Federal Register Vol. 82, No.192,

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Section 102.1 (General provisions) is revised to remove outdated wording and to incorporate additional policies and procedures relevant to the FOIA process.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.

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.

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.

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 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.

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.

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.

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.

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

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.

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.

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.

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.

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.

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:

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.

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.

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.

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.

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

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 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.

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.

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.

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.

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.

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.

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.

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

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:

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.

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.

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

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.

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.

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.

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:

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.

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.

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.

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:

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.

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.

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

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.

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.

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.

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.

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.

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.

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.

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

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.

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.

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

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

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.

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.

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

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

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

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.

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).

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.

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.

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.

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.

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.

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

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

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

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.

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.

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).

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.

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

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.

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.

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.

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.

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.

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.

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

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).

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.

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.

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.

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.

Accordingly, 26 CFR part 1 is amended as follows:

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.

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.

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.

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:

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.

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.

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.

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.

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.

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.

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

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.

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.

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.

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.

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

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

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.

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.

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.

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

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).)

For the reasons stated in the preamble, EPA amends 40 CFR part 52 as set forth below:

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.

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

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:

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

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

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)).

40 CFR part 52 is amended as follows:

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

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.

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.

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.

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.

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

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).)

For the reasons stated in the preamble, EPA amends 40 CFR parts 52 and 70 as set forth below:

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:

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.