 0.000323 0.000323 0.000323 0.000182 0.000182 0.000182 36 0.000336 0.000336 0.000336 0.000196 0.000196 0.000196 37 0.000350 0.000350 0.000350 0.000213 0.000213 0.000213 38 0.000366 0.000366 0.000366 0.000231 0.000231 0.000231 39 0.000385 0.000385 0.000385 0.000251 0.000251 0.000251 40 0.000410 0.000410 0.000410 0.000273 0.000273 0.000273 41 0.000438 0.000443 0.000438 0.000298 0.000296 0.000298 42 0.000474 0.000516 0.000474 0.000326 0.000344 0.000326 43 0.000518 0.000627 0.000519 0.000358 0.000419 0.000358 44 0.000573 0.000779 0.000577 0.000395 0.000520 0.000395 45 0.000636 0.000973 0.000644 0.000436 0.000651 0.000438 46 0.000712 0.001213 0.000726 0.000484 0.000813 0.000489 47 0.000798 0.001502 0.000820 0.000538 0.001010 0.000550 48 0.000896 0.001844 0.000930 0.000597 0.001245 0.000619 49 0.001005 0.002248 0.001056 0.000661 0.001522 0.000697 50 0.001128 0.002719 0.001200 0.000734 0.001844 0.000790 51 0.001265 0.002963 0.001350 0.000814 0.001961 0.000881 52 0.001418 0.003224 0.001542 0.000903 0.002099 0.000992 53 0.001580 0.003481 0.001761 0.001003 0.002263 0.001122 54 0.001761 0.003751 0.002017 0.001114 0.002454 0.001273 55 0.001964 0.004040 0.002393 0.001235 0.002673 0.001508 56 0.002200 0.004357 0.002884 0.001367 0.002921 0.001811 57 0.002474 0.004704 0.003317 0.001509 0.003200 0.002084 58 0.002796 0.005088 0.003805 0.001661 0.003512 0.002379 59 0.003174 0.005515 0.004341 0.001823 0.003860 0.002711 60 0.003613 0.005989 0.004951 0.001994 0.004238 0.003106 61 0.004122 0.006516 0.005639 0.002181 0.004659 0.003619 62 0.004705 0.007100 0.006406 0.002381 0.005119 0.004188 63 0.005364 0.007742 0.007243 0.002600 0.005616 0.004868 64 0.006111 0.008457 0.008071 0.002842 0.006165 0.005515 65 0.006940 0.009234 0.008966 0.003107 0.006766 0.006236 66 0.007779 0.010103 0.009945 0.003465 0.007430 0.007080 67 0.008697 0.011056 0.010940 0.003863 0.008170 0.007897 68 0.009709 0.012114 0.012027 0.004308 0.008993 0.008770 69 0.010836 0.013302 0.013231 0.004806 0.009912 0.009722 70 0.012093 0.014637 0.014571 0.005366 0.010945 0.010756 71 0.013486 0.016126 0.016064 0.006001 0.012111 0.011925 72 0.015044 0.017799 0.017742 0.006711 0.013412 0.013230 73 0.016794 0.019693 0.019640 0.007521 0.014886 0.014711 74 0.018751 0.021823 0.021775 0.008439 0.016552 0.016387 75 0.020950 0.024237 0.024194 0.009485 0.018443 0.018291 76 0.023428 0.026986 0.026949 0.010678 0.020600 0.020465 77 0.026183 0.030081 0.030051 0.012035 0.023061 0.022949 78 0.029308 0.033645 0.033622 0.013582 0.025888 0.025804 79 0.032774 0.037661 0.037648 0.015347 0.029144 0.029097 80 0.036705 0.042295 0.042295 0.017347 0.032886 0.032886 81 0.038556 0.047291 0.047291 0.019058 0.036992 0.036992 82 0.042087 0.053009 0.053009 0.022345 0.041662 0.041662 83 0.047283 0.059466 0.059466 0.027251 0.047017 0.047017 84 0.054248 0.066860 0.066860 0.033811 0.053130 0.053130 85 0.062990 0.075196 0.075196 0.042053 0.060056 0.060056 86 0.073605 0.084646 0.084646 0.052009 0.067888 0.067888 87 0.086115 0.095308 0.095308 0.063725 0.076724 0.076724 88 0.100513 0.107196 0.107196 0.077205 0.086549 0.086549 89 0.116840 0.120431 0.120431 0.092462 0.097426 0.097426 90 0.135087 0.135087 0.135087 0.109484 0.109484 0.109484 91 0.150610 0.150610 0.150610 0.122541 0.122541 0.122541 92 0.166534 0.166534 0.166534 0.136397 0.136397 0.136397 93 0.182546 0.182546 0.182546 0.150811 0.150811 0.150811 94 0.198598 0.198598 0.198598 0.165818 0.165818 0.165818 95 0.214442 0.214442 0.214442 0.181360 0.181360 0.181360 96 0.232944 0.232944 0.232944 0.198746 0.198746 0.198746 97 0.251903 0.251903 0.251903 0.216930 0.216930 0.216930 98 0.271612 0.271612 0.271612 0.235921 0.235921 0.235921 99 0.291889 0.291889 0.291889 0.255617 0.255617 0.255617 100 0.312680 0.312680 0.312680 0.275938 0.275938 0.275938 101 0.333720 0.333720 0.333720 0.296628 0.296628 0.296628 102 0.354570 0.354570 0.354570 0.317471 0.317471 0.317471 103 0.375136 0.375136 0.375136 0.338385 0.338385 0.338385 104 0.395172 0.395172 0.395172 0.358868 0.358868 0.358868 105 0.413945 0.413945 0.413945 0.379183 0.379183 0.379183 106 0.432145 0.432145 0.432145 0.398878 0.398878 0.398878 107 0.449197 0.449197 0.449197 0.417703 0.417703 0.417703 108 0.465497 0.465497 0.465497 0.435384 0.435384 0.435384 109 0.480869 0.480869 0.480869 0.452108 0.452108 0.452108 110 0.495080 0.495080 0.495080 0.467928 0.467928 0.467928 111 0.500557 0.500557 0.500557 0.482562 0.482562 0.482562 112 0.500454 0.500454 0.500454 0.496164 0.496164 0.496164 113 0.500352 0.500352 0.500352 0.502110 0.502110 0.502110 114 0.500201 0.500201 0.500201 0.500952 0.500952 0.500952 115 0.500000 0.500000 0.500000 0.500000 0.500000 0.500000 116 0.500000 0.500000 0.500000 0.500000 0.500000 0.500000 117 0.500000 0.500000 0.500000 0.500000 0.500000 0.500000 118 0.500000 0.500000 0.500000 0.500000 0.500000 0.500000 119 0.500000 0.500000 0.500000 0.500000 0.500000 0.500000 120 1.000000 1.000000 1.000000 1.000000 1.000000 1.000000

    (f) Effective/applicability date—(1) In general. Except as provided in paragraph (f)(2) of this section, this section applies to plan years beginning or after January 1, 2018.

    (2) Option to apply prior regulations in certain circumstances. For a plan for which substitute mortality tables are not used pursuant to § 1.430(h)(3)-2 for a plan year beginning during 2018, mortality tables determined in accordance with § 1.430(h)(3)-1 as in effect on December 31, 2017 (as contained in 26 CFR part 1 revised April 1, 2017) may be used for purposes of applying the rules of section 430 for a valuation date occurring during 2018 if the plan sponsor—

    (i) Concludes that the use of mortality tables determined in accordance with this section for the plan year would be administratively impracticable or would result in an adverse business impact that is greater than de minimis; and

    (ii) Informs the actuary of the intent to apply the option under this paragraph (f)(2).

    Par. 3. Section 1.430(h)(3)-2 is revised to read as follows:
    § 1.430(h)(3)-2 Plan-specific substitute mortality tables used to determine present value.

    (a) In general. This section provides rules for the use of substitute mortality tables under section 430(h)(3)(C) in determining any present value or making any computation under section 430 in accordance with § 1.430(h)(3)-1(a)(1). To use substitute mortality tables for a plan, a plan sponsor must first obtain approval to use the tables in accordance with the procedures described in paragraph (b) of this section. Paragraph (c) of this section provides rules for the development of substitute mortality tables, including guidelines providing that a plan must have either fully or partially credible mortality information in order to use substitute mortality tables. Paragraph (d) of this section describes the requirements for full credibility. Paragraph (e) of this section describes the requirements for partial credibility. Paragraph (f) of this section provides special rules for newly-affiliated plans. Paragraph (g) of this section specifies the effective date and applicability date of this section. The Commissioner may, in revenue rulings and procedures, notices, or other guidance published in the Internal Revenue Bulletin (see § 601.601(d)(2)(ii)(b) of this chapter), provide additional guidance regarding approval and use of substitute mortality tables under section 430(h)(3)(C) and related matters.

    (b) Procedures for obtaining approval to use substitute mortality tables—(1) Written request for approval to use substitute mortality tables—(i) General requirements. To use substitute mortality tables, a plan sponsor must first submit a written request to the Commissioner demonstrating that those substitute mortality tables meet the requirements of section 430(h)(3)(C) and this section. This request must specify the first plan year, and the term of years (not more than 10), for which the tables are to apply.

    (ii) Time for written request. Substitute mortality tables may not be used for a plan year unless the plan sponsor submits the written request described in paragraph (b)(1)(i) of this section at least 7 months before the first day of the first plan year for which the substitute mortality tables are to apply.

    (2) Commissioner's review of request—(i) In general. During the 180-day period that begins on the date the plan sponsor submits a request for approval to use substitute mortality tables for a plan pursuant to this section, the Commissioner will determine whether the request for approval to use substitute mortality tables satisfies the requirements of this section (including any published guidance issued pursuant to paragraph (a) of this section), and will either approve or deny the request. The Commissioner will deny a request if the request fails to meet the requirements of this section or if the Commissioner determines that a substitute mortality table does not reflect the actual mortality experience of the applicable population.

    (ii) Request for additional information. The Commissioner may request additional information with respect to the submission and deny a request to use substitute mortality tables if the additional information is not provided in a timely manner.

    (iii) Deemed approval. Except as provided in paragraph (b)(2)(iv) of this section, if the Commissioner does not issue a denial within the 180-day review period, the request is deemed to have been approved.

    (iv) Extension of time permitted. The Commissioner and a plan sponsor may, before the expiration of the 180-day review period, agree in writing to extend that period.

    (c) Development of substitute mortality tables—(1) Substitute mortality tables must be used for all plans in controlled group—(i) General rule. Except as otherwise provided in this paragraph (c), substitute mortality tables are permitted to be used for a plan for a plan year only if, for that plan year (or any portion of that plan year), substitute mortality tables are also approved and used for each other pension plan subject to the requirements of section 430 that is maintained by the plan sponsor and by each member of the plan sponsor's controlled group. For purposes of this section, the term controlled group means any group that is treated as a single employer under paragraph (b), (c), (m), or (o) of section 414. See paragraph (c)(7) of this section for special rules applicable to multiple-employer plans.

    (ii) Treatment of plans without credible mortality information. The rule of paragraph (c)(1)(i) of this section does not prohibit use of substitute mortality tables for one plan for a plan year if the only other plan or plans maintained by the plan sponsor (or by a member of the plan sponsor's controlled group) for which substitute mortality tables are not used are too small to have fully or partially credible mortality information for the plan year. For this purpose, the demonstration that neither males nor females under a plan have credible mortality information for a plan year must be made by analyzing the actual number of deaths over a period that is the same length as the longest experience study period used for any plan within the controlled group and that ends less than three years before the first day of the plan year.

    (2) Mortality experience requirements—(i) In general. Substitute mortality tables must reflect the actual mortality experience of the pension plan for which the tables will be used, and that mortality experience must consist of credible mortality information as described in paragraph (c)(2)(ii) of this section. Separate substitute mortality tables must be established for each gender and, except as provided in paragraph (d)(6) of this section, a substitute mortality table is permitted to be established for a gender only if the plan has credible mortality information for that gender. See paragraph (d)(5) of this section for rules permitting the use of substitute mortality tables for separate populations within a gender in certain circumstances.

    (ii) Credible mortality information—(A) In general. A plan has credible mortality information for a gender if and only if the mortality experience with respect to that gender satisfies the requirement for either full credibility (as described in paragraph (d) of this section) or partial credibility (as described in paragraph (e) of this section).

    (B) Simplified rule. Whether there is credible mortality information for a gender may be determined by only taking into account people who are at least age 50 and less than age 100. If there is credible mortality information for a gender using this simplified rule, the entire gender (not just those who are at least age 50 and less than age 100) has credible mortality information.

    (iii) Gender without credible mortality information—(A) In general. If, for the first plan year substitute mortality tables will be used for a plan, one gender has credible mortality information but the other gender does not have credible mortality information, then substitute mortality tables are established for the gender that has credible mortality information, and the mortality tables under § 1.430(h)(3)-1 are used for the gender that does not have credible mortality information. For a subsequent plan year, the plan sponsor may continue to use substitute mortality tables for the gender with credible mortality information without using substitute mortality tables for the other gender only if the other gender continues to lack credible mortality information for that subsequent plan year.

    (B) Demonstration of lack of credible mortality information for a gender. The demonstration that a gender does not have credible mortality information (that is, the individuals of that gender had fewer than the minimum number of actual deaths to have partial credibility, as described in paragraph (e)(1) of this section) for a plan year must be made by analyzing the actual number of deaths over a period that is the same length as the period for the experience study on which the substitute mortality tables are based and that ends less than three years before the first day of the plan year.

    (3) Determination of substitute mortality tables—(i) Requirement to use generational mortality table. A plan's substitute mortality tables must be generational mortality tables. A plan's substitute mortality tables are determined using the plan's base substitute mortality tables developed pursuant to paragraph (d) or (e) of this section and the mortality improvement factors described in paragraph (c)(3)(ii) of this section.

    (ii) Determination of mortality improvement factors. The mortality improvement factor for an age and gender is the cumulative mortality improvement factor determined under § 1.430(h)(3)-1(a)(2)(i)(E) for that age and gender for the applicable period. The applicable period is the period beginning with the base year for the base substitute mortality table determined under paragraph (d) or (e) of this section and ending in the calendar year in which the individual attains the age for which the probability of death is being determined. The base year for the base substitute mortality table is the calendar year that contains the day before the midpoint of the experience study period.

    (4) Disabled individuals. Under section 430(h)(3)(D), separate mortality tables are permitted to be used for certain disabled individuals. If the separate mortality tables issued under section 430(h)(3)(D) for certain disabled individuals are used, then those disabled individuals are disregarded for all purposes under this section. Thus, if the mortality tables under section 430(h)(3)(D) are used for disabled individuals under a plan, mortality experience with respect to those individuals must be excluded in developing mortality rates for substitute mortality tables under this section.

    (5) Aggregation—(i) Permissive aggregation of plans. A plan sponsor may use the same substitute mortality tables for two or more of its plans provided that the rules of this section are applied by treating those plans as a single plan. In such a case, the substitute mortality tables must be based on data collected with respect to those aggregated plans.

    (ii) Required aggregation of plans. In general, plans are not required to be aggregated for purposes of applying the rules of this section. However, for purposes of this section, a plan is required to be aggregated with any plan that was previously spun off from that plan if a purpose of the spinoff is to avoid the use of substitute mortality tables for any of the plans that were involved in the spinoff.

    (iii) Special rule regarding experience study if aggregated plans have different plan years. If two or more plans are aggregated pursuant to this paragraph (c)(5) and not all of the plans have the same plan year, then the experience study period may be a period that is not a multiple of 12 months, provided that—

    (A) The period over which mortality experience is collected for each plan (the data study period) is a multiple of 12 months and is based on the plan year for that plan;

    (B) The data study periods for all of the plans consist of the same number of years;

    (C) The data study periods for all of the plans satisfy the experience study period requirements of paragraph (d)(2)(ii) of this section; and

    (D) The data study periods for all of the plans have been selected to minimize the total period of time covered by the experience study period by overlapping (to the greatest extent possible) those data study periods.

    (6) Duration of use of tables—(i) General rule. Except as provided in this paragraph (c)(6), substitute mortality tables are used for a plan for the term of consecutive plan years specified in the plan sponsor's written request for approval to use such tables under paragraph (b)(1) of this section and approved by the Commissioner, or a shorter period prescribed by the Commissioner in the approval to use substitute mortality tables. Following the end of the approved term of use, or following any early termination of use described in this paragraph (c)(6), the mortality tables specified in § 1.430(h)(3)-1 must be used for the plan unless approval under paragraph (b)(1) of this section has been received by the plan sponsor to use substitute mortality tables based on an updated experience study for a further term.

    (ii) Early termination of use of tables. A plan's substitute mortality tables must not be used beginning with the earliest of—

    (A) For a plan using a substitute mortality table for only one gender because of a lack of credible mortality information with respect to the other gender, the first plan year for which there is credible mortality information with respect to the gender that had lacked credible mortality information (unless an approved substitute mortality table is used for that gender);

    (B) The first plan year for which the plan fails to satisfy the requirements of paragraph (c)(1) of this section (regarding use of substitute mortality tables for all plans in the controlled group), taking into account the rules of paragraph (f)(3) of this section (regarding the transition period for newly-affiliated plans);

    (C) The second plan year following the plan year for which there is a significant change in individuals covered by the plan as described in paragraph (c)(6)(iii) of this section;

    (D) The first plan year following the plan year for which a substitute mortality table used for a population is no longer accurately predictive of future mortality of that population, as determined by the Commissioner or as certified by the plan's actuary to the satisfaction of the Commissioner; or

    (E) The date specified in guidance published in the Internal Revenue Bulletin (see § 601.601(d)(2)(ii)(b) of this chapter) in conjunction with a replacement of mortality tables specified under section 430(h)(3)(A) and § 1.430(h)(3)-1 (other than annual updates to the static mortality tables issued pursuant to § 1.430(h)(3)-1(a)(3) or changes to the mortality improvement rates pursuant to § 1.430(h)(3)-1(a)(2)(i)(C)).

    (iii) Significant change in coverage—(A) Change in coverage from time of experience study. For purposes of applying the rules of paragraph (c)(6)(ii)(C) of this section, a significant change in the individuals covered by a substitute mortality table for a plan year occurs if the number of individuals covered by the substitute mortality table for the plan year is less than 80 percent or more than 120 percent of the average number of individuals in that population over the years covered by the experience study on which the substitute mortality tables are based. However, a change in coverage is not treated as significant if the plan's actuary certifies in writing to the satisfaction of the Commissioner that the substitute mortality tables used for the population continue to be accurately predictive of future mortality of that population (taking into account the effect of the change in the population).

    (B) Change in coverage from time of certification. For purposes of applying the rules of paragraph (c)(6)(ii)(C) of this section, a significant change in the individuals covered by a substitute mortality table for a plan year occurs if the number of individuals covered by the substitute mortality table for the plan year is less than 80 percent or more than 120 percent of the number of individuals covered by the substitute mortality table in a plan year for which a certification described in paragraph (c)(6)(iii)(A) of this section was made on account of a prior change in coverage. However, a change in coverage is not treated as significant if the plan's actuary certifies in writing to the satisfaction of the Commissioner that the substitute mortality tables used by the plan with respect to the covered population continue to be accurately predictive of future mortality of that population (taking into account the effect of the change in the population).

    (7) Multiple-employer plans—(i) General rule. In the case of a multiple-employer plan described in section 413(c), the plan administrator (as described in section 414(g)) is treated as the plan sponsor for purposes of this section. If approval is received to use substitute mortality tables by a plan, those tables must apply on a plan-wide basis (even if the plan is subject to the rules of section 413(c)(4)(A)).

    (ii) Application of controlled group consistency rules. In the case of an employer that participates in a multiple-employer plan, if the proportion of the plan's funding target attributable to the employees and former employees of the employer and members of its controlled group represents more than 50 percent of the plan's funding target, then the employer is treated as maintaining the plan for purposes of paragraph (c)(1) of this section. Thus, for a multiple-employer plan with credible mortality information that is treated as maintained by an employer under this paragraph (c)(7), unless substitute mortality tables are used for that plan, substitute mortality tables may not be used for any plan maintained by that employer or a member of its controlled group (and if substitute mortality tables are used for any other plan maintained by any member of the employer's controlled group, they must be used for the multiple-employer plan). By contrast, if the proportion of the plan's funding target attributable to the employees and former employees of the employer and members of its controlled group represents 50 percent or less of the funding target for a multiple-employer plan in which it participates, then the employer is not treated as maintaining the plan for purposes of paragraph (c)(1) of this section. Accordingly, whether substitute mortality tables may be used for other plans in such an employer's controlled group is independent of whether substitute mortality tables are used for the multiple-employer plan.

    (d) Full credibility—(1) In general. The mortality experience with respect to a gender or other population within a plan has full credibility if the actual number of deaths for that population during the experience study period described in paragraph (d)(2) of this section is at least the full credibility threshold described in paragraph (d)(3) of this section. Paragraph (d)(4) of this section provides rules for the creation of a base substitute mortality table from the experience study, which apply if the mortality experience for the population has full credibility. Paragraph (d)(5) of this section provides rules regarding the use of separate substitute mortality tables for plan populations within a gender. Paragraph (d)(6) of this section provides an option to use the combined mortality experience of both genders to determine the existence and extent of credible mortality information and to develop a single mortality ratio for use in constructing substitute mortality tables.

    (2) Experience study period requirements—(i) General rule. The base substitute mortality table for a gender or other population must be developed from an experience study of the mortality experience of that population that is collected over an experience study period. The experience study period must consist of 2, 3, 4, or 5 consecutive 12-month periods, and must be the same period for all populations except as provided in paragraph (c)(5)(iii) of this section.

    (ii) Requirement to use recent experience data—(A) General rule. Except as provided in paragraph (d)(2)(ii)(B) of this section, the last day of the experience study period must be less than 3 years before the first day of the first plan year for which the substitute mortality tables are to apply. For example, if January 1, 2019, is the first day of the first plan year for which the substitute mortality tables will be used, then an experience study using calendar year data generally must include data collected for a period that ends no earlier than December 31, 2016.

    (B) Exception for submission between 1 and 2 years before effective date of table. If the plan sponsor submits a request for approval to use of substitute mortality tables more than 1 year (and less than 2 years) before the first day of the first plan year for which the substitute mortality tables are to apply, then the experience study is not treated as failing to satisfy the rule in paragraph (d)(2)(ii)(A) of this section if the last day of the final year reflected in the experience data is less than 2 years before the date of submission. For example, if an application for approval to use of substitute mortality tables that would apply for plan years beginning on or after January 1, 2019 year is submitted in 2017, then an experience study using calendar year data may be based on data collected for a period that ends as early as December 31, 2015.

    (iii) Experience study based on benefit amount. As provided in paragraph (d)(4)(i) of this section, the mortality rates under the base substitute mortality tables are amounts-weighted mortality rates that are derived from the experience study. An individual's benefit amount (which is used to determine amounts-weighted mortality rates and for other purposes under this paragraph (d)) is the individual's accrued benefit expressed in the form of an annual benefit commencing at normal retirement age (or at the current age, if later) if an individual has not commenced benefits and the individual's annual payment if the individual has commenced benefits. Because amounts-weighted mortality rates for a plan are determined using benefit amounts, the experience study used to develop a base substitute mortality table may not include periods before the plan was established.

    (3) Full credibility threshold—(i) Threshold number of deaths. The full credibility threshold for a gender or other population is the product of 1,082 and the population's benefit dispersion factor. In calculating the population's benefit dispersion factor, for purposes of paragraphs (d)(3)(iii), (iv), and (v) of this section, the population is adjusted, as appropriate, for individuals who leave the population on account of a reason other than death.

    (ii) Population's benefit dispersion factor. The population's benefit dispersion factor is equal to—

    (A) The number of expected deaths for the population during the experience study period (as defined in paragraph (d)(3)(iii) of this section); multiplied by

    (B) The sum of the mortality-weighted squares of the benefits (as defined in paragraph (d)(3)(iv) of this section); divided by

    (C) The square of the sum of the mortality-weighted benefits (as defined in paragraph (d)(3)(v) of this section).

    (iii) Number of expected deaths. For a population, the number of expected deaths during the experience study period is equal to the sum, for all years in the experience study period, of the expected number of deaths in the population during the year using the mortality rates from the standard mortality tables determined under paragraph (d)(4)(iii) of this section. This amount is equal to:

    ER05OC17.000 Where E is equal to the number of years in the experience study period, t represents each year during the experience study period, x represents an individual in the population during year t, qxt is the mortality rate for that individual's age and gender for the calendar year in which year t begins under the applicable standard mortality table determined under paragraph (d)(4)(iii) of this section, and Nt is equal to the number of individuals in the population in year t.

    (iv) Sum of the mortality-weighted squares of the benefits—(A) Determination. For a population, the sum of the mortality-weighted squares of the benefits is the sum, for all years in the experience study period, for all individuals in the population at the beginning of the year, of the product of—

    (1) The probability of death for the individual using the mortality rate for the individual's age and gender from the standard mortality table determined under paragraph (d)(4)(iii) of this section; and

    (2) The square of the benefit amount for the individual.

    (B) Expression as formula. The sum of the mortality-weighted squares of the benefits for a population determined pursuant to paragraph (d)(3)(iv)(A) of this section is equal to:

    ER05OC17.001 Where E is equal to the number of years in the experience study period, t represents each year during the experience study period, x represents an individual in the population during year t, qxt is the mortality rate for that individual's age and gender for the calendar year in which year t begins under the applicable standard mortality table determined under paragraph (d)(4)(iii) of this section, bxt is equal to the benefit amount for that individual for year t, and Nt is equal to the number of individuals in the population in year t.

    (v) Square of the sum of the mortality-weighted benefits—(A) Determination. For a population, the square of the sum of the mortality-weighted benefits is equal to the square of the sum, for all years in the experience study period, for all individuals in the population at the beginning of the year, of the product of—

    (1) The probability of death of the individual using the mortality rate for the individual's age and gender from the standard mortality table determined under paragraph (d)(4)(iii) of this section; and

    (2) The benefit amount for the individual.

    (B) Expression as formula. The square of the sum of the mortality-weighted benefits for a population determined pursuant to paragraph (d)(3)(v)(A) of this section is equal to:

    ER05OC17.002 Where E is equal to the number of years in the experience study period, t represents each year during the experience study period, x represents an individual in the population during year t, qxt is the mortality rate for that individual's age and gender for the calendar year in which t begins under the applicable standard mortality table determined under paragraph (d)(4)(iii) of this section, bxt is equal to the benefit amount for that individual for year t, and Nt is equal to the number of individuals in the population in year t.

    (4) Development of mortality rates—(i) In general. The mortality rates under the base substitute mortality tables must be amounts-weighted mortality rates that are derived from the experience study. Except as provided in paragraph (d)(4)(iv) of this section, the mortality rate for an age and gender is determined by multiplying the mortality rate for that age and gender from the standard mortality table determined under paragraph (d)(4)(iii) of this section by the mortality ratio determined under paragraph (d)(4)(ii) of this section. If the simplified rule of paragraph (c)(2)(ii)(B) of this section is used for the population, then the mortality ratio is determined only taking into account people who are at least 50 years old and less than 100 years old, but the mortality ratio is applied to all ages.

    (ii) Mortality ratio—(A) In general. Except as provided in paragraph (d)(6) of this section, a mortality ratio is determined for a gender or other population within a gender, and is equal to the quotient determined by dividing—

    (1) The sum, for all years in the experience study period, of the benefit amount for all individuals in the population at the beginning of the year who died during the year, by

    (2) The sum, for all years in the experience study period, for all individuals in the population at the beginning of the year (adjusted, as appropriate, for individuals who leave on account of reason other than death), of the product of—

    (i) The probability of death of the individual using the mortality rate for the individual's age and gender from the standard mortality table determined under paragraph (d)(4)(iii) of this section; and

    (ii) The benefit amount for the individual.

    (B) Expression as formula. For purposes of determining a mortality ratio as described in paragraph (d)(4)(ii)(A) of this section, the amount described in paragraph (d)(4)(ii)(A)(2) of this section is equal to:

    ER05OC17.003 Where E is equal to the number of years in the experience study period, t represents each year during the experience study period, x represents an individual in the population during year t, qxt is the mortality rate for that individual's age and gender for the calendar year in which t begins under the applicable standard mortality table determined under paragraph (d)(4)(iii) of this section, bxt is equal to the benefit amount for that individual for year t, and Nt is equal to the number of individuals in the population in year t.

    (iii) Standard mortality table—(A) Projection of base table. The standard mortality table for a year is the mortality table determined by applying cumulative mortality improvement factors determined under § 1.430(h)(3)-1(a)(2)(i)(E) to the base mortality table under § 1.430(h)(3)-1(d) for the period beginning with 2006 and ending in the base year for the base substitute mortality table determined under paragraph (c)(3)(ii) of this section. For purposes of the previous sentence, the cumulative mortality improvement factors are determined using the mortality improvement rates described in § 1.430(h)(3)-1(a)(2)(i)(C) that apply for the calendar year during which the plan sponsor submits the request for approval to use substitute mortality tables. If the plan sponsor submits such a request during 2017, then the cumulative mortality improvement factors are determined using the mortality improvement rates contained in the Mortality Improvement Scale MP-2016 Report (issued by the Retirement Plans Experience Committee (RPEC) of the Society of Actuaries and available at www.soa.org/Research/Experience-Study/Pension/research-2016-mp.aspx).

    (B) Selection of base table. If the population consists solely of annuitants, the annuitant base mortality table set forth in § 1.430(h)(3)-1(d) must be used for purposes of paragraph (d)(4)(iii)(A) of this section. If the population consists solely of nonannuitants, the nonannuitant base mortality table set forth in § 1.430(h)(3)-1(d) must be used for that purpose. If the population includes both annuitants and nonannuitants, a combination of the annuitant and nonannuitant base tables set forth in § 1.430(h)(3)-1(d) must be used for that purpose. The combined table is constructed using the weighting factors for small plans that are set forth in § 1.430(h)(3)-1(d). The weighting factors are applied to develop the combined table using the following equation: Combined mortality rate = [nonannuitant rate * (1 − weighting factor)] + [annuitant rate * weighting factor].

    (iv) Modification for ages 96 and older. Mortality rates for ages 96 and older under the base substitute mortality table are determined using the rules of paragraph (d)(4)(i) of this section but substituting a modified mortality ratio for the mortality ratio determined under paragraph (d)(4)(ii) of this section. The modified mortality ratio is determined as follows—

    (A) For ages 96 through 109, if the mortality ratio is greater than 1.0, the modified mortality ratio is equal to the mortality ratio for the population reduced by 1/15th of the excess of the mortality ratio over 1.0 for each year that the age exceeds 95.

    (B) For ages 96 through 109, if the mortality ratio is less than 1.0, the modified mortality ratio is equal to the mortality ratio for the population increased by 1/15th of the excess of 1.0 over the mortality ratio for each year that the age exceeds 95.

    (C) For ages 110 and older, the modified mortality ratio is equal to 1.0.

    (v) Change in number of individuals covered by table. Experience data may not be used to develop a base table if the number of individuals in the population covered by the table (for example, the male annuitant population) as of the last day of the plan year before the year the request for approval to use the substitute mortality table is made is less than 80 percent or more than 120 percent of the average number of individuals in that population over the years covered by the experience study on which the substitute mortality tables are based, unless it is demonstrated to the satisfaction of the Commissioner that the experience data is accurately predictive of future mortality of that population (taking into account the effect of the change in individuals) after appropriate adjustments to the data are made (for example, excluding data from individuals with respect to a spun-off portion of the plan). For this purpose, a reasonable estimate of the number of individuals in the population covered by the table may be used.

    (5) Separate tables for specified populations—(i) In general. Except as provided in this paragraph (d)(5), separate substitute mortality tables are permitted to be used for separate populations within a gender only if—

    (A) All individuals of that gender are divided into separate populations;

    (B) Each separate population has mortality experience that has full credibility as determined under the rules of paragraph (d)(5)(iii) of this section; and

    (C) The separate base substitute mortality table for each separate population is developed applying the rules of paragraphs (d)(1) through (4) of this section using an experience study that takes into account solely members of that population.

    (ii) Annuitant and nonannuitant separate populations. Notwithstanding paragraph (d)(5)(i)(B) of this section, a gender may be separated into separate populations of annuitants and nonannuitants for the purpose of developing and using substitute mortality tables, even if only one of those separate populations has credible mortality information. Similarly, if separate populations that satisfy paragraph (d)(5)(i)(B) of this section are established, then any of those populations may be further subdivided into separate annuitant and nonannuitant subpopulations, provided that at least one of the two resulting subpopulations has credible mortality information. The standard mortality tables under § 1.430(h)(3)-1 are used for a resulting subpopulation that does not have credible mortality information. For example, if the male hourly and salaried populations under a plan each have mortality experience with full credibility and the male salaried annuitant population has credible mortality information, then substitute mortality tables may be used for the plan with respect to the male salaried annuitant population even if the standard mortality tables under § 1.430(h)(3)-1 are used with respect to the male salaried nonannuitant population (because that nonannuitant population does not have credible mortality information).

    (iii) Credible mortality information for separate populations. In determining whether the mortality experience for a separate population within a gender has full credibility, the rules of paragraph (d)(1) of this section must be applied to that separate population. In demonstrating that an annuitant (or nonannuitant) population within a gender or within a separate population does not have credible mortality information, the rules of paragraph (c)(2)(iii)(B) of this section are applied by substituting the annuitant (or nonannuitant) population for the gender.

    (6) Option to determine a single mortality ratio for both genders. Base substitute mortality tables for a plan may be constructed by developing and applying a single mortality ratio for both genders, but only if the substitute mortality tables used for all plans maintained by members of the plan sponsor's controlled group (except for plans for which both the male and female populations, considered separately, have mortality experience with full credibility) are constructed in this manner. If the option under this paragraph (d)(6) is applied for a plan then, for all plans maintained by members of the plan sponsor's controlled group, whether both the male and female populations within the plan have credible mortality information (and, if that combined population's mortality experience does not have full credibility, the partial credibility weighting factor for the plan) is determined using the combined mortality experience for both genders.

    (e) Partial credibility—(1) In general. The mortality experience with respect to a population has partial credibility if the actual number of deaths for that population during the experience study period described in paragraph (d)(2) of this section is at least equal to 100 and is less than the full credibility threshold described for the population in paragraph (d)(3) of this section. If the mortality experience for the population has partial credibility, then in lieu of creating a base substitute mortality table as described in paragraph (d) of this section, the base substitute mortality table is created as the sum of—

    (i) The product of—

    (A) The partial credibility weighting factor determined under paragraph (e)(2) of this section; and

    (B) The mortality rates that are derived from the experience study determined under paragraph (d)(4)(i) of this section, and

    (ii) The product of—

    (A) One minus the partial credibility weighting factor described in paragraph (e)(2) of this section; and

    (B) The mortality rate from the standard mortality tables described in paragraph (d)(4)(iii) of this section.

    (2) Partial credibility weighting factor. The partial credibility weighting factor is equal to the square root of the fraction—

    (i) The numerator of which is the actual number of deaths for the population during the experience study period, and

    (ii) The denominator of which is the full credibility threshold for the population described in paragraph (d)(3) of this section.

    (f) Special rules for newly-affiliated plans—(1) In general. This paragraph (f) provides special rules that provide temporary relief from certain rules in this section in the case of a controlled group that includes a newly-affiliated plan (as defined in paragraph (f)(2) of this section). Paragraph (f)(3) of this section provides a transition period during which the requirement in paragraph (c)(1) of this section (that is, the requirement that all plans within the controlled group that have credible mortality information must use substitute mortality tables) is not applicable. Paragraph (f)(4) of this section provides special rules that permit the use of a shorter experience study period in the case of a newly-affiliated plan that excludes the mortality experience data for the period before the date the plan becomes a newly-affiliated plan.

    (2) Definition of newly-affiliated plan. For purposes of this paragraph (f), a plan is a newly-affiliated plan if the plan sponsor becomes a member of the new controlled group in connection with a merger, acquisition, or similar transaction described in § 1.410(b)-2(f). A plan also is treated as a newly-affiliated plan for purposes of this section if the plan is established in connection with a transfer of assets and liabilities from another employer's plan in connection with a merger, acquisition, or similar transaction described in § 1.410(b)-2(f).

    (3) Transition period for newly-affiliated plans. The use of substitute mortality tables for a plan within a controlled group is not prohibited merely because, during the transition period, substitute mortality tables are not used for a newly-affiliated plan that fails to demonstrate a lack of credible mortality information during that period. Similarly, during the transition period, the use of substitute mortality tables for a newly-affiliated plan is not prohibited merely because substitute mortality tables are not used for another plan within the controlled group that fails to demonstrate a lack of credible mortality information during that period. The transition period begins on the date of the transaction that results in the plan becoming a newly-affiliated plan and ends on the last day of the plan year that immediately follows the latest ending period described in section 410(b)(6)(C)(ii) with respect to that transaction for any of the plans in the controlled group.

    (4) Experience study period for newly-affiliated plan—(i) In general. The mortality experience data for a newly-affiliated plan may either include or exclude mortality experience data for the period before the date the plan becomes a newly-affiliated plan. If a plan sponsor excludes mortality experience data for the period before the date the plan becomes a newly-affiliated plan, the exclusion must apply for all populations within the plan.

    (ii) Demonstration relating to lack of credible mortality information. If the experience study for a newly-affiliated plan excludes mortality experience data for the period prior to the date the plan becomes a newly-affiliated plan, then the demonstration that the plan does not have credible mortality information for a plan year that begins after the transition period can be made using a shorter experience study period than would otherwise be permitted under paragraph (c)(2)(iii)(B) of this section, provided that the experience study period begins with the date the plan becomes a newly-affiliated plan and ends not more than one year and one day before the first day of the plan year.

    (iii) Demonstration relating to credible mortality information. If the experience study for a newly-affiliated plan excludes mortality experience data for the period before the date the plan becomes a newly-affiliated plan and the plan fails to demonstrate that it does not have credible mortality information for the plan year under the rules of paragraph (f)(4)(ii) of this section, then other plans within the controlled group may continue to use substitute mortality tables only if substitute mortality tables are used for the newly-affiliated plan for the plan year. In such a case, the experience study period for the newly-affiliated plan may consist of a 12-month period.

    (g) Effective/applicability date—(1) General rule. This section applies for plan years beginning on or after January 1, 2018. Except as provided in paragraph (g)(2) of this section, the substitute mortality table used for a plan for such a plan year must comply with the rules of paragraphs (a) through (f) of this section.

    (2) Transition rule for previously approved substitute mortality tables—(i) Applicability for 2018. If a plan sponsor has received approval from the Commissioner to use substitute mortality tables for a plan year beginning in 2017, then that previous approval applies to a plan year beginning in 2018 provided that—

    (A) The previous approval period had not ended;

    (B) Substitute mortality tables are used for all plans in the plan sponsor's controlled group in accordance with the terms of that approval; and

    (C) The projection factors provided in Projection Scale AA, as set forth in § 1.430(h)(3)-1(d) as in effect on December 31, 2017 (as contained in 26 CFR part 1 revised April 1, 2017) are applied to the base substitute mortality table.

    (ii) Applicability for later plan years. If a plan sponsor is described in paragraph (g)(2)(i) of this section, then that previous approval applies to a later plan year provided that—

    (A) The previous approval period had not ended;

    (B) Substitute mortality tables are used for all plans in the plan sponsor's controlled group that have credible mortality information within the meaning of paragraph (c)(2)(ii) of this section; and

    (C) The mortality improvement factors described in paragraph (c)(3)(ii) of this section are applied to the base substitute mortality table.

    (3) Transition rule for requests for approval to use substitute mortality tables. A written request described in paragraph (b)(1)(i) of this section to use substitute mortality tables for a plan year that begins during 2018 does not fail to satisfy the timing requirement of paragraph (b)(1)(ii) of this section if it is submitted no later than February 28, 2018, provided that the plan sponsor agrees to a 90-day extension of the 180-day review period in accordance with paragraph (b)(2)(iv) of this section.

    Par. 4. Section 1.431(c)(6)-1 is revised to read as follows:
    § 1.431(c)(6)-1 Mortality tables used to determine current liability.

    (a) Mortality tables used to determine current liability. The mortality assumptions that apply to a defined benefit plan for the plan year pursuant to section 430(h)(3)(A) and § 1.430(h)(3)-1(a) are used to determine a multiemployer plan's current liability for purposes of applying the rules of section 431(c)(6). Either the generational mortality tables used pursuant to § 1.430(h)(3)-1(a)(2) or the static mortality tables used pursuant to § 1.430(h)(3)-1(a)(3) may be used for a multiemployer plan for this purpose. However, for this purpose, substitute mortality tables under § 1.430(h)(3)-2 may not be used for a multiemployer plan.

    (b) Effective/applicability date. This section applies for plan years beginning on or after January 1, 2018. For rules that apply to plan years beginning before January 1, 2018 and on or after January 1, 2008, see § 1.431(c)(6)-1 (as contained in 26 CFR part 1 revised April 1, 2015).

    Par. 5. Section 1.433(h)(3)-1 is added to read as follows:
    § 1.433(h)(3)-1 Mortality tables used to determine current liability.

    (a) Mortality tables used to determine current liability. In accordance with section 433(h)(3)(B), the mortality assumptions that apply to a defined benefit plan for the plan year pursuant to section 430(h)(3)(A) and § 1.430(h)(3)-1(a) are used to determine a CSEC plan's current liability for purposes of applying the rules of section 433(c)(7)(C). Either the static mortality tables used pursuant to § 1.430(h)(3)-1(a)(3) or generational mortality tables used pursuant to § 1.430(h)(3)-1(a)(2) may be used for a CSEC plan for this purpose, but substitute mortality tables under § 1.430(h)(3)-2 may not be used for this purpose.

    (b) Effective/applicability date. This section applies for plan years beginning on or after January 1, 2018.

    Kirsten Wielobob, Deputy Commissioner for Services and Enforcement. Approved: August 21, 2017. David Kautter, Assistant Secretary of the Treasury for Tax Policy.
    [FR Doc. 2017-21485 Filed 10-3-17; 4:15 pm] BILLING CODE 4830-01-P
    DEPARTMENT OF LABOR Mine Safety and Health Administration 30 CFR Parts 56 and 57 [Docket No. MSHA-2014-0030] RIN 1219-AB87 Examinations of Working Places in Metal and Nonmetal Mines AGENCY:

    Mine Safety and Health Administration, Labor.

    ACTION:

    Final rule; stay of effective date; reinstatement of rules.

    SUMMARY:

    The Mine Safety and Health Administration is staying the effective date of the Agency's January 23, 2017, final rule that amended standards for examination of working places in metal and nonmetal mines to June 2, 2018. MSHA also is reinstating the provisions of the working place examinations standards that were in effect as of October 1, 2017. This stay and reinstatement offers additional time for MSHA to provide stakeholders training and compliance assistance.

    DATES:

    As of October 5, 2017, 30 CFR 56.18002 and 57.18002 are stayed until June 2, 2018, and 30 CFR 56.18002T and 57.18002T are added until June 2, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Sheila A. McConnell, Director, Office of Standards, Regulations, and Variances, MSHA, at [email protected] (email); 202-693-9440 (voice); or 202-693-9441 (facsimile).

    SUPPLEMENTARY INFORMATION: I. Stay of Effective Date

    On January 23, 2017, MSHA published a final rule in the Federal Register (82 FR 7680) amending the Agency's standards for the examination of working places in metal and nonmetal (MNM) mines (January 2017 final rule). The final rule was scheduled to become effective on May 23, 2017. On May 22, 2017, MSHA published a final rule delaying the effective date to October 2, 2017 (82 FR 23139). On September 12, 2017, MSHA proposed to further delay the effective date of the final rule from October 2, 2017 to March 2, 2018 (82 FR 42765). The comment period for the proposed delay of the final rule's effective date closed on September 26, 2017.

    In the same issue of the Federal Register, MSHA reopened the rulemaking record and proposed to amend the January 2017 final rule with regard to the timing of the working place examination and contents of the examination record (82 FR 42757). MSHA has scheduled four public hearings from October 24, 2017, to November 2, 2017, at various locations, to provide the members of the public an opportunity to present their views on the limited changes being proposed. The comment period for the proposed limited changes closes on November 13, 2017.

    Most commenters on the proposed rule to delay the effective date of the final rule supported extending the date beyond October 2, 2017. One commenter who supported extending the effective date to March 2, 2018, stated that the extension of time would offer additional time for MSHA to provide stakeholders training and compliance assistance, would further permit MSHA to address issues raised by stakeholders during quarterly training calls and stakeholder meetings and compliance assistance visits, and would also provide MSHA more time to train its inspectors to help ensure consistency in MSHA enforcement. This commenter also supported a further delay of the effective date of the final rule, should such be required, if the Agency has yet to achieve its stated goals.

    Many commenters stated that an extension beyond October 2, 2017 is necessary and appropriate and recommended an indefinite suspension of the effective date. The commenters maintained that, since substantive changes to the January 2017 final rule were proposed at the same time as the proposed delay, it is imprudent to establish any effective date until an amended final rule is promulgated and the substance of the rule is known. In addition, they acknowledged MSHA's stated intent to provide compliance assistance to industry and specific training to inspectors prior to the effective date. The commenters expressed concern that, for any compliance assistance measures to have any meaning, it is necessary for the exact terms of the final rule to be known before the final rule's effective date. Then, after the period of compliance assistance from MSHA, mine operators will be required to develop appropriate compliance programs to comply with the final rule. Given the uncertainty of the final rule's provisions and the compliance assistance efforts to be scheduled, the commenters believed that an appropriate effective date cannot be established.

    Other commenters stated that the proposed delay to March 2, 2018, was arbitrary and does not increase the likelihood that MSHA will complete all of the compliance assistance, outreach, and training tasks in that timeframe, or that the MNM industry will be ready to comply on the new effective date. They recommended that MSHA establish an effective date that is six months after the date on which any changes to the final Examinations rule are published in the Federal Register.

    MSHA agrees with commenters who support an extension beyond the proposed March 2, 2018 effective date so that the Agency will complete its stated goals by the effective date of the final rule. To ensure compliance readiness on that date, MSHA is developing compliance assistance materials to assist the industry. A stay beyond the proposed March 2, 2018, effective date will provide MSHA the time and flexibility to make these materials available to stakeholders and post them on MSHA's Web site (www.msha.gov); hold informational stakeholder meetings at various locations around the country; and focus on compliance assistance visits in other areas of the country, as well as ensure all issues at these meetings and visits are addressed. Additional time will also allow MSHA to train its inspectors to ensure consistent enforcement. MSHA will make the Agency's inspector training materials available to the mining community to assist miners and mine operators in effectively implementing the rule, thus enhancing the safety of miners.

    Labor union commenters did not support the proposed delay in the effective date, stating that a delay was unnecessary and miners' health and safety would be affected by an extension. Labor also stated that the January 2017 final rule made only minor changes.

    Staying the effective date does not negatively affect miners' safety and health; the standards that have been in effect for many years are reinstated and MSHA will continue to enforce those standards. MSHA will also continue to proactively provide compliance assistance and training needed to assure that miners' safety and health are protected. Staying the effective date of the January 2017 rule is necessary so that the diverse MNM mining industry is provided the educational, technical, and compliance assistance to ensure miners' safety and health and to comply with final rule requirements. The diversity in the MNM mining industry relates not only to commodities produced at mines and mills, but also differences for small and large mines in complying with the final rule. Based on data reported to MSHA, 90 percent of over 11,000 MNM mines employ fewer than 20 miners and almost all (98 percent) are surface mines.

    Since most MNM mines are small operations, MSHA recognizes that they have limited staff, including limited administrative staff, as well as limited resources, and many are located in remote areas. These small mines may have limited access or no access to the internet at the mine site and may rely on stakeholder meetings and other types of MSHA assistance to acquire informational materials needed to comply with the rule. In MSHA's experience with previous changes to metal and nonmetal standards and regulations, outreach to these small mine operators requires MSHA to be flexible regarding different approaches that may be needed and regarding the time necessary to ensure that all miners and mine operators have the tools and the information to comply with the rule.

    MSHA has concluded that miners are better protected when operators and miners are provided needed informational and instructional materials and training and technical assistance regarding the rule's requirements. The stayed effective date to June 2, 2018 provides MSHA the flexibility the Agency needs to promote compliance, thereby increasing protections for miners.

    Further, staying the January 2017 rule without also reinstating the provisions that were in effect as of October 1, 2017, would leave miners unprotected. Reinstatement without delay is necessary to continue historical protection of metal and nonmetal miners through workplace examinations.

    II. Other Issues

    Some commenters raised concern that the substance of the final rule is uncertain because litigation is pending on the January 2017 final rule. The commenters suggested that MSHA delay the effective date indefinitely until the rule's status is finally resolved. These comments are outside the scope of the September 12, 2017, proposed rule, which was limited to delaying the rule's effective date to ensure compliance readiness.

    III. Conclusion

    Having given due consideration to all comments received, MSHA has determined that it is appropriate to stay the effective date until June 2, 2018, and to reinstate the workplace examinations rules that were in effect as of October 1, 2017. The stay will address commenters' concerns regarding sufficient time for MSHA to fully inform and educate the mining community on the rule's requirements. A June 2, 2018, effective date provides more time and flexibility for MSHA to complete development of compliance assistance materials and make them available to stakeholders, hold informational meetings for stakeholders and conduct compliance assistance visits at MNM mines throughout the country. In addition, the extension will permit more time for MSHA to address issues that have been or may be raised during quarterly training calls and upcoming stakeholder meetings and compliance assistance visits and to train MSHA inspectors to help ensure consistency in MSHA enforcement. MSHA has determined that the educational, technical, and compliance assistance that will be provided to mine operators and miners during the period of the stayed effective date will enhance their understanding of the rule's requirements, thereby increasing protections for miners.

    For the foregoing reasons, MSHA has concluded that it is appropriate to stay the effective date until June 2, 2018.

    Accordingly, the effective date of the final rule published January 23, 2017 (82 FR 7680), delayed on May 22, 2017 (82 FR 23139), is stayed until June 2, 2018. The standards that were in effect as of October 1, 2017, are reinstated.

    List of Subjects in 30 CFR Parts 56 and 57

    Metals, Mine safety and health, Reporting and recordkeeping requirements.

    Dated: October 3, 2017. Wayne D. Palmer, Acting Assistant Secretary of Labor for Mine Safety and Health.

    For the reasons set out in the preamble, and under the authority of the Federal Mine Safety and Health Act of 1977, as amended by the Mine Improvement and New Emergency Response Act of 2006, MSHA is amending parts 56 and 57 as follows:

    PART 56—SAFETY AND HEALTH STANDARDS—SURFACE METAL AND NONMETAL MINES 1. The authority citation for part 56 continues to read as follows: Authority:

    30 U.S.C. 811.

    § 56.18002 [Stayed]
    2. Section 56.18002 is stayed until June 2, 2018. 3. Section 56.18002T is added until June 2, 2018 to read as follows:
    § 56.18002T Examination of working places.

    (a) A competent person designated by the operator shall examine each working place at least once each shift for conditions which may adversely affect safety or health. The operator shall promptly initiate appropriate action to correct such conditions.

    (b) A record that such examinations were conducted shall be kept by the operator for a period of one year, and shall be made available for review by the Secretary or his authorized representative.

    (c) In addition, conditions that may present an imminent danger which are noted by the person conducting the examination shall be brought to the immediate attention of the operator who shall withdraw all persons from the area affected (except persons referred to in section 104(c) of the Federal Mine Safety and Health Act of 1977) until the danger is abated.

    PART 57—SAFETY AND HEALTH STANDARDS—UNDERGROUND METAL AND NONMETAL MINES 4. The authority citation for part 57 continues to read as follows: Authority:

    30 U.S.C. 811.

    § 57.18002 [Stayed]
    5. Section 57.18002 is stayed until June 2, 2018. 6. Section 57.18002T is added until June 2, 2018 to read as follows:
    § 57.18002T Examination of working places.

    (a) A competent person designated by the operator shall examine each working place at least once each shift for conditions which may adversely affect safety or health. The operator shall promptly initiate appropriate action to correct such conditions.

    (b) A record that such examinations were conducted shall be kept by the operator for a period of one year, and shall be made available for review by the Secretary or his authorized representative.

    (c) In addition, conditions that may present an imminent danger which are noted by the person conducting the examination shall be brought to the immediate attention of the operator who shall withdraw all persons from the area affected (except persons referred to in section 104(c) of the Federal Mine Safety and Health Act of 1977) until the danger is abated.

    [FR Doc. 2017-21594 Filed 10-3-17; 4:15 pm] BILLING CODE 4520-43-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 100 [Docket Number USCG-2017-0875] RIN 1625-AA08 Special Local Regulation; Ohio River, Louisville, KY AGENCY:

    Coast Guard, DHS.

    ACTION:

    Temporary final rule.

    SUMMARY:

    The Coast Guard is establishing a special local regulation for all navigable waters of the Ohio River from mile marker (MM) 595.0 to MM 597.0. This action is necessary to provide for the safety of life on these navigable waters near Louisville, KY, during a regatta. Entry into, transiting through, or anchoring within this regulated area is prohibited unless authorized by the Captain of the Port Sector Ohio Valley (COTP) or a designated representative.

    DATES:

    This rule is effective from 11 a.m. on October 7, 2017 through 4 p.m. on October 8, 2017.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this rule, call or email MST1 Kevin Schneider, Waterways Department Sector Ohio Valley, U.S. Coast Guard; telephone 502-779-5333, email [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Table of Abbreviations CFR Code of Federal Regulations COTP Captain of the Port Sector Ohio Valley DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

    The Coast Guard is issuing this temporary final rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. We must establish this Special Local Regulation by October 7, 2017 and lack sufficient time to provide a reasonable comment period and then consider those comments before issuing the rule.

    Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be contrary to the public interest because immediate action is necessary to prevent possible loss of life and property.

    III. Legal Authority and Need for Rule

    The Coast Guard is issuing this rule under authority in 33 U.S.C. 1233. The Captain of the Port Sector Ohio Valley (COTP) has determined that potential hazards associated with a regatta from 11 a.m. on October 7, 2017 through 4 p.m. on October 8, 2017 will present a safety concern on all navigable waters on the Ohio River extending from mile marker (MM) 595.0 to MM 597.0. The purpose of this rule is to ensure the safety of life and vessels on these navigable waters before, during, and after the scheduled event.

    IV. Discussion of the Rule

    This rule establishes a temporary special local regulation that will be enforced from 11 a.m. to 5 p.m. on October 7 and 11 a.m. to 4 p.m. on October 8. The temporary special local regulation will cover all navigable waters of the Ohio River from MM 595.0 to MM 597.0. The duration of the special local regulation is intended to ensure the safety of waterway users and these navigable waters before, during, and after the scheduled event. No vessel or person is permitted to enter the special local regulated area without obtaining permission from the COTP.

    V. Regulatory Analyses

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

    A. Regulatory Planning and Review

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

    This regulatory action determination is based on the size, location, duration, and time-of-day of the special local regulation. Entry into the regulated area will be prohibited from 11 a.m. to 5 p.m. on October 7 and 11 a.m. to 4 p.m. on October 8 from MM 595.0 to MM 597.0, unless authorized by the Captain of the Port Sector Ohio Valley (COTP) or a designated representative. Moreover, the Coast Guard will issue written Local Notice to Mariners and Broadcast Notice to Mariners via VHF-FM marine channel 16 about the temporary special local regulation that is in place.

    B. Impact on Small Entities

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

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

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

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

    C. Collection of Information

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

    D. Federalism and Indian Tribal Governments

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

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

    E. Unfunded Mandates Reform Act

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

    F. Environment

    We have analyzed this rule under Department of Homeland Security 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 special local regulated area lasting eleven hours over two days on all navigable waters extending two miles of the Ohio River. It is categorically excluded from further review under paragraph 34(h) and 35(a) 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.

    G. Protest Activities

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

    List of Subjects in 33 CFR Part 100

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

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

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

    33 U.S.C 1233.

    2. Add § 100.35T08-0875 to read as follows:
    § 100.35T08-0875 Special Local Regulation; Ohio River, Louisville, KY.

    (a) Location. All navigable waters of the Ohio River from mile marker (MM) 595.0 to MM 597.0 in Louisville, KY.

    (b) Enforcement period. This section will be enforced from 11 a.m. on October 7, 2017 through 4 p.m. on October 8, 2017. The Captain of the Port Sector Ohio Valley (COTP) or a designated representative will inform the public through broadcast notice to mariners of the enforcement period for the special local regulation.

    (c) Special local regulations. (1) In accordance with the general regulations in this part, entry into this area is prohibited unless authorized by the COTP or a designated representative.

    (2) Recreational vessels may be permitted to transit the regulated area, but are restricted to at least 1,000 feet from the perimeter of the race course and restricted to the Indiana side of the Ohio River. Recreational vessels transiting into and away from this area are restricted to the slowest safe speed creating minimum wake.

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

    (4) All other persons or vessels desiring entry into or passage through the area must request permission from the COTP or a designated representative. U.S. Coast Guard Sector Ohio Valley may be contacted on VHF Channel 13 or 16, or at 1-800-253-7465.

    Dated: September 22, 2017. M.B. Zamperini, Captain, U.S. Coast Guard, Captain of the Port Sector Ohio Valley.
    [FR Doc. 2017-21468 Filed 10-4-17; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2017-0386; FRL-9968-76-Region 7] Approval of Nebraska Air Quality Implementation Plans; Adoption of a New Chapter Under the Nebraska Administrative Code AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to approve revisions to the State Implementation Plan (SIP) submitted by the state of Nebraska on November 14, 2011. Nebraska is adding a new chapter titled “Visibility Protection” which provides Nebraska authority to implement Federal regulations relating to Regional Haze and Best Available Retrofit Technology (BART). The new chapter incorporates by reference EPA's Guidelines for BART Determinations Under the Regional Haze Rule. The revision to the SIP meets the visibility component of the Clean Air Act (CAA).

    DATES:

    This direct final rule will be effective December 4, 2017, without further notice, unless EPA receives adverse comment by November 6, 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-2017-0386, 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:

    Greg Crable, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7391, 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. Incorporation by Reference V. Statutory and Executive Order Reviews I. What is being addressed in this document?

    EPA is taking direct final action to approve revisions to Nebraska's SIP that will amend title 129 of the Nebraska Administrative Code to include rules regulating regional haze. This revision adds a new chapter, chapter 43, entitled “Visibility Protection”, to title 129 which incorporates by reference EPA Code of Federal Regulations under title 40 part 51 of EPA's Guidelines for BART determiniations under the Regional Haze Rule. This new chapter provides the Nebraska Department of Environmental Quality (NDEQ) the authority to require sources to conduct BART determinations for the purpose of issuing BART permits. This revision to title 129 is consistent with Federal regulations related to Regional Haze and BART, adopting by reference the definitions for the Federal Regional Haze rule at 40 CFR 51.301 and adopts by reference, appendix Y, to 40 CFR part 51, “Guidelines for BART Determinations under the Regional Haze Rule.” The revision to the SIP also meets the visibility component of the CAA section 110(a)(2)(J). Approval of these revisions will not impact air quality and will ensure consistency between the State and Federally approved rules.

    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 submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The revised chapter was placed on public notice and a public hearing was held by the State on July 13, 2007, where no comments were received. In addition, 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 the state's request to revise the SIP to include amendments to the Nebraska air quality rules as it relates to the Regional Haze and Best Available Retrofit Technology.

    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. EPA does not anticipate adverse comment because the revisions to the existing rules are routine and consistent with the Federal regulations, thereby, strengthening the SIP. However, in the “Proposed Rules” section of this Federal Register, we are publishing a separate document that will serve as the proposed rule to revise title 129 of the Nebraska Administrative Code, chapter 43, “Visibility Protection”. 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. Should EPA receive adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.

    IV. 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 the Nebraska regulations described in the direct final amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 7 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

    Therefore, these materials have been approved by EPA for inclusion in the SIP, 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

    1 62 FR 27968 (May 22, 1997).

    V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the 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 December 4, 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, Best available retrofit technology, Incorporation by reference, Intergovernmental relations, Nitrogen oxides, Particulate matter, Reporting and recordkeeping requirements, Regional haze, Sulfur dioxide, Visibility, Volatile organic compounds.

    Dated: September 25, 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 CC—Nebraska 2. Amend § 52.1420(c) by revising the entry “129-43” to read as follows:
    § 52.1420 Identification of plan.

    (c) * * *

    EPA-Approved Nebraska Regulations Nebraska citation Title State
  • effective
  • date
  • EPA approval date Explanation
    STATE OF NEBRASKA Department of Environmental Quality Title 129—Nebraska Air Quality Regulations *         *         *         *         *         *         * 129-43 Visibility Protection 2/6/08 10/5/17 [Insert Federal Register citation] *         *         *         *         *         *         *
    [FR Doc. 2017-21379 Filed 10-4-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R08-OAR-2016-0620; FRL-9968-74-Region 8] Approval and Promulgation of Air Quality Implementation Plans; State of Utah; Revisions to Ozone Offset Requirements in Davis and Salt Lake Counties AGENCY:

    Environmental Protection Agency.

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve State Implementation Plan (SIP) revisions submitted by the State of Utah on August 20, 2013, and on June 29, 2017. The submittals revise the portions of the Utah Administrative Code (UAC) that pertain to ozone offset requirements in Davis and Salt Lake Counties for major sources. This action is being taken under section 110 of the Clean Air Act (CAA) (Act).

    DATES:

    This final rule is effective on November 6, 2017.

    ADDRESSES:

    The EPA has established a docket for this action under Docket Identification Number EPA-R08-OAR-2016-0620. All documents in the docket are listed on the http://www.regulations.gov index. Although listed in the index, some information may not be publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the Air Program, Environmental Protection Agency (EPA), Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129. The EPA requests that you contact the individual listed in the FOR FURTHER INFORMATION CONTACT section to view the hard copy of the docket. You may view the hard copy of the docket Monday through Friday, 8:00 a.m. to 4:00 p.m., excluding federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Kevin Leone, Air Program, U.S. Environmental Protection Agency, Region 8, Mailcode 8P-AR, 1595 Wynkoop, Denver, Colorado 80202-1129, (303) 312-6227, [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    On August 20, 2013, with supporting administrative documentation submitted on September 12, 2013, Utah sent the EPA revisions to their nonattainment permitting regulations, specifically to address EPA identified deficiencies in those regulations that may also affect the EPA's ability to approve Utah's fine particulate matter (PM2.5) SIP. These revisions addressed R307-403-1 (Purpose and Definitions), R307-403-2 (Applicability), R307-403-11 (Actual Plant-wide Applicability Limits (PALs)), and R307-420 (Ozone Offset Requirements in Davis and Salt Lake Counties). On June 2, 2016, the EPA entered into a consent decree with the Center for Biological Diversity, Center for Environmental Health, and Neighbors for Clean Air regarding a failure to act, pursuant to CAA sections 110(k)(2)-(4), on certain complete SIP submissions from states intended to address specific requirements related to the 2006 p.m.2.5 NAAQS for certain nonattainment areas, including the submittal from the Governor of Utah dated August 20, 2013.

    On February 3, 2017, the EPA published a final rulemaking (82 FR 9138) to conditionally approve the revisions in Utah's August 20, 2013 submittal, except for the revisions to R307-420. The submittal did not contain the appropriate supporting documentation required for the EPA to take action on R307-420. As a result, the EPA requested an extension for taking action on R307-420, and on December 20, 2016, the EPA was granted an extension which moved the deadline for taking final action on R307-420 from January 3, 2017, to September 29, 2017 (See docket). Utah submitted on June 29, 2017, an additional SIP revision that addresses the lack of appropriate supporting documentation for R307-420.

    II. Response to Comments

    No comments were received on our July 14, 2017 notice of proposed rulemaking (82 FR 32517).

    III. Final Action

    The EPA is taking final action to approve Utah's revisions to R307-420 and R307-403-6, as submitted on August 20, 2013, and June 29, 2017. R307-420 maintains the offset provisions of the nonattainment area new source review (NNSR) permitting program in Salt Lake and Davis Counties after the area is re-designated to attainment for ozone. R307-420 also establishes more stringent offset requirements for nitrogen oxides that may be triggered as a contingency measure under Utah's ozone maintenance plan. R307-420 was also modified to include the definitions and applicability provisions of R307-403 (Permits: New and Modified Sources in Nonattainment Areas and Maintenance Areas) to ensure that the definitions and applicability provisions in R307-420 are consistent with related permitting rules in R307-403. The EPA is taking final action to approve these revisions.

    On August 20, 2013, Utah submitted revisions to the definitions in the NNSR program that addressed certain deficiencies in the program. Utah also submitted revisions to the corresponding definitions in R307-420. As explained in our proposed rulemaking published on July 14, 2017 (82 FR 32517), since the EPA had not received the 1999 rulemaking that created R307-420 as a SIP submittal, we were unable to take action on the revisions to R307-420 in our February 3, 2017 (82 FR 9138) final rulemaking for Utah's revisions to Nonattainment Permitting Regulations.

    Utah's June 29, 2017 submittal addressed this issue by submitting the 1999 rule revisions that created R307-420 and modified R307-403-6. As these rule revisions preserve the ozone maintenance plan requirements for offsets and contingency measures in Salt Lake and Davis Counties while improving the clarity of those requirements, we proposed to approve the 1999 rule revisions on July 14, 2017 (82 FR 32517). We also proposed to approve the remaining portion of the August 20, 2013 submittal.

    The EPA is taking final action to approve the subsequent revisions to R307-420, submitted on August 20, 2013, that Utah promulgated to ensure that the definitions and applicability provisions in R307-420 are consistent with related permitting rules in R307-403. For the reasons explained in our July 14, 2017 notice of proposed rulemaking, the definitions and applicability provisions in R307-403 are consistent with requirements for NNSR programs found in 40 CFR 51.165. While R307-420 is part of the ozone maintenance plan for Salt Lake and Davis Counties and not part of the NNSR program, and therefore, not directly subject to the requirements in 40 CFR 51.165, we view the corresponding revisions to the definitions and applicability provisions as strengthening the maintenance plan. Specifically, the EPA is approving the following revisions to Utah's nonattainment permitting regulations:

    Table 1—Revised Sections as Public Noticed in the Utah State Bulletin on March 1, 1999 (Submitted on June 29, 2017) Adds Section R307-420-1 (Purpose). Adds Section R307-420-2 (Definitions). Adds Section R307-420-3 (Applicability). Adds Section R307-420-4 (General Requirements). Adds Section R307-420-5 (Contingency Measure: Offsets for Oxides of Nitrogen). Revises Section R307-403-6 (Offsets: Ozone Nonattainment Areas and Davis and Salt Lake Counties).
  • 1. Removes the phrase: “and Davis and Salt Lake Counties” from title.
  • 2. Adds the phrase: “In any ozone nonattainment area”.
  • 3. Adds the phrase “42 U.S.C. 7511a”.
  • 4. Removes the language:
  • “As outlined in Section 182 of the federal Clean Air Act, for moderate areas, the emission offset ratio must be at least 1.15.1.
  • (1) Ozone Maintenance Plan, Salt Lake and Davis Counties. In the event that the contingency measures described in Section IX, Part D.2.h.(3) of the State Implementation Plan are triggered, the offset requirement in (2) below shall apply to emissions of both volatile organic compounds and oxides of nitrogen.
  • (2) The emission offset ratio must be at least 1.2.1, and offset must be obtained for the same pollutant for which the source or modification has been deemed “major”.
  • Table 2—Revised Sections Submitted on August 20, 2013 R307-420-1 (Purpose) the phrase: “Except as provided in R307-420-2, the definitions in R307-403-1 apply to R307-420.” R307-420-3 (Applicability) the new paragraph: (3) The applicability provision in R307-403-2(1)(a) through (f) and R307-403-2(2)(2) through (7) apply in R307-420.”

    Please refer to the August 20, 2013 and June 29, 2017 submittal for further details on these revisions.

    IV. Incorporation by Reference

    In this rule, the EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is finalizing the incorporation by reference of the UDAQ rules as described in the amendments to 40 CFR part 52 set forth in this document. The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 8 office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

    Therefore, these materials have been approved by the EPA for inclusion in the SIP, have been incorporated by reference by the EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of the EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update to the SIP compilation.1

    1 62 FR 27968 (May 22, 1997).

    V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the 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 Order 12866 (58 FR 51735, October 4, 1993);

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

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

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

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

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

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

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

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

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

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

    Under section 307(b)(1) of the 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 December 4, 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 CAA section 307(b)(2)).

    List of Subjects in 40 CFR Part 52

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

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: September 20, 2017. Suzanne J. Bohan, Acting Regional Administrator, Region 8.

    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 TT—Utah 2. Section 52.2320, paragraph (c), is amended as follows: a. Under the centered heading “R307-403. Permits: New and Modified Sources in Nonattainment Areas and Maintenance Areas”: i. By revising the table entry for “R307-403.” ii. By adding a table entry for “R307-403-6” in numerical order. b. By adding a centered heading “R307-420. Permits: Ozone Offset Requirements in Davis and Salt Lake Counties” and table entries for “R307-420-1”, “R307-420-2”, “R307-420-3”, “R307-420-4”, and “R307-420-5” in numerical order.

    The revision and additions read as follows:

    § 52.2320 Identification of plan.

    (c) * * *

    Rule No. Rule title State effective date Final rule
  • citation, date
  • Comments
    *         *         *         *         *         *         * R307-403. Permits: New and Modified Sources in Nonattainment Areas and Maintenance Areas R307-403 Permits: New and Modified Sources in Nonattainment Areas and Maintenance Areas 9/15/1998 71 FR 7679, 2/14/2006 Except for R307-403-1, R307-403-2, R307-403-6, R307-403-10, R307-403-11. *         *         *         *         *         *         * R307-403-6 Offsets: Ozone Nonattainment Areas 9/15/1998 [insert Federal Register citation], 10/5/2017 *         *         *         *         *         *         * R307-420. Permits: Ozone Offset Requirements in Davis and Salt Lake Counties R307-420-1 Purpose 3/1/1999, 7/1/2013 [insert Federal Register citation], 10/5/2017 R307-420-2 Definitions 3/1/1999, 7/1/2013 [insert Federal Register citation], 10/5/2017 R307-420-3 Applicability 3/1/1999, 7/1/2013 [insert Federal Register citation], 10/5/2017 R307-420-4 General Requirements 3/1/1999, 7/1/2013 [insert Federal Register citation], 10/5/2017 R307-420-5 Contingency Measure: Offsets for Oxides of Nitrogen 3/1/1999, 7/1/2013 [insert Federal Register citation], 10/5/2017
    [FR Doc. 2017-21111 Filed 10-4-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 70 [EPA-R07-OAR-2017-0485; FRL-9968-78-Region 7] Approval of Nebraska's Air Quality Implementation Plan, Operating Permits Program, and 112(l) Program; Revision to Nebraska Administrative Code AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving revisions to the State Implementation Plan (SIP), Operating Permits Program, and 112(l) program submitted on July 14, 2014, by the State of Nebraska. This action amends the SIP to revise two chapters, “Definitions” and “Operating Permit Modifications; Reopening for Cause”. Specifically, these revisions incorporate by reference the list of organic compounds exempt from the definition of volatile organic compound (VOC) found in the Code of Federal Regulations; notification requirements for the operating permit program are being amended to be consistent with the Federal operating permit program requirements; the definition of “solid waste” is being revised by the state, however, because the state's definition is inconsistent with the Federal definition, EPA is not approving this definition into the SIP. Finally, the state is extending the process of “off-permit changes” to Class I operating permits. Additional grammatical and editorial changes are being made in this revision. Approval of these revisions will not impact air quality, ensures consistency between the State and Federally-approved rules, and ensures Federal enforceability of the State's rules.

    DATES:

    This direct final rule will be effective December 4, 2017, without further notice, unless EPA receives adverse comment by November 6, 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-2017-0485, 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:

    Greg Crable, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7391, 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. Incorporation by Reference V. Statutory and Executive Order Reviews I. What is being addressed in this document?

    Nebraska's July 14, 2014, submission requested revisions to seven chapters of “Title 129—Nebraska Air Quality Regulations”. This action will amend the SIP to include revisions to two of those chapters, title 129 of the Nebraska Administrative Code, chapter 1 “Definitions”, and chapter 15 “Operating Permit Modifications; Reopening for Cause”. Of the remaining five chapters, EPA previously approved revisions to two of the chapters in separate direct final rulemakings published in the Federal Register. Chapter 4, “Ambient Air Quality Standards” was approved on October 11, 2016, and chapter 34 “Emission Sources; Testing; Monitoring” was approved on October 7, 2016. EPA will take action separately on two other chapters, chapter 20 “Particulate Emissions; Limits and Standards” and chapter 18 “New Performance Standards”. The final chapter, chapter 28 “Hazardous Air Pollutants; Emissions Standards”, submitted as part of the July 14, 2014, SIP submission, is not approved in the Nebraska SIP and therefore EPA will take no further action for this chapter.

    EPA is approving revisions to the Nebraska SIP and Operating Permits Program in title 129, chapter 1 “Definitions”. The definition of VOC contained in section 160 of chapter 1 “Definitions” is being revised. Specifically, section 160 of chapter 1 contains a definition of VOC that provides exceptions to the definition based upon a list of organic compounds, which have been determined to have negligible photochemical reactivity. Because it is difficult to stay current in regard to the list of compounds, the revision EPA is approving removes the list at section 160, and references the list contained in the Code of Federal Regulations at 40 CFR 51.100(s)(1) and (5). In addition, revisions to chapter 1, section 139, are being made to the SIP and the Operating Permits Program to change the notification requirements for “Section 502(b)(10) changes” to require facilities to provide written notification at least 7 days in advance, rather than 30 days. This revision makes the notification requirements consistent with the Federal operating permit program requirements. In addition, Nebraska requested revisions to the definition of “solid waste” at chapter 1, section 144, to make it consistent with the definition of “solid waste” included in the Nebraska Environmental Protection Act and other applicable regulations in Nebraska.1 Neb. Rev. Stat. 81-1502(26). The definition as proposed by the Nebraska Department of Environmental Quality (NDEQ) is not consistent with the definition of “solid waste” in Federal law and regulations. Therefore, EPA is not approving Nebraska's proposed revision to the definition of “solid waste” into the State Implementation Plan or Operating Permits Program. Finally, other grammatical and numerical edits are being made in this chapter.

    1 The definition of “solid waste” in the Nebraska Environmental Protection Act was updated in 2013 as a result of Legislative Bill 203 to exclude “slag” from the definition. This revision further clarifies that “slag” is a by-product of value and therefore is excluded from the definition of “solid waste.”

    EPA is approving revisions to the Nebraska SIP, Operating Permits Program and 112(l) program for chapter 15 “Operating Permit Modifications; Reopening for Cause”, which extends “off-permit changes” to Class I and II operating permits as allowed under the Federal program. Section 007 of chapter 15 is being revised and updated allowing changes within a permitted facility without a permit revision if the change meets certain specified criteria. The revised process allows certain minor revisions to be made without requiring all applicable administrative procedures for full permit issuance. These changes ensure that chapter 15 conforms to applicable Federal regulations. Finally, revisions to chapter 15 amend the minimum number of days to submit a written notification of a change from thirty days to seven days under certain circumstances when changing Class I and II operating permits, and makes various grammatical revisions for clarity and consistency purposes.

    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 submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The revised chapters were placed on public notice and a public hearing was held by the State on January 6, 2014, where no comments were received. In addition, as explained in this preamble, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

    III. What action is EPA taking?

    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. EPA does not anticipate adverse comment because the revisions to the existing rules are routine and consistent with the Federal regulations, thereby, strengthening the SIP. However, in the “Proposed Rules” section of this Federal Register, we are publishing a separate document that will serve as the proposed rule to revise title 129, chapters 1 and 15. 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. Should EPA receive adverse comment on part of this rule and if that part can be severed from the remainder of the rule, EPA may adopt as final those parts of the rule that are not the subject of an adverse comment.

    IV. 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 Nebraska Regulations described in the direct final amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and/or at the EPA Region 7 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

    Therefore, these materials have been approved by 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.2

    2 62 FR 27968 (May 22, 1997).

    V. Statutory and Executive Order Reviews

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review under Executive Orders 12866 and 13563 (76 FR 3821, January 21, 2011). This action is also not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001). This action merely approves state law as meeting Federal requirements and imposes no additional requirements beyond those imposed by state law. Accordingly, the Administrator certifies that this rulemaking will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this rulemaking would approve pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it 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).

    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).

    This action also does not have Federalism implications because it does 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999). Thus Executive Order 13132 does not apply to this action. This action merely approves a state rule implementing a Federal standard, and does not alter the relationship or the distribution of power and responsibilities established in the CAA. This rulemaking also is not subject to Executive Order 13045, “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997) because it approves a state rule implementing a Federal standard.

    In reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. In this context, in the absence of a prior existing requirement for the State to use voluntary consensus standards (VCS), EPA has no authority to disapprove a state submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA when it reviews a state submission, to use VCS in place of a state submission that otherwise satisfies the provisions of the CAA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. This action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Burden is defined at 5 CFR 1320.3(b).

    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 rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to 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 December 4, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this rule for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of this 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 final rulemaking. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects 40 CFR Part 52

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

    40 CFR Part 70

    Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements.

    Dated: September 25, 2017. Cathy Stepp, Acting Regional Administrator, Region 7.

    For the reasons stated in the preamble, EPA amends 40 CFR parts 52 and 70 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 CC—Nebraska 2. Amend § 52.1420(c) by revising “129-1” and “129-15” to read as follows:
    § 52.1420 Identification of Plan.

    (c) * * *

    EPA-Approved Nebraska Regulations Nebraska citation Title State effective date EPA approval date Explanation State of Nebraska Department of Environmental Quality Title 129—Nebraska Air Quality Regulations 129-1 Definitions 5/13/14 10/5/17, [Insert Federal Register citation] The proposed definition of “solid waste” is not approved into the SIP. The second sentence beginning at “Solid waste” and ending at “discarded material”, is not approved into the SIP. *         *         *         *         *         *         * 129-15 Operating Permit Modifications; Reopening for Cause 5/13/14 10/5/17, [Insert Federal Register citation]
    PART 70—STATE OPERATING PERMIT PROGRAMS 3. The authority citation for part 70 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    4. Amend appendix A to part 70 by adding new paragraph (o) under “Nebraska; City of Omaha; Lincoln-Lancaster County Health Department” to read as follows: Appendix A to Part 70—Approval Status of State and Local Operating Permits Programs Nebraska; City of Omaha; Lincoln-Lancaster County Health Department

    (o) The Nebraska Department of Environmental Quality submitted revisions to the Nebraska Administrative Code, title 129, chapter 1, “Definitions” and chapter 15, “Operating Permit Modifications; Reopening for Cause” on July 14, 2014. The state effective date is May 13, 2014. This revision is effective December 4, 2017.

    [FR Doc. 2017-21383 Filed 10-4-17; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 161020985-7181-02] RIN 0648-XF733 Fisheries of the Exclusive Economic Zone Off Alaska; Exchange of Flatfish in the Bering Sea and Aleutian Islands Management Area AGENCY:

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

    ACTION:

    Temporary rule; reallocation.

    SUMMARY:

    NMFS is exchanging unused flathead sole and rock sole Community Development Quota (CDQ) for yellowfin sole CDQ acceptable biological catch (ABC) reserves in the Bering Sea and Aleutian Islands management area. This action is necessary to allow the 2017 total allowable catch of yellowfin sole in the Bering Sea and Aleutian Islands management area to be harvested.

    DATES:

    Effective October 5, 2017 through December 31, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Steve Whitney, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

    NMFS manages the groundfish fishery in the Bering Sea and Aleutian Islands management area (BSAI) according to the Fishery Management Plan for Groundfish of the Bering Sea and Aleutian Islands Management Area (FMP) prepared by the North Pacific Fishery Management Council under authority of the Magnuson-Stevens Fishery Conservation and Management Act. Regulations governing fishing by U.S. vessels in accordance with the FMP appear at subpart H of 50 CFR part 600 and 50 CFR part 679.

    The 2017 flathead sole, rock sole, and yellowfin sole CDQ reserves specified in the BSAI are 1,552 metric tons (mt), 5,740 mt, and 15,778 mt as established by the final 2017 and 2018 harvest specifications for groundfish in the BSAI (82 FR 11826, February 27, 2017) and revised by flatfish exchange (82 FR 24253, May 26, 2017). The 2017 flathead sole, rock sole, and yellowfin sole CDQ ABC reserves are 5,754 mt, 10,856 mt and 12,128 mt as established by the final 2017 and 2018 harvest specifications for groundfish in the BSAI (82 FR 11826, February 27, 2017) and revised by flatfish exchange (82 FR 24253, May 26, 2017).

    The Coastal Villages Region Fund has requested that NMFS exchange 89 mt of flathead sole sole CDQ reserves and 250 mt of rock sole CDQ reserves for 339 mt of yellowfin sole CDQ ABC reserves under § 679.31(d). Therefore, in accordance with § 679.31(d), NMFS exchanges 89 mt of flathead sole CDQ reserves and 250 mt of rock sole CDQ reserves for 339 mt of yellowfin sole CDQ ABC reserves in the BSAI. This action also decreases and increases the TACs and CDQ ABC reserves by the corresponding amounts. Tables 11 and 13 of the final 2017 and 2018 harvest specifications for groundfish in the BSAI (82 FR 11826, February 27, 2017), and revised by flatfish exchange (82 FR 24253, May 26, 2017), are further revised as follows:

    Table 11—Final 2017 Community Development Quota (CDQ) Reserves, Incidental Catch Amounts (ICAS), and Amendment 80 Allocations of the Aleutian Islands Pacific Ocean Perch, and BSAI Flathead Sole, Rock Sole, and Yellowfin Sole TACs [Amounts are in metric tons] Sector Pacific ocean perch Eastern
  • Aleutian
  • District
  • Central
  • Aleutian
  • District
  • Western
  • Aleutian
  • District
  • Flathead sole BSAI Rock sole BSAI Yellowfin sole BSAI
    TAC 7,900 7,000 9,000 14,411 47,550 153,639 CDQ 845 749 963 1,463 5,490 16,117 ICA 100 60 10 4,000 5,000 4,500 BSAI trawl limited access 695 619 161 0 0 18,151 Amendment 80 6,259 5,572 7,866 8,949 37,060 114,871 Alaska Groundfish Cooperative 3,319 2,954 4,171 918 9,168 45,638 Alaska Seafood Cooperative 2,940 2,617 3,695 8,031 27,893 69,233 Note: Sector apportionments may not total precisely due to rounding.
    Table 13—Final 2017 and 2018 ABC Surplus, Community Development Quota (CDQ) Abc Reserves, and Amendment 80 ABC Reserves in the BSAI For Flathead Sole, Rock Sole, and Yellowfin Sole [Amounts are in metric tons] Sector 2017
  • Flathead sole
  • 2017
  • Rock sole
  • 2017
  • Yellowfin sole
  • 2018
  • Flathead sole
  • 2018
  • Rock sole
  • 2018
  • Yellowfin sole
  • ABC 68,278 155,100 260,800 66,164 143,100 250,800 TAC 14,411 47,550 153,639 14,500 47,100 154,000 ABC surplus 53,867 107,550 107,161 51,664 96,000 96,800 ABC reserve 53,867 107,550 107,161 51,664 96,000 96,800 CDQ ABC reserve 5,843 11,106 11,789 5,528 10,272 10,358 Amendment 80 ABC reserve 48,024 96,444 95,372 46,136 85,728 86,442 Alaska Groundfish Cooperative for 2017 1 4,926 23,857 37,891 n/a n/a n/a Alaska Seafood Cooperative for 2017 1 43,098 72,587 57,481 n/a n/a n/a 1 The 2018 allocations for Amendment 80 species between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2017.
    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the flatfish exchange by the Coastal Villages Regional Fund in the BSAI. Since these fisheries are currently open, it is important to immediately inform the industry as to the revised allocations. Immediate notification is necessary to allow for the orderly conduct and efficient operation of this fishery, to allow the industry to plan for the fishing season, and to avoid potential disruption to the fishing fleet as well as processors. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of September 28, 2017.

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

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

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: October 2, 2017. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2017-21466 Filed 10-2-17; 4:15 pm] BILLING CODE 3510-22-P
    82 192 Thursday, October 5, 2017 Proposed Rules DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Parts 33 and 35 [Doc. No. AMS-FV-14-0099; FV15-33/35-1] Regulations Issued Under Authority of the Export Apple Act and Export Grapes and Plums; Changes to Export Reporting Requirements; Withdrawal AGENCY:

    Agricultural Marketing Service, USDA.

    ACTION:

    Withdrawal of proposed rule.

    SUMMARY:

    This document withdraws a proposed rule to change the reporting of export certificate information under regulations issued pursuant to the Export Apple Act and the Export Grape and Plum Act. After reviewing and considering the comments received, the agency has decided not to proceed with this action.

    DATES:

    As of October 5, 2017, the proposed rule published on December 5, 2016, at 81 FR 87486, is withdrawn.

    FOR FURTHER INFORMATION CONTACT:

    Shannon Ramirez, Compliance and Enforcement Specialist, or Vincent Fusaro, Compliance and Enforcement Branch Chief, Marketing Order and Agreement Division, Specialty Crops Program, AMS, USDA; Telephone: (202) 720-2491, Fax: (202) 720-8938, or Email: [email protected] or [email protected].

    SUPPLEMENTARY INFORMATION:

    This withdrawal is issued under the Export Apple Act (7 U.S.C. 581-590) and the Export Grape and Plum Act (7 U.S.C. 591-599) (together hereinafter referred to as the “Export Fruit Acts”). The Export Fruit Acts promote foreign trade of fruit grown in the United States by authorizing the implementation of regulations related to quality, container markings, and inspection requirements. These regulations are contained in 7 CFR part 33 (Regulations Issued under the Export Apple Act) and 7 CFR part 35 (Export Grapes and Plums).

    This action withdraws a proposed rule published in the Federal Register on December 5, 2016, (81 FR 87486) and reopened for further comment on January 23, 2017, (82 FR 7733) and February 23, 2017, (82 FR 11413) on changes to the reporting of export certificate information under regulations issued under the Export Fruit Acts. Specifically, the proposed rule would have required shippers of apples and grapes exported from the United States that are subject to inspection to enter the certificate number from inspection certificates (i.e., Export Form Certificates) into the Automated Export System (AES). For apples shipped to Canada in bulk containers, which are exempt from inspection requirements, shippers would have been required to enter a special exemption code defined by the Department of Agriculture (USDA) in lieu of entering an Export Form Certificate number. Shippers would also have been required to maintain paper or electronic copies of the certificates and to provide copies of the certificates to the Agricultural Marketing Service (AMS) upon request. AMS is responsible for monitoring apple and grape export shipments, and these proposed regulatory changes would help ensure that these shipments comply with inspection and certification requirements.

    In addition, the proposed rule would have defined “shipper” and removed the requirement that carriers of exported apples and grapes retain certificates on file (because the requirement to retain the certificates would have shifted to shippers of exported apples and grapes). It would have also removed regulations that are no longer applicable to grape exports and would have added structure and language to clarify the regulations.

    Plums are not currently regulated under the Export Grape and Plum Act; therefore, this change would not have impacted shipments of plums exported from the United States.

    During the proposed rule's initial 30-day comment period (December 5, 2016, through January 4, 2017), six comments were received. Two of those comments included requests to extend the comment period. To allow further public review of the proposed changes, USDA reopened the comment period for 60 days on January 23, 2017, and then further extended the comment period for an additional 30 days, through April 24, 2017. Four comments were received during the reopened comment period. Two comments were also received on May 1, 2017, one week after the close of the comment period (these two comments, which were in letter form, were dated before the end of the comment period: March 22, 2017, and April 10, 2017). All the comments may be viewed on the internet at http://www.regulations.gov. Of the twelve comments received, two requested an extension of the initial comment period (as noted above), five were in support, and five were opposed.

    In summary, the five supporting comments were generally brief and in favor of the proposed changes. The opposing comments detailed concerns about the impact of the proposed changes on shippers, specifically, and the export industry, generally. Some commenters noted that the changes would result in a substantive increase in burden and costs to shippers without adding quality benefits, stating that this could lead to reduced efficiency and vitality of export operations. One commenter indicated that requiring a shipper to maintain the export certificates on file would be a duplication of recordkeeping, because those same certificates are maintained for five years by the commenter's state agricultural department. Another commenter noted that the changes would represent a major barrier to trade because of the complicated logistics of ocean shipments of exported apples and could cause economic harm.

    Some commenters stated that the proposed rule did not contain quantifiable data that demonstrated non-compliance with the existing requirements, observing that shipments appear to have been properly inspected and certified for years without the proposed additional monitoring to ensure compliance with these requirements. One commenter questioned using a special USDA-defined code in AES for exempt bulk shipments of apples to Canada because it appears to be a temporary workaround that would be used only until a new harmonized tariff code could be developed to identify these exempt shipments; the commenter suggested delaying the change until a permanent solution was developed in light of the non-urgent nature of the change. Some commenters also raised issues about the entry of information in AES, such as whether shipments bound for Canada require such entry and that it is a shipper's agent or freight forwarder—not a shipper—who enters data into AES. One commenter also recommended that the proposed “shipper” definition be more descriptive to provide further clarity in the regulations.

    Given the opposing comments received, AMS has determined that the proposed rule changing the reporting requirements under the Export Fruit Acts should not be finalized. AMS intends to conduct outreach with export industry stakeholders and consider other compliance monitoring activities as it reconsiders whether changes will be proposed in the future. Accordingly, the proposed rule to change the reporting of export certificate information under regulations issued pursuant to the Export Fruit Acts published in the Federal Register on December 5, 2016, (81 FR 87486) is hereby withdrawn.

    List of Subjects in 7 CFR Part 33

    Apples, Exports, Pears, Reporting and recordkeeping requirements.

    Authority:

    48 Stat. 124; 7 U.S.C. 581-590.

    List of Subjects in 7 CFR Part 35

    Administrative practice and procedure, Exports, Grapes, Plums, Reporting and recordkeeping requirements.

    Authority:

    74 Stat. 734; 75 Stat. 220; 7 U.S.C. 591-599.

    Dated: September 28, 2017. Bruce Summers, Acting Administrator, Agricultural Marketing Service.
    [FR Doc. 2017-21183 Filed 10-4-17; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-0523; Airspace Docket No. 17-ACE-9] Proposed Amendment of Class E Airspace; Fort Scott, KS; and Phillipsburg, KS AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to modify Class E airspace extending upward from 700 feet above the surface at Fort Scott Municipal Airport, Fort Scott, KS, and Phillipsburg Municipal Airport, Phillipsburg, KS. The FAA is proposing this action due to the decommissioning of the Fort Scott non-directional beacon (NDB) and the Phillipsburg NDB and the cancellation of the associated instrument approach procedures. This action would enhance the safety and management of instrument flight rules (IFR) operations at these airports.

    DATES:

    Comments must be received on or before November 20, 2017.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE., West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone (202) 366-9826, or (800) 647-5527. You must identify FAA Docket No. FAA-2017-0523; Airspace Docket No. 17-ACE-9 at the beginning of your comments. You may also submit comments through the Internet at http://www.regulations.gov. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays.

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

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

    FOR FURTHER INFORMATION CONTACT:

    Jeffrey Claypool, Federal Aviation Administration, Operations Support Group, Central Service Center, 10101 Hillwood Parkway, Fort Worth, TX 76177; telephone (817) 222-5711.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class E airspace extending upward from 700 feet above the surface at Fort Scott Municipal Airport, Fort Scott, KS, and Phillipsburg Municipal Airport, Phillipsburg, KS, to support IFR operations at these airports.

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2017-0523/Airspace Docket No. 17-ACE-9.” The postcard will be date/time stamped and returned to the commenter.

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

    Availability of NPRMs

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

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for the address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except federal holidays. An informal docket may also be examined during normal business hours at the Federal Aviation Administration, Air Traffic Organization, Central Service Center, Operations Support Group, 10101 Hillwood Parkway, Fort Worth, TX 76177.

    Availability and Summary of Documents Proposed for Incorporation by Reference

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

    The Proposal

    The FAA is proposing an amendment to Title 14 Code of Federal Regulations (14 CFR) part 71 by:

    Modifying Class E airspace extending upward from 700 feet above the surface to within a 6.4-mile radius (reduced from a 7-mile radius) of Fort Scott Municipal Airport, Fort Scott, KS; removing the Fort Scott NDB from the legal description; and removing the extension north of the NDB; and

    Modifying Class E airspace extending upward from 700 feet above the surface to within a 6.5-mile radius (reduced from a 7.6-mile radius) of Phillipsburg Municipal Airport, Phillipsburg, KS; removing the Phillipsburg NDB from the legal description; and removing the extension southeast of the NDB.

    Airspace reconfiguration is necessary due to the decommissioning of the Fort Scott NDB and the Phillipsburg NDB, the cancellation of the associated instrument approach procedures, and to bring the airspace in compliance with FAA Order 7400.2L, Procedures for Handling Airspace Matters. Controlled airspace is necessary for the safety and management of standard instrument approach procedures for IFR operations at these airports.

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

    Regulatory Notices and Analyses

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

    Environmental Review

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

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ACE KS E5 Fort Scott, KS [Amended] Fort Scott Municipal Airport, KS (Lat. 37°47′54″ N., long. 94°46′10″ W.)

    That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Fort Scott Municipal Airport.

    ACE KS E5 Phillipsburg, KS [Amended] Phillipsburg Municipal Airport, KS (Lat. 39°44′09″ N., long. 99°19′02″ W.)

    That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Phillipsburg Municipal Airport.

    Issued in Fort Worth, Texas, on September 27, 2017. Wayne Eckenrode, Acting Manager, Operations Support Group, ATO Central Service Center.
    [FR Doc. 2017-21362 Filed 10-4-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Highway Administration 23 CFR Part 490 [Docket No. FHWA-2017-0025] RIN 2125-AF76 National Performance Management Measures; Assessing Performance of the National Highway System, Freight Movement on the Interstate System, and Congestion Mitigation and Air Quality Improvement Program AGENCY:

    Federal Highway Administration (FHWA), Department of Transportation (DOT).

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This NPRM follows a series of related rules that established a set of performance measures for State departments of transportation (State DOT) and Metropolitan Planning Organizations (MPO) to use as required by Moving Ahead for Progress in the 21st Century Act (MAP-21) and the Fixing America's Surface Transportation (FAST) Act. In the last of that series of rules, published on January 18, 2017, FHWA established a measure on the percent change in carbon dioxide (CO2) emissions from the reference year 2017, generated by on-road mobile sources on the National Highway System (NHS) (also referred to as the Greenhouse Gas (GHG) measure). Through this NPRM, FHWA proposes to repeal the GHG measure.

    DATES:

    Comments must be received on or before November 6, 2017. Late comments will be considered to the extent practicable.

    ADDRESSES:

    You may submit comments identified by the docket number FHWA-2017-0025 by any one of the following methods:

    Fax: 1-202-493-2251;

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

    Hand Delivery: U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays; or electronically through the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments.

    Instructions: All submissions must include the agency name, docket name and docket number or Regulatory Identifier Number (RIN) for this rulemaking (2125-AF76). In accordance with 5 U.S.C. 553(c), DOT solicits comments from the public to better inform its rulemaking process. The DOT posts these comments, without edit, including any personal information the commenter provides, to www.regulations.gov, as described in the system of records notice (DOT/ALL-14 FDMS), which can be reviewed at www.dot.gov/privacy.

    Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov at any time or to U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20950, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    For technical information: Susanna Hughes Reck, Office of Infrastructure, (202) 366-1548; for legal information: Anne Christenson, Office of Chief Counsel, (202) 366-1356, Federal Highway Administration, 1200 New Jersey Avenue SE., Washington, DC 20590. Office hours are from 8 a.m. to 4:30 p.m. ET, Monday through Friday, except Federal holidays.

    SUPPLEMENTARY INFORMATION: Electronic Access and Filing

    A copy of the NPRM, all comments received, and all background material may be viewed online at http://www.regulations.gov. Electronic retrieval help and guidelines are available on the Web site. It is available 24 hours each day, 365 days each year. An electronic copy of this document may also be downloaded from the Office of the Federal Register's Web site at http://www.ofr.gov and the Government Publishing Office's Web site at http://www.thefederalregister.org.

    Table of Contents for Supplementary Information I. Executive Summary A. Purpose of the Regulatory Action B. Costs II. Background III. Acronyms and Abbreviations IV. Rulemaking Analyses and Notices A. Rulemaking Analysis and Notices: 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 B. Regulatory Flexibility Act C. Unfunded Mandates Reform Act of 1995 D. Executive Order 13132 (Federalism Assessment) E. Executive Order 12372 (Intergovernmental Review) F. Paperwork Reduction Act G. National Environmental Policy Act H. Executive Order 12630 (Taking of Private Property) I. Executive Order 12988 (Civil Justice Reform) J. Executive Order 13045 (Protection of Children) K. Executive Order 13175 (Tribal Consultation) L. Executive Order 13211 (Energy Effects) M. Executive Order 12898 (Environmental Justice) N. Regulation Identifier Number I. Executive Summary A. Purpose of the Regulatory Action

    The MAP-21 1 (Pub. L. 112-141) transforms the Federal-aid highway program by establishing new requirements for performance management to ensure the most efficient investment of Federal transportation funds. The FAST Act 2 (Pub. L. 114-94) continued these requirements. Performance management increases the accountability and transparency of the Federal-aid highway program and provides a framework to support improved investment decisionmaking through a focus on performance outcomes for key national transportation goals.

    1 Moving Ahead for Progress in the 21st Century Act (MAP-21): https://www.thefederalregister.org/fdsys/pkg/PLAW-112publ141/html/PLAW-112publ141.htm.

    2 Fixing America's Surface Transportation (FAST) Act: https://www.thefederalregister.org/fdsys/pkg/PLAW-114publ94/html/PLAW-114publ94.htm.

    As part of this mandate, FHWA issued three related national performance management measure rules 345 that established a set of performance measures for State DOTs and MPOs to use to assess performance. In these rules, FHWA established performance measures in 12 areas 6 generalized as follows: (1) Serious injuries per vehicle mile traveled (VMT); (2) fatalities per VMT; (3) number of serious injuries; (4) number of fatalities; (5) pavement condition on the Interstate System; (6) pavement condition on the non-Interstate NHS; (7) bridge condition on the NHS; (8) performance of the Interstate System; (9) performance of the non-Interstate NHS; (10) freight movement on the Interstate System; (11) traffic congestion; and (12) on-road mobile source emissions.

    3 First performance measure final rule: “National Performance Management Measures: Highway Safety Improvement Program” (RIN 2125-AF49): https://www.thefederalregister.org/fdsys/pkg/FR-2016-03-15/pdf/2016-05202.pdf.

    4 Second performance measure final rule: “National Performance Management Measures; Assessing Pavement Condition for the National Highway Performance Program and Bridge Condition for the National Highway Performance Program” (RIN 2125-AF53): https://www.thefederalregister.org/fdsys/pkg/FR-2017-01-18/pdf/2017-00550.pdf.

    5 Third performance measure final rule: “National Performance Management Measures: Assessing Performance of the National Highway System, Freight Movement on the Interstate System, and Congestion Mitigation and Air Quality Improvement Program” (RIN 2125-AF54): https://www.thefederalregister.org/fdsys/pkg/FR-2017-01-18/pdf/2017-00681.pdf.

    6 These areas are listed within 23 U.S.C. 150(c), which requires the Secretary to establish measures to assess performance or condition.

    One of the measures FHWA created to assess the performance of the NHS under the National Highway Performance Program (NHPP) is Percent Change in Tailpipe Carbon Dioxide (CO2) Emissions on the NHS from the Calendar Year 2017 (also referred to as the GHG measure). It was created to advance a policy preference of the prior Administration. It would be calculated using data on fuel use and VMT. The FHWA received a high volume of comments both in support of and opposed to this measure in response to the third NPRM. This measure became effective on DATE, 2017, at 82 FR CITE. After further consideration and review of DOT policy, as well as the statutory provisions, the DOT is proposing to repeal the requirement. This rulemaking provides additional opportunity for public comment and submission of information that will aid FHWA in making this determination.

    B. Costs

    As part of the rulemaking that was finalized in January 2017, FHWA estimated the incremental costs associated with the new requirements for a GHG Measure that represented a change to current practices of DOT, State DOTs, and MPOs. The FHWA derived the costs of the new requirements by assessing the additional capital needed and the expected increase in the level of labor effort for FHWA, State DOTs, and MPOs to calculate the measure and establish and report GHG measure targets. To develop this estimate, FHWA sought opinions from subject matter experts (SME). Cost estimates were developed based on information received from SMEs. To estimate costs, FHWA multiplied the level of effort, expressed in labor hours, with a corresponding loaded wage rate that varied by the type of laborer needed to perform the activity. Where necessary, capital costs were also included. The 9-year cost discounted at 7 percent to comply with the GHG measure discussed in this document is $11.0 million. By proposing to remove the GHG measure in this rulemaking, FHWA is proposing a deregulatory action that may result in cost-savings of $11.0 million discounted at 7 percent over 9 years.

    Table X displays the Office of Management and Budget (OMB) A-4 Accounting statement as a summary of the cost savings associated with repealing the GHG measure.

    Table X—OMB A-4 Accounting Statement Category Estimates Primary Low High Units Year
  • dollar
  • Discount
  • rate
  • %
  • Period
  • covered
  • (years)
  • Source/citation
    Benefits Annualized Monetized ($ millions/year) None
  • None
  • None
  • None
  • None
  • None
  • NA
  • NA
  • 7
  • 3
  • NA
  • NA
  • Not Quantified.
    Annualized Quantified None
  • None
  • None
  • None
  • None
  • None
  • NA
  • NA
  • 7
  • 3
  • NA
  • NA
  • Not Quantified.
    Qualitative More informed decisionmaking on project, program, and policy choices. NPRM RIA. Costs Annualized Monetized ($/year) −$1,682,339
  • −$1,655,267
  • 2014
  • 2014
  • 7
  • 3
  • 9
  • 9
  • NPRM RIA.
    Annualized Quantified None
  • None
  • None
  • None
  • None
  • None
  • 2014
  • 2014
  • 7
  • 3
  • 9
  • 9
  • NPRM RIA.
    Qualitative Transfers None From/To From: To: Effects State, Local, and/or Tribal Government −$1,682,339
  • −$1,655,267
  • 2014
  • 2014
  • 7
  • 3
  • 9
  • 9
  • NPRM RIA.
    Small Business Not expected to have a significant impact on a substantial number of small entities. NA NA NA NPRM RIA.
    II. Acronyms and Abbreviations Acronym or abbreviation Term APA Administrative Procedure Act. CFR Code of Federal Regulations. CH4 Methane. CMAQ Congestion Mitigation and Air Quality Improvement Program. CO2 Carbon dioxide. DOT U.S. Department of Transportation. EO Executive Order. EERPAT Energy and Emissions Reduction Policy Analysis Tool. EIA Energy Information Agency, U.S. Department of Energy. FAST Act Fixing America's Surface Transportation Act. FHWA Federal Highway Administration. FR Federal Register. GHG Greenhouse gas. HPMS Highway Performance Monitoring System. HFCs Hydrofluorocarbons. MAP-21 Moving Ahead for Progress in the 21st Century Act. MOVES Motor Vehicle Emission Simulator. MPO Metropolitan Planning Organizations. N2O Nitrous oxide. NHPP National Highway Performance Program. NHS National Highway System. NPRM Notice of proposed rulemaking. NPMRDS National Performance Management Research Data Set. OMB Office of Management and Budget. PRA Paperwork Reduction Act of 1995. RIA Regulatory Impact Analysis. RIN Regulatory Identification Number. SMEs Subject Matter Experts. State DOTs State departments of transportation. U.S.C. United States Code. VMT Vehicle miles traveled. III. Background

    The third performance measure NPRM was published on April 22, 2016 (81 FR 238060).7 The third performance measure NPRM proposed a set of national measures for State DOTs to use to assess the performance of the Interstate and non-Interstate NHS to carry out the NHPP; to assess freight movement on the Interstate System; and to assess traffic congestion and on-road mobile source emissions for the purpose of carrying out the CMAQ Program.

    7 Third performance measure NPRM: “Assessing Performance of the National Highway System, Freight Movement on the Interstate System, and Congestion Mitigation and Air Quality Improvement Program” (RIN 2125-AF54): https://www.thefederalregister.org/fdsys/pkg/FR-2016-04-22/pdf/2016-08014.pdf.

    In the preamble to the third performance measure NPRM, FHWA sought public comment on whether and how to establish a CO2 emissions measure in the final rule. The FHWA asked a series of questions regarding the design and implementation of a GHG measure and whether one should be established.

    The FHWA received thousands of comments on whether to establish such a measure and how a measure should be designed and implemented. Supporting comments came from 9 State DOTs, 24 MPOs, 19 U.S. Senators, 48 Members of the U.S. House of Representatives, over 100 cities, numerous local officials, over 100 businesses, 91,695 citizens, and over 100 public interest, non-profit and advocacy organizations. Some State DOTs and MPOs already use GHG emissions as a performance measure.

    Comments against a GHG measure were submitted by 10 State DOTs, 2 MPOs, 5 U.S. Senators, 31 Members of the U.S. House of Representatives, and 27 transportation and infrastructure industry associations. In addition, nine State DOTs and three industry associations requested that FHWA not establish any performance measures not explicitly authorized in legislation, because GHG is not identified in the legislation.

    Several of the commenters in both groups addressed whether FHWA has the legal authority to establish a GHG measure and whether such measure could be established in this rulemaking.

    The FHWA published the third performance measure final rule on January 18, 2017, at 82 FR 5971.8 The GHG policy established in the final rule was the measure discussed in the third performance measure NPRM: total annual tons of CO2 emissions from all on-road mobile sources. The rule requires State DOTs to calculate the measure by multiplying motor fuel sales volumes by emissions factors of CO2 per gallon of fuel and percentage VMT on the NHS. A metropolitan planning areawide GHG metric may be: (1) A share of the State's (or States') VMT as a proxy for that metropolitan planning area share of CO2 emissions; (2) VMT estimates along with MOVES 9 emissions factors; (3) FHWA's Energy and Emissions Reduction Policy Analysis Tool (EERPAT) model; 10 or (4) other method the MPO can demonstrate has valid and useful results for CO2 measurement.

    8https://www.thefederalregister.org/fdsys/pkg/FR-2017-01-18/pdf/2017-00681.pdf.

    9 EPA's Motor Vehicle Emissions Simulator (MOVES): https://www.epa.gov/moves.

    10 FHWA's Energy and Emissions Reduction Policy Analysis Tool (EERPAT) https://www.planning.dot.gov/FHWA_tool/default.aspx.

    On January 30, 2017, President Donald J. Trump issued Executive Order 13771, entitled, “Reducing Regulation and Controlling Regulatory Costs,” 11 which required Federal agencies to take proactive measures to reduce the costs associated with complying with Federal regulations. Additionally, on February 24, 2017, the President issued Executive Order 13777, entitled, “Enforcing the Regulatory Reform Agenda,” 12 which required Federal agencies to designate a Regulatory Reform Office and a Regulatory Reform Task Force charged with reviewing agency regulations. Furthermore, the Administration is considering a number of policy changes with respect to climate change. For example, the Administration has announced its intent to withdraw from the Paris Accords. Pursuant to Executive Order 13771 and 13777, the DOT commenced a review of existing and pending regulations, which included the third performance measure final rule, to determine whether changes would be appropriate to eliminate duplicative regulations and streamline regulatory processes. Based upon this review, DOT identified the GHG measure of the third performance measure final rule as being potentially duplicative of existing efforts in some States, and burdensome. Also, the performance management statute (23 U.S.C. 150) does not explicitly require a GHG measure. For these reasons, this NPRM proposes to repeal the GHG measure.

    11 82 FR 9339, February 3, 2017. https://www.thefederalregister.org/fdsys/pkg/FR-2017-02-03/pdf/2017-02451.pdf.

    12 82 FR 10691, February 14, 2017. https://www.whitehouse.gov/the-press-office/2017/02/24/presidential-executive-order-enforcing-regulatory-reform-agenda.

    This rulemaking proposes to repeal the GHG measure, while seeking additional public comment on whether to retain, or revise the GHG measure established in the third performance measure final rule. This rulemaking seeks additional information that may not have been available to the Agency during the development of the final rule. Additional information will aid FHWA in determining whether the measure should be repealed, retained, or revised.

    During the first public comment period, several commenters argued that, should FHWA decide to establish a GHG measure, it should do so through a separate rulemaking. They claimed that the third performance measure NPRM did not provide sufficient detail about the type of measure FHWA might adopt for them to comment on the issue meaningfully. The FHWA believes that sufficient notice was provided in the third performance measure NPRM under the Administrative Procedure Act (APA); however, we are mindful that the third performance measure NPRM did not include proposed regulatory text for the GHG measure. Although the APA does not require proposed regulatory text to be included in the third performance measure NPRM, FHWA acknowledges that the GHG measure was presented differently than the other measures in that it was discussed in the preamble using a series of questions to limit the scope of the proposal. Some commenters stated that they found it difficult to formulate meaningful comments using this approach alone.

    In the third performance measure final rule preamble, FHWA recognized that the GHG measure chosen—the percent change in tailpipe CO2 emissions on the NHS compared to the Calendar Year 2017 level—is imperfect. It is measured by calculating fuel sales and multiplying the associated CO2 emissions by the proportion of VMT that takes place on the NHS. As noted in the final rule preamble, this methodology is not a perfect proxy, as speeds, operating conditions, and vehicle types on the NHS differ from those that are on other roads and differ between States. The FHWA indicated that the methodology adopted was a balance between the competing goals of simplicity and precision. We request comments on whether the lack of precision in the methodology markedly impedes the ability of State DOTs and MPOs to use the measure and associated targets in evaluating system performance and making investment decisions.

    The FHWA is interested in whether data are available to more directly measure GHG emissions effects of NHS projects undertaken by States or MPOs. The FHWA is responsible for establishing the data elements that are necessary to collect and maintain the standardized data to carry out a performance-based approach under 23 U.S.C. 150(c)(3)(A)(iv). We request comments on whether the data used to calculate the measure is precise enough to meet these goals. Please identify any information that may mitigate some of the limitations of the proposed GHG measure.

    In addition, commenters are encouraged to provide information regarding whether the measure, including the methodology adopted in the final rule, provides meaningful utility for assessment of environmental performance of the NHS by States and MPOs. Please provide any information or data that would justify the utility of the measure relative to the increased burden to the States and MPOs reporting this information.

    Finally, FHWA also requests input from States and MPOs on the potential costs imposed by the addition of this measure in the third performance measure final rule. Because a GHG measure was not proposed in the NPRM, the costs were not presented in that economic analysis. The FHWA did provide an assessment of the benefits and costs of all the measures in the final rule. As part of this rulemaking, FHWA is analyzing the costs associated solely with the GHG measure, and the attendant savings that would result from its repeal. The FHWA requests data from States and MPOs on the costs imposed due solely to the addition of this measure. Given that several States are already conducting efforts in this area, FHWA requests information on whether the GHG measure is a duplicative requirement and whether FHWA's estimate of the cost savings associated with a repeal of the GHG measure are accurate. Additionally, FHWA requests information from States not currently conducting similar efforts on the burdens this measure would impose.

    Further, in the final rule, the GHG measure was adopted under 23 U.S.C. 150(c)(3) (NHPP) and not 23 U.S.C. 150(c)(5) (CMAQ). As the measure is under the NHPP program, State DOTs are subject to a significant progress determination if they fail to achieve their targets and, if they fail to make significant progress, additional reporting requirements. Because of these potential burdens, FHWA requests comments on any costs to States associated with the NHPP significant progress determination for the GHG measure.13

    13 23 CFR 490.109.

    IV. Rulemaking Analyses and Notices A. Rulemaking Analysis and Notices Executive Order 12866 (Regulatory Planning and Review), Executive Order 13563 (Improving Regulation and Regulatory Review), Executive Order 13771 (Reducing Regulations and Controlling Regulatory Costs), and DOT Regulatory Policies and Procedures

    The FHWA has determined that this action is a significant regulatory action within the meaning of Executive Order (E.O.) 12866 and within the meaning of DOT regulatory policies and procedures due to the significant public interest in regulations related to performance management. It is anticipated that the economic impact of this rulemaking will not be economically significant within the meaning of E.O. 12866 as discussed below. This action complies with E.O.s 12866, 13563, and 13771 to improve regulation. This action is considered significant because of widespread public interest in the transformation of the Federal-aid highway program to be performance-based, although it is not economically significant within the meaning of E.O. 12866.

    The FHWA considers this proposed rule to be an E.O. 13771 deregulatory action, resulting in $11.0 million in cost-savings discounted at 7 percent over 9 years. Details on the estimated cost savings of this proposed rule are presented in the RIA (or regulatory impact analysis), which may be accessed from the docket (docket number FHWA-2013-0054). The RIA evaluates the economic impact, in terms of costs and benefits, on Federal, State, and local governments, as well as private entities regulated under this action, as required by E.O. 12866 and E.O. 13563. However, the RIA does not attempt to quantify any changes from improved decisionmaking that would result in benefits if the GHG measure requirement were retained.

    Estimated Cost Savings of Repealing the GHG Measure

    To estimate cost savings from repealing the GHG measure, FHWA assessed the level of effort, expressed in labor hours and categories, and the capital needed to comply with the requirement as provided in the third performance management final rule. Level of effort by labor category is monetized with loaded wage rates to estimate total costs.

    Table X displays the total cost for the GHG measure for the 9-year study period (2018-2026). The FHWA chose an 9-year analysis period and displayed the values in 2014 dollars in order to correlate the values presented in this NPRM with those presented in the third performance measure final rule. Total costs are estimated to be $10,960,828 discounted at 7 percent, and $12,888,091 discounted at 3 percent.

    Table X—Total Cost Savings From Repealing the GHG Measure Cost components 9-Year total cost 7% 3% Annualized cost 7% 3% Section 490.105-490.109—Reporting Requirements $9,090,263 $10,652,791 $1,395,232 $1,368,179 Establish and Update Performance Targets 6,368,958 7,392,818 977,549 949,488 Reporting on Performance Targets Progress 2,573,869 3,068,421 395,054 394,089 Assess Significant Progress Toward Achieving Performance Targets 147,435 191,552 22,629 24,602 Section 490.511—Calculation of System Performance Metrics 1,821,862 2,177,239 279,631 279,631 Calculate Annual Total Tailpipe CO2 Emissions 1,821,862 2,177,239 279,631 279,631 Section 490.513—Calculation of System Performance Measures 48,703 58,061 7,475 7,457 Calculate % Change in Tailpipe CO2 Emissions the NHS Compared to the Calendar Year 2017 Level Perf. Measure 48,703 58,061 7,475 7,457 Total Cost of Final Rule 10,960,828 12,888,091 1,682,339 1,655,267

    This action complies with the principles of E.O. 13563. After evaluating the costs and benefits of the rule, FHWA believes that the cost savings from this rulemaking would exceed the foregone benefits. These changes are not anticipated to adversely affect, in any material way, any sector of the economy. In addition, these changes will not create a serious inconsistency with any other agency's action or materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs.

    B. Regulatory Flexibility Act

    In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), FHWA has evaluated the effects of this action on small entities and has determined that the action would not have a significant economic impact on a substantial number of small entities. The rule addresses the obligation of Federal funds to State DOTs for Federal-aid highway projects. The rule affects two types of entities: State governments and MPOs. State governments do not meet the definition of a small entity under 5 U.S.C. 601, which have a population of less than 50,000.

    The MPOs are considered governmental jurisdictions, and to qualify as a small entity they would need to serve less than 50,000 people. The MPOs serve urbanized areas with populations of 50,000 or more. As discussed in the RIA, the rule is expected to impose costs on MPOs that serve populations exceeding 200,000. Therefore, the MPOs that incur economic impacts under this rule do not meet the definition of a small entity.

    I hereby certify that this regulatory action would not have a significant economic impact on a substantial number of small entities.

    C. Unfunded Mandates Reform Act of 1995

    The FHWA has determined that this action does not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, March 22, 1995, 109 Stat. 48). This rule does not include a Federal mandate that may result in expenditures of $151 million or more in any 1 year (when adjusted for inflation) in 2012 dollars for either State, local, and tribal governments in the aggregate, or by the private sector. Additionally, the definition of “Federal mandate” in the Unfunded Mandates Reform Act excludes financial assistance of the type in which State, local, or tribal governments have authority to adjust their participation in the program in accordance with changes made in the program by the Federal Government. The Federal-aid highway program permits this type of flexibility.

    D. Executive Order 13132 (Federalism Assessment)

    The FHWA has analyzed this action in accordance with the principles and criteria contained in E.O. 13132. The FHWA has determined that this action does not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA has also determined that this action does not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.

    E. Executive Order 12372 (Intergovernmental Review)

    The regulations implementing E.O. 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program. Local entities should refer to the Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction, for further information.

    F. Paperwork Reduction Act

    Under the PRA (44 U.S.C. 3501, et seq.), Federal agencies must obtain approval from the OMB for each collection of information they conduct, sponsor, or require through regulations. The DOT has analyzed this action under the PRA and has determined that this rulemaking does not contain collection of information requirements for the purposes of the PRA. If finalized, this proposal would reduce PRA burdens associated with this measure.

    G. National Environmental Policy Act

    The FHWA has analyzed this action for the purpose of NEPA, as amended (42 U.S.C. 4321 et seq.), and has determined that this action would not have any effect on the quality of the environment and meets the criteria for the categorical exclusion at 23 CFR 771.117(c)(20).

    H. Executive Order 12630 (Taking of Private Property)

    The FHWA has analyzed this action under E.O. 12630, Governmental Actions and Interference with Constitutionally Protected Property Rights. The FHWA does not anticipate that this action would affect a taking of private property or otherwise have taking implications under E.O. 12630.

    I. Executive Order 12988 (Civil Justice Reform)

    This action meets applicable standards in sections 3(a) and 3(b)(2) of E.O. 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

    J. Executive Order 13045 (Protection of Children)

    We have analyzed this rule under E.O. 13045, Protection of Children from Environmental Health Risks and Safety Risks. The FHWA certifies that this action would not cause an environmental risk to health or safety that might disproportionately affect children.

    K. Executive Order 13175 (Tribal Consultation)

    The FHWA has analyzed this action under E.O. 13175, dated November 6, 2000, and believes that the action 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 laws. The rulemaking addresses obligations of Federal funds to State DOTs for Federal-aid highway projects and would not impose any direct compliance requirements on Indian tribal governments. Therefore, a tribal summary impact statement is not required.

    L. Executive Order 13211 (Energy Effects)

    The FHWA has analyzed this action under E.O. 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. The FHWA has determined that this is not a significant energy action under that order and is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required.

    M. Executive Order 12898 (Environmental Justice)

    The E.O. 12898 requires that each Federal agency make achieving environmental justice part of its mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of its programs, policies, and activities on minorities and low-income populations. The FHWA has determined that this rule does not raise any environmental justice issues.

    N. Regulation Identifier Number

    An 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 number contained in the heading of this document can be used to cross-reference this action with the Unified Agenda.

    List of Subjects in 23 CFR Part 490

    Bridges, Highway safety, Highways and roads, Reporting and recordkeeping requirements.

    Issued in Washington, DC, on September 29, 2017 under authority delegated in 49 CFR 1.85. Brandye L. Hendrickson, Acting Administrator, Federal Highway Administration.

    In consideration of the foregoing, FHWA proposes to amend 23 CFR part 490 to read as follows:

    PART 490—NATIONAL PERFORMANCE MANAGEMENT MEASURES 1. The authority citation for part 490 continues to read as follows: Authority:

    23 U.S.C. 134, 135, 148(i), and 150; 49 CFR 1.85.

    Subpart A—General Information
    § 490.105 [Amended].
    2. Amend § 490.105 by removing and reserving paragraphs (c)(5) and (d)(1)(v).
    § 490.107 [Amended].
    3. Amend § 490.107 by removing and reserving paragraphs (b)(1)(ii)(H), (b)(2)(ii)(J), (b)(3)(ii)(I), and (c)(4). 4. Amend § 490.109 by removing and reserving paragraphs (d)(1)(v) and (f)(1)(v) and revising paragraph (d)(1)(vi) to read as follows:
    § 490.109 Assessing significant progress toward achieving the performance targets for the National Highway Performance Program and the National Highway Freight Program.

    (d) * * * (1) * * *

    (vi) Baseline condition/performance data contained in HPMS and NBI of the year in which the Baseline Period Performance Report is due to FHWA that represents baseline conditions/performances for the performance period for the measures in §§ 490.105(c)(1) through (4).

    Subpart E—National Performance Management Measures to Assess Performance of the National Highway System
    § 490.503 [Amended].
    5. Amend § 490.503 by removing and reserving paragraph (a)(2).
    § 490.505 [Amended].
    6. Amend § 490.505 by removing the definition for “Greenhouse gas (GHG).”
    § 490.507 [Amended].
    7. Amend § 490.507 by removing and reserving paragraph (b).
    § 490.509 [Amended].
    8. Amend § 490.509 by removing paragraphs (f)-(h).
    § 490.511 [Amended].
    9. Amend § 490.511 by removing and reserving paragraphs (a)(2), (c), (d), and (f).
    § 490.513 [Amended].
    10. Amend § 490.513 by removing paragraph (d).
    [FR Doc. 2017-21442 Filed 10-4-17; 8:45 am] BILLING CODE 4910-22-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2017-0386; FRL-9968-75-Region 7] Approval of Nebraska Air Quality Implementation Plans; Adoption of a New Chapter Under the Nebraska Administrative Code AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve the State Implementation Plan (SIP) revision submitted by the state of Nebraska on November 14, 2011. Nebraska is adding a new chapter titled “Visibility Protection” which provides Nebraska authority to implement Federal regulations relating to Regional Haze and Best Available Retrofit Technology (BART). The chapter incorporates by reference EPA's Guidelines for BART Determiniations under the Regional Haze Rule. The revision to the SIP meets the visibility component of the Clean Air Act (CAA).

    DATES:

    Comments on this proposed action must be received in writing by November 6, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R07-OAR-2017-0386, to https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments connot 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:

    Greg Crable, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7391, or by email at [email protected].

    SUPPLEMENTARY INFORMATION:

    This document proposes to take action to add chapter 43, “Visibilty Protection”. We have published a direct final rule approving the State's SIP revision in the “Rules and Regulations” section of this Federal Register, because we view this as a noncontroversial action and anticipate no relevant adverse comment. We have explained our reasons for this action in the preamble to the direct final rule. If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the direct final rule and it will not take effect. We would address all public comments in any subsequent final rule based on this proposed rule. We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the ADDRESSES section of this document.

    List of Subjects in 40 CFR Part 52

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

    Dated: September 25, 2017. Cathy Stepp, Acting Regional Administrator, Region 7.
    [FR Doc. 2017-21381 Filed 10-4-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2016-0138; FRL-9968-84-Region 5] Air Plan Approval; Illinois; Nonattainment Plans for the Lemont and Pekin SO2 Nonattainment Areas AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve State Implementation Plan (SIP) revisions, which Illinois submitted to EPA on March 2, 2016, and supplemented on August 8, 2016 and May 4, 2017, for attaining the 2010 1-hour sulfur dioxide (SO2) national ambient air quality standard (NAAQS) for the Lemont and Pekin areas. These revisions (herein called the nonattainment plans or plans) include Illinois' attainment demonstration and other elements required under Clean Air Act (CAA) for the two areas. In addition to an attainment demonstration, the plans address: The requirement for meeting reasonable further progress (RFP) toward attainment of the NAAQS; reasonably available control measures and reasonably available control technology (RACM/RACT); emission inventories; and contingency measures. EPA further proposes to conclude that Illinois has demonstrated that the plans' provisions provide for attainment of the 2010 1-hour primary SO2 NAAQS in the Lemont and Pekin areas by the attainment date of October 4, 2018.

    DATES:

    Comments must be received on or before November 6, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R05-OAR-2016-0138 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the For Further Information Contact section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    John Summerhays, Environmental Scientist, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6067, [email protected].

    SUPPLEMENTARY INFORMATION:

    This supplementary information section is arranged as follows:

    I. Why was Illinois required to submit SO2 plans for the Lemont and Pekin areas? II. Requirements for SO2 Nonattainment Area Plans III. Modeled Attainment Plans IV. Review of Residual and Distillate Fuel Oil Sulfur Content Limits V. Review of Other Plan Requirements VI. EPA's Proposed Action VII. Incorporation by Reference VIII. Statutory and Executive Order Reviews I. Why was Illinois required to submit SO2 plans for the Lemont and Pekin areas?

    On June 22, 2010, EPA promulgated a new 1-hour primary SO2 NAAQS of 75 parts per billion (ppb), which is met at an ambient air quality monitoring site when the 3-year average of the annual 99th percentile of 1-hour daily maximum concentrations does not exceed 75 ppb, as determined in accordance with appendix T of 40 CFR part 50. See 75 FR 35520, codified at 40 CFR 50.17(a)-(b). On August 5, 2013, EPA designated a first set of 29 areas of the country as nonattainment for the 2010 SO2 NAAQS, including the Lemont and Pekin areas within Illinois. See 78 FR 47191, codified at 40 CFR part 81, subpart C. These area designations were effective October 4, 2013. Section 191 of the CAA directs states to submit SIPs for areas designated as nonattainment (also referred to as nonattainment plans or plans) for the SO2 NAAQS to EPA within 18 months of the effective date of the designation, i.e., by no later than April 4, 2015, in this case. These plans are required to demonstrate that their respective areas will attain the NAAQS as expeditiously as practicable, but no later than five years from the effective date of designation, which in this case is October 4, 2018.

    For a number of areas, EPA published notice on March 18, 2016, that the pertinent states had failed to submit the required SO2 nonattainment plan by the 18-month submittal deadline. See 81 FR 14736. However, because Illinois had submitted its SO2 nonattainment plans before that date, EPA did not make such a finding with respect to the Lemont and Pekin areas.

    Illinois submitted nonattainment plans for the Lemont and Pekin areas on March 2, 2016 and submitted supplemental information on August 8, 2016 and May 4, 2017.1 The remainder of this proposed rule describes the requirements that nonattainment plans must meet in order to obtain EPA approval, provides a review of the state's plan with respect to these requirements, and describes EPA's proposed action on the state's plans.

    1 Illinois' final rule amended other state regulations that are not part of Illinois' nonattainment plans for the 2010 SO2 NAAQS and were not submitted to EPA as part of this action.

    II. Requirements for SO2 Nonattainment Area Plans

    Nonattainment plans must meet the applicable requirements of the CAA, specifically CAA sections 172, 191 and 192. On April 23, 2014, EPA issued guidance for meeting these statutory requirements, in a document entitled, “Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions,” (2014 SO2 Guidance) available at https://www.epa.gov/sites/production/files/2016-06/documents/20140423guidance_nonattainment_sip.pdf. In the 2014 SO2 Guidance, EPA described the statutory requirements for a complete nonattainment area SIP under the 2010 SO2 NAAQS, which includes: An accurate emissions inventory of current emissions for all sources of SO2 within the nonattainment area; an attainment demonstration; demonstration of RFP; implementation of RACM (including RACT); a new source review (NSR) permit program; and adequate contingency measures for the affected area.

    In order for EPA to fully approve a SIP as meeting the requirements of CAA sections 172, 191 and 192, the SIP for the affected area must demonstrate, to EPA's satisfaction, that each of the aforementioned requirements are met. In addition, the SIP must meet the applicable regulatory procedural and substantive requirements set forth in EPA's regulations at 40 CFR part 51. Under CAA sections 110(l) and 193, EPA may not approve a SIP that would interfere with any applicable requirement concerning NAAQS attainment and RFP, or any other applicable requirement, and no requirement in effect (or required to be adopted by an order, settlement, agreement, or plan in effect before November 15, 1990) in any area that is a nonattainment area for any air pollutant may be modified in any manner unless it insures equivalent or greater emission reductions of such air pollutant.

    A. Emissions Inventory

    As required under CAA section 172(c)(3), the state must develop and submit a comprehensive, accurate and current inventory of actual emissions from all sources of SO2 emissions in each nonattainment area. This inventory should be consistent with EPA's most recent emissions inventory data requirements as codified at 40 CFR part 51, subpart A. The emissions inventory serves as the foundation for modeling and other analyses that enable states to: (1) Estimate the degree to which different sources within a nonattainment area contribute to violations within the affected area; (2) assess the expected improvement in air quality within the nonattainment area due to the adoption and implementation of control measures; and ultimately 3) demonstrate that the adopted control measures provide for attainment of the SO2 standard by the attainment date.

    B. Attainment Plan

    CAA section 172(c)(1) directs states with areas designated as nonattainment to demonstrate that the submitted plan provides for attainment of the NAAQS. 40 CFR part 51, subpart G further delineates the control strategy requirements that SIPs must meet. SO2 nonattainment plans must consist of two components: (1) Emission limits and other control measures that assure implementation of permanent, enforceable and necessary emission controls; and (2) a modeling analysis that meets the requirements of 40 CFR part 51, appendix W which demonstrates that these emission limits and control measures provide for timely attainment of the SO2 NAAQS as expeditiously as practicable, but by no later than the attainment date for the affected area. The 2014 SO2 Guidance advises that compliance deadlines for these emission limits should be by, or before, January 1, 2017, in order to provide for air quality data at or below the level of the standard for at least one full calendar year before the attainment deadline. In cases where the necessary emission limits have not previously been made a part of the SIP, or have not otherwise become federally enforceable, the plan needs to include the necessary enforceable limits in adopted form suitable for incorporation into the SIP in order for it to be approved by EPA. In all cases, the emission limits and control measures must be accompanied by appropriate methods and conditions to determine compliance with the respective emission limits and control measures, and must be fully enforceable.

    The 2014 SO2 Guidance recommends that the emission limits be expressed as short-term average limits not to exceed the averaging time for the applicable NAAQS that the limit is intended to help maintain (e.g., addressing emissions averaged over one or three hours), but also describes the option to utilize emission limits with longer averaging times of up to 30 days so long as the state meets various suggested criteria. See 2014 SO2 guidance, pp. 22 to 39. The guidance recommends that—should states utilize longer averaging times for certain sources—the longer term average limit should be set at an adjusted level that reflects a stringency comparable to the 1-hour average limit at the critical emission value shown to provide for attainment.

    The 2014 SO2 Guidance provides an extensive discussion of EPA's rationale for concluding that appropriately set, comparably stringent limitations based on averaging times as long as 30 days can be found to provide for attainment of the 2010 SO2 NAAQS. In evaluating this conclusion, EPA considered the nature of the standard, conducted detailed analyses of the impact of use of 30-day average limits on the prospects for attaining the standard, and carefully reviewed how best to achieve an appropriate balance among the various factors that warrant consideration in judging whether a state's plan provides for attainment. Id. at pp. 22 to 39, and Appendices B, C and D.

    As specified in 40 CFR 50.17(b), the 1-hour primary SO2 NAAQS is met at an ambient air quality monitoring site when the 3-year average of the annual 99th percentile of daily maximum 1-hour concentrations is less than or equal to 75 ppb. In a year with 365 days of valid monitoring data, the 99th percentile would be the fourth highest daily maximum 1-hour value. The 2010 SO2 NAAQS, including this form of determining compliance with the standard, was upheld by the U.S. Court of Appeals for the District of Columbia Circuit in Nat'l Envt'l Dev. Ass'n's Clean Air Project v. EPA, 686 F.3d 803 (D.C. Cir. 2012). Because the standard has this form, a single exceedance does not create a violation of the standard. Instead, at issue is whether a source operating in compliance with a properly set longer term average could cause exceedances, and if so, the resulting frequency and magnitude of such exceedances, and whether EPA can have reasonable confidence that a properly set longer term average limit will provide that the average fourth highest daily maximum value will be at or below 75 ppb. A synopsis of EPA's review of how to determine whether such plans “provide for attainment,” based on modeling of projected allowable emissions and in light of the NAAQS' form for determining attainment at monitoring sites follows.

    For SO2 nonattainment plans based on 1-hour emission limits, the standard approach is to conduct modeling using fixed emission rates. The maximum emission rate that would be modeled to result in attainment (i.e., the emission rate at which an “average year” 2 shows only three, not four days with maximum hourly levels exceeding 75 ppb) is labeled the “critical emission value.” The modeling process for identifying the critical emissions value inherently considers the numerous variables that affect ambient concentrations of SO2, such as meteorological data, background concentrations, and topography. In the standard approach, the state would then provide for attainment by setting a continuously applicable 1-hour emission limit at this critical emission value.

    2 An “average year” is used to mean a year with average air quality. While 40 CFR 50 appendix T provides for averaging three years of 99th percentile daily maximum values (e.g., the fourth highest maximum daily concentration in a year with 365 days with valid data), this discussion and an example below uses a single “average year” in order to simplify the illustration of relevant principles.

    EPA recognizes that some sources have highly variable emissions due to, for example, variations in fuel sulfur content and operating rate that can make it extremely difficult, even with a well-designed control strategy, to ensure in practice that emissions for any given hour do not exceed the critical emission value. EPA also acknowledges the concern that longer term emission limits may allow short periods with emissions above the critical emissions value, which in turn would create the possibility of a NAAQS exceedance occurring when it otherwise would not if emissions were continuously controlled at the level corresponding to the critical emission value. However, for several reasons, EPA believes that the approach set forth in the 2014 SO2 Guidance addresses this concern. First, from a practical perspective, EPA expects the actual emission profile of a source subject to an appropriately set longer term average limit to be similar to the emission profile of a source subject to an analogous 1-hour average limit. EPA expects this similarity because the Agency has recommended that the longer term average limit be set at a level that is comparably stringent to the otherwise applicable 1-hour limit (reflecting a downward adjustment from the critical emissions value) and that takes the source's emissions profile into account. As a result, EPA expects either form of emission limit to yield comparable air quality when the guidance is followed.

    Second, from a more theoretical perspective, EPA has compared the likely air quality with a source having maximum allowable emissions under an appropriately set longer term limit, as compared to the likely air quality with the source having maximum allowable emissions under the comparable 1-hour limit. In this comparison, in the 1-hour average limit scenario, the source is presumed at all times to emit at the critical emission level, and in the longer term average limit scenario, the source is presumed occasionally to emit more than the critical emission value but on average, and presumably at most times, to emit well below the critical emission value. In an “average year,” compliance with the 1-hour limit is expected to result in three exceedance days (i.e., three days with hourly values above 75 ppb) and a fourth day with a maximum hourly value at 75 ppb. By comparison, with the source complying with a longer term limit, it is possible that additional exceedances would occur that would not occur in the 1-hour limit scenario (if emissions exceed the critical emission value at times when meteorology is conducive to poor air quality). However, this comparison must also factor in the likelihood that exceedances that would be expected in the 1-hour limit scenario would not occur in the longer term limit scenario. This result arises because the longer term limit requires lower emissions most of the time because the limit is set well below the critical emission value, so a source complying with an appropriately set longer term limit is likely to have lower emissions at critical times than would be the case if the source were emitting as allowed with a 1-hour limit.

    As a hypothetical example to illustrate these points, suppose a source always emits 1000 pounds of SO2 per hour, which causes air quality to be at the level of the NAAQS (i.e., causes a design value of 75 ppb). Suppose further that in an “average year,” these emissions cause the five highest maximum daily average 1-hour concentrations to be 100 ppb, 90 ppb, 80 ppb, 75 ppb, and 70 ppb. Then suppose that the source becomes subject to a 30-day average emission limit of 700 pounds per hour. It is theoretically possible for a source meeting this limit to have emissions that occasionally exceed 1000 pounds per hour, but with a typical emissions profile emissions would much more commonly be between 600 and 800 pounds per hour. In this simplified example, assume a zero background concentration, which allows one to assume a linear relationship between emissions and air quality. (A nonzero background concentration would make the mathematics more difficult but would give similar results.) Air quality will depend on what emissions happen on what critical hours, but suppose that emissions on these 5 days are 800 pounds per hour, 1100 pounds per hour, 500 pounds per hour, 900 pounds per hour, and 1200 pounds per hour, respectively. This is a conservative example because the average of these emissions, 900 pounds per hour, is well over the 30-day average emission limit. These emissions would result in daily maximum 1-hour concentrations of 80 ppb, 99 ppb, 40 ppb, 67.5 ppb, and 84 ppb. In this example, the fifth day would have an exceedance that would not otherwise have occurred, but the third and fourth days would not have exceedances that otherwise would have occurred. In this example, the fourth highest maximum daily concentration under the 30-day average would be 67.5 ppb.

    This simplified example illustrates the findings of a more complicated statistical analysis that EPA conducted using a range of scenarios using actual plant data. As described in appendix B of EPA's 2014 SO2 Guidance, EPA found that the requirement for lower average emissions is highly likely to yield better air quality than is required with a comparably stringent 1-hour limit.

    Based on analyses described in appendix B of the 2014 SO2 Guidance, EPA has concluded that an emission profile with maximum allowable emissions under an appropriately set comparably stringent 30-day average limit is likely to have the net effect of having a lower number of exceedances and better air quality than an emission profile with maximum allowable emissions under a 1-hour emission limit at the critical emission value.

    EPA must then evaluate whether this approach—which is likely to produce a lower number of overall exceedances even though it may produce some unexpected exceedances above the critical emission value—meets the requirement in section 110(a)(1) and 172(c)(1) for state implementation plans to “provide for attainment” of the NAAQS. For SO2, as for other pollutants, it is generally impossible to design a nonattainment plan in the present that will guarantee that attainment will occur in the future. A variety of factors can cause a well-designed attainment plan to fail and unexpectedly not result in attainment, for example if meteorology occurs that is more conducive to poor air quality than was anticipated in the plan. Therefore, in determining whether a plan meets the requirement to provide for attainment, EPA's task is commonly to determine not whether the plan provides absolute certainty that attainment will in fact occur, but rather whether the plan provides an adequate level of confidence of prospective NAAQS attainment. From this perspective, in evaluating use of a 30-day average limit, EPA must weigh the likely net effect on air quality. Such an evaluation must consider the risk that occasions with meteorology conducive to high concentrations will have elevated emissions leading to exceedances that would not otherwise have occurred, and must also weigh the likelihood that the requirement for lower emissions on average will result in days not having exceedances that would have been expected with emissions at the critical emissions value. Additional policy considerations, such as the desirability of accommodating real world emissions variability without significant risk of violations as in this case, are also appropriate factors for EPA to weigh in determining whether there is a reasonable degree of confidence that the plan will lead to attainment. Based on these considerations, especially given the high likelihood that a limit averaged over as long as 30 days, determined in accordance with EPA's guidance, should result in attainment, EPA believes as a general matter that such limits, if appropriately determined, can reasonably be considered to provide for attainment of the 2010 SO2 NAAQS.

    The 2014 SO2 Guidance offers specific recommendations for determining an appropriate longer term average limit. The recommended method starts with determination of the 1-hour emission limit that would provide for attainment (i.e., the critical emission value), and applies an adjustment factor to determine the (lower) level of the longer term average emission limit that would be estimated to have a stringency comparable to the otherwise necessary 1-hour emission limit. This method uses a database of continuous emission data reflecting the type of control that the source will be using to comply with the SIP emission limits, which (if compliance requires new controls) may require use of an emission database from another source. The recommended method involves using these data to compute a complete set of emission averages, calculated according to the averaging time and averaging procedures of the prospective emission limitation. In this recommended method, the ratio of the 99th percentile among these long term averages to the 99th percentile of the 1-hour values represents an adjustment factor that may be multiplied by the candidate 1-hour emission limit to determine a longer term average emission limit that may be considered comparably stringent.3 The guidance also addresses a variety of related topics, such as the potential utility of setting supplemental emission limits, such as mass-based limits, to reduce the likelihood and/or magnitude of elevated emission levels that might occur under the longer term emission rate limit.

    3 For example, if the critical emission value is 1000 pounds of SO2 per hour, and a suitable adjustment factor is determined to be 70 percent, the recommended longer term average limit would be 700 pounds per hour.

    Preferred air quality models for use in regulatory applications are described in appendix A of EPA's Guideline on Air Quality Models (40 CFR part 51, appendix W). 4 In 2005, EPA promulgated AERMOD as the Agency's preferred near-field dispersion modeling for a wide range of regulatory applications addressing stationary sources (including estimating SO2 concentrations) in all types of terrain based on extensive developmental and performance evaluation. Supplemental guidance on modeling for purposes of demonstrating attainment of the SO2 standard is provided in appendix A to the 2014 SO2 Guidance. Appendix A provides extensive guidance on the modeling domain, the source inputs, assorted types of meteorological data, and background concentrations. Consistency with the recommendations in this guidance is generally necessary for the attainment demonstration to offer adequately reliable assurance that the plan provides for attainment.

    4 EPA published revisions to the Guideline on Air Quality Models on January 17, 2017.

    As stated previously, attainment demonstrations for the 2010 1-hour primary SO2 NAAQS must demonstrate future attainment and maintenance of the NAAQS in the entire area designated as nonattainment (i.e., not just at the violating monitor) by using air quality dispersion modeling (see appendix W to 40 CFR part 51) to show that the mix of sources and enforceable control measures and emission rates in an identified area will not lead to a violation of the SO2 NAAQS. For a short-term (i.e., 1-hour) standard, EPA believes that dispersion modeling, using allowable emissions and addressing stationary sources in the affected area (and in some cases those sources located outside the nonattainment area which may affect attainment in the area) is technically appropriate, efficient and effective in demonstrating attainment in nonattainment areas because it takes into consideration combinations of meteorological and emission source operating conditions that may contribute to peak ground-level concentrations of SO2.

    The meteorological data used in the analysis should generally be processed with the most recent version of AERMET. Estimated concentrations should include ambient background concentrations, follow the form of the standard, and be calculated as described in section 2.6.1.2 of the August 23, 2010, clarification memo on “Applicability of appendix W Modeling Guidance for the 1-hr SO2 National Ambient Air Quality Standard” (EPA, 2010).

    C. RACM/RACT

    To be approved by EPA, the SIP must provide for attainment of the standard based on SO2 emission reductions from control measures that are permanent and enforceable.5 At a minimum, states must consider all RACM and RACT measures that can be implemented in light of the attainment needs for the affected area(s), and include all necessary measures in order to attain the NAAQS.6 See “General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990; Proposed Rule,” 57 FR 13498, 13547 (Apr. 16, 1992) (“General Preamble”).

    5See section 110(a)(2)(A) of the CAA.

    6 Section 172(c)(1) of the CAA provides that “Such plan shall provide for the implementation of all reasonably available control measures as expeditiously as practicable (including such reductions in emissions from existing sources in the area as may be obtained through the adoption, at a minimum, of reasonably available control technology) and shall provide for attainment of the national primary ambient air quality standards.”

    D. New Source Review (NSR)

    Part D of title I of the CAA prescribes the procedures and conditions under which a new major stationary source or major modification may obtain a preconstruction permit in an area designated nonattainment for any criteria pollutant. The nonattainment NSR permitting requirements in section 172(c)(5) and 173 of the CAA are among “the requirements of this part” to be submitted to EPA as part of a revised SIP for a nonattainment area within 18 months of the effective date of a designation or redesignation to nonattainment. Air agencies that already have a nonattainment NSR permitting program applicable to areas previously designated nonattainment on the basis of the previous SO2 NAAQS (annual, 24-hour or 3-hour averaging periods) may be able to use that existing program to authorize the construction and modification of major stationary sources of SO2 that would locate in a new 2010 SO2 nonattainment area.7 However, because of the limited number of nonattainment areas designated under the previous SO2 NAAQS, and since nonattainment NSR rules in some states may not automatically address areas designated nonattainment for newly promulgated air quality standards, some air agencies may not have nonattainment NSR rules that apply when new nonattainment areas for the 1-hour primary SO2 standard are designated. In such cases, within 18 months of designation, such agencies would need either to revise their existing nonattainment NSR programs or to develop new programs to enable the permitting of any major stationary source of SO2 locating in a nonattainment area under the 2010 SO2 NAAQS.

    7 The annual and 24-hour primary SO2 NAAQS generally will remain in effect for 1 year following the effective date of the initial area designations for the new 1-hour 2010 SO2 NAAQS. However, the annual and/or 24-hour SO2 NAAQS will remain in place for a longer period of time for any current nonattainment area for the annual or 24-hour SO2 NAAQS, and any area for which a state has not fulfilled the requirements for a SIP call. See 40 CFR 50.4(e).

    E. RFP

    Section 171(1) of the CAA defines RFP as “such annual incremental reductions in emissions of the relevant air pollutant as are required by part D or may reasonably be required by EPA for the purpose of ensuring attainment of the applicable NAAQS by the applicable attainment date.” As EPA has previously explained, this definition is most appropriate for pollutants that are emitted by numerous and diverse sources, where the relationship between any individual source and the overall air quality is not explicitly quantified, and where the emission reductions necessary to attain the NAAQS are inventory-wide. General Preamble, at 13547. EPA has also previously explained that the definition is generally less pertinent to pollutants like SO2 that usually have a limited number of sources affecting areas of air quality that are relatively well defined, and emissions control measures for such sources result in swift and dramatic improvement in air quality. Id. For SO2, there is usually a single “step” between pre-control nonattainment and post-control attainment. Therefore, for SO2, with its discernible relationship between emissions and air quality, and significant and immediate air quality improvements, RFP is best construed as “adherence to an ambitious compliance schedule.” Id. This means that the state must ensure that affected sources implement appropriate control measures as expeditiously as practicable in order to ensure attainment of the standard by the applicable attainment date.

    F. Contingency Measures

    In accordance with section 172(c)(9) of the CAA, SO2 nonattainment plans must include contingency measures in order to obtain EPA approval. These measures must be fully adopted and should contain trigger mechanisms and an implementation schedule. In addition, they should be included in the SIP as measures that will take effect without further action by the state or EPA. Contingency measures are implemented if RFP targets are not achieved, or if the nonattainment area has not reached attainment by the applicable attainment date. Where an area has already achieved attainment by the attainment date, it has no need to rely on contingency measures to come into attainment or to make further progress to attainment.

    EPA has explained that planning for SO2 poses special considerations. SO2 control measures are based on what is directly and quantifiably necessary to attain the NAAQS, and it would be unlikely for an area to implement the necessary emissions control yet fail to attain the NAAQS. General Preamble at 13547. Therefore, for SO2 nonattainment plans, EPA guidance also observes that the contingency measures requirement can be satisfied by the air agency having a comprehensive program to identify sources of violations of the SO2 NAAQS and to undertake an `aggressive' follow-up for compliance and enforcement.” Id. The 2014 SO2 Guidance provides further explanation of the context in which such an approach may be appropriate for addressing section 172(c)(9) contingency measure requirements for SO2. This approach for meeting contingency measure requirements does not preclude a state from requiring additional contingency measures that are enforceable and appropriate for a particular source or source category. General Preamble at 13547.

    III. Modeled Attainment Plans

    The following discussion evaluates various features of the modeling and other elements of Illinois' nonattainment plans for the Lemont and Pekin areas.

    A. Model Selection

    Illinois' attainment demonstrations used AERMOD, the preferred model for these applications. Illinois used version 14134 of this model, using regulatory default mode, with no beta options. This version of AERMOD was the recommended version at the time the state conducted its nonattainment planning, and in any case the results of this version are likely to be similar to those that more recent versions would provide, so EPA finds use of this version of AERMOD to be acceptable.

    Illinois performed an Auer's land use analysis which indicates that the Lemont area is approximately 79 percent rural, and the Pekin area is approximately 88 percent rural. A technical support document provides figures, taken from Illinois' submittal, that show the land use in the Lemont and Pekin areas, respectively, illustrating the areas that are characterized as rural, not urban, in the Auer classification system. EPA finds it appropriate to model these areas as rural areas.

    B. Meteorological Data

    Illinois chose the Chicago O'Hare surface station (WBAN #94846) and the Davenport, Iowa upper air station (WBAN #94982) as the most representative meteorological stations for the Lemont area. Illinois chose the Peoria surface station (WBAN #14842) and Lincoln upper air station (WBAN #048233) as the most representative meteorological stations for the Pekin area. These are the closest National Weather Service surface stations to each respective area. The State determined these stations to be the most representative for the respective modeling domains. The upper air stations were chosen on the basis of regional representativeness. EPA finds Illinois' choices of surface and upper air meteorological stations appropriate based on: (1) The suitability of meteorological data for the study area; and (2) the actual similarity of surface conditions and surroundings at the emissions source/receptor impact area compared to the locations of the meteorological instrumentation towers.

    C. Emissions Data

    Illinois chose to include emissions data from all permitted sources within each modeling domain, which consists of a 50 kilometer radius circumscribing an area centered on the violating monitor. Illinois chose not to evaluate which sources would “cause a significant concentration gradient” (40 CFR part 51, appendix W), because that analysis would result in a greater modeling burden, along with significant subjectivity. The inclusion of all permitted sources assures that Illinois' modeled concentrations are conservative, in that it adds impacts that may also be represented in the background concentration.

    Except for the Powerton Generating Station (Powerton) located in the Pekin area, the emission limits for newly limited sources, as outlined in Illinois' attainment demonstration, correspond to the revised sulfur limitations on a 1-hour basis and are found in 35 Illinois Administrative Code Part 214. The applicable emission limit for Powerton is established on a 30-day average basis and is lower than the modeled 1-hour attainment emission rate (the critical emission value) by virtue of application of an adjustment factor determined and applied in accordance with the 2014 SO2 Guidance.

    Specifically, as discussed further below, the 30-day average limit is about 58 percent of the modeled 1-hour emission rate, or, conversely, the modeled emission rate (the critical emission value) is about 74 percent higher than the 30-day average limit. The emission limits for sources in the Lemont area are all on a 1-hour average basis and equal the modeled emissions rate. EPA finds Illinois' choice of included sources and modeled emissions appropriate.

    D. Emission Limits

    An important prerequisite for approval of an attainment plan is that the emission limits that provide for attainment be fully enforceable. The revised limits for significant contributing sources are codified in Illinois' sulfur limitations rule at 35 Illinois Administrative Code Part 214, Subpart AA, titled “Requirements for Certain SO2 Sources.” The rules also include associated monitoring, testing, and recordkeeping and reporting requirements. A summary of the limits, showing the sum of the allowable hourly emissions for each plant, is shown in Table 1. As shown in this table, the emission limit for Powerton is expressed as a 30-day average limit. Other limits in the rule are expressed as 1-hour average limits. EPA's review of Illinois' nonattainment plan addresses the use of these limits, both with respect to the general suitability of using such limits in attainment demonstrations, and whether Illinois has demonstrated that the particular limits included in the plan provide for attainment.

    Table 1—Emission Limits in Submitted Illinois Rules Facility Sum of
  • allowable
  • emissions
  • (pounds/hour)
  • Averaging time for limits
    Limits for Sources in or near Lemont Area Ingredion 175.91 1-hour. Midwest Generation Joliet 855.26 1-hour. Midwest Generation Will County 5,145.14 1-hour. Owens Corning 82.78 1-hour. Oxbow Midwest Calcining 187.00 1-hour. Limits for Sources in or near Lemont Area Aventine 26.80 1-hour. Illinois Power E.D. Edwards 4,856 1-hour. Midwest Generation Powerton 3,452 30-day.

    Illinois also modeled a number of other sources in its attainment demonstration, basing allowable emissions on limits established in state permits. EPA addresses the enforceability of the limits in the plans and Illinois' use of a 30-day average emission limit for Powerton below.

    1. Enforceability

    In preparing its plans, Illinois adopted revisions to a previously approved state regulation governing emissions of SO2. These rule revisions were adopted by the Illinois Pollution Control Board following established, appropriate public review procedures. In addition, the rule revisions provide unambiguous, permanent emission limits, expressed in pounds per hour of allowable SO2 emissions, that, if exceeded by a source, would be clear grounds for an enforcement action.

    In comments to the state, Sierra Club requested that the rule being adopted by Illinois “incorporate enforceable restrictions for all sources for which emissions reductions were included in the modeling that demonstrated attainment.” EPA's 2014 SO2 Guidance addresses the need for enforceability of the limits necessary to provide for attainment. The Guidance states, “An approvable attainment demonstration would . . . demonstrate that the emission limits in the plan will suffice to provide for timely attainment . . . In cases where the necessary emission limits have not previously been made a part of the SIP, or have not otherwise become federally enforceable, the plan needs to include the necessary enforceable limits in adopted form suitable for incorporation into the SIP.” See 2014 SO2 guidance, p. 9.

    The most significant sources in and near the designated nonattainment areas are subject to new emission limits that Illinois adopted as part of its part 214 rules. In particular, all of the sources that needed to reduce emissions in order for the nonattainment areas to attain the standard or that needed a reduced allowable emission level in order for the areas to maintain attainment of the standard are subject to limits adopted as part of the rule. Thus, the sources that are most critical to the future success of the attainment plans (including all of the significant units at these sources) are subject to limitations adopted in Illinois' rule. Illinois did not submit already federally enforceable permits for incorporation into the SIP, even if the modeling showing future attainment accounted for such limits. However, as previously discussed, all of the emission reductions that Illinois identified as necessary to bring the Lemont and Pekin areas into attainment are mandated by emission limits in the rule. Those sources for which Illinois' modeled emissions were based on federally enforceable limits already established in permits rather than in the new rules are sources that are already required to meet emission levels that should, combined with the new rule limits, provide for attainment of the standard, so that no further emission reductions are necessary for these sources in order for the SIP to provide for NAAQS attainment.

    EPA reviewed the basis of the existing emission limits for the most significant of those sources not needing to reduce emissions below existing levels. In general, for these sources, the limits that underlie the allowable emission levels that Illinois modeled were established in federally enforceable construction permits. In some cases, these permits were to authorize major modifications or major new sources, in accordance with requirements for prevention of significant deterioration (PSD). In other cases, notably for the refineries, Illinois issued these limits in federally enforceable form in accordance with a federal-state consent decree. For example, the limits on emissions from the primary emission sources at CITGO, originally established by consent decree, have been incorporated into PSD permit number 05070003. The limits established in such permits are federally enforceable. In accordance with EPA's guidance on the use of federally enforceable limits, EPA finds that these limits are an appropriate estimate of the maximum allowable emissions under the plans, and so EPA finds that these limits represent an appropriate basis for modeling to determine whether Illinois' nonattainment plan provides for attainment.

    Illinois has requested EPA to approve revisions to emission limits for significant sources within the Pekin and Lemont areas in 35 Illinois Administrative Code part 214, as part of the SIP, and EPA proposes to approve these new emission limits because they, in combination with permit limits that are already federally enforceable, provide adequate enforceability of the necessary emission limits for the purposes of Illinois' nonattainment plans.

    2. Longer Term Average Limits

    As noted above, the 2014 SO2 Guidance discusses the option to establish limits with averaging times up to 30 days in length that are comparably stringent to the 1-hour average limit that would otherwise have been set, and recommends a detailed procedure for determining such a comparably stringent limit. The Guidance also notes that it might be appropriate to establish supplemental limits in order to limit the magnitude and/or frequency of elevated emissions, as a means of further reducing the likelihood of elevated emissions occurring on those occasions when the meteorology is conducive to high concentrations of SO2.

    Based on the variability of emissions at Powerton, Illinois opted to set the emission limit for this facility on a 30-day average basis. Illinois closely followed the recommendations of the 2014 SO2 Guidance in determining an appropriate level for this limit. As a first step, Illinois conducted modeling which determined that the 1-hour emission limit that would provide for attainment (the critical emissions value) would be 6,000 pounds of SO2 per hour. That is, Illinois conducted a series of modeling runs identifying baseline allowable air quality (in absence of emission reductions), evaluating the air quality consequences of feasible emission reductions, and ultimately identifying a set of reduced allowable emission levels that would provide for attainment. In this attaining set of “critical emission levels,” the “critical emission level” for Powerton was 6,000 pounds per hour.

    Illinois then used a database of hourly SO2 emissions data from a source comparable with Powerton to determine the historical and expected future relationship between 1-hour and 30-day average actual emission levels of a source using the control technology that Powerton will employ. Illinois' submittal notes that Powerton (presumably for purposes of satisfying the Mercury and Air Toxics Standards) is expected to install “a trona injection dry FGD system for the control of SO2 emissions before 2017, so historical data from the units at the source would not be appropriate” as a basis for determining the prospective relationship between 1-hour and 30-day average emissions once the control is installed. See Illinois submittal, Technical Support Document, page 9. “As a substitute, [Illinois used] a data set consisting of 42 months of emissions data from the Potomac River Generating Station, located in Alexandria, Virginia, [which] are similar to the Powerton units, and were operated with trona injection systems during the time this data set was created.” Id. Using this data set, Illinois determined the 99th percentile of the historical 1-hour values in this data set to be 1,107 pounds per hour and the 99th percentile of the historical 30-day average values calculated from this data set to be 637 pounds per hour. Illinois used the ratio between these two 99th percentile values (i.e., approximately 58 percent) as an adjustment factor to multiply by the critical emissions value (the otherwise applicable 1-hour emission limit) of 6,000 pounds per hour to determine a comparably stringent 30-day average limit of 3,452 pounds per hour. This adjustment factor is quite similar to, and slightly more conservative (i.e., it reflects a more stringent long term limit) than, the average adjustment factor discussed in EPA's 2014 SO2 Guidance for facilities using dry scrubbers, an average adjustment factor of 63 percent. See appendix D of EPA's 2014 Guidance.

    As noted above, EPA's 2014 SO2 Guidance notes the benefit of supplementing long term average limits with additional limits to reduce the likelihood and/or the magnitude of emission levels above the 1-hour critical emission value. For this purpose, Illinois' rules supplement the 30-day average limit for Powerton with a requirement that emissions not exceed 6,000 pounds per hour more than 5 percent of the hours (as a 1-hour average) during any 30-day averaging period. By constraining the likelihood of elevated emissions, and thereby reducing the likelihood that elevated emissions will occur at times when meteorology is conducive to high SO2 concentrations, this supplemental limit further strengthens the degree of confidence that Illinois' plan for the Pekin area should result in attainment.

    Based on a review of the state's submittal, the 3,452 pounds per hour 30-day average limit for Powerton, supplemented with a limit on the percentage of time that Powerton may exceed the 6,000 pounds per hour critical emission value, provides a suitable alternative to establishing a 6,000 pounds per hour 1-hour average emission limit for this source. The state used a suitable database and then applied an appropriate adjustment, yielding an emission limit that has comparable stringency to the 1-hour average limit that the state determined would otherwise have been necessary to provide for attainment. While the 30-day average limit allows for occasions in which emissions are higher than the level that would be allowed under the 1-hour limit, the state's limit compensates by requiring average emissions to be lower than the level that would otherwise have been required by a 1-hour average limit. Further, the supplemental limit adopted by Illinois ensures that elevated emissions will be infrequent. Thus, the 30-day average limit of 3,452 pounds per hour as supplemented is comparably as stringent as a 1-hour limit of 6,000 pounds per hour. Furthermore, Illinois' modeling of 6,000 pounds per hour for Powerton is an appropriate means of assessing whether the 30-day average limit of 3,452 pounds per hour plus supplemental limit provides for attainment.

    Based on EPA's review of this information, the 30-day average limit for Powerton, in combination with other limitations in the state's plan (most notably the limits summarized in Table 1 above), should provide for attainment.

    E. Background Concentrations

    Illinois used seasonally varying hourly background data. These values were taken from an SO2 monitor in Oglesby, Illinois, which is located approximately half way between the two areas. There were 24 hourly values for each season, for a total of 96 monitored concentration values. Each of these values represents a three-year average (2011-2013) of the second highest hourly concentration for each season.8 The values that Illinois determined range from 1.54 to 12.22 micrograms per cubic meter (μg/m3). EPA has reviewed these background concentrations and finds these values appropriate as modeling inputs.

    8 Since this 3-year period has 1,096 days, and the data set for each hour of the day is divided into four seasons of data sets, the data set for the determination of each of the 96-hour and season-specific background concentration includes a maximum of about 274 values. The selection of the second highest value is considered to provide an appropriate degree of conservatism in determining the background concentration for each hour and season. AERMOD then reports results that reflect the addition of the appropriate background value; for example, concentrations reported for an 8 a.m. hour in springtime reflect the sum of the source impacts for that hour plus the springtime 8 a.m. background concentration.

    F. Review of Modeling Concerns Addressed by Illinois

    During preparation of its nonattainment plans, Illinois received and responded to a number of comments by, among others, the Sierra Club and the Environmental Law and Policy Center that EPA believes warrant further review and explanation. Sierra Club noted that the nonattainment plans provide only a relatively small margin of attainment, and Sierra Club commented (among other comments) that in this context, various types of emissions that Illinois does not account for could result in these areas violating the standard. EPA has reviewed the comments that Sierra Club provided to Illinois and the response that Illinois provided in a document dated August 28, 2015. (These comments and responses were included in Illinois' SIP submittal and thus are available in the docket for this action).

    First, Sierra Club expressed concerns about emissions from modeled sources that are not subject to Illinois Administrative Code section 214.603. Section 214.603 includes the following sources: Aventine Renewable Energy; Illinois Power Holdings E.D. Edwards; Ingredion Bedford Park; Midwest Generation Joliet; Midwest Generation Powerton; Midwest Generation Will County; Owens Corning; and Oxbow Midwest Calcining. Sierra Club commented that emissions from start-up, shutdown, and malfunction that represent noncompliance could lead to a violation of the NAAQS. Illinois responded that maximum allowable emissions for the sources were used, and that these allowable emissions are enforceable through emission limitations in other regulations or permit conditions. EPA agrees with Illinois' response, finding that while emissions above allowable levels may occasionally occur, excess emissions that are prohibited by applicable requirements (whether they are occurring during start-up, shutdown, or malfunctions or at other times) need not be considered in evaluating whether a plan provides for attainment. That is, if a plan requires emissions to be sufficiently low to achieve attainment, EPA considers the plan to satisfy the requirement to provide for attainment, and the possibility of noncompliance that causes violations is an enforcement concern and not an indication that the plan has failed to provide for attainment.

    Second, Sierra Club expressed concern regarding emissions from minor sources. Sierra Club expressed particular concern about minor sources being authorized by “permits by rule” that exempt the sources from review of their impact on SO2 air quality. In expressing this concern, Sierra Club did not identify any permits by rule that had been issued or that were under consideration, or levels of emissions that might arise from such authorizations that may cause concern about maintaining attainment of the standard. Furthermore, Sierra Club did not identify examples of source types that might be minor enough to be authorized by a permit by rule and yet significant enough to cause the potential for violations of the SO2 standard. Illinois responded that no such “permits by rule” exist that exempt minor sources with SO2 emissions from review of air quality impacts. Illinois further noted that, even in the hypothetical situation that such a permit by rule existed, new minor sources, and minor modifications at major sources, in general contribute very little to SO2 ambient concentrations, but in any case that Illinois conducts additional modeling in cases where the potential for air quality problems exists. Illinois' minor source permitting program provides adequate protection against minor sources and minor modifications causing violations of the SO2 standard.

    Third, Sierra Club contended that while Illinois claims more than 99 percent emission reduction at many sources, presumably based on the requirement that Illinois has now adopted rules requiring industrial sources that burn diesel fuel or residual oil to burn ultra-low sulfur fuel, these requirements cannot achieve the 99 percent reduction at modeled sources that Illinois claimed. It appears that Illinois is claiming that the rules reduced allowable emissions by more than 99 percent, while Sierra Club is asserting that there will be no such percent reduction in actual emissions. Illinois responded that the relevant issue is whether the emission level required by the rules is an appropriate level consistent with attaining the standard, not the percent reduction in relation to prior actual or allowable emissions. That is, the percent reduction that results from Illinois' rules, and whether it is calculated on the basis of actual or allowable emissions, is not germane to the attainment demonstration, which is designed to demonstrate that allowable emissions are sufficiently low to provide for attainment. EPA agrees that, irrespective of the precise relationship between current and required future emissions, i.e., irrespective of what emission reduction percentage the rule requires relative to current emission levels, the rules require emissions to be at levels that provide for attainment.

    Fourth, Sierra Club expressed concern that the flares modeled by Illinois will have “much higher” emissions during routine operations, such as flaring off gases during start-up, shutdown, and malfunction events when compared to pilot emissions, and that Illinois did not model these higher emission rates. Illinois responded that the flares have limits on their allowable emissions (which apply at all times, including during the events of concern to the Sierra Club), and the flares were modeled at their maximum allowable emission rates. The most significant flares in the Lemont area are at the CITGO and Exxon-Mobil refineries; these flares were addressed in a consent decree,9 with terms and conditions subsequently incorporated into federally enforceable state permits requiring compliance with new source performance standards. The most significant flare in the Pekin area, at Aventine, is subject to emission limits in the state rules submitted in Illinois' plan. As noted above, these emission limits are practically enforceable, and the approach taken by Illinois in modeling maximum allowable emission rates is consistent with EPA recommendations for attainment demonstration modeling. EPA agrees with Illinois' rationale and conclusions regarding Sierra Club's concerns about Illinois' modeling analysis.

    9 For example, for CITGO, see Civil Action Number H-04-3883 entered January 26, 2005 in the Southern District of Texas.

    Finally, Sierra Club expressed concern regarding the impacts of possible emission “spikes” at Powerton, i.e., occasions with elevated emissions that would be permissible under the 3,452 pound per hour 30-day average emission limit applicable to the facility. Sierra Club in particular urged the adoption of supplemental limits to restrict the magnitude and frequency of these emission spikes. As described earlier, Illinois responded by adopting a supplemental limit requiring that no more than 5 percent of the hours in any 30-day averaging period may have emissions in excess of 6,000 pounds per hour, which is the modeled critical emissions value. EPA believes this supplemental limit appropriately addresses Sierra Club's concern.

    G. Summary of Results

    The final dispersion modeling results submitted by Illinois show design value concentrations of 190.9 and 196.2 μg/m3 for the Lemont and Pekin nonattainment areas, respectively. Both of these design value concentrations are below 75 ppb, which corresponds to 196.4 μg/m3, and therefore Illinois' modeling analysis demonstrates attainment of the 2010 SO2 NAAQS for the Lemont and Pekin areas. EPA has reviewed Illinois' attainment demonstrations, agrees with Illinois' submitted results, and proposes to determine that Illinois' plans provide for attainment of the 2010 primary SO2 NAAQS in the Lemont and Pekin nonattainment areas.

    IV. Review of Residual and Distillate Fuel Oil Sulfur Content Limits

    In conjunction with its adoption of SO2 emission limits for major sources, Illinois adopted rule revisions to limit the sulfur content of distillate and residual fuel oil combusted at stationary sources throughout the state. Consistent with trends toward increasing availability and use of lower sulfur oil of all kinds, these limits were intended to assure that the considerable number of generally smaller boilers that burn these fuels use fuels with relatively low sulfur content. The new limits adopted by Illinois will help protect air quality in the entire state, including the Lemont and Pekin nonattainment areas. As a result, EPA proposes to approve these rule amendments as part of the SIP.

    On and after January 1, 2017, the sulfur content of residual fuel oil combusted at stationary sources will be limited to 1,000 parts per million (ppm), and sulfur content of distillate fuel oil will be limited to 15 ppm. These limits apply to facilities that exclusively burn liquid fuel. These limits were adopted as part of Title 35 of Illinois Administrative Code part 215 subparts B and D, in sections 214.121, 214.122, and 214.161. Section 214.121(b) sets these limits for large sources (sources with actual heat input greater than 73.2 megawatts (MW)), and section 214.122(b) sets these limits for small sources (sources with actual heat input smaller than, or equal to, 73.2 MW).

    Section 214.161(c) and (d) set exceptions from the sulfur content limitations mentioned above for specific sources. Section 214.161(c) lists exceptions for Midwest Generation Joliet, Powerton, Waukegan, and Will County power stations or electric generating units (EGUs). These sources must comply with the following limitations: (1) From January 1, 2016 through December 31, 2018, the sulfur content of all distillate fuel oil purchased for use by the listed EGUs must not exceed 15 ppm; (2) from January 1, 2017 through December 31, 2018, the sulfur content of all distillate fuel oil used by the listed EGUs must not exceed 500 ppm; and (3) on and after January 1, 2019, the sulfur content of all distillate fuel oil used by the listed EGUs must not exceed 15 ppm. Section 214.161(d) sets an exception for Caterpillar Montgomery, and sets the following limit: On and after January 1, 2016, the sulfur content of all distillate fuel oil purchased for use by this source must not exceed 15 ppm, and the sulfur content of all distillate fuel oil used by this source must not exceed 500 ppm. These exemptions provide the listed sources with additional time to burn existing stocks of higher sulfur oils, but ultimately require these sources to meet the same sulfur content limits as apply to other sources in the state.

    For the sources to which these alternate provisions apply that are in or near the Lemont or Pekin areas, the attainment modeling reflects the emissions that are allowable as of January 1, 2017, without regard to the tighter limits that apply two years thereafter. Thus, Illinois' modeling shows that these short term extensions of the deadline for complying with the generally applicable oil sulfur content limits do not prevent timely attainment. In addition, for the rest of the state, these limits strengthen the SIP and help improve air quality. For these reasons, EPA proposes to approve these rule amendments.

    In the rulemaking adopting the above elements of its Part 214 rules, Illinois also adopted revisions to Part 225 and 217. However, Illinois' Lemont and Pekin nonattainment plans are not contingent on any of the provisions of these parts of Illinois administrative code, and these rules were not submitted as a part of this SIP revision request. Thus, EPA is taking no action with respect to those revisions as part of this action.

    V. Review of Other Plan Requirements A. Emissions Inventory

    The emissions inventory and source emission rate data for an area serve as the foundation for air quality modeling and other analyses that enable states to: (1) Estimate the degree to which different sources within a nonattainment area contribute to violations within the affected area; and (2) assess the expected improvement in air quality within the nonattainment area due to the adoption and implementation of control measures. As noted above, the state must develop and submit to EPA a comprehensive, accurate and current inventory of actual emissions from all sources of SO2 emissions in each nonattainment area, as well as any sources located outside the nonattainment area which may affect attainment in the area. See CAA section 172(c)(3).

    Illinois provided a comprehensive, accurate, and current inventory of emissions of SO2 in and within 50 kilometers of the Lemont and Pekin areas. By addressing sources to this distance from the nonattainment areas, Illinois has developed a thorough list of the sources with any potential to cause impacts that warrant including in the areas' attainment modeling. Illinois' initial submittal provided inventories of allowable emissions, and then Illinois supplemented this information on May 4, 2017 with a submittal of inventories of actual emissions.

    As noted above, these inventories addressed sources within 50 kilometers of the Lemont and Pekin nonattainment areas. These inventories addressed 425 sources in and near Lemont and 48 sources in and near Pekin. Once Illinois compiled its inventory of current allowable emissions, Illinois conducted modeling to determine the degree to which the applicable emission limitations allowed violations of the SO2 air quality standard. Illinois then conducted a series of additional modeling runs to determine a set of emission limits that would provide for attainment. In accordance with EPA guidance, Illinois' attainment demonstration is based on modeling using allowable emissions to demonstrate that its plans provide for attainment. This reflects Illinois' intent to ensure that emissions are required to be sufficiently low as to achieve attainment, i.e., that allowable emissions will not cause violations. Similarly, Illinois' plans are designed to meet the other part D requirements on the basis of allowable emissions, for example by setting allowable emissions at a level that satisfy applicable requirements for RACT/RACM and RFP. Illinois did not use actual emissions in this planning process. Accordingly, Illinois initially provided an inventory of allowable emissions, which served the needs of the pertinent nonattainment planning requirements. Then, in its May 4, 2017, submittal, Illinois also submitted a comprehensive, accurate, current inventory of actual emissions. Tables 1 and 2 summarize actual emissions in 2014 for a subset of these sources, namely those sources that have actual SO2 emissions of at least 100 tons per year. Therefore, Illinois has met the emission inventory requirement of CAA section 172(c)(3) for the Pekin and Lemont areas.

    Table 2—Actual 2014 SO2 Emissions in Lemont Area Exceeding 100 Tons per Year Source name Actual SO2
  • (tpy)
  • Midwest Generations—Joliet Station 29 12,800 Will County Generating Station 10,478 Ingredion Incorporated Argo Plant 1,671 Exxon Mobil Oil Corp 1,562 Koppers Inc 867 CITGO Petroleum Corp 346 Ardagh Glass Inc 145
    Table 3—Actual 2014 SO2 Emissions in Pekin Area Exceeding 100 Tons per Year Source name Actual SO2
  • (tpy)
  • Midwest Generation LLC 16,717 Illinois Power Resources Generating LLC—Edwards Energy Ctr 8,278 Aventine Renewable Energy, Inc 7,292 Illinois Power Resources Generating LLC—Duck Creek Energy 240 Keystone Steel & Wire Co 129
    B. RACM/RACT

    Illinois's plan reflects a number of strategies to reduce emissions at various facilities. In the Lemont area, the Joliet power plant and Unit 3 of the Will County power plant will cease burning coal and will instead either burn natural gas or ultra-low sulfur diesel. In the Pekin area, substantial emission reductions will result from conversion of the Aventine facility switching from burning coal to burning natural gas and from implementation of emission control equipment at the E.D. Edwards and Powerton power plants. Both areas will also benefit from statewide requirements for boilers burning fuel oil to burn low sulfur fuel.

    In its August 8, 2016, supplemental submittal, Illinois explained its rationale for concluding that the plans meet the RACM/RACT requirement in accordance with EPA guidance. Specifically, following EPA's interpretation that RACT and RACM reflect “the level of emissions control that is necessary to provide for expeditious attainment of the NAAQS within a nonattainment area,” Illinois noted that its nonattainment plans require permanent and enforceable control measures that provide for timely attainment. 35 Illinois Administrative Code section 214.603 lists the appropriate source-specific SO2 emission limits by unit, in pounds per hour. Therefore, Illinois has satisfied the RACM/RACT requirements for the Lemont and Pekin areas.

    C. NSR

    EPA approved Illinois' nonattainment new source review rules on December 17, 1992 (57 FR 59928); September 27, 1995 (60 FR 49780) and May 13, 2003 (68 FR 25504). These rules provide for appropriate new source review for SO2 sources undergoing construction or major modification in the Lemont and Pekin areas without need for modification of the approved rules. Although these rules predated promulgation of the 2010 SO2 standards, these rules are written in a manner such that new sources within areas that become designated nonattainment for this new standard, such as the Lemont and Pekin areas, become subject to these nonattainment new source review requirements. Therefore, this requirement has been met for these areas.

    D. RFP

    In its August 8, 2016, supplemental submittal, Illinois explained its rationale for concluding that the plans met the requirement for RFP in accordance with EPA guidance. Specifically, Illinois's rationale is based on EPA guidance interpreting the RFP requirement being satisfied for SO2 if the plan requires “adherence to an ambitious compliance schedule” that “implement[s] appropriate control measures as expeditiously as practicable.” Illinois noted that its nonattainment plans provide for attainment as expeditiously as practicable, i.e., by January 1, 2017, and finds that the plans thereby satisfy the requirement for RFP. Therefore, Illinois has satisfied the RFP requirements for the Lemont and Pekin areas.

    E. Contingency Measures

    In its August 8, 2016, supplemental submittal, Illinois explained its rationale for concluding that the plans met the requirement for contingency measures in accordance with EPA guidance. Specifically, Illinois relies on EPA's guidance, noting the special circumstances that apply to SO2 (as discussed above), and explaining on that basis why the contingency requirement in CAA section 172(c)(9) is met for SO2 by having a comprehensive program to identify sources of violations of the SO2 NAAQS and to undertake an aggressive follow-up for compliance and enforcement of applicable emissions limitations. Illinois stated that it has such an enforcement program pursuant to Section 31 of the Illinois Environmental Protection Act, identifying violators and taking prompt, appropriate enforcement action, and concludes that Illinois' nonattainment plans satisfy contingency measure requirements. Therefore, Illinois has satisfied the contingency measure requirements for the Lemont and Pekin areas.

    VI. EPA's Proposed Action

    EPA is proposing to approve Illinois' submission as a SIP revision, which the state submitted to EPA on March 2, 2016, and supplemented on August 8, 2016, and May 4, 2017, for attaining the 2010 1-hour SO2 NAAQS for the Lemont and Pekin SO2 nonattainment areas.

    These SO2 nonattainment plans include Illinois' attainment demonstration for the Lemont and Pekin SO2 nonattainment areas. These nonattainment plans also address requirements for emission inventories, RACT/RACM, RFP, and contingency measures. Illinois has previously addressed requirements regarding nonattainment area new source review. EPA has determined that Illinois' SO2 nonattainment plans meet the applicable requirements of CAA sections 172, 191, and 192. EPA is taking public comments for thirty days following the publication of this proposed action in the Federal Register. EPA will take all comments into consideration in our final action.

    VII. Incorporation by Reference

    In this rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference Illinois Administrative Code, Title 35, Subtitle B, Chapter I, Subchapter c, Part 214, Sections 214.121, 214.122, 214.161, 214.600, 214.601, 214.602, 214.603, 214.604, and 214.605, effective December 7, 2015. EPA has made, and will continue to make, these documents generally available through www.regulations.gov, and/or at the EPA Region 5 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

    VIII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed 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 proposed 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, the SIP is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    List of Subjects in 40 CFR Part 52

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

    Dated: September 17, 2017. Robert A. Kaplan, Acting Regional Administrator, Region 5.
    [FR Doc. 2017-21371 Filed 10-4-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2017-0377; FRL-9968-89-Region 9] Approval of Arizona Air Plan Revision; San Manuel, Arizona; Second 10-Year Sulfur Dioxide Maintenance Plan AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve the second 10-year maintenance plan for the San Manuel area in Arizona for the 1971 National Ambient Air Quality Standards (NAAQS or “standards”) for sulfur dioxide (SO2).

    DATES:

    Any comments on this proposal must arrive by November 6, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R09-OAR-2017-0377 at https://www.regulations.gov, or via email to Ashley Graham, Air Planning Office at [email protected]. For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be removed or edited from Regulations.gov. For either manner of submission, 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 (e.g., audio or video) 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, 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 https://www.epa.gov/dockets/commenting-epa-dockets.

    Docket: The index to the docket for this action is available electronically on the www.regulations.gov Web site and in hard copy at EPA Region IX, 75 Hawthorne Street, San Francisco, California 94105. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available at either location (e.g., CBI). To inspect the hard copy materials, please schedule an appointment during normal business hours with the contact listed in the FOR FURTHER INFORMATION CONTACT section below.

    FOR FURTHER INFORMATION CONTACT:

    Ashley Graham, EPA Region IX, (415) 972-3877, [email protected].

    SUPPLEMENTARY INFORMATION:

    Throughout this document, the words “we,” “us,” or “our” mean the EPA.

    Table of Contents I. Summary of Action II. Background A. What National Ambient Air Quality Standards are considered in today's rulemaking? B. What is a State implementation plan? C. What is the background for this action? D. What are the applicable provisions for second 10-year maintenance plans for SO2? III. The EPA's Evaluation of the Arizona State Submittal A. Did the State meet the CAA procedural requirements? B. Has the State met the substantive maintenance plan requirements? IV. Proposed Action and Request for Public Comment V. Statutory and Executive Order Reviews I. Summary of Action

    We are proposing to approve the second 10-year maintenance plan for the San Manuel, Arizona SO2 maintenance area (“San Manuel maintenance area”).1

    1 For the definition of the San Manuel maintenance area, see 40 CFR 81.303. The San Manuel maintenance area is located in southern Arizona. The EPA designated Pima and Pinal counties as nonattainment for SO2 on March 3, 1978, for lack of a state recommendation. On April 10, 1979, the EPA approved the State's request that the SO2-affected portion of Pima and Pinal counties be limited to the townships surrounding the primary copper smelter located near San Manuel (44 FR 21261). Townships T8S, R16E; T8S, R17E; T8S, R18E; T9S, R15E; T9S, R16E; T9S, R17E; T9S, R18E; T10S, R15E; T10S, R16E; T10S, R17E; and T11S, R16E comprised the nonattainment area. Townships T10S, R18E; T11S, R17E; T12S, R16E; and T12S, R17E were designated as “cannot be classified.”

    II. Background A. What National Ambient Air Quality Standards are considered in today's rulemaking?

    Sulfur dioxide (SO2) is the pollutant that is the subject of this action. The NAAQS are health-based and welfare-based standards for certain ambient air pollutants. Sulfur dioxide is among the ambient air pollutants for which we have established a health-based standard. Sulfur dioxide causes adverse health effects by reducing lung function, increasing respiratory illness, altering the lung's defenses and aggravating existing cardiovascular disease. Children, the elderly, and people with asthma are the most vulnerable. Sulfur dioxide has a variety of additional impacts, including acidic deposition, damage to crops and vegetation, and corrosion of natural and man-made materials.

    In 1971, the EPA established both short- and long-term primary NAAQS for SO2. The short-term (24-hour) standard of 0.14 parts per million (ppm) was not to be exceeded more than once per year. The long-term standard specifies an annual arithmetic mean not to exceed 0.030 ppm.2 See 40 CFR 50.4.

    2 Secondary NAAQS are promulgated to protect public welfare. The secondary 1971 SO2 NAAQS (3-hour) of 0.5 ppm is not to be exceeded more than once per year. The San Manuel area was not classified nonattainment for the secondary standard, and this action relates only to the primary 1971 SO2 NAAQS.

    In 2010, the EPA revised the primary SO2 NAAQS by establishing a new 1-hour standard of 75 parts per billion. The EPA revoked the existing 1971 primary standards at that time because they would not provide additional public health protection. See 75 FR 35520 (June 22, 2010). Today's action relates only to the revoked 1971 NAAQS. The State has requested that we act on this maintenance plan.3

    3 This action is consistent with the CAA's anti-backsliding provisions. The EPA's final rule on revocation of the 1971 SO2 NAAQS discussed that maintenance SIPs would continue being implemented by states until they are subsumed by new planning and control requirements associated with the revised NAAQS. See 75 FR 35520, 35580 (June 22, 2010).

    B. What is a State implementation plan?

    The Clean Air Act (CAA or “Act”) requires states to attain and maintain ambient air quality equal to or better than the NAAQS. The state's commitments for attaining and maintaining the NAAQS are outlined in the state implementation plan (SIP) for that state. The SIP is a planning document that, when implemented, is designed to ensure the achievement of the NAAQS. The Act requires that SIP revisions be made periodically as necessary to provide continued compliance with the standards.

    SIPs include, among other things, the following: (1) An inventory of emission sources; (2) statutes and regulations adopted by the state legislature and executive agencies; (3) air quality analyses that include demonstrations that adequate controls are in place to meet the NAAQS; and (4) contingency measures to be undertaken if an area fails to attain the standard or make reasonable progress toward attainment by the required date, or a contingency plan if the area fails to maintain the NAAQS once redesignated. The state must make the SIP available for public review and comment, must hold a public hearing or provide the public the opportunity to request a public hearing, and the SIP must be adopted by the state and submitted to us by the governor or her/his designee. The EPA acts on the SIP submittal, thus rendering the rules and regulations federally enforceable. The approved SIP serves as the state's commitment to take actions that will reduce or eliminate air quality problems. Any subsequent revisions to the SIP must go through the formal SIP revision process specified in the Act.

    C. What is the background for this action? 1. When was the nonattainment area established?

    The San Manuel maintenance area is located in southern Arizona. On March 3, 1978, for lack of a state recommendation, the EPA designated Pima and Pinal counties as a primary SO2 nonattainment area based on monitored violations of the primary SO2 NAAQS in the area between 1975 and 1977. See 43 FR 8962 (March 3, 1978). At the request of the Arizona Department of Environmental Quality (ADEQ), the nonattainment area was subsequently reduced to eleven townships in and around San Manuel. See 44 FR 21261 (April 10, 1979). Thus, townships T8S, R16E; T8S, R17E; T8S, R18E; T9S, R15E; T9S, R16E; T9S, R17E; T9S, R18E; T10S, R15E; T10S, R16E; T10S, R17E; and T11S, R16E made up the nonattainment area. Townships T10S, R18E; T11S, R17E; T12S, R16E; and T12S, R17E were classified as “cannot be classified” areas.

    On the date of enactment of the 1990 CAA Amendments, SO2 areas meeting the conditions of section 107(d) of the Act were designated nonattainment for the SO2 NAAQS by operation of law. Section 107(d) describes the processes by which nonattainment areas are designated, including the pre-existing SO2 nonattainment areas. Thus, the San Manuel area remained nonattainment for the primary SO2 NAAQS following enactment of the 1990 CAA Amendments on November 15, 1990.

    2. When was the San Manuel area redesignated for SO2?

    During its operation, the BHP Copper Incorporated (Inc.) copper smelter was the largest SO2 point source in the San Manuel nonattainment area, contributing more than 99.5 percent of total SO2 emissions. The smelter was shut down in 1999, and in January 2005, BHP Copper Inc. notified the ADEQ that the company intended to permanently cease operating the smelter. In March 2005, the ADEQ terminated the permit for the facility, and the smelter stacks were dismantled in January 2007. Closure of the smelter reduced emissions and resultant ambient SO2 concentrations. On January 18, 2008, the EPA finalized approval of the maintenance plan and redesignation request for the San Manuel area, effective March 18, 2008 (see 73 FR 3396).

    3. What is the current status of the area?

    The remaining SO2 point sources in the San Manuel maintenance area consist of the Oracle Compressor Station, the Bonito Quarry, Decorative Rock Sales, Saddlebrooke Ranch Water Reclamation Plant, and San Manuel schools, which have a combined Potential to Emit (PTE) of 4.54 tons per year (tpy) SO2 (see Table 1).

    Table 1—Facility-Wide PTE for Sources Operating in the San Manuel Maintenance Area Facility PTE
  • (tpy SO2)
  • Oracle Compressor Station 1.90 Bonito Quarry 0.80 Biosphere 2 0.71 Decorative Rock Sales 0.70 Saddlebrooke Ranch Water Reclamation Plant 0.40 San Manuel schools 0.03 Total 4.54

    Currently, no ambient SO2 monitors operate in the San Manuel area. However, we do not expect the cumulative impact of the sources in San Manuel to cause a violation of the NAAQS because the area's emissions are sufficiently low. Monitoring data collected between 1975 and 2007 indicate that the primary SO2 NAAQS had not been violated since 1979, when the smelter was still in operation and emitted more than 200,000 tons of SO2. No new sources of SO2 of the magnitude of the BHP Copper Inc. smelter have located in the area since our redesignation of the area to attainment in 2008.

    D. What are the applicable provisions for second 10-year maintenance plans for SO2? 1. What are the statutory provisions?

    Section 175A of the CAA provides the general framework for maintenance plans. The initial 10-year maintenance plan must provide for maintenance of the NAAQS for at least 10 years after redesignation, including any additional control measures as may be necessary to ensure such maintenance. In addition, maintenance plans are to contain contingency provisions necessary to assure the prompt correction of a violation of the NAAQS that occurs after redesignation. The contingency measures must include, at a minimum, a requirement that the state will implement all control measures contained in the nonattainment SIP prior to redesignation.

    Section 175A(b) of the CAA requires states to submit a subsequent maintenance plan revision (second 10-year maintenance plan) eight years after redesignation. The Act requires only that this second 10-year maintenance plan maintain the applicable NAAQS for 10 years after the expiration of the first 10-year maintenance plan. Beyond these provisions, section 175A of the CAA does not define the content of a second 10-year maintenance plan.

    2. What general EPA guidance applies to SO2 maintenance plans?

    The primary guidance on maintenance plans and redesignation requests is a September 4, 1992, memo from John Calcagni, titled “Procedures for Processing Requests to Redesignate Areas to Attainment” (“Calcagni Memo”). Specific guidance on SO2 redesignations also appears in a January 26, 1995, memo from Sally L. Shaver, titled “Attainment Determination Policy for Sulfur Dioxide Nonattainment Areas” (“Shaver Memo”).

    While the Calcagni Memo primarily addresses redesignations, we find it is appropriate to apply the Calcagni Memo to second 10-year maintenance plans for areas that were redesignated in accordance with the memo and continue to experience similar conditions to those at the time of redesignation. For areas to qualify for redesignation to attainment, this policy recommends that the maintenance plan address otherwise applicable provisions, and include:

    (1) An attainment emissions inventory that identifies the level of emissions in the area that is sufficient to attain the NAAQS;

    (2) a maintenance demonstration showing that future emissions of the pollutant or its precursors will not exceed the level of the attainment inventory, or modeling to show that the future mix of sources and emission rates will not cause a violation of the NAAQS;

    (3) provisions for continued operation of air quality monitors to provide verification of the attainment status of the area;

    (4) verification that the state has the legal authority to implement and enforce all measures necessary to maintain the NAAQS and information on how the state will track the progress of the maintenance plan; and

    (5) contingency provisions, as necessary, to promptly correct any violation of the NAAQS that occurs after redesignation of the area.

    III. The EPA's Evaluation of the Arizona State Submittal A. Did the State meet the CAA procedural requirements?

    On April 21, 2017, the ADEQ submitted to the EPA the “San Manuel Sulfur Dioxide Maintenance Plan Renewal, 1971 Sulfur Dioxide National Ambient Air Quality Standards” (“2017 San Manuel Second Maintenance Plan”). The State verified that it had adhered to its SIP adoption procedures in Appendix B to the 2017 San Manuel Second Maintenance Plan, which includes the notice of public hearing; the agenda for the April 20, 2017 public hearing; the sign-in sheet; the public hearing officer certification and transcript of the hearing; and the State's responsiveness summary.

    The EPA reviewed the 2017 San Manuel Second Maintenance Plan for completeness and found the plan to be complete on September 14, 2017. See 40 CFR part 51, Appendix V, for the EPA's completeness criteria, which must be satisfied before formal review of the SIP.

    B. Has the State met the substantive maintenance plan requirements? 1. Has the State met the requirements for second 10-year maintenance plans?

    The 2017 San Manuel Second Maintenance Plan covers the second 10 years of the 20-year maintenance period, as required by Section 175A(b) of the CAA. As discussed below, the State has addressed the recommendations in the Calcagni Memo for emissions inventories, a maintenance demonstration, provisions for continued operation of air quality monitors, a commitment to track continued maintenance, and contingency provisions. We provide more details on each requirement and how the 2017 San Manuel Second Maintenance Plan meets each requirement in the following sections.

    a. Attainment Emissions Inventory

    On June 7, 2007, the ADEQ submitted to the EPA its “Final Arizona State Implementation Plan Revision, San Manuel Sulfur Dioxide Nonattainment Area” and its request for redesignation to attainment (“2007 San Manuel Maintenance Plan”). The State's June 2007 submittal also requested that the EPA withdraw the June 2002 “Final San Manuel Sulfur Dioxide Nonattainment Area State Implementation and Maintenance Plan.” The June 2007 submittal updated the SIP to account for the closure of the dominant source of SO2 emissions, the BHP Copper Inc. copper smelter.

    The ADEQ's 2007 San Manuel Maintenance Plan included updated emissions inventories for sources in the San Manuel maintenance area for 1998, a year in which the smelter was operating and the area was attaining the SO2 standards, and 2005, a year in which the smelter was closed and the area was attaining the SO2 standards. In the 2017 San Manuel Second Maintenance Plan, the ADEQ relied on the 2005 emissions inventory to demonstrate NAAQS attainment, and included the 1998 emissions inventory to highlight the difference in area emissions during a year when the smelter was operating (1998) and a year when the smelter had been shut down (2005). In 1998, emissions in the San Manuel maintenance area were approximately 10,440 tons; in 2005, emissions were approximately 27.6 tons.

    b. Maintenance Demonstration

    The Calcagni Memo recommends that a state demonstrate maintenance of the NAAQS by either showing that future emissions of a pollutant or its precursors will not exceed the level of the attainment inventory, or by modeling to show that the future mix of sources and emission rates will not cause a violation of the NAAQS.

    The 2017 San Manuel Second Maintenance Plan demonstrates continued maintenance of the 1971 primary SO2 NAAQS, in part, by showing that future emissions of SO2 will not exceed the level of the attainment inventory. The plan includes emissions inventories representing current emissions for 2014 for sources in the San Manuel maintenance area; projected emissions for two interim years during the second maintenance period (2019 and 2023); and projected emissions for the tenth year of the second maintenance period (2028).

    The emissions inventories in the 2017 San Manuel Second Maintenance Plan (see Section 3 and technical support document in Appendix A) include estimates of SO2 from all relevant source categories, which the plan divides among point, mobile (nonroad and on-road), and area (non-point) source categories. The ADEQ used Pinal County's point source database to identify point sources in the Pinal County portion of the maintenance area. The Pinal County portion of the San Manuel maintenance area contains six point sources (i.e., Oracle Compressor Station, Bonito Quarry, Biosphere 2, Decorative Rock Sales, Saddlebrooke Ranch Water Reclamation Plant, and San Manuel schools), which together emitted 3.80 tons of SO2 in 2014. The combined PTE of the point sources is 4.54 tpy SO2. The 2017 San Manuel Second Maintenance Plan includes a description of current facility types, permitted emissions limits, and emissions calculation methods for Pinal County sources. There are no point sources in the Pima County portion of the maintenance area.

    Mobile and area source emissions in the ADEQ's 2014 and subsequent year inventories were derived from the EPA's National Emissions Inventory Version 1 and the EPA's Motor Vehicle Emission Simulator model. In the 2014 base year, the ADEQ estimated that area sources contributed 2.58 tons of SO2, the on-road mobile source sector contributed 1.41 tons of SO2, and the non-road mobile source sector contributed 1.14 tons of SO2 in the San Manuel maintenance area (see Table 2).4 Future year SO2 emissions for the on-road mobile source sector are projected to decline due to changes in vehicle emissions standards, whereas area source emissions are expected to increase due to projected population growth in the San Manuel maintenance area. The ADEQ projected that in 2028, area sources will contribute 3.49 tons of SO2, on-road mobile sources will contribute 0.80 tons of SO2, and non-road mobile sources will contribute 1.65 tons of SO2 (see Table 2).

    4 During the EPA's review of the ADEQ's submittal, we identified several inconsistencies in the 2014 population and land area values reported. However, the inconsistencies have only a minor impact, or in some cases no impact, on the emissions estimates derived. In cases where discrepancies did have a minor impact on emissions estimates, the EPA found that they led to an overestimate in SO2 emissions and thus do not alter the ADEQ's findings that emissions through 2028 are projected to be well below the 2005 attainment inventory emissions, and that emissions estimates demonstrate continued attainment of the 1971 SO2 NAAQS in the San Manuel maintenance area. See memorandum dated June 21, 2017, from Ashley Graham, EPA Region 9, Air Planning Office, to docket EPA-R09-OAR-2017-0377, “Technical note regarding emissions inventories in Arizona's San Manuel SO2 2nd 10-year maintenance plan.”

    Table 2—San Manuel Maintenance Area SO2 Emissions Summary 2005 2014 2019 2023 2028 Area 27 2.58 2.86 3.12 3.49 On-road Mobile 1.41 0.72 0.75 0.80 Non-road Mobile 1.14 1.30 1.45 1.65 Point 0.6 3.80 4.54 4.54 4.54 Total 27.6 8.92 9.43 9.86 10.48

    Based on our review of the emissions inventories in the 2017 San Manuel Second Maintenance Plan, including the supporting information in Appendix A, we conclude that the inventories are complete and consistent with applicable CAA provisions and the Calcagni Memo.

    As discussed above, no new sources of SO2 that are similar in size to the BHP Copper Inc. copper smelter have located in the area since our redesignation of the area to attainment in 2008. The submittal shows that the current (2014) and maximum expected level of emissions in the San Manuel SO2 maintenance area through the end of the maintenance period (2028) are projected to be well below both the 1998 and 2005 attainment inventories. In 2005, emissions were 27.6 tons of SO2; 2014 emissions were 8.92 tons of SO2; and 2028 emissions are projected to be 10.48 tons of SO2.5

    5See footnote 4.

    The Calcagni Memo also specifies that projected emissions should reflect permanent, enforceable measures. Emission reductions from source shutdowns are considered permanent and enforceable if the shutdowns have been reflected in the SIP and all applicable permits have been modified accordingly. The ADEQ terminated the permit for the BHP Copper Inc. copper smelter in March 2005, and the smelter stacks were dismantled in January 2007. The smelting facility cannot reopen without submitting New Source Review (NSR) and Title V (Part 70) permit applications to the ADEQ. We therefore propose to conclude that the State has demonstrated that the 1971 SO2 NAAQS is adequately protected due to permanent and enforceable measures.

    c. Air Quality Monitoring

    The Calcagni Memo recommends that once an area has been redesignated from nonattainment to maintenance, the state should continue to operate the appropriate air quality monitoring network to allow for continued verification of the attainment status of the area. However, following five years of clean data, SO2 monitors were removed from the San Manuel area in accordance with 40 CFR 58.14(c)(3). Monitoring data collected during 1997 through 1999, while the smelter was still operating, indicate that maximum ambient SO2 concentrations were less than 55 percent of the 3-hour NAAQS, less than 59 percent of the 24-hour NAAQS, and less than 33 percent of the annual NAAQS. Closure of the smelter in 1999 reduced emissions and resultant ambient SO2 concentrations. Monitoring data for 2002 through 2007 indicate that maximum ambient SO2 concentrations were two percent of the 3-hour NAAQS, less than three percent of the 24-hour NAAQS, and less than seven percent of the annual NAAQS.

    The ADEQ does not anticipate a substantial increase in point source emissions in future years and commits to resume monitoring before any major source of SO2 commences to operate in the San Manuel maintenance area. See 2017 San Manuel Second Maintenance Plan, p. 41. Since there are no remaining sources of SO2 emissions of the magnitude of BHP Copper Inc., the projected future emissions through 2028 are sufficiently low relative to emissions during the 1998 and 2005 attainment years, and we do not anticipate any reason the 1971 SO2 NAAQS would be violated, we conclude that future monitoring per the recommendations in the Calcagni Memo is not required and that the State's commitment to resume monitoring before any major source of SO2 commences to operate in the San Manuel area satisfactorily addresses the CAA provisions.

    d. Verification of Continued Attainment

    The Calcagni Memo recommends that states ensure that they have the legal authority to implement and enforce all measures necessary to maintain the NAAQS, and that they specify how they will track progress of the maintenance plan in their submittal. One option for tracking maintenance would be through periodic updates to the emissions inventory.

    The 2017 San Manuel Second Maintenance Plan submittal notes that the ADEQ, the Pima County Department of Environmental Quality (PDEQ), and the Pinal County Air Quality Control District (PCAQCD) have permitting and planning jurisdiction in the San Manuel SO2 maintenance area and general authority to implement and enforce all measures to maintain the 1971 SO2 NAAQS per Arizona Revised Statutes (A.R.S.) §§ 49-104, 49-404, 49-422, and 49-424.

    In the 2017 San Manuel Second Maintenance Plan, the State commits to track maintenance of the SO2 NAAQS in the San Manuel area through updates to the annual statewide emissions inventory and review of permit applications for SO2 sources. See 2017 San Manuel Second Maintenance Plan, p. 42. Permitted sources are subject to monitoring, reporting, and certification procedures contained in Arizona Administrative Code (A.A.C) R18-2-306 and R18-2-309. The ADEQ has authority to monitor and ensure compliance with all applicable rules and permit conditions for sources in its jurisdiction, pursuant to A.R.S. § 49-101. The PCAQCD and the PDEQ have authority for sources under their jurisdiction under A.R.S. § 49-402. We find that the State's continued commitment to track maintenance of the SO2 NAAQS through updates to the emissions inventory and the State's prevention of significant deterioration (PSD) permitting programs are sufficient to assure that the San Manuel area will maintain the NAAQS.

    e. Contingency Plan

    Section 175A(d) of the CAA requires that maintenance plans contain contingency provisions deemed necessary by the Administrator to assure that the state will promptly correct any violation of the standard that occurs after the redesignation of the area as an attainment area. The Calcagni Memo provides additional guidance, noting that although a state is not required to have fully-adopted contingency measures that will take effect without further action by the state for the maintenance plan to be approved, the maintenance plan should ensure that the contingency measures are adopted expediently once they are triggered. Specifically, the maintenance plan should clearly identify the measures to be adopted, include a schedule and procedure for adoption and implementation of the measures, and contain a specific time limit for action by the state. In addition, the state should identify specific indicators or triggers, that will be used to determine when the contingency measures need to be implemented.

    Since there are no remaining sources of SO2 emissions of the magnitude of the BHP Copper Inc. copper smelter, the primary cause of any future violations of the 1971 SO2 NAAQS in the San Manuel area would be from new or modified point sources. The ADEQ and the PDEQ have PSD permitting programs (i.e., A.A.C. R18-2-406 and Pima County Code 17.16.590) that were established to preserve the air quality in areas where ambient standards have been met. The PCAQCD's PSD program is under the ADEQ's jurisdiction. The ADEQ has jurisdiction over all refineries, copper smelters, coal-fired power plants, cement plants, and portable sources that will operate in multiple counties (see A.R.S. 49-402). These sources must obtain permits from the ADEQ. The State's updated PSD program was approved into the SIP on November 2, 2015 (80 FR 67319). Although the PDEQ's PSD program is not SIP-approved, the federal PSD permitting program at 40 CFR 52.21 was delegated to the PDEQ effective April 14, 1994. The PSD programs apply to any major source or major modification in the San Manuel area. Should a new facility be constructed in the San Manuel area or an existing facility want to upgrade or increase SO2 emissions, the facility would be subject to PSD as recommended in the Calcagni Memo.

    Furthermore, the ADEQ anticipates no relaxation of any implemented control measures used to attain and maintain the NAAQS, and commits to submit to us any changes to rules or emission limits applicable to SO2 sources, as well as committing to maintain the necessary resources to promptly correct any violations of the provisions contained in the 2017 San Manuel Second Maintenance Plan.

    Upon review of the contingency plan summarized above, we find that the ADEQ has established a contingency plan for the San Manuel area that satisfies the requirements of CAA section 175A(d) and the Calcagni Memo.

    2. Other CAA Requirements a. Transportation and General Conformity

    As discussed above, section 175A of the CAA sets forth the statutory requirements for maintenance plans, and the Calcagni and Shaver memos cited above contain specific EPA guidance. Additional maintenance plan elements not covered by the Calcagni Memo are the transportation and general conformity provisions.

    Conformity is required under section 176(c) of the CAA to ensure that federal actions are consistent with (“conform to”) the purpose of the SIP. Conformity to the purpose of the SIP means that federal activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the relevant NAAQS or interim reductions and milestones. Conformity applies to areas that are designated nonattainment and to maintenance areas. The requirement to determine conformity applies to transportation plans, programs, and projects developed, funded, or approved under Title 23 U.S.C. and the Federal Transit Act (“transportation conformity”), as well as to other federally supported or funded projects (“general conformity”).

    Transportation conformity applies to projects that require Federal Highway Administration or Federal Transit Administration funding. 40 CFR part 93 describes the requirements for federal actions related to transportation plans, programs, and projects to conform to the purposes of the SIP. Because the EPA does not consider SO2 a transportation-related criteria pollutant,6 only the requirements related to general conformity apply to the San Manuel area.

    6See 40 CFR 93.102(b)(1).

    Section 176(c)(4) of the CAA establishes the framework for general conformity. Besides ensuring that federal actions not covered by the transportation conformity rule will not interfere with the SIP, the general conformity regulations encourage consultation between the federal agency and the state or local air pollution control agencies before and during the environmental review process; public notification of and access to federal agency conformity determinations; and air quality review of individual federal actions.

    Section 176(c) of the CAA requires states to revise their SIPs to establish criteria and procedures to ensure that federally supported or funded projects in nonattainment and maintenance areas “conform” to the air quality planning goals in the applicable SIP. SIP revisions intended to meet the conformity requirements in section 176(c) are referred to as “conformity SIPs.” In 2005, Congress amended section 176(c). Under the amended conformity provisions, states are no longer required to submit conformity SIPs for general conformity, and the conformity SIP requirements for transportation conformity have been reduced to include only those relating to consultation, enforcement, and enforceability. See CAA section 176(c)(4)(E).

    The EPA believes it is reasonable to interpret the conformity SIP requirements as not applying for purposes of a redesignation request under section 107(d)(3)(E)(v) because state conformity rules are still required after redesignation and federal conformity rules apply where state rules have not been approved. See Wall v. EPA, 265 F. 3d 426 (6th Cir. 2001). Because the San Manuel area has already been redesignated for this standard, we believe it is reasonable to apply the interpretation of conformity SIP requirements as not applying for the purposes of redesignation to the approval of the second 10-year maintenance plan.

    Criteria for making determinations and provisions for general conformity are contained in A.A.C. R18-2-1438. Arizona has an approved general conformity SIP.7

    7See 64 FR 19916 (April 23, 1999).

    The ADEQ commits in the 2017 San Manuel Second Maintenance Plan to review and comment, as appropriate, on any federal agency draft general conformity determination it receives consistent with 40 CFR 93.155 for any federal plans or actions in this planning area, although none are currently planned for the area. See 2017 San Manuel Second Maintenance Plan, p. 18.

    IV. Proposed Action and Request for Public Comment

    We propose to approve the second 10-year SO2 maintenance plan for the San Manuel area in Arizona under sections 110 and 175A of the CAA. As authorized in section 110(k)(3) of the Act, the EPA is proposing to approve the submitted SIP because we believe it fulfills all relevant requirements.

    We will accept comments from the public on this proposal for 30 days from the date of publication of this notice, and we will consider any relevant comments in taking final action on today's proposal.

    V. Statutory and Executive Order Reviews

    Under the Clean Air Act, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. See 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state choices, provided that they meet the criteria of the 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 the EPA with the discretionary authority to address, as appropriate, disproportionate human health or environmental effects, using practicable and legally permissible methods, under Executive Order 12898 (59 FR 7629, February 16, 1994).

    List of Subjects in 40 CFR Part 52

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

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: September 26, 2017. Alexis Strauss, Acting Regional Administrator, EPA Region IX.
    [FR Doc. 2017-21378 Filed 10-4-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2015-0832; FRL-9968-21-Region 6] Approval and Promulgation of Implementation Plans; Texas; Reasonably Available Control Technology for Volatile Organic Compound Emissions in the Dallas-Fort Worth Ozone Nonattainment Area AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    Pursuant to the Federal Clean Air Act (CAA or ACT), the Environmental Protection Agency (EPA) is proposing approval of revisions to the State Implementation Plan (SIP) submitted by the State of Texas through the Texas Commission on Environmental Quality (TCEQ) on July 10, 2015. The Texas SIP submission revises rules for control of volatile organic compounds (VOC) to assist the Dallas-Fort Worth (DFW) moderate nonattainment area (NAA) in attaining the 2008 eight-hour ozone (O3) National Ambient Air Quality Standards (NAAQS). The submission includes Wise County, a county added as part of the 2008 ozone moderate NAA area. We are proposing to approve the submitted rules as part of the DFW 2008 ozone SIP and as meeting Reasonably Available Control Technology (RACT). We are also proposing to approve negative declarations for certain source categories subject to RACT in the DFW moderate NAA.

    DATES:

    Written comments must be received on or before November 6, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket No. EPA-R06-OAR-2015-0832, at http://www.regulations.gov or via email to [email protected] 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, please contact Mr. Robert M. Todd, (214) 665-2156, [email protected] 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.

    Docket: The index to the docket for this action is available electronically at www.regulations.gov and in hard copy at EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas. While all documents in the docket are listed in the index, some information may be publicly available only at the hard copy location (e.g., copyrighted material), and some may not be publicly available at either location (e.g., CBI).

    FOR FURTHER INFORMATION CONTACT:

    Robert M. Todd, (214) 665-2156, [email protected] To inspect the hard copy materials, please contact Mr. Todd or Mr. Bill Deese (214) 665-7253.

    SUPPLEMENTARY INFORMATION:

    Throughout this document “we,” “us,” or “our” means the EPA.

    Table of Contents I. Background on Dallas-Fort Worth (DFW) 2008 Eight-Hour O3 Nonattainment Area (NAA) Designation and Classification II. Background on Chapter 115 Proposed Rule Revisions III. Evaluation of Texas' Proposed Chapter 115 Volatile Organic Compound (VOC) Control SIP IV. Reasonably Achievable Control Technology in the DFW NAA V. The EPA's Proposed Action VI. Incorporation by Reference VII. Statutory and Executive Order Reviews I. Background on DFW 2008 Eight-Hour O3 NAA Designation and Classification

    On March 27, 2008, the EPA revised the primary and secondary O3 standard to a level of 75 parts per billion (ppb). Promulgation of a NAAQS triggers a requirement for the EPA to designate areas as nonattainment, attainment, or unclassifiable, and to classify the NAAs at the time of designation.

    On May 21, 2012, the EPA established initial area designations for most areas of the country with respect to the 2008 primary and secondary eight-hour O3 NAAQS. The EPA published two rules addressing final implementation 1 and air quality designations.2 The implementation rule established classifications, associated attainment deadlines, and revoked the 1997 O3 standards for transportation conformity purposes. The designation rule finalized the NAA boundaries for areas that did not meet the 75 ppb standard. Furthermore, the finalized boundaries were classified according to the severity of their O3 air quality problems as determined by each area's design value.3 The O3 classification categories were defined as Marginal, Moderate, Serious, Severe, or Extreme.

    1 See 77 FR 30160 “Implementation of the 2008 National Ambient Air Quality Standards for Ozone: Nonattainment Area Classifications Approach, Attainment Deadlines and Revocation of the 1997 Ozone Standards for Transportation Conformity Purposes.”

    2 See 77 FR 30088, “Air Quality Designations for the 2008 Ozone National Ambient Air Quality Standards.”

    3 The air quality design value for the 8-hour ozone NAAQS is the three-year average of the annual fourth highest daily maximum eight-hour average ozone concentration. See 40 CFR part 50, appendix I.

    Effective July 20, 2012, the DFW 2008 eight-hour O3 NAA was classified as moderate, consisting of ten counties: Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, Tarrant, and Wise County. With the exception of Wise County, all of these counties were designated as nonattainment with a serious classification under the 1997 O3 standard. Although the DFW NAA was most recently classified as moderate, the first nine counties are still required to meet their more stringent serious classification requirements previously designated under the 1997 O3 standard. Wise County, however, is required to meet the moderate classification requirements since it is newly designated as nonattainment for the DFW area.4 Previously, Wise County was classified as an attainment area and was exempt from the O3 NAA requirements under the 1997 eight-hour O3 standard.

    4 In pursuant to the United States Court of Appeals for the District of Columbia Circuit ruling in favor of the EPA's inclusion of Wise County in the DFW 2008 eight-hour ozone nonattainment area as lawful (see USCA Case #12-1309).

    States are required to adopt control measures that implement Reasonably Available Control Technology (RACT) on major sources of VOC emissions. The major source emission threshold level for the first nine counties (Collin, Dallas, Denton, Ellis, Johnson, Kaufman, Parker, Rockwall, and Tarrant) remains at a potential to emit (PTE) of 50 tons per year (tpy) VOC based on its serious classification under the 1997 standard. The major source threshold in Wise County is 100 tpy VOC based on the moderate classification requirement.

    II. Background on Chapter 115 Proposed Rule Revisions

    On July 10, 2015 the EPA received the TCEQ's submitted rule revisions to 30 TAC, Chapter 115 “Control of Air Pollution from Volatile Organic Compounds.” The State revised Chapter 115 for all major sources of VOC in the 2008 DFW O3 NAA for the implementation of RACT requirements in all counties as required by CAA, section 172(c)(1) and section 182(f). The state previously adopted Chapter 115 VOC rules for sources in the DFW area as part of the SIP submitted on May 30, 2007, for the 1997 eight-hour O3 standard. The EPA approved those rules on January 14, 2009.5 The scope of the Chapter 115 rule revisions implement the following: 6

    5 See 74 FR 1903.

    6 This is not an exhaustive list of changes to the 30 TAC Chapter 115 rules. For a complete summary of all Chapter 115 sections associated with this SIP revision, please refer to the Technical Support Document (TSD), a copy of which is posted in the docket of this proposal.

    • Add VOC emission limits and control requirements to major sources in newly designated Wise County.

    • Amend VOC emissions control requirements in the DFW NAA;

    • Amend testing, monitoring and recordkeeping requirements for VOC sources in the DFW NAA;

    • Amend exemptions from VOC control requirements in the DFW NAA;

    • Amend compliance schedules for affected sources in the DFW NAA, including adding new compliance date of January, 2017 for newly affected sources in Wise County;

    • Add definitions to reflect the change in attainment status of Wise County;

    A complete summary along with all non-substantive changes pertaining to reformatting, restructuring, reorganizing, and administrative revisions will be referenced in the Technical Support Document (TSD), “2008 8-Hour Ozone Nonattainment Area VOC SIP Demonstration and Reasonably Available Control Technology for Volatile Organic Compounds Sources in the Dallas-Fort Worth 2008 8-Hour Ozone Nonattainment Area” a copy of which is posted in the docket of this proposal.

    Table 1 contains a list of the new sections of Chapter 115 with adopted subchapters, divisions, and key sections associated with the July 10, 2015 DFW 2008 eight-hour O3 SIP submittal.

    Table 1—Proposed New Sections of 30 TAC Chapter 115 To Be Added to the Texas SIP Description Section Description and Sections of 30 TAC Chapter 115 Proposed New Section Subchapter E: Division 1 §§ 115.410, 115.411.

    Table 2 contains a list of the sections of Chapter 115 with adopted subchapters, divisions, and key sections with modifications associated with the July 10, 2015 DFW 2008 eight-hour O3 SIP submittal.

    Table 2—Proposed Amended Sections of 30 TAC Chapter 115 in the Texas SIP Description Section Description and Sections of 30 TAC Chapter 115 Proposed Modified Sections Subchapter A: Definitions § 115.10. Subchapter B: Division 1 §§ 115.110-115.112, 115.114, 115.115, 115.117-115.119. Subchapter B: Division 2 §§ 115.121, 115.122. 115.125-115.127, 115.129. Subchapter B: Division 3 § 115.139. Subchapter C: Division 1 § 115.215, § 115.219. Subchapter C: Division 2 § 115.229. Subchapter C: Division 3 § 115.239. Subchapter D: Division 3 § 115.359. Subchapter E: Division 1 §§ 115.415, 115.416, 115.419. Subchapter E: Division 2 §§ 115.420-115.423, 115.425-115.427, 115.429. Subchapter E: Division 4 §§ 115.440-115.442, 115.446, 115.449. Subchapter E: Division 5 §§ 115.450, 115.451, 115.453, 115.459. Subchapter E: Division 6 §§ 115.460, 115.461, 115.469. Subchapter E: Division 7 §§ 115.471, 115.473, 115.479. Subchapter F: Division 1 § 115.519.

    Table 3 contains a section of Chapter 115 proposed for repeal from the SIP by the TCEQ, along with the relevant identifying subchapter and division.

    Table 3—Proposed Sections of 30 TAC Chapter 115 To Be Deleted From the Texas SIP Description Section Description and Sections of 30 TAC Chapter 115 Proposed Repealed Section Subchapter E: Division 1 § 115.417 7

    7 The content of § 115.417 detailed exemptions to Chapter 115 requirements. These exemptions were moved to the new § 115.411. This action reorders existing, approvable exemptions and does not alter the expected VOC control levels in the DFW NAA.

    III. Evaluation of Texas' Proposed Chapter 115 VOC Control SIP

    Previous Chapter 115 modifications addressed TCEQ's plan to comply with the 1997 eight-hour O3 attainment standard and RACT requirements for 9 counties in the DFW area and were approved into the state's SIP on January 14, 2009 (74 FR 1903). We are not proposing to alter that determination. As described above, the DFW NAA for the 2008 O3 standard now includes Wise County along with the other 9 counties in the area.

    In today's action, we are proposing to approve revisions for TCEQ rule changes as part of the DFW moderate NAA area that would extend these same control requirements to sources in Wise County. The TCEQ provided information addressing the applicability of Chapter 115, Control of Air Pollution from Volatile Organic Compounds Regulations to sources with emissions equal to or greater than 100 tpy of VOCs in Wise County.

    A complete evaluation of the TCEQ rules changes can be found in the TSD to this proposal that is included in the official docket. The changes TCEQ made includes ministerial changes as well as substantive ones such as the addition of control requirements that apply to sources in Wise County.

    IV. Reasonably Achievable Control Technology in the DFW NAA

    As noted above, the TCEQ's July 12, 2015, submission included a RACT demonstration that VOC control measures in 30 TAC Chapter 115 applied to major sources in the DFW moderate NNA, including Wise County. The TCEQ also provided information addressing the applicability of Control Technology Guidelines (CTG) and Alternative Control Technology (ACT) documents for VOC sources with emissions equal to or greater than 100 tpy of VOCs in Wise County. The TCEQ also provided negative declaration information for certain of these source categories in Wise County. Furthermore, the TCEQ demonstrated that any major source in the DFW NNA not covered by a CTG or ACT is controlled and meets RACT and that the negative declarations provided by the TCEQ and addressed in detail in the TSD to this proposal, are approvable.

    The requirements for RACT are included in 182(b)(2) of the Act and further explained in our “SIP Requirements Rule” of March 6, 2015 (80 FR 12279), which explains States should refer to existing CTGs and ACT documents as well as all relevant technical information including recent technical information received during the public comment period to determine if RACT is being applied. States may conclude, in some cases, that sources already addressed by RACT determinations to meet the 1-Hour and/or the 1997 8-Hour O3 NAAQS do not need to implement additional controls to meet the 2008 ozone NAAQS RACT requirement. See 40 CFR 51.1112. The EPA has previously found that Texas VOC rules meet RACT for the 1-Hour and the 1997 8-Hour standards. See 74 FR 1903, January 14, 2009 and 80 FR 16291, March 27, 2015.

    We have reviewed the emission limitations and control requirements detailed in 30 TAC Chapter 115 and compared them against EPA's CTG documents and guidelines. Based on our review and evaluation, we found the emission limitations and control requirements in 30 TAC Chapter 115 apply to the source categories covered by our guidance and CTG documents, and that the corresponding sections in 30 TAC Chapter 115 provide for the lowest emission limitation through application of control techniques that are reasonably available considering technological and economic feasibility. Also, the TCEQ demonstrated that any major source in the DFW NNA not covered by a CTG or ACT is controlled and meets RACT.

    Based on the above evaluation, we are proposing to determine that the applicable emission limitations and control requirements in 30 TAC Chapter 115 represent RACT under the 2008 8-Hour ozone NAAQS.

    A complete evaluation of how the TCEQ rules meet the requirements of the EPAs CTGs, ACTs and RACT requirements can be found in the TSD to this proposal that is included in the official docket. In particular, see pages 13-21 of the TSD.

    V. The EPA's Proposed Action

    The EPA is proposing to approve the submitted TAC Chapter 115 SIP revisions into the SIP because these revisions will assist the DFW area reach attainment under the 2008 8-Hour O3 NAAQS by reducing VOC emissions for affected sources in the DFW area. The EPA is proposing to approve all revisions for the amended, repealed, and new sections of Chapter 115 that are being submitted for inclusion into the SIP. The EPA is also making a determination that the TCEQ rules included in these revisions will meet the RACT requirements of the CAA § 182(b) for the 2008 O3 NAAQS. We are also making a determination that the negative declarations provided by the TCEQ are approvable.

    VI. Incorporation by Reference

    In this action, the EPA is proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with the requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference revisions to the Texas regulations as described in the Proposed Action section above. The EPA has made, and will continue to make, these documents generally available electronically through www.regulations.gov and/or in hard copy at the EPA Region 6 office.

    VII. 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, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this action merely proposes to approve 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), 13563 (76 FR 3821, January 21, 2011) and 13771 (82 FR 9339, February 2, 2017);

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

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

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

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

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

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

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

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

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

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Ozone, Reporting and recordkeeping requirements, Volatile organic compounds.

    Dated: September 29, 2017. Samuel Coleman, Acting Regional Administrator, Region 6.
    [FR Doc. 2017-21491 Filed 10-4-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52 and 70 [EPA-R07-OAR-2017-0485; FRL 9968-77-Region 7] Approval of Nebraska's Air Quality Implementation Plan, Operating Permits Program, and 112(l) Program; Revision to Nebraska Administrative Code AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve revisions to the State Implementation Plan (SIP), Operating Permits Program, and 112(l) program submitted on July 14, 2014, by the State of Nebraska. This action amends the SIP to revise two chapters, “Definitions” and “Operating Permit Modifications; Reopening for Cause”. Specifically, these revisions incorporate by reference the list of organic compounds exempt from the definition of volatile organic compound (VOC) found in the Code of Federal Regulations; notification requirements for the operating permit program are being amended to be consistent with the Federal operating permit program requirements; the definition of “solid waste” is being revised by the state, however, because the state's definition is inconsistent with the Federal definition, EPA is not approving this definition into the SIP. Finally, the state is extending the process of “off-permit changes” to Class I operating permits. Additional grammatical and editorial changes are being made in this revision. Approval of these revisions will not impact air quality, ensures consistency between the State and Federally-approved rules, and ensures Federal enforceability of the State's rules. In the “Rules and Regulations” section of this Federal Register, we are approving these two chapters as a direct final rule without a prior proposed rule. If we receive no adverse comment, we will not take further action on this proposed rule.

    DATES:

    Comments must be received by November 6, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R07-OAR-2017-0485, 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:

    Greg Crable, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7391, or by email at [email protected].

    SUPPLEMENTARY INFORMATION:

    Nebraska's July 14, 2014, submittal included revisions to Chapters 1, 4, 15, 18, 20, 28 and 34 of title 129. In previous direct final actions, EPA approved revisions to chapter 4 “Ambient Air Quality Standards” on October 11, 2016 (81 FR 70023), and chapter 34 “Emission Sources; Testing; Monitoring” on October 7, 2016 (81 FR 69693).

    This document proposes to take action on chapter 1, “Definitions”, and chapter 15, “Operating Permit Modifications; Reopening for Cause”. Revisions to chapter 1 “Definitions” involve various grammatical and numerical edits. In addition, section 160 of chapter 1 contains a definition of VOC that provides exceptions to the definition based upon a list of organic compounds, which have been determined to have negligible photochemical reactivity. The revision removes the list of VOC exceptions at section 160, and instead references the list in the Code of Federal Regulations. Revisions to title 129, chapter 1, section 139 change the notification requirements for “Section 502(b)(10) changes” making it consistent with the Federal operating permit program. And finally, Nebraska's requested revisions to the chapter 1 definition of “solid waste” are inconsistent with the Federal definition. For that reason, EPA is not approving the State's revised “solid waste” definition into the SIP.

    The proposed part 70 revision to chapter 15 extends “off-permit changes”, to Class I and II operating permits as allowed under the Federal program. Additional changes ensure that chapter 15 conforms to the applicable Federal regulations, including updating section 007, which allows changes in a permitted facility without a permit revision if certain criteria is met. Finally, revisions to chapter 15 shorten notice periods under certain circumstances when changing Class I and II operating permits, and are making various grammatical revisions for clarity purposes.

    Chapter 18 is not a part of the State's approved SIP, and will be addressed through a separate future rulemaking process under the CAA section 111(d). EPA has elected to address changes to chapter 20 with a future SIP revision. Chapter 28 is not a part of the State's approved SIP and therefore, no action is required by the EPA.

    We have published a direct final rule approving the State's SIP revision(s) in the “Rules and Regulations” section of this Federal Register, because we view this as a noncontroversial action and anticipate no relevant adverse comment. We have explained our reasons for this action in the preamble to the direct final rule. If we receive no adverse comment, we will not take further action on this proposed rule. If we receive adverse comment, we will withdraw the direct final rule and it will not take effect. We would address all public comments in any subsequent final rule based on this proposed rule. We do not intend to institute a second comment period on this action. Any parties interested in commenting must do so at this time. For further information, please see the information provided in the ADDRESSES section of this document.

    List of Subjects 40 CFR Part 52

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

    40 CFR Part 70

    Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements.

    Dated: September 25, 2017. Cathy Stepp, Acting Regional Administrator, Region 7.
    [FR Doc. 2017-21391 Filed 10-4-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 271 [EPA-R09-RCRA-2017-0523; FRL-9968-85-Region 9] Arizona: Authorization of State Hazardous Waste Management Program Revisions AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    Arizona has applied to the EPA for final authorization of changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). These changes correspond to certain federal rules promulgated between May 26, 1998 and July 28, 2006 (also known as RCRA Cluster VIII (checklist 167D) and Clusters IX through XVII). EPA has reviewed Arizona's application with regards to federal requirements and is proposing to authorize the state's changes.

    DATES:

    Comments on this proposed rule be received by November 6, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID Number EPA-R09-RCRA-2017-0523 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets. You may also view Arizona's application by contacting the Arizona Department of Environmental Quality Records Center at 602-771-4380, Monday through Friday: 8:30 a.m. to 4:30 p.m.

    FOR FURTHER INFORMATION CONTACT:

    Laurie Amaro, U.S. Environmental Protection Agency, Region 9, Land Division, 75 Hawthorne Street (LND-1-1), San Francisco, CA 94105, phone number: 415-972-3364, email: [email protected].

    SUPPLEMENTARY INFORMATION: A. Why are revisions to state programs necessary?

    States which have received final authorization from EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the federal program. As the federal program changes, states must change their programs and ask EPA to authorize the changes. Changes to state programs may be necessary when federal or state statutory or regulatory authority is modified or when certain other changes occur. Most commonly, states must change their programs because of changes to EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273, and 279.

    B. What decisions has EPA made in this rule?

    EPA concludes that Arizona's application to revise its authorized program meets all statutory and regulatory requirements established by RCRA, as set forth in RCRA section 3006(b), 42 U.S.C. 6926(b), and 40 CFR part 271. Therefore, EPA proposes to grant Arizona final authorization to operate as part of its hazardous waste program the changes listed below in Section F of this document, as further described in the authorization application.

    Arizona has responsibility for permitting treatment, storage, and disposal facilities within its borders (except in Indian country) and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA).

    C. What is the effect of today's authorization decision?

    The effect of this decision is that the changes described in Arizona's authorization application will become part of the authorized state hazardous waste program, and therefore will be federally enforceable. Arizona will continue to have primary enforcement authority and responsibility for its state hazardous waste program. EPA retains its authorities under RCRA sections 3007, 3008, 3013, and 7003, including its authority to:

    • Conduct inspections, and require monitoring, tests, analyses or reports;

    • Enforce RCRA requirements, including authorized state program requirements, and suspend or revoke permits; and

    • Take enforcement actions regardless of whether the state has taken its own actions.

    This action does not impose additional requirements on the regulated community because the regulations for which Arizona is being authorized by today's action are already effective, and are not changed by today's action.

    D. What happens if EPA receives comments that oppose this proposed action?

    EPA will consider all comments received during the comment period and address all such comments in a final rule. You may not have another opportunity to comment. If you want to comment on this authorization, you must do so at this time.

    E. For what has Arizona previously been authorized?

    Arizona initially received final authorization on November 20, 1985 to implement its base hazardous waste management program. Arizona received authorization for revisions to its program on August 6, 1991 (56 FR 37290 effective October 7, 1991), July 13, 1992 (57 FR 30905 effective September 11, 1992), November 23, 1992 (57 FR 54932 effective January 22, 1993), October 27, 1993 (58 FR 57745 effective December 27, 1993), July18, 1995 (60 FR 36731 effective June 12, 1995), March 7, 1997 (62 FR 10464 effective May 6, 1997), October 28, 1998 (63 FR 57605-57608 effective December 28, 1998), and March 17, 2004 (69 FR 12544 effective March 17, 2004), originally published on October 27, 2000 (65 FR 64369).

    F. What changes is EPA authorizing with today's action?

    Arizona submitted a final complete program revision application to EPA dated July 14, 2017 seeking authorization of changes to its hazardous waste program that correspond to certain federal rules promulgated between May 26, 1998 and July 28, 2006 (also known as RCRA Cluster VIII (Checklist 167D only) and Clusters IX (Checklists 169 and 173-180) and Clusters X through XVII). EPA proposes to determine, subject to receipt of written comments that oppose this action, that Arizona's hazardous waste program revisions are equivalent to, consistent with, and no less stringent than the federal program, and therefore satisfy all the requirements necessary to qualify for final authorization. Accordingly, EPA proposes to grant Arizona final authorization for the following program changes:

    Program Revision Changes for Federal Rules

    Arizona adopts by reference the federal RCRA regulations in effect January 29, 2007, at Arizona Administrative Code (AAC) Title 18, Chapter 8, Article 2 (AAC R18-8-260 through 280 effective September 30, 2016). The federal requirements for which the State is being authorized are listed in the table below noting the Arizona Administrative Register (AAR) volume and page and the AAC implementing rule sections. An asterisks (*) after a checklist number indicates a rule which is optional for state adoption.

    State Analogues to the Federal Program Description of Federal requirement and checklist No.
  • (* indicates optional)
  • Federal Register volume, page and date Analogous Arizona Register
  • (volume/page) and administrative code
  • Mineral Processing Secondary Materials Exclusion Rule. (Checklist 167 D *) 63 FR 28556, May 26, 1998 6 AAR 3093, AAC R18-8-261(A), R18-8-268, July 24, 2000. Petroleum Refining Process Wastes Rule. (Checklist 169) 63 FR 42110, August 6, 1998 6 AAR 3093, AAC R18-8-261, 266, 268, July 24, 2000. Land Disposal Restrictions; Treatment Standards for Spent Potliners from Primary Aluminum Reduction Rule (K088). (Checklist 173) 63 FR 51254, September 24, 1998 6 AAR 3093, AAC R18-8-268, July 24, 2000. Post-Closure Permit Requirement and Closure Process Rule. (Checklist 174 *) 63 FR 56710, October 22, 1998 6 AAR 3093, AAC R18-8-264, 265, 270, July 24, 2000. HWIR-Media Rule. (Checklist 175 *) 63 FR 65874, November 30, 1998 6 AAR 3093, AAC R18-8-260, 261, 264, 265, 268, 270(A), (T) and (U), July 24, 2000. Universal Waste Rule—Technical Amendments. (Checklist 176 *) 63 FR 71225, December 24, 1998 6 AAR 3093, AAC R18-8-266, 273, July 24, 2000. Organic Air Emission Standards: Clarification and Technical Amendments Rule. (Checklist 177) 64 FR 3381, January 21, 1999 6 AAR 3093, AAC R18-8-262, 264, 265, July 24, 2000. Petroleum Refining Process Wastes—Leachate Exemption Rule. (Checklist 178 *) 64 FR 6806, February 11, 1999 6 AAR 3093, AAC R18-8-261, July 24, 2000. Land Disposal Restrictions Phase IV: Treatment Standards for Wood Preserving Wastes, and Treatment Standards for Metal Wastes, and Zinc Micronutrient Fertilizers, and Carbamate Treatment Standards, and K088 Treatment Standards Rule. (Checklist 179) 64 FR 25408, May 11, 1999 6 AAR 3093, AAC R18-8-261, 262, 268, July 24, 2000. Test Procedures for the Analysis of Oil and Grease and Non-Polar Material Rule. (Checklist 180) 64 FR 26315, May 14, 1999 6 AAR 3093, AAC R18-8-260, July 24, 2000. Universal Waste Rule: Specific Provisions for Hazardous Waste Lamps Rule. (Checklist 181) 64 FR 36466, July 6, 1999 9 AAR 816, AAC R18-8-260, 261, 264, 265, 268, 270, and 273, April 15, 2003. Hazardous Air Pollutant Standards for Hazardous Waste Combustors Rule. (Checklist 182) 64 FR 52828, September 30, 1999 9 AAR 816, AAC R18-8-260, 261, 264, 265, 266, and 270, April 15, 2003. Hazardous Air Pollutant Standards for Hazardous Waste Combustors, Technical Correction Rule. (Checklist 182.1) 64 FR 63209, November 19, 1999 9 AAR 816, AAC R18-8-261 and 266, April 15, 2003. Land Disposal Restrictions Phase IV—Technical Corrections Rule. (Checklist 183) 64 FR 56469, October 20, 1999 9 AAR 816, AAC R18-8-261, 262, and 268, April 15, 2003. Accumulation Time for Waste Water Treatment Sludges Rule. (Checklist 184 *) 65 FR 12378, March 8, 2000 9 AAR 816, AAC R18-8-262, April 15, 2003. Organobromine Production Wastes Vacatur (Checklist 185 *) 65 FR 14472, March 17, 2000 9 AAR 816, AAC R18-8-261 and 268, April 15, 2003. Amendments to Streamline the NPDES Program Regulations; Round Two Rule. (Checklist 186) 65 FR 30886, May 15, 2000 10 AAR 4364, AAC R18-8-270 and 271, December 4, 2004. Petroleum Refining Process Wastes—Clarification (Checklist 187) 65 FR 36365, June 8, 2000 9 AAR 816, AAC R18-8-261 and 268, April 15, 2003. Hazardous Air Pollutant Standards—Technical Corrections. (Checklist 188 *) 65 FR 42292, July 10, 2000. 66 FR 24270, May 14, 2001. 66 FR 35087, July 3, 2001 10 AAR, AAC 4364 R18-8-261, 264 and 270, December 4, 2004. Chlorinated Aliphatics Listing and LDRs for Newly Identified Wastes. (Checklist 189) 65 FR 67068, November 8, 2000 10 AAR, AAC 4364 R18-8-261 and 268, December 4, 2004. Land Disposal Restrictions Phase IV—Deferral for PCBs in Soil. (Checklist 190) 65 FR 81373, December 26, 2000 10 AAR 4364, AAC R18-8-268, December 4, 2004. Mixed Waste Rule. (Checklist 191 *) 66 FR 27218, May 16, 2001 10 AAR 4364, AAC R18-8-266, December 4, 2004. Mixture and Derived-From Rules Revisions. (Checklist 192 A *) 66 FR 27266, May 16, 2001 10 AAR 4364, AAC R18-8-261 and 268, December 4, 2004. Land Disposal Restrictions Correction. (Checklist 192 B) 66 FR 27266, May 16, 2001 10 AAR 4364, AAC R18-8-268, December 4, 2004. Change of Official EPA Mailing Address. (Checklist 193) 66 FR 34374, June 28, 2001 10 AAR 4364, AAC R18-8-260, 261, 265, December 4, 2004. Mixture and Derived-From Rules Revision II. (Checklist 194 *) 66 FR 50332, October 3, 2001 10 AAR 4364, AAC R18-8-261, December 4, 2004. Inorganic Chemical Manufacturing Wastes Identification and Listing. (Checklist 195) 66 FR 58258, November 20, 2001. 67 FR 17119, April 9, 2002 10 AAR 4364, AAC R18-8-261 and 268, December 4, 2004. CAMU Amendments. (Checklist 196 *) 67 FR 2962, January 22, 2002 10 AAR 4364, AAC R18-8-260 and 264, December 4, 2004. Hazardous Air Pollutant Standards for Combustors: Interim Standards. (Checklist 197 *) 67 FR 67 2, February 13, 2002 10 AAR 4364, AAC R18-8-264, 265, 266 and 270, December 4, 2004. Hazardous Air Pollutant Standards for Combustors: Corrections. (Checklist 198) 67 FR 6968, February 14, 2002 10 AAR 4364, AAC R18-8-266 and 270, December 4, 2004. Vacatur of Mineral Processing Spent Materials Being Reclaimed as Solid Wastes and TCLP Use with MGP Waste. (Checklist 199) 67 FR 11251, March 13, 2002 10 AAR 4364, AAC R18-8-261, December 4, 2004. Zinc Fertilizer Rule. (Checklist 200) 67 FR 48393, July 24, 2002 11 AAR 5523, AAC R18-8-261, 266 and 268, February 4, 2006. Treatment Variance for Radioactively Contaminated Batteries. (Checklist 201 *) 67 FR 62618, October 7, 2002 11 AAR 5523, AAC R18-8-268, February 4, 2006. Hazardous Air Pollutant Standards for Hazardous Waste Combustors- Corrections 2. (Checklist 202 *) 67 FR 77687, December 19, 2002 11 AAR 5523, AAC R18-8-270, February 4, 2006. Recycled Used Oil Management Standards; Clarification (§ 261.5(j) correction only) . (Checklist 203 *) 68 FR 44659, July 30, 2003 11 AAR 5523, AAC R18-8-261(H), February 4, 2006. Performance Track. (Checklist 204 *) 69 FR 21737, April 22, 2004. 69 FR 62217, October 25, 2004 11 AAR 5523, AAC R18-8-262, February 4, 2006. NESHAP: Surface Coating of Automobiles and Light-Duty Trucks. (Checklist 205 *) 69 FR 22601 April 26, 2004 11 AAR 5523, AAC R18-8-264 and 265, February 4, 2006. Nonwastewaters from Dyes and Pigments. (Checklist 206) 70 FR 9138, February 24, 2005. 70 FR 35032 June 13, 2005 12 AAR 3061, AAC R18-8-261 and 268, October 1, 2006. Uniform Hazardous Waste Manifest Rule. (Checklist 207) 70 FR 10776, March 4, 2005. 70 FR 35034, June 16, 2005 12 AAR 3061, AAC R18-8-260, 261, 262, 263, 264 and 265, October 1, 2006. Methods Innovation Rule and SW-846 Final Update IIIB (partial; no clarifications incorporated by reference from 40 CFR 279). (Checklist 208 *) 70 FR 34538, March 4, 2005. 70 FR 44150, June 16, 2005 12 A.A.R 3061, AAC R18-8-260, 261, 264, 265, 266, 268 and 270, October 1, 2006. Universal Waste Rule: Specific Provisions for Mercury Containing Equipment. (Checklist 209 *) 70 FR 45508, August 5, 2005 12 AAR 3061, AAC R18-8-260, 261, 264, 265, 266, 268, 270 and 273, October 1, 2006. Revision of Wastewater Treatment Exemptions for Hazardous Waste Mixtures (“Headworks exemptions”). (Checklist 211 *) 70 FR 57769, October 4, 2005 14 AAR 409, AAC R18-8-261, March 3, 2008. NESHAP: Final Standards for Hazardous Waste Combustors (Phase I Final Replacement Standards and Phase II). (Checklist 212 *) 70 FR 59402, October 12, 2005 14 AAR 409, AAC R18-8-260, 264, 265, 266 and 270, March 3, 2008. Burden Reduction Initiative. (Checklist 213 *) 71 FR 16862, April 4, 2006 14 AAR 409, AAC R18-8-260, 261, 264, 265, 266, 268, and 270, March 3, 2008. Corrections to Errors in the Code of Federal Regulations (partial; no corrections incorporated from Parts 267 or 279). (Checklist 214) 71 FR 40254, July 14, 2006 14 AAR 409, AAC R18-8-260, 261, 262, 264, 265, 266, 267, 268, 270, 271 and 273, March 3, 2008. Cathode Ray Tubes Rule. (Checklist 215 *) 71 FR 42928, July 28, 2006 14 AAR 409, AAC R18-8-260 and 261, March 3, 2008.
    G. Where are the revised state rules different from the federal rules?

    Since 1984, Arizona hazardous waste rules have contained several procedural requirements that are more stringent than EPA's. These more stringent procedural requirements are authorized by Arizona Revised Statutes (ARS) section 49-922, which in directing Arizona to adopt hazardous waste rules, prohibits only nonprocedural standards that are more stringent than EPA:

    1. Hazardous Waste Manifests. Arizona requires hazardous waste generators; transporters; and treatment, storage, and disposal facilities (TSDFs) to provide a copy of all hazardous waste manifests to Arizona monthly. [See AAC R18-8-262(I) and (J); R18-8-263(C), R18-8-264(J) and R18-8-265(J).] Federal regulations governing distribution of copies of the manifest do not require manifests to be provided to the state.

    2. Annual Reports. Hazardous waste large quantity generators (LQGs) and TSDFs must submit reports to Arizona annually rather than every two years as the federal regulations require. [See AAC R18-8-260(E)(3); R18-8-262(H), R18-8-264(I) and R18-8-265(I).] Small quantity generators (SQGs) must also submit annual rather than biennial reports under R18-8-262(H).

    3. Recyclers are required to submit annual reports to Arizona rather than no reports at all. [AAC R18-8-261(J)].

    EPA cannot delegate the federal requirements in 40 CFR 261.39(a)(5) and 261.41 contained in the Cathode Ray Tubes Rule set forth in 71 FR 42928, July 28, 2006. While Arizona adopted these requirements by reference in 14 AAR 409, AAC R18-8-260 and 261, EPA will continue to implement these requirements.

    EPA gave notice at 80 FR 18777 of the removal of the provisions at 40 CFR 261.4(a)(16) and 40 CFR 261.38 related to comparable fuels due to the D.C. Circuit's vacatur of the “Hazardous Waste Combustors Revised Standards” Final Rule (63 FR 33782, June 19, 1998) in Natural Res. Def. Council v. EPA, 755 F.3d 1010 (D.C. Cir. 2014). This rule was previously adopted and approved as part of Arizona's authorized program, but in light of the vacatur, EPA no longer considers these provisions to be part of Arizona's federally authorized program.

    Other than the differences discussed above, Arizona incorporates by reference the remaining federal rules listed in Section F; therefore, there are no significant differences between the remaining federal rules and the revised state rules being authorized today.

    H. Who handles permits after the authorization takes effect?

    Arizona will issue permits for all the provisions for which it is authorized and will administer the permits it issues. Section 3006(g)(1) of RCRA, 42 U.S.C. 6926(g)(1), gives EPA the authority to issue or deny permits or parts of permits for requirements for which the State is not authorized. Therefore, whenever EPA adopts standards under HSWA for activities or wastes not currently covered by the authorized program, EPA may process RCRA permits in Arizona for the new or revised HSWA standards until Arizona has received final authorization for such new or revised HSWA standards. EPA and Arizona have agreed to a joint permitting process for facilities covered by both the authorized program and standards under HSWA for which the State is not yet authorized, and for handling existing EPA permits after the State receives authorization.

    I. How does today's action affect Indian country (18 U.S.C. 1151) in Arizona?

    Arizona is not authorized to carry out its hazardous waste program in Indian country within the State, which includes the Cocopah Tribe of Arizona; Fort Mojave Indian Tribe of Arizona, California & Nevada; Gila River Indian Community of the Gila River Indian Reservation; Havasupai Tribe of the Havasupai Reservation; Hopi Tribe of Arizona; Hualapai Indian Tribe of the Hualapai Indian Reservation; Kaibab Band of Paiute Indians of the Kaibab Indian Reservation; Navajo Nation; Quechan Tribe of the Fort Yuma Indian Reservation; Salt River Pima-Maricopa Indian Community of the Salt River Reservation; San Carlos Apache Tribe of the San Carlos Reservation; San Juan Southern Paiute Tribe of Arizona; Tohono O'odham Nation; Yavapai-Apache Nation of the Camp Verde Indian Reservation; and the Yavapai-Prescott Indian Tribe. Therefore, this action has no effect on Indian country. EPA retains jurisdiction over Indian country and will continue to implement and administer the RCRA program on these lands.

    J. What is codification and is EPA codifying Arizona's hazardous waste program as authorized in this rule?

    Codification is the process of placing the state's statutes and regulations that comprise the state's authorized hazardous waste program into the Code of Federal Regulations. EPA does this by referencing the authorized state rules in 40 CFR part 272. EPA is not codifying the authorization of Arizona's changes at this time. However, EPA reserves the amendment of 40 CFR part 272, subpart D for this authorization of Arizona's program changes until a later date.

    K. Administrative Requirements

    The Office of Management and Budget (OMB) has exempted this action (RCRA State authorization) from the requirements of Executive Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). This action authorizes State requirements for the purpose of RCRA 3006 and imposes no additional requirements beyond those imposed by State law. Therefore, this action is not subject to review by OMB. This action is not an Executive Order 13771 (82 FR 9339, February 3, 2017) regulatory action because actions such as today's proposed authorization of Arizona's revised hazardous waste program under RCRA are exempted under Executive Order 12866. This action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action authorizes pre-existing requirements under State law and does not impose any additional enforceable duty beyond that required by State law, it 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). For the same reason, this action also does not significantly or uniquely affect the communities of Tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action 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, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely authorizes State requirements as part of the State RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA. This action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

    Under RCRA 3006(b), the EPA grants a State's application for authorization, as long as the State meets the criteria required by RCRA. It would thus be inconsistent with applicable law for the EPA, when it reviews a State authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this rule, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the rule in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the Executive Order. This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. Because this rule authorizes pre-existing State rules which are at least equivalent to, and no less stringent than existing federal requirements, and impose no additional requirements beyond those imposed by State law, and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898. The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this document 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 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). This action nevertheless will be effective 60 days after the final approval is published in the Federal Register.

    List of Subjects in 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.

    Authority:

    This action is issued under the authority of sections 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).

    Dated: September 26, 2017. Alexis Strauss, Acting Regional Administrator, Region 9.
    [FR Doc. 2017-21522 Filed 10-4-17; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF THE INTERIOR Bureau of Land Management 43 CFR Parts 3160 and 3170 [17X.LLWO310000.L13100000.PP0000] RIN 1004-AE54 Waste Prevention, Production Subject to Royalties, and Resource Conservation; Delay and Suspension of Certain Requirements AGENCY:

    Bureau of Land Management, Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    On November 18, 2016, the Bureau of Land Management (BLM) published in the Federal Register a final rule entitled, “Waste Prevention, Production Subject to Royalties, and Resource Conservation” (2016 final rule). The BLM is now proposing to temporarily suspend or delay certain requirements contained in the 2016 final rule until January 17, 2019. The BLM is currently reviewing the 2016 final rule and wants to avoid imposing temporary or permanent compliance costs on operators for requirements that may be rescinded or significantly revised in the near future.

    DATES:

    Send your comments on this proposed rule to the BLM on or before November 6, 2017. As explained later, the BLM is also requesting that the Office of Management and Budget (OMB) extend the control number (1004-0211) for the 24 information collection activities that would continue in this proposed rule. If you wish to comment on this request, please note that such comments should be sent directly to the OMB, and that the OMB is required to make a decision concerning the collection of information contained in this proposed rule between 30 and 60 days after publication of this document in the Federal Register. Therefore, a comment to the OMB on the proposed information collection revisions is best assured of being given full consideration if the OMB receives it by November 6, 2017.

    ADDRESSES:

    Mail: U.S. Department of the Interior, Director (630), Bureau of Land Management, Mail Stop 2134LM, 1849 C St. NW., Washington, DC 20240, Attention: 1004-AE52.

    Personal or messenger delivery: U.S. Department of the Interior, Bureau of Land Management, 20 M Street SE., Room 2134 LM, Washington, DC 20003, Attention: Regulatory Affairs.

    Federal eRulemaking Portal: https://www.regulations.gov. In the Searchbox, enter “RIN 1004-AE54” and click the “Search” button. Follow the instructions at this Web site. Comments on the information collection burdens: Fax: Office of Management and Budget (OMB), Office of Information and Regulatory Affairs, Desk Officer for the Department of the Interior, fax 202-395-5806.

    Electronic mail: [email protected] Please indicate “Attention: OMB Control Number 1004-0211,” regardless of the method used to submit comments on the information collection burdens. If you submit comments on the information collection burdens, you should provide the BLM with a copy, at one of the addresses shown earlier in this section, so that we can summarize all written comments and address them in the final rule preamble.

    FOR FURTHER INFORMATION CONTACT:

    Catherine Cook, Acting Division Chief, Fluid Minerals Division, 202-912-7145, or [email protected], for information regarding the substance of this proposed rule or information about the BLM's Fluid Minerals program. For questions relating to regulatory process issues, contact Faith Bremner, Regulatory Analyst, at 202-912-7441, or [email protected] Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339, 24 hours a day, 7 days a week, to leave a message or question with the above individuals. You will receive a reply during normal business hours.

    SUPPLEMENTARY INFORMATION: I. Public Comment Procedures II. Background III. Discussion of the Proposed Rule IV. Procedural Matters I. Public Comment Procedures

    If you wish to comment on this proposed rule, you may submit your comments by any of the methods described in the ADDRESSES section.

    Please make your comments on the proposed rule as specific as possible, confine them to issues pertinent to the proposed rule, and explain the reason for any changes you recommend. Where possible, your comments should reference the specific section or paragraph of the proposal that you are addressing. The BLM is not obligated to consider or include in the Administrative Record for the final rule comments that we receive after the close of the comment period (see DATES) or comments delivered to an address other than those listed above (see ADDRESSES).

    Comments, including names and street addresses of respondents, will be available for public review at the address listed under “ADDRESSES: Personal or messenger delivery” during regular hours (7:45 a.m. to 4:15 p.m.), Monday through Friday, except holidays. Before including your address, telephone number, email address, or other personal identifying information in your comment, be advised that your entire comment—including your personal identifying information—may be made publicly available at any time. While you can ask us in your comment to withhold from public review your personal identifying information, we cannot guarantee that we will be able to do so.

    II. Background

    The BLM's onshore oil and gas management program is a major contributor to our nation's oil and gas production. The BLM manages more than 245 million acres of Federal land and 700 million acres of subsurface estate, making up nearly a third of the nation's mineral estate. In fiscal year (FY) 2016, sales volumes from Federal onshore production lands accounted for 9 percent of domestic natural gas production, and 5 percent of total U.S. oil production. Over $1.9 billion in royalties were collected from all oil, natural gas, and natural gas liquids transactions in FY 2016 on Federal and Indian Lands. Royalties from Federal lands are shared with States. Royalties from Indian lands are collected for the benefit of the Indian owners.

    In response to oversight reviews and a recognition of increased flaring from Federal and Indian leases, the BLM developed a final rule entitled, “Waste Prevention, Production Subject to Royalties, and Resource Conservation,” which was published in the Federal Register on November 18, 2016. See 81 FR 83008 (Nov. 18, 2016). The rule replaced the BLM's existing policy at that time, Notice to Lessees and Operators of Onshore Federal and Indian Oil and Gas Leases, Royalty or Compensation for Oil and Gas Lost (NTL-4A). The 2016 final rule was intended to: Reduce waste of natural gas from venting, flaring, and leaks during oil and natural gas production activities on onshore Federal and Indian leases; clarify when produced gas lost through venting, flaring, or leaks is subject to royalties; and clarify when oil and gas production may be used royalty-free on-site. The 2016 final rule became effective on January 17, 2017. Many of the final rule's provisions are to be phased in over time, and are to become operative on January 17, 2018.

    Immediately after the 2016 final rule was issued, industry groups and States with significant BLM-managed Federal and Indian minerals filed petitions for judicial review. The petitioners in this litigation are the Western Energy Alliance (WEA), the Independent Petroleum Association of America, the State of Wyoming, the State of Montana, the State of North Dakota, and the State of Texas. This litigation has been consolidated and is now pending in the U.S. District Court for the District of Wyoming. Wyoming v. U.S. Dep't of the Interior, Case No. 2:16-cv-00285-SWS (D. Wyo.); W. Energy All. v. Zinke, Case No. 16-cv-280-SWS (D. Wyo.). Petitioners assert that the BLM was arbitrary and capricious in promulgating the 2016 final rule and that the rule exceeds the BLM's statutory authority. Shortly after filing petitions for judicial review, petitioners filed motions for a preliminary injunction, seeking a stay of the rule pending the outcome of the litigation. These motions were denied by the court on January 16, 2017, and the rule went into effect the following day. Although the court denied the motions for a preliminary injunction, it did express concerns that the BLM may have “usurp[ed]” the authority of the Environmental Protection Agency (EPA) and the States under the Clean Air Act, and questioned whether it was appropriate for the 2016 final rule to be justified based on its environmental and societal benefits, rather than on its resource conservation benefits alone. The next stage in the litigation will be the court's consideration of the merits of the petitioner's claims. It is possible that the court's decision on these claims could result in the 2016 final rule being overturned. On June 15, 2017, the Department of the Interior (Department) issued a Federal Register notice, pursuant to 5 U.S.C. 705, postponing the January 2018 compliance dates of the 2016 final rule pending judicial review. 82 FR 27430 (June 15, 2017).

    In the Regulatory Impact Analysis (RIA) for the 2016 final rule, the BLM estimated that the requirements of the 2016 final rule would impose compliance costs, not including potential cost savings for product recovery, of approximately $114 million to $279 million per year (2016 RIA at 4). The BLM had concluded that, while many of the requirements were consistent with EPA regulations for new sources, current industry practice, or similar to the requirements found in some existing State regulations, the 2016 final rule would be an economically significant rule with estimated costs and benefits exceeding $100 million per year (2016 RIA at 138). Comments received by many oil and gas companies and trade associations representing members of the oil and gas industry suggested that the BLM's proposed and final rules were unnecessary and would cause substantial harm to the industry. During the litigation following the issuance of the 2016 final rule, the petitioners argued that the BLM underestimated the compliance costs of the final rule and that the costs would drive the industry away from Federal and Indian lands, thereby reducing royalties and harming State and tribal economies. The petitioners also argued that the final rule would cause marginal wells to be shut-in, thereby ceasing production and reducing economic benefits to local, State, tribal, and Federal governments. The BLM is concerned that the RIA for the 2016 final rule may have underestimated costs and overestimated benefits, and is therefore presently reviewing that analysis for potential inaccuracies. In any event, the RIA for the 2016 rule indicates that the rule poses a substantial burden on industry, particularly those requirements that are set to become effective on January 17, 2018.

    Since late January 2017, the President has issued several Executive Orders that necessitate a review of the 2016 final rule by the Department. On January 30, 2017, the President issued Executive Order 13771, entitled, “Reducing Regulation and Controlling Regulatory Costs,” which requires Federal agencies to take proactive measures to reduce the costs associated with complying with Federal regulations. In addition, on March 28, 2017, the President issued Executive Order 13783, entitled, “Promoting Energy Independence and Economic Growth.” Section 7(b) of Executive Order 13783 directs the Secretary of the Interior to review four specific rules, including the 2016 final rule, for consistency with the policy articulated in section 1 of the Order and, “if appropriate,” to publish proposed rules suspending, revising, or rescinding those rules. Among other things, section 1 of Executive Order 13783 states that “[i]t is in the national interest to promote clean and safe development of our Nation's vast energy resources, while at the same time avoiding regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation.”

    To implement Executive Order 13783, Secretary of the Interior Ryan Zinke issued Secretarial Order No. 3349, entitled, “American Energy Independence” on March 29, 2017, which, among other things, directs the BLM to review the 2016 final rule to determine whether it is fully consistent with the policy set forth in section 1 of Executive Order 13783. The BLM conducted an initial review of the 2016 final rule and found that it appears to be inconsistent with the policy in section 1 of Executive Order 13783. The BLM found that some provisions of the rule appear to add regulatory burdens that unnecessarily encumber energy production, constrain economic growth, and prevent job creation. Following up on its initial review, the BLM is currently reviewing the 2016 final rule to develop an appropriate proposed revision—to be promulgated through notice-and-comment rulemaking—that would propose to align the 2016 final rule with the policies set forth in section 1 of Executive Order 13783.

    III. Discussion of the Proposed Rule A. Summary and Request for Comment

    Today, the BLM is proposing to temporarily suspend or delay certain requirements contained in the 2016 final rule until January 17, 2019. The BLM is currently reviewing the 2016 final rule, as directed by the aforementioned Executive Orders and by Secretarial Order No. 3349. The BLM wants to avoid imposing temporary or permanent compliance costs on operators for requirements that might be rescinded or significantly revised in the near future. The BLM also wishes to avoid expending scarce agency resources on implementation activities (internal training, operator outreach/education, developing clarifying guidance, etc.) for such potentially transitory requirements.

    For certain requirements in the 2016 final rule that have yet to be implemented, this proposed rule would temporarily postpone the implementation dates until January 17, 2019, or for one year. For certain requirements in the 2016 final rule that are currently in effect, this proposed rule would temporarily suspend their effectiveness until January 17, 2019. A detailed discussion of the proposed suspensions and delays is provided below. The BLM has attempted to tailor the proposed rule so as to target the requirements of the 2016 final rule for which immediate regulatory relief appears to be particularly justified. Although the requirements of the 2016 final rule that would not be suspended under the proposed rule may ultimately be revised in the near future, the BLM is not proposing to suspend them because it does not, at this time, believe that suspension is necessary.

    The BLM promulgated the 2016 final rule, and now proposes to suspend and delay certain provisions of that rule, pursuant to its authority under the following statutes: The Mineral Leasing Act of 1920 (30 U.S.C. 188-287), the Mineral Leasing Act for Acquired Lands (30 U.S.C. 351-360), the Federal Oil and Gas Royalty Management Act (30 U.S.C. 1701-1758), the Federal Land Policy and Management Act of 1976 (43 U.S.C. 1701-1785), the Indian Mineral Leasing Act of 1938 (25 U.S.C. 396a-g), the Indian Mineral Development Act of 1982 (25 U.S.C. 2101-2108), and the Act of March 3, 1909 (25 U.S.C. 396). See 81 FR 83008 and 83019-83021 (Nov. 18, 2016). These statutes authorize the Secretary of the Interior to promulgate such rules and regulations as may be necessary to carry out the statutes' various purposes.1 The Federal and Indian mineral leasing statutes share a common purpose of promoting the development of Federal and Indian oil and gas resources for the financial benefit of the public and Indian mineral owners.2 In order to ensure that the development of Federal and Indian oil and gas resources will not be unnecessarily hindered by regulatory burdens, the BLM is exercising its inherent authority 3 to reconsider the 2016 final rule. The suspension of requirements proposed today is a part of the BLM's reconsideration process.

    1 30 U.S.C. 189 (MLA); 30 U.S.C. 359 (MLAAL); 30 U.S.C. 1751(a) (FOGRMA); 43 U.S.C. 1740 (FLPMA); 25 U.S.C. 396d (IMLA); 25 U.S.C. 2107 (IMDA); 25 U.S.C. 396.

    2See, e.g., California Co. v. Udall, 296 F.2d 384, 388 (D.C. Cir. 1961) (noting that the MLA was intended to promote wise development of . . . natural resources and to obtain for the public a reasonable financial return on assets that `belong' to the public.”).

    3See Ivy Sports Med., LLC v. Burwell, 767 F.3d 81, 86 (D.C. Cir. 2014) (noting “oft-repeated” principle that the “power to reconsider is inherent in the power to decide”).

    The BLM seeks comment on this proposed rule. Issues of particular interest to the BLM include the necessity of the proposed suspensions and delays, the costs and benefits associated with the proposed suspensions and delays, and whether suspension of other requirements of the 2016 rule is warranted. The BLM is also interested in the appropriate length of the proposed suspension and delays and would like to know whether the period should be longer or shorter (e.g., six months, 18 months, or 2 years). The BLM has allowed a 30-day comment period for this proposed rule, which the BLM believes will afford the public a meaningful opportunity to comment. This proposed rule is a straightforward suspension and delay of regulatory provisions that were (in a proposed form) themselves recently the object of public comment procedures. Because this proposal is a narrow one, involving a simple and temporary suspension and delay of regulatory provisions with which interested parties are likely already familiar, the BLM believes that the 30-day comment period is appropriate.

    B. Section-by-Section Discussion 43 CFR 3162.3-1(j)—Drilling Applications and Plans

    In the 2016 final rule, the BLM added a paragraph (j) to 43 CFR 3162.3-1, which presently requires that when submitting an Application for Permit to Drill (APD) for an oil well, an operator must also submit a waste-minimization plan. Submission of the plan is required for approval of the APD, but the plan is not itself part of the APD, and the terms of the plan are not enforceable against the operator. The purpose of the waste-minimization plan is for the operator to set forth a strategy for how the operator will comply with the requirements of 43 CFR subpart 3179 regarding the control of waste from venting and flaring from oil wells.

    The waste-minimization plan must include information regarding: The anticipated completion date(s) of the proposed oil well(s); a description of anticipated production from the well(s); certification that the operator has provided one or more midstream processing companies with information about the operator's production plans, including the anticipated completion dates and gas production rates of the proposed well or wells; and identification of a gas pipeline to which the operator plans to connect. Additional information is required when an operator cannot identify a gas pipeline with sufficient capacity to accommodate the anticipated production from the proposed well, including: A gas pipeline system location map showing the proposed well(s); the name and location of the gas processing plant(s) closest to the proposed well(s); all existing gas trunklines within 20 miles of the well, and proposed routes for connection to a trunkline; the total volume of produced gas, and percentage of total produced gas, that the operator is currently venting or flaring from wells in the same field and any wells within a 20-mile radius of that field; and a detailed evaluation, including estimates of costs and returns, of potential on-site capture approaches.

    In the RIA for the 2016 final rule, the BLM estimated that the administrative burden of the waste-minimization plan requirements would be roughly $1 million per year for the industry and $180,000 per year for the BLM (2016 RIA at 96 and 100). The BLM is currently reviewing the requirements of § 3162.3-1(j) in order to determine whether the burden it imposes on operators is necessary and whether this burden can be reduced. The BLM is also evaluating whether there are circumstances in which compliance with § 3162.3-1(j) is infeasible because some of the required information is in the possession of a midstream company that is not in a position to share it with the operator. The BLM is considering narrowing the required information and is also considering whether submission of a State waste-minimization plan, such as those required by New Mexico and North Dakota, would serve the purpose of § 3162.3-1(j). While the BLM conducts this review and considers revising § 3162.3-1, the BLM does not believe that generating and reviewing lengthy, unenforceable waste-minimization plans is a prudent use of operator or BLM resources. The BLM is therefore proposing to suspend the waste minimization plan requirement of § 3162.3-1(j) until January 17, 2019.

    This proposed rule would revise § 3162.3-1 by adding “Beginning January 17, 2019” to the beginning of paragraph (j). The rest of this paragraph would remain the same as in the 2016 final rule and the introductory paragraph is repeated in the proposed rule text only for context.

    43 CFR 3179.7—Gas Capture Requirement

    In the 2016 final rule, the BLM sought to constrain routine flaring through the imposition of a “capture percentage” requirement, requiring operators to capture a certain percentage of the gas they produce, after allowing for a certain volume of flaring per well. The capture-percentage requirement would become more stringent over a period of years, beginning with an 85 percent capture requirement (5,400 Mcf per well flaring allowable) in January 2018, and eventually reaching a 98 percent capture requirement (750 Mcf per well flaring allowable) in January 2026. An operator would choose whether to comply with the capture targets on each of the operator's leases, units or communitized areas, or on a county-wide or state-wide basis.

    In the RIA for the 2016 final rule, the BLM estimated that this requirement would impose costs of up to $162 million per year and generate cost savings from product recovery of up to $124 million per year, with both costs and cost savings increasing as the requirements increased in stringency (2016 RIA at 49).

    The BLM is currently considering whether the capture-percentage requirement of § 3179.7 is unnecessarily complex and whether it will, in fact, be a significant improvement on the requirements of NTL-4A. The BLM is considering whether the NTL-4A framework can be applied in a manner that addresses any inappropriate levels of flaring, and whether market-based incentives (i.e., royalty obligations) could improve capture in a more straightforward and efficient manner. Finally, the BLM is considering whether the need for a complex capture-percentage requirement could be obviated through other BLM efforts to facilitate pipeline development. Rather than require operators to institute new processes and adjust their plans for development to meet a capture-percentage requirement that may be rescinded or revised as a result of the BLM's review, the BLM is proposing to delay for one year the compliance dates for § 3179.7's capture requirements. This delay would allow the BLM sufficient time to conduct notice-and-comment rulemaking to determine whether the capture percentage requirements should be rescinded or revised and would prevent operators from being unnecessarily burdened by regulatory requirements that are subject to change.

    This proposed rule would revise the compliance dates in paragraphs (b), (b)(1) through (b)(4), and (c)(2)(i) through (vii) of § 3179.7 to begin January 17, 2019. Paragraphs (c), (c)(1), and the introductory text of (c)(2) would remain the same as in the 2016 final rule and are repeated in the proposed rule text only for context.

    43 CFR 3179.9—Measuring and Reporting Volumes of Gas Vented and Flared From Wells

    Section 3179.9 requires operators to estimate (using estimation protocols) or measure (using a metering device) all flared and vented gas, whether royalty-bearing or royalty-free. This section further provides that specific requirements apply when the operator is flaring 50 Mcf or more of gas per day from a high-pressure flare stack or manifold, based on estimated volumes from the previous 12 months, or based on estimated volumes over the life of the flare, whichever is shorter. Beginning on January 17, 2018, if this volume threshold is met, § 3179.9(b) would require the operator to measure the volume of the flared gas, or calculate the volume of the flared gas based on the results of a regularly performed gas-to-oil ratio test, so as to allow the BLM to independently verify the volume, rate, and heating value of the flared gas.

    In the RIA for the 2016 final rule, the BLM estimated that this requirement would impose costs of about $4 million to $7 million per year (2016 RIA at 52).

    The BLM is presently reviewing § 3179.9 to determine whether the additional accuracy associated with the measurement and estimation required by § 3179.9(b) justifies the burden it would place on operators. The BLM is considering whether it would make more sense to allow the BLM to require measurement or estimation on a case-by-case basis, rather than imposing a blanket requirement on all operators. In order to avoid unnecessary compliance costs on the part of operators, the BLM is proposing to delay the compliance date in § 3179.9 until January 17, 2019.

    This proposed rule would revise the compliance date in § 3179.9(b)(1). The rest of paragraph (b)(1) would remain the same as in the 2016 final rule and is repeated in the proposed rule text only for context.

    43 CFR 3179.10—Determinations Regarding Royalty-Free Flaring

    Section 3179.10(a) provides that approvals to flare royalty free that were in effect as of January 17, 2017, will continue in effect until January 17, 2018. The purpose of this provision was to provide a transition period for operators who were operating under existing approvals for royalty-free flaring. Because the BLM's review of the 2016 final rule could result in rescission or substantial revision of the rule, the BLM believes that terminating pre-existing flaring approvals in January 2018 would be premature and disruptive and would introduce needless regulatory uncertainty for operators with existing flaring approvals. The BLM is therefore proposing to extend the end of the transition period provided for in § 3179.10(a) to January 17, 2019.

    This proposed rule would revise the date in paragraph (a) and replace “as of the effective date of this rule” with “as of January 17, 2017,” which is the effective date of the 2016 final rule, for clarity. This proposed rule would not otherwise revise paragraph (a), but the rest of the paragraph would remain the same as in the 2016 final rule and is repeated in the proposed rule text only for context.

    43 CFR 3179.101—Well Drilling

    Section 3179.101(a) requires that gas reaching the surface as a normal part of drilling operations be used or disposed of in one of four ways: (1) Captured and sold; (2) Directed to a flare pit or flare stack; (3) Used in the operations on the lease, unit, or communitized area; or (4) Injected. Section 3179.101(a) also specifies that gas may not be vented, except under the circumstances specified in § 3179.6(b) or when it is technically infeasible to use or dispose of the gas in one of the ways specified above. Section 3179.101(b) states that gas lost as a result of a loss of well control will be classified as avoidably lost if the BLM determines that the loss of well control was due to operator negligence.

    The BLM is currently reviewing § 3179.101 to determine whether it is necessary in light of current operator practices. The experience of BLM field office personnel indicates that operators would typically dispose of gas during well drilling consistent with § 3179.101(a). The primary effect of § 3179.101, therefore, may be to impose a regulatory constraint on operators in exceptional circumstances where the operator must make a case-specific judgment about how to safely and effectively dispose of the gas. The BLM is therefore proposing to suspend the effectiveness of § 3179.101 until January 17, 2019, while the BLM completes its review of § 3179.101 and decides whether to propose permanently revising or rescinding it through notice-and-comment rulemaking.

    This proposed rule would add a new paragraph (c) making it clear that the operator must comply with § 3179.101 beginning January 17, 2019.

    43 CFR 3179.102—Well Completion and Related Operations

    Section 3179.102 addresses gas that reaches the surface during well-completion, post-completion, and fluid-recovery operations after a well has been hydraulically fractured or refractured. It requires the gas to be used or disposed of in one of four ways: (1) Captured and sold; (2) Directed to a flare pit or stack, subject to a volumetric limitation in § 3179.103; (3) Used in the lease operations; or (4) Injected. Section 3179.102 specifies that gas may not be vented, except under the narrow circumstances specified in § 3179.6(b) or when it is technically infeasible to use or dispose of the gas in one of the four ways specified above. Section 3179.102(b) provides that an operator will be deemed to be in compliance with its gas capture and disposition requirements if the operator is in compliance with the requirements for control of gas from well completions established under Environmental Protection Agency (EPA) regulations 40 CFR part 60, subparts OOOO or OOOOa regulations, or if the well is not a “well affected facility” under those regulations.

    The BLM is currently reviewing § 3179.102 to determine whether it is necessary in light of current operator practices and the analogous EPA regulations in 40 CFR part 60, subparts OOOO and OOOOa. The experience of BLM field office personnel indicates that operators would typically dispose of gas during well completions and related operations consistent with § 3179.102(a). The BLM also suspects that most of the well completions and related operations that would otherwise be covered by § 3179.102 are actually exempted under § 3179.102(b). Considering current industry practice and the overlap with EPA regulations, the primary effect of § 3179.102 may be to generate confusion about regulatory compliance during well-drilling and related operations. The BLM is therefore proposing to suspend the effectiveness of § 3179.102 until January 17, 2019, while the BLM completes its review of § 3179.102 and decides whether to permanently revise or rescind it through notice-and-comment rulemaking.

    This proposed rule would add a new paragraph (e) making it clear that operators must comply with § 3179.102 beginning January 17, 2019.

    43 CFR 3179.201—Equipment Requirements for Pneumatic Controllers

    Section 3179.201 addresses pneumatic controllers that use natural gas produced from a Federal or Indian lease, or from a unit or communitized area that includes a Federal or Indian lease. Section 3179.201 applies to such controllers if the controllers: (1) Have a continuous bleed rate greater than 6 standard cubic feet per hour (scf/hour) (“high-bleed” controllers); and (2) Are not covered by EPA regulations that prohibit the new use of high-bleed pneumatic controllers (40 CFR part 60, subparts OOOO or OOOOa), but would be subject to those regulations if the controllers were new, modified, or reconstructed sources. Section 3179.201(b) requires the applicable pneumatic controllers to be replaced with controllers (including, but not limited to, continuous or intermittent pneumatic controllers) having a bleed rate of no more than 6 scf/hour, subject to certain exceptions. Section 3179.201(d) requires that this replacement occur no later than January 17, 2018, or within 3 years from the effective date of the rule if the well or facility served by the controller has an estimated remaining productive life of 3 years or less.

    In the RIA for the 2016 final rule, the BLM estimated that this requirement would impose costs of about $2 million per year and generate cost savings from product recovery of $3 million to $4 million per year (2016 RIA at 56).

    The BLM is currently reviewing § 3179.201 to determine whether it should be revised or rescinded. The BLM is considering whether § 3179.201 is necessary in light of the analogous EPA regulations and the fact that operators are likely to adopt more efficient equipment in cases where it makes economic sense for them to do so. The BLM does not believe that operators should be required to make equipment upgrades to comply with § 3179.201 until the BLM has had an opportunity to review its requirements and revise them through notice-and-comment rulemaking. The BLM is therefore proposing to delay the compliance date stated in § 3179.201 until January 17, 2019.

    This proposed rule would revise the first sentence of paragraph (d) by replacing “no later than 1 year after the effective date of this section” with “by January 17, 2019.” This proposed rule would also replace “the effective date of this section” with “January 17, 2017” the two times that it appears in the second sentence of paragraph (d). This proposed rule would not otherwise revise paragraph (d), but the rest of the paragraph would remain the same as in the 2016 final rule and is repeated in the proposed rule text only for context.

    43 CFR 3179.202—Requirements for Pneumatic Diaphragm Pumps

    Section 3179.202 establishes requirements for operators with pneumatic diaphragm pumps that use natural gas produced from a Federal or Indian lease, or from a unit or communitized area that includes a Federal or Indian lease. It applies to such pumps if they are not covered under EPA regulations at 40 CFR part 60, subpart OOOOa, but would be subject to that subpart if they were a new, modified, or reconstructed source. For covered pneumatic pumps, § 3179.202 requires that the operator either replace the pump with a zero-emissions pump or route the pump exhaust to processing equipment for capture and sale. Alternatively, an operator may route the exhaust to a flare or low-pressure combustion device if the operator makes a determination (and notifies the BLM through a Sundry Notice) that replacing the pneumatic diaphragm pump with a zero-emissions pump or capturing the pump exhaust is not viable because: (1) A pneumatic pump is necessary to perform the function required; and (2) Capturing the exhaust is technically infeasible or unduly costly. If an operator makes this determination and has no flare or low-pressure combustor on-site, or routing to such a device would be technically infeasible, the operator is not required to route the exhaust to a flare or low-pressure combustion device. Under § 3179.202(h), an operator must replace its covered pneumatic diaphragm pump or route the exhaust gas to capture or flare beginning no later than January 17, 2018.

    In the RIA for the 2016 final rule, the BLM estimated that this requirement would impose costs of about $4 million per year and generate cost savings from product recovery of $2 million to $3 million per year (2016 RIA at 61).

    The BLM is currently reviewing § 3179.202 to determine whether it should be rescinded or revised. Analogous EPA regulations apply to new, modified, and reconstructed sources, therefore limiting the applicability of § 3179.202. In addition, the BLM is concerned that requiring zero-emissions pumps may not conserve gas in some cases. The volume of royalty-free gas used to generate electricity to provide the power necessary to operate a zero-emission pump could exceed the volume of gas necessary to operate the pneumatic pump that the zero-emission pump would replace. The BLM does not believe that operators should be required to make equipment upgrades to comply with § 3179.202 until the BLM has had an opportunity to review its requirements and revise them through notice-and-comment rulemaking. The BLM is therefore proposing to delay the compliance date stated in § 3179.202 until January 17, 2019.

    This proposed rule would revise paragraph (h) by replacing “no later than 1 year after the effective date of this section” in the first sentence with “by January 17, 2019” and would also replace “the effective date of this section” with “January 17, 2017” the two times that it appears later in the same sentence. This proposed rule would not otherwise revise paragraph (h); the rest of the paragraph would remain the same as in the 2016 final rule and is repeated in the proposed rule text only for context.

    43 CFR 3179.203—Storage Vessels

    Section 3179.203 applies to crude oil, condensate, intermediate hydrocarbon liquid, or produced-water storage vessels that contain production from a Federal or Indian lease, or from a unit or communitized area that includes a Federal or Indian lease, and that are not subject to 40 CFR part 60, subparts OOOO or OOOOa, but would be if they were new, modified, or reconstructed sources. If such storage vessels have the potential for volatile organic compound (VOC) emissions equal to or greater than 6 tons per year (tpy), § 3179.203 requires operators to route all gas vapor from the vessels to a sales line. Alternatively, the operator may route the vapor to a combustion device if it determines that routing the vapor to a sales line is technically infeasible or unduly costly. The operator also may submit a Sundry Notice to the BLM that demonstrates that compliance with the above options would cause the operator to cease production and abandon significant recoverable oil reserves under the lease due to the cost of compliance. Pursuant to § 3179.203(c), operators must meet these requirements for covered storage vessels by January 17, 2018 (unless the operator will replace the storage vessel in order to comply, in which case it has a longer time to comply).

    In the RIA for the 2016 final rule, the BLM estimated that this requirement would impose costs of about $7 million to $8 million per year and generate cost savings from product recovery of up to $200,000 per year (2016 RIA at 74).

    The BLM is currently reviewing § 3179.203 to determine whether it should be rescinded or revised. The BLM is considering whether § 3179.203 is necessary in light of analogous EPA regulations and whether the costs associated with compliance are justified. The BLM does not believe that operators should be required to make upgrades to their storage vessels in order to comply with § 3179.203 until the BLM has had an opportunity to review its requirements and revise them through notice-and-comment rulemaking. The BLM is therefore proposing to delay the January 17, 2018, compliance date in § 3179.203 until January 17, 2019.

    This proposed rule would revise the first sentence of paragraph (b) by replacing “Within 60 days after the effective date of this section” with “Beginning January 17, 2019” and by adding “after January 17, 201” between the words “vessel” and “the operator.” This proposed rule would also revise the introductory text of paragraph (c) by replacing “no later than one year after the effective date of this section” with “by January 17, 2019” and by changing “or three years if” to “or by January 17, 2020, if ” to account for removing the reference to “the effective date of this section.” This proposed rule would not otherwise revise paragraphs (b) and (c), and the rest of these paragraphs would remain the same as in the 2016 final rule and are repeated in the proposed rule text only for context.

    43 CFR 3179.204—Downhole Well Maintenance and Liquids Unloading

    Section 3179.204 establishes requirements for venting and flaring during downhole well maintenance and liquids unloading. It requires the operator to use practices for such operations that minimize vented gas and the need for well venting, unless the practices are necessary for safety. Section 3179.204 also requires that for wells equipped with a plunger lift system or an automated well-control system, the operator must optimize the operation of the system to minimize gas losses. Under § 3179.204, before an operator manually purges a well for the first time, the operator must document in a Sundry Notice that other methods for liquids unloading are technically infeasible or unduly costly. In addition, during any liquids unloading by manual well purging, the person conducting the well purging is required to be present on-site to minimize to the maximum extent practicable any venting to the atmosphere. This section also requires the operator to maintain records of the cause, date, time, duration and estimated volume of each venting event associated with manual well purging, and to make those records available to the BLM upon request. Additionally, operators are required to notify the BLM by Sundry Notice within 30 days after the following conditions are met: (1) The cumulative duration of manual well-purging events for a well exceeds 24 hours during any production month; or (2) The estimated volume of gas vented in the process of conducting liquids unloading by manual well purging for a well exceeds 75 Mcf during any production month. In the RIA for the 2016 final rule, the BLM estimated that these requirements would impose costs of about $6 million per year and generate cost savings from product recovery of about $5 million to $9 million per year (2016 RIA at 66). In addition, there would be estimated administrative burdens associated with these requirements of $323,000 per year for the industry and $37,000 per year for the BLM (2016 RIA at 98 and 101).

    The BLM is currently reviewing § 3179.204 to determine whether it should be rescinded or revised. The BLM does not believe that operators should be burdened with the operational and reporting requirements imposed by § 3179.204 until the BLM has had an opportunity to review them and, if appropriate, revise them through notice-and-comment rulemaking. In addition, as part of this review, the BLM would want to review how these data could be reported in a consistent manner among operators. The BLM is therefore proposing to suspend the effectiveness of § 3179.204 until January 17, 2019.

    This proposed rule would add a new paragraph (i), making it clear that operators must comply with § 3179.204 beginning January 17, 2019.

    43 CFR 3179.301—Operator Responsibility

    Sections 3179.301 through 3179.305 establish leak detection, repair, and reporting requirements for: (1) Sites and equipment used to produce, process, treat, store, or measure natural gas from or allocable to a Federal or Indian lease, unit, or communitization agreement; and (2) Sites and equipment used to store, measure, or dispose of produced water on a Federal or Indian lease. Section 3179.302 prescribes the instruments and methods that may be used for leak detection. Section 3179.303 prescribes the frequency for inspections and § 3179.304 prescribes the time frames for repairing leaks found during inspections. Finally, § 3179.305 requires operators to maintain records of their leak detection and repair activities and submit an annual report to the BLM. Pursuant to § 3179.301(f), operators must begin to comply with the leak detection and repair requirements of §§ 3179.301 through 3179.305 before: (1) January 17, 2018, for sites in production prior to January 17, 2017; (2) 60 days after beginning production for sites that began production after January 17, 2017; and (3) 60 days after a site that was out of service is brought back into service and re-pressurized.

    In the RIA for the 2016 final rule, the BLM estimated that these requirements would impose costs of about $83 million to $84 million per year and generate cost savings from product recovery of about $12 million to $21 million per year (2016 RIA at 91). In addition, there would be estimated administrative burdens associated with these requirements of $3.9 million per year for the industry and over $1 million per year for the BLM (2016 RIA at 98 and 102).

    The BLM is currently reviewing § 3179.301 through § 3179.305 to determine whether they should be revised or rescinded. The BLM is considering whether these requirements are necessary in light of comparable EPA and State leak detection and repair regulations. The BLM is considering whether the reporting burdens imposed by these sections are justified and whether the substantial compliance costs could be mitigated by allowing for less frequent and/or non-instrument-based inspections or by exempting wells that have low potential to leak natural gas. The BLM does not believe that operators should be burdened with the significant compliance costs imposed by these sections until the BLM has had an opportunity to review them and, if appropriate, revise them through notice-and-comment rulemaking. The BLM is therefore proposing to delay the effective dates for these sections until January 17, 2019, by revising § 3179.301(f).

    This proposed rule would revise paragraph (f)(1) by replacing “Within one year of January 17, 2017 for sites that have begun production prior to January 17, 2017;” with “By January 17, 2019, for all existing sites.” This proposed rule would also revise paragraph (f)(2) by adding “new” between the words “for” and “sites” and by replacing the existing date with “January 17, 2019.” Finally, this proposed rule would revise paragraph (f)(3) by adding “an existing” between the words “when” and “site” and by adding “after January 17, 2019” to the end of the sentence. This proposed rule would not otherwise revise paragraph (f), and the rest of the paragraph would remain the same as in the 2016 final rule and is repeated in the proposed rule text only for context.

    C. Summary of Estimated Impacts

    The BLM reviewed the proposed rule and conducted an RIA and Environmental Assessment (EA) that examine the impacts of the proposed requirements. The following discussion is a summary of the proposed rule's economic impacts. The RIA and draft EA that we prepared have been posted in the docket for the proposed rule on the Federal eRulemaking Portal: https://www.regulations.gov. In the Searchbox, enter “RIN 1004-AE54” and click the “Search” button. Follow the instructions at this Web site.

    The suspension or delay in the implementation of certain requirements in the 2016 final rule would postpone the impacts estimated previously to the near-term future. That is to say, impacts that we previously estimated would occur in 2017 are now estimated to occur in 2018, impacts that we previously estimated would occur in 2018 are now estimated to occur in 2019, and so on. In the RIA for this proposed rule, we track this shift in impacts over the 10-year period following the delay. A 10-year period of analysis was also used in the RIA prepared for the 2016 final rule. Except for some notable changes, the 2017 RIA uses the impacts estimated and underlying assumptions used by the BLM for the RIA prepared for the 2016 final rule, published in November 2016. The BLM's proposed rule would temporarily suspend or delay almost all of the requirements in the 2016 final rule that we estimated would pose a compliance burden to operators and generate benefits of gas savings or reductions in methane emissions.

    Estimated Reductions in Compliance Costs (Excluding Cost Savings)

    First, we examine the reductions in compliance costs excluding the savings that would have been realized from product recovery. The BLM's proposed rule would temporarily suspend or delay almost all of the requirements in the 2016 final rule that we estimated would pose a compliance burden to operators. We estimate that suspending or delaying the targeted requirements of the 2016 final rule until January 17, 2019, would substantially reduce compliance costs during the period of the suspension or delay (2017 RIA at 29).

    Impacts in year 1:

    • A reduction in compliance costs of $114 million (using a 7 percent discount rate to annualize capital costs) or $110 million (using a 3 percent discount rate to annualize capital costs).

    Impacts from 2017-2027:

    • Total reduction in compliance costs ranging from $73 million to $91 million (net present value (NPV) using a 7 percent discount rate) or $40 million to $50 million (NPV using a 3 percent discount rate).

    Estimated Reduction in Benefits

    The BLM's proposed rule would temporarily suspend or delay almost all of the requirements in the 2016 final rule that we estimated would generate benefits of gas savings or reductions in methane emissions. We estimate that the proposed rule would result in forgone benefits, since estimated cost savings that would have come from product recovery would be deferred and the emissions reductions would also be deferred (2017 RIA at 32).

    Impacts in year 1:

    • A reduction in cost savings of $19 million.

    Impacts from 2017-2027:

    • Total reduction in cost savings of $36 million (NPV using a 7 percent discount rate) or $21 million (NPV using a 3 percent discount rate).

    We estimate that the proposed rule would also result in additional methane and VOC emissions of 175,000 and 250,000 tons, respectively, in year 1 (2017 RIA at 32).

    These estimated emissions are measured as the change from the baseline environment, which is the 2016 final rule's requirements being implemented per the 2016 final rule schedule. Since the proposed rule would delay the implementation of those requirements, the estimated benefits of the 2016 final rule would be forgone during the temporary suspension or delay.

    The BLM used interim domestic values of the carbon dioxide and methane to value the forgone emissions reductions resulting from the delay (see the discussion of social cost of greenhouse gases in the 2017 RIA at Section 3.2 and Appendix).

    Impact in Year 1:

    • Forgone methane emissions reductions valued at $8 million (using interim domestic SC-CH4 based on a 7 percent discount rate) or $26 million (using interim domestic SC-CH4 based on a 3 percent discount rate).

    Impacts from 2017-2027:

    • Forgone methane emissions reductions valued at $1.9 million (NPV and interim domestic SC-CH4 using a 7 percent discount rate); or

    • Forgone methane emissions reductions valued at $300,000 (NPV and interim domestic SC-CH4 using a 3 percent discount rate).

    Estimated Net Benefits

    The proposed rule is estimated to result in positive net benefits, meaning that the reduction of compliance costs would exceed the reduction in cost savings and the cost of emissions additions (2017 RIA at 36).

    Impact in year 1:

    • Net benefits of $83-86 million (using interim domestic SC-CH4 based on a 7 percent discount rate) or $64-68 million (using interim domestic SC-CH4 based on a 3 percent discount rate).

    Impacts from 2017-2027:

    • Total net benefits ranging from $35-52 million (NPV and interim domestic SC-CH4 using a 7 percent discount rate); or

    • Total net benefits ranging from $19-29 million (NPV and interim domestic SC-CH4 using a 3 percent discount rate).

    Energy Systems

    The proposed rule is expected to influence the production of natural gas, natural gas liquids, and crude oil from onshore Federal and Indian oil and gas leases, particularly in the short-term. However, since the relative changes in production are expected to be small, we do not expect that the proposed rule would significantly impact the price, supply, or distribution of energy.

    We estimate the following incremental changes in production, noting the representative share of the total U.S. production in 2015 for context (2017 RIA at 41).

    Annual Impacts:

    • A decrease in natural gas production of 9.0 billion cubic feet (Bcf) in year 1 (0.03 percent of the total U.S. production).

    • An increase in crude oil production of 91,000 barrels in year 2 (0.003 percent of the total U.S. production). There is no estimated change in crude oil production in year 1.

    Royalty Impacts

    In the short-term, the rule is expected to decrease natural gas production from Federal and Indian leases, and likewise, is expected to reduce annual royalties to the Federal Government, tribal governments, States, and private landowners. From 2017-2027, however, we expect a small increase in total royalties, likely due to production slightly shifting into the future where commodity prices are expected to be higher.

    Royalty payments are recurring income to Federal or tribal governments and costs to the operator or lessee. As such, they are transfer payments that do not affect the total resources available to society. An important but sometimes difficult problem in cost estimation is to distinguish between real costs and transfer payments. While transfers should not be included in the economic analysis estimates of the benefits and costs of a regulation, they may be important for describing the distributional effects of a regulation.

    We estimate a reduction in royalties of $2.6 million in year 1 (2017 RIA at 43). This amount represents about 0.2 percent of the total royalties received from oil and gas production on Federal lands in FY 2016. However, from 2017-2027, we estimate an increase in total royalties of $1.26 million (NPV using a 7 percent discount rate) or $380,000 (NPV using a 3 percent discount rate).

    Consideration of Alternative Approaches

    In developing this proposed rule, the BLM considered alternative timeframes for which it could suspend or delay the requirements (e.g., 6 months and 2 years). Ultimately, the BLM decided to propose a suspension or delay for one year, which it believes to be the minimum length of time practicable within which to review the 2016 final rule and complete a notice-and-comment rulemaking to revise that regulation. We note that, based on the progress of the review during this rulemaking process, the BLM may revise the length of the suspension or delay for the final rule.

    A shorter suspension of delay of the same 2016 final rule requirements would result in a smaller reduction in compliance costs, smaller reduction in cost savings, and a smaller amount of forgone emissions reductions, relative to the proposal (2017 RIA at 49-50). Meanwhile, a longer suspension or delay of the same 2016 final rule requirements would result in a larger reduction in compliance costs, larger reduction in cost savings, and larger amount of forgone emissions reductions, relative to the proposal (2017 RIA at 50).

    Employment Impacts

    The proposed rule would temporarily suspend or delay certain requirements of the BLM's 2016 final rule on waste prevention and is a temporary deregulatory action. As such, we estimate that it would result in a reduction of compliance costs for operators of oil and gas leases on Federal and Indian lands. Therefore, it is likely that the impact, if any, on the employment would be positive.

    In the RIA for the 2016 final rule, the BLM concluded that the requirements were not expected to impact the employment within the oil and gas extraction, drilling oil and gas wells, and support activities industries, in any material way. This determination was based on several reasons. First, the estimated incremental gas production represented only a small fraction of the U.S. natural gas production volumes. Second, the estimated compliance costs represented only a small fraction of the annual net incomes of companies likely to be impacted. Third, for those operations that would have been impacted to the extent that the compliance costs would force the operator to shut in production, the 2016 final rule had provisions that would exempt these operations from compliance. Based on these factors, the BLM determined that the 2016 final rule would not alter the investment or employment decisions of firms or significantly adversely impact employment. The RIA also noted that the requirements would require the one-time installation or replacement of equipment and the ongoing implementation of a leak detection and repair program, both of which would require labor to comply.

    We do not believe that the proposed rule would substantially alter the investment or employment decisions of firms for two reasons. First, the RIA for the 2016 final rule determined that that rule would not substantially alter the investment or employment decisions of firms, and so therefore delaying the 2016 final rule would likewise not be expected to impact those decisions. We also recognize that while there might be a small positive impact on investment and employment due to the reduction in compliance burdens, the magnitude of the reductions are relatively small.

    Small Business Impacts

    The BLM reviewed the Small Business Administration (SBA) size standards for small businesses and the number of entities fitting those size standards as reported by the U.S. Census Bureau. We conclude that small entities represent the overwhelming majority of entities operating in the onshore crude oil and natural gas extraction industry and, therefore, the proposed rule would impact a significant number of small entities.

    To examine the economic impact of the rule on small entities, the BLM performed a screening analysis on a sample of potentially affected small entities, comparing the reduction of compliance costs to entity profit margins.

    The BLM identified up to 1,828 entities that operate on Federal and Indian leases and recognizes that the overwhelming majority of these entities are small business, as defined by the SBA. We estimated the potential reduction in compliance costs to be about $60,000 per entity during the initial year when the requirements would be suspended or delayed. This represents the average maximum amount by which the operators would be positively impacted by the proposed rule.

    We used existing BLM information and research concerning firms that have recently completed Federal and Indian wells and the financial and employment information on a sample of these firms, as available in company annual report filings with the Securities and Exchange Commission (SEC). From the original list of companies, we identified 55 company filings. Of those companies, 33 were small businesses.

    From data in the companies' 10-K filings to the SEC, the BLM was able to calculate the companies' profit margins for the years 2012, 2013, and 2014. We then calculated a profit margin figure for each company when subject to the average annual reduction in compliance costs associated with this proposed rule. For these 26 small companies, the estimated per-entity reduction in compliance costs would result in an average increase in profit margin of 0.17 percentage points (based on the 2014 company data) (2017 RIA at 46).

    Impacts Associated With Oil and Gas Operations on Tribal Lands

    The proposed rule would apply to oil and gas operations on both Federal and Indian leases. In the RIA, the BLM estimates the impacts associated with operations on Indian leases, as well as royalty implications for tribal governments. We estimate these impacts by scaling down the total impacts by the share of oil wells on Indian lands and the share of gas wells on Indian Lands. Please reference the RIA at section 4.4.5 for a full explanation about the estimate impacts.

    IV. Procedural Matters Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and Regulatory Affairs within the Office of Management and Budget (OMB) will review all significant rules.

    Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the Nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The Executive Order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas.

    This proposed rule would temporarily suspend or delay portions of the BLM's 2016 final rule while the BLM reviews those requirements. We have developed this proposed rule in a manner consistent with the requirements in Executive Order 12866 and Executive Order 13563.

    After reviewing the requirements of the proposed rule, the OMB has determined that it is an economically significant action according to the criteria of Executive Order 12866. The BLM reviewed the requirements of the proposed rule and determined that it will not adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities. For more detailed information, see the RIA prepared for this proposed rule. The RIA has been posted in the docket for the proposed rule on the Federal eRulemaking Portal: https://www.regulations.gov. In the Searchbox, enter “RIN 1004-AE54” and click the “Search” button. Follow the instructions at this Web site.

    Regulatory Flexibility Act

    This proposed rule would not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) The Regulatory Flexibility Act (RFA) generally requires that Federal agencies prepare a regulatory flexibility analysis for rules subject to the notice-and-comment rulemaking requirements under the Administrative Procedure Act (5 U.S.C. 500 et seq.), if the rule would have a significant economic impact, either detrimental or beneficial, on a substantial number of small entities. See 5 U.S.C. 601—612. Congress enacted the RFA to ensure that government regulations do not unnecessarily or disproportionately burden small entities. Small entities include small businesses, small governmental jurisdictions, and small not-for-profit enterprises.

    The BLM reviewed the SBA size standards for small businesses and the number of entities fitting those size standards as reported by the U.S. Census Bureau in the Economic Census. The BLM concludes that the vast majority of entities operating in the relevant sectors are small businesses as defined by the SBA. As such, the proposed rule would likely affect a substantial number of small entities.

    However, the BLM believes that the proposed rule would not have a significant economic impact on a substantial number of small entities. Although the rule would affect a substantial number of small entities, the BLM does not believe that these effects would be economically significant. The proposed rule would temporarily suspend or delay certain requirements placed on operators by the 2016 final rule. Operators would not have to undertake the associated compliance activities, either operational or administrative, that are outlined in the 2016 final rule until January 17, 2019, except to the extent the activities are required by State or tribal law, or by other pre-existing BLM regulations. The screening analysis conducted by the BLM estimates that the average reduction in compliance costs associated with this proposed rule would be a small fraction of a percent of the profit margin for small companies, which is not a large enough impact to be considered significant.

    Small Business Regulatory Enforcement Fairness Act

    This proposed rule is a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This proposed rule:

    (a) Would have an annual effect on the economy of $100 million or more.

    (b) Would not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

    (c) Would not have a significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

    Unfunded Mandates Reform Act (UMRA)

    This proposed rule would not impose an unfunded mandate on State, local, or tribal governments, or the private sector of $100 million or more per year. The proposed rule would not have a significant or unique effect on State, local, or tribal governments or the private sector. The proposed rule contains no requirements that would apply to State, local, or tribal governments. It would temporarily suspend or delay requirements that would otherwise apply to the private sector. A statement containing the information required by the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1531 et seq.) is not required for the proposed rule. This proposed rule is also not subject to the requirements of section 203 of UMRA because it contains no regulatory requirements that might significantly or uniquely affect small governments, because it contains no requirements that apply to such governments, nor does it impose obligations upon them.

    Governmental Actions and Interference With Constitutionally Protected Property Right—Takings (Executive Order 12630)

    This proposed rule would not affect a taking of private property or otherwise have taking implications under Executive Order 12630. A takings implication assessment is not required. The proposed rule would temporarily suspend or delay many of the requirements placed on operators by the 2016 final rule. Operators would not have to undertake the associated compliance activities, either operational or administrative, that are outlined in the 2016 final rule until January 17, 2019, and therefore would impact some operational and administrative requirements on Federal and Indian lands. All such operations are subject to lease terms which expressly require that subsequent lease activities be conducted in compliance with subsequently adopted Federal laws and regulations. This proposed rule conforms to the terms of those leases and applicable statutes and, as such, the rule is not a government action capable of interfering with constitutionally protected property rights. Therefore, the BLM has determined that the rule would not cause a taking of private property or require further discussion of takings implications under Executive Order 12630.

    Federalism (Executive Order 13132)

    Under the criteria in section 1 of Executive Order 13132, this proposed rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement. A federalism impact statement is not required.

    The proposed rule would not have a substantial direct effect on the States, on the relationship between the Federal Government and the States, or on the distribution of power and responsibilities among the levels of government. It would not apply to States or local governments or State or local governmental entities. The rule would affect the relationship between operators, lessees, and the BLM, but it does not directly impact the States. Therefore, in accordance with Executive Order 13132, the BLM has determined that this proposed rule does not have sufficient federalism implications to warrant preparation of a Federalism Assessment.

    Civil Justice Reform (Executive Order 12988)

    This proposed rule complies with the requirements of Executive Order 12988. More specifically, this proposed rule meets the criteria of section 3(a), which requires agencies to review all regulations to eliminate errors and ambiguity and to write all regulations to minimize litigation. This proposed rule also meets the criteria of section 3(b)(2), which requires agencies to write all regulations in clear language with clear legal standards.

    Consultation and Coordination With Indian Tribal Governments (Executive Order 13175 and Departmental Policy)

    The Department strives to strengthen its government-to-government relationship with Indian tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. We have evaluated this proposed rule under the Department's consultation policy and under the criteria in Executive Order 13175 and have identified substantial direct effects on federally recognized Indian tribes that would result from this proposed rule. Under this proposed rule, oil and gas operations on tribal and allotted lands would not be subject to many of the requirements placed on operators by the 2016 final rule until January 17, 2019.

    The BLM believes that temporarily suspending or delaying these requirements would assist in preventing Indian lands from being viewed by oil and gas operators as less attractive than non-Indian lands due to unnecessary and burdensome compliance costs, thereby preventing economic harm to tribes and allottees.

    The BLM is conducting tribal outreach which it believes is appropriate given that the proposed rule would extend the compliance dates of the 2016 final rule, but would not change the policies of that rule. The BLM notified tribes of the action and requested feedback and comment through the respective BLM State Office Directors. Future tribal consultation may occur on an ongoing basis.

    Paperwork Reduction Act 1. Overview

    The Paperwork Reduction Act (PRA) (44 U.S.C. 3501-3521) provides that 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 control number. 44 U.S.C. 3512. Collections of information include requests and requirements that an individual, partnership, or corporation obtain information, and report it to a Federal agency. 44 U.S.C. 3502(3); 5 CFR 1320.3(c) and (k).

    OMB has approved the 24 information collection activities in the 2016 final rule and has assigned control number 1004-0211 to those activities. In the Notice of Action approving the 24 information collection activities in the 2016 final rule, OMB announced that the control number will expire on January 31, 2018. The Notice of Action also included terms of clearance.

    The BLM requests the extension of control number 1004-0021 until January 31, 2019. The BLM requests no other changes to the control number.

    In accordance with the PRA, the BLM is inviting public comment on the proposed extension of control no. 1004-0211. Descriptions of the information collection activities in this proposed rule, along with estimates of the annual burdens, are shown below. Included in the burden estimates are the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing each component of the proposed information collection requirements.

    The BLM has submitted the information collection request for this proposed rule to OMB for review in accordance with the PRA. You may obtain a copy of the request from the BLM by electronic mail request to James Tichenor at [email protected] or by telephone request to 202-573-0536. You may also review the information collection request online at: http://www.reginfo.gov/public/do/.

    The BLM requests comments on the following subjects:

    • Whether the collection of information is necessary for the proper functioning of the BLM, including whether the information will have practical utility;

    • The accuracy of the BLM's estimate of the burden of collecting the information, including the validity of the methodology and assumptions used;

    • The quality, utility, and clarity of the information to be collected; and

    • How to minimize the information collection burden on those who are to respond, including the use of appropriate automated, electronic, mechanical, or other forms of information technology.

    If you want to comment on the information collection requirements of this proposed rule, please send your comments directly to OMB, with a copy to the BLM, as directed in the ADDRESSES section of this preamble. Please identify your comments with “OMB Control Number 1004-0211.” OMB is required to make a decision concerning the collection of information contained in this proposed rule between 30 to 60 days after publication of this document in the Federal Register. Therefore, a comment to OMB is best assured of having its full effect if OMB receives it by November 6, 2017.

    2. Summary of Information Collection Activities

    Title: Waste Prevention, Production Subject to Royalties, and Resource Conservation (43 CFR parts 3160 and 3170). Form 3160-5, Sundry Notices and Reports on Wells.

    OMB Control Number: 1004-0211.

    Forms: Form 3160-3, Application for Permit to Drill or Re-enter; and Form 3160-5, Sundry Notices and Reports on Wells.

    Description of Respondents: Holders of Federal and Indian (except Osage Tribe) oil and gas leases, those who belong to Federally approved units or communitized areas, and those who are parties to oil and gas agreements under the Indian Mineral Development Act, 25 U.S.C. 2101-2108.

    Respondents' Obligation: Required to obtain or retain a benefit.

    Frequency of Collection: On occasion.

    Abstract: The BLM requests the extension of control number 1004-0021 until January 31, 2019. The BLM requests no changes to the control number except this extension.

    Estimated Number of Responses: 63,200.

    Estimated Total Annual Burden Hours: 82,170.

    Estimated Total Non-Hour Cost: None.

    3. Information Collection Request

    The BLM requests extension of OMB control number 1004-0211 until January 31, 2019. This extension would continue OMB's approval of the following information collection activities.

    Plan To Minimize Waste of Natural Gas (43 CFR 3162.3-1)

    The 2016 final rule added a new provision to 43 CFR 3162.3-1 that requires a plan to minimize waste of natural gas when submitting an Application for Permit to Drill or Re-enter (APD) for a development oil well. This information is in addition to the APD information that the BLM already collects under OMB Control Number 1004-0137. The required elements of the waste minimization plan are listed at paragraphs (j)(1) through (j)(7).

    Request for Approval for Royalty-Free Uses On-Lease or Off-Lease (43 CFR 3178.5, 3178.7, 3178.8, and 3178.9)

    Section 3178.5 requires submission of a Sundry Notice (Form 3160-5) to request prior written BLM approval for use of gas royalty-free for the following operations and production purposes on the lease, unit or communitized area:

    • Using oil or gas that an operator removes from the pipeline at a location downstream of the facility measurement point (FMP);

    • Removal of gas initially from a lease, unit PA, or communitized area for treatment or processing because of particular physical characteristics of the gas, prior to use on the lease, unit PA or communitized area; and

    • Any other type of use of produced oil or gas for operations and production purposes pursuant to § 3178.3 that is not identified in § 3178.4.

    Section 3178.7 requires submission of a Sundry Notice (Form 3160-5) to request prior written BLM approval for off-lease royalty-free uses in the following circumstances:

    • The equipment or facility in which the operation is conducted is located off the lease, unit, or communitized area for engineering, economic, resource-protection, or physical-accessibility reasons; and

    • The operations are conducted upstream of the FMP.

    Section 3178.8 requires that an operator measure or estimate the volume of royalty-free gas used in operations upstream of the FMP. In general, the operator is free to choose whether to measure or estimate, with the exception that the operator must in all cases measure the following volumes:

    • Royalty-free gas removed downstream of the FMP and used pursuant to §§ 3178.4 through 3178.7; and

    • Royalty-free oil used pursuant to §§ 3178.4 through 3178.7.

    If oil is used on the lease, unit or communitized area, it is most likely to be removed from a storage tank on the lease, unit or communitized area. Thus, this regulation also requires the operator to document the removal of the oil from the tank or pipeline.

    Section 3178.8(e) requires that operators use best available information to estimate gas volumes, where estimation is allowed. For both oil and gas, the operator must report the volumes measured or estimated, as applicable, under ONRR reporting requirements. As revisions to Onshore Oil and Gas Orders No. 4 and 5 have now been finalized as 43 CFR subparts 3174 and 3175, respectively, the final rule text now references § 3173.12, as well as § 3178.4 through § 3178.7 to clarify that royalty-free use must adhere to the provisions in those sections.

    Section 3178.9 requires the following additional information in a request for prior approval of royalty-free use under § 3178.5, or for prior approval of off-lease royalty-free use under § 3178.7:

    • A complete description of the operation to be conducted, including the location of all facilities and equipment involved in the operation and the location of the FMP;

    • The volume of oil or gas that the operator expects will be used in the operation and the method of measuring or estimating that volume;

    • If the volume expected to be used will be estimated, the basis for the estimate (e.g., equipment manufacturer's published consumption or usage rates); and

    • The proposed disposition of the oil or gas used (e.g., whether gas used would be consumed as fuel, vented through use of a gas-activated pneumatic controller, returned to the reservoir, or disposed by some other method).

    Request for Approval of Alternative Capture Requirement (43 CFR 3179.8)

    Section 3179.8 applies only to leases issued before the effective date of the 2016 final rule and to operators choosing to comply with the capture requirement in § 3179.7 on a lease-by-lease, unit-by-unit, or communitized area-by-communitized area basis. The regulation provides that operators who meet those parameters may seek BLM approval of a capture percentage other than that which is applicable under 43 CFR 3179.7. The operator must submit a Sundry Notice (Form 3160-5) that includes the following information:

    • The name, number, and location of each of the operator's wells, and the number of the lease, unit, or communitized area with which it is associated; and

    • The oil and gas production levels of each of the operator's wells on the lease, unit, or communitized area for the most recent production month for which information is available and the volumes being vented and flared from each well.

    In addition, the request must include map(s) showing:

    • The entire lease, unit, or communitized area, and the surrounding lands to a distance and on a scale that shows the field in which the well is or will be located (if applicable), and all pipelines that could transport the gas from the well;

    • All of the operator's producing oil and gas wells, which are producing from Federal or Indian leases, (both on Federal or Indian leases and on other properties) within the map area;

    • Identification of all of the operator's wells within the lease from which gas is flared or vented, and the location and distance of the nearest gas pipeline(s) to each such well, with an identification of those pipelines that are or could be available for connection and use; and

    • Identification of all of the operator's wells within the lease from which gas is captured;

    The following information is also required:

    • Data that show pipeline capacity and the operator's projections of the cost associated with installation and operation of gas capture infrastructure, to the extent that the operator is able to obtain this information, as well as cost projections for alternative methods of transportation that do not require pipelines; and

    • Projected costs of and the combined stream of revenues from both gas and oil production, including: (1) The operator's projections of gas prices, gas production volumes, gas quality (i.e., heating value and H2S content), revenues derived from gas production, and royalty payments on gas production over the next 15 years or the life of the operator's lease, unit, or communitized area, whichever is less; and (2) The operator's projections of oil prices, oil production volumes, costs, revenues, and royalty payments from the operator's oil and gas operations within the lease over the next 15 years or the life of the operator's lease, unit, or communitized area, whichever is less.

    Notification of Choice To Comply on County- or State-Wide Basis (43 CFR 3179.7(c)(3)(ii))

    Section 3179.7 requires operators flaring gas from development oil wells to capture a specified percentage of the operator's adjusted volume of gas produced over the relevant area. The “relevant area” is each of the operator's leases, units, or communitized areas, unless the operator chooses to comply on a county- or State-wide basis and the operator notifies the BLM of its choice by Sundry Notice (Form 3160-5) by January 1 of the relevant year.

    Request for Exemption From Well Completion Requirements (43 CFR 3179.102(c) and (d))

    Section 3179.102 lists several requirements pertaining to gas that reaches the surface during well completion and related operations. An operator may seek an exemption from these requirements by submitting a Sundry Notice (Form 3160-5) that includes the following information:

    (1) The name, number, and location of each of the operator's wells, and the number of the lease, unit, or communitized area with which it is associated;

    (2) The oil and gas production levels of each of the operator's wells on the lease, unit or communitized area for the most recent production month for which information is available;

    (3) Data that show the costs of compliance; and

    (4) Projected costs of and the combined stream of revenues from both gas and oil production, including: the operator's projections of oil and gas prices, production volumes, quality (i.e., heating value and H2S content), revenues derived from production, and royalty payments on production over the next 15 years or the life of the operator's lease, unit, or communitized area, whichever is less.

    The rule also provides that an operator that is in compliance with the EPA regulations for well completions under 40 CFR part 60, subpart OOOO or subpart OOOOa is deemed in compliance with the requirements of this section. As a practical matter, all new, reconstructed, and modified hydraulically fracturing or refracturing events are now subject to the EPA requirements, so the BLM does not believe that the requirements of this section would have any independent effect, or that any operator would request an exemption from the requirements of this section, as long as the EPA requirements remain in effect. For this reason, the BLM is not estimating any PRA burdens for § 3179.102.4

    4 The EPA has convened a proceeding for reconsidering the final OOOOa rule, see 82 FR 25730 (June 5, 2017). If EPA's requirements are altered in any way in the future, then PRA burdens estimated for BLM's rule could increase by up to $130/event if the operator files for an exemption.

    Request for Extension of Royalty-Free Flaring During Initial Production Testing (43 CFR 3179.103)

    Section 3179.103 allows gas to be flared royalty-free during initial production testing. The regulation lists specific volume and time limits for such testing. An operator may seek an extension of those limits on royalty-free flaring by submitting a Sundry Notice (Form 3160-5) to the BLM.

    Request for Extension of Royalty-Free Flaring During Subsequent Well Testing (43 CFR 3179.104)

    Section 3179.104 allows gas to be flared royalty-free for no more than 24 hours during well tests subsequent to the initial production test. The operator may seek authorization to flare royalty-free for a longer period by submitting a Sundry Notice (Form 3160-5) to the BLM.

    Reporting of Venting or Flaring (43 CFR 3179.105)

    Section 3179.105 allows an operator to flare gas royalty-free during a temporary, short-term, infrequent, and unavoidable emergency. Venting gas is permissible if flaring is not feasible during an emergency. The regulation defines limited circumstances that constitute an emergency, and other circumstances that do not constitute an emergency.

    The operator must estimate and report to the BLM on a Sundry Notice (Form 3160-5) volumes flared or vented in circumstances that, as provided by 43 CFR 3179.105, do not constitute emergencies for the purposes of royalty assessment:

    (1) More than 3 failures of the same component within a single piece of equipment within any 365-day period;

    (2) The operator's failure to install appropriate equipment of a sufficient capacity to accommodate the production conditions;

    (3) Failure to limit production when the production rate exceeds the capacity of the related equipment, pipeline, or gas plant, or exceeds sales contract volumes of oil or gas;

    (4) Scheduled maintenance;

    (5) A situation caused by operator negligence; or

    (6) A situation on a lease, unit, or communitized area that has already experienced 3 or more emergencies within the past 30 days, unless the BLM determines that the occurrence of more than 3 emergencies within the 30 day period could not have been anticipated and was beyond the operator's control.

    Pneumatic Controllers—Introduction

    Section 3179.201 pertains to any pneumatic controller that: (1) Is not subject to EPA regulations at 40 CFR 60.5360a through 60.5390a, but would be subject to those regulations if it were a new or modified source; and (2) has a continuous bleed rate greater than 6 standard cubic feet (scf) per hour. Section 3179.201(b) requires operators to replace each high-bleed pneumatic controller with a controller with a bleed rate lower than 6 scf per hour, with the following exceptions: (1) The pneumatic controller exhaust is routed to processing equipment; (2) the pneumatic controller exhaust was and continues to be routed to a flare device or low pressure combustor; (3) The pneumatic controller exhaust is routed to processing equipment; or (4) The operator notifies the BLM through a Sundry Notice and demonstrates, and the BLM agrees, that such would impose such costs as to cause the operator to cease production and abandon significant recoverable oil reserves under the lease.

    Notification of Functional Needs for a Pneumatic Controller (43 CFR 3179.201(b)(1)-(3))

    An operator may invoke one of the first three exceptions described above by notifying the BLM through a Sundry Notice (Form 3160-5) that use of the pneumatic controller is required based on functional needs that may include, but are not limited to, response time, safety, and positive actuation, and the Sundry Notice (Form 3160-5) describes those functional needs.

    Showing That Cost of Compliance Would Cause Cessation of Production and Abandonment of Oil Reserves (43 CFR 3175.201(b)(4) and 3175.201(c))

    An operator may invoke the fourth exception described above by demonstrating to the BLM through a Sundry Notice (Form 3160-5), and by obtaining the BLM's agreement, that replacement of a pneumatic controller would impose such costs as to cause the operator to cease production and abandon significant recoverable oil reserves under the lease. The Sundry Notice (Form 3160-5) must include the following information:

    (1) The name, number, and location of each of the operator's wells, and the number of the lease, unit, or communitized area with which it is associated;

    (2) The oil and gas production levels of each of the operator's wells on the lease, unit or communitized area for the most recent production month for which information is available;

    (3) Data that show the costs of compliance;

    (4) Projected costs of and the combined stream of revenues from both gas and oil production, including: the operator's projections of gas prices, gas production volumes, gas quality (i.e., heating value and H2S content), revenues derived from gas production, and royalty payments on gas production over the next 15 years or the life of the operator's lease, unit, or communitized area, whichever is less; and the operator's projections of oil prices, oil production volumes, costs, revenues, and royalty payments from the operator's oil and gas operations within the lease over the next 15 years or the life of the operator's lease, unit, or communitized area, whichever is less.

    Showing in Support of Replacement of Pneumatic Controller Within 3 Years (43 CFR 3179.201(d))

    The operator may replace a high-bleed pneumatic controller if the operator notifies the BLM through a Sundry Notice (Form 3160-5) that the well or facility that the pneumatic controller serves has an estimated remaining productive life of 3 years or less.

    Pneumatic Diaphragm Pumps—Introduction

    With some exceptions, § 3179.202 pertains to any pneumatic diaphragm pump that: (1) Uses natural gas produced from a Federal or Indian lease, or from a unit or communitized area that includes a Federal or Indian lease; and (2) Is not subject to EPA regulations at 40 CFR 60.5360a through 60.5390a, but would be subject to those regulations if it were a new, reconstructed, or modified source as defined in 40 CFR part 60 subpart OOOOa. This regulation generally requires replacement of such a pump with a zero-emissions pump or routing of the pump's exhaust gas to processing equipment for capture and sale.

    This requirement does not apply to pneumatic diaphragm pumps that do not vent exhaust gas to the atmosphere. In addition, this requirement does not apply if the operator submits a Sundry Notice to the BLM documenting that the pump(s) operated on less than 90 individual days in the prior calendar year.

    Showing That a Pneumatic Diaphragm Pump Was Operated on Fewer Than 90 Individual Days in the Prior Calendar Year (43 CFR 3179.202(b)(2))

    A pneumatic diaphragm pump is not subject to § 3179.202 if the operator documents in a Sundry Notice (Form 3160-5) that the pump was operated fewer than 90 days in the prior calendar year.

    Notification of Functional Needs for a Pneumatic Diaphragm Pump (43 CFR 3179.202(d))

    In lieu of replacing a pneumatic diaphragm pump or routing the pump exhaust gas to processing equipment, an operator may submit a Sundry Notice (Form 3160-5) to the BLM showing that replacing the pump with a zero emissions pump is not viable because a pneumatic pump is necessary to perform the function required, and that routing the pump exhaust gas to processing equipment for capture and sale is technically infeasible or unduly costly.

    Showing That Cost of Compliance Would Cause Cessation of Production and Abandonment of Oil Reserves (43 CFR 3175.202(f) and (g))

    An operator may seek an exemption from the replacement requirement by submitting a Sundry Notice (Form 3160-5) to the BLM that provides an economic analysis that demonstrates that compliance with these requirements would impose such costs as to cause the operator to cease production and abandon significant recoverable oil reserves under the lease. The Sundry Notice (Form 3160-5) must include the following information:

    (1) Well information that must include: (i) The name, number, and location of each well, and the number of the lease, unit, or communitized area with which it is associated; and (ii) The oil and gas production levels of each of the operator's wells on the lease, unit or communitized area for the most recent production month for which information is available;

    (2) Data that show the costs of compliance with § 3179.202(c) through (e); and

    (3) The operator's estimate of the costs and revenues of the combined stream of revenues from both the gas and oil components, including: (i) The operator's projections of gas prices, gas production volumes, gas quality (i.e., heating value and H2S content), revenues derived from gas production, and royalty payments on gas production over the next 15 years or the life of the operator's lease, unit, or communitized area, whichever is less; and (ii) The operator's projections of oil prices, oil production volumes, costs, revenues, and royalty payments from the operator's oil and gas operations within the lease over the next 15 years or the life of the operator's lease, unit, or communitized area, whichever is less.

    Showing in Support of Replacement of Pneumatic Diaphragm Pump Within 3 Years (43 CFR 3179.202(h))

    The operator may replace a pneumatic diaphragm pump if the operator notifies the BLM through a Sundry Notice (Form 3160-5) that the well or facility that the pneumatic controller serves has an estimated remaining productive life of 3 years or less.

    Storage Vessels (43 CFR 3179.203(c) and (d))

    A storage vessel is subject to 43 CFR 3179.203(c) if the vessel: (1) Contains production from a Federal or Indian lease, or from a unit or communitized area that includes a Federal or Indian lease; and (2) Is not subject to any of the requirements of EPA regulations at 40 CFR part 60, subpart OOOO, but would be subject to that subpart if it were a new, reconstructed, or modified source.

    The operator must determine, record, and make available to the BLM upon request, whether the storage vessel has the potential for VOC emissions equal to or greater than 6 tpy based on the maximum average daily throughput for a 30-day period of production. The determination may take into account requirements under a legally and practically enforceable limit in an operating permit or other requirement established under a Federal, State, local or tribal authority that limit the VOC emissions to less than 6 tpy.

    If a storage vessel has the potential for VOC emissions equal to or greater than 6 tpy, the operator must replace the storage vessel at issue in order to comply with the requirements of this section, and the operator must

    (1) Route all tank vapor gas from the storage vessel to a sales line;

    (2) If the operator determines that compliance with the requirement to route all tank vapor gas from the storage vessel to a sales line is technically infeasible or unduly costly, route all tank vapor gas from the storage vessel to a device or method that ensures continuous combustion of the tank vapor gas; or

    (3) Submit an economic analysis to the BLM through a Sundry Notice (Form 3160-5) that demonstrates, and the BLM agrees, that compliance with § 3179.203(c)(2) would impose such costs as to cause the operator to cease production and abandon significant recoverable oil reserves under the lease.

    To support the demonstration described above, the operator must submit a Sundry Notice (Form 3160-5) that includes the following information:

    (1) The name, number, and location of each well, and the number of the lease, unit, or communitized area with which it is associated;

    (2) The oil and gas production levels of each of the operator's wells on the lease, unit or communitized area for the most recent production month for which information is available;

    (3) Data that show the costs of compliance with § 3179.203(c)(1) or (2) on the lease; and

    (4) The operator must consider the costs and revenues of the combined stream of revenues from both the gas and oil components, including: The operator's projections of oil and gas prices, production volumes, quality (i.e., heating value and H2S content), revenues derived from production, and royalty payments on production over the next 15 years or the life of the operator's lease, unit, or communitized area, whichever is less.

    Downhole Well Maintenance and Liquids Unloading—Documentation and Reporting (43 CFR 3179.204(c) and (e))

    The operator must minimize vented gas and the need for well venting associated with downhole well maintenance and liquids unloading, consistent with safe operations. Before the operator manually purges a well for liquids unloading for the first time after the effective date of this section, the operator must consider other methods for liquids unloading and determine that they are technically infeasible or unduly costly. The operator must provide information supporting that determination as part of a Sundry Notice (Form 3160-5). This requirement applies to each well the operator operates.

    For any liquids unloading by manual well purging, the operator must:

    (1) Ensure that the person conducting the well purging remains present on-site throughout the event to minimize to the maximum extent practicable any venting to the atmosphere;

    (2) Record the cause, date, time, duration, and estimated volume of each venting event; and

    (3) Maintain the records for the period required under § 3162.4-1 and make them available to the BLM, upon request.

    Downhole Well Maintenance and Liquids Unloading—Notification of Excessive Duration or Volume (43 CFR 3179.204(f))

    The operator must notify the BLM by Sundry Notice (Form 3160-5), within 30 calendar days, if:

    (1) The cumulative duration of manual well purging events for a well exceeds 24 hours during any production month; or

    (2) The estimated volume of gas vented in liquids unloading by manual well purging operations for a well exceeds 75 Mcf during any production month.

    Leak Detection—Compliance With EPA Regulations (43 CFR 3179.301(j))

    Sections 3179.301 through 3179.305 include information collection activities pertaining to the detection and repair of gas leaks during production operations. These regulations require operators to inspect all equipment covered under § 3179.301(a) for gas leaks.

    Section 3179.301(j) allows an operator to satisfy the requirements of §§ 3179.301 through 3179.305 for some or all of the equipment or facilities on a given lease by notifying the BLM in a Sundry Notice (Form 3160-5) that the operator is complying with EPA requirements established pursuant to 40 CFR part 60 with respect to such equipment or facilities.

    Leak Detection—Request To Use an Alternative Monitoring Device and Protocol (43 CFR 3179.302(c))

    Section 3175.302 specifies the instruments and methods that an operator may use to detect leaks. Section 3175.302(d) allows the BLM to approve an alternative monitoring device and associated inspection protocol if the BLM finds that the alternative would achieve equal or greater reduction of gas lost through leaks compared with the approach specified in § 3179.302(a)(1) when used according to § 3179.303(a).

    Any person may request approval of an alternative monitoring device and protocol by submitting a Sundry Notice (Form 3160-5) to BLM that includes the following information: (1) Specifications of the proposed monitoring device, including a detection limit capable of supporting the desired function; (2) The proposed monitoring protocol using the proposed monitoring device, including how results will be recorded; (3) Records and data from laboratory and field testing, including but not limited to performance testing; (4) A demonstration that the proposed monitoring device and protocol will achieve equal or greater reduction of gas lost through leaks compared with the approach specified in the regulations; (5) Tracking and documentation procedures; and (6) Proposed limitations on the types of sites or other conditions on deploying the device and the protocol to achieve the demonstrated results.

    Leak Detection—Operator Request To Use an Alternative Leak Detection Program (43 CFR 3179.303(b))

    Section 3179.303(b) allows an operator to submit a Sundry Notice (Form 3160-5) requesting authorization to detect gas leaks using an alternative instrument-based leak detection program, different from the specified requirement to inspect each site semi-annually using an approved monitoring device.

    To obtain approval for an alternative leak detection program, the operator must submit a Sundry Notice (Form 3160-5) that includes the following information:

    (1) A detailed description of the alternative leak detection program, including how it will use one or more of the instruments specified in or approved under § 3179.302(a) and an identification of the specific instruments, methods and/or practices that would substitute for specific elements of the approach specified in §§ 3179.302(a) and 3179.303(a);

    (2) The proposed monitoring protocol;

    (3) Records and data from laboratory and field testing, including, but not limited to, performance testing, to the extent relevant;

    (4) A demonstration that the proposed alternative leak detection program will achieve equal or greater reduction of gas lost through leaks compared to compliance with the requirements specified in §§ 3179.302(a) and 3179.303(a);

    (5) A detailed description of how the operator will track and document its procedures, leaks found, and leaks repaired; and

    (6) Proposed limitations on types of sites or other conditions on deployment of the alternative leak detection program.

    Leak Detection—Operator Request for Exemption Allowing Use of an Alternative Leak-Detection Program That Does Not Meet Specified Criteria (43 CFR 3179.303(d))

    An operator may seek authorization for an alternative leak detection program that does not achieve equal or greater reduction of gas lost through leaks compared to the required approach, if the operator demonstrates that compliance with the leak-detection regulations (including the option for an alternative program under 43 CFR 3179.303(b)) would impose such costs as to cause the operator to cease production and abandon significant recoverable oil or gas reserves under the lease. The BLM may approve an alternative leak detection program that does not achieve equal or greater reduction of gas lost through leaks, but is as effective as possible consistent with not causing the operator to cease production and abandon significant recoverable oil or gas reserves under the lease.

    To obtain approval for an alternative program under this provision, the operator must submit a Sundry Notice (Form 3160-5) that includes the following information:

    (1) The name, number, and location of each well, and the number of the lease, unit, or communitized area with which it is associated;

    (2) The oil and gas production levels of each of the operator's wells on the lease, unit or communitized area for the most recent production month for which information is available;

    (3) Data that show the costs of compliance on the lease with the requirements of §§ 3179.301-305 and with an alternative leak detection program that meets the requirements of § 3179.303(b);

    (4) The operator must consider the costs and revenues of the combined stream of revenues from both the gas and oil components and provide the operator's projections of oil and gas prices, production volumes, quality (i.e., heating value and H2S content), revenues derived from production, and royalty payments on production over the next 15 years or the life of the operator's lease, unit, or communitized area, whichever is less;

    (5) The information required to obtain approval of an alternative program under § 3179.303(b), except that the estimated volume of gas that will be lost through leaks under the alternative program must be compared to the volume of gas lost under the required program, but does not have to be shown to be at least equivalent.

    Leak Detection—Notification of Delay in Repairing Leaks (43 CFR 3179.304(b))

    Section 3179.304(a) requires an operator to repair any leak no later than 30 calendar days after discovery of the leak, unless there is good cause for delay in repair. If there is good cause for a delay beyond 30 calendar days, § 3179.304(b) requires the operator to submit a Sundry Notice (Form 3160-5) notifying the BLM of the cause.

    Leak Detection—Inspection Recordkeeping and Reporting (43 CFR 3179.305)

    Section 3179.305 requires operators to maintain the following records and make them available to the BLM upon request: (1) For each inspection required under § 3179.303, documentation of the date of the inspection and the site where the inspection was conducted; (2) The monitoring method(s) used to determine the presence of leaks; (3) A list of leak components on which leaks were found; (4) The date each leak was repaired; and (5) The date and result of the follow-up inspection(s) required under § 3179.304. By March 31 each calendar year, the operator must provide to the BLM an annual summary report on the previous year's inspection activities that includes: (1) The number of sites inspected; (2) The total number of leaks identified, categorized by the type of component; (3) The total number of leaks repaired; (4) The total number of leaks that were not repaired as of December 31 of the previous calendar year due to good cause and an estimated date of repair for each leak; and (5) A certification by a responsible officer that the information in the report is true and accurate.

    Leak Detection—Annual Reporting of Inspections (43 CFR 3179.305(b))

    By March 31 of each calendar year, the operator must provide to the BLM an annual summary report on the previous year's inspection activities that includes:

    (1) The number of sites inspected;

    (2) The total number of leaks identified, categorized by the type of component;

    (3) The total number of leaks repaired;

    (4) The total number leaks that were not repaired as of December 31 of the previous calendar year due to good cause and an estimated date of repair for each leak.

    (5) A certification by a responsible officer that the information in the report is true and accurate to the best of the officer's knowledge.

    4. Burden Estimates

    The following table details the annual estimated hour burdens for the information activities described above.

    Type of response Number of
  • responses
  • Hours per
  • response
  • Total hours
  • (Column B ×
  • Column C)
  • A B C D Plan to Minimize Waste of Natural Gas, 43 CFR 3162.3-1, Form 3160-3 2,000 8 16,000 Request for Approval for Royalty-Free Uses On-Lease or Off-Lease, 43 CFR 3178.5, 3178.7, 3178.8, and 3178.9, Form 3160-5 50 4 200 Notification of Choice to Comply on County- or State-wide Basis, 43 CFR 3179.7(c)(3)(iii) 200 1 200 Request for Approval of Alternative Capture Requirement, 43 CFR 3179.8(b), Form 3160-5 50 16 800 Request for Exemption from Well Completion Requirements, 43 CFR 3179.102(c) and (d), Form 3160-5 0 0 0 Request for Extension of Royalty-Free Flaring During Initial Production Testing, 43 CFR 3179.103, Form 3160-5 500 2 1,000 Request for Extension of Royalty-Free Flaring During Subsequent Well Testing, 43 CFR 3179.104, Form 3160-5 5 2 10 Reporting of Venting or Flaring, 43 CFR 3179.105, Form 3160-5 250 2 500 Notification of Functional Needs for a Pneumatic Controller, 43 CFR 3179.201(b)(1)-(3), Form 3160-5 10 2 20 Showing that Cost of Compliance Would Cause Cessation of Production and Abandonment of Oil Reserves, 43 CFR 3175.201(b)(4) and 3175.201(c), Form 3160-5 50 4 200 Showing in Support of Replacement of Pneumatic Controller within 3 Years, 43 CFR 3179.201(d), Form 3160-5 100 1 100 Showing that a Pneumatic Diaphragm Pump was Operated on Fewer than 90 Individual Days in the Prior Calendar Year, 43 CFR 3179.202(b)(2), Form 3160-5 100 1 100 Notification of Functional Needs for a Pneumatic Diaphragm Pump, 43 CFR 3179.202(d), Form 3160-5 150 1 150 Showing that Cost of Compliance Would Cause Cessation of Production and Abandonment of Oil Reserves, 43 CFR 3175.202(f) and (g), Form 3160-5 10 4 40 Showing in Support of Replacement of Pneumatic Diaphragm Pump within 3 Years, 43 CFR 3179.202(h), Form 3160-5 100 1 100 Storage Vessels, 43 CFR 3179.203(c), Form 3160-5 50 4 200 Downhole Well Maintenance and Liquids Unloading—Documentation and Reporting, 43 CFR 3179.204(c) and (e), Form 3160-5 5,000 1 5,000 Downhole Well Maintenance and Liquids Unloading—Notification of Excessive Duration or Volume, 43 CFR 3179.204(f), Form 3160-5 250 1 250 Leak Detection—Compliance with EPA Regulations, 43 CFR 3179.301(j), Form 3160-5 50 4 200 Leak Detection—Request to Use an Alternative Monitoring Device and Protocol, 43 CFR 3179.302(c), Form 3160-5 5 40 200 Leak Detection—Operator Request to Use an Alternative Leak Detection Program, 43 CFR 3179.303(b), Form 3160-5 20 40 800 Leak Detection—Operator Request for Exemption Allowing Use of an Alternative Leak-Detection Program that Does Not Meet Specified 43 CFR 3179.303(d), Form 3160-5 150 20 3,000 Leak Detection—Notification of Delay in Repairing Leaks, 43 CFR 3179.304(a), Form 3160-5 100 1 100 Leak Detection—Inspection Recordkeeping and Reporting, 43 CFR 3179.305 52,000 .25 13,000 Leak Detection—Annual Reporting of Inspections, 43 CFR 3179.305(b), Form 3160-5 2,000 20 40,000 Totals 63,200 82,170
    National Environmental Policy Act

    The BLM has prepared a draft environmental assessment (EA) to determine whether this proposed rule would have a significant impact on the quality of the human environment under the National Environmental Policy Act of 1969 (NEPA) (42 U.S.C. 4321 et seq.). If the final EA supports the issuance of a Finding of No Significant Impact (FONSI) for the rule, the preparation of an environmental impact statement pursuant to the NEPA would not be required.

    The draft EA and FONSI have been placed in the file for the BLM's Administrative Record for the rule at the address specified in the ADDRESSES section. The EA and FONSI have also been posted in the docket for the rule on the Federal eRulemaking Portal: https://www.regulations.gov. In the Searchbox, enter “RIN 1004-AE54” and click the “Search” button. Follow the instructions at this Web site. The BLM invites the public to review these documents and suggests that anyone wishing to submit comments on the EA and FONSI should do so in accordance with the instructions contained in the “Public Comment Procedures” section above.

    Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use (Executive Order 13211)

    This proposed rule is not a significant energy action under the definition in Executive Order 13211. A statement of Energy Effects is not required.

    Section 4(b) of Executive Order 13211 defines a “significant energy action” as “any action by an agency (normally published in the Federal Register) that promulgates or is expected to lead to the promulgation of a final rule or regulation, including notices of inquiry, advance notices of rulemaking, and notices of rulemaking: (1)(i) That is a significant regulatory action under Executive Order 12866 or any successor order, and (ii) Is likely to have a significant adverse effect on the supply, distribution, or use of energy; or (2) That is designated by the Administrator of [OIRA] as a significant energy action.”

    The rule temporarily suspends or delays certain requirements in the 2016 final rule and would reduce compliance costs in the short-term. The BLM determined that the 2016 final rule would not have impacted the supply, distribution, or use of energy and so the suspension or delay of many of the 2016 final rule's requirements until January 17, 2019, will likewise not have an impact on the supply, distribution, or use of energy. As such, we do not consider the proposed rule to be a “significant energy action” as defined in Executive Order 13211.

    Clarity of This Regulation (Executive Orders 12866)

    We are required by Executive Orders 12866 (section 1(b)(12)), 12988 (section 3(b)(1)(B)), and 13563 (section 1(a)), and by the Presidential Memorandum of June 1, 1988, to write all rules in plain language. This means that each rule must:

    (a) Be logically organized;

    (b) Use the active voice to address readers directly;

    (c) Use common, everyday words and clear language rather than jargon;

    (d) Be divided into short sections and sentences; and

    (e) Use lists and tables wherever possible.

    If you feel that we have not met these requirements, send us comments by one of the methods listed in the ADDRESSES section. To better help the BLM revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that you find unclear, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

    Authors

    The principal authors of this proposed rule are: James Tichenor and Michael Riches of the BLM Washington Office; Sheila Mallory of the BLM New Mexico State Office, Eric Jones of the BLM Moab, Utah Field Office; David Mankiewicz of the BLM Farmington, New Mexico Field Office; and Beth Poindexter of the BLM Dickinson, North Dakota Field Office; assisted by Faith Bremner of the BLM's Division of Regulatory Affairs and by the Department of the Interior's Office of the Solicitor.

    List of Subjects 43 CFR Part 3160

    Administrative practice and procedure; Government contracts; Indians—lands; Mineral royalties; Oil and gas exploration; Penalties; Public lands—mineral resources; Reporting and recordkeeping requirements.

    43 CFR Part 3170

    Administrative practice and procedure; Flaring; Government contracts; Incorporation by reference; Indians—lands; Mineral royalties; Immediate assessments; Oil and gas exploration; Oil and gas measurement; Public lands—mineral resources; Reporting and record keeping requirements; Royalty-free use; Venting.

    Dated: September 28, 2017. Katharine S. MacGregor, Acting Assistant Secretary for Land and Minerals Management. 43 CFR Chapter II

    For the reasons set out in the preamble, the Bureau of Land Management proposes to amend 43 CFR parts 3160 and 3170 as follows:

    PART 3160—ONSHORE OIL AND GAS OPERATIONS 1. The authority citation for part 3160 continues to read as follows: Authority:

    25 U.S.C. 396d and 2107; 30 U.S.C. 189, 306, 359, and 1751; and 43 U.S.C. 1732(b), 1733, and 1740.

    2. Amend § 3162.3-1 by revising paragraph (j) introductory text to read as follows:
    § 3162.3-1 Drilling applications and plans.

    (j) Beginning January 17, 2019, when submitting an Application for Permit to Drill an oil well, the operator must also submit a plan to minimize waste of natural gas from that well. The waste minimization plan must accompany, but would not be part of, the Application for Permit to Drill. The waste minimization plan must set forth a strategy for how the operator will comply with the requirements of 43 CFR subpart 3179 regarding control of waste from venting and flaring, and must explain how the operator plans to capture associated gas upon the start of oil production, or as soon thereafter as reasonably possible, including an explanation of why any delay in capture of the associated gas would be required. Failure to submit a complete and adequate waste minimization plan is grounds for denying or disapproving an Application for Permit to Drill. The waste minimization plan must include the following information:

    PART 3170—ONSHORE OIL AND GAS PRODUCTION 3. The authority citation for part 3170 continues to read as follows: Authority:

    25 U.S.C. 396d and 2107; 30 U.S.C. 189, 306, 359, and 1751; and 43 U.S.C. 1732(b), 1733, and 1740.

    4. Amend § 3179.7 by revising paragraphs (b) and (c) to read as follows:
    § 3179.7 Gas capture requirement.

    (b) Beginning January 17, 2019, the operator's capture percentage must equal:

    (1) For each month during the period from January 17, 2019, to December 31, 2020: 85 percent;

    (2) For each month during the period from January 1, 2021, to December 31, 2023: 90 percent;

    (3) For each month during the period from January 1, 2024, to December 31, 2026: 95 percent; and

    (4) For each month beginning January 1, 2027: 98 percent.

    (c) The term “capture percentage” in this section means the “total volume of gas captured” over the “relevant area” divided by the “adjusted total volume of gas produced” over the “relevant area.”

    (1) The term “total volume of gas captured” in this section means: For each month, the volume of gas sold from all of the operator's development oil wells in the relevant area plus the volume of gas from such wells used on lease, unit, or communitized area in the relevant area.

    (2) The term “adjusted total volume of gas produced” in this section means: The total volume of gas captured over the month plus the total volume of gas flared over the month from high pressure flares from all of the operator's development oil wells that are in production in the relevant area, minus:

    (i) For each month from January 17, 2019, to December 31, 2019: 5,400 Mcf times the total number of development oil wells “in production” in the relevant area;

    (ii) For each month from January 1, 2020, to December 31, 2020: 3,600 Mcf times the total number of development oil wells in production in the relevant area;

    (iii) For each month from January 1, 2021, to December 31, 2021: 1,800 Mcf times the total number of development oil wells in production in the relevant area; and

    (iv) For each month from January 1, 2022, to December 31, 2022: 1,500 Mcf times the total number of development oil wells in production in the relevant area;

    (v) For each month from January 1, 2023, to December 31, 2024: 1,200 Mcf times the total number of development oil wells in production in the relevant area;

    (vi) For each month from January 1, 2025, to December 31, 2025: 900 Mcf times the total number of development oil wells in production in the relevant area; and

    (vii) For each month after January 1, 2026: 750 Mcf times the total number of development.

    5. Amend § 3179.9 by revising paragraph (b)(1) introductory text to read as follows:
    § 3179.9 Measuring and reporting volumes of gas vented and flared.

    (b) * * *

    (1) If the operator estimates that the volume of gas flared from a high pressure flare stack or manifold equals or exceeds an average of 50 Mcf per day for the life of the flare, or the previous 12 months, whichever is shorter, then, beginning January 17, 2019, the operator must either:

    6. Amend § 3179.10 by revising paragraph (a) to read as follows:
    § 3179.10 Determinations regarding royalty-free flaring.

    (a) Approvals to flare royalty free, which are in effect as of January 17, 2017, will continue in effect until January 17, 2019.

    7. Amend § 3179.101 by adding paragraph (c) to read as follows:
    § 3179.101 Well drilling.

    (c) The operator must comply with this section beginning January 17, 2019.

    8. Amend § 3179.102 by adding paragraph (e) to read as follows:
    § 3179.102 Well completion and related operations.

    (e) The operator must comply with this section beginning January 17, 2019.

    9. Amend § 3179.201 by revising paragraph (d) to read as follows:
    § 3179.201 Equipment requirements for pneumatic controllers.

    (d) The operator must replace the pneumatic controller(s) by January 17, 2019, as required under paragraph (b) of this section. If, however, the well or facility that the pneumatic controller serves has an estimated remaining productive life of 3 years or less from January 17, 2017, then the operator may notify the BLM through a Sundry Notice and replace the pneumatic controller no later than 3 years from January 17, 2017.

    10. Amend § 3179.202 by revising paragraph (h) to read as follows:
    § 3179.202 Requirements for pneumatic diaphragm pumps.

    (h) The operator must replace the pneumatic diaphragm pump(s) or route the exhaust gas to capture or to a flare or combustion device by January 17, 2019, except that if the operator will comply with paragraph (c) of this section by replacing the pneumatic diaphragm pump with a zero-emission pump and the well or facility that the pneumatic diaphragm pump serves has an estimated remaining productive life of 3 years or less from January 17, 2017, the operator must notify the BLM through a Sundry Notice and replace the pneumatic diaphragm pump no later than 3 years from January 17, 2017.

    11. Amend § 3179.203 by revising paragraph (b) and paragraph (c) introductory text to read as follows:
    § 3179.203 Storage vessels.

    (b) Beginning January 17, 2019, and within 30 days after any new source of production is added to the storage vessel after January 17, 2019, the operator must determine, record, and make available to the BLM upon request, whether the storage vessel has the potential for VOC emissions equal to or greater than 6 tpy based on the maximum average daily throughput for a 30-day period of production. The determination may take into account requirements under a legally and practically enforceable limit in an operating permit or other requirement established under a Federal, State, local or tribal authority that limit the VOC emissions to less than 6 tpy.

    (c) If a storage vessel has the potential for VOC emissions equal to or greater than 6 tpy under paragraph (b) of this section, by January 17, 2019, or by January 17, 2020, if the operator must and will replace the storage vessel at issue in order to comply with the requirements of this section, the operator must:

    12. Amend § 3179.204 by adding paragraph (i) to read as follows:
    § 3179.204 Downhole well maintenance and liquids unloading.

    (i) The operator must comply with this section beginning January 17, 2019.

    13. Amend § 3179.301 by revising paragraph (f) to read as follows:
    § 3179.301 Operator responsibility.

    (f) The operator must make the first inspection of each site:

    (1) By January 17, 2019, for all existing sites;

    (2) Within 60 days of beginning production for new sites that begin production after January 17, 2019; and

    (3) Within 60 days of the date when an existing site that was out of service is brought back into service and re-pressurized after January 17, 2019.

    [FR Doc. 2017-21294 Filed 10-4-17; 8:45 am] BILLING CODE 4310-84-P
    82 192 Thursday, October 5, 2017 Notices COMMISSION ON CIVIL RIGHTS Agenda and Notice of Public Meeting of the South Dakota Advisory Committee AGENCY:

    Commission on Civil Rights.

    ACTION:

    Announcement of meetings.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission), and the Federal Advisory Committee Act (FACA), that an orientation and planning meeting of the South Dakota Advisory Committee to the Commission will convene at 2:00 p.m. (MDT) on Friday, October 6, 2017, via teleconference. The purpose of the meeting is to discuss next steps after the subtle racism briefing in March 2017.

    DATES:

    Friday, October 6, 2017, at 2:00 p.m. (MDT)

    ADDRESSES:

    To be held via teleconference:

    Conference Call Toll-Free Number: 1-800-289-0548, Conference ID: 9222878.

    TDD: Dial Federal Relay Service 1-800-977-8339 and give the operator the above conference call number and conference ID.

    FOR FURTHER INFORMATION CONTACT:

    David Mussatt, DFO, [email protected], 312-353-8311.

    SUPPLEMENTARY INFORMATION:

    Members of the public may listen to the discussion by dialing the following Conference Call Toll-Free Number: 1-800-289-0548; Conference ID: 9222878. Please be advised that before being placed into the conference call, the operator will ask callers to provide their names, their organizational affiliations (if any), and an email address (if available) prior to placing callers into the conference room. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free phone number.

    Persons with hearing impairments may also follow the discussion by first calling the Federal Relay Service (FRS) at 1-800-977-8339 and provide the FRS operator with the Conference Call Toll-Free Number: 1-800-289-0548, Conference ID: 9222878. Members of the public are invited to submit written comments; the comments must be received in the regional office by Monday, November 6, 2017. Written comments may be mailed to the Rocky Mountain Regional Office, U.S. Commission on Civil Rights, 1961 Stout Street, Suite 13-201, Denver, CO 80294, faxed to (303) 866-1050, or emailed to Evelyn Bohor at [email protected] Persons who desire additional information may contact the Rocky Mountain Regional Office at (303) 866-1040.

    Records and documents discussed during the meeting will be available for public viewing as they become available at https://database.faca.gov/committee/meetings.aspx?cid=274 and clicking on the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Rocky Mountain Regional Office, as they become available, both before and after the meeting. Persons interested in the work of this advisory committee are advised to go to the Commission's Web site, www.usccr.gov, or to contact the Rocky Mountain Regional Office at the above phone number, email or street address.

    Agenda • Welcome and Roll-call • Brief update on Commission and Regional Activities • Discuss next steps after briefing held in Aberdeen, SD, on March 24, 2017 Dr. Richard Braunstein, Chair, South Dakota Advisory Committee • Discuss Transcript, Sample Advisory Memorandums, Yankton Sioux Tribe Chairman testimony • Adjourn

    Exceptional Circumstance: Pursuant to 41 CFR 102-3.150, the notice for this meeting is given less than 15 calendar days prior to the meeting because of the exceptional circumstance that an administrative error caused the previous week's noticed meeting to be cancelled and rescheduled for the current date.

    Dated: October 2, 2017. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2017-21450 Filed 10-4-17; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [B-41-2017] Foreign-Trade Zone (FTZ) 283—West Tennessee Area; Authorization of Production Activity; MTD Consumer Group Inc.; Subzone 283A; (Landscaping Equipment and Off-Road Utility Vehicles); Martin, Tennessee

    On June 1, 2017, MTD Consumer Group Inc. submitted a notification of proposed production activity to the FTZ Board for its facility within Subzone 283A, in Martin, Tennessee.

    The notification was processed in accordance with the regulations of the FTZ Board (15 CFR part 400), including notice in the Federal Register inviting public comment (82 FR 27796, June 19, 2017). On September 29, 2017, the applicant was notified of the FTZ Board's decision that no further review of the activity is warranted at this time. The production activity described in the notification was authorized, subject to the FTZ Act and the FTZ Board's regulations, including Section 400.14.

    Dated: October 2, 2017. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2017-21467 Filed 10-4-17; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security Order Denying Export Privileges

    In the Matter of: Shantia Hassanshahi, a/k/a Shantia Hassan Shahi, a/k/a Shahi, a/k/a Shantia Haas, a/k/a Sean Haas, Inmate Number: 65586-112, USP Lompoc, U.S. Penitentiary, 3901 Klein Blvd., Lompoc, CA 93436.

    On December 12, 2016, in the U.S. District Court for the District of Columbia, Shantia Hassanshahi, a/k/a Shantia Hassan Shahi, a/k/a Shahi, a/k/a Shantia Haas, a/k/a Sean Haas (“Hassanshahi”) was convicted of violating the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2012)) (“IEEPA”). Specifically, Hassanshahi was convicted of willfully conspiring to export and cause the exportation of goods and technology from Canada to Iran, as well as services related thereto from the United States to Iran, without having first obtained the required license from the U.S. Department of the Treasury's Office of Foreign Assets Control. Hassanshahi was sentenced to 12 months in prison, one year of supervised release, 100 hours of community service, and a $100 assessment.

    Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”) 1 provides, in pertinent part, that “[t]he Director of the Office of Exporter Services, in consultation with the Director of the Office of Export Enforcement, may deny the export privileges of any person who has been convicted of a violation of the EAA [Export Administration Act], the EAR, or any order, license, or authorization issued thereunder; any regulation, license or order issued under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706); 18 U.S.C. 793, 794 or 798; section 4(b) of the Internal Security Act of 1950 (50 U.S.C. 783(b)); or section 38 of the Arms Export Control Act (22 U.S.C. 2778).” 15 CFR 766.25(a); see also Section 11(h) of the EAA, 50 U.S.C. 4610(h). The denial of export privileges under this provision may be for a period of up to 10 years from the date of the conviction. 15 CFR 766.25(d); see also 50 U.S.C. 4610(h). In addition, Section 750.8 of the Regulations states that the Bureau of Industry and Security's Office of Exporter Services may revoke any Bureau of Industry and Security (“BIS”) licenses previously issued pursuant to the Export Administration Act (“EAA” or “the Act”), or pursuant to the Regulations, in which the person had an interest at the time of his/her conviction.

    1 The Regulations are currently codified in the Code of Federal Regulations at 15 CFR parts 730-774 (2017). The Regulations issued pursuant to the Export Administration Act (50 U.S.C. 4601-4623 (Supp. III 2015) (available at http://uscode.house.gov)) (“EAA” or “the Act”). Since August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 15, 2017 (82 FR 39005 (Aug. 16, 2017)), has continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2012)).

    BIS has received notice of Hassanshahi's conviction for violating the IEEPA, and has provided notice and an opportunity for Hassanshahi to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Hassanshahi.

    Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Hassanshahi's export privileges under the Regulations for a period of five (5) years from the date of Hassanshahi's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Hassanshahi had an interest at the time of his conviction.

    Accordingly, it is hereby Ordered:

    First, from the date of this Order until December 12, 2021, Shantia Hassanshahi, a/k/a Shantia Hassan Shahi, a/k/a Shahi, a/k/a Shantia Haas, a/k/a Sean Haas, with a last known address of Inmate Number: 65586-112, USP Lompoc, U.S. Penitentiary, 3901 Klein Blvd., Lompoc, CA 93436, and when acting for or on his behalf, his successors, assigns, employees, agents or representatives (“the Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, including, but not limited to:

    A. Applying for, obtaining, or using any license, license exception, or export control document;

    B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or

    C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.

    Second, no person may, directly or indirectly, do any of the following:

    A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;

    B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;

    C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;

    D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or

    E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.

    Third, after notice and opportunity for comment as provided in Section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Hassanshahi by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business may also be made subject to the provisions of this Order in order to prevent evasion of this Order.

    Fourth, in accordance with Part 756 of the Regulations, Hassanshahi may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.

    Fifth, a copy of this Order shall be delivered to Hassanshahi, and shall be published in the Federal Register.

    Sixth, this Order is effective immediately and shall remain in effect until December 12, 2021.

    Issued this 28th day of September, 2017. Karen H. Nies-Vogel, Director, Office of Exporter Services.
    [FR Doc. 2017-21474 Filed 10-4-17; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security In the Matter of: Shehzad John, Currently Incarcerated at: Inmate Number: 91045-054, FCI Ashland, Federal Correctional Institution, P.O. Box 6001, Ashland, KY 41105, and With an Address at: 207 Border Street, Columbus, OH 43207 Order Denying Export Privileges

    On August 1, 2016, in the U.S. District Court for the Southern District of New York, Shehzad John was convicted of violating the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2012)) (“IEEPA”). Specifically, Shehzad John was convicted of willfully and knowingly exporting and attempting to export from the United States to Pakistan items on the Commerce Control List, namely, a Bushnell Optical scope, a Monstrum Laser Aimer, an AR 15 30mm red dot sight, and a NcStar red laser sight, without the required Department of Commerce licenses. Shehzad John was sentenced to 71 months in prison, three years of supervised release, a fine of $10,000, and an assessment of $100.

    Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”) 1 provides, in pertinent part, that “[t]he Director of the Office of Exporter Services, in consultation with the Director of the Office of Export Enforcement, may deny the export privileges of any person who has been convicted of a violation of the EAA [Export Administration Act], the EAR, or any order, license, or authorization issued thereunder; any regulation, license or order issued under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706); 18 U.S.C. 793, 794 or 798; section 4(b) of the Internal Security Act of 1950 (50 U.S.C. 783(b)); or section 38 of the Arms Export Control Act (22 U.S.C. 2778).” 15 CFR 766.25(a); see also Section 11(h) of the EAA, 50 U.S.C. 4610(h). The denial of export privileges under this provision may be for a period of up to 10 years from the date of the conviction. 15 CFR 766.25(d); see also 50 U.S.C. 4610(h). In addition, Section 750.8 of the Regulations states that the Bureau of Industry and Security's Office of Exporter Services may revoke any Bureau of Industry and Security (“BIS”) licenses previously issued pursuant to the Export Administration Act (“EAA” or “the Act”) or the Regulations in which the person had an interest at the time of his/her conviction.

    1 The Regulations are currently codified in the Code of Federal Regulations at 15 CFR parts 730-774 (2017). The Regulations issued pursuant to the Export Administration Act (50 U.S.C. 4601-4623 (Supp. III 2015) (available at http://uscode.house.gov)) (“EAA” or “the Act”). Since August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 15, 2017 (82 FR 39,005 (Aug. 16, 2017)), has continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2012)).

    BIS has received notice of Shehzad John's conviction for violating IEEPA and has provided notice and an opportunity for Shehzad John to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Shehzad John.

    Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Shehzad John's export privileges under the Regulations for a period of 10 years from the date of Shehzad John's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Shehzad John had an interest at the time of his conviction.

    Accordingly, it is hereby ordered:

    First, from the date of this Order until August 1, 2026, Shehzad John, currently incarcerated at: Inmate Number: 91045-054, FCI Ashland, Federal Correctional Institution, P.O. Box 6001, Ashland, KY 41105, and with a last known address of 207 Border Street, Columbus, OH 43207, and when acting for or on his behalf, his successors, assigns, employees, agents or representatives (“the Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, including, but not limited to:

    A. Applying for, obtaining, or using any license, license exception, or export control document;

    B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or

    C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.

    Second, no person may, directly or indirectly, do any of the following:

    A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;

    B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;

    C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;

    D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or

    E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.

    Third, after notice and opportunity for comment as provided in Section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Shehzad John by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business may also be made subject to the provisions of this Order in order to prevent evasion of this Order.

    Fourth, in accordance with Part 756 of the Regulations, Shehzad John may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.

    Fifth, a copy of this Order shall be delivered to Shehzad John, and shall be published in the Federal Register.

    Sixth, this Order is effective immediately and shall remain in effect until August 1, 2026.

    Issued this 28th day of September, 2017. Karen H. Nies-Vogel, Director, Office of Exporter Services.
    [FR Doc. 2017-21472 Filed 10-4-17; 8:45 am] BILLING CODE -P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security In the Matter of: Tayabi Fazal Hussain, Lathifa Tower, Apt #1107, Al Nahda 1, Dubai, UAE Order Denying Export Privileges

    On October 3, 2016, in the U.S. District Court for the Northern District of Illinois, Tayabi Fazal Hussain (“Hussain”) was convicted of violating the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2012)) (“IEEPA”). Specifically, Hussain knowingly and willfully conspired to export and caused the export of numerous types of goods, including, inter alia, optical and telescopic equipment and several sets of gas turbine mobile generators, from the United States to Iran, without having obtained the required U.S. Government authorization. Hussain was sentenced to 15 months in prison, with credit for time served, and a special assessment of $100.

    Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”) 1 provides, in pertinent part, that “[t]he Director of the Office of Exporter Services, in consultation with the Director of the Office of Export Enforcement, may deny the export privileges of any person who has been convicted of a violation of the EAA [Export Administration Act], the EAR, or any order, license or authorization issued thereunder; any regulation, license, or order issued under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706); 18 U.S.C. 793, 794 or 798; section 4(b) of the Internal Security Act of 1950 (50 U.S.C. 783(b)), or section 38 of the Arms Export Control Act (22 U.S.C. 2778).” 15 CFR 766.25(a); see also Section 11(h) of the EAA, 50 U.S.C. 4610(h). The denial of export privileges under this provision may be for a period of up to 10 years from the date of the conviction. 15 CFR 766.25(d); see also 50 U.S.C. 4610(h). In addition, Section 750.8 of the Regulations states that the Bureau of Industry and Security's Office of Exporter Services may revoke any Bureau of Industry and Security (“BIS”) licenses previously issued pursuant to the Export Administration Act (“EAA” or “the Act”), or pursuant to the Regulations, in which the person had an interest at the time of his/her conviction.

    1 The Regulations are currently codified in the Code of Federal Regulations at 15 CFR parts 730-774 (2017). The Regulations issued pursuant to the Export Administration Act (50 U.S.C. 4601-4623 (Supp. III 2015) (available at http://uscode.house.gov)) (“EAA” or “the Act”). Since August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 15, 2017 (82 FR 39005 (Aug. 16, 2017)), has continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2012)).

    BIS has received notice of Hussain's conviction for violating the IEEPA, and has provided notice and an opportunity for Hussain to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Hussain.

    Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Hussain's export privileges under the Regulations for a period of 10 years from the date of Hussain's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Hussain had an interest at the time of his conviction.

    Accordingly, it is hereby ordered:

    First, from the date of this Order until October 3, 2026, Tayabi Fazal Hussain, with a last known address of Lathifa Tower, Apt # 1107, Al Nahda 1, Dubai, UAE, and when acting for or on his behalf, his successors, assigns, employees, agents or representatives (“the Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, including, but not limited to:

    A. Applying for, obtaining, or using any license, license exception, or export control document;

    B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or

    C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.

    Second, no person may, directly or indirectly, do any of the following:

    A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;

    B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;

    C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;

    D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or

    E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.

    Third, after notice and opportunity for comment as provided in Section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Hussain by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business may also be made subject to the provisions of this Order in order to prevent evasion of this Order.

    Fourth, in accordance with Part 756 of the Regulations, Hussain may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.

    Fifth, a copy of this Order shall be delivered to the Hussain, and shall be published in the Federal Register.

    Sixth, this Order is effective immediately and shall remain in effect until October 3, 2026.

    Issued this 28th day of September, 2017. Karen H. Nies-Vogel, Director, Office of Exporter Services.
    [FR Doc. 2017-21476 Filed 10-4-17; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security In the Matter of: Mark Henry (a/k/a Weida Zheng, a/k/a Scott Russel, a/k/a Bob Wilson, a/k/a Joanna Zhong), Inmate Number: 75602-053, FCI Schuylkill, Federal Correctional Institution, Satellite Camp, P.O. Box 670, Minersville, PA 17954; Respondent; Dahua Electronics Corporation (a/k/a Bao An Corporation), 134-12 59th Avenue, Flushing, NY 11355, Related Person Order Denying Privileges A. Denial of Export Privileges of Mark Henry, a/k/a Weida Zheng, a/k/a Scott Russel, a/k/a Bob Wilson, a/k/a Joanna Zhong

    On November 19, 2015, in the U.S. District Court for the Eastern District of New York, Mark Henry, a/k/a Weida Zheng, a/k/a Scott Russel, a/k/a Bob Wilson, a/k/a Joanna Zhong (“Henry”), was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Specifically, Henry was convicted of willfully and knowingly exporting, causing to be exported, and attempting to export from the United States to Taiwan defense articles listed on the United States Munitions List, specifically, ablative materials for use, among other things, as a protective coating for rocket nozzles, without the required State Department license. Henry was sentenced to 78 months in prison for violating Sections 38(b)(2) and (c) of the AECA, along with three years of supervised release and a $200 assessment.1

    1 Henry also was convicted of a second count, specifically, conspiracy in violation of 18 U.S.C. Section 371. He was sentenced on this count to 60 months in prison and three years of supervision release. His sentence on this count runs concurrently with his sentence, disused in the text above, for violating Section 38 of the AECA.

    Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”) 1 provides, in pertinent part, that “[t]he Director of the Office of Exporter Services, in consultation with the Director of the Office of Export Enforcement, may deny the export privileges of any person who has been convicted of a violation of the EAA [Export Administration Act of 1979], the EAR, or any order, license or authorization issued thereunder; any regulation, license, or order issued under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706); 18 U.S.C. 793, 794 or 798; section 4(b) of the Internal Security Act of 1950 (50 U.S.C. 783(b)), or section 38 of the Arms Export Control Act (22 U.S.C. 2778).” 15 CFR 766.25(a); see also Section 11(h) of the EAA, 50 U.S.C. 4610(h). The denial of export privileges under this provision may be for a period of up to ten (10) years from the date of the conviction. 15 CFR 766.25(d); see also 50 U.S.C. 4610(h). In addition, Section 750.8 of the Regulations states that the Bureau of Industry and Security (“BIS”)'s Office of Exporter Services may revoke any BIS licenses previously issued pursuant to the EAA or the Regulations in which the person had an interest at the time of his/her conviction.

    1 The Regulations are currently codified in the Code of Federal Regulations at 15 CFR parts 730-774 (2017). The Regulations issued pursuant to the Export Administration Act of 1979 (50 U.S.C. 4601-4623 (Supp. III 2015) (available at http://uscode.house.gov)) (“EAA” or “the Act”). Since August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 15, 2017 (82 FR 39005 (Aug. 16, 2017)), has continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2012)).

    BIS received notice of Henry's conviction for violating Section 38 of the AECA, and has provided notice and an opportunity for Henry to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Henry. Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Henry's export privileges under the Regulations for a period of ten (10) years from the date of Henry's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Henry had an interest at the time of his conviction.

    B. Denial of Export Privileges of Related Person Dahua Electronics Corporation, a/k/a Bao An Corporation

    Section 766.25(h) of the Regulations provides that the Director of BIS's Office of Exporter Services, in consultation with the Director of BIS's Office of Export Enforcement, may take action in accordance with Section 766.23 of the Regulations to make applicable to related persons a denial order that is being sought or has issued under Section 766.25. Section 766.23 provides, in turn, that in order to prevent evasion of a denial order issued pursuant to Part 766 of the Regulations, including pursuant to Section 766.25, the denial order made be made applicable not only to the respondent, but also to other persons related to the respondent by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business.

    As provided in Section 766.23, BIS gave notice to Dahua Electronics Corporation a/k/a Bao An Corporation (“Dahua”) that it intended to deny Mark Henry's export privileges pursuant to Section 766.25 for a period of up to ten (10) years from the date of his conviction and intended to make that denial order applicable to Dahua pursuant to Sections 766.25 and 766.23.2 BIS also provided notice that it has reason to believe that Dahua is related to Henry as set forth in Section 766.23, that is, by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business, and reason to believe that naming Dahua as a person related to Henry would be necessary to prevent evasion of a denial order imposed against Henry. BIS gave Dahua an opportunity to oppose its addition as a related party by informing Dahua that it could make a written submission describing why Dahua is not related to Henry or why a denial order against Henry should not be applied to Dahua.

    2 BIS provided notice to Dahua via Henry.

    Having received no submission from or on behalf of Dahua, I have decided, following consultations with BIS's Office of Export Enforcement, including its Director, to name Dahua as a Related Person and make this Denial Order applicable to Dahua, thereby denying its export privileges for ten (10) years from the date of Henry's conviction, that is, until November 19, 2025. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Dahua had an interest at the time of Henry's conviction.

    Dahua was incorporated in New York State, and remains listed there as an active corporation. Henry, a naturalized U.S. citizen born in China, operated Dahua out of his residence in Flushing, New York, and is believed to own Dahua. He used Dahua to purchase various items from companies located in the United States, including tools, machine parts, materials used in machinery, and industrial chemicals, for export to end users or customers located in Asia, including China and Taiwan. Operating through Dahua, Henry received requests for products from customers located overseas and solicited orders for those products from suppliers and manufacturers located in the United States, including in connection with the violation of the AECA for which he was convicted. Thus, I find that Dahua is related to Henry within the meaning of Section 766.23, and that Dahua should be added as a related person to prevent evasion of this order.

    Accordingly, it is hereby ordered:

    First, from the date of this Order until November 19, 2025, Mark Henry, a/k/a Weida Zheng, a/k/a Scott Russel, a/k/a Bob Wilson, a/k/a Joanna Zhong, with a last known address of FCI Schuylkill, Federal Correctional Institution, Satellite Camp, P.O. Box 670, Minersville, PA 17954, and when acting for or on his behalf, his successors, assigns, employees, agents, or representatives, and Dahua Electronics Corporation, a/k/a Bao An Corporation, with a last known address of 134-12 59th Avenue, Flushing, NY 11355, and when acting for or on its behalf, its successors, assigns, directors, officers, employees, agents, or representatives (each “a Denied Person” and collectively “the Denied Persons”) may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, or in any other activity subject to the Regulations, including but not limited to:

    A. Applying for, obtaining, or using any license, license exception, or export control document;

    B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or

    C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.

    Second, no person may, directly or indirectly, do any of the following:

    A. Export or reexport to or on behalf of a Denied Person any item subject to the Regulations;

    B. Take any action that facilitates the acquisition or attempted acquisition by a Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby a Denied Person acquires or attempts to acquire such ownership, possession or control;

    C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from a Denied Person of any item subject to the Regulations that has been exported from the United States;

    D. Obtain from a Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or

    E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by a Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by a Denied Person, if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.

    Third, in addition to the Related Person named above, after notice and opportunity for comment as provided in section 766.23 of the Regulations, any other individual, firm, corporation, or other association or organization or other person related to a Denied Person by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business may also be made subject to the provisions of this Order if necessary to prevent evasion of this Order.

    Fourth, in accordance with Part 756 and Section 766.25(g) of the Regulations, Henry may file an appeal of the issuance of this Order against him with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.

    Fifth, in accordance with Part 756 and Section 766.23(c) of the Regulations, Dahua may file an appeal of its being named as a related person in this Order with the Under Secretary of Commerce for Industry and Security.3 This appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.

    3 As set forth in Section 766.23(c), the only issues that may be raised in such an appeal are whether the person so named is related to the respondent and whether the order is justified in order to prevent evasion. Thus, Dahua may not appeal the issuance of the denial order against Henry.

    Sixth, a copy of this Order shall be delivered to Henry and Dahua and shall be published in the Federal Register.

    Seventh, this Order is effective immediately and shall remain in effect until November 19, 2025.

    Issued this 28th day of September, 2017. Karen H. Nies-Vogel, Director, Office of Exporter Services.
    [FR Doc. 2017-21475 Filed 10-4-17; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security In the Matter of: Robert J. Shubert, Sr., Currently Incarcerated at: Inmate Number: 96749-020, FCI Coleman Low, P.O. Box 1031, Coleman, FL 33521; and With a Prior Known Address at: 417 Hedlund Drive, Warner Robbins, GA 31088 Order Denying Export Privileges

    On October 15, 2014, in the U.S. District Court, Middle District of Georgia, Robert J. Shubert, Sr. (“Shubert”) was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Specifically, Shubert was convicted of knowingly and willfully exporting, from the United States to Japan, Dual Sensor Night Vision Goggles designated as defense articles on the United States Munitions List, without the required U.S. Department of State licenses. Shubert was sentenced to 78 months in prison, 36 months of supervised release, a $15,000 fine, and a $300 assessment.

    Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”) 1 provides, in pertinent part, that “[t]he Director of the Office of Exporter Services, in consultation with the Director of the Office of Export Enforcement, may deny the export privileges of any person who has been convicted of a violation of the EAA [Export Administration Act], the EAR, or any order, license, or authorization issued thereunder; any regulation, license or order issued under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706); 18 U.S.C. 793, 794 or 798; section 4(b) of the Internal Security Act of 1950 (50 U.S.C. 783(b)); or section 38 of the Arms Export Control Act (22 U.S.C. 2778).” 15 CFR 766.25(a); see also Section 11(h) of the EAA, 50 U.S.C. 4610(h). The denial of export privileges under this provision may be for a period of up to 10 years from the date of the conviction. 15 CFR 766.25(d); see also 50 U.S.C. 4610(h). In addition, Section 750.8 of the Regulations states that the Bureau of Industry and Security's Office of Exporter Services may revoke any Bureau of Industry and Security (“BIS”) licenses previously issued pursuant to the Export Administration Act (“EAA” or “the Act”) or the Regulations in which the person had an interest at the time of his/her conviction.

    1 The Regulations are currently codified in the Code of Federal Regulations at 15 CFR parts 730-774 (2017). The Regulations issued pursuant to the Export Administration Act (50 U.S.C. 4601-4623 (Supp. III 2015) (available at http://uscode.house.gov)) (“EAA” or “the Act”). Since August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 15, 2017 (82 FR 39005 (Aug. 16, 2017)), has continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2012)).

    BIS has received notice of Shubert's conviction for violating Section 38 of the AECA, and has provided notice and an opportunity for Shubert to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Shubert.

    Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Shubert's export privileges under the Regulations for a period of ten (10) years from the date of Shubert's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Shubert had an interest at the time of his conviction.

    Accordingly, it is hereby ordered:

    First, from the date of this Order until October 15, 2024, Robert J. Shubert, Sr., currently incarcerated at Inmate Number: 96749-020, FCI Coleman Low, P.O. Box 1031, Coleman, FL 33521, and with a prior known address of 417 Hedlund Drive, Warner Robbins, GA 31088, and when acting for or on his behalf, his successors, assigns, employees, agents or representatives (“the Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, including, but not limited to:

    A. Applying for, obtaining, or using any license, license exception, or export control document;

    B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or

    C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.

    Second, no person may, directly or indirectly, do any of the following:

    A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;

    B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;

    C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;

    D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or

    E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.

    Third, after notice and opportunity for comment as provided in Section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Shubert by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business may also be made subject to the provisions of this Order in order to prevent evasion of this Order.

    Fourth, in accordance with Part 756 of the Regulations, Shubert may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.

    Fifth, a copy of this Order shall be delivered to Shubert and shall be published in the Federal Register.

    Sixth, this Order is effective immediately and shall remain in effect until October 15, 2024.

    Issued this 28th day of September, 2017. Karen H. Nies-Vogel, Director, Office of Exporter Services.
    [FR Doc. 2017-21473 Filed 10-4-17; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE Bureau of Industry And Security Order Denying Export Privileges

    In the Matter of: John Francis Stribling, Inmate Number: 87652-083, FCI Loretto, P.O. Box 1000, Loretto, PA 15940.

    On July 6, 2016, in the U.S. District Court, Eastern District of Virginia, John Francis Stribling (“Stribling”) was convicted of violating Section 38 of the Arms Export Control Act (22 U.S.C. 2778 (2012)) (“AECA”). Specifically, Stribling was convicted of knowingly and willfully exporting from the United States to Indonesia, two pistols and two rifles designated as defense articles on the United States Munitions List, without the required U.S. Department of State licenses. Stribling was sentenced to two years in prison, three years of supervised release, and a $100 assessment.

    Section 766.25 of the Export Administration Regulations (“EAR” or “Regulations”) 1 provides, in pertinent part, that “[t]he Director of the Office of Exporter Services, in consultation with the Director of the Office of Export Enforcement, may deny the export privileges of any person who has been convicted of a violation of the EAA [Export Administration Act], the EAR, or any order, license, or authorization issued thereunder; any regulation, license or order issued under the International Emergency Economic Powers Act (50 U.S.C. 1701-1706); 18 U.S.C. 793, 794 or 798; section 4(b) of the Internal Security Act of 1950 (50 U.S.C. 783(b)); or section 38 of the Arms Export Control Act (22 U.S.C. 2778).” 15 CFR 766.25(a); see also Section 11(h) of the EAA, 50 U.S.C. 4610(h). The denial of export privileges under this provision may be for a period of up to 10 years from the date of the conviction. 15 CFR 766.25(d); see also 50 U.S.C. 4610(h). In addition, Section 750.8 of the Regulations states that the Bureau of Industry and Security's Office of Exporter Services may revoke any Bureau of Industry and Security (“BIS”) licenses previously issued pursuant to the Export Administration Act (“EAA” or “the Act”) or the Regulations in which the person had an interest at the time of his/her conviction.

    1 The Regulations are currently codified in the Code of Federal Regulations at 15 CFR parts 730-774 (2017). The Regulations issued pursuant to the Export Administration Act (50 U.S.C. 4601-4623 (Supp. III 2015) (available at http://uscode.house.gov)) (“EAA” or “the Act”). Since August 21, 2001, the Act has been in lapse and the President, through Executive Order 13222 of August 17, 2001 (3 CFR, 2001 Comp. 783 (2002)), which has been extended by successive Presidential Notices, the most recent being that of August 15, 2017 (82 FR 39005 (Aug. 16, 2017)), has continued the Regulations in effect under the International Emergency Economic Powers Act (50 U.S.C. 1701, et seq. (2012)).

    BIS has received notice of Stribling's conviction for violating Section 38 of the AECA, and has provided notice and an opportunity for Stribling to make a written submission to BIS, as provided in Section 766.25 of the Regulations. BIS has not received a submission from Stribling.

    Based upon my review and consultations with BIS's Office of Export Enforcement, including its Director, and the facts available to BIS, I have decided to deny Stribling's export privileges under the Regulations for a period of five (5) years from the date of Stribling's conviction. I have also decided to revoke all licenses issued pursuant to the Act or Regulations in which Stribling had an interest at the time of his conviction.

    Accordingly, it is hereby ordered:

    First, from the date of this Order until July 6, 2021, John Francis Stribling, with a last known address of Inmate Number: 87652-083, FCI Loretto, P.O. Box 1000, Loretto, PA 15940, and when acting for or on his behalf, his successors, assigns, employees, agents or representatives (“the Denied Person”), may not, directly or indirectly, participate in any way in any transaction involving any commodity, software or technology (hereinafter collectively referred to as “item”) exported or to be exported from the United States that is subject to the Regulations, including, but not limited to:

    A. Applying for, obtaining, or using any license, license exception, or export control document;

    B. Carrying on negotiations concerning, or ordering, buying, receiving, using, selling, delivering, storing, disposing of, forwarding, transporting, financing, or otherwise servicing in any way, any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or engaging in any other activity subject to the Regulations; or

    C. Benefitting in any way from any transaction involving any item exported or to be exported from the United States that is subject to the Regulations, or from any other activity subject to the Regulations.

    Second, no person may, directly or indirectly, do any of the following:

    A. Export or reexport to or on behalf of the Denied Person any item subject to the Regulations;

    B. Take any action that facilitates the acquisition or attempted acquisition by the Denied Person of the ownership, possession, or control of any item subject to the Regulations that has been or will be exported from the United States, including financing or other support activities related to a transaction whereby the Denied Person acquires or attempts to acquire such ownership, possession or control;

    C. Take any action to acquire from or to facilitate the acquisition or attempted acquisition from the Denied Person of any item subject to the Regulations that has been exported from the United States;

    D. Obtain from the Denied Person in the United States any item subject to the Regulations with knowledge or reason to know that the item will be, or is intended to be, exported from the United States; or

    E. Engage in any transaction to service any item subject to the Regulations that has been or will be exported from the United States and which is owned, possessed or controlled by the Denied Person, or service any item, of whatever origin, that is owned, possessed or controlled by the Denied Person if such service involves the use of any item subject to the Regulations that has been or will be exported from the United States. For purposes of this paragraph, servicing means installation, maintenance, repair, modification or testing.

    Third, after notice and opportunity for comment as provided in Section 766.23 of the Regulations, any other person, firm, corporation, or business organization related to Stribling by ownership, control, position of responsibility, affiliation, or other connection in the conduct of trade or business may also be made subject to the provisions of this Order in order to prevent evasion of this Order.

    Fourth, in accordance with Part 756 of the Regulations, Stribling may file an appeal of this Order with the Under Secretary of Commerce for Industry and Security. The appeal must be filed within 45 days from the date of this Order and must comply with the provisions of Part 756 of the Regulations.

    Fifth, a copy of this Order shall be delivered to Stribling and shall be published in the Federal Register.

    Sixth, this Order is effective immediately and shall remain in effect until July 6, 2021.

    Issued this 28th day of September 2017. Karen H. Nies-Vogel, Director, Office of Exporter Services.
    [FR Doc. 2017-21471 Filed 10-4-17; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE International Trade Administration [C-489-817] Oil Country Tubular Goods From the Republic of Turkey: Amendment of Countervailing Duty Order AGENCY:

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

    SUMMARY:

    On May 30, 2017, the United States Court of Appeals for the Federal Circuit (CAFC) affirmed the Department of Commerce's (the Department) remand redetermination concerning the countervailing duty (CVD) investigation of oil country tubular goods (OCTG) from the Republic of Turkey (Turkey). This judgment was not appealed within the 90-day deadline, and became final and conclusive on August 28, 2017. The Department previously notified the public that the final judgment in this case by the U.S. Court of International Trade (CIT) is not in harmony with the Department's final determination in the CVD investigation of OCTG from Turkey. Because the judgment in this case is now final and conclusive, the Department is amending its CVD order on OCTG from Turkey covering the period of investigation of January 1, 2012, through December 31, 2012, to exclude Tosyali Dis Ticaret A.S, Tosçelik Profil ve Sac Endustrisi A.S., Tosyali Elektrik Enerjisi Toptan Satis Ith. Ihr. A.S., Tosyali Demir Celik San. A.S., and Tosyali Holding A.S. (collectively, Tosçelik) from the order, and to revise the net countervailing subsidy rate for Borusan Istikbal Ticaret, Borusan Mannesmann Boru Sanayi, Borusan Mannesmann Boru Yatirim Holding A.S., and Borusan Holding A.S. (collectively, Borusan) and the “all others” rate.

    DATES:

    Applicable March 3, 2016.

    FOR FURTHER INFORMATION CONTACT:

    Aimee Phelan or Jennifer Shore, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone (202) 482-0697 or (202) 482-2778, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    On July 18, 2014, the Department published its final affirmative CVD determination and final affirmative critical circumstances determination in this proceeding.1 The Department reached affirmative determinations for mandatory respondents Borusan and Tosçelik. On September 2, 2014, the International Trade Commission notified the Department of its affirmative determination that an industry in the U.S. was materially injured by reason of OCTG that were subsidized by the Government of Turkey (GOT).2 On September 10, 2014, the Department published the CVD orders on OCTG from India and the Republic of Turkey.3 The petitioner, Maverick Tube Corporation, and Borusan, each appealed the Final Determination to the CIT.4 In Borusan, the CIT remanded for further consideration the Department's finding of distortion in the Turkish hot-rolled steel (HRS) market, the Department's selection of a HRS benchmark, and the Department's application of facts available with adverse inferences with respect to purchases of HRS by respondent Borusan. In Maverick, the CIT remanded issues pertaining to the Department's HRS benchmark calculations as well and, in addition, the Department's benchmark valuation for a parcel of land that the GOT granted to Tosçelik in 2008 for less than adequate remuneration.

    1See Certain Oil Country Tubular Goods from the Republic of Turkey: Final Affirmative Countervailing Duty Determination and Final Affirmative Critical Circumstances Determination, 79 FR 41964 (July 18, 2014) (Final Determination).

    2See Letter from the ITC to the Department, dated September 2, 2014; see also Certain Oil Country Tubular Goods from India, Korea, Philippines, Taiwan, Thailand, Turkey, Ukraine, and Vietnam (Investigation Nos. 701-TA-499-500 and 731-TA-1215-1217 and 1219-1223 (Final) USITC Publication 4489, September 2014.

    3See Certain Oil Country Tubular Goods from India and the Republic of Turkey: Countervailing Duty Orders and Amended Affirmative Final Countervailing Duty Determination for India, 79 FR 53688 (September 10, 2014) (Orders).

    4See Borusan Mannesmann Boru Sanayi Ve Ticaret A.S. v. United States, 61 F. Supp. 3d 1306 (CIT 2015) (Borusan); and Maverick Tube Corporation v. United States, Consol. Court No. 14-00229, Slip Op. 15-59 (CIT 2015) (Maverick). On June 22, 2015, the CIT granted a motion to consolidate Court No. 14-00214 into Consolidated Court No. 14-00229.

    On August 31, 2015, the Department issued its Remand Redetermination in accordance with the CIT's Order.5 On remand, the Department revised the net countervailable subsidy rates for Borusan, Tosçelik, and the “all others” rate. On February 22, 2016, the CIT affirmed the Department's Remand Redetermination. 6 In response to the CIT's February 22, 2016, decision, the Department published a notice of court decision not in harmony with the final determination of the CVD investigation, and amended its Final Determination with respect to Borusan, Tosçelik, and the “all others” rate.7 The revised net countervailable subsidy rates for Tosçelik and Borusan are 0.95 percent and 2.39 percent, respectively. The revised “all others” rate is 2.39 percent. Because neither Tosçelik nor Borusan had a superseding cash deposit rate (e.g., from an administrative review), the Department issued amended cash deposit instructions to U.S. Customs and Border Protection (CBP) on March 16, 2016.8

    5See Final Results of Remand Redetermination, Borusan Mannesmann Boru Sanayi Ve Ticaret A.S. and Borusan Istikbal Ticaret v. United States; Maverick Tube Corporation v. United States, Consol. Ct. No. 14-00229, 61 F. Supp. 3d 1306 and Slip Op. 15-59, dated August 31, 2017 (Remand Redetermination).

    6See Maverick Tube Corporation v. United States, CIT Consol. Court No. 14-00229, Slip Op. 16-16 (February 22, 2016).

    7See Oil Country Tubular Goods from Turkey: Notice of Court Decision not in Harmony with the Final Determination of the Countervailing Duty Investigation, 81 FR 12691 (March 10, 2016) (Timken Notice).

    8See Message No. 6076302, dated March 16, 2016 (Message No. 6076302).

    Borusan appealed, and Maverick cross-appealed, the CIT's decision to the CAFC, which affirmed the Department's Remand Redetermination on May 30, 2017.9 Parties had 90 days, until August 28, 2017, to appeal the CAFC's decision by filing a petition for writ of certiorari with the United States Supreme Court. No party appealed.

    9See Maverick Tube Corporation v. United States, 857 F.3d 1353 (Fed. Cir. 2017).

    Amendment of the Order on OCTG From Turkey

    The period to appeal the CAFC's decision has passed, and a final and conclusive court decision has been reached in this case. Therefore, the Department is amending the CVD order on OCTG from Turkey 10 to exclude from the order subject merchandise produced and exported by Tosçelik 11 because the revised net countervailable subsidy rate is de minimis.

    10See Orders.

    11 The Department determined that Tosyali Dis Ticaret A.S, Tosçelik Profil ve Sac Endustrisi A.S., Tosyali Elektrik Enerjisi Toptan Satis Ith. Ihr. A.S., Tosyali Demir Celik San. A.S., and Tosyali Holding A.S. are cross-owned. See Final Determination and accompanying Issues and Decision Memorandum, at 6-8.

    Net Countervailable Subsidy Rates

    The net countervailable subsidy rates are as follows:

    Producer/exporter Net subsidy rate
  • (percent)
  • Borusan Istikbal Ticaret, Borusan Mannesmann Boru Sanayi, Borusan Mannesmann Boru Yatirim Holding A.S., and Borusan Holding A.S 12 2.39 Tosyali Dis Ticaret A.S, Tosçelik Profil ve Sac Endustrisi A.S., Tosyali Elektrik Enerjisi Toptan Satis Ith. Ihr. A.S., Tosyali Demir Celik San. A.S., and Tosyali Holding A.S * 0.95 All Others 2.39 * De minimis.
    Continuation of Suspension of Liquidation, in Part

    12 The Department determined that Borusan Istikbal Ticaret, Borusan Mannesmann Boru Sanayi, Borusan Mannesmann Boru Yatirim Holding A.S., and Borusan Holding A.S. are cross owned. Id. at 4-6.

    In accordance with section 705(c)(1)(B) of the Tariff Act of 1930, as amended (the Act), the Department has instructed CBP to continue to suspend liquidation on all relevant entries of OCTG from Turkey.13 These instructions suspending liquidation will remain in effect until further notice. However, because the revised countervailable subsidy rate for Tosçelik is de minimis, the Department is directing CBP to liquidate all entries produced and exported by Tosçelik currently suspended without regard to countervailing duties, and to discontinue the suspension of liquidation of entries of subject merchandise where Tosçelik acted as both the producer and exporter. Entries of subject merchandise exported to the United States by any other producer and exporter combination involving Tosçelik are not entitled to this exclusion from suspension of liquidation and are subject to the cash deposit rate for the “all others” entity.

    13Id., 79 FR at 53690; see also Message No. 4260305, dated September 17, 2014, and Message No. 6076302, dated March 16, 2016.

    Because the net countervailable subsidy rate determined for Tosçelik is de minimis, consistent with the requirement under section 705(c)(5)(A) of the Act that the calculation of the “all others” rate excludes zero or de minimis rates calculated for the companies individually investigated, the Department revised the “all others” rate.14 Therefore, for purposes of the amended CVD order with respect OCTG from Turkey, the “all others” cash deposit rate is amended to Borusan's revised calculated subsidy rate of 2.39 percent.

    14See Timken Notice, 81 FR, at 12692.

    Notification to Interested Parties

    This notice constitutes the amended CVD order with respect OCTG from Turkey. This notice is issued and published in accordance with sections 516A(e) and 706(a) of the Act.

    Dated: September 27, 2017. Carole Showers, Executive Director, Office of Policy performing the duties of the Deputy Assistant Secretary for Enforcement and Compliance.
    [FR Doc. 2017-21460 Filed 10-4-17; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-533-502, A-549-502, and A-489-501] Certain Welded Carbon Steel Pipes and Tubes From India, Thailand, and Turkey: Final Results of the Expedited Fourth Sunset Reviews of the Antidumping Duty Orders AGENCY:

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

    SUMMARY:

    As a result of this sunset review, the Department of Commerce (the Department) finds that revocation of the antidumping duty (AD) orders on certain welded carbon steel pipes and tubes (pipes and tubes) from India, Thailand, and Turkey would likely lead to a continuation or recurrence of dumping. Further, the magnitude of the margins of dumping that are likely to prevail are identified in the “Final Results of Review” section of this notice.

    DATES:

    Applicable October 5, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Catherine Cartsos or Minoo Hatten, AD/CVD Operations, Office I, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-1757 and (202) 482-1690, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    In 1986, the Department published the AD orders on pipes and tubes from India, Thailand, and Turkey.1 On June 2, 2017, the Department published the notice of initiation of the fourth sunset review of the AD orders on pipes and tubes pursuant to section 751(c) of the Tariff Act of 1930, as amended (the Act).2

    1See Antidumping Duty Order; Certain Welded Carbon Steel Standard Pipes and Tubes from India, 51 FR 17384 (May 12, 1986); Antidumping Duty Order; Circular Welded Carbon Steel Pipes and Tubes from Thailand, 51 FR 8341 (March 11, 1986); and Antidumping Duty Order; Welded Carbon Steel Standard Pipe and Tube Products from Turkey, 51 FR 17784 (May 15, 1986).

    2See Initiation of Five-Year (“Sunset”) Reviews, 82 FR 25599 (June 2, 2017) (Initiation).

    For each of these sunset reviews the Department received notice of intent to participate on behalf of Bull Moose Tube, TMK IPSCO Tubulars, Zekelman Industries, and EXLTUBE (collectively, the domestic interested parties) within the 15-day period specified in 19 CFR 351.218(d)(1)(i). The domestic interested parties claimed interested party status under section 771(9)(C) of the Act as producers in the United States of the domestic like product.

    On June 30, 2017, the Department received complete substantive responses to the Initiation from the domestic interested parties within the 30-day period, as specified in 19 CFR 351.218(d)(3)(i).3 We received no substantive responses from respondent interested parties. As a result, pursuant to section 751(c)(3)(B) of the Act and 19 CFR 351.218(e)(1)(ii)(C)(2), the Department is conducting expedited (120-day) sunset reviews of the AD orders on pipe and tube from India, Thailand, and Turkey.

    3See Letters from domestic interested parties regarding, “Fourth Five-Year (“Sunset”) Review Of Antidumping Duty Order On Welded Carbon Steel Pipe And Tube from India: Domestic Industry's Substantive Response,” dated June 30, 2017; “Fourth Five-Year (“Sunset”) Review Of Antidumping Duty Order On Certain Circular Welded Carbon Steel Pipes and Tubes from Thailand: Domestic Industry's Substantive Response,” dated June 30, 2017; and Fourth Five-Year (“Sunset”) Review Of Antidumping Duty Order On Certain Circular Welded Carbon Steel Pipes and Tubes from Turkey: Domestic Industry's Substantive Response,” dated June 30, 2017.

    Scope of the Orders

    See the Appendix to this notice.

    Analysis of Comments Received

    All issues raised in these sunset reviews, including the likelihood of continuation or recurrence of dumping and the magnitude of the margins of dumping likely to prevail if the orders are revoked, are addressed in the Issues and Decision Memorandum.4 The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at http://access.trade.gov, and to all parties in the Central Records Unit, room B8024 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the Internet at http://enforcement.trade.gov/frn.

    4See Memorandum, titled, “Issues and Decision Memorandum for the Final Results of the Expedited Fourth Sunset Review of the Antidumping Duty Order on Certain Welded Carbon Steel Pipes and Tubes from India, Thailand, and Turkey,” dated concurrently with, and hereby adopted by this notice (Issues and Decision Memorandum).

    Final Results of Sunset Reviews

    Pursuant to sections 751(c)(1) and 752(c)(1) and (3) of the Act, the Department determines that revocation of the AD orders on pipes and tubes from India, Thailand, and Turkey would likely lead to the continuation or recurrence of dumping, and that the magnitude of the margins of dumping likely to prevail if the AD orders are revoked would be up to the following:

    India above—de minims Thailand—15.60 percent Turkey—23.12 percent Notification Regarding Administrative Protective Order

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

    Notification to Interested Parties

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

    Dated: September 29, 2017. Carole Showers, Executive Director, Office of Policy performing the duties of the Deputy Assistant Secretary for Enforcement and Compliance. APPENDIX Scope of the Antidumping Duty Orders India—Welded Carbon Steel Pipe and Tube (A-533-502)

    The products covered by the order include certain welded carbon steel standard pipes and tubes with an outside diameter of 0.375 inch or more but not over 16 inches. These products are commonly referred to in the industry as standard pipes and tubes produced to various American Society for Testing Materials (ASTM) specifications, most notably A-53, A-120, or A-135.

    The antidumping duty order on certain welded carbon steel standard pipes and tubes from India, published on May 12, 1986, included standard scope language which used the import classification system as defined by Tariff Schedules of the United States, Annotated (TSUSA). The United States developed a system of tariff classification based on the international harmonized system of customs nomenclature. On January 1, 1989, the U.S. tariff schedules were fully converted from the TSUSA to the Harmonized Tariff Schedule (HTS). See, e.g., Certain Welded Carbon Steel Standard Pipes and Tubes from India; Preliminary Results of Antidumping Duty Administrative Reviews, 56 FR 26650, 26651 (June 10, 1991). As a result of this transition, the scope language we used in the 1991 Federal Register notice is slightly different from the scope language of the original final determination and antidumping duty order.

    Until January 1, 1989, such merchandise was classifiable under item numbers 610.3231, 610.3234, 610.3241, 610.3242, 610.3243, 610.3252, 610.3254, 610.3256, 610.3258, and 610.4925 of the TSUSA. This merchandise is currently classifiable under HTS item numbers 7306.30.1000, 7306.30.5025, 7306.30.5032, 7306.30.5040, 7306.30.5055, 7306.30.5085, 7306.30.5090. As with the TSUSA numbers, the HTS numbers are provided for convenience and customs purposes. The written product description remains dispositive.5

    5Certain Welded Carbon Steel Standard Pipes and Tubes from India: Final Results of Antidumping Duty Administrative Review, 75 FR 69626, 69627 (November 15, 2010).

    Thailand—Welded Carbon Steel Pipe and Tube (A-549-502)

    The products covered by the order include certain welded carbon steel standard pipes and tubes with an outside diameter of 0.375 inch or more but not over 16 inches. These products are commonly referred to in the industry as standard pipes and tubes produced to various American Society for Testing Materials (ASTM) specifications, most notably A-53, A-120, or A-135.

    The antidumping duty order on certain welded carbon steel standard pipes and tubes from India, published on May 12, 1986, included standard scope language which used the import classification system as defined by Tariff Schedules of the United States, Annotated (TSUSA). The United States developed a system of tariff classification based on the international harmonized system of customs nomenclature. On January 1, 1989, the U.S. tariff schedules were fully converted from the TSUSA to the Harmonized Tariff Schedule (HTS). See, e.g., Certain Welded Carbon Steel Standard Pipes and Tubes from India; Preliminary Results of Antidumping Duty Administrative Reviews, 56 FR 26650, 26651 (June 10, 1991). As a result of this transition, the scope language we used in the 1991 Federal Register notice is slightly different from the scope language of the original final determination and antidumping duty order.

    Until January 1, 1989, such merchandise was classifiable under item numbers 610.3231, 610.3234, 610.3241, 610.3242, 610.3243, 610.3252, 610.3254, 610.3256, 610.3258, and 610.4925 of the TSUSA. This merchandise is currently classifiable under HTS item numbers 7306.30.1000, 7306.30.5025, 7306.30.5032, 7306.30.5040, 7306.30.5055, 7306.30.5085, 7306.30.5090. As with the TSUSA numbers, the HTS numbers are provided for convenience and customs purposes. The written product description remains dispositive.67

    6Circular Welded Carbon Steel Pipes and Tubes from Thailand: Final Results of Antidumping Duty Administrative Review, 75 FR 64696 (October 20, 2010).

    7 There was one scope ruling in which British Standard light pipe 387/67, Class A-1 was found to be within the scope of the order per remand. See Scope Rulings, 58 FR 27542, (May 10, 1993).

    Turkey—Welded Carbon Steel Pipe and Tube (A-489-501)

    The products covered by this order include circular welded non-alloy steel pipes and tubes, of circular cross-section, not more than 406.4 millimeters (16 inches) in outside diameter, regardless of wall thickness, surface finish (black, or galvanized, painted), or end finish (plain end, beveled end, threaded and coupled). Those pipes and tubes are generally known as standard pipe, though they may also be called structural or mechanical tubing in certain applications. Standard pipes and tubes are intended for the low pressure conveyance of water, steam, natural gas, air, and other liquids and gases in plumbing and heating systems, air conditioner units, automatic sprinkler systems, and other related uses. Standard pipe may also be used for light load-bearing and mechanical applications, such as for fence tubing, and for protection of electrical wiring, such as conduit shells.

    The scope is not limited to standard pipe and fence tubing, or those types of mechanical and structural pipe that are used in standard pipe applications. All carbon steel pipes and tubes within the physical description outlined above are included in the scope of this order, except for line pipe, oil country tubular goods, boiler tubing, cold-drawn or cold-rolled mechanical tubing, pipe and tube hollows for redraws, finished scaffolding, and finished rigid conduit.

    Imports of these products are currently classifiable under the following Harmonized Tariff Schedule of the United States (“HTSUS”) subheadings: 7306.30.10.00, 7306.30.50.25, 7306.30.50.32, 7306.30.50.40, 7306.30.50.55, 7306.30.50.85, and 7306.30.50.90. Although the HTSUS subheadings are provided for convenience and customs purposes, our written description of the scope of this proceeding is dispositive.8

    8Certain Welded Carbon Steel Pipe and Tube from Turkey: Notice of Final Antidumping Duty Administrative Review, 75 FR 64250. 64251 (October 19, 2010).

    [FR Doc. 2017-21461 Filed 10-4-17; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration Upcoming Secretary-Led International Trade Administration Multi-Sector Trade Mission to China AGENCY:

    International Trade Administration, Department of Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The United States Department of Commerce, International Trade Administration, is amending the Notice published at Vol. 82, No. 187 (82 FR 45264, September 28, 2017), the Secretary-Led International Trade Administration Multi-Sector Trade Mission to China, to modify the maximum number of delegation participants, set at 25 U.S. participants, to allow for additional participants on the mission.

    SUPPLEMENTARY INFORMATION:

    Amendments to revise the number of delegation participants.

    Background

    Based on the high interest in the mission and the significant number of applications received to date, it has been determined that the Department of Commerce may accept more than 25 U.S. firms or trade associations as delegation participants for the Trade Mission to China. The final number of participants will be determined based on the review of applications and the capacity of the Department of Commerce to accommodate additional participants on the delegation. The application deadline remains October 6, 2017. All applications will be assessed according the conditions and criteria that are included in the original Federal Register notice and Mission Statement located on the Web site.

    Notice of this change was posted on the Mission Web site (www.export.gov/ChinaMission2017) on Monday, October 2, 2017.

    Contacts General Business and Applications: The Office of Business Liaison, U.S. Department of Commerce, 1401 Constitution Avenue NW., Room 5062, Washington, DC 20230, Phone: +1-202-482-1360, Fax: 202-482-4054, Email: [email protected]. Tyler Shields: Director, The Office of China and Mongolia, U.S. Department of Commerce, 1401 Constitution Avenue NW., Room 38013, Washington, DC 20230, Phone: +1-202-482-3544, Email: [email protected]. Frank Spector, Senior Advisor for Trade Missions.
    [FR Doc. 2017-21565 Filed 10-4-17; 8:45 am] BILLING CODE 3510-DR-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF720 New England Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of public meeting.

    SUMMARY:

    The New England Fishery Management Council (Council) is scheduling a two-day public meeting of its Scientific & Statistical Committee to consider actions affecting New England fisheries in the exclusive economic zone (EEZ). Recommendations from this group will be brought to the full Council for formal consideration and action, if appropriate.

    DATES:

    This meeting will be held on Monday, October 23, 2017, beginning at 10 a.m. and Tuesday, October 24, 2017. beginning at 9 a.m.

    ADDRESSES:

    Meeting address: The meeting will be held at the Hilton Garden Inn, Boston Logan, 100 Boardman Street, Boston, MA 02128; phone: (617) 567-6789.

    Council address: New England Fishery Management Council, 50 Water Street, Mill 2, Newburyport, MA 01950.

    FOR FURTHER INFORMATION CONTACT:

    Thomas A. Nies, Executive Director, New England Fishery Management Council; telephone: (978) 465-0492.

    SUPPLEMENTARY INFORMATION: Agenda

    The Committee will review recent stock assessment information from the 2017 Groundfish Operational Assessment updates and information provided by the Council's Groundfish Plan Development Team and recommend the overfishing levels and acceptable biological catch for all groundfish stocks (except for Georges Bank yellowtail flounder and Atlantic halibut) managed under the Northeast Multispecies Fishery Management Plan for fishing years 2016-2018. Other business will be discussed as needed.

    Although non-emergency issues not contained on this agenda may come before this Council for discussion, those issues may not be the subject of formal action during this meeting. Council action will be restricted to those issues specifically listed in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Act, provided the public has been notified of the Council's intent to take final action to address the emergency. The public also should be aware that the meeting will be recorded. Consistent with 16 U.S.C. 1852, a copy of the recording is available upon request.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Thomas A. Nies, Executive Director, at (978) 465-0492, at least 5 days prior to the meeting date.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: October 2, 2017. Jeffrey N. Lonergan, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2017-21463 Filed 10-4-17; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF719 Fisheries of the South Atlantic; South Atlantic Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of a public meeting.

    SUMMARY:

    The South Atlantic Fishery Management Council (Council) will hold a meeting of its Scientific and Statistical Committee (SSC). See SUPPLEMENTARY INFORMATION.

    DATES:

    The SSC will meet Tuesday, October 24, 2017, from 1:30 p.m. until 5:30 p.m.; Wednesday, October 25, 2017, from 8:30 a.m. until 5:30 p.m. and Thursday, October 26, 2017, from 8:30 a.m. until 3 p.m.

    ADDRESSES:

    Meeting address: The meeting will be held at the Town & Country Inn and Suites, 2008 Savannah Hwy, Charleston, SC 29407; phone: (800) 334-6660 or (843) 571-1000; fax: (843) 766-9444.

    Council address: South Atlantic Fishery Management Council, 4055 Faber Place Drive, Suite 201, N. Charleston, SC 29405.

    FOR FURTHER INFORMATION CONTACT:

    Kim Iverson, Public Information Officer, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; phone: (843) 571-4366 or toll free (866) SAFMC-10; fax: (843) 769-4520; email: [email protected].

    SUPPLEMENTARY INFORMATION:

    The following items will be discussed by the SSC during the meeting:

    1. Updates on 2016-17 landings, Annual Catch Limits (ACLs), Acceptable Biological Catches (ABCs), and Accountability Measures (AMs).

    2. Updates on recent Southeast Data Assessment and Review (SEDAR) stock assessment program activities, the long-term assessment scheduling approach, and Council future assessment priorities; approve Terms of Reference, schedule, and identify participants for the Cobia Stock Identification Workshop, Greater Amberjack, and Red Porgy assessments; approve the revised Terms of Reference for SEDAR 55 assessment for Vermilion Snapper.

    3. Discuss a NOAA Fisheries' Southeast Fisheries Science Center (SEFSC) report on the feasibility of a Gray Triggerfish assessment.

    4. Review updated Red Grouper projections and provide fishing level recommendations.

    5. Review the SEDAR 50 Blueline Tilefish assessment and provide fishing level recommendations.

    6. Review the revised Golden Tilefish assessment and provide fishing level recommendations.

    7. Discuss ABC Control Rule modifications.

    8. Review Amendment 46 to the Snapper Grouper Fishery Management Plan addressing red snapper and evaluate SEFSC Index Projection methodology progress.

    9. Review and comment on the Commercial and Recreational Snapper Grouper Visioning Amendments.

    10. Review the South Atlantic Ecosystem Model and provide recommendations for future direction and utility of this tool.

    11. Discuss the Wreckfish Individual Transferable Quota (ITQ) Program Review.

    12. Receive updates and progress reports on ongoing Council amendments and activities including the Citizen Science Program.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.

    Written comment on SSC agenda topics is to be distributed to the Committee through the Council office, similar to all other briefing materials. Written comment to be considered by the SSC shall be provided to the Council office no later than one week prior to an SSC meeting. For this meeting, the deadline for submission of written comment is 12 p.m. Tuesday, October 17, 2017.

    Multiple opportunities for comment on agenda items will be provided during SSC meetings. Open comment periods will be provided at the start of the meeting and near the conclusion. Those interested in providing comment should indicate such in the manner requested by the Chair, who will then recognize individuals to provide comment. Additional opportunities for comment on specific agenda items will be provided, as each item is discussed, between initial presentations and SSC discussion. Those interested in providing comment should indicate such in the manner requested by the Chair, who will then recognize individuals to provide comment. All comments are part of the record of the meeting.

    Special Accommodations

    This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the Council office (see ADDRESSES) at least 5 business days prior to the meeting.

    Note:

    The times and sequence specified in this agenda are subject to change.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: October 2, 2017. Jeffrey N. Lonergan, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2017-21465 Filed 10-4-17; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0649-XF726 Gulf of Mexico Fishery Management Council; Public Meeting AGENCY:

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

    ACTION:

    Notice of a public meeting.

    SUMMARY:

    The Gulf of Mexico Fishery Management Council will hold a meeting of its Law Enforcement Technical Committee (LETC), in conjunction with the Gulf States Marine Fisheries Commission's Law Enforcement Committee (LEC).

    DATES:

    The meeting will convene on Wednesday, October 18, 2017, starting at 8:30 a.m. and will adjourn at 5 p.m.

    ADDRESSES:

    The meeting will be held at the Battle House Renaissance hotel, located at 26 North Royal Street, Mobile, AL 36602; telephone: (251) 338-2000.

    Council address: Gulf of Mexico Fishery Management Council, 2203 N. Lois Avenue, Suite 1100, Tampa, FL 33607; telephone: (813) 348-1630.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Steven Atran, Senior Fishery Biologist, Gulf of Mexico Fishery Management Council; [email protected], telephone: (813) 348-1630, and Mr. Steve Vanderkooy, Inter-jurisdictional Fisheries Coordinator, Gulf States Marine Fisheries Commission; [email protected], telephone: (228) 875-5912.

    SUPPLEMENTARY INFORMATION:

    The items of discussion on the agenda are as follows:

    Joint Gulf Council's Law Enforcement Technical Committee and Gulf States Marine Fisheries Commission's Law Enforcement Committee Meeting Agenda Wednesday, October 18, 2017, 8:30 a.m. until 5 p.m. 1. Introductions and Adoption of Agenda 2. Approval of Minutes (Joint Meeting October 13, 2016) 3. Special election for LETC Vice-chair 4. Discussion of Joint LETC/LEC Chairs Gulf Council LETC Items 5. Options Paper for Amendment 36B—Modifications to Commercial Individual Fishing Quota Programs 6. Draft Amendment—State Management Program for Recreational Red Snapper 7. Options Paper for Venting Tools and Descending Devices 8. Options Paper for Draft Modifications to the Sea Turtle Release Protocol and Gear for the Reef Fish Fishery 9. Coral Amendment 9—Public Hearing Draft of Coral Habitat Areas Considered for Management in the Gulf of Mexico 10. Spiny Lobster Amendment 12—Bully net gear regulations for spiny lobster for the EEZ off Florida 11. Implications of Permit Transfers for Federal For-Hire Vessels 12. Review of the Guidelines for the 2017 Officer of the Year Award 13. Overview of Congressional Activities GSMFC LEC Items 14. Potential JEA Gulf-Wide Observed Compliance Rates 15. IJF Program Activity a. Cobia Profile b. Officers' Pocket Guide c. Annual License and Fees d. Law Summary (red book) 16. State Report Highlights a. Florida b. Alabama c. Mississippi d. Louisiana e. Texas f. USCG g. NOAA OLE h. USFWS 17. Other Business —Meeting Adjourns—

    The Agenda is subject to change. The latest version of the agenda along with other meeting materials will be posted on the Council's file server, which can be accessed by going to the Council Web site at http://www.gulfcouncil.org and clicking on File Server under Quick Links. For meeting materials see folder “LETC Meeting-2017-10” on Gulf Council file server. The username and password are both “gulfguest”.

    The Law Enforcement Technical Committee consists of principal law enforcement officers in each of the Gulf States, as well as the NOAA Law Enforcement, U.S. Fish and Wildlife Service, the U.S. Coast Guard, and the NOAA General Counsel for Law Enforcement.

    Although other non-emergency issues not on the agenda may come before this group for discussion, in accordance with the Magnuson-Stevens Fishery Conservation and Management Act, those issues may not be the subject of formal action during this meeting. Actions will be restricted to those issues specifically identified in the agenda and any issues arising after publication of this notice that require emergency action under Section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the Council's intent to take action to address the emergency.

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aids should be directed to Kathy Pereira at the Gulf Council Office (see ADDRESSES), at least 5 working days prior to the meeting.

    Dated: October 2, 2017. Jeffrey N. Lonergan, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2017-21464 Filed 10-4-17; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF691 Fisheries of the South Atlantic; Southeast Data, Assessment, and Review (SEDAR); Public Meeting AGENCY:

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

    ACTION:

    Notice of SEDAR 55 Assessment Scoping webinar for South Atlantic Vermilion Snapper.

    SUMMARY:

    The SEDAR 55 assessment of the South Atlantic stock of Vermilion Snapper will consist of a series of webinars. See SUPPLEMENTARY INFORMATION.

    DATES:

    A SEDAR 55 Assessment Scoping webinar will be held on Friday, October 20, 2017, from 9 a.m. until 1 p.m.

    ADDRESSES:

    Meeting address: The meetings will be held via webinar. The webinars are open to members of the public. Those interested in participating should contact Julia Byrd at SEDAR (see FOR FURTHER INFORMATION CONTACT) to request an invitation providing webinar access information. Please request webinar invitations at least 24 hours in advance of each webinar.

    SEDAR address: South Atlantic Fishery Management Council, 4055 Faber Place Drive, Suite 201, N. Charleston, SC 29405; www.sedarweb.org.

    FOR FURTHER INFORMATION CONTACT:

    Julia Byrd, SEDAR Coordinator, 4055 Faber Place Drive, Suite 201, North Charleston, SC 29405; phone: (843) 571-4366; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils, in conjunction with NOAA Fisheries and the Atlantic and Gulf States Marine Fisheries Commissions, have implemented the Southeast Data, Assessment and Review (SEDAR) process, a multi-step method for determining the status of fish stocks in the Southeast Region. The product of the SEDAR webinar series will be a report which compiles and evaluates potential datasets and recommends which datasets are appropriate for assessment analyses, and describes the fisheries, evaluates the status of the stock, estimates biological benchmarks, projects future population conditions, and recommends research and monitoring needs. Participants for SEDAR Workshops are appointed by the Gulf of Mexico, South Atlantic, and Caribbean Fishery Management Councils and NOAA Fisheries Southeast Regional Office, Highly Migratory Species Management Division, and Southeast Fisheries Science Center. Participants include: Data collectors and database managers; stock assessment scientists, biologists, and researchers; constituency representatives including fishermen, environmentalists, and non-governmental organizations (NGOs); international experts; and staff of Councils, Commissions, and state and federal agencies.

    The items of discussion in the Assessment Scoping webinar are as follows:

    Participants will review data and discuss data issues, as necessary, and initial model issues.

    Although non-emergency issues not contained in this agenda may come before this group for discussion, those issues may not be the subject of formal action during this meeting. Action will be restricted to those issues specifically identified in this notice and any issues arising after publication of this notice that require emergency action under section 305(c) of the Magnuson-Stevens Fishery Conservation and Management Act, provided the public has been notified of the intent to take final action to address the emergency.

    Special Accommodations

    This meeting is accessible to people with disabilities. Requests for auxiliary aids should be directed to the SAFMC office (see ADDRESSES) at least 5 business days prior to the meeting.

    Note:

    The times and sequence specified in this agenda are subject to change.

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: October 2, 2017. Jeffrey N. Lonergan, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2017-21462 Filed 10-4-17; 8:45 am] BILLING CODE 3510-22-P
    ENVIRONMENTAL PROTECTION AGENCY [FRL-9968-36-OCFO] Draft FY 2018-2022 Environmental Protection Agency Strategic Plan AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of availability, request for public comments.

    SUMMARY:

    The U.S. Environmental Protection Agency (EPA) is announcing the availability of the Draft FY 2018-2022 EPA Strategic Plan for public review and comment, which is being revised as required by the Government Performance and Results Act (GPRA) Modernization Act of 2010. The agency anticipates the final Strategic Plan will be submitted to Congress in February 2018. For this notice, the EPA is seeking comment from individual citizens, states, tribes, local governments, industry, the academic community, non-governmental organizations, and all other interested parties.

    DATES:

    Comments must be received on or before October 31, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. [EPA-HQ-OA-2017-0533] to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or withdrawn. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Vivian Daub, Director, Planning Division, Office of Planning, Analysis, and Accountability, Office of the Chief Financial Officer, [email protected].

    SUPPLEMENTARY INFORMATION:

    Background

    The GPRA Modernization Act of 2010 (Pub. L. 111-352), holds federal agencies accountable for using resources wisely and achieving program results. Specifically, the GPRA Modernization Act requires agencies to develop: Strategic Plans, which include a mission statement, set out long-term goals, objectives, and strategic measures, and describe strategies to achieve them over a four-year time horizon; two-year Agency Priority Goals to advance progress toward the highest priorities; Annual Performance Plans, which provide annual performance measures and activities toward the long-term Strategic Plan; and, Annual Performance Reports, which evaluate an agency's success in achieving the annual performance measures.

    The Strategic Plan reflects the Administrator's priorities for advancing the Agency's mission to protect human health and the environment by setting three strategic goals:

    • Core Mission: Deliver real results to provide Americans with clean air, land, and water.

    • Cooperative Federalism: Rebalance the power between Washington and the states to create tangible environmental results for the American people.

    • Rule of Law and Process: Administer the law, as Congress intended, to refocus the Agency on its statutory obligations under the law.

    This Strategic Plan includes objectives and strategies for achieving the strategic goals, and establishes strategic measures and FY 2018-2019 Agency Priority Goals by which EPA will hold itself accountable to monitor progress in improving significantly the way EPA does business and environmental benefits, engaging closely with public sector partners at all levels and the regulated community.

    Dated: September 19, 2017. David A. Bloom, Acting Chief Financial Officer, Office of the Chief Financial Officer.
    [FR Doc. 2017-21245 Filed 10-4-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OAR-2017-0430; FRL-9968-87-OAR] Notice of Intent To Establish Voluntary Criteria for Radon Credentialing Organizations; Extension of the Comment Period AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of availability; extension of the comment period.

    SUMMARY:

    The U.S. Environmental Protection Agency (EPA) is announcing an extension of the public comment period by 30 days for the Notice of Intent to Establish Voluntary Criteria for Radon Credentialing Organizations.

    DATES:

    The comment period for the Notice of Intent to Establish Voluntary Criteria for Radon Credentialing Organizations (82 FR 39993), is extended. Written comments must be received on or before November 23, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2017-0430, to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or withdrawn. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Katrin Kral, EPA Office of Radiation and Indoor Air, (202) 343-9454; [email protected]

    SUPPLEMENTARY INFORMATION:

    The EPA published the Notice of Intent to Establish Voluntary Criteria for Radon Credentialing Organizations on August 23, 2017, in the Federal Register (82 FR 39993), which included a request for comments on or before October 23, 2017. The purpose of this document is to extend the public comment period.

    A. What should I consider as I prepare my comments for the EPA?

    1. Tips for Preparing Your Comments. When submitting comments, remember to:

    • Identify the notice by docket number, subject heading, Federal Register date and page number.

    • Follow directions—EPA may ask you to respond to specific questions or organize comments by including a specific reference.

    • Explain why you agree or disagree; suggest alternatives and substitute language for your requested changes.

    • Describe any assumptions and provide any technical information and/or data that you used.

    • If you estimate potential costs or burdens, explain how you arrived at your estimate in sufficient detail to allow it to be reproduced.

    • Illustrate your concerns with specific examples and suggest alternatives.

    • Explain your views as clearly as possible, avoiding the use of profanity or personal threats.

    • Make sure to submit your comments by the comment period deadline identified.

    B. How can I learn more about this?

    The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2017-0430. Please refer to the original Federal Register for detailed information about this proposed action. The EPA has also included information on its Web site at www.epa.gov/radon. Depending on interest and questions received, EPA may host a question and answer session via webinar during the comment period. Please visit the Web site regularly for updates.

    In response to requests for an extension, we are extending the public comment period through November 23, 2017. This action will provide the public additional time to provide comments.

    Dated: September 26, 2017. David Rowson, Director, Indoor Environments Division.
    [FR Doc. 2017-21519 Filed 10-4-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OPP-2016-0671; FRL-9968-86] Pesticides; Draft Guidance for Pesticide Registrants on Notifications, Non-Notifications and Minor Formulation Amendments; Extension of Comment Period AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice; extension of comment period.

    SUMMARY:

    EPA issued a notice in the Federal Register of September 6, 2017, announcing the availability of and seeking public comment on a draft Pesticide Registration Notice (PR Notice) entitled “Pesticide Registration (PR) Notice 2017-XX: Notifications, Non-notifications and Minor Formulation Amendments.” This document extends the comment period for 60 days, from October 6, 2017 to December 5, 2017 to allow stakeholders additional time to submit comments on the proposed guidance.

    DATES:

    The comment period for the document published on September 6, 2017 (82 FR 42094), is extended. Comments, identified by docket identification (ID) number EPA-HQ-OPP-2016-0671, must be received on or before December 5, 2017.

    ADDRESSES:

    Submit your comments, identified by docket identification (ID) number EPA-HQ-OPP-2016-0671, by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

    Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

    Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html. Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Michael L. Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    This document extends the public comment period established in the Federal Register document of September 6, 2017 (82 FR 42094) (FRL-9963-53), which was set to end on October 6, 2017, by 60 days, or to December 5, 2017.

    To submit comments, or access the docket, please follow the detailed instructions provided under ADDRESSES in the Federal Register document of September 6, 2017. If you have questions, consult the person listed under FOR FURTHER INFORMATION CONTACT.

    Authority:

    7 U.S.C. 136 et seq.

    Dated: September 28, 2017. Richard P. Keigwin, Jr., Director, Office of Pesticide Programs.
    [FR Doc. 2017-21373 Filed 10-4-17; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION [OMB 3060-1202] Information Collection Being Submitted for Review and Approval to the Office of Management and Budget AGENCY:

    Federal Communications Commission.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

    The Commission may not conduct or sponsor a collection of information unless it displays a currently valid Office of Management and Budget (OMB) control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid OMB control number.

    DATES:

    Written comments should be submitted on or before November 6, 2017. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contacts listed below as soon as possible.

    ADDRESSES:

    Direct all PRA comments to Nicholas A. Fraser, OMB, via email [email protected]; and to Nicole Ongele, FCC, via email [email protected] and to [email protected] Include in the comments the OMB control number as shown in the SUPPLEMENTARY INFORMATION below.

    FOR FURTHER INFORMATION CONTACT:

    For additional information or copies of the information collection, contact Nicole Ongele at (202) 418-2991. To view a copy of this information collection request (ICR) submitted to OMB: (1) Go to the Web page http://www.reginfo.gov/public/do/PRAMain, (2) look for the section of the Web page called “Currently Under Review,” (3) click on the downward-pointing arrow in the “Select Agency” box below the “Currently Under Review” heading, (4) select “Federal Communications Commission” from the list of agencies presented in the “Select Agency” box, (5) click the “Submit” button to the right of the “Select Agency” box, (6) when the list of FCC ICRs currently under review appears, look for the OMB control number of this ICR and then click on the ICR Reference Number. A copy of the FCC submission to OMB will be displayed.

    SUPPLEMENTARY INFORMATION:

    As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

    OMB Control Number: 3060-1202.

    Title: Improving 9-1-1 Reliability; Reliability and Continuity of Communications Networks, Including Broadband Technologies.

    Form Number: Not Applicable (annual on-line certification).

    Type of Review: Revision of a currently approved collection.

    Respondents: Business or other for-profit; not-for-profit institutions.

    Number of Respondents and Responses: 200 respondents; 200 responses.

    Estimated Time per Response: Varies by respondent. Average of 837 hours per respondent.

    Frequency of Response: Annual reporting requirement and recordkeeping requirement.

    Total Annual Burden: 167,350 hours.

    Total Annual Cost: No Cost.

    Obligation to Respond: Mandatory. The statutory authority for this collection of information is contained in sections 1, 4(i), 4(j), 4(o), 201(b), 214(d), 218, 251(e)(3), 301, 303(b), 303(g), 303(r), 307, 309(a), 316, 332, 403, 615a-1, and 615c of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i)-(j) & (o), 201(b), 214(d), 218, 251(e)(3), 301, 303(b), 303(g), 303(r), 307, 309(a), 316, 332, 403, 615a-1, and 615c.

    Nature and Extent of Confidentiality: The Commission does not consider the fact of filing a certification to be confidential or the responses provided on the face of the certification. The Commission will treat as presumptively confidential and exempt from routine public disclosure under the federal Freedom of Information Act: (1) Descriptions and documentation of alternative measures to mitigate the risks of nonconformance with certification standards; (2) information detailing specific corrective actions taken; and (3) supplemental information requested by the Commission or Bureau with respect to a certification.

    Privacy Impact Assessment: No impact(s).

    Needs and Uses: This is a revision of an information collection necessary to ensure that all Americans have access to reliable and resilient 911 communications, particularly in times of emergency, by requiring certain 911 service providers to certify implementation of key best practices or reasonable alternative measures. The information will be collected in the form of an electronically-filed, annual certification from each Covered 911 Service Provider, as defined in the Commission's 2013 Report and Order, in which the provider will indicate whether it has implemented certain industry-backed best practices. Providers that are able to respond in the affirmative to all elements of the certification will be deemed to satisfy the “reasonable measures” requirement in Section 12.4(b) of the Commission's rules. If a provider does not certify in the affirmative with respect to one or more elements of the certification, it must provide a brief explanation of what alternative measures it has taken, in light of the provider's particular facts and circumstances, to ensure reliable 911 service with respect to that element(s). Similarly, a service provider may also respond by demonstrating that a particular certification element is not applicable to its networks and must include a brief explanation of why the element(s) does not apply.

    The information will be collected by the Public Safety and Homeland Security Bureau, FCC, for review and analysis, to verify that Covered 911 Service Providers are taking reasonable measures to maintain reliable 911 service. In certain cases, based on the information included in the certifications and subsequent coordination with the provider, the Commission may require remedial action to correct vulnerabilities in a service provider's 911 network if it determines that (a) the service provider has not, in fact, adhered to the best practices incorporated in the FCC's rules, or (b) in the case of providers employing alternative measures, that those measures were not reasonably sufficient to mitigate the associated risks of failure in these key areas. The Commission delegated authority to the Bureau to review certification information and follow up with service providers as appropriate to address deficiencies revealed by the certification process.

    The purpose of the collection of this information is to verify that Covered 911 Service Providers are taking reasonable measures such that their networks comply with accepted best practices, and that, in the event they are not able to certify adherence to specific best practices, that they are taking reasonable alternative measures. The Commission adopted these rules in light of widespread 911 outages during the June 2012 derecho storm in the Midwest and Mid-Atlantic states, which revealed that multiple service providers did not take adequate precautions to maintain reliable service.

    Federal Communications Commission. Marlene H. Dortch, Secretary, Office of the Secretary.
    [FR Doc. 2017-21481 Filed 10-4-17; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL COMMUNICATIONS COMMISSION [OMB 3060-0329] Information Collection Being Reviewed by the Federal Communications Commission AGENCY:

    Federal Communications Commission.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.

    DATES:

    Written PRA comments should be submitted on or before December 4, 2017. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.

    ADDRESSES:

    Direct all PRA comments to Nicole Ongele, FCC, via email [email protected] and to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    For additional information about the information collection, contact Nicole Ongele at (202) 418-2991 or email at [email protected]

    SUPPLEMENTARY INFORMATION:

    As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

    OMB Control Number: 3060-0329.

    Title: Section 2.955, Equipment Authorization—Verification (Retention of Records).

    Form No.: N/A.

    Type of Review: Extension of a currently approved collection.

    Respondents: Business or other for-profit and not-for-profit institutions.

    Number of Respondents and Responses: 8,000 respondents; 8,000 responses.

    Estimated Time per Response: 18 hours (average).

    Frequency of Response: One-time and on occasion reporting requirements, recordkeeping requirement; and third-party disclosure requirements.

    Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in 47 U.S.C. Sections 4(i), 302, 303(g), and 303(r) of the Communications Act of 1934, as amended; 47 U.S.C. 154(i), 302 and 303(r).

    Total Annual Burden: 144,000 hours.

    Total Annual Cost: $1,600,000.

    Privacy Impact Assessment: No impact(s).

    Nature and Extent of Confidentiality: Commission rules require equipment testing to determine performance and compliance with FCC standards. This testing is typically done by either the manufacturer's testing laboratory or an independent testing laboratory.

    Needs and Uses: This collection will be submitted as an extension after this 60 day comment period to the Office of Management and Budget (OMB) in order to obtain the full three-year clearance.

    Section 2.955 describes for each equipment device subject to verification, the responsible party, as shown in 47 CFR 2.909 shall maintain the records listed as follows:

    (1) A record of the original design drawings and specifications and all changes that have been made that may affect compliance with the requirements of § 2.953.

    (2) A record of the procedures used for production inspection and testing (if tests were performed) to insure the conformance required by § 2.953. (Statistical production line emission testing is not required.)

    (3) A record of the measurements made on an appropriate test site that demonstrates compliance with the applicable regulations in this chapter. The record shall:

    (i) Indicate the actual date all testing was performed;

    (ii) State the name of the test laboratory, company, or individual performing the verification testing. The Commission may request additional information regarding the test site, the test equipment or the qualifications of the company or individual performing the verification tests;

    (iii) Contain a description of how the device was actually tested, identifying the measurement procedure and test equipment that was used;

    (iv) Contain a description of the equipment under test (EUT) and support equipment connected to, or installed within, the EUT;

    (v) Identify the EUT and support equipment by trade name and model number and, if appropriate, by FCC Identifier and serial number;

    (vi) Indicate the types and lengths of connecting cables used and how they were arranged or moved during testing;

    (vii) Contain at least two drawings or photographs showing the test set-up for the highest line conducted emission and showing the test set-up for the highest radiated emission. These drawings or photographs must show enough detail to confirm other information contained in the test report. Any photographs used must be focused originals without glare or dark spots and must clearly show the test configuration used;

    (viii) List all modifications, if any, made to the EUT by the testing company or individual to achieve compliance with the regulations in this chapter;

    (ix) Include all of the data required to show compliance with the appropriate regulations in this chapter; and

    (x) Contain, on the test report, the signature of the individual responsible for testing the product along with the name and signature of an official of the responsible party, as designated in § 2.909.

    (4) For equipment subject to the provisions in part 15 of this chapter, the records shall indicate if the equipment was verified pursuant to the transition provisions contained in § 15.37 of this chapter.

    (b) The records listed in paragraph (a) of this section shall be retained for two years after the manufacture of said equipment item has been permanently discontinued, or until the conclusion of an investigation or a proceeding if the manufacturer or importer is officially notified that an investigation or any other administrative proceeding involving his equipment has been instituted.

    The Commission needs and requires the information under FCC Rules at 47 CFR parts 15 and 18, that RF equipment manufacturers (respondents) “self-determine” their responsibility for adherence to these rules, as guided by the following criteria:

    (a) Whether the RF equipment device that is being marketed complies with the applicable Commission Rules; and

    (b) If the operation of the equipment is consistent with the initially documented test results, as reported to the Commission.

    The information collection is essential to controlling potential interference to radio communications.

    (a) Companies that manufacture RF equipment are the anticipated respondents to this information collection.

    (b) This respondent “public” generally remains the same, although the types of equipment devices that they manufacture may change in response to changing technologies and to new spectrum allocations made by the Commission.

    (c) In addition, the Commission may establish new technical operating standards in response to these changing technologies and in allocation spectrum, which these RF equipment manufacturers must meet to receive their equipment authorization from the FCC.

    (d) However, the process that RF equipment manufacturers must follow to verify their compliance, as mandated by 47 CFR 2.955 of FCC Rules, will not change despite new technical standards established for specific equipment.

    This information collection, therefore, applies to a variety of equipment, which is currently manufactured in the future, and that operates under varying technical standards.

    Federal Communications Commission. Marlene H. Dortch, Secretary, Office of the Secretary.
    [FR Doc. 2017-21516 Filed 10-4-17; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL COMMUNICATIONS COMMISSION [OMB 3060-1242] Information Collection Approved by the Office of Management and Budget AGENCY:

    Federal Communications Commission.

    ACTION:

    Notice.

    SUMMARY:

    The Federal Communications Commission (Commission) has received Office of Management and Budget (OMB) approval, on an emergency basis, for a new, one-time information collection pursuant to the Paperwork Reduction Act of 1995. An agency may not conduct or sponsor a collection of information unless it displays a currently valid OMB control number, and no person is required to respond to a collection of information unless it displays a currently valid control number. Comments concerning the accuracy of the burden estimates and any suggestions for reducing the burden should be directed to the person listed in the FOR FURTHER INFORMATION CONTACT section below.

    FOR FURTHER INFORMATION CONTACT:

    Cathy Williams, [email protected], (202) 418-2918.

    SUPPLEMENTARY INFORMATION:

    The total annual reporting burdens and costs for the respondents are as follows:

    OMB Control Number: 3060-1242.

    OMB Approval Date: September 27, 2017.

    OMB Expiration Date: March 31, 2018.

    Title: Qualified 4G LTE Coverage Data Collection for Mobility Fund Phase II.

    Form Number: N/A.

    Respondents: Business or other for-profit entities, not-for-profit institutions, and state, local or tribal governments.

    Number of Respondents and Responses: 50 respondents; 50 responses.

    Estimated Time per Response: 64 hours.

    Frequency of Response: One-time reporting requirement.

    Total Annual Burden: 3,200 hours.

    Total Annual Cost: None.

    Obligation To Respond: Required to obtain or retain benefits. Statutory authority for the currently approved information collection is contained in sections 154, 254, and 303(r) of the Communications Act, as amended, 47 U.S.C. 4, 254, 303(r).

    Nature and Extent of Confidentiality: The information collected under this collection is confidential and will not be made publicly available.

    Privacy Act Impact Assessment: No impact(s).

    Needs and Uses: In 2011, the Commission established the Mobility Fund, which consists of two phases. Mobility Fund Phase I provided one-time universal service support payments to immediately accelerate deployment of mobile broadband services. Mobility Fund Phase II (MF-II) will use a reverse auction to provide ongoing universal service support payments to continue to advance deployment of such services. In its February 2017 Mobility Fund II Report and Order (MF-II Report and Order) (FCC 17-11), the Commission adopted the rules and framework for moving forward expeditiously with the MF-II auction and stated that, prior to the auction, it would establish a map of areas presumptively eligible for MF-II support based on the most recently available FCC Form 477 mobile wireless coverage data, and provide a limited timeframe for parties to challenge those initial determinations during the pre-auction process. In its August 2017 Order on Reconsideration and Second Report and Order (FCC 17-102), the Commission, among other things, reconsidered its earlier decision to use FCC Form 477 data to compile the map of areas presumptively eligible for MF-II support. The Commission decided it would instead conduct a new, one-time data collection of 4G LTE coverage data that will be used for this purpose, concluding that for purposes of implementing MF-II expeditiously, this approach will provide the Commission and interested parties with the best available starting point for the challenge process and should result in fewer and more narrowly-focused challenges regarding representations of coverage. The information collected under this collection will be used by the Commission to compile the map of areas presumptively eligible for MF-II support.

    The Commission received approval from OMB for the information collection requirements contained in OMB 3060-1242 on September 27, 2017.

    Federal Communications Commission. Marlene H. Dortch, Secretary, Office of the Secretary.
    [FR Doc. 2017-21482 Filed 10-4-17; 8:45 am] BILLING CODE 6712-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention Board of Scientific Counselors, National Center for Environmental Health/Agency for Toxic Substances and Disease Registry (BSC, NCEH/ATSDR) AGENCY:

    Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).

    ACTION:

    Notice of meeting.

    SUMMARY:

    In accordance with the Federal Advisory Committee Act, the Centers for Disease Control and Prevention (CDC), announces the following meeting for the Board of Scientific Counselors, National Center for Environmental Health/Agency for Toxic Substances and Disease Registry (BSC, NCEH/ATSDR). This meeting is open to the public, limited in the room by 60 people and 75 lines over the phone. The public is also welcome to listen to the meeting by 1-888-790-2009, passcode: 7865774, with 75 lines. The deadline for notification of attendance is November 10, 2017. The public comment period is scheduled on Wednesday, November 15, 2017 from 2:00 p.m. until 2:15 p.m.; and from 3:25 p.m. until 3:40 p.m. EST, and on Thursday, November 16, 2017 from 10:10 a.m. until 10:25 a.m. EST. Individuals wishing to make a comment during Public Comment period, please email your name, organization, and phone number by November 6, 2017 to William Cibulas at [email protected]

    DATES:

    The meeting will be held on November 15, 2017, 8:30 a.m. to 4:30 p.m., EST and November 16, 2017, 8:30 a.m. to noon, EST.

    ADDRESSES:

    CDC, 4770 Buford Hwy., Atlanta, Georgia 30341, Building 107, Room 1A or by phone: 1-888-790-2009

    FOR FURTHER INFORMATION CONTACT:

    Shirley Little, Program Analyst, NCEH/ATSDR, CDC, 4770 Buford Hwy., Mail Stop F-45, Atlanta, Georgia 30341, telephone (770) 488-0577; [email protected]

    SUPPLEMENTARY INFORMATION:

    Purpose: The Secretary, Department of Health and Human Services (HHS) and by delegation, the Director, CDC and Administrator, NCEH/ATSDR, are authorized under Section 301 (42 U.S.C. 241) and Section 311 (42 U.S.C. 243) of the Public Health Service Act, as amended, to: (1) Conduct, encourage, cooperate with, and assist other appropriate public authorities, scientific institutions, and scientists in the conduct of research, investigations, experiments, demonstrations, and studies relating to the causes, diagnosis, treatment, control, and prevention of physical and mental diseases and other impairments; (2) assist states and their political subdivisions in the prevention of infectious diseases and other preventable conditions and in the promotion of health and wellbeing; and (3) train state and local personnel in health work. The BSC, NCEH/ATSDR provides advice and guidance to the Secretary, HHS; the Director, CDC and Administrator, ATSDR; and the Director, NCEH/ATSDR, regarding program goals, objectives, strategies, and priorities in fulfillment of the agency's mission to protect and promote people's health. The board provides advice and guidance that will assist NCEH/ATSDR in ensuring scientific quality, timeliness, utility, and dissemination of results. The board also provides guidance to help NCEH/ATSDR work more efficiently and effectively with its various constituents and to fulfill its mission in protecting America's health.

    Matters To Be Considered: The agenda will include discussions on NCEH/ATSDR Director Updates; Noise-Induced Hearing Loss; NCEH/ATSDR Program Responses to BSC Guidance and Action Items; CDC's Hurricane Season Response; Lead Poisoning Prevention Program Updates; Flint Registry; Revision of blood lead level reference value (status); Discussion of Legislative Requirements of new Lead Exposure Poisoning Federal Advisory Committee; Amyotrophic Lateral Sclerosis (ALS) Program Update; Environmental Health Tracking Program update; updates from the National Institute of Environmental Health Sciences, the National Institute for Occupational Safety and Health, the U.S. Department of Energy and the U.S. Environmental Protection Agency. Agenda items are subject to change as priorities dictate.

    The Director, Management Analysis and Services Office, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities, for both the Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry.

    Elaine L. Baker, Director, Management Analysis and Services Office, Centers for Disease Control and Prevention.
    [FR Doc. 2017-21422 Filed 10-4-17; 8:45 am] BILLING CODE 4163-19-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention Mine Safety and Health Research Advisory Committee (MSHRAC) AGENCY:

    Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).

    ACTION:

    Notice of meeting.

    SUMMARY:

    In accordance with the Federal Advisory Committee Act, the Centers for Disease Control and Prevention (CDC), National Institute for Occupational Safety and Health (NIOSH), announces the following meeting for the Mine Safety and Health Research Advisory Committee (MSHRAC). This meeting is open to the public, limited only by the limited only by the space available. The meeting room accommodates approximately 50 people. If you wish to attend in person or by phone, please contact Marie Chovanec by email at [email protected] or by phone at least 5 business days in advance of the meeting.

    </