Federal Register Vol. 82, No.206,

Federal Register Volume 82, Issue 206 (October 26, 2017)

Page Range49485-49736
FR Document

82_FR_206
Current View
Page and SubjectPDF
82 FR 49735 - Minority Enterprise Development Week, 2017PDF
82 FR 49654 - Indian Gaming; Tribal-State Class III Gaming Compact Taking Effect in the State of New MexicoPDF
82 FR 49694 - Agency Information Collection Activities: Proposed RequestPDF
82 FR 49611 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
82 FR 49539 - Fisheries of the Exclusive Economic Zone Off Alaska; Exchange of Flatfish in the Bering Sea and Aleutian Islands Management AreaPDF
82 FR 49704 - Lon F. Alexander, M.D.; Decision and OrderPDF
82 FR 49665 - Harinder Takyar, M.D.; Decision and OrderPDF
82 FR 49609 - Board of Scientific Counselors, Office of Infectious Diseases (BSC, OID)PDF
82 FR 49609 - Advisory Council for the Elimination of Tuberculosis MeetingPDF
82 FR 49611 - Advisory Committee to the Director (ACD), Centers for Disease Control and Prevention (CDC)-State, Tribal, Local and Territorial (STLT) SubcommitteePDF
82 FR 49610 - Advisory Board on Radiation and Worker Health (ABRWH or the Advisory Board), National Institute for Occupational Safety and Health (NIOSH); MeetingPDF
82 FR 49658 - National Register of Historic Places; Notification of Pending Nominations and Related ActionsPDF
82 FR 49657 - National Register of Historic Places; Notification of Pending Nominations and Related ActionsPDF
82 FR 49656 - National Register of Historic Places; Notification of Pending Nominations and Related ActionsPDF
82 FR 49663 - Yoon H. Choi, M.D.; Decision and OrderPDF
82 FR 49663 - Importer of Controlled Substances Application: Galephar Pharmaceutical Research, Inc.PDF
82 FR 49598 - Names of Members of the Performance Review Board for the Department of the Air ForcePDF
82 FR 49692 - Privacy Act of 1974; Matching ProgramPDF
82 FR 49695 - Savage Companies-Continuance in Control Exemption-Savage Davenport Railroad CompanyPDF
82 FR 49586 - MeetingsPDF
82 FR 49510 - Drawbridge Operation Regulation; Atlantic Intracoastal Waterway, Indian River, Titusville, FLPDF
82 FR 49550 - Drawbridge Operation Regulation; Atlantic Intracoastal Waterway, St. Augustine, FLPDF
82 FR 49510 - Drawbridge Operation Regulation; Snake Creek; Islamorada, FLPDF
82 FR 49600 - Environmental Impact Statement Withdrawal and Availability of an Environmental Assessment for the Souris River Basin Flood Risk Management Feasibility Study, Ward County, North DakotaPDF
82 FR 49652 - National Protection and Programs Directorate; Notification of Issuance of Binding Operational Directive 18-01PDF
82 FR 49690 - Notice of Permit Modification Received Under the Antarctic Conservation Act of 1978PDF
82 FR 49659 - Lined Paper School Supplies From China and India; Scheduling of an Expedited Five-Year ReviewPDF
82 FR 49661 - Tin- and Chromium-Coated Steel Sheet From Japan; Scheduling of a Full Five-Year ReviewPDF
82 FR 49660 - Foundry Coke From China; Scheduling of a Full Five-Year ReviewPDF
82 FR 49596 - Atlantic Highly Migratory Species; Exempted Fishing, Scientific Research, Display, and Shark Research Fishery; Letters of AcknowledgmentPDF
82 FR 49659 - Notice of Availability of the Proposed Notice of Sale for Gulf of Mexico Outer Continental Shelf Oil and Gas Region-Wide Lease Sale 250; MMAA 104000PDF
82 FR 49586 - Foreign-Trade Zone 295-Central Pennsylvania; Application for Subzone; North American Höganäs Company; Johnstown, Hollsopple and St, Mary's, PennsylvaniaPDF
82 FR 49592 - Polytetrafluoroethylene Resin From India: Initiation of Countervailing Duty InvestigationPDF
82 FR 49587 - Polytetrafluoroethylene Resin From India and the People's Republic of China: Initiation of Less-Than-Fair-Value InvestigationsPDF
82 FR 49653 - Statutorily Mandated Designation of Difficult Development Areas and Qualified Census Tracts: Revision of Effective Date for 2015 DesignationsPDF
82 FR 49681 - Notice of the Task Force on Apprenticeship Expansion Charter Establishment and Public MeetingPDF
82 FR 49636 - Information Collection Request to Office of Management and Budget; OMB Control Number: 1625-0020PDF
82 FR 49640 - Information Collection Request to Office of Management and Budget; OMBPDF
82 FR 49636 - Information Collection Request to Office of Management and Budget; OMB Control Number: 1625-0029PDF
82 FR 49641 - Information Collection Request to Office of Management and Budget; OMB Control Number: 1625-0109PDF
82 FR 49638 - Information Collection Request to Office of Management and Budget; OMB Control Number: 1625-0058PDF
82 FR 49686 - Notice of Intent To Award-Grant Awards for the Provision of Civil Legal Services to Eligible Low-Income Clients Beginning January 1, 2018PDF
82 FR 49637 - Information Collection Request to Office of Management and Budget; OMB Control Number: 1625-0022PDF
82 FR 49605 - MS Solar 3, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
82 FR 49603 - Midcontinent Independent System Operator, Inc.; Notice of Institution of Section 206 Proceeding and Refund Effective DatePDF
82 FR 49606 - Midcontinent Independent System Operator, Inc.; Notice of Institution of Section 206 Proceeding and Refund Effective DatePDF
82 FR 49607 - South Central MCN LLC; Notice of Institution of Section 206 Proceeding and Refund Effective DatePDF
82 FR 49605 - Midwest Power Transmission Arkansas, LLC; Notice of Institution of Section 206 Proceeding and Refund Effective DatePDF
82 FR 49604 - Transource Kansas, LLC; Notice of Institution of Section 206 Proceeding and Refund Effective DatePDF
82 FR 49602 - Combined Notice of Filings #1PDF
82 FR 49606 - Buchanan Energy Services Company, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 AuthorizationPDF
82 FR 49607 - Kanstar Transmission, LLC; Notice of Institution of Section 206 Proceeding and Refund Effective DatePDF
82 FR 49604 - ATX Southwest, LLC; Notice of Institution of Section 206 Proceeding and Refund Effective DatePDF
82 FR 49541 - Revised Critical Infrastructure Protection Reliability Standard CIP-003-7-Cyber Security-Security Management ControlsPDF
82 FR 49501 - Policy Statement on Establishing License Terms for Hydroelectric ProjectsPDF
82 FR 49604 - Combined Notice of Filings #2PDF
82 FR 49606 - Combined Notice of Filings #1PDF
82 FR 49604 - Combined Notice of FilingsPDF
82 FR 49642 - Commercial Customs Operations Advisory Committee (COAC)PDF
82 FR 49655 - Notice of National Petroleum Reserve in Alaska Oil and Gas Lease Sale 2017; Notice of Availability of the Detailed Statement of Sale for the NPR-A 2017 Oil and Gas Lease SalePDF
82 FR 49691 - Privacy Act of 1974; Matching ProgramPDF
82 FR 49680 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension of Currently Approved CollectionPDF
82 FR 49695 - Third RTCA SC-236 Joint Plenary With EUROCAE WG-96PDF
82 FR 49601 - Notice of Availability of a Draft Integrated General Reevaluation Report and Environmental Assessment and Draft Finding of No Significant Impact for the Proposed Lower Pajaro River Flood Risk Management Project, Monterey and Santa Cruz Counties, CAPDF
82 FR 49634 - Matthew Schroeder; Denial of Hearing; Final Debarment OrderPDF
82 FR 49595 - Judges Panel of the Malcolm Baldrige National Quality AwardPDF
82 FR 49689 - Notice of Permit Applications Received Under the Antarctic Conservation Act of 1978PDF
82 FR 49608 - Proposed Agency Information Collection Activities; Comment RequestPDF
82 FR 49668 - Federal Law Protections for Religious LibertyPDF
82 FR 49655 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Procedures for State, Tribal, and Local Government Historic Preservation ProgramsPDF
82 FR 49691 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Designation of a Longer Period for Commission Action on a Proposed Rule Change, as Modified by Amendment No. 1 Thereto, To List and Trade Shares of the Hartford Municipal Opportunities ETF Under NYSE Arca Rule 8.600-EPDF
82 FR 49690 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Designation of a Longer Period for Commission Action on Proposed Rule Change To Amend Section 202.06 of the NYSE Listed Company Manual To Prohibit Listed Companies From Issuing Material News After the Official Closing Time for the Exchange's Trading Session Until the Earlier of Publication of Such Company's Official Closing Price on the Exchange or Five Minutes After the Official Closing TimePDF
82 FR 49683 - Petitions for Modification of Application of Existing Mandatory Safety StandardsPDF
82 FR 49599 - Submission for OMB Review; Comment RequestPDF
82 FR 49682 - Preparations for the 34th Session of the UN Sub-Committee of Experts on the Globally Harmonized System of Classification and Labelling of Chemicals (UNSCEGHS)PDF
82 FR 49680 - Notice of Lodging of Proposed Consent Decree Under the Oil Pollution ActPDF
82 FR 49492 - Special Conditions: Boeing Model 777-300ER Airplanes; Passenger-Cabin High-Wall SuitesPDF
82 FR 49643 - Proposed Flood Hazard DeterminationsPDF
82 FR 49651 - Wisconsin; Major Disaster and Related DeterminationsPDF
82 FR 49651 - Wisconsin; Amendment No. 1 to Notice of a Major Disaster DeclarationPDF
82 FR 49645 - Puerto Rico; Amendment No. 2 to Notice of an Emergency DeclarationPDF
82 FR 49652 - Puerto Rico; Amendment No. 1 to Notice of an Emergency DeclarationPDF
82 FR 49646 - Puerto Rico; Amendment No. 5 to Notice of a Major Disaster DeclarationPDF
82 FR 49607 - 2017 Fall Joint Meeting of the Ozone Transport Commission and the Mid-Atlantic Northeast Visibility UnionPDF
82 FR 49645 - Puerto Rico; Amendment No. 3 to Notice of a Major Disaster DeclarationPDF
82 FR 49645 - Louisiana; Emergency and Related DeterminationsPDF
82 FR 49533 - Hazardous Waste Management System; Identification and Listing of Hazardous WastePDF
82 FR 49651 - Louisiana; Amendment No. 2 to Notice of an Emergency DeclarationPDF
82 FR 49696 - Petition for Waiver of CompliancePDF
82 FR 49697 - Petition for Waiver of CompliancePDF
82 FR 49698 - Petition for Waiver of CompliancePDF
82 FR 49662 - Notice of Receipt of Complaint; Solicitation of Comments Relating to the Public InterestPDF
82 FR 49563 - Approval and Promulgation of State Air Quality Plans for Designated Facilities and Pollutants; City of Philadelphia; Control of Emissions From Existing Sewage Sludge Incineration UnitsPDF
82 FR 49647 - Changes in Flood Hazard DeterminationsPDF
82 FR 49511 - Approval and Promulgation of State Air Quality Plans for Designated Facilities and Pollutants; City of Philadelphia; Control of Emissions From Existing Sewage Sludge Incineration UnitsPDF
82 FR 49649 - Proposed Flood Hazard DeterminationsPDF
82 FR 49646 - Final Flood Hazard DeterminationsPDF
82 FR 49564 - Mercury; Reporting Requirements for the TSCA Mercury InventoryPDF
82 FR 49612 - Authorizations of Emergency Use of In Vitro Diagnostic Devices for Detection of Zika Virus; AvailabilityPDF
82 FR 49632 - Pharmacy Compounding Advisory Committee; Notice of Meeting; Establishment of a Public Docket; Request for CommentsPDF
82 FR 49602 - Agency Information Collection Activities; Comment Request; State Educational Agency and Local Educational Agency-School Data Collection and Reporting Under ESEA, Title I, Part APDF
82 FR 49701 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Multiple Alcohol and Tobacco Tax and Trade Bureau Information Collection RequestsPDF
82 FR 49639 - Information Collection Request to Office of Management and Budget; OMB Control Number: 1625-0040PDF
82 FR 49608 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
82 FR 49504 - Schedules of Controlled Substances: Temporary Placement of ortho-Fluorofentanyl, Tetrahydrofuranyl Fentanyl, and Methoxyacetyl Fentanyl Into Schedule IPDF
82 FR 49485 - Softwood Lumber Research, Promotion, Consumer Education and Industry Information Order; De Minimis Quantity Exemption ThresholdPDF
82 FR 49698 - Sanctions Action Pursuant to Executive Order 13067 and Executive Order 13412PDF
82 FR 49513 - National Emission Standards for Hazardous Air Pollutants: Publicly Owned Treatment Works Residual Risk and Technology ReviewPDF
82 FR 49550 - Exemptions To Permit Circumvention of Access Controls on Copyrighted WorksPDF
82 FR 49498 - Airworthiness Directives; Bombardier, Inc., AirplanesPDF
82 FR 49494 - Airworthiness Directives; The Boeing Company AirplanesPDF
82 FR 49508 - Dividend Equivalents From Sources Within the United States; CorrectionPDF
82 FR 49549 - Revision of Regulations Under Chapter 3 Regarding Withholding of Tax on Certain U.S. Source Income Paid to Foreign Persons; CorrectionPDF

Issue

82 206 Thursday, October 26, 2017 Contents Agricultural Marketing Agricultural Marketing Service RULES Softwood Lumber Research, Promotion, Consumer Education and Industry Information Order: De Minimis Quantity Exemption Threshold, 49485-49492 2017-23094 Agriculture Agriculture Department See

Agricultural Marketing Service

AIRFORCE Air Force Department NOTICES Members of Performance Review Board, 49598-49599 2017-23327 Architectural Architectural and Transportation Barriers Compliance Board NOTICES Meetings, 49586 2017-23323 Centers Disease Centers for Disease Control and Prevention NOTICES Meetings: Advisory Board on Radiation and Worker Health, 49610-49611 2017-23333 Advisory Committee to Director; State, Tribal, Local and Territorial Subcommittee, 49611 2017-23334 Advisory Council for Elimination of Tuberculosis, 49609 2017-23335 Board of Scientific Counselors, Office of Infectious Diseases, 49609-49610 2017-23336 Centers Medicare Centers for Medicare & Medicaid Services NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 49611-49612 2017-23341 Coast Guard Coast Guard RULES Drawbridge Operations: Atlantic Intracoastal Waterway, Indian River, Titusville, FL, 49510-49511 2017-23322 Snake Creek, Islamorada, FL, 49510 2017-23320 PROPOSED RULES Drawbridge Operations: Atlantic Intracoastal Waterway, St. Augustine, FL, 49550 2017-23321 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 49636-49642 2017-23218 2017-23298 2017-23300 2017-23301 2017-23302 2017-23303 2017-23304 Commerce Commerce Department See

Foreign-Trade Zones Board

See

International Trade Administration

See

National Institute of Standards and Technology

See

National Oceanic and Atmospheric Administration

Copyright Office Copyright Office, Library of Congress PROPOSED RULES Exemptions to Permit Circumvention of Access Controls on Copyrighted Works, 49550-49563 2017-23038 Defense Department Defense Department See

Air Force Department

See

Engineers Corps

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 49599-49600 2017-23258 2017-23262
Drug Drug Enforcement Administration RULES Schedules of Controlled Substances: Temporary Placement of ortho-Fluorofentanyl, Tetrahydrofuranyl Fentanyl, and Methoxyacetyl Fentanyl into Schedule I, 49504-49508 2017-23206 NOTICES Decisions and Orders: Harinder Takyar, M.D., 49665-49668 2017-23338 Lon F. Alexander, M.D., 49704-49731 2017-23339 Yoon H. Choi, M.D., 49663-49665 2017-23329 Importer of Controlled Substances; Applications: Galephar Pharmaceutical Research, Inc., 49663 2017-23328 Education Department Education Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: School Data Collection and Reporting, 49602 2017-23222 Employment and Training Employment and Training Administration NOTICES Meetings: Task Force on Apprenticeship Expansion, 49681-49682 2017-23305 Energy Department Energy Department See

Federal Energy Regulatory Commission

Engineers Engineers Corps NOTICES Environmental Assessments; Availability, etc.: Proposed Lower Pajaro River Flood Risk Management Project, Monterey and Santa Cruz Counties, CA, 49601 2017-23276 Souris River Basin Flood Risk Management Feasibility Study, Ward County, ND, 49600-49601 2017-23318 Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Philadelphia; Control of Emissions from Existing Sewage Sludge Incineration Units, 49511-49512 2017-23229 Hazardous Waste Management System: Identification and Listing of Hazardous Waste, 49533-49538 2017-23239 National Emission Standards for Hazardous Air Pollutants: Publicly Owned Treatment Works Residual Risk and Technology Review, 49513-49533 2017-23067 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Philadelphia; Control of Emissions from Existing Sewage Sludge Incineration Units, 49563-49564 2017-23231 Mercury; Reporting Requirements for Toxic Substances Control Act Mercury Inventory, 49564-49585 2017-23225 NOTICES Meetings: Ozone Transport Commission and Mid-Atlantic Northeast Visibility Union; 2017 Fall Joint Meeting, 49607-49608 2017-23242 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Bombardier, Inc. Airplanes, 49498-49501 2017-23015 The Boeing Company Airplanes, 49494-49498 2017-22950 Special Conditions: Boeing Model 777-300ER Airplanes; Passenger-Cabin High-Wall Suites, 49492-49494 2017-23256 NOTICES Meetings: Third RTCA SC-236 Joint Plenary with EUROCAE WG-96, 49695-49696 2017-23278 Federal Communications Federal Communications Commission NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 49608 2017-23216 Federal Emergency Federal Emergency Management Agency NOTICES Emergency and Related Determinations: Louisiana, 49645 2017-23240 Emergency Declarations: Louisiana; Amendment No. 2, 49651 2017-23238 Puerto Rico; Amendment No. 1, 49652 2017-23245 Puerto Rico; Amendment No. 2, 49645 2017-23246 Flood Hazard Determinations, 49646-49647 2017-23227 Flood Hazard Determinations; Changes, 49647-49649 2017-23230 Flood Hazard Determinations; Proposals, 49643-49644, 49649-49651 2017-23228 2017-23253 Major Disaster and Related Determinations: Wisconsin, 49651-49652 2017-23251 Major Disaster Declarations: Puerto Rico; Amendment No. 3, 49645-49646 2017-23241 Puerto Rico; Amendment No. 5, 49646 2017-23243 Wisconsin; Amendment No. 1, 49651 2017-23249 Federal Energy Federal Energy Regulatory Commission RULES Policy Statements: Establishing License Terms for Hydroelectric Projects, 49501-49504 2017-23286 PROPOSED RULES Mandatory Reliability Standards: Revised Critical Infrastructure Protection Reliability Standard CIP-003-7—Cyber Security—Security Management Controls, 49541-49549 2017-23287 NOTICES Combined Filings, 49602-49606 2017-23283 2017-23284 2017-23285 2017-23291 Initial Market-Based Rate Filings Including Requests for Blanket Section 204 Authorizations: Buchanan Energy Services Co., LLC, 49606-49607 2017-23290 MS Solar 3, LLC, 49605 2017-23297 Institutions of Section 206 Proceedings and Refund Effective Dates: Midcontinent Independent System Operator, Inc., 49606 2017-23295 Institutions of Section 206 Proceedings: Midwest Power Transmission Arkansas, LLC, 49605-49606 2017-23293 Refund Effective Dates: ATX Southwest, LLC, 49604 2017-23288 Kanstar Transmission, LLC, 49607 2017-23289 Midcontinent Independent System Operator, Inc., 49603-49604 2017-23296 South Central MCN, LLC, 49607 2017-23294 Transource Kansas, LLC, 49604 2017-23292 Federal Railroad Federal Railroad Administration NOTICES Petitions for Waivers of Compliance: Association of American Railroads, 49696 2017-23237 Canadian National Railway Co., 49697-49698 2017-23235 New Jersey Transit, 49698 2017-23234 Old Augusta Railroad, 49696-49697 2017-23236 Federal Reserve Federal Reserve System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 49608-49609 2017-23271 Food and Drug Food and Drug Administration NOTICES Debarment Orders: Matthew Schroeder, 49634-49635 2017-23275 Emergency Uses; Authorizations: In Vitro Diagnostic Devices for Detection of Zika Virus, 49612-49632 2017-23224 Meetings: Pharmacy Compounding Advisory Committee, 49632-49634 2017-23223 Foreign Assets Foreign Assets Control Office NOTICES Blocking or Unblocking of Persons and Properties, 49698-49701 2017-23090 Foreign Trade Foreign-Trade Zones Board NOTICES Subzone Applications: North American Hoganas Co., Foreign-Trade Zone 295, Central Pennsylvania, 49586-49587 2017-23309 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

Homeland Homeland Security Department See

Coast Guard

See

Federal Emergency Management Agency

See

U.S. Customs and Border Protection

NOTICES Binding Operational Directives, 49652 2017-23317
Housing Housing and Urban Development Department NOTICES Statutorily Mandated Designation of Difficult Development Areas and Qualified Census Tracts: Revision of Effective Date for 2015 Designations, 49653-49654 2017-23306 Indian Affairs Indian Affairs Bureau NOTICES Indian Gaming: Tribal-State Class III Gaming Compact Taking Effect in State of New Mexico, 49654 2017-23343 Interior Interior Department See

Indian Affairs Bureau

See

Land Management Bureau

See

National Park Service

See

Ocean Energy Management Bureau

Internal Revenue Internal Revenue Service RULES Dividend Equivalents from Sources within United States: Correction, 49508-49510 2017-22830 PROPOSED RULES Revision of Regulations under Chapter 3 Regarding Withholding of Tax on Certain U.S. Source Income Paid to Foreign Persons: Correction, 49549-49550 2017-22815 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Polytetrafluoroethylene Resin from India, 49592-49595 2017-23308 Investigations of Sales at Less Than Fair Value: Polytetrafluoroethylene Resin from India and the People's Republic of China, 49587-49592 2017-23307 International Trade Com International Trade Commission NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Lined Paper School Supplies from China and India, 49659-49660 2017-23315 Complaints: Certain Glucosylated Steviol Glycosides, and Products Containing Same, 49662-49663 2017-23233 Investigations; Determinations, Modifications, and Rulings, etc.: Foundry coke from China, 49660-49661 2017-23313 Tin- and Chromium-Coated Steel Sheet from Japan, 49661-49662 2017-23314 Justice Department Justice Department See

Drug Enforcement Administration

See

Justice Programs Office

NOTICES Federal Law Protections for Religious Liberty, 49668-49680 2017-23269 Proposed Consent Decrees: Oil Pollution Act, 49680 2017-23259
Justice Programs Justice Programs Office NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 49680-49681 2017-23279 Labor Department Labor Department See

Employment and Training Administration

See

Mine Safety and Health Administration

NOTICES Meetings: Preparations for UN Sub-Committee of Experts on Globally Harmonized System of Classification and Labeling of Chemicals, 49682-49683 2017-23261
Land Land Management Bureau NOTICES Detailed Statements of Sales: National Petroleum Reserve in Alaska 2017 Oil and Gas Lease Sale, 49655 2017-23281 Legal Legal Services Corporation NOTICES Funding Availability: Grant Awards for Provision of Civil Legal Services to Eligible Low-Income Clients, 49686-49689 2017-23299 Library Library of Congress See

Copyright Office, Library of Congress

Mine Mine Safety and Health Administration NOTICES Petitions for Modifications: Applications of Existing Mandatory Safety Standards, 49683-49686 2017-23263 National Institute National Institute of Standards and Technology NOTICES Meetings: Judges Panel of Malcolm Baldrige National Quality Award, 49595-49596 2017-23273 National Oceanic National Oceanic and Atmospheric Administration RULES Fisheries of the Exclusive Economic Zone Off Alaska: Exchange of Flatfish in Bering Sea and Aleutian Islands Management Area, 49539-49540 2017-23340 NOTICES Atlantic Highly Migratory Species: Exempted Fishing, Scientific Research, Display, and Shark Research Fishery Permits, 49596-49598 2017-23312 National Park National Park Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Procedures for State, Tribal, and Local Government Historic Preservation Programs, 49655-49656 2017-23268 National Register of Historic Places: Pending Nominations and Related Actions, 49656-49658 2017-23330 2017-23331 2017-23332 National Science National Science Foundation NOTICES Antarctic Conservation Act Permits, 49689-49690 2017-23272 2017-23316 Ocean Energy Management Ocean Energy Management Bureau NOTICES Oil and Gas Lease Sales: Gulf of Mexico Outer Continental Shelf, 49659 2017-23310 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: Minority Enterprise Development Week (Proc. 9663), 49733-49736 2017-23525 Securities Securities and Exchange Commission NOTICES Self-Regulatory Organizations; Proposed Rule Changes: New York Stock Exchange, LLC, 49690-49691 2017-23264 NYSE Arca, Inc., 49691 2017-23265 Social Social Security Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 49694-49695 2017-23342 Privacy Act; Computer Matching Programs, 49691-49694 2017-23280 2017-23326 Surface Transportation Surface Transportation Board NOTICES Continuances in Control Exemptions: Savage Companies; Savage Davenport Railroad Co., 49695 2017-23325 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Railroad Administration

Treasury Treasury Department See

Foreign Assets Control Office

See

Internal Revenue Service

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 49701-49702 2017-23221
Customs U.S. Customs and Border Protection NOTICES Meetings: Commercial Customs Operations Advisory Committee, 49642-49643 2017-23282 Separate Parts In This Issue Part II Justice Department, Drug Enforcement Administration, 49704-49731 2017-23339 Part III Presidential Documents, 49733-49736 2017-23525 Reader Aids

Consult the Reader Aids section at the end of this issue for phone numbers, online resources, finding aids, and notice of recently enacted public laws.

To subscribe to the Federal Register Table of Contents electronic mailing list, go to https://public.govdelivery.com/accounts/USGPOOFR/subscriber/new, enter your e-mail address, then follow the instructions to join, leave, or manage your subscription.

82 206 Thursday, October 26, 2017 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 1217 [Document Number AMS-SC-16-0066] Softwood Lumber Research, Promotion, Consumer Education and Industry Information Order; De Minimis Quantity Exemption Threshold AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

This rule establishes a de minimis quantity exemption threshold under the U.S. Department of Agriculture's (USDA) Agricultural Marketing Service (AMS) regulations regarding a national research and promotion program for softwood lumber. In response to a 2016 federal district court decision, the U.S. Department of Agriculture (USDA) conducted a new analysis to determine a reasonable and appropriate de minimis threshold. Based on that analysis, this rule establishes the de minimis quantity threshold at 15 million board feet (mmbf) and entities manufacturing (and domestically shipping) or importing less than 15 mmbf per year will be exempt from paying assessments under the regulations.

DATES:

Effective Date: November 27, 2017.

FOR FURTHER INFORMATION CONTACT:

Maureen T. Pello, Marketing Specialist, Promotion and Economics Division, Specialty Crops Program, AMS, USDA, P.O. Box 831, Beavercreek, Oregon, 97004; telephone: (503) 632-8848; facsimile (503) 632-8852; or electronic mail: [email protected]

SUPPLEMENTARY INFORMATION:

This rule, affecting 7 CFR part 1217, is authorized under the Commodity Promotion, Research and Information Act of 1996 (1996 Act) (7 U.S.C. 7411-7425).

Executive Order 12866 and Executive Order 13563

Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts and equity). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules and promoting flexibility. This action falls within a category of regulatory actions that the Office of Management and Budget (OMB) exempted from Executive Order 12866 review. Additionally, because this rule does not meet the definition of a significant regulatory action it does not trigger the requirements contained in Executive Order 13771. See OMB's Memorandum titled “Interim Guidance Implementing Section 2 of the Executive Order of January 30, 2017, titled `Reducing Regulation and Controlling Regulatory Costs' ” (February 2, 2017).

Executive Order 13175

This action has been reviewed in accordance with the requirements of Executive Order 13175, Consultation and Coordination with Indian Tribal Governments. The review reveals that this rule will not have substantial and direct effects on Tribal governments and will not have significant Tribal implications.

Executive Order 12988

This rule has been reviewed under Executive Order 12988, Civil Justice Reform. It is not intended to have retroactive effect. Section 524 of the 1996 Act (7 U.S.C. 7423) provides that it shall not affect or preempt any other Federal or State law authorizing promotion or research relating to an agricultural commodity.

Under section 519 of the 1996 Act (7 U.S.C. 7418), a person subject to an order may file a written petition with USDA stating that an order, any provision of an order, or any obligation imposed in connection with an order, is not established in accordance with the law, and request a modification of an order or an exemption from an order. Any petition filed challenging an order, any provision of an order, or any obligation imposed in connection with an order, shall be filed within two years after the effective date of an order, provision, or obligation subject to challenge in the petition. The petitioner will have the opportunity for a hearing on the petition. Thereafter, USDA will issue a ruling on the petition. The 1996 Act provides that the district court of the United States for any district in which the petitioner resides or conducts business shall have the jurisdiction to review a final ruling on the petition, if the petitioner files a complaint for that purpose not later than 20 days after the date of the entry of USDA's final ruling.

Background

This rule establishes a de minimis quantity exemption threshold under the Softwood Lumber Research, Promotion, Consumer Education and Industry Information Order (Order), codified at 7 CFR part 1217. This part is administered by the Softwood Lumber Board (Board) with oversight by USDA's Agricultural Marketing Service (AMS). In Resolute Forest Products Inc., v. USDA, et al. (Resolute), the court found that, on the basis of the estimates and information submitted by the government to the court for review, the selection of 15 mmbf as the de minimis quantity (to be exempted) under part 1217 was arbitrary and capricious and that part 1217 was therefore promulgated unlawfully. The court did not vacate (or terminate) part 1217; the court remanded the matter to USDA and program requirements remain in effect.

To address the court's decision, USDA conducted a new analysis to determine a reasonable and appropriate de minimis quantity exemption. USDA analyzed various thresholds of exemption: 10, 15, 20, 25, and 30 mmbf. USDA also considered proposing no de minimis exemption. USDA's analysis of the data resulted in a determination that a de minimis level of 15 mmbf is reasonable and appropriate. The analysis was published in a proposed rule on May 30, 2017 (82 FR 24583). This final rule establishes the de minimis quantity threshold under part 1217 at 15 mmbf.

Authority in the 1996 Act

The 1996 Act authorizes USDA to establish agricultural commodity research and promotion orders which may include a combination of promotion, research, industry information, and consumer information activities funded by mandatory assessments. These programs are designed to maintain and expand markets and uses for agricultural commodities. As defined under section 513(1)(D) of the 1996 Act, agricultural commodities include the products of forestry, which includes softwood lumber.

The 1996 Act provides for a number of optional provisions that allow the tailoring of orders for different commodities. Section 516 of the 1996 Act provides permissive terms for orders. Section 516 states that an order may include an exemption of de minimis quantities of an agricultural commodity. Further, section 516(g) of the 1996 Act provides authority for other action that is consistent with the purpose of the statute and necessary to administer a program.

Overview of the Softwood Lumber Program

The softwood lumber program took effect in August 2011 (76 FR 46185) and assessment collection began in January 2012. Under part 1217, assessments are collected from domestic (U.S.) manufacturers and importers and are used by the Board for projects that promote market growth for softwood lumber products used in single and multi-family dwellings as well as commercial construction. The Board is composed of 19 industry members (domestic manufacturers and importers) who are appointed by the Secretary of Agriculture. The purpose of the program is to strengthen the position of softwood lumber in the marketplace, maintain and expand markets for softwood lumber, and develop new uses for softwood lumber within the United States.

Relevant Order Provisions Domestic Manufacturers

The term `domestic manufacturer' is defined in § 1217.8 to mean any person who is a first handler engaged in the manufacturing, sale and shipment of softwood lumber in the United States during a fiscal period and who owns, or shares in the ownership and risk of loss of manufacturing of softwood lumber or a person who is engaged in the business of manufacturing, or causes to be manufactured, sold and shipped such softwood lumber in the United States beyond personal use. The term does not include persons who re-manufacture softwood lumber that has already been subject to assessment. The term `manufacture' is defined in § 1217.13 to mean the process of transforming (or turning) softwood logs into softwood lumber.

Domestic manufacturers are essentially sawmills that turn softwood logs into lumber. A domestic manufacturer may be a company that is a single sawmill, or it may be a company that is composed of multiple sawmills.

Importers

The term `importer' is defined in § 1217.11 to mean any person who imports softwood lumber from outside the United States for sale in the United States as a principal or as an agent, broker, or consignee of any person who manufactures softwood lumber outside the United States for sale in the United States, and who is listed in the import records as the importer of record for such softwood lumber. Import records are maintained by the U.S. Customs and Border Protection (Customs or CBP). Both domestic manufacturers and importers may be referred to in this rulemaking as “entities.”

Expenses and Assessments

Pursuant to § 1217.50, the Board is authorized to incur expenses for research and promotion projects as well as administration. The Board's expenses are paid by assessments upon domestic manufacturers and importers. Pursuant to § 1217.52(b), and subject to the exemptions specified in § 1217.53, each domestic manufacturer and importer must pay an assessment to the Board at the rate of $0.35 per thousand board feet of softwood lumber, except that no entity has to pay an assessment on the first 15 mmbf of softwood lumber otherwise subject to assessment in a fiscal year. Domestic manufacturers pay assessments based on the volume of softwood lumber shipped within the United States and importers pay assessments based on the volume of softwood lumber imported to the United States. Pursuant to paragraphs (d) and (j) in § 1217.52, respectively, domestic manufacturers and importers who pay their assessments to the Board must do so no later than the 30th calendar day of the month following the end of the quarter in which the softwood lumber was shipped or imported.

Exemptions

Section 1217.53 prescribes exemptions from assessment. Pursuant to paragraph (a) of that section, the original de minimis quantity exemption threshold under part 1217 was 15 mmbf. Thus, U.S. manufacturers and importers that domestically ship and/or import less than 15 mmbf feet annually have been exempt from paying assessments. Domestic manufacturers and importers that ship or import less than the de minimis quantity of softwood lumber must apply to the Board each year for a certificate of exemption and provide documentation as appropriate to support their request.

Pursuant to paragraph (b) of § 1217.53, domestic manufacturers and importers that ship or import 15 mmbf or more annually do not pay assessments on their first 15 mmbf domestically shipped or imported. This exemption is intended for the purpose of creating an equality amongst those within the industry with regard to the program's assessment. Just as those that manufacture or import under 15 mmbf do not have to pay assessments, those at or above this level may reduce their assessable volume by 15 mmbf.1 For example, an entity that ships or imports 20 mmbf annually only has to pay assessments on 5 mmbf of softwood lumber. This exemption creates fairness; it levels the playing field because all entities, regardless of size, do not have to pay assessments on their first 15 mmbf shipped or imported. For purposes of this document, this exemption is referred to as the “equity exemption.” Pursuant to paragraphs (c) and (d) of § 1217.53, respectively, exports of softwood lumber from the United States and organic softwood lumber are also exempt from assessment.

1 USDA notes that the de minimis level and the equity exemption are purposefully aligned and any change in the de minimis would result in a corresponding modification to the equity exemption.

Reports and Records

Pursuant to § 1217.70, domestic manufacturers and importers who pay their assessments directly to the Board must submit with their payment a report that specifies the quantity of softwood lumber domestically shipped or imported. Pursuant to § 1217.71, all domestic manufacturers and importers must maintain books and records necessary to verify reports for a period of 2 years beyond the fiscal year to which they apply, including those exempt. These records must be made available during normal business hours for inspection by Board staff or USDA.

Other Relevant Order Provisions

The original 15 mmbf quantity exemption threshold is referenced in other Order provisions. Section 1217.40 specifies that the Board is composed of domestic manufacturers and importers who domestically ship or import 15 mmbf or more of softwood lumber annually. Section 1217.41 specifies that persons interested in serving on the Board must also domestically ship or import 15 mmbf or more softwood lumber annually. Finally, § 1217.101 regarding referendum procedures specifies that eligible domestic manufacturers and importers that can vote in referenda must domestically ship or import 15 mmbf or more of softwood lumber annually.

Initial Referendum and Summary of Board Activities

The softwood lumber program was implemented after notice and comment rulemaking and a May 2011 referendum demonstrating strong support for the program. Pursuant to § 1217.81(a), the program had to pass by a majority of those voting in the referendum who also represented a majority of the volume voted. Sixty-seven percent of the entities who voted, who together represented 80 percent of the volume, in the referendum favored implementation of the program. Entities that domestically shipped or imported 15 mmbf or more of softwood lumber annually were eligible to vote in the referendum. As previously mentioned, the program took effect in August 2011 and assessment collection began in January 2012.

The softwood lumber program has continued to operate at the 15 mmbf exemption threshold since its inception. During these years, the Board has funded a variety of activities designed to increase the demand for softwood lumber. The Board funded a U.S. Tall Wood Building Prize Competition that is helping to showcase the benefits of building tall structures with wood. The Board also funds research on wood standards; a communications program, which includes continuing education courses for architects and engineers; and a construction and design program that provides technical support to architects and structural engineers about using wood.

Summary of USDA's Analysis of the De Minimis Quantity Under the Softwood Lumber Program

The Secretary has authority under section 516 of the 1996 Act to exempt any de minimis quantity of an agricultural commodity otherwise covered by an order: “An order issued under this subchapter may contain . . . authority for the Secretary to exempt from the order any de minimis quantity of an agricultural commodity otherwise covered by the order. . . .” 7 U.S.C. 7415(a). A de minimis quantity exemption allows an industry to exempt from assessment small entities that could be unduly burdened from an order's requirements (i.e., assessment and quarterly reporting obligations). Because the 1996 Act does not prescribe the methodology or formula for computing a de minimis quantity, the Secretary has discretion to determine a reasonable and appropriate quantity and establish this level through notice and comment rulemaking. Pursuant to section 525 of the 1996 Act, 7 U.S.C. 7424, the Secretary may issue such regulations as may be necessary to carry out an order.

In evaluating the merits of a de minimis quantity for the softwood lumber program, USDA considered several factors. These factors include: an estimate of the total quantity of softwood lumber covered under part 1217 (quantity assessed and quantity exempted); available funding to support a viable program; free rider implications; and the impact of program requirements on entities (above and below a de minimis threshold). USDA reviewed such factors in light of all available data and information to determine whether a de minimis quantity is reasonable. USDA balanced the multiple factors to assess whether one exemption threshold would work better than another when the factors are considered collectively. The analysis was based on the current assessment rate of $0.35 per thousand board feet.2

2 If the assessment rate changes significantly, USDA could revisit the de minimis threshold.

The following tables are republished from USDA's analysis of the de minimis quantity under the softwood lumber program contained in the May 2017 proposed rule (82 FR 24583).

Table 1 shows the estimate of the supply of U.S. softwood lumber used in the analysis, accounting for both U.S. shipments and imports. U.S. shipments were estimated using capacity3 data from Forest Economic Advisors (FEA). Total imports was estimated using data from CBP.

3 A sawmill's operating capacity is the total amount of softwood lumber that it could manufacture (or produce) if fully utilizing all of its resources (such as labor and equipment).

Table 1—Supply of Softwood Lumber in the U.S. (MMBF) Shipments 1 Imports 2 Supply 3 28,754 12,495 41,249 1 FEA; 2 CBP; 3 The sum of U.S. Shipments and Imports.

Table 2 shows assessable volume and revenue at exemption levels of 30, 25, 20, 15 and 10 mmbf, as well as with no exemptions. The table accounts for both the de minimis and equity exemptions under part 1217, and an assessment rate of $0.35 per thousand board feet.

Table 2—Assessable Volume and Assessment Revenue at Exemption Levels (MMBF) 1 Volume equal to or greater than De minimis
  • exemption only
  • De minimis and equity
  • exemptions
  • Assessment revenue
  • ($) 2
  • 30 37,965 32,805 $11,481,698 25 38,319 33,694 11,792,941 20 38,990 34,690 12,141,349 15 39,679 35,854 12,548,792 10 40,013 37,183 13,014,059 No exemptions 41,249 41,249 14,437,099 1 2015 data from FEA and CBP were used to construct this table. 2 The product of total assessable volume, accounting for both de minimis and equity exemptions, and the assessment rate of $0.35 per thousand board feet.

    Table 3 is the inverse of Table 2 in that it shows exempt volume at de minimis and equity exemptions of 30, 25, 20, 15 and 10 mmbf.

    Table 3—Exempt Volume at Exemption Levels (MMBF) 1 Volume less than De minimis exemption only Volume % Exempt 2 De minimis and equity
  • exemptions
  • Volume % Exempt 2
    30 3,284 8 8,444 20 25 2,930 7 7,555 18 20 2,259 5 6,559 16 15 1,570 4 5,395 13 10 1,236 3 4,066 10 1 2015 data from FEA and CBP were used to construct this table. 2 The quotient of total exempt volume and total 2015 U.S. supply (the sum of U.S. shipments and U.S. imports) of 41,249 MMBF.

    Table 4 shows the number of entities (domestic manufacturers and importers) that would be assessed and the number of entities that would be exempt at the exemption thresholds of 30, 25, 20, 15 and 10 mmbf.

    Table 4—Assessed and Exempt Entities at Exemption Levels (MMBF) 1 Volume (MMBF) Assessed Number of
  • entities
  • % Assessed 2 Exempt Number of
  • entities
  • % Exempt 2
    30 172 16 882 84 25 185 18 869 82 20 215 20 839 80 15 255 24 799 76 10 283 26 771 73 None 1,054 100 0 1 2015 data from FEA and CBP were used to construct this table. 2 The quotient of No. of Entities and total domestic manufacturers and importers recorded in the industry (1,054) in 2015.

    Based on its analysis, USDA determined the following: Exemption thresholds of 10 to 15 mmbf would exempt 10 to 13 percent of the total volume of softwood lumber (taking into account both the de minimis and equity exemptions). This is close to the range exempt under other research and promotion programs. While all of the exemption thresholds analyzed would generate sufficient revenue for a viable program, the additional revenue that could be collected if the de minimis level were reduced much lower than 15 mmbf would likely not be worth the additional costs. At this threshold, free rider implications would be minimal because only 4 percent of the volume of softwood lumber would be exempted as de minimis. Applying both the de minimis and equity exemptions at 15 mmbf would allow the program to assess almost 90 percent of the total volume of softwood lumber.

    Further, the program functioned successfully in 2015 with assessment revenue of $12.905 million with de minimis and equity exemptions of 15 mmbf. The Board has conducted activities at this level of funding that have helped build demand for softwood lumber, including a prize competition for tall wood buildings, research on wood standards, and an education program for architects and engineers on building with wood. An independent evaluation completed in 2016 concluded that activities of the Board increased sales of softwood lumber between 2011 and 2015 by 1.683 bbf or $596 million. This equates to a return on investment of $15.55 of additional sales for every $1 spent on promotion by the Board.4

    4 Prime Consulting, Softwood Lumber Board, Comprehensive Program ROI, 2012-2015, February 2016.

    Therefore, when considering all of the factors collectively, USDA concludes that 15 mmbf is a reasonable and most appropriate de minimis quantity under part 1217.5 Accordingly, this rule establishes the de minimis quantity threshold under part 1217 at 15 mmbf. Thus, no amendment to part 1217 is necessary.

    5 As stated previously, the de minimis level and the equity exemption are purposefully aligned, and therefore this conclusion accounts for the equity exemption at 15 mmbf.

    Final Regulatory Flexibility Act Analysis

    In accordance with the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), AMS is required to examine the impact of this final rule on small entities as defined by the Small Business Administration (SBA). The classification of a business as small, as defined by the SBA, varies by industry. If a business is defined as “small” by SBA size standards, then it is “eligible for government programs and preferences reserved for `small business' concerns.” 6 Accordingly, AMS has considered the economic impact of this action on such entities.

    6https://www.sba.gov/contracting/getting-started-contractor/make-sure-you-meet-sba-size-standards/small-business-size-regulations.

    The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be disproportionately burdened. The SBA defines, in 13 CFR part 121, small agricultural producers as those having annual receipts of no more than $750,000 and small agricultural service firms (domestic manufacturers and importers) as those having annual receipts of no more than $7.5 million.7

    7 SBA does have a small business size standard for “Sawmills” of 500 employees (see https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf). Based on USDA's understanding of the lumber industry, using this criteria would be impractical as sawmills often use contractors rather than employees to operate and, therefore, many mills would fall under this criteria while being, in reality, a large business. Therefore, USDA used agricultural service firm as a more appropriate criteria for this analysis.

    Using an average price of $330 per thousand board feet,8 a domestic manufacturer or importer who ships less than about 23 mmbf per year would be considered a small entity for purposes of the RFA. As shown in Table 4, there were 1,054 domestic manufacturers and importers of softwood lumber based on 2015 data. Of these, 864 entities shipped or imported less than 23 mmbf and would be considered to be small entities under the SBA definition. Thus, based on the $7.5 million threshold, the majority of domestic manufacturers and importers of softwood lumber would be considered small entities for purposes of the RFA.

    8 Random Lengths Publications, Inc.; www.randomlengths.com.

    This action establishes a de minimis quantity exemption threshold under part 1217. Part 1217 is administered by the Board with oversight by USDA. In response to a federal district court decision in Resolute, USDA conducted a new analysis to determine a reasonable and appropriate de minimis threshold. Based on this analysis, this final rule establishes the de minimis quantity threshold at 15 mmbf and entities manufacturing (and domestically shipping) or importing less than 15 mmbf per year would be exempt from paying assessments under part 1217. Authority for this action is provided in sections 516(a)(2), 516(g) and 525 of the 1996 Act.

    Regarding the economic impact of the de minimis exemption, the exemption allows the Board to exempt from assessment small entities that would be unduly burdened by the program's obligations. At the 15 mmbf exemption threshold, small manufacturers and importers that domestically ship or import less than 15 mmbf of softwood lumber will not have to pay assessments under the program.

    Additionally, larger manufacturers and importers will not have to pay assessments on the first 15 mmbf of softwood lumber domestically shipped or imported each year. This exemption is intended for the purpose of equity, whereby all entities who must pay assessments may reduce their assessable volume by 15 mmbf. This exemption benefits smaller manufacturers and importers whose annual shipments or imports are above the de minimis threshold of 15 mmbf. With this exemption, an entity that ships or imports a quantity of softwood lumber equal to the RFA-small business definition of 23 mmbf, would only pay assessments on no more than 8 mmbf of softwood lumber.

    To calculate the impact of the assessment rate on the revenue of an assessment payer, the assessment rate is divided by an average price. Using an average 2015 price of $330 per thousand board feet, the assessment rate as a percentage of price could range from 0.106 percent at the current assessment rate to 0.151 percent at the maximum assessment rate. This analysis helps identify the impact of the assessment rate on the revenues of assessment payers. At the current assessment rate of $0.35 per thousand board feet to the maximum assessment rate of $0.50 per thousand board feet, assessment payers would owe between 0.106 percent and 0.151 percent of their revenues, respectively.

    In its analysis of alternatives, USDA evaluated five different exemption thresholds—30, 25, 20, 15 and 10 mmbf using 2015 data—accounting for both the de minimis and equity exemptions, as well as having no exemptions under the program. USDA evaluated these alternatives based on the following factors: an estimate of quantity of softwood lumber covered under the program (quantity assessed and quantity exempted); available funding to support a viable program; free rider implications; and the impact of program requirements on entities (above and below a de minimis threshold). USDA conducted a balancing test among these factors to assess whether one exemption threshold works better than another when the factors are considered collectively.

    In reviewing the quantity of assessable versus exempt softwood lumber at the alternative exemption thresholds, USDA found that at an exemption threshold of 30 mmbf, a total of 32.805 bbf would be assessed with 3.284 bbf, or 8 percent, exempt as de minimis, plus an additional 5.16 bbf exempt as equity for 20 percent of total volume exempt; at 25 mmbf, a total of 33.694 bbf would be assessed with 2.93 bbf, or 7 percent, exempt as de minimis, plus an additional 4.625 bbf exempt as equity for 18 percent total volume exempt; at a threshold of 20 mmbf, a total of 34.69 bbf would be assessed with 2.259 bbf, or 5 percent, exempt as de minimis, plus an additional 4.3 bbf exempt as equity for 16 percent total volume exempt; at a threshold of 15 mmbf, a total of 35.854 bbf would be assessed with 1.57 bbf, or 4 percent, exempt as de minimis, plus an additional 3.825 bbf exempt as equity for 13 percent total volume exempt; at a threshold of 10 mmbf, a total of 37.183 bbf would be assessed, with 1.236 bbf, or 3 percent, exempt as de minimis, plus an additional 2.83 bbf exempt as equity for 10 percent total volume exempt; and with no exemptions, a total of 41.249 bbf would be assessed. In reviewing the total volume exempt under the softwood lumber program (taking into account both the de minimis and equity exemptions), thresholds of 10 to 15 mmbf exempt between 10 and 13 percent of the volume, which is close to the range exempt under other programs.

    In reviewing available funding to support a viable program at the alternative exemption thresholds, at an exemption threshold of 30 mmbf, estimated assessment revenue is $11.482 million; at 25 mmbf, estimated assessment revenue is $11.793 million (an additional $311,243); at a threshold of 20 mmbf, estimated assessment revenue is $12.141 million (an additional $348,408); at a threshold of 15 mmbf, estimated assessment revenue is $12.549 million (an additional $407,444); at a threshold of 10 mmbf, estimated assessment revenue is $13.014 million (an additional $465,267); and with no exemptions, estimated assessment revenue is $14.437 million (an additional $1.423 million).

    Assessment revenue under the current softwood lumber program has ranged from about $10.638 million in 2012 to $12.905 million in 2015. At this level of revenue, the current program has seen success. The revenues reviewed at the different exemption thresholds are comparable to these levels or higher. Thus, all of the exemption thresholds analyzed would generate sufficient revenue for a viable program.

    Regarding free riders, USDA notes that the key to assessing the free rider implications of a de minimis quantity is not the number of entities exempt under a program but rather the volume of product exempt. This is because assessments are based on volume shipped or imported and not on the number of entities; assessments are not paid by entities on a pro rata basis. In evaluating free rider implications at the alternative exemption thresholds, at an exemption threshold of 30 mmbf, 84 percent of the number of entities (or 882) would be exempt but only 8 percent of the volume would be exempt as de minimis; at a threshold of 25 mmbf, 82 percent of the number of entities (or 869) would be exempt, but only 7 percent of the volume would be exempt as de minimis; at a threshold of 20 mmbf, 80 percent of the number of entities (or 839) would be exempt, but only 5 percent of the volume would be exempt as de minimis; at a threshold of 15 mmbf, 76 percent of the number of entities (or 799) would be exempt, but only 4 percent of the volume would be exempt as de minimis; and at a threshold of 10 mmbf, 73 percent of the number of entities (or 771) would be exempt, but only 3 percent of the volume would be exempt as de minimis.

    In evaluating the impact of the program's requirements at the alternative exemption thresholds, entities that ship or import at or above the de minimis threshold must pay assessments to the Board. Assessment payers must also submit a report to the Board each quarter of the volume of softwood lumber shipped or imported for the respective quarter. Entities that ship or import below the de minimis threshold must apply to the Board each year for a certificate of exemption and provide documentation as appropriate to support their request. The reporting and recordkeeping requirements are detailed in the section below titled Paperwork Reduction Act.

    At an exemption threshold of 30 mmbf, 172 entities would pay assessments and 882 would be exempt; at 25 mmbf, 185 entities would pay assessments and 869 would be exempt; at 20 mmbf, 215 entities would pay assessments and 839 would be exempt; at 15 mmbf, 255 entities would pay assessments and 799 would be exempt; at 10 mmbf, 283 entities would pay assessments and 771 would be exempt. Thus, as the exemption threshold is reduced, more entities would be subject to the assessment and quarterly reporting obligation under part 1217.

    Further, in considering program compliance costs, USDA estimates the cost of an on-site audit of a single entity at $5,000 or more. Thus, the cost to pursue a compliance case against an entity that shipped less than 10 mmbf, 9 mmbf for example, would outweigh the revenue that would be collected from that entity of $3,150. Similarly, the assessment revenue that would be collected from an entity that shipped less than 15 mmbf, 12 mmbf for example, would amount to $4,200. The benefit of assessing smaller manufacturers, $3,150 at 9 mmbf and $4,200 at 12 mmbf, does not outweigh the cost of pursuing compliance cases against them at $5,000 per entity. The point at which the assessment revenue that would be collected from an entity outweighs the estimated cost of $5,000 to pursue a compliance case is an entity with volume equal to or greater than 14.3 mmbf.9 This level is close to 15 mmbf. By this analysis, the selection of 15 mmbf as the de minimis quantity is reasonable.

    9 This figure is computed by dividing the estimated cost to pursue a compliance case against an entity of $5,000 by the assessment rate of $0.35 per thousand board feet.

    Analysis of the 23 mmbf-RFA small business threshold as a reasonable option for de minimis shows that 190 entities would be subject to assessment and 864 entities would be exempt. In terms of volume, 38.44 bbf would be assessed, or 93 percent of total volume, and 2.809 bbf would be exempt, or 7 percent of total volume.

    Based upon the analysis contained herein, any of the exemption thresholds reviewed would be reasonable because they would exempt from 3 to 8 percent of the volume of softwood lumber as de minimis. However, when the total volume exempt under the softwood lumber program is considered (taking into account both the de minimis and equity exemptions), thresholds of 10 to 15 mmbf exempt between 10 and 13 percent of the volume, which is close to the range exempt under other programs. While all of the exemption thresholds analyzed would generate sufficient revenue for a viable program, the additional revenue that could be collected if the de minimis level were reduced much lower than 15 mmbf would likely not be worth the additional costs. The softwood lumber program operated successfully since its inception at an exemption threshold of 15 mmbf.10

    10 An independent evaluation of the softwood lumber program showed that the activities of the Board increased sales of softwood lumber between 2011 and 2015 by 1.683 bbf or $596 million. This equates to a return on investment of $15.55 of additional sales for every $1 spent on promotion by the Board. By this metric, part 1217 to date has been effective. USDA therefore finds that 15 mmbf is a reasonable exemption level for de minimis.

    Paperwork Reduction Act

    In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), the information collection and recordkeeping requirements imposed by part 1217 have been approved previously under OMB control number 0581-0093. This rule imposes no additional reporting and recordkeeping burden on domestic manufacturer and importers of softwood lumber. The reporting requirements pertaining to this rule are described in the following paragraphs.

    As previously mentioned, pursuant to § 1217.53(a), domestic manufacturers and importers who domestically ship or import less than the de minimis threshold must apply to the Board each year for a certificate of exemption and provide documentation as appropriate to support their request. The reporting burden for this collection of information is estimated to average 0.25 hours per domestic manufacturer or importer per report, or 0.25 hours per year (1 request per year per exempt entity). This computes to a total annual burden of 199.75 hours (0.25 hours times 799 exempt entities at the 15 mmbf de minimis exemption threshold from Table 4).

    Further, pursuant to § 1217.70, domestic manufacturers and importers that ship or import at or over the de minimis exemption level and pay their assessments directly to the Board must submit a shipment/import report for each quarter when assessments are due. The reporting burden for this collection of information is estimated to average 0.5 hours per domestic manufacturer or importer per report, or 2 hours per year (4 reports per year times 0.5 hours per report). This computes to a total annual burden of 510 hours (255 assessed entities (from Table 4—No. of Assessed Entities at 15 mmbf) at 2 hours each equals 510 hours).

    All domestic manufacturers and importers must also maintain records sufficient to verify their reports. The recordkeeping burden for keeping this information is estimated to average 0.5 hours per record keeper maintaining such records, or 527 hours (1,054 total entities assessed (from Table 4—No. of Assessed Entities at no exemption) times 0.5 hours).

    As with all Federal promotion programs, reports and forms are periodically reviewed to reduce information requirements and duplication by industry and public sector agencies. Finally, USDA has not identified any relevant Federal rules that duplicate, overlap, or conflict with this rule.

    USDA is committed to complying with the E-Government Act, to promote the use of the internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

    Regarding outreach efforts, USDA initiated this action in response to a May 2016 federal court decision in Resolute. This rule establishes the de minimis quantity exemption under part 1217.

    A proposed rule concerning this action was published in the Federal Register on May 30, 2017 (82 FR 24583). The Board distributed copies of the proposed rule via email to domestic manufacturers and importers. The proposal was also made available through the internet by USDA and the Office of the Federal Register. A 60-day comment period ending July 31, 2017, was provided to allow interested persons to submit comments.

    Analysis of Comments

    Thirty-three comments were received in response to the proposed rule. Of those 33 comments, one was outside the scope of the rulemaking and the remaining 32 supported the 15 mmbf exemption threshold. The following is an analysis of those 32 comments.

    Several commenters reiterated the data presented in the proposed rule. They cited Table 3 which shows that, at the 15 mmbf threshold, entities that pay into the program account for 96 percent of the U.S. softwood lumber market volume. Thus, free rider concerns are minimal. Reducing the exemption level by a third (down to 10 mmbf) would only increase that number to 97 percent of the U.S. market and would not be worth the additional effort. There are a large number of small manufacturers and importers who account for a small percentage of the softwood lumber shipped in the United States. The commenters opined that the cost of collecting an assessment from such a large number of entities outweighs the revenue that could be collected from such a small amount of volume. They agreed that Board staff time would be better spent on promotion activities than trying to collect a small amount of revenue from several small entities.

    One commenter opined that the methodology used by USDA to determine the de minimis threshold was comprehensive and explored tradeoffs involved in setting a threshold below which it is counterproductive to the collection of assessments to further the program. The commenter stated that “. . . USDA dealt with a large amount of data on imports that it appropriately scrubbed to exclude obvious errors and outliers.” Within the populations of domestic manufacturers and importers categorized based on volume, USDA conducted a series of “what if” analyses to determine the impact of various de minimis levels on revenue in terms of “. . . administrative costs, the compliance burden on respondents and the potential for “free rider” benefits.” The commenter also observed that USDA compared the results to other federal promotion programs authorized under the 1996 Act and overseen by USDA where it found that 8 of 10 programs exempt a de minimis quantity from assessment, and that half of those programs exempt between 3 and 11 percent of the total quantity covered by the program as de minimis. Among the range of alternatives that USDA analyzed, the 10 and 15 mmbf thresholds came closest to this range. The commenter stated that USDA also compared the benefits derived from these thresholds with the likely compliance costs incurred, which USDA estimated at $5,000 per entity. The point at which revenues collected from entities that would fall below the compliance cost was found to be at 14.3 mmbf, which is closest to the 15 mmbf threshold. The combination of these results led USDA to conclude that 15 mmbf is the most appropriate benchmark between volumes assessed and not assessed. The commenter concluded that, “. . . while there is no special formula for computing a de minimis threshold . . . ,” the commenter believes that USDA selected a reasonable exemption amount based on the industry's structure and the program's benefits and costs.

    Six commenters opined that the 15 mmbf threshold appropriately separates the high production manufacturers from small entities that manufacture specialty products and sell into mostly local and niche markets. They agreed that specialty products do not benefit as much from a national promotion program, and that growth in market share benefits entities that manufacture larger volumes to a greater degree than those that fall below the 15 mmbf threshold.

    Several commenters expressed concern with the administrative burden that complying with a mandatory promotion program could place on small entities below the 15 mmbf threshold. One commenter stated that, on a per board foot ratio, the costs to participate in the program are lower for larger entities than smaller entities. Many small entities still record their shipments by hand. Larger entities, on the other hand, can afford to invest in automated computer reporting systems and can have personnel dedicated to efficiently analyzing their reporting. Thus, the administrative costs for smaller entities to participate in the program are higher than the costs for larger entities.

    Two commenters also referenced the part's 8 percent cap on administrative expenses. They opined that the revenue gained from collecting assessments from numerous small entities would not be sufficient to justify the additional costs and administrative complexities.

    Three commenters expressed support for the equity exemption. They opined that the equity exemption makes the program fair for everyone. One commenter opined that the equity exemption mitigates the free rider problem because larger entities do not have to pay assessments on their first 15 mmbf shipped. Without the equity exemption, assessment payers would pay more, thereby increasing the free rider impact.11

    11 For example, as explained in the May 2017 proposed rule, if the thresholds for de minimis and equity exemptions were 10 mmbf, Company A that ships 8 mmbf annually would pay no assessments, and Company B that ships 30 mmbf annually would have to pay assessments on 20 mmbf of softwood lumber. At an assessment rate of $0.35 per thousand board feet, this would compute to $7,000 in assessments. Without the equity exemption, Company A would still pay no assessments but Company B would have to pay assessments on 30 mmbf. This would compute to $10,500 in assessments, which is an additional burden of $3,500. Thus, the equity exemption reduces the burden of free riders on entities funding the program. It creates fairness because it exempts from assessment an equal volume from all entities, regardless of their size.

    Two commenters discussed the efforts of the Blue Ribbon Commission (BRC), the proponent group, in promulgating the program. They stated that the BRC surveyed the industry on issues related to the program, including the de minimis exemption threshold. They stated that the BRC sought a level that would generate maximum revenue for the program while being mindful of the cost of administering the program and collecting assessments. The BRC's survey found that 15 mmbf was the appropriate level that was broadly accepted by the industry.

    Several commenters also expressed their overall support for the softwood lumber program. They agreed that the program provides a strong, unified voice for the industry. One commenter stated that the program has contributed significantly to strengthening the position of softwood lumber in the market place as well as expanding and developing new markets for softwood lumber. The commenters also agreed that funding for the program has been appropriate since assessment collection began in 2012. None of the commenters supported increasing the exemption threshold thereby reducing funding for the program.

    No changes have been made to the proposed rule based on the comments received.

    After consideration of all relevant matters presented, including the available information and comments received, it is hereby found that this rule, is consistent with and will effectuate the purposes of the 1996 Act.

    List of Subjects in 7 CFR Part 1217

    Administrative practice and procedure, Advertising, Consumer information, Marketing agreements, Promotion, Reporting and recordkeeping requirements, Softwood lumber.

    The authority citation for 7 CFR part 1217 continues to read as follows:

    Authority:

    7 U.S.C. 7411-7425; 7 U.S.C. 7401.

    Dated: October 19, 2017. Bruce Summers, Acting Administrator.
    [FR Doc. 2017-23094 Filed 10-25-17; 8:45 am] BILLING CODE 3410-02-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2017-0862; Special Conditions No. 25-703-SC] Special Conditions: Boeing Model 777-300ER Airplanes; Passenger-Cabin High-Wall Suites AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final special conditions; request for comments.

    SUMMARY:

    These special conditions are issued for Boeing Model 777-300ER airplanes with high-wall suites installed in the passenger cabin. This installation is novel or unusual, and the applicable airworthiness regulations do not contain adequate or appropriate safety standards for this interior configuration. These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    DATES:

    This action is effective on Boeing on October 26, 2017. Send your comments by December 11, 2017.

    ADDRESSES:

    Send comments identified by docket number FAA-2017-0862 using any of the following methods:

    Federal eRegulations Portal: Go to http://www.regulations.gov/ and follow the online instructions for sending your comments electronically.

    Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE., Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.

    Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    Fax: Fax comments to Docket Operations at 202-493-2251.

    Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket Web site, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478).

    Docket: Background documents or comments received may be read at http://www.regulations.gov/ at any time. Follow the online instructions for accessing the docket or go to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE., Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    FOR FURTHER INFORMATION CONTACT:

    John Shelden, Airframe and Cabin Safety Section, AIR-675, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, 1601 Lind Avenue SW., Renton, Washington 98057-3356; telephone 425-227-2785; facsimile 425-227-1232; email [email protected]

    SUPPLEMENTARY INFORMATION:

    The substance of these special conditions has been subject to the notice and comment period in several prior instances and has been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, because a delay would significantly affect the certification of the airplane, the FAA has determined that prior public notice and comment are unnecessary and impracticable.

    In addition, since the substance of these special conditions has been subject to the public comment process in several prior instances with no substantive comments received, the FAA finds it unnecessary to delay the effective date and finds that good cause exists for adopting these special conditions upon publication in the Federal Register.

    Comments Invited

    We invite interested people to take part in this rulemaking by sending written comments, data, or views. The most helpful comments reference a specific portion of the special conditions, explain the reason for any recommended change, and include supporting data.

    We will consider all comments we receive by the closing date for comments. We may change these special conditions based on the comments we receive.

    Background

    On December 19, 2014, Boeing applied for a type certificate design change to Type Certificate (TC) No. T00001SE to install high-wall suites in the passenger compartment of Boeing Model 777-300ER airplanes.

    The Model 777 series airplane is a swept-wing, conventional-tail, twin-engine, turbofan- powered, transport-category airplane. The airplane has seating for 365 passengers and a maximum takeoff weight of 775,000 pounds.

    Type Certification Basis

    Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Boeing must show that the Model 777-300ER airplane, as changed, continues to meet the applicable provisions of the regulations listed in Type Certificate No. T00001SE or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

    If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Boeing Model 777-300ER airplane because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

    Special conditions are initially applicable to the model for which they are issued. Should the type certificate for that model be amended later to include any other model that incorporates the same novel or unusual design feature, or should any other model already included on the same type certificate be modified to incorporate the same novel or unusual design feature, these special conditions would also apply to the other model under § 21.101.

    In addition to the applicable airworthiness regulations and special conditions, the Boeing Model 777-300ER airplane must comply with the fuel-vent and exhaust-emission requirements of 14 CFR part 34, and the noise-certification requirements of 14 CFR part 36.

    The FAA issues special conditions, as defined in 14 CFR 11.19, in accordance with § 11.38, and they become part of the type-certification basis under § 21.101.

    Novel or Unusual Design Features

    The Boeing Model 777-300ER airplane will incorporate the following novel or unusual design features:

    A passenger cabin with six high-wall suites arranged in two rows of three suites each.

    Discussion

    The Boeing Model 777-300ER airplane will include, as a customer option, a passenger cabin with six high-wall suites arranged in two rows of three suites each, in a 1-1-1 configuration. The suites have doors and walls that are taller than has been previously certified by the FAA on Boeing 777 series airplanes. The walls extend from the floor to the ceiling or close to the ceiling.

    The characteristics of the suite design are unique such that the suites are not fully open to the cabin, as are conventional mini-suites with partial-height surrounds, and they are not remote from the main cabin, as are overhead crew rests. Likewise, unique but suitable fire-protection requirements for smoke detection and firefighting are needed for this configuration. Furthermore, the proposed suite design necessitates the development of additional conditions that do not currently exist within associated airworthiness standards, including, but not limited to, alerting and lighting when oxygen masks are needed, crew procedures for managing hazards and suite occupants, and maintaining cabin-egress route dimensions after deformations of the walls and seats.

    These special conditions contain the additional safety standards that the Administrator considers necessary to establish a level of safety equivalent to that established by the existing airworthiness standards.

    Applicability

    As discussed above, these special conditions are applicable to the Boeing Model 777-300ER airplane with high-wall, single-occupant suites with doors installed. Should Boeing apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

    Conclusion

    This action affects only certain novel or unusual design features on one model series of airplane. It is not a rule of general applicability.

    List of Subjects in 14 CFR Part 25

    Aircraft, Aviation safety, Reporting and recordkeeping requirements.

    The authority citation for these special conditions is as follows:

    Authority:

    49 U.S.C. 106(g), 40113, 44701, 44702, 44704.

    The Special Conditions

    Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Boeing Model 777-300ER airplanes.

    Note: In these special conditions, “suite” means high-wall suite.

    1. Where suites are installed, a supplemental oxygen system must provide the following:

    a. The supplemental oxygen system for each suite must include a minimum of two oxygen masks and meet the same 14 CFR part 25 regulations as do the supplemental oxygen system for the main passenger-cabin occupants.

    b. An aural alert to warn occupants and to indicate the need to don oxygen masks in the event of decompression. The aural alert must activate concurrently with deployment of the oxygen masks in the main passenger cabin.

    c. The illumination level of the normal suite lighting system must be activated automatically and must be sufficient for each occupant to locate a deployed oxygen mask.

    d. If a chemical oxygen generator is used as the oxygen supply source, the suite oxygen installation must meet §§ 25.795(d) and 25.1450.

    2. A smoke-detection or fire-detection system (or systems) must be provided that monitors each occupiable space within the suite. Flight tests must be conducted to show compliance with this requirement. If a fire occurs, each system (or systems) in the affected suite must provide:

    a. A visual indication to the flight deck within one minute after the start of a fire.

    b. An aural warning in the suite area where detection has occurred.

    c. A warning in the main passenger cabin. This warning must be readily detectable by a flight attendant, taking into consideration the locations of flight attendants throughout the main passenger compartment during various phases of flight.

    3. Passenger-management procedures must be provided should occupants need to be moved in the event of smoke detection, or firefighting within the suite or where suites are installed:

    a. A limitation must be included in the airplane flight manual (AFM) or other suitable means requiring that crewmembers be trained in the suite passenger-management procedures.

    b. Approved procedures describing methods for suite passenger management must be established. These procedures must be transmitted to the operator for incorporation into its training programs and appropriate operational manuals.

    4. The design of each suite, and the location of the firefighting equipment where suites are installed, must allow the crewmembers to conduct effective firefighting in the suite. For a manual, hand-held extinguishing system (designed as the sole means to fight a fire) for the suite:

    a. A limitation must be included in the AFM or other suitable means requiring that crewmembers be trained in the firefighting procedures.

    b. Each suite design must allow crewmembers equipped for firefighting to have unrestricted access to all parts of the suite compartment.

    c. The time for a crewmember in the main passenger cabin to react to the fire alarm and gain access to the suite must not exceed the time it would take for the compartment to become filled with smoke, thus making it difficult to locate the fire source(s).

    d. Approved procedures describing methods for searching the suite compartment for fire source(s) must be established. These procedures must be transmitted to the operator for incorporation into its training programs and appropriate operational manuals.

    5. A means must be provided to prevent hazardous quantities of smoke or extinguishing agent originating in each suite from entering any other occupiable compartments.

    a. Small quantities of smoke may penetrate from the suite into other occupied areas during the one-minute smoke detection time.

    b. Hazardous quantities of smoke may not enter any occupied compartment during access to manually fight a fire in the suite. A small amount of smoke may enter the occupied compartments while a firefighter enters and exits the suite, and is not considered hazardous provided the smoke dissipates quickly.

    c. Flight tests must be conducted to show compliance with this requirement.

    6. If waste-disposal receptacles are fitted in the suite, the suite must be equipped with an automatic fire-extinguishing system that meets the performance requirements of § 25.854(b).

    7. Each stowage compartment in the suite must be completely enclosed. All enclosed stowage compartments within the suite compartment that are not limited to stowage of emergency equipment or airplane- supplied equipment (i.e., bedding) must meet the design criteria described in the table below. Enclosed stowage compartments greater than 57 feet 3 inches cubic interior volume are not permitted by these special conditions.

    Design Criteria for Enclosed Stowage Compartments Not Limited to Stowage of Emergency or Airplane-Supplied Equipment Fire protection features Applicability of fire-protection requirements by interior volume Less than
  • 25 cubic feet
  • 25 Cubic feet to
  • less than 57 Cubic feet
  • 57 cubic feet
    Compliant Materials of Construction 1 Yes Yes Yes. Smoke or Fire Detectors 2 No Yes Yes. Liner 3 No Conditional Yes. Fire Location Detector 4 No Yes Yes. 1 Compliant Materials of Construction: The material used in constructing each enclosed stowage compartment must at least be fire resistant and must meet the flammability standards established for interior components (i.e., 14 CFR part 25 Appendix F, Parts I, IV, and V) per the requirements of § 25.853. For compartments less than 25 ft.3 in interior volume, the design must ensure the ability to contain a fire likely to occur within the compartment under normal use. 2 Smoke or Fire Detectors: Enclosed stowage compartments equal to or exceeding 25 ft.3 in interior volume must be provided with a smoke- or fire-detection system to ensure that a fire can be detected within a one-minute detection time. Flight tests must be conducted to show compliance with this requirement. Each system (or systems) must provide: ☐ A visual indication in the flight deck within one minute after the start of a fire. ☐ An aural warning in the suite compartment. ☐ A warning in the main passenger cabin. This warning must be readily detectable by a flight attendant, taking into consideration the locations of flight attendants throughout the main passenger compartment during various phases of flight. 3 Liner: If material used in constructing the stowage compartment can be shown to meet the flammability requirements of a liner for a Class B cargo compartment (i.e., § 25.855 at Amendment 25-116, and Appendix F, part I, paragraph (a)(2)(ii)), then no liner would be required for enclosed stowage compartments equal to or greater than 25 ft.3 but less than 57 ft.3 in interior volume. For all enclosed stowage compartments equal to 57 ft.3 in interior volume, a liner must be provided that meets the requirements of § 25.855 for a Class B cargo compartment. 4 Fire Location Detector: If a suite compartment has enclosed stowage compartments exceeding 25 ft.3 interior volume that are located separately from the other stowage compartments (located, for example, away from one central location, such as the entry to the suite compartment or a common area within the suite compartment, where the other stowage compartments are), that suite compartment would require additional fire-protection features and/or devices to assist the firefighter in determining the location of a fire.

    8. Where suites are installed, the design of each suite must:

    a. Maintain minimum main aisle(s), cross aisle(s), and passageway(s) requirements of § 25.815 when subjected to the ultimate inertia forces listed in § 25.561(d).

    b. Prevent structural failure or deformation of components that could block access to the available evacuation routes (e.g., seats, doors, contents of stowage compartments, etc.).

    9. In addition to the requirements of § 25.562 for seat systems, which are occupiable during taxi, takeoff, and landing, the suite structure must be designed for the additional loads imposed by the seats as a result of the conditions specified in § 25.562(b).

    Issued in Renton, Washington, on October 19, 2017. Suzanne Masterson, Acting Manager, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service.
    [FR Doc. 2017-23256 Filed 10-25-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-0332; Product Identifier 2016-NM-164-AD; Amendment 39-19084; AD 2017-22-04] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 737-200, -200C, -300, -400, and -500 series airplanes. This AD was prompted by reports of skin doublers that disbonded from their skin panels. This AD requires repetitive inspections of fuselage skin panels, and applicable on-condition actions. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective November 30, 2017.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of November 30, 2017.

    ADDRESSES:

    For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110 SK57, Seal Beach, CA 90740 5600; telephone 562-797-1717; Internet https://www.myboeingfleet.com. You may view this referenced service information at the FAA, Transport Standards Branch, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0332.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0332; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (phone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Jennifer Tsakoumakis, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5264; fax: 562-627-5210; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 737-200, -200C, -300, -400, and -500 series airplanes. The NPRM published in the Federal Register on May 2, 2017 (82 FR 20450). The NPRM was prompted by reports of skin doublers that disbonded from their skin panels. The NPRM proposed to require repetitive inspections of fuselage skin panels, and applicable on-condition actions. We are issuing this AD to detect and correct disbonded skin panels, which could result in fuselage skin cracking, rapid decompression, and loss of structural integrity of the airplane.

    Comments

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

    Effect of Winglets on Accomplishment of the Proposed Actions

    Aviation Partners Boeing stated that accomplishing Supplemental Type Certificate (STC) ST01219SE does not affect the ability to accomplish the actions specified in the NPRM.

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

    Request To Revise “Explanation of Certain Compliance Times” Section

    Boeing requested that the “Explanation of Certain Compliance Times” section in the preamble of the NPRM be revised to clarify that only disbonded skin panels need to be replaced. Boeing noted that, if a panel is disbonded, it is considered a suspect panel that went through improper processing during the phosphoric acid anodization phase of manufacturing. Boeing stated that the suspect panel could develop an additional disbond, which could lead to further damage, and then the inspections described in the service information might not be adequate.

    We acknowledge the commenter's request to clarify that only disbonded skin panels need to be replaced, for the reasons provided by the commenter. We agree with the rationale for the request. However, the “Explanation of Certain Compliance Times” section only appears in the preamble of the NPRM and is not carried over into this final rule; therefore, no change to this final rule is necessary regarding this issue.

    Request To Include Previously Accomplished Actions as Terminating Actions

    Qantas requested that we include previously accomplished repairs as terminating actions in paragraph (i) of the proposed AD. Qantas requested that paragraph (i) of the proposed AD be revised to include a provision for previously installed repairs (solid skin panel replacements) that were approved by an authorized representative of the Boeing Commercial Airplanes Organization Designation Authorization (ODA) via FAA Form 8110-3, “Statement of Compliance with the Federal Aviation Regulations.” Qantas stated that Boeing ODA-approved repairs completed prior to issuance of Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016, were not addressed in the NPRM. Qantas also suggested that solid skin panel replacements approved via FAA Form 8100-9, “Statement of Compliance with Airworthiness Standards,” be included as terminating action. Qantas stated that including skin panel replacements approved via FAA Form 8100-9 as terminating action could help avoid operators' requests for AMOCs. In addition, Qantas recommended that the language used for approved repairs by an authorized representative of the Boeing ODA be revised, as it is not specific to FAA Form 8110-3 or FAA Form 8100-9.

    We agree with the commenter's request. Paragraph (i)(1) of this AD (paragraph (i) of the proposed AD) addresses previously installed repairs approved by an authorized representative of the Boeing ODA. Existing Boeing ODA-approved repairs or preventative modifications are included in notes in Part 1, Part 2, and Part 8 of the Accomplishment Instruction and in note (a) to tables 1 through 8 in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016. Note (a) states, “If any Boeing ODA approved preventative modification or repair was previously installed via FAA Form 8100-9 or [structural repair manual] SRM repair doubler (except disbond repair), initial and repeat inspections are not required at the repaired location only.”

    However, repairs that were not approved by the Boeing ODA and replacements not done using Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016, were not addressed in the proposed AD. Therefore, we have redesignated paragraph (i) (in the proposed AD) as paragraph (i)(1) and added paragraph (i)(2) to this AD to state that any skin panel replacement done before the effective date of this AD terminates the inspections required by paragraph (g) of this AD for that skin panel only, provided the replacement was done using a skin panel manufactured on or after April 1, 1997, and the replacement was done using an FAA-approved method. A replacement accomplished using an FAA-approved method would still address the unsafe condition and the need for the inspections required by paragraph (g) of this AD would be terminated.

    We have also added paragraph (i)(3) to this AD to state that any FAA-approved reinforced repair doubler (except disbond repair) installed before the effective date of this AD terminates the inspections required by paragraph (g) of this AD at the repaired location only.

    Request To Allow Termination of All Inspections

    Southwest Airlines (SWA) requested that we allow the terminating action specified in paragraph (i) of the proposed AD to terminate the initial inspections in paragraph (g) of the proposed AD and not only the repetitive inspections in paragraph (g) of the proposed AD. Specifically, SWA requested that paragraph (i) of the proposed AD be revised to include the provision that replacement of any skin panel in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016, except as specified in paragraph (h)(2) of the proposed AD, terminates the requirement for the initial inspection specified in paragraph (g) of the proposed AD, for the replaced skin panel only. SWA noted that an operator could replace a skin panel prior to doing the initial inspection specified in paragraph (g) of the proposed AD, therefore the operator would not be required to do the initial or repetitive inspections specified in paragraph (g) of the proposed AD.

    We agree with the commenters' requests. We have clarified paragraph (i)(1) of this AD (paragraph (i) of the proposed AD) to state that accomplishment of any skin panel replacement using a skin panel manufactured on or after April 1, 1997, terminates the inspections required by paragraph (g) of this AD for that skin panel only, provided the replacement is done as specified in the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016, except as required by paragraph (h)(2) of this AD.

    Request To Include an Additional Terminating Action for AD 2003-14-06

    SWA requested that paragraph (j) of the proposed AD be revised to include a provision that replacement of skin panels, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016, except as required by paragraph (h)(2) of the proposed AD, terminates all of the requirements of AD 2003-14-06, Amendment 39-13225 (68 FR 40759, July 9, 2003; corrected July 21, 2003 (68 FR 42596) (“AD 2003-14-06”)). SWA noted that an operator could replace a skin panel prior to doing the initial inspection specified in paragraph (g) of the proposed AD; therefore, the operator would not be required to do the initial or repetitive inspections specified in paragraph (g) of the proposed AD, and all of the requirements of AD 2003-14-06 would be terminated.

    We agree with the commenter's request. We redesignated paragraph (j) in the proposed AD as paragraph (j)(1) and added paragraph (j)(2) to this AD to include a statement that replacement of any skin panel with a skin panel manufactured on or after April 1, 1997, as specified in the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016, except as required by paragraph (h)(2) of this AD, terminates all of the requirements of AD 2003-14-06 for that skin panel only.

    Conclusion

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

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

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

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

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016. The service information describes procedures for repetitive inspections of fuselage skin panels for cracking, corrosion, and existing disbond repairs; and applicable on-condition actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 169 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per product Cost on U.S. operators External general visual and detailed inspections 180 work-hours × $85 per hour = $15,300 per inspection cycle $0 $15,300 per inspection cycle $2,585,700 per inspection cycle. External high frequency bond test inspection 450 work hours × $85 per hour = $38,250 per inspection cycle 0 $38,250 inspection cycle $6,464,250 per inspection cycle. Ultrasonic disbond inspection and internal detailed skin inspection 630 work-hours × $85 per hour = $53,550 per inspection cycle 0 $53,550 per inspection cycle $9,049,950 per inspection cycle.

    We estimate the following costs to do any necessary on-condition actions that will be required based on the results of the inspections. We have no way of determining the number of aircraft that might need these on-condition actions:

    On-Condition Costs per Skin Panel Action Labor cost Parts cost Cost per product On-condition inspections Up to 25 work-hours × $85 per hour = $2,125 $0 Up to $2,125. Repairs Up to 68 work-hours × $85 per hour = $5,780 Up to $100 Up to $5,880. Skin panel replacement 304 work-hours × $85 per hour = $25,840 $95,000 $120,840. Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2017-22-04 The Boeing Company: Amendment 39-19084; Docket No. FAA-2017-0332; Product Identifier 2016-NM-164-AD. (a) Effective Date

    This AD is effective November 30, 2017.

    (b) Affected ADs

    This AD affects AD 2003-14-06, Amendment 39-13225 (68 FR 40759, July 9, 2003; corrected July 21, 2003 (68 FR 42956)) (“AD 2003-14-06”).

    (c) Applicability

    (1) This AD applies to The Boeing Company Model 737-200, -200C, -300, -400, and -500 series airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016.

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

    (d) Subject

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

    (e) Unsafe Condition

    This AD was prompted by reports of skin doublers that disbonded from their skin panels. We are issuing this AD to detect and correct disbonded skin panels, which could result in fuselage skin cracking, rapid decompression, and loss of structural integrity of the airplane.

    (f) Compliance

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

    (g) Actions Required for Compliance

    Except as required by paragraph (h) of this AD: Do all applicable actions identified as required for compliance (“RC”) in, and in accordance with, the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016. Do the actions at the applicable times specified in paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016.

    (h) Exceptions to Service Information Specifications

    (1) Where Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016, uses the phrase “after the original issue of this service bulletin,” for purposes of determining compliance with the requirements of this AD, the phrase “after the effective date of this AD” must be used.

    (2) Where Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016, specifies contacting Boeing for instructions, and specifies that action as “RC” (Required for Compliance): This AD requires using a method approved in accordance with the procedures specified in paragraph (k) of this AD.

    (3) For replaced skin panels identified in table 9 of paragraph 1.E., “Compliance,” of Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016, on which the one-time internal inspection specified in Boeing Service Bulletin 737-53-1179, Revision 2, dated October 25, 2001, has not been done: The compliance time for accomplishment of the actions specified in Part 8 of the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016, is at the latest of the times specified in paragraphs (h)(3)(i), (h)(3)(ii), and (h)(3)(iii) of this AD.

    (i) Within 50,000 flight cycles after the skin panel replacement.

    (ii) Within 20,000 flight cycles after July 14, 2003 (the effective date of AD 2003-14-16).

    (iii) Within 4,500 flight cycles after the effective date of this AD.

    (i) Terminating Action for Required Inspections

    (1) Accomplishment of any skin panel replacement using a skin panel manufactured on or after April 1, 1997, terminates the inspections required by paragraph (g) of this AD for that skin panel only, provided the replacement is done as specified in the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016, except as required by paragraph (h)(2) of this AD.

    (2) Accomplishment of any skin panel replacement done before the effective date of this AD terminates the inspections required by paragraph (g) of this AD for that skin panel only, provided the conditions specified in paragraphs (i)(2)(i) and (i)(2)(ii) of this AD are met.

    (i) The replacement was done using a skin panel manufactured on or after April 1, 1997.

    (ii) The replacement was done using an FAA-approved method.

    (3) Installation of an FAA-approved reinforced repair doubler (except disbond repair) before the effective date of this AD terminates the inspections required by paragraph (g) of this AD at the repaired location only.

    (j) Terminating Action for AD 2003-14-06

    (1) Accomplishment of the initial inspections required by paragraph (g) of this AD terminates all requirements of AD 2003-14-06.

    (2) Accomplishment of any skin panel replacement with a skin panel manufactured on or after April 1, 1997, as specified in the Accomplishment Instructions of Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016, except as required by paragraph (h)(2) of this AD, terminates all requirements of AD 2003-14-06 for that skin panel only.

    (k) Alternative Methods of Compliance (AMOCs)

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

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

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

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

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

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

    (l) Related Information

    For more information about this AD, contact Jennifer Tsakoumakis, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5264; fax: 562-627-5210; email: [email protected]

    (m) Material Incorporated by Reference

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

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

    (i) Boeing Alert Service Bulletin 737-53A1349, dated August 23, 2016.

    (ii) Reserved.

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

    (4) You may view this service information at the FAA, Transport Standards Branch, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

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

    Issued in Renton, Washington, on October 11, 2017. Dionne Palermo, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2017-22950 Filed 10-25-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-0521; Product Identifier 2016-NM-189-AD; Amendment 39-19086; AD 2017-22-06] RIN 2120-AA64 Airworthiness Directives; Bombardier, Inc., Airplanes AGENCY:

    Federal Aviation Administration (FAA), Department of Transportation (DOT).

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain Bombardier, Inc., Model CL-600-2B16 (CL-601-3A, CL-601-3R, and CL-604 Variants) airplanes. This AD was prompted by reports of fuel leaks in the engine and auxiliary power unit (APU) electrical fuel pump (EFP) cartridge/canister electrical connectors and conduits. This AD requires repetitive inspections for fuel leakage at the engine and APU fuel pumps, and related investigative and corrective actions if necessary. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective November 30, 2017.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of November 30, 2017.

    ADDRESSES:

    For service information identified in this final rule, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone 1-866-538-1247 or direct-dial telephone 1-514-855-2999; fax 514-855-7401; email [email protected]; Internet http://www.bombardier.com. You may view this referenced service information at the FAA, Transport Standards Branch, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221. It is also available on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0521.

    Examining the AD Docket

    You may examine the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0521; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE., Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Steven Dzierzynski, Aerospace Engineer, Avionics and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7367; fax 516-794-5531.

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Bombardier, Inc., Model CL-600-2B16 (CL-601-3A, CL-601-3R, and CL-604 Variants) airplanes. The NPRM published in the Federal Register on June 2, 2017 (82 FR 25556) (“the NPRM”). The NPRM was prompted by reports of fuel leaks in the engine and APU EFP cartridge/canister electrical connectors and conduits. The NPRM proposed to require repetitive inspections for fuel leakage at the engine and APU fuel pumps, and related investigative and corrective actions if necessary. We are issuing this AD to detect and correct fuel leaks in certain fuel pumps to remove a potential fuel ignition hazard.

    Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian Airworthiness Directive CF-2016-32R1, dated October 12, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model CL-600-2B16 (CL-601-3A, CL-601-3R, and CL-604 Variants) airplanes. The MCAI states:

    Fuel leaks have been reported in the engine and auxiliary power unit (APU) electrical fuel pump (EFP) cartridge/canister electrical connectors and conduits on production aeroplanes. Initially, Bombardier had determined that the subject discrepancy was limited to the new pump canister installations on 24 production aeroplanes. Bombardier also reported the possibility of cut insulation on the electric harness wires of the newly installed canister housing assemblies.

    Emergency [Canadian] AD CF-2014-17 [which corresponds to FAA AD 2014-15-17, Amendment 39-17919 (79 FR 44268, July 31, 2014)] was issued to limit landing light operation on-ground in order to address a potential fire hazard as result of a possible fuel leak from the APU, EFP electrical conduit in the landing light compartment. In addition, [Canadian] AD CF-2014-21 [which corresponds to FAA AD 2014-20-01, Amendment 39-17974 (79 FR 59640, October 3, 2014), superseded by FAA AD 2016-10-10, Amendment 39-18521 (81 FR 31497, May 19, 2016) (“AD 2016-10-10”)] was issued to mandate removal of then identified 24 discrepant EFP canister assemblies from service.

    Bombardier has recently determined that the subject fuel leaks may not be limited to the 24 units affected by [Canadian] AD CF-2014-21 [(AD 2016-10-10)], but may potentially affect other in-service [Bombardier Model] CL-600-2B16 aeroplanes. Until such time that a final fix for the fuel leak problem is realized, Bombardier as an interim mitigating action, has issued [Service Bulletin] SB 604-28-022 and SB 605-28-010 that introduces [a] repeat [general visual] inspection and if required, rectification [related investigative and corrective actions] of subject fuel leaks on affected aeroplanes. [Canadian] AD CF-2016-32 was issued on 29 September 2016 to mandate compliance with applicable Bombardier SBs, to mitigate any potential safety hazard resulting from fuel leaks.

    Revision 1 of this [Canadian] AD is being issued to correct a typographic error in paragraph B.1. of the [Canadian AD] Corrective Actions.

    You may examine the MCAI in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0521.

    Comments

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

    Request To Delay Issuance Until the Release of New Service Information

    Bombardier, Inc., indicated its intent to revise Bombardier Service Bulletin 604-28-022, dated October 19, 2015; and Bombardier Service Bulletin 605-28-010, dated October 19, 2015. Bombardier, Inc., stated that these revisions will change the inspection instructions. Bombardier, Inc., further added that it plans to publish new service information to introduce similar inspections on Model CL-650 airplanes.

    We infer that Bombardier, Inc., is requesting that we delay the issuance of this final rule until after the revised service information is released and then refer to the revised service information. We disagree with the commenter's request. We do not consider that delaying this action until release of the planned service information is warranted since the service information incorporated by reference in this AD adequately addresses the unsafe condition. We might consider additional rulemaking once the revised service information is released, or if new service information is issued for Model CL-650 airplanes, which are not included in the applicability of this AD. We have not changed this AD in this regard.

    Conclusion

    We reviewed the relevant data, considered the comment received, and determined that air safety and the public interest require adopting this AD as proposed except for minor editorial changes. We have determined that these minor changes:

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

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

    Related Service Information Under 1 CFR Part 51

    Bombardier, Inc., has issued Service Bulletin 604-28-022, dated October 19, 2015; and Service Bulletin 605-28-010, dated October 19, 2015. This service information describes procedures for repetitive general visual inspections for fuel leakage at the engine and APU fuel pumps, and related investigative and corrective actions if necessary. These documents are distinct since they apply to airplanes in different configurations. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 121 airplanes of U.S. registry.

    We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S. operators
    Inspections 1 work-hour × $85 per hour = $85 per inspection cycle $0 $85 per inspection cycle $10,285 per inspection cycle.

    For Model CL-600-2B16 airplanes having serial numbers 5701 through 5955 inclusive, 5957, 5960 through 5966 inclusive, 5968 through 5971 inclusive, and 5981, we estimate the following costs to do any necessary replacements that would be required based on the results of the required inspection. We have no way of determining the number of aircraft that might need these replacements:

    On-Condition Costs Action Labor cost Parts cost Cost per
  • product
  • Replace o-ring in affected pump 3 work-hours × $85 per hour = $255 $17 $272 Replace cartridge in affected pump 2 work-hours × $85 per hour = $170 8,618 8,788

    For Model CL-600-2B16 airplanes having serial numbers 5301 through 5665 inclusive, we have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this AD.

    According to the manufacturer, some of the costs of this AD may be covered under warranty, thereby reducing the cost impact on affected individuals. We do not control warranty coverage for affected individuals. As a result, we have included all costs in our cost estimate.

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2017-22-06 Bombardier, Inc.: Amendment 39-19086; Docket No. FAA-2017-0521; Product Identifier 2016-NM-189-AD. (a) Effective Date

    This AD is effective November 30, 2017.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Bombardier, Inc., Model CL-600-2B16 (CL-601-3A, CL-601-3R, and CL-604 Variants) airplanes, certificated in any category, having serial numbers 5301 through 5665 inclusive, 5701 through 5955 inclusive, 5957, 5960 through 5966 inclusive, 5968 through 5971 inclusive, and 5981.

    (d) Subject

    Air Transport Association (ATA) of America Code 28, Fuel.

    (e) Reason

    This AD was prompted by reports of fuel leaks in the engine and auxiliary power unit (APU) electrical fuel pump (EFP) cartridge/canister electrical connectors and conduits. We are issuing this AD to detect and correct fuel leaks in certain fuel pumps to remove a potential fuel ignition hazard.

    (f) Compliance

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

    (g) General Visual Inspections and Corrective Actions—Model CL-600-2B16 Airplanes, Serial Numbers 5301 through 5665 Inclusive

    For Model CL-600-2B16 airplanes having serial numbers 5301 through 5665 inclusive: Within 600 flight hours or 12 months, whichever occurs first, after the effective date of this AD, do the inspections specified in paragraphs (g)(1), (g)(2), and (g)(3) of this AD, and do all applicable corrective actions, in accordance with the Accomplishment Instructions of Bombardier Service Bulletin 604-28-022, dated October 19, 2015; except where Bombardier Service Bulletin 604-28-022, dated October 19, 2015, specifies to contact the manufacturer, before further flight accomplish corrective actions in accordance with the procedures specified in paragraph (i)(2) of this AD. Do all applicable corrective actions before further flight. Repeat the inspections at intervals not to exceed 600 flight hours or 12 months, whichever occurs first.

    (1) Do a general visual inspection for traces of fuel coming from the right-hand engine boost pump at the location of the belly fairing screw (FS412, BL 0.0).

    (2) Do a general visual inspection for traces of fuel coming from the left-hand engine boost pump at the location of the belly fairing screw (FS412, BL 0.0).

    (3) Do a general visual inspection for traces of fuel coming from the EFP electrical wiring conduit outlet at the lower body fairing area for engine EFPs and at the right-hand landing light compartment for the APU EFP.

    (h) General Visual Inspections and Related Investigative and Corrective Actions—Model CL-600-2B16 Airplanes Having Serial Numbers 5701 through 5955 Inclusive, 5957, 5960 through 5966 Inclusive, 5968 through 5971 Inclusive, and 5981

    For Model CL-600-2B16 airplanes having serial numbers 5701 through 5955 inclusive, 5957, 5960 through 5966 inclusive, 5968 through 5971 inclusive, and 5981: Within 600 flight hours or 12 months, whichever occurs first, after the effective date of this AD, do the inspections specified in paragraphs (h)(1), (h)(2), and (h)(3) of this AD, and do all applicable related investigative and corrective actions, in accordance with the Accomplishment Instructions in Bombardier Service Bulletin 605-28-010, dated October 19, 2015; except where Bombardier Service Bulletin 605-28-010, dated October 19, 2015, specifies to contact the manufacturer, before further flight accomplish corrective actions in accordance with the procedures specified in paragraph (i)(2) of this AD. Do all applicable related investigative and corrective actions before further flight. Repeat the inspections at intervals not to exceed 600 flight hours or 12 months, whichever occurs first.

    (1) Do a general visual inspection for traces of fuel coming from the right-hand engine boost pump at the location of the belly fairing screw (FS412, BL 0.0).

    (2) Do a general visual inspection for traces of fuel coming from the left-hand engine boost pump at the location of the belly fairing screw (FS412, BL 0.0).

    (3) Do a general visual inspection of the right-hand landing light compartment for traces of fuel coming from the APU EFP.

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, New York ACO Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the manager of the certification office, send it to ATTN: Program Manager, Continuing Operational Safety, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7300; fax 516-794-5531. Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, New York ACO Branch, FAA; or Transport Canada Civil Aviation (TCCA); or Bombardier, Inc.'s TCCA Design Approval Organization (DAO). If approved by the DAO, the approval must include the DAO-authorized signature.

    (j) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian AD CF-2016-32R1, dated October 12, 2016, for related information. This MCAI may be found in the AD docket on the Internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0521.

    (2) For more information about this AD, contact Steven Dzierzynski, Aerospace Engineer, Avionics and Administrative Services Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone 516-228-7367; fax 516-794-5531.

    (3) Service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (k)(3) and (k)(4) of this AD.

    (k) Material Incorporated by Reference

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

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

    (i) Bombardier Service Bulletin 604-28-022, dated October 19, 2015.

    (ii) Bombardier Service Bulletin 605-28-010, dated October 19, 2015.

    (3) For service information identified in this AD, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone 1-866-538-1247 or direct-dial telephone 1-514-855-2999; fax 514-855-7401; email [email protected]; Internet http://www.bombardier.com.

    (4) You may view this service information at the FAA, Transport Standards Branch, 1601 Lind Avenue SW., Renton, WA. For information on the availability of this material at the FAA, call 425-227-1221.

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

    Issued in Renton, Washington, on October 17, 2017. Jeffrey E. Duven, Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2017-23015 Filed 10-25-17; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Parts 4, 5, and 16 [Docket No. PL17-3-000] Policy Statement on Establishing License Terms for Hydroelectric Projects AGENCY:

    Federal Energy Regulatory Commission, Department of Energy.

    ACTION:

    Policy statement.

    SUMMARY:

    The Federal Energy Regulatory Commission (Commission) is giving notice of a new policy on establishing license terms for hydroelectric projects. In this Policy Statement, the Commission adopts a 40-year default license term for original and new licenses for hydropower projects located at non-federal dams. The Policy Statement also sets forth when the Commission will consider issuing those projects a license with a term for less or more than 40 years.

    DATES:

    This policy statement will be applicable as of October 26, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Nicholas Jayjack, (Technical Information), Office of Energy Projects, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-6073. Carolyn Clarkin, (Legal Information), Office of the General Counsel—Energy Projects, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-8563. SUPPLEMENTARY INFORMATION:

    1. In this Policy Statement, the Commission sets forth a new policy on establishing license terms for original and new licenses for hydropower projects located at non-federal dams. The goal of this action is to provide more certainty for stakeholders regarding the Commission's regulatory process, reduce regulatory burden, increase administrative efficiency for all stakeholders, and further encourage licensees to negotiate settlement agreements and promptly seek authorization to implement voluntary environmental, recreational, and developmental enhancements.

    I. Background A. Current License Term Policy

    2. Section 6 of the Federal Power Act (FPA) 1 provides that hydropower licenses shall be issued for a term not to exceed 50 years. There is no minimum license term for original licenses. FPA section 15(e) 2 provides that any “new license” 3 shall be for a term that the Commission determines to be in the public interest, but not less than 30 years or more than 50 years.

    1 16 U.S.C. 799 (2012).

    2 16 U.S.C. 808(e) (2012).

    3 “New license” is the term used in the FPA to refer to a license issued to replace a project's expiring license.

    3. It is current Commission policy to set a 50-year term for licenses issued for projects located at federal dams.4 For projects located at non-federal dams, the Commission sets a 30-year term where there is little or no authorized redevelopment, new construction, or environmental mitigation and enhancement; a 40-year term for a license involving a moderate amount of these activities; and a 50-year term where there is an extensive amount of such activity.5 The Commission previously established this policy to ease the economic impact of new costs, promote balanced and comprehensive development of renewable power generating resources, and encourage licensees to be good environmental stewards.6

    4City of Danville, Virginia, 58 FERC ¶ 61,318, at 62,020 (1992) (citing Little Falls Hydroelectric Associates, 27 FERC ¶ 61,376 (1984)).

    5Id. (addressing original licenses); Consumers Power Co., 68 FERC ¶ 61,077, at 61,384 (1994) (addressing new licenses). Projects that entail construction of a new dam have generally received 50-year licenses. City of Danville, Virginia, 58 FERC ¶ 61,318 at 62,020 (citing Little Falls Hydroelectric Associates, 27 FERC ¶ 61,376).

    6Consumers Power Co., 68 FERC ¶ 61,077 at 61,384.

    4. Determining whether the measures required under a license are minimal, moderate, or extensive is highly case-specific and largely based on a qualitative analysis of the record before the Commission. In establishing the appropriate license term, staff initially examines the nature and extent of the required measures in the context of the project at issue,7 and then uses the cost of measures as a check on a qualitative conclusion that the measures required under the license are minimal, moderate, or extensive. The Commission's current policy takes a forward-looking approach, such that any measures adopted under a prior license term are not considered.8 It has also been the Commission's policy to coordinate, to the extent feasible, license terms for projects in the same river basin to maximize consideration of cumulative impacts when the projects are due to be relicensed.9

    7 For example, one type of fishway may be more expensive than another, and a fishway type that might be considered extensive for a small project could be seen as minimal for a larger one.

    8See, e.g., Duke Energy Carolinas, LLC, 156 FERC ¶ 61,010, at P 19 (2016) (Duke Energy) (stating Commission's long-standing policy is to only consider measures required in the new license) (citing Alabama Power Co., 155 FERC ¶ 61,080, at P 72 (2016); Georgia Power Co., 111 FERC ¶ 61,183, at P 12 (2005); Ford Motor Co., 110 FERC ¶ 61,236, at PP 6-8 (2005)).

    9 18 CFR 2.23 (2017); see also Public Utility of District No. 1 of Chelan County, Washington, 127 FERC ¶ 61,152, at P 18 (2009) (Chelan PUD).

    5. The length of an original license has not been contested on rehearing for some time; however, licensees and other parties have recently contested the length of a new license in several relicensing proceedings. The arguments raised in these cases include that the Commission, when establishing the license term, should have considered, or given more weight to: Previously-authorized capacity-related investments or environmental enhancements made by the licensee before issuance of the new license; 10 total cost of the relicensing process; 11 losses in generation value related to environmental measures; 12 the license terms of projects that the license applicant states are similarly situated to its project; 13 and the license term provided for in settlement agreements.14 In each circumstance, the Commission declined to extend the length of the license.

    10See, e.g., Duke Energy, 156 FERC ¶ 61,010 at P 12; Alabama Power Co., 155 FERC ¶ 61,080 at P 71; Public Utility District No. 1 of Douglas County, Washington, 143 FERC ¶ 61,130, at PP 12-13 (2013) (Douglas PUD); Chelan PUD, 127 FERC ¶ 61,152 at PP 12-13; Georgia Power Co., 111 FERC ¶ 61,183 at P 10; Ford Motor Co., 110 FERC ¶ 61,236 at P 6.

    11See, e.g., Duke Energy, 156 FERC ¶ 61,010 at P 12.

    12See, e.g., id.

    13See, e.g., id. P 20; Alabama Power Co., 155 FERC ¶ 61,080 at P 71; Duke Energy Progress, Inc., 153 FERC ¶ 61,056, at P 39 (2015); Douglas PUD, 143 FERC ¶ 61,130 at P 15.

    14See, e.g., Duke Energy Progress, Inc., 153 FERC ¶ 61,056 at P 40; Douglas PUD, 143 FERC ¶ 61,130 at P 18; Chelan PUD, 127 FERC ¶ 61,152 at P 16.

    B. Notice of Inquiry on Establishing License Terms for Hydroelectric Projects

    6. On November 17, 2016, the Commission issued a notice of inquiry (NOI) to seek comments on whether, and if so how, the Commission should revise its current license term policy. The NOI invited comments on five potential license term policy options: (1) Retain the current policy; (2) modify the current policy to consider voluntary authorized actions implemented under the prior license (“previously-authorized voluntary actions”); (3) replace the current license term policy with a policy for a 50-year default license term unless a lesser license term would be in the public interest (for example, to better coordinate the license terms of projects in the same river basin); (4) add a more quantitative cost-based analysis to the current policy; and (5) alter the current policy to accept license terms agreed upon in settlement agreements, when appropriate. Comments on alternative policy options were also encouraged. The NOI established January 24, 2017, as the deadline for comments, which staff extended to March 24, 2017.

    7. Industry members, federal and state resource agencies, environmental and recreation groups, and individuals filed comments. Most commenters support revising the current policy. Several commenters state that under the current policy stakeholders lack certainty, and, consequently, license applicants lack guidance on what measures will yield longer license terms and are deterred from proposing additional protection, mitigation, and enhancement measures. Further, many commenters state that because the policy is forward-looking, licensees delay seeking authorizations for capacity upgrades and environmental and recreational enhancements until they apply for a new license. Some industry commenters state that under the current policy, license applicants and settlement parties cannot use the license term as a bargaining chip because the Commission might reject that term in the license order. To address these concerns, many commenters recommend that the Commission consider previously-authorized voluntary actions and defer to the license term that was negotiated as part of a settlement agreement.

    8. Commenters disagree on the 50-year default license term policy option. Industry commenters generally support the 50-year default license term because they state it would provide a clear, predictable standard. Industry commenters add that such policy would eliminate the current “penalty” for efficient, well-maintained, and relatively low-impact projects that do not require substantial environmental or developmental measures and therefore only receive a 30-year license.

    9. In contrast, environmental groups, individuals, and most resource agencies oppose the 50-year default license term option. Several resource agencies argue that this option would provide little incentive for a license applicant to voluntarily propose or agree to mitigation measures because such measures would no longer factor into the Commission's license term decision. The resource agencies also contend that such policy would result in applicants focusing their license application study efforts on disproving project effects rather than on identifying potential mitigation measures.

    10. Most commenters recommend against the policy option to adopt a more quantitative cost-based analysis. Many commenters state that it would be difficult to develop a quantitative cost-based analysis that takes into account the diverse hydropower fleet and environmental and recreational values.

    11. As an alternative to the five policy options, several industry commenters recommend that the Commission adopt a 40-year default license term with credit (up to an additional 10 years) for previously-authorized actions and deference to settlement agreements. They state that under this alternative, licenses should be issued for less than 40 years only when a license applicant has agreed to a settlement agreement with a negotiated license term of less than 40 years, or voluntarily coordinates its license term with other projects in a river basin.

    II. Discussion

    12. The extensive comments received have given the Commission a deeper understanding of the effects that the current license term policy has on stakeholders in hydropower licensing proceedings. The Commission recognizes the importance of providing license applicants and other stakeholders as much certainty as possible. License applicants expend significant financial resources on preparing their license applications and complying with their licenses thereafter. Further, stakeholders need certainty to determine the protection, mitigation, and enhancement measures that they will negotiate and license applicants will propose.

    13. The current policy also affects the Commission's staff and resources needed to review and process license applications. Staff anticipate that over 300 projects will enter the relicensing process through 2025. Under the current policy, staff would establish the license term for each of those projects case by case.

    14. After considering this matter and the comments on the NOI, the Commission has decided it is in the public interest to change its license term policy. With this Policy Statement, the Commission establishes a 40-year default license term policy for original and new licenses for hydropower projects located at non-federal dams.15

    15 This policy does not apply to pilot hydrokinetic projects, which have terms of up to five years. See FERC, Licensing Hydrokinetic Pilot Projects, www.ferc.gov/industries/hydropower/gen-info/licensing/hydrokinetics/pdf/white_paper.pdf.

    15. There are three circumstances where the Commission will consider issuing a license for less or more than 40 years. First, the Commission will establish a shorter or longer term if necessary to coordinate license terms for projects located in the same river basin. Second, the Commission will defer to a shorter or longer term explicitly agreed upon in a generally-supported comprehensive settlement agreement, provided that such term does not conflict with coordination. Settlement agreements that state the settlement signatories would not oppose a certain term or would support a term within a range of years will not be considered to include an explicitly agreed upon license term.16

    16See, e.g., Chelan PUD, 127 FERC ¶ 61,152 at n.27 (settlement states that the signatories do not oppose the licensee's efforts to seek a 50-year term); Duke Energy, 156 FERC ¶ 61,010 at P 24 (settlement states the signatories agree to support a license term that is not less than 40 years nor more than 50 years).

    16. Third, the Commission will consider a longer license term—provided that doing so is consistent with coordinating license terms within a basin—when a license applicant specifically requests a longer license term based on significant measures expected to be required under the new license or significant measures implemented during the prior license term that were not required by that license or other legal authority 17 and for which the Commission has not already given credit through an extension of the prior license term. The Commission will consider, on a case-by-case basis, measures and actions that enhance non-developmental project purposes (i.e., environmental, project recreation, water supply), and those that enhance power and developmental purposes, together with the cost of those measures and actions to determine whether they are significant and warrant the granting of a longer license term. Maintenance measures and measures taken to support the licensing process will not be considered. As guidance, we note that the Commission has found that measures including the construction of pumped storage facilities, fish passage facilities, fish hatcheries, substantial recreation facilities, dams, and powerhouses warranted longer license terms.

    17See, e.g., Chelan PUD, 127 FERC ¶ 61,152, at P 14 (stating that the licensee acted in order to comply with the Endangered Species Act, not to simply voluntarily resolve relicensing issues early).

    17. There are a number of reasons for establishing a 40-year default license term with exceptions for coordination, deference to generally-supported comprehensive settlement agreements, and consideration of previously-authorized voluntary actions. This policy will provide significant certainty to licensees, resource agencies, and other stakeholders. A 40-year default license term will provide a simpler method for Commission staff to establish license terms, and, thus, increase administrative efficiencies. A case-specific assessment will only be required for those license applications that request a longer license term, and are not explicitly supported by a generally-supported comprehensive settlement agreement. Because many projects would be relicensed less frequently, the policy would also lower administrative costs for all stakeholders, provide licensees longer license terms to recoup costs, and reduce regulatory burden. Further, the policy will place efficient, low-impact projects that require minimal measures—and thus, would receive a 30-year term under the current policy—on more equal footing with projects that require more measures.

    18. The policy may also encourage licensees to voluntarily make capacity upgrades and enhance recreational and environmental resources during the prior license term. Affected resources will benefit from licensees undertaking preventative or remedial measures sooner rather than later. In addition, the policy may further encourage license applicants to engage with stakeholders to negotiate a license settlement agreement. Because a generally-supported comprehensive settlement agreements represent stakeholder values, terms negotiated as part of those agreements are in the public interest, provided they do not conflict with coordination.

    19. A 40-year default license term will not adversely affect environmental and recreation resources. All of our licenses contain extensive environmental and recreation measures. While under our new policy some projects may be relicensed less frequently and unanticipated project effects on environmental resources may go unmitigated for longer durations of time than before, there are many tools available to address these unanticipated effects in a timely manner. The Commission may address serious, unanticipated environmental effects using its standard reopener article,18 and licensees often file applications for license amendments to address significant, unanticipated environmental issues. Further, resource agencies frequently reserve authority to address those effects under FPA section 4(e) (federal reservation) 19 and section 18 (fishway prescription),20 and in water quality certifications issued under section 401 of the Clean Water Act. Stakeholders have also negotiated with or encouraged licensees to propose measures that include adaptive management approaches to allow for appropriate modifications as additional information is gathered, new technologies develop, and societal and environmental needs change.

    18 Each license incorporates a Commission L-Form that includes standard reopener clauses to enhance fish and wildlife resources. See Standardized Conditions for Inclusion in Preliminary Permits and Licenses Issued Under Part I of the Federal Power Act, 54 F.P.C. 1792 (1975).

    19 16 U.S.C. 797(e) (2012) (licenses for projects located on federal reservations are subject to and contain conditions as the Secretary of the department under whose supervision such reservation falls shall deem necessary).

    20 16 U.S.C. 811 (2012) (Secretaries of the Interior and Commerce may prescribe fishway prescriptions).

    20. This Policy Statement will apply to all licenses issued following its publication in the Federal Register with no retroactive application. License applicants with pending license applications may file a comprehensive settlement agreement, or addendum to an existing agreement, that includes an explicitly agreed upon license term or may make a filing demonstrating why the Commission should award them a longer license term than 40 years. The Commission, however, will not entertain applications to amend existing licenses to extend their license terms simply on the basis of this new license term policy. Pursuant to current policy, licensees that seek to extend existing licenses with terms of less than 50 years, must justify such requests, for example by proposing development, environmental, and recreation enhancements in a license amendment application accompanied by a request that the Commission extend their license term.21

    21See, e.g., Idaho Power Co., 132 FERC ¶ 62,001 (2010) (10-year extension of the license term due to the costs of replacing the project's existing powerhouse and increasing generating capacity); PPL Holtwood, LLC, 129 FERC ¶ 62,092 (2009) (16-year extension of license term due to costs associated with the constructing a new powerhouse, installing two turbine generating units at the existing powerhouse, and various environmental measures).

    III. Document Availability

    21. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through FERC's Home Page (http://www.ferc.gov) and in FERC's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426.

    22. From FERC's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number excluding the last three digits of this document in the docket number field. User assistance is available for eLibrary and the Commission's Web site during normal business hours from FERC Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502-8371, TTY (202)502-8659. Email the Public Reference Room at [email protected]

    By the Commission.

    Issued: October 19, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-23286 Filed 10-25-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF JUSTICE Drug Enforcement Administration 21 CFR Part 1308 [Docket No. DEA-473] Schedules of Controlled Substances: Temporary Placement of ortho-Fluorofentanyl, Tetrahydrofuranyl Fentanyl, and Methoxyacetyl Fentanyl Into Schedule I AGENCY:

    Drug Enforcement Administration, Department of Justice.

    ACTION:

    Temporary amendment; temporary scheduling order.

    SUMMARY:

    The Administrator of the Drug Enforcement Administration is issuing this temporary scheduling order to schedule the synthetic opioids, N-(2-fluorophenyl)-N-(1-phenethylpiperidin-4-yl)propionamide (ortho-fluorofentanyl or 2-fluorofentanyl), N-(1-phenethylpiperidin-4-yl)-N-phenyltetrahydrofuran-2-carboxamide (tetrahydrofuranyl fentanyl), and 2-methoxy-N-(1-phenethylpiperidin-4-yl)-N-phenylacetamide (methoxyacetyl fentanyl), into Schedule I. This action is based on a finding by the Administrator that the placement of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl into Schedule I of the Controlled Substances Act is necessary to avoid an imminent hazard to the public safety. As a result of this order, the regulatory controls and administrative, civil, and criminal sanctions applicable to Schedule I controlled substances will be imposed on persons who handle (manufacture, distribute, reverse distribute, import, export, engage in research, conduct instructional activities or chemical analysis, or possess), or propose to handle, ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl.

    DATES:

    This temporary scheduling order is effective October 26, 2017, until October 28, 2019. If this order is extended or made permanent, the DEA will publish a document in the Federal Register.

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

    Legal Authority

    Section 201 of the Controlled Substances Act (CSA), 21 U.S.C. 811, provides the Attorney General with the authority to temporarily place a substance into Schedule I of the CSA for two years without regard to the requirements of 21 U.S.C. 811(b) if he finds that such action is necessary to avoid an imminent hazard to the public safety. 21 U.S.C. 811(h)(1). In addition, if proceedings to control a substance are initiated under 21 U.S.C. 811(a)(1), the Attorney General may extend the temporary scheduling 1 for up to one year. 21 U.S.C. 811(h)(2).

    1 Though DEA has used the term “final order” with respect to temporary scheduling orders in the past, this document adheres to the statutory language of 21 U.S.C. 811(h), which refers to a “temporary scheduling order.” No substantive change is intended.

    Where the necessary findings are made, a substance may be temporarily scheduled if it is not listed in any other schedule under section 202 of the CSA, 21 U.S.C. 812, or if there is no exemption or approval in effect for the substance under section 505 of the Federal Food, Drug, and Cosmetic Act (FDCA), 21 U.S.C. 355. 21 U.S.C. 811(h)(1). The Attorney General has delegated scheduling authority under 21 U.S.C. 811 to the Administrator of the DEA. 28 CFR 0.100.

    Background

    Section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), requires the Administrator to notify the Secretary of the Department of Health and Human Services (HHS) of his intention to temporarily place a substance into Schedule I of the CSA.2 The Administrator transmitted notice of his intent to place ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl in Schedule I on a temporary basis to the Assistant Secretary for Health of HHS by letter. Notice for these actions was transmitted on the following dates: May 19, 2017 (ortho-fluorofentanyl) and July 5, 2017 (tetrahydrofuranyl fentanyl and methoxyacetyl fentanyl). The Assistant Secretary responded by letters dated June 9, 2017 (ortho-fluorofentanyl) and July 14, 2017 (tetrahydrofuranyl fentanyl and methoxyacetyl fentanyl), and advised that based on review by the Food and Drug Administration (FDA), there are currently no investigational new drug applications or approved new drug applications for ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, or methoxyacetyl fentanyl. The Assistant Secretary also stated that the HHS has no objection to the temporary placement of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, or methoxyacetyl fentanyl into Schedule I of the CSA. The DEA has taken into consideration the Assistant Secretary's comments as required by 21 U.S.C. 811(h)(4). ortho-Fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl are not currently listed in any schedule under the CSA, and no exemptions or approvals are in effect for ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl under section 505 of the FDCA, 21 U.S.C. 355. The DEA has found that the control of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl in Schedule I on a temporary basis is necessary to avoid an imminent hazard to the public safety, and as required by 21 U.S.C. 811(h)(1)(A), a notice of intent to issue a temporary order to schedule ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl was published in the Federal Register on September 12, 2017. 82 FR 42754.

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

    To find that placing a substance temporarily into Schedule I of the CSA is necessary to avoid an imminent hazard to the public safety, the Administrator is required to consider three of the eight factors set forth in section 201(c) of the CSA, 21 U.S.C. 811(c): The substance's history and current pattern of abuse; the scope, duration and significance of abuse; and what, if any, risk there is to the public health. 21 U.S.C. 811(h)(3). Consideration of these factors includes actual abuse, diversion from legitimate channels, and clandestine importation, manufacture, or distribution. 21 U.S.C. 811(h)(3).

    A substance meeting the statutory requirements for temporary scheduling may only be placed into Schedule I. 21 U.S.C. 811(h)(1). Substances in Schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. 21 U.S.C. 812(b)(1).

    Available data and information for ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl, summarized below, indicate that these synthetic opioids have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. The DEA's three-factor analysis, and the Assistant Secretary's June 9, 2017 and July 14, 2017 letters are available in their entirety under the tab “Supporting Documents” of the public docket of this action at www.regulations.gov under FDMS Docket ID: DEA-2017-0005 (Docket Number DEA-473).

    Factor 4. History and Current Pattern of Abuse

    The recreational abuse of fentanyl-like substances continues to be a significant concern. These substances are distributed to users, often with unpredictable outcomes. ortho-Fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl have recently been encountered by law enforcement and public health officials. Adverse health effects and outcomes are demonstrated by fatal overdose cases involving these substances. The documented adverse health effects of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl are consistent with those of other opioids.

    On October 1, 2014, the DEA implemented STARLiMS (a web-based, commercial laboratory information management system) to replace the System to Retrieve Information from Drug Evidence (STRIDE) as its laboratory drug evidence data system of record. DEA laboratory data submitted after September 30, 2014, are reposited in STARLiMS. Data from STRIDE and STARLiMS were queried on June 19, 2017. STARLiMS registered four reports containing ortho-fluorofentanyl from California and five reports containing tetrahydrofuranyl fentanyl from Florida and Missouri. According to STARLiMS, the first laboratory submissions of ortho-fluorofentanyl and tetrahydrofuranyl fentanyl occurred in April 2016, and March 2017, respectively.

    The National Forensic Laboratory Information System (NFLIS) is a national drug forensic laboratory reporting system that systematically collects results from drug chemistry analyses conducted by other federal, state, and local forensic laboratories across the country. Data from NFLIS was queried on June 20, 2017. NFLIS registered three reports containing ortho-fluorofentanyl from state or local forensic laboratories in Virginia.3 According to NFLIS, the first report of ortho-fluorofentanyl was reported in September 2016. NFLIS registered two reports containing tetrahydrofuranyl fentanyl from state or local forensic laboratories in New Jersey and was first reported in January 2017. The identification of methoxyacetyl fentanyl in drug evidence submitted in April 2017 was reported to DEA from a local laboratory in Ohio.4 The DEA is not aware of any laboratory identifications of ortho-fluorofentanyl prior to 2016 or identifications of tetrahydrofuranyl fentanyl or methoxyacetyl fentanyl prior to 2017.

    3 Data are still being collected for March 2017-June 2017 due to the normal lag period for labs reporting to NFLIS.

    4 Email from Cuyahoga County Medical Examiner's Office, to DEA (May 8, 2017 02:29 p.m. EST) (on file with DEA).

    Evidence suggests that the pattern of abuse of fentanyl analogues, including ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl, parallels that of heroin and prescription opioid analgesics. Seizures of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl have been encountered in powder form similar to fentanyl and heroin and have been connected to fatal overdoses.

    Factor 5. Scope, Duration and Significance of Abuse

    Reports collected by the DEA demonstrate ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl are being abused for their opioid properties. Abuse of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl have resulted in mortality (see DEA 3-Factor Analysis for full discussion). The DEA collected post-mortem toxicology and medical examiner reports on 13 confirmed fatalities associated with ortho-fluorofentanyl which occurred in Georgia (1), North Carolina (11), and Texas (1), two confirmed fatalities associated with tetrahydrofuranyl fentanyl which occurred in New Jersey (1) and Wisconsin (1), and two confirmed fatalities associated with methoxyacetyl fentanyl which occurred in Pennsylvania. It is likely that the prevalence of these substances in opioid related emergency room admissions and deaths is underreported as standard immunoassays may not differentiate fentanyl analogues from fentanyl.

    ortho-Fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl have been identified in drug evidence collected by law enforcement. NFLIS and STARLiMS have a total of seven drug reports in which ortho-fluorofentanyl was identified in drug exhibits submitted to forensic laboratories in 2016 from law enforcement encounters in California and Virginia and seven drug reports in which tetrahydrofuranyl fentanyl was identified in drug exhibits submitted to forensic laboratories in 2017 from law enforcement encounters in Florida, Missouri, and New Jersey. The identification of methoxyacetyl fentanyl in drug evidence submitted in April 2017 was reported to DEA from Ohio.

    The population likely to abuse ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl overlaps with the population abusing prescription opioid analgesics, heroin, fentanyl, and other fentanyl-related substances. This is evidenced by the routes of drug administration and drug use history documented in ortho-fluorofentanyl and tetrahydrofuranyl fentanyl fatal overdose cases. Because abusers of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl are likely to obtain these substances through unregulated sources, the identity, purity, and quantity are uncertain and inconsistent, thus posing significant adverse health risks to the end user. Individuals who initiate (i.e. use a drug for the first time) ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, or methoxyacetyl fentanyl abuse are likely to be at risk of developing substance use disorder, overdose, and death similar to that of other opioid analgesics (e.g., fentanyl, morphine, etc.).

    Factor 6. What, if Any, Risk There Is to the Public Health

    ortho-Fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl exhibit pharmacological profiles similar to that of fentanyl and other µ-opioid receptor agonists. The toxic effects of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl in humans are demonstrated by overdose fatalities involving these substances. Abusers of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl may not know the origin, identity, or purity of these substances, thus posing significant adverse health risks when compared to abuse of pharmaceutical preparations of opioid analgesics, such as morphine and oxycodone.

    Based on information received by the DEA, the misuse and abuse of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl lead to the same qualitative public health risks as heroin, fentanyl and other opioid analgesic substances. As with any non-medically approved opioid, the health and safety risks for users are high. The public health risks attendant to the abuse of heroin and opioid analgesics are well established and have resulted in large numbers of drug treatment admissions, emergency department visits, and fatal overdoses.

    ortho-Fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl have been associated with numerous fatalities. At least 13 confirmed overdose deaths involving ortho-fluorofentanyl abuse have been reported from Georgia (1), North Carolina (11), and Texas (1). At least two confirmed overdose deaths involving tetrahydrofuranyl fentanyl have been reported from New Jersey (1) and Wisconsin (1). At least two confirmed overdose deaths involving methoxyacetyl fentanyl have been repored from Pennsylvania. As the data demonstrate, the potential for fatal and non-fatal overdoses exists for ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl and these substances pose an imminent hazard to the public safety.

    Finding of Necessity of Schedule I Placement To Avoid Imminent Hazard to Public Safety

    In accordance with 21 U.S.C. 811(h)(3), based on the available data and information, summarized above, the continued uncontrolled manufacture, distribution, reverse distribution, importation, exportation, conduct of research and chemical analysis, possession, and abuse of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl poses an imminent hazard to the public safety. The DEA is not aware of any currently accepted medical uses for ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, or methoxyacetyl fentanyl in the United States. A substance meeting the statutory requirements for temporary scheduling, 21 U.S.C. 811(h)(1), may only be placed in Schedule I. Substances in Schedule I are those that have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. Available data and information for ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl indicate that these substances have a high potential for abuse, no currently accepted medical use in treatment in the United States, and a lack of accepted safety for use under medical supervision. As required by section 201(h)(4) of the CSA, 21 U.S.C. 811(h)(4), the Administrator, through letters dated May 19, 2017 (ortho-fluorofentanyl) and July 5, 2017 (tetrahydrofuranyl fentanyl and methoxyacetyl fentanyl), notified the Assistant Secretary of the DEA's intention to temporarily place these substances in Schedule I. A notice of intent was subsequently published in the Federal Register on September 12, 2017. 82 FR 42754.

    Conclusion

    In accordance with the provisions of section 201(h) of the CSA, 21 U.S.C. 811(h), the Administrator considered available data and information, herein sets forth the grounds for his determination that it is necessary to temporarily schedule ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl into Schedule I of the CSA, and finds that placement of these synthetic opioids into Schedule I of the CSA is necessary to avoid an imminent hazard to the public safety.

    Because the Administrator hereby finds it necessary to temporarily place these synthetic opioids into Schedule I to avoid an imminent hazard to the public safety, this temporary order scheduling ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl is effective on the date of publication in the Federal Register, and is in effect for a period of two years, with a possible extension of one additional year, pending completion of the regular (permanent) scheduling process. 21 U.S.C. 811(h)(1) and (2).

    The CSA sets forth specific criteria for scheduling a drug or other substance. Permanent scheduling actions in accordance with 21 U.S.C. 811(a) are subject to formal rulemaking procedures done “on the record after opportunity for a hearing” conducted pursuant to the provisions of 5 U.S.C. 556 and 557. 21 U.S.C. 811. The permanent scheduling process of formal rulemaking affords interested parties with appropriate process and the government with any additional relevant information needed to make a determination. Final decisions that conclude the permanent scheduling process of formal rulemaking are subject to judicial review. 21 U.S.C. 877. Temporary scheduling orders are not subject to judicial review. 21 U.S.C. 811(h)(6).

    Requirements for Handling

    Upon the effective date of this temporary order, ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl will become subject to the regulatory controls and administrative, civil, and criminal sanctions applicable to the manufacture, distribution, reverse distribution, importation, exportation, engagement in research, and conduct of instructional activities or chemical analysis with, and possession of Schedule I controlled substances including the following:

    1. Registration. Any person who handles (manufactures, distributes, reverse distributes, imports, exports, engages in research, or conducts instructional activities or chemical analysis with, or possesses), or who desires to handle, ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl must be registered with the DEA to conduct such activities pursuant to 21 U.S.C. 822, 823, 957, and 958 and in accordance with 21 CFR parts 1301 and 1312, as of October 26, 2017. Any person who currently handles ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl, and is not registered with the DEA, must submit an application for registration and may not continue to handle ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl as of October 26, 2017, unless the DEA has approved that application for registration pursuant to 21 U.S.C. 822, 823, 957, 958, and in accordance with 21 CFR parts 1301 and 1312. Retail sales of Schedule I controlled substances to the general public are not allowed under the CSA. Possession of any quantity of these substances in a manner not authorized by the CSA on or after October 26, 2017 is unlawful and those in possession of any quantity of these substances may be subject to prosecution pursuant to the CSA.

    2. Disposal of stocks. Any person who does not desire or is not able to obtain a Schedule I registration to handle ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl, must surrender all quantities of currently held ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl.

    3. Security. ortho-Fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl are subject to Schedule I security requirements and must be handled and stored pursuant to 21 U.S.C. 821, 823, 871(b), and in accordance with 21 CFR 1301.71-1301.93, as of October 26, 2017.

    4. Labeling and packaging. All labels, labeling, and packaging for commercial containers of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl must be in compliance with 21 U.S.C. 825, 958(e), and be in accordance with 21 CFR part 1302. Current DEA registrants shall have 30 calendar days from October 26, 2017, to comply with all labeling and packaging requirements.

    5. Inventory. Every DEA registrant who possesses any quantity of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl on the effective date of this order must take an inventory of all stocks of these substances on hand, pursuant to 21 U.S.C. 827 and 958, and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11. Current DEA registrants shall have 30 calendar days from the effective date of this order to be in compliance with all inventory requirements. After the initial inventory, every DEA registrant must take an inventory of all controlled substances (including ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl) on hand on a biennial basis, pursuant to 21 U.S.C. 827 and 958, and in accordance with 21 CFR 1304.03, 1304.04, and 1304.11.

    6. Records. All DEA registrants must maintain records with respect to ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl pursuant to 21 U.S.C. 827 and 958, and in accordance with 21 CFR parts 1304, and 1312, 1317 and § 1307.11. Current DEA registrants shall have 30 calendar days from the effective date of this order to be in compliance with all recordkeeping requirements.

    7. Reports. All DEA registrants who manufacture or distribute ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl must submit reports pursuant to 21 U.S.C. 827 and in accordance with 21 CFR parts 1304 and 1312 as of October 26, 2017.

    8. Order Forms. All DEA registrants who distribute ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl must comply with order form requirements pursuant to 21 U.S.C. 828 and in accordance with 21 CFR part 1305 as of October 26, 2017.

    9. Importation and Exportation. All importation and exportation of ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl must be in compliance with 21 U.S.C. 952, 953, 957, 958, and in accordance with 21 CFR part 1312 as of October 26, 2017.

    10. Quota. Only DEA registered manufacturers may manufacture ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl in accordance with a quota assigned pursuant to 21 U.S.C. 826 and in accordance with 21 CFR part 1303 as of October 26, 2017.

    11. Liability. Any activity involving ortho-fluorofentanyl, tetrahydrofuranyl fentanyl, and methoxyacetyl fentanyl not authorized by, or in violation of the CSA, occurring as of October 26, 2017, is unlawful, and may subject the person to administrative, civil, and/or criminal sanctions.

    Regulatory Matters

    Section 201(h) of the CSA, 21 U.S.C. 811(h), provides for a temporary scheduling action where such action is necessary to avoid an imminent hazard to the public safety. As provided in this subsection, the Attorney General may, by order, schedule a substance in Schedule I on a temporary basis. Such an order may not be issued before the expiration of 30 days from (1) the publication of a notice in the Federal Register of the intention to issue such order and the grounds upon which such order is to be issued, and (2) the date that notice of the proposed temporary scheduling order is transmitted to the Assistant Secretary. 21 U.S.C. 811(h)(1).

    Inasmuch as section 201(h) of the CSA directs that temporary scheduling actions be issued by order and sets forth the procedures by which such orders are to be issued, the DEA believes that the notice and comment requirements of the Administrative Procedure Act (APA) at 5 U.S.C. 553, do not apply to this temporary scheduling action. In the alternative, even assuming that this action might be subject to 5 U.S.C. 553, the Administrator finds that there is good cause to forgo the notice and comment requirements of 5 U.S.C. 553, as any further delays in the process for issuance of temporary scheduling orders would be impracticable and contrary to the public interest in view of the manifest urgency to avoid an imminent hazard to the public safety.

    Further, the DEA believes that this temporary scheduling action is not a “rule” as defined by 5 U.S.C. 601(2), and, accordingly, is not subject to the requirements of the Regulatory Flexibility Act. The requirements for the preparation of an initial regulatory flexibility analysis in 5 U.S.C. 603(a) are not applicable where, as here, the DEA is not required by the APA or any other law to publish a general notice of proposed rulemaking.

    Additionally, this action is not a significant regulatory action as defined by Executive Order 12866 (Regulatory Planning and Review), section 3(f), and, accordingly, this action has not been reviewed by the Office of Management and Budget.

    This action will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with Executive Order 13132 (Federalism) it is determined that this action does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment.

    As noted above, this action is an order, not a rule. Accordingly, the Congressional Review Act (CRA) is inapplicable, as it applies only to rules. However, if this were a rule, pursuant to the Congressional Review Act, “any rule for which an agency for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest, shall take effect at such time as the federal agency promulgating the rule determines.” 5 U.S.C. 808(2). It is in the public interest to schedule these substances immediately to avoid an imminent hazard to the public safety. This temporary scheduling action is taken pursuant to 21 U.S.C. 811(h), which is specifically designed to enable the DEA to act in an expeditious manner to avoid an imminent hazard to the public safety. 21 U.S.C. 811(h) exempts the temporary scheduling order from standard notice and comment rulemaking procedures to ensure that the process moves swiftly. For the same reasons that underlie 21 U.S.C. 811(h), that is, the DEA's need to move quickly to place these substances into Schedule I because it poses an imminent hazard to the public safety, it would be contrary to the public interest to delay implementation of the temporary scheduling order. Therefore, this order shall take effect immediately upon its publication. The DEA has submitted a copy of this temporary order to both Houses of Congress and to the Comptroller General, although such filing is not required under the Small Business Regulatory Enforcement Fairness Act of 1996 (Congressional Review Act), 5 U.S.C. 801-808 because, as noted above, this action is an order, not a rule.

    List of Subjects in 21 CFR Part 1308

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

    For the reasons set out above, the DEA amends 21 CFR part 1308 as follows:

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

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

    2. In § 1308.11, add reserved paragraphs (h)(15) through (18) and paragraphs (h)(19), (20), and (21) to read as follows:
    § 1308.11 Schedule I.

    (h) * * *

    (19) N-(2-fluorophenyl)-N-(1-phenethylpiperidin-4-yl)propionamide, its isomers, esters, ethers, salts and salts of isomers, esters and ethers (Other names: ortho-fluorofentanyl, 2-fluorofentanyl) (9816) (20) N-(1-phenethylpiperidin-4-yl)-N-phenyltetrahydrofuran-2-carboxamide, its isomers, esters, ethers, salts and salts of isomers, esters and ethers (Other name: tetrahydrofuranyl fentanyl) (9843) (21) 2-methoxy-N-(1-phenethylpiperidin-4-yl)-N-phenylacetamide, its isomers, esters, ethers, salts and salts of isomers, esters and ethers (Other name: methoxyacetyl fentanyl) (9825)
    Dated: October 17, 2017. Robert W. Patterson, Acting Administrator.
    [FR Doc. 2017-23206 Filed 10-25-17; 8:45 am] BILLING CODE 4410-09-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9815] RIN 1545-BM33 Dividend Equivalents From Sources Within the United States; Correction AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Final regulations and temporary regulations; Correcting amendments.

    SUMMARY:

    This document contains corrections to final and temporary regulations (TD TD 9815), which were published in the Federal Register on Tuesday, January 24, 2017.

    DATES:

    Effective Date: These corrections are effective October 26, 2017.

    Applicability Date: The corrections to §§ 1.1.871-15, 1.871-15T, 1.1441-1(e)(5)(v)(B)(4), (e)(6), and (f)(5), 1.1441-2, 1.1441-7, and 1.1461-1 are applicable on January 19, 2017.

    FOR FURTHER INFORMATION CONTACT:

    D. Peter Merkel or Karen Walny at 202-317-6938 (not a toll-free number).

    SUPPLEMENTARY INFORMATION: Background

    The final and temporary regulations that are the subject of these corrections are §§ 1.871-15, 1.871-15T, 1.1441-1, 1.1441-2, 1.1441-7, and 1.1461-1, promulgated under sections 871(m) and 7805 of the Internal Revenue Code. These regulations affect foreign persons that hold certain financial products providing for payments that are contingent upon or determined by reference to U.S. source dividends, as well withholding agents with respect to dividend equivalents and certain other parties to section 871(m) transactions and their agents.

    Need for Correction

    As published, TD 9815 contains errors that may prove to be misleading and are in need of clarification.

    List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

    Correction of Publication

    Accordingly, 26 CFR part 1 is corrected by making the following correcting amendments:

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

    26 U.S.C. 7805 * * *

    § 1.871-15 [Amended]
    Par. 2. Section 1.871-15 is amended by: 1. Removing paragraph (r)(2). 2. Redesignating paragraphs (r)(3), (4), and (5), as (r)(2), (3), and (4), respectively.
    § 1.871-15 [Amended]
    Par. 3. For each section listed in the table, remove the language in the “Remove” column and add in its place the language in the “Add” column as set forth below: Section Remove Add § 1.871-15(a)(14)(ii)(B) ELI.More ELI. More § 1.871-15(l)(1), second sentence described in this paragraph (l) described in this paragraph (l)(1) § 1.871-15(q)(1) qualified intermediary agreement qualified intermediary withholding agreement § 1.871-15(q)(4) ordinary ordinarily § 1.871-15(q)(5), Example (3), paragraph (ii) country that provides withholding country with a treaty that provides withholding § 1.871-15(q)(5), Example (3), paragraph (ii) paid by qualified derivatives dealer paid by the qualified derivatives dealer § 1.871-15(r)(1) September 18, 2015 January 19, 2017
    § 1.871-15T [Amended]
    Par. 4. Section 1.871-15T is amended by redesignating paragraph (r)(5) as (r)(4).
    § 1.871-15T [Amended]
    Par. 5. For each section listed in the table, remove the language in the “Remove” column and add in its place the language in the “Add” column as set forth below: Section Remove Add § 1.871-15T(p)(5) Example 1. Example. § 1.871-15T(q) through (r)(4) [Reserved] (q) through (r)(4) [Reserved]. For further guidance, see § 1.871-15(r)(1) through (4) (q) through (r)(3) [Reserved]. For further guidance, see § 1.871-15(q) through (r)(3) § 1.871-15T(r)(4) newly redesignated after on January after January
    § 1.1441-1 [Amended]
    Par. 6. For each section listed in the table, remove the language in the “Remove” column and add in its place the language in the “Add” column as set forth below: Section Remove Add § 1.1441-1(e)(5)(v)(B)(4)(iv) U.S. income tax U.S. federal income tax § 1.1441-1(e)(6)(i)(B) and other withholding provisions and other provisions § 1.1441-1(e)(6)(i)(C) underlying securities (including underlying securities as defined in § 1.871- 15(a)(15) (including § 1.1441-1(e)(6)(i)(C) received in the equity received in its equity § 1.1441-1(e)(6)(i)(D)(3) U.S. tax return U.S. federal tax return § 1.1441-1(e)(6)(i)(F) QDD qualified derivatives dealer § 1.1441-1(e)(6)(ii)(B) introductory text organized, or operates organized or operates § 1.1441-1(e)(6)(ii)(B)(2) pursuant to with respect to § 1.1441-1(f)(5) Paragraphs (e)(5)(ii)(D) Paragraphs (e)(5)(ii)(C) Par. 7. Section 1.1441-2 is amended by removing the last two sentences of paragraph (f)(1) and adding a sentence at the end of the paragraph to read as follows:
    § 1.1441-2 Amounts subject to withholding.

    (f) * * *

    (1) * * * Paragraph (e)(7) of this section applies on or after January 19, 2017.

    § 1.1441-2 [Amended]
    Par. 8. For each section listed in the table, remove the language in the “Remove” column and add in its place the language in the “Add” column as set forth below: Section Remove Add § 1.1441-2(e)(7)(ii)(A) § 1.871-15(i)(3), § 1.871-15(i)(3)(i), § 1.1441-2(e)(7)(iv) type (securities type (for example, securities § 1.1441-2(e)(7)(v) the types of section 871(m) transaction the type of section 871(m) transaction § 1.1441-2(e)(7)(v) certifying that has notified certifying that it has notified
    § 1.1441-7 [Amended]
    Par. 9. Section 1.1441-7 is amended by removing the second sentence of paragraph (a)(4).
    § 1.1441-7 [Amended]
    Par. 10. For each section listed in the table, remove the language in the “Remove” column and add in its place the language in the “Add” column as set forth below: Section Remove Add § 1.1441-7(a)(3), Example 9 not required withhold not required to withhold § 1.1441-7(a)(4) Example 8 and Example 7, Example 8, and § 1.1441-7(a)(4) apply to payments made on or after January 19 apply beginning January 19 Par. 11. Section 1.1461-1 is amended by revising paragraph (c)(2)(iii) to read as follows:
    § 1.1461-1 Payment and returns of tax withheld.

    (c) * * *

    (2) * * *

    (iii) Applicability date. Paragraph (c)(2) of this section applies beginning January 19, 2017.

    Martin V. Franks, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration).
    [FR Doc. 2017-22830 Filed 10-25-17; 8:45 am] BILLING CODE 4830-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2017-0936] RIN 1625-AA09 Drawbridge Operation Regulation; Snake Creek; Islamorada, FL AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Snake Creek Bridge across Snake Creek, at Islamorada, FL. The deviation is necessary to alleviate the increased traffic congestion on US 1 Highway resulting from relief efforts after the passing of Hurricane Irma. This deviation allows the bridge to open once every two hours verses the current operating regulation. Local officials are requesting this action to assist in reducing the long line of traffic backups caused by the bridge openings.

    DATES:

    This deviation is effective without actual notice from October 26, 2017, through 7 a.m. on November 1, 2017. For the purposes of enforcement, actual notice will be used from 7 a.m. on September 29, 2017, until October 26, 2017.

    ADDRESSES:

    The docket for this deviation, USCG-2017-0936 is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email LT Scott Ledee, Chief Waterways Management Division, U.S. Coast Guard Sector Key West, Coast Guard; telephone (305) 292-8768, email; [email protected]

    SUPPLEMENTARY INFORMATION:

    The Village of Islamorada Florida with concurrence of Florida Department of Transportation, the bridge owner, has requested a temporary change in the operating regulation for the Snake Creek Bridge on US Highway 1 crossing Snake Creek in Islamorada, Florida. The bridge has a vertical clearance of 27 feet in the closed position. With the passing of Hurricane Irma, the lower Keys have been devastated. With this increased time between openings, this deviation will allow a more uninterrupted flow of vehicle traffic carrying restorative supplies into the lower Keys without severely hindering vessel traffic. The Snake Creek Drawbridge currently operates under 33 CFR 117.331.

    The deviation period is from 7 a.m. on September 29, 2017 to 7 a.m. on November 1, 2017. During this period, the bridge will open on signal, except that from 7 a.m. to 7 p.m. the draw need only open every two hours, on the hour.

    Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

    Dated: October 2, 2017. Barry L. Dragon, Director, Bridge Branch, Seventh Coast Guard District.
    [FR Doc. 2017-23320 Filed 10-25-17; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2017-0778] Drawbridge Operation Regulation; Atlantic Intracoastal Waterway, Indian River, Titusville, FL AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation; modification.

    SUMMARY:

    The Coast Guard has modified a temporary deviation from the operating schedule that governs the NASA Railroad Bridge (Jay Jay Bridge) across the Atlantic Intracoastal Waterway (Indian River), mile 876.6, Titusville, Florida. This modified deviation is necessary to allow the bridge owner, National Aeronautics and Space Administration (NASA) to continue repairs to the bridge. Due to delays and damage caused by Hurricane Irma, additional repairs will be required causing the bridge to remain closed to navigation periodically throughout the day. This deviation is deemed necessary for the continued safe operation of the bridge.

    DATES:

    This modified deviation is effective without actual notice from October 26, 2017 through 4 p.m. on October 31, 2017. For the purposes of enforcement, actual notice will be used from 8 a.m. on September 27, 2017 until October 26, 2017.

    ADDRESSES:

    The docket for this deviation, USCG-2017-0778 is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this modified temporary deviation, call or email LT Allan Storm, U.S. Coast Guard Sector Jacksonville, Waterways Management Division; telephone 904-714-7616, email [email protected]

    SUPPLEMENTARY INFORMATION:

    On August 22, 2017, the Coast Guard published a temporary deviation entitled, “Drawbridge Operation Regulation; Atlantic Intracoastal Waterway, Indian River, Titusville, FL” in the Federal Register (82 FR 39665). Under that temporary deviation, from 8 a.m. on August 17, 2017 to 4 p.m. on September 26, 2017, the bridge would remain closed to navigation from 8 a.m. to noon and from 1 p.m. to 4 p.m., Monday through Friday. The bridge owner, NASA, has requested an extension of time for the temporary deviation from the operating schedule that governs the NASA Railroad Bridge (Jay Jay Bridge) to complete bridge repairs, due to delays and storm damage related to Hurricane Irma. The bridge is a single leaf bascule railroad bridge with a seven foot vertical clearance in the closed position. The normal operating schedule for the bridge is found in 33 CFR 117.261(j).

    The deviation period is from 8 a.m. on September 27, 2017 to 4 p.m. on October 31, 2017. During this period, the bridge is allowed to remain closed to navigation from 8 a.m. to noon and from 1 p.m. to 4 p.m., Monday through Friday.

    Vessels able to pass through the bridge in the closed position may do so at anytime. The bridge will be able to open for emergencies and there is no immediate alternate route for vessels to pass. The Coast Guard will also inform the users of the waterways through our Local and Broadcast Notices to Mariners of the change in operating schedule for the bridge so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

    Dated: September 27, 2017. Barry L. Dragon, Director, Bridge Branch, Seventh Coast Guard District.
    [FR Doc. 2017-23322 Filed 10-25-17; 8:45 am] BILLING CODE 9110-04-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 62 [EPA-R03-OAR-2017-0509; FRL-9969-92-Region 3] Approval and Promulgation of State Air Quality Plans for Designated Facilities and Pollutants; City of Philadelphia; Control of Emissions From Existing Sewage Sludge Incineration Units AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Direct final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking direct final action to notify the public that it has received a negative declaration for sewage sludge incineration (SSI) units within the City of Philadelphia. This negative declaration certifies that SSI units subject to the requirements of sections 111(d) and 129 of the Clean Air Act (CAA) do not exist within the jurisdictional boundaries of the Philadelphia Air Management Service (AMS). EPA is accepting the negative declaration in accordance with the requirements of the CAA.

    DATES:

    This rule is effective on December 26, 2017 without further notice, unless EPA receives adverse written comment by November 27, 2017. If EPA receives such comments, it will publish a timely withdrawal of the direct final rule in the Federal Register and inform the public that the rule will not take effect.

    ADDRESSES:

    Submit your comments, identified by Docket ID Number EPA-R03-OAR-2017-0509 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the Web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the For Further Information Contact section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Mike Gordon, (215) 814-2039, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    Sections 111(d) and 129 of the CAA require states to submit plans to control certain pollutants (designated pollutants) at existing solid waste combustor facilities (designated facilities) whenever standards of performance have been established under section 111(b) for new sources of the same type, and EPA has established emission guidelines (EG) for such existing sources. A designated pollutant is any pollutant for which no air quality criteria have been issued, and which is not included on a list published under section 108(a) or section 112(b)(1)(A) of the CAA, but emissions of which are subject to a standard of performance for new stationary sources. On March 21, 2011 (76 FR 15372), EPA promulgated SSI unit new source performance standards, 40 CFR part 60, subpart LLLL, and emission guidelines, subpart MMMM. The designated facilities to which the EG apply are existing SSI units that: (1) Commenced construction on or before October 14, 2010; (2) that meet the definition of a SSI unit as defined in § 60.5250; and (3) are not exempt under § 60.5065.

    Subpart B of 40 CFR part 60 establishes procedures to be followed and requirements to be met in the development and submission of state plans for controlling designated pollutants. Also, 40 CFR part 62 provides the procedural framework for the submission of these plans. When designated facilities are located in a state, the state must then develop and submit a plan for the control of the designated pollutant. However, 40 CFR 60.23(b) and 62.06 provide that if there are no existing sources of the designated pollutant in the state, the state may submit a letter of certification to that effect (i.e., negative declaration) in lieu of a plan. The negative declaration exempts the state from the requirements of subpart B that require the submittal of a 111(d)/129 plan.

    II. State Submittal and EPA Analysis

    Philadelphia AMS has determined that there are no SSI units subject to the requirements of Sections CAA 111(d) and 129 of the CAA in their respective air pollution control jurisdiction. Accordingly, Philadelphia AMS submitted a negative declaration letter to EPA certifying this fact on March 28, 2012. The negative declaration letter and EPA's technical support document for this action are available in the docket for this the docket for this rulemaking and available online at www.regulations.gov.

    III. Final Action

    In this direct final action, EPA is amending part 62 to reflect receipt of the negative declaration letter from Philadelphia AMS. EPA is publishing this rule without prior proposal because EPA views this as a noncontroversial amendment and anticipates no adverse comment. However, in the “Proposed Rules” section of today's Federal Register, EPA is publishing a separate document that will serve as the proposal to approve the revision if adverse comments are filed. This rule will be effective on December 26, 2017 without further notice unless EPA receives adverse comment by November 27, 2017. If EPA receives adverse comment, EPA will publish a timely withdrawal in the Federal Register informing the public that the rule will not take effect. EPA will address all public comments in a subsequent final rule based on the proposed rule. EPA will not institute a second comment period on this action. Any parties interested in commenting must do so at this time.

    IV. Statutory and Executive Order Reviews A. General Requirements

    Under Executive Order 12866 (58 FR 51735, October 4, 1993), this action is not a “significant regulatory action” and therefore is not subject to review by the Office of Management and Budget. For this reason, 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 notifies the public of EPA receipt of a negative declaration from an air pollution control agency without any existing SSI units in their jurisdiction. This action imposes no requirements. Accordingly, EPA certifies that this rule will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action 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). This action also does not have tribal implications because it will 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, 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). This action merely approves the negative declaration for existing SSI units from the Philadelphia AMS and does not alter the relationship or the distribution of power and responsibilities established in the Clean Air Act. This action 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 is not economically significant.

    With regard to negative declarations for designated facilities received by EPA from states, EPA's role is to notify the public of the receipt of such negative declarations and revise 40 CFR part 62 accordingly. 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 approve or disapprove a CAA section 111(d)/129 plan negative declaration submission for failure to use VCS. It would thus be inconsistent with applicable law for EPA, when it reviews a CAA section 111(d)/129 negative declaration, to use VCS in place of a section 111(d)/129 negative declaration that otherwise satisfies the provisions of the Clean Air Act. 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.).

    B. Submission to Congress and the Comptroller General

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

    C. Petitions for Judicial Review

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by December 26, 2017. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. Parties with objections to this direct final rule are encouraged to file a comment in response to the parallel notice of proposed rulemaking for this action published in the proposed rules section of today's Federal Register, rather than file an immediate petition for judicial review of this direct final rule, so that EPA can withdraw this direct final rule and address the comment in the proposed rulemaking.

    This action approving a negative declaration submitted by Philadelphia AMS for SSI units may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 62

    Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Reporting and recordkeeping requirements, Waste treatment and disposal.

    Dated: October 11, 2017. Cecil Rodrigues, Acting Regional Administrator, Region III.

    40 CFR part 62 is amended as follows:

    PART 62—APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED FACILITIES AND POLLUTANTS 1. The authority citation for part 62 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart NN—Pennsylvania 2. Add an undesignated heading and §  62.9665 to subpart NN to read as follows: Emissions From Existing Sewage Sludge Incineration Units
    § 62.9665 Identification of plan—negative declaration.

    Letter from the City of Philadelphia, Department of Public Health, submitted March 28, 2012, certifying that there are no existing sewage sludge incineration units within the City of Philadelphia, Pennsylvania that are subject to 40 CFR part 60, subpart Ce.

    [FR Doc. 2017-23229 Filed 10-25-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 63 [EPA-HQ-OAR-2016-0490; FRL-9969-95-OAR] RIN 2060-AS85 National Emission Standards for Hazardous Air Pollutants: Publicly Owned Treatment Works Residual Risk and Technology Review AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This action finalizes the residual risk and technology review (RTR) conducted for the Publicly Owned Treatment Works (POTW) source category regulated under national emission standards for hazardous air pollutants (NESHAP). In addition, we are taking final action addressing revised names and definitions of the subcategories, revisions to the applicability criteria, revised regulatory provisions pertaining to emissions during periods of startup, shutdown, and malfunction (SSM), initial notification requirements for existing Group 1 and Group 2 POTW, revisions to the requirements for new Group 1 POTW, requirements for electronic reporting, and other miscellaneous edits and technical corrections. While we do not anticipate any emission reductions as a result of these revisions, the changes should provide clarity for sources determining applicability and ensuring compliance.

    DATES:

    This final rule is effective on October 26, 2017.

    ADDRESSES:

    The Environmental Protection Agency (EPA) has established a docket for this action under Docket ID No. EPA-HQ-OAR-2016-0490. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., confidential business information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov, or in hard copy at the EPA Docket Center, EPA WJC West Building, Room Number 3334, 1301 Constitution Ave. NW., Washington, DC. The Public Reading Room hours of operation are 8:30 a.m. to 4:30 p.m. Eastern Standard Time (EST), Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the EPA Docket Center is (202) 566-1742.

    FOR FURTHER INFORMATION CONTACT:

    For questions about this final action, contact Katie Hanks, Sector Policies and Programs Division (E143-03), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina, 27711; telephone number: (919) 541-2159; fax number: (919) 541-0516; and email address: [email protected] For specific information regarding the risk modeling methodology, contact Terri Hollingsworth, Health and Environmental Impacts Division (C539-02), Office of Air Quality Planning and Standards, U.S. Environmental Protection Agency, Research Triangle Park, North Carolina 27711; telephone number: (919) 541-5623; fax number: (919) 541-0840; and email address: [email protected] For information about the applicability of the NESHAP to a particular entity, contact Sara Ayres, Office of Enforcement and Compliance Assurance, U.S. Environmental Protection Agency, 77 West Jackson Boulevard (E-19J), Chicago, Illinois 60604; telephone number: (312) 353-6266; and email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Preamble acronyms and abbreviations. We use multiple acronyms and terms in this preamble. While this list may not be exhaustive, to ease the reading of this preamble and for reference purposes, the EPA defines the following terms and acronyms here:

    CAA Clean Air Act

    CBI confidential business information

    CDX Central Data Exchange

    CEDRI Compliance and Emissions Data Reporting Interface

    ERT Electronic Reporting Tool

    HAP hazardous air pollutants(s)

    HQ hazard quotient

    H2S hydrogen sulfide

    ICR Information Collection Request

    MACT maximum achievable control technology

    MGD million gallons per day

    MIR maximum individual risk

    NESHAP national emission standards for hazardous air pollutants

    NPDES National Pollutant Discharge Elimination System

    NTTAA National Technology Transfer and Advancement Act

    PB-HAP Hazardous air pollutants known to be persistent and bio-accumulative in the environment

    POTW Publicly Owned Treatment Works

    RFA Regulatory Flexibility Act

    RIN Regulatory Information Number

    RTR Risk and Technology Review

    SSM startup, shutdown and malfunction

    TOSHI Target Organ Specific Hazard Index

    UMRA Unfunded Mandates Reform Act

    Background information. On December 27, 2016, the EPA proposed revisions to the POTW NESHAP based on our RTR. In this action, we are finalizing decisions and revisions for the rule. We summarize some of the more significant comments we timely received regarding the proposed rule and provide our responses in this preamble. A summary of all other public comments on the proposal and the EPA's responses to those comments is available in Response to Public Comments on the EPA's Residual Risk and Technology Review for the Publicly Owned Treatment Works Source Category in Docket ID No. EPA-HQ-OAR-2016-0490. A “track changes” version of the regulatory language that incorporates the changes in this action is available in the docket.

    Organization of this document. The information in this preamble is organized as follows:

    I. General Information A. Does this action apply to me? B. Where can I get a copy of this document and other related information? C. Judicial Review and Administrative Reconsideration II. Background A. What is the statutory authority for this action? B. What is the POTW source category and how does the NESHAP regulate HAP emissions from the source category? C. What changes did we propose for the POTW source category in our December 27, 2016, RTR proposal? III. What is included in this final rule? A. What are the final rule amendments based on the risk review for the POTW source category? B. What are the final rule amendments based on the technology review for the POTW source category? C. What are the final rule amendments addressing emissions during periods of startup, shutdown, and malfunction? D. What other changes have been made to the NESHAP? E. What are the effective and compliance dates of the standards? F. What are the requirements for submission of performance test data to the EPA? IV. What is the rationale for our final decisions and amendments for the POTW source category? A. Residual Risk Review for the POTW Source Category B. Technology Review for the POTW Source Category C. Applicability Criteria D. Emissions From Collection Systems E. Pretreatment Requirements F. HAP Fraction Emitted for Existing Group 1 and Group 2 Sources G. New and Existing Group 1 POTW V. Summary of Cost, Environmental, and Economic Impacts and Additional Analyses Conducted A. What are the affected facilities? B. What are the air quality impacts? C. What are the cost impacts? D. What are the economic impacts? E. What are the benefits? F. What analysis of environmental justice did we conduct? G. What analysis of children's environmental health did we conduct? VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs C. Paperwork Reduction Act (PRA) D. Regulatory Flexibility Act (RFA) E. Unfunded Mandates Reform Act (UMRA) F. Executive Order 13132: Federalism G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use J. National Technology Transfer and Advancement Act (NTTAA) K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations L. Congressional Review Act (CRA) I. General Information A. Does this action apply to me?

    Regulated entities. Categories and entities potentially regulated by this action are shown in Table 1 of this preamble.

    Table 1—NESHAP and Industrial Source Categories Affected by This Final Action NESHAP and source category NESHAP NAICS 1
  • code
  • Sewage Treatment Facilities Subpart VVV 221320 1 North American Industry Classification System.

    Table 1 of this preamble is not intended to be exhaustive, but rather to provide a guide for readers regarding entities likely to be affected by the final action for the source category listed. The standards are directly applicable to the affected sources. Federal, state, local, and tribal governments are affected as discussed below. By definition, a POTW is owned by a municipality, state, intermunicipal or interstate agency, or any department, agency, or instrumentality of the federal government (see 40 CFR 63.1595 of subpart VVV). To determine whether your facility is affected, you should examine the applicability criteria in the POTW NESHAP. Specifically, if a POTW is a Group 2 POTW 1 that is a major source of hazardous air pollutant (HAP) emissions or a Group 1 POTW regardless of the HAP emissions, and the POTW meets the criteria for development and implementation of a pretreatment program according to 40 CFR 403.8, then the POTW is affected by these standards. If you have any questions regarding the applicability of any aspect of this NESHAP, please contact the appropriate person listed in the preceding FOR FURTHER INFORMATION CONTACT section of this preamble.

    1 As discussed below in section III.D of this preamble, the terms “Group 1 POTW” and “Group 2 POTW” are replacing the previous terms “industrial POTW” and “nonindustrial POTW. The “Group 1” and “Group 2” subcategories are described in the regulatory text at 40 CFR 63.1581.

    B. Where can I get a copy of this document and other related information?

    In addition to being available in the docket, an electronic copy of this final action will also be available on the Internet. Following signature by the EPA Administrator, the EPA will post a copy of this final action at http://www.epa.gov/stationary-sources-air-pollution/publicly-owned-treatment-works-potw-national-emission-standards. Following publication in the Federal Register, the EPA will post the Federal Register version and key technical documents at this same Web site.

    Additional information is available on the RTR Web site at http://www.epa.gov/ttn/atw/rrisk/rtrpg.html. This information includes an overview of the RTR program, links to project Web sites for the RTR source categories, and detailed emissions and other data we used as inputs to the risk assessments.

    C. Judicial Review and Administrative Reconsideration

    Under Clean Air Act (CAA) section 307(b)(1), judicial review of this final action is available only by filing a petition for review in the United States Court of Appeals for the District of Columbia Circuit by December 26, 2017. Under CAA section 307(b)(2), the requirements established by this final rule may not be challenged separately in any civil or criminal proceedings brought by the EPA to enforce the requirements.

    Section 307(d)(7)(B) of the CAA further provides that only an objection to a rule or procedure which was raised with reasonable specificity during the period for public comment (including any public hearing) may be raised during judicial review. This section also provides a mechanism for the EPA to reconsider the rule if the person raising an objection can demonstrate to the Administrator that it was impracticable to raise such objection within the period for public comment or if the grounds for such objection arose after the period for public comment (but within the time specified for judicial review) and if such objection is of central relevance to the outcome of the rule. Any person seeking to make such a demonstration should submit a Petition for Reconsideration to the Office of the Administrator, U.S. EPA, Room 3000, EPA WJC South Building, 1200 Pennsylvania Ave. NW., Washington, DC 20460, with a copy to both the person(s) listed in the preceding FOR FURTHER INFORMATION CONTACT section, and the Associate General Counsel for the Air and Radiation Law Office, Office of General Counsel (Mail Code 2344A), U.S. EPA, 1200 Pennsylvania Ave. NW., Washington, DC 20460.

    II. Background A. What is the statutory authority for this action?

    Section 112 of the CAA establishes a two-stage regulatory process to address emissions of HAP from stationary sources. In the first stage, we must identify categories of sources emitting one or more of the HAP listed in CAA section 112(b) and then promulgate technology-based NESHAP for those sources. “Major sources” are those that emit, or have the potential to emit, any single HAP at a rate of 10 tons per year (tpy) or more, or 25 tpy or more of any combination of HAP. For major sources, these standards are commonly referred to as maximum achievable control technology (MACT) standards and must reflect the maximum degree of emission reductions of HAP achievable (after considering cost, energy requirements, and non-air quality health and environmental impacts). In developing MACT standards, CAA section 112(d)(2) directs the EPA to consider the application of measures, processes, methods, systems, or techniques, including but not limited to those that reduce the volume of or eliminate HAP emissions through process changes, substitution of materials, or other modifications; enclose systems or processes to eliminate emissions; collect, capture, or treat HAP when released from a process, stack, storage, or fugitive emissions point; are design, equipment, work practice, or operational standards; or any combination of the above.

    For these MACT standards, the statute specifies certain minimum stringency requirements, which are referred to as MACT floor requirements, and which may not be based on cost considerations. See CAA section 112(d)(3). For new sources, the MACT floor cannot be less stringent than the emission control achieved in practice by the best-controlled similar source. The MACT standards for existing sources can be less stringent than floors for new sources, but they cannot be less stringent than the average emission limitation achieved by the best-performing 12 percent of existing sources in the category or subcategory (or the best-performing five sources for categories or subcategories with fewer than 30 sources). In developing MACT standards, we must also consider control options that are more stringent than the floor under CAA section 112(d)(2). We may establish standards more stringent than the floor, based on the consideration of the cost of achieving the emissions reductions, any non-air quality health and environmental impacts, and energy requirements.

    In the second stage of the regulatory process, the CAA requires the EPA to undertake two different analyses, which we refer to as the technology review and the residual risk review. Under the technology review, we must review the technology-based standards and revise them “as necessary (taking into account developments in practices, processes, and control technologies)” no less frequently than every 8 years, pursuant to CAA section 112(d)(6). Under the residual risk review, we must evaluate the risk to public health remaining after application of the technology-based standards and revise the standards, if necessary, to provide an ample margin of safety to protect public health or to prevent, taking into consideration costs, energy, safety, and other relevant factors, an adverse environmental effect. The residual risk review is required within 8 years after promulgation of the technology-based standards, pursuant to CAA section 112(f). In conducting the residual risk review, if the EPA determines that the current standards provide an ample margin of safety to protect public health, it is not necessary to revise the MACT standards pursuant to CAA section 112(f).2 For more information on the statutory authority for this rule, see the proposed rule published on December 27, 2016 (81 FR 95352).

    2 The U.S. Court of Appeals for the District of Columbia Circuit has affirmed this approach of implementing CAA section 112(f)(2)(A): NRDC v. EPA, 529 F.3d 1077, 1083 (D.C. Cir. 2008) (“If EPA determines that the existing technology-based standards provide an ‘ample margin of safety,’ then the Agency is free to readopt those standards during the residual risk rulemaking.”).

    B. What is the POTW source category and how does the NESHAP regulate HAP emissions from the source category? 1. Definition of the POTW Source Category and the Affected Source

    The EPA promulgated the NESHAP for the POTW source category (henceforth referred to as the “POTW NESHAP”) on October 26, 1999 (64 FR 57572). The standards are codified at 40 CFR part 63, subpart VVV. The POTW NESHAP was amended on October 21, 2002 (67 FR 64742). As amended in 2002, the POTW source category consists of new and existing POTW treatment plants that are located at a POTW that is a major source of HAP emissions and that meets the criteria for development and implementation of a pretreatment program as defined by 40 CFR 403.8 under the Clean Water Act (CWA). Additional information about the National Pretreatment Program can be found in the December 27, 2016, RTR proposal (81 FR 95374). The source category covered by this MACT standard currently includes thirteen facilities.

    As used in this regulation, the term POTW refers to both any POTW that is owned by a state, municipality, or intermunicipal or interstate agency and, therefore, eligible to receive grant assistance under the Subchapter II of the CWA, and any federally owned treatment works as that term is described in section 3023 of the Solid Waste Disposal Act. For more information see the December 27, 2016, RTR proposal (81 FR 95352). The source category includes any intercepting sewers, outfall sewers, sewage collection systems, pumping, power, and other equipment. The wastewater treated by these facilities is generated by industrial, commercial, and domestic sources.

    2. Applicability of the 2002 POTW NESHAP

    The 2002 POTW NESHAP is subcategorized based on whether the POTW is providing treatment for wastewaters received from an industrial user as the means by which that industrial user complies with another NESHAP. The 2002 POTW NESHAP defined an “industrial POTW” as “a POTW that accepts a waste stream regulated by another NESHAP and provides treatment and controls as an agent for the industrial discharger. The industrial discharger complies with its NESHAP by using the treatment and controls located at the POTW. For example, an industry discharges its benzene-containing waste stream to the POTW for treatment to comply with 40 CFR part 61, subpart FF—National Emission Standards for Benzene Waste Operations. This definition does not include POTW treating waste streams not specifically regulated under another NESHAP.” An “industrial POTW” is subject to the 2002 POTW NESHAP regardless of the HAP emissions (i.e., the POTW does not have to be a major source). In contrast, a “non-industrial POTW” was defined in the 2002 POTW NESHAP as “a POTW that does not meet the definition of an industrial POTW as defined above.” A “non-industrial POTW” must be a major source to be subject to the 2002 POTW NESHAP. For more information, see the December 27, 2016, RTR proposal (81 FR 95357).

    3. HAP Emitted and HAP Emission Points

    The amount and type of HAP emitted from a POTW is dependent on the composition of the wastewater streams discharged to a POTW by industrial users. The primary HAP emitted from the POTW that were identified as subject to the POTW NESHAP include acetaldehyde, acetonitrile, chloroform, ethylene glycol, formaldehyde, methanol, methylene chloride, tetratchloroethylene, toluene, and xylenes. The HAP present in the wastewater entering a POTW can biodegrade, adhere to sewage sludge, volatilize to the air, or pass through (remain in the wastewater discharge) to receiving waters. Emissions can occur at any point at the POTW, including collection systems and wastewater treatment units located at the POTW treatment plant.

    4. Regulation of HAP Emissions in the 2002 POTW NESHAP

    The POTW NESHAP specifies requirements for the industial and non-industrial POTW subcategories. Under the 2002 POTW NESHAP, an existing “industrial POTW” must meet the requirements of the industrial user's NESHAP. A new or reconstructed “industrial POTW” must meet the requirements of the industrial user's NESHAP or the requirements for new or reconstructed non-industrial POTW, whichever is more stringent.

    There are no control requirements in the 2002 POTW NESHAP for existing “non-industrial POTW.” However, new or reconstructed “non-industrial POTW” must equip each treatment unit up to, but not including, the secondary influent pumping station, with a cover. In addition, all covered units, except the primary clarifier, must route the air in the headspace above the surface of the wastewater to a control device that meets the requirements for closed-vent systems and control devices found in the NESHAP from Off-Site Waste and Recovery Operations (40 CFR part 63, subpart DD). As an alternative, a new or reconstructed “non-industrial POTW” can demonstrate that all units up to, but not including, the secondary influent pumping station emit a HAP fraction of 0.014 or less. The HAP fraction emitted is the fraction of HAP in the wastewater entering the POTW that is emitted to the atmosphere. For additional information, see the December 27, 2016, RTR proposal (81 FR 95357).

    C. What changes did we propose for the POTW source category in our December 27, 2016, RTR proposal?

    On December 27, 2016, the EPA published a proposed rule in the Federal Register for the POTW NESHAP, 40 CFR part 63, subpart VVV, that took into consideration the RTR analyses. In the proposed rule, we proposed that the risks are acceptable and the current standards provide an ample margin of safety to protect public health. Additionally, we did not identify any developments in practices, processes, and control technologies for the POTW source category as part of the technology review. During this rulemaking, we evaluated other revisions to the 2002 POTW NESHAP outside of the RTR. We proposed to revise the names and definitions of the industrial and non-industrial subcategories to be called Group 1 and Group 2 POTW. We also proposed to include requirements to limit emissions from collection systems and the POTW treatment plant; requirements for existing, new, or reconstructed Group 1 POTW to comply with both the requirements in the POTW NESHAP and those in the applicable NESHAP for which the POTW acts as a control agent; and HAP emission limits for existing Group 2 POTW. In addition, we proposed to clarify the applicability criteria; require initial notification for existing Group 1 and Group 2 POTW; revise regulatory provisions pertaining to emissions during periods of SSM; add requirements for electronic reporting; and make other miscellaneous edits and technical corrections.

    III. What is included in this final rule?

    This action finalizes the EPA's determinations pursuant to the RTR provisions of CAA section 112 for the POTW source category. This action also finalizes other changes to the NESHAP, including revised names and definitions of the subcategories, clarified applicability criteria, revised regulatory provisions pertaining to emissions during periods or SSM, initial notification requirements for existing Group 1 and Group 2 POTW, requirements for new or reconstructed Group 1 POTW to comply with both the requirements in the POTW NESHAP and those in the applicable NESHAP for which the POTW acts as a control agent, requirements for electronic reporting, and other miscellaneous edits and technical corrections. As explained in section IV of this preamble, we are not taking final action at this time on several provisions that were proposed, including standards for pretreatment, the inclusion of collection systems in the major source determination, and the HAP fraction emission limit for existing Group 1 and Group 2 POTW.

    A. What are the final rule amendments based on the risk review for the POTW source category?

    We determined that risks resulting from emissions from the POTW source category are acceptable. Specifically, the maximum individual cancer risk (MIR) is 2-in-1 million based on allowable emissions and 1-in-1 million based on actual emissions, well below the presumptive limit of acceptability (100-in-1 million), and other health information indicates there is no appreciable risk of adverse chronic or acute non-cancer health effects due to HAP emissions from the source category. Additionally, emissions of 2-methylnaphthalene, the only HAP emitted from the POTW source category that is known to be persistent and bio-accumulative in the environment (PB-HAP), did not exceed the worst-case Tier I screening emission rate or any ecological benchmarks. Therefore, revisions to the standards are not necessary to reduce risk to an acceptable level or to prevent an adverse environmental effect. Further, considering risk and non-risk factors, we determined that the 2002 POTW NESHAP requirements provide an ample margin of safety to protect public health. Therefore, we are not finalizing revisions to the standards under CAA section 112(f)(2).

    B. What are the final rule amendments based on the technology review for the POTW source category?

    We determined that there are no developments in practices, processes, and control technologies that warrant revisions to the MACT standards for this source category. Therefore, we are not finalizing revisions to the MACT standards under CAA section 112(d)(6).

    C. What are the final rule amendments addressing emissions during periods of startup, shutdown, and malfunction?

    Consistent with Sierra Club v. EPA, 552 F.3d 1019 (D.C. Cir. 2008), the EPA has established standards in this rule that apply at all times. We have revised Table 1 to Subpart VVV of Part 63 (the General Provisions applicability table) in several respects to eliminate the incorporation of those General Provisions that stated or were tied to the SSM exemption. These revisions to Table 1 are explained in detail in the proposed rule preamble at 81 FR 95780-95782. Further, in conjunction with the elimination of the incorporation of these General Provisions requirements, we have (1) added a general duty to minimize emissions in 40 CFR 63.1582(e) and 63.1586(e), see 81 FR at 95380 (col. 2-3); (2) incorporated performance testing requirements for control devices in 40 CFR 63.694, see 81 FR at 95781 (col. 1); (3) added language to Table 1 related to monitoring that is identical to 40 CFR 63.8(d)(3) (which is no longer incorporated) but with certain revisions to reflect the ending of the SSM plan requirement, see 81 FR at 95381 (col. 2); (4) made the recordkeeping requirements in 40 CFR 63.696(h) and 63.1589(d) applicable to periods that were previously covered by SSM-related provisions, see 81 FR 95381 (col. 2-3); and (5) amended the reporting requirements in 40 CFR 63.1590 which, in conjunction with the existing reporting requirements in 40 CFR 63.693 and 63.1590(a), will adequately provide for reporting that was previously governed by SSM-related provisions, see 81 FR at 95382.

    D. What other changes have been made to the NESHAP? 1. Applicability Criteria

    The EPA is not revising the applicability of 40 CFR part 63, subpart VVV as proposed on December 27, 2016. Instead, the EPA is finalizing minor clarifying changes to the applicability criteria that are in the 2002 POTW NESHAP. The renaming of the subcategories (from “industrial” to “Group 1” and from “non-industrial” to “Group 2) and the definitions of Group 1 and Group 2 POTW are being finalized as proposed, and as discussed below. However, for clarification, the EPA has removed the statements regarding ownership and operation of POTW in regards to which POTW are required to develop and implement a pretreatment program as defined by 40 CFR 403.8. This change clarifies that any Group 1 POTW (regardless of HAP emissions) or Group 2 POTW that is a major source of HAP is subject to the POTW NESHAP if the POTW also meets the criteria for development and implementation of a pretreatment program, regardless of whether the POTW, state, or other entity implements the pretreatment program.

    2. Names and Definitions of the Subcategories

    As proposed, the EPA is revising the names and definitions for the subcategories identified in the POTW NESHAP. The EPA is renaming an “industrial POTW treatment plant” as a “Group 1” POTW treatment plant and a “non-industrial POTW treatment plant” as a “Group 2” POTW treatment plant. The EPA expects that this clarification will address any confusion that could have been caused by the previous subcategory names “industrial POTW treatment plant” and “non-industrial treatment plant” because POTW in both subcategories treat wastewater from industrial users. The key difference between Group 1 and Group 2 is that a Group 1 POTW acts as an agent for an industrial user by accepting and controling the industrial user's waste stream regulated under another NESHAP. By contrast, a Group 2 POTW may treat the waste stream from an industrial user, but does not act as the industrial user's agent to comply with another NESHAP.

    3. Initial Notification Requirements for Existing Group 1 and Group 2 POTW

    In the final rule (40 CFR 63.1586(a)), existing Group 1 and Group 2 POTW treatment plants must comply with the initial notification requirements in 40 CFR 63.1591(a) of subpart VVV. This notification requirement was not required for these existing sources in the 2002 POTW NESHAP, but was proposed in the December 27, 2016, proposal, and is consistent with notification requirements that were applicable to new or reconstructed Group 2 sources under the 2002 POTW NESHAP.

    4. Requirements for New Group 1 POTW

    The EPA is finalizing, as proposed, the requirement that new Group 1 POTW comply with both the requirements of the other NESHAP for which they act as an agent of control for an industrial user and the requirements for new Group 2 POTW in this final rule. The requirements for new Group 2 POTW are unchanged from the 2002 POTW NESHAP and provide the option of complying with either (a) cover all primary treatment units and route emissions through a closed vent system to a control device or (b) meet a HAP fraction emission limit of 0.014 for emissions from all primary treatment units.

    5. Requirements for Electronic Reporting

    The EPA is finalizing electronic reporting requirements for new POTW consistent with the proposed rule. Specifically, new POTW must electroncally submit all annual reports and certain performance test reports. The EPA believes that the electronic submittal of these reports will increase the usefulness of data contained in those reports, is in keeping with current trends in data availability, will further assist in the protection of public health and the environment, and will ultimately result in less burden on the regulated community.

    6. Other Miscellaneous Edits and Technical Corrections

    The EPA is finalizing the following technical corrections as proposed:

    • Revising all references to “new or reconstructed POTW” to refer to “new POTW” because the definition of “new” includes reconstructed POTW.

    • Combining text from 40 CFR 63.1581 and 63.1582 because the language was redundant and confusing. This includes revising 40 CFR 63.1581 to include all combined text and revising 40 CFR 63.1583(c) to include the text from the current 40 CR 63.1582(c).

    • Revising 40 CFR 63.1586(b)(1) to require covers “designed and operated to prevent exposure of the wastewater to the atmosphere” instead of “designed and operated to minimize exposure of the wastewater to the atmosphere.” This clarification has also been made to the definition of “cover” in 40 CFR 63.1595.

    • Revising 40 CFR 63.1587 to include compliance requirements that are currently found in 40 CFR 64.1584 and 63.1587, and deleting 40 CFR 63.1584.

    • Clarifying the method for calculating the HAP fraction emitted and moving the detailed instructions for calculating the HAP fraction emitted from 40 CFR 63.1588(c)(4) to 40 CFR 63.1588(c)(3). The requirements remaining in 40 CFR 63.1588(c)(4) address monitoring for continuous compliance.

    • Revising 40 CFR 63.1588(a)(3) to clarify that a cover defect must be repaired within 45 “calendar” days; currently the paragraph says “45 days.”

    • Adding definitions of existing source/POTW and new source/POTW to 40 CFR 63.1595 to clarify the date that determines whether a POTW is existing or new.

    • Renaming the title of 40 CFR 63.1588 to “How do Group 1 and Group 2 POTW treatment plants demonstrate compliance?” from “What inspections must I conduct?” The new title better reflects the contents of this section.

    • Removing the details on how to calculate the HAP fraction emitted from the definition of HAP fraction emitted. The procedure for how to calculate the HAP fraction emitted is provided within the text of the rule. Having a summarized version of this procedure in the definition could cause confusion.

    • Revising two references to dates to insert the actual dates. The phrase “six months after October 26, 1999” was replaced with “April 26, 2000”; and the phrase “60 days after October 26, 1999” was replaced with “December 27, 1999.” These changes do not result in a change in the date, but only clarify the specific dates being referenced.

    • Clarifying that the reports required in 40 CFR 63.1589(b)(1) include the records associated with the HAP loading and not just the records associated with the HAP emissions determination.

    • Removing the definition of “Reconstruction” in 40 CFR 63.1595 as “Reconstruction” is already defined in the General Provisions of 40 CFR 63.2.

    E. What are the effective and compliance dates of the standards?

    The revisions to the MACT standards being promulgated in this action are effective on October 26, 2017.

    The compliance date for existing Group 1 POTW is found in the applicable NESHAP for which the industrial user is subject to wastewater requirements. The compliance date for existing Group 2 POTW constructed or reconstructed on or before December 1, 1998, remains April 26, 2000. While we do not expect any additional existing Group 1 or Group 2 POTW beyond the 13 identified, we have chosen to include an additional compliance date of October 26, 2018 for existing Group 1 and Group 2 sources to submit their initial notification. We understand from public comments that POTW are evaluating their potential emissions and additional POTW may find they are subject to the rule. These POTW are only required to submit a notification that they are subject to the rule, and the additional time given for compliance of this notification submittal will provide time for completion of the necessary emission calculations. The 13 existing sources that are subject to the rule and were previously identified have already met this notification requirement and do not need to resubmit a notification. New sources constructed or reconstructed after December 27, 2016, must comply with all of the standards immediately upon the effective date of the standard, October 26, 2017, or upon startup, whichever is later. While we did not identify any new sources that are subject to the rule since the original rule was published in 1999, we are including a transition period until October 26, 2020 for any new sources constructed or reconstructed between December 1, 1998, and December 27, 2016, to comply with the revisions in this rule.

    F. What are the requirements for submission of annual reports and performance test data to the EPA?

    As we proposed, the EPA is finalizing the requirement for owners and operators of POTW to submit electronic copies of certain required performance test reports and annual reports through the EPA's Central Data Exchange (CDX) using the Compliance and Emissions Data Reporting Interface (CEDRI). The electronic submittal of the reports addressed in this rulemaking will increase the usefulness of the data contained in those reports, is in keeping with current trends in data availability and transparency, will further assist in the protection of public health and the environment, will improve compliance by facilitating the ability of regulated facilities to demonstrate compliance with requirements and by facilitating the ability of delegated state, local, tribal, and territorial air agencies and the EPA to assess and determine compliance, and will ultimately reduce burden on regulated facilities, delegated air agencies, and the EPA. Electronic reporting also eliminates paper-based, manual processes, thereby saving time and resources, simplifying data entry, eliminating redundancies, minimizing data reporting errors, and providing data quickly and accurately to the affected facilities, air agencies, the EPA, and the public.

    The EPA Web site that stores the submitted electronic data, WebFIRE, is easily accessible and provides a user-friendly interface. By making records, data, and reports addressed in this rulemaking readily available, the EPA, the regulated community, and the public will benefit when the EPA conducts its CAA-required technology reviews. As a result of having reports readily accessible, our ability to carry out comprehensive reviews will increase and be achieved within a shorter period of time.

    We anticipate fewer or less substantial Information Collection Requests (ICRs) in conjunction with prospective CAA-required technology reviews may be needed, which results in a decrease in time spent by industry to respond to data collection requests. We also expect the ICRs to contain less extensive stack testing provisions, as we will already have stack test data electronically. Reduced testing requirements would be a cost savings to industry. The EPA should also be able to conduct these required reviews more quickly. While the regulated community may benefit from a reduced burden of ICRs, the general public benefits from the agency's ability to provide these required reviews more quickly, resulting in increased public health and environmental protection.

    Air agencies, as well as the EPA, can benefit from more streamlined and automated review of the electronically submitted data. Standardizing report formats allows air agencies to review reports and data more quickly. Having reports and associated data in electronic format facilitates review through the use of software “search” options, as well as the downloading and analyzing of data in spreadsheet format. Additionally, air agencies and the EPA can access reports wherever and whenever they want or need, as long as they have access to the Internet. The ability to access and review reports electronically assists air agencies in determining compliance with applicable regulations more quickly and accurately, potentially allowing a faster response to violations, which could minimize harmful air emissions. This benefits both air agencies and the general public.

    For a more thorough discussion of electronic reporting required by this rule, see the discussion in the preamble of the proposal. In summary, in addition to supporting regulation development, control strategy development, and other air pollution control activities, having an electronic database populated with performance test data will save industry, air agencies, and the EPA significant time, money, and effort while improving the quality of emission inventories and air quality regulations and enhancing the public's access to this important information.

    IV. What is the rationale for our final decisions and amendments for the POTW source category?

    For each decision or amendment, this section provides a description of what we proposed and what we are finalizing, the EPA's rationale for the final decisions and amendments, and a summary of key comments and responses. Comments not discussed in this preamble, comment summaries, and the EPA's responses can be found in the comment summary and response document available in the docket (Docket ID No. EPA-HQ-OAR-2016-0490).

    A. Residual Risk Review for the POTW Source Category

    Pursuant to CAA section 112(f), we conducted a residual risk review and presented the results of the review, along with our proposed decisions regarding risk acceptability and ample margin of safety, in the December 27, 2016, RTR proposal (81 FR 95372). The residual risk review for the POTW source category included assessment of cancer risk, chronic non-cancer risk, and acute non-cancer risk due to inhalation exposure, as well as multipathway exposure risk and environmental risk. The results of the risk assessment are presented briefly in this preamble and in more detail in the residual risk document, Residual Risk Assessment for Publicly Owned Treatment Works Source Category in Support of the October 2017 Risk and Technology Review Final Rule, 3 which is available in the docket for this rulemaking.

    3 This report is an update to the residual risk report provided at proposal, Residual Risk Assessment for Publicly Owned Treatment Works Source Category in Support of the December 2016 Risk and Technology Review Proposed Rule, available in the docket.

    The results indicated that maximum inhalation cancer risk to the individual most exposed is 2-in-1 million based on allowable emissions and 1-in-1 million based on actual emissions, which is well below the presumptive limit of acceptability (i.e., 100-in-1 million). In addition, the maximum chronic noncancer target organ specific hazard index (TOSHI) due to inhalation exposures is less than 1. The evaluation of acute noncancer risk, which was conservative, showed a hazard quotient at or below 1 for all but one POTW. Based on the results of the screening analyses for human multipathway exposure to, and environmental impacts from, PB-HAP, we also concluded that the cancer risk to the individual most exposed through ingestion is below the level of concern and no ecological benchmarks are exceeded. The facility-wide cancer and noncancer risks were estimated based on the actual emissions from all sources at the identified POTW (both MACT and non-MACT sources). The results indicated the cancer risk to the individual most exposed is no greater than 10-in-1 million and the noncancer TOSHI is less than 1. Considering the above information, as well as other relevant non-health factors under the Benzene NESHAP analysis codified in CAA 112(f)(2)(B), we proposed that the risk is acceptable and the requirements in the 2002 POTW NESHAP provide an ample margin of safety to protect public health and prevent an adverse environmental effect.

    The risk assessment conducted for the POTW proposal estimated cancer, chronic noncancer, and acute noncancer risk for six of the 13 facilities in the source category and is summarized and referenced above. We confirmed the existence of seven additional POTW subject to the rule that were identified through public comments. For these seven POTW, we conducted a facility-wide risk assessment of potential cancer and chronic noncancer health effects. The results of this assessment indicate that all seven POTW have a facility-wide noncancer TOSHI less than 1, four of the POTW have a facility-wide cancer risk estimated less than 1-in-1 million, and three of the POTW have a facility-wide cancer risk estimated at or above 10-in-1 million. The highest facility-wide MIR was 60-in-1 million driven by formaldehyde from internal combustion engines which are covered under the NESHAP for the Stationary Reciprocating Internal Combustion Engines source category. For this POTW with the highest facility-wide MIR, the facility-wide emissions of formaldehyde are 22 tpy while the source category emissions of formaldehyde are 0.0026 tpy, which indicates that almost 100 percent of the estimated cancer risk is from emissions sources that are not part of the POTW source category. This ratio of source category emissions relative to facility-wide emissions of formaldehyde is the same for the other two POTW with facility-wide cancer risk estimated at or above 10-in-1 million. Therefore, it is reasonable to conclude that all 13 POTW have estimated cancer risk close to or below 1-in-1 million from source category emissions and we retain our proposed determination that risk is acceptable. Further, as discussed in the December 27, 2016, RTR proposal (81 FR 95373), we retain our determination that, considering the costs, economic impacts and technological feasibility of additional standards to reduce risk further, the 2002 POTW NESHAP provides an ample margin of safety to protect public health and prevents an adverse environmental effect. Details of this risk assessment are described in the Residual Risk Assessment for the Publicly Owned Treatment Works Source Category in Support of the October 2017 Risk and Technology Review Final Rule found in the docket for this rulemaking.

    Most of the commenters on the proposed risk review supported our risk acceptability and ample margin of safety determinations for the POTW NESHAP. Some commenters requested that we make changes to our residual risk review approach. However, we evaluated the comments and determined that no changes to our risk assessment methods or conclusions are warranted. A summary of these comments and responses are in the comment summary and response document, available in the docket for this action (Docket ID No. EPA-HQ-OAR-2016-0490).

    Since proposal, our risk assessment has been broadened to include additional POTW; however, the conclusions of our risk assessment and our determinations regarding risk acceptability, ample margin of safety, and adverse environmental effects have not changed. For the reasons explained in the proposed rule and discussed above, we determined that the risks from the POTW source category are acceptable, and that the current standards provide an ample margin of safety to protect public health and prevent an adverse environmental effect.

    B. Technology Review for the POTW Source Category

    As described in the December 27, 2016, RTR proposal (81 FR 95373), and as provided by CAA section 112(d)(6), our technology review focused on identifying developments in the practices, processes, and control technologies for the POTW source category. We concluded that there are two different control options that may be used at a POTW to reduce HAP emissions: pretreatment programs and add-on controls (i.e., covers or covers vented to a control device). While we proposed specific revisions to the standards, none of those revisions were the result of any identified developments in practices, processes, or control technologies beyond the programs and controls already in use at the time of the promulgation of the original 40 CFR part 63, subpart VVV rulemaking.

    Comment: We received various comments related to the information evaluated for the proposal. Two commenters stated that there is no technical basis that requires the EPA to revise the standards since there have been no technology advances since 1998 that warrant a change in the original MACT analysis. Several commenters provided additional information on specific control technologies, including biofilters, caustic scrubbers, and carbon absorbers. One of these commenters stated that biofilters are not reliable control devices in the context of a POTW because they are designed for stable operating conditions. In contrast, another commenter provided information that biofilters might have the ability to reduce HAP in addition to hydrogen sulfide (H2S) and volatile organic compounds (VOC). Additional comments on the technology review can be found in section 3 of the response to comments document in the docket for this rule (EPA-HQ-OAR-2016-0490).

    Response: The EPA conducted a literature review and evaluated available studies and publications on the use of add-on controls and process modifications that are used to reduce emissions from POTW wastewater collection and treatment operations. As noted by the commenters, these technologies include biotrickling filters, the use of covers and ducting of the headspace vent stream to caustic scrubbers and carbon adsorbers, and biofiltration/biofilters. These types of technologies have been used historically at POTW where they provide a relatively high degree of H2S control for the purpose of preventing odor. As documented in the technology review memorandum and reflected in the comments received on the proposed rule, the efficacy of these technologies to reduce HAP emissions is highly variable and dependent on site-specific operating parameters. Our conclusion is that the experience with biofilters for controlling organics at POTW is at the experimental and pilot scale and that this technology has not been demonstrated to be commercially available and effective for controlling the range of HAP emitted by POTW. Thus, we do not consider this technology to be a development in practices, processes, or control technologies for purposes of this technology review. Scrubbers are generally not used to control emissions of organic constituents, and while carbon adsorbers may be effective at HAP control in certain applications, as used in POTW, they are generally not designed for HAP control. Nevertheless, 40 CFR part 63, subpart VVV allows flexibility for POTW to develop site-specific control strategies to meet any applicable requirements, and such strategies could include the use of biologic filters and carbon adsorbers that can achieve the required control levels.

    As stated in section III.B of this preamble, we did not identify any developments in practices, processes, or control technology with respect to programs and controls already in use when the 2002 POTW NESHAP was promulgated that warrant revisions to the standards as part of the technology review of the POTW NESHAP.

    C. Applicability Criteria

    The 2002 POTW NESHAP established three criteria (40 CFR 63.1580(a)(1), (2), and (3)) for determining what POTW are subject to the rule. Specifically, the following criteria must all be true: (1) You own or operate a POTW that includes a POTW treatment plant; (2) the POTW is a major source of HAP emissions, or an industrial POTW regardless of the HAP emissions; and (3) the POTW is required to develop and implement a pretreatment program as defined by 40 CFR 403.8. The EPA proposed to revise the applicability criteria in order to clarify the original intent of the rule. Specifically, we proposed to revise the first and second criteria in 40 CFR 63.1580(a)(1) and (2) to state that your POTW is subject to the POTW NESHAP if “(1) You own or operate a POTW that is a major source of HAP emissions; or (2) you own or operate a Group 1 POTW regardless of whether or not it is a major source of HAP.” As stated in the proposal, we proposed this revision because we found several instances where a POTW might not realize they are subject to the standards, or where the applicability criteria could be misinterpreted to exclude facilities that are covered by the rule. See 81 FR 95377.

    The third applicability criterion in the 2002 POTW NESHAP states that “(3) Your POTW is required to develop and implement a pretreatment program as defined by 40 CFR 403.8 (for a POTW owned or operated by a municipality, state, or intermunicipal or interstate agency), or your POTW would meet the general criteria for development and implementation of a pretreatment program (for a POTW owned or operated by a department, agency, or instrumentality of the Federal government).” We proposed revising the third criterion in 40 CFR 63.1580(a)(3) to state “You are subject to this subpart if your POTW has a design capacity to treat at least 5 million gallons of wastewater per day (MGD) and treats wastewater from an industrial user, and either paragraph (a)(1) or (a)(2) is true.” This proposed revision removed the requirement that a POTW must already have a pretreatment program in place in order to be subject to the rule. The proposed revisions were intended to clarify the intent of the rule, which was to limit applicability to POTW that treat at least 5 MGD and wastewater from industrial users.

    Comment: We received numerous comments that raised specific concerns related to these proposed changes. First, commenters disagreed that the proposed changes were necessary and stated that the proposed changes created confusion and changed the scope of affected sources. One commenter stated that the applicability of 40 CFR part 63, subpart VVV has been well-defined for over 17 years, and if sources are confused, the EPA has methods to correct any confusion without making rule changes.

    Several commenters specifically objected to the proposed change that removed pretreatment from the third applicability criterion and made it a requirement of the rule. These commenters stated that removing pretreatment as an applicability criterion and making it a requirement changes the source category that the EPA intended to control. One state commented that this proposed change would cause an additional 12 POTW in their state to become subject to the rule. The commenter explained that because the state (not the POTW) implements the National Pollutant Discharge Elimination System (NPDES) pretreatment program, the original rule does not apply to any POTW in that state.

    Response: As stated in the proposal, the EPA did not intend to expand the applicability criteria from the 2002 POTW NESHAP. After consideration of the comments received, we agree that implementing the proposed changes to rule applicability could have caused confusion among the regulated community without a demonstrable environmental benefit. Therefore, at this time, we are not making any substantive change to the 2002 POTW NESHAP third applicability criterion and are not adopting the proposed applicability criterion of 5 MGD. However, it is important to note that the requirements in the National Pretreatment Program do establish a 5 MGD threshold for applicability.

    In response to the apparent potential for misinterpretation of the regulatory text that is reflected in the state's comment, we are making one minor change to clarify our interpretation and the intent of 40 CFR 63.1580(a)(3). In developing the 2002 POTW NESHAP, we wrote the rule to apply to POTW that receive a significant amount of HAP-containing waste from industrial or commercial facilities. In developing the rule language, we sought to define such POTW by using a regulatory criterion that was already established and well understood in the industry. We selected the criterion that the POTW be subject to a pretreatment program under the NPDES program because this criterion would encompass industrial and commercial wastes with HAP that pass through the POTW untreated and that could present a safety or health concern to POTW workers. In adopting this criterion, we did not limit applicability based on the entity that administers the program. In other words, the criterion encompasses every POTW that receives a waste stream that is subject to pretreatment standards, regardless of whether the standards are prescribed by the POTW itself or by a state or federal regulatory body. Thus, to make sure that the regulatory text is properly read, we have revised 40 CFR 63.1581(a)(3) to make clear that a POTW is subject to this rule if either (1) the POTW is required to develop and implement a pretreatment program as defined by 40 CFR 403.8, or (2) the POTW meets the general criteria for development and implementation of a pretreatment program, even if does not develop and implement the pretreatment program itself. Specifically, we have removed the parenthetical text in 40 CFR 63.1580(a)(3) that limited the first part of the third criterion to POTW owned or operated by a municipality, state, or intermunicipal or interstate agency and limited the second part of the third criterion to POTW owned or operated by a department, agency, or instrumentality of the federal government.

    D. Emissions From Collection Systems

    In the 2016 proposal, we stated that HAP emissions from collection systems should be included when determining whether the POTW is a major source, and therefore, subject to the rule. Specifically, we stated that the 2002 applicability criteria in 40 CFR 63.1580(a)(2) provided that emissions from the entire POTW source category must be considered when determining whether the POTW is a major source of HAP emissions, and not just the emissions from the POTW treatment plant (i.e., the portion of the POTW designed to provide treatment of municipal sewage or industrial waste).

    Comment: Several commenters opposed including emissions from collection systems in the determination of whether a POTW is a major source. The commenters stated that collection systems/sewers may include hundreds or thousands of miles of sewers and other equipment, are not always under the jurisdiction of the POTW, and are typically owned by another entity.

    We also received comments that stated the inclusion of emissions from collection systems for major source determination is inconsistent with the federal definition of a major source. One commenter stated that expansion of the major source definition to include collection sewers as part of the affected source is not authorized under section 112 of the CAA. The commenter also stated that the equipment that collect and convey wastewater to a POTW treatment plant do not reasonably constitute a “building, structure, facility, or installation” as specified in the definition of a stationary source in section 112(a)(3) of the CAA, are clearly not within a contiguous area under common control, and should not be considered a single source. Commenters noted that the determination of a major source of HAP emissions should be limited to emission sources within the fence line of each treatment plant, which would be consistent with the fact that the emission fraction requirement of the proposed POTW NESHAP is limited to emissions within the treatment plant. Further, one commenter contended that excluding collection system emissions in POTW major source determinations is also supported by Alabama Power Co. v. Costle and EPA's response to that decision.

    Commenters also noted that the emission data reviewed by the EPA in developing the proposed rule represented the HAP emissions from the POTW treatment plant only. One commenter noted that the risk assessment did not include emissions from collection systems. Several commenters disagreed with the EPA's statement in the preamble to the proposed rule that collection systems may have significant HAP emissions. Some commenters suggested that emissions from collection systems are insignificant and in some cases collection systems are operated under a vacuum to control odors. However, none of the commenters provided data to demonstrate the level of HAP emissions from collection systems.

    Response: Considering these comments, the EPA is not taking final action at this time on any changes to the emission sources that must be considered when determining if a POTW is a major source of HAP emissions. Specifically, the EPA is not taking action on whether emissions from collection systems should be included in the total HAP emissions from a POTW. The determination of source boundaries is a site-specific and often a complex determination. Facilities work with their permitting authority to consider factors such as whether activities and equipment are in a contiguous area and whether they are under common control. In contemplating the comments, the EPA has decided that we do not have enough information on individual POTW, including information on the jurisdiction of the control of collection system equipment or information on whether this equipment should be considered contiguous with the POTW treatment plant. Also, data on HAP emissions from collection systems are not well understood, and we are not aware of accepted methods for measuring or calculating emissions from collection systems at this time. In addition, we understand that these source boundary determinations have already been made for the approximately 16,000 POTW through Title V applicability assessment. For these reasons, we are not taking final action at this time to change these determinations. We may take action in the future if we obtain additional information on source boundary issues (i.e., common control, contiguous area), HAP emissions, and other information related to the issues described above.

    With respect to new sources, we expect new sources to consult their permitting authorities on these matters as they plan for new construction. The EPA considers these determinations on source boundaries to be appropriately under the jurisdiction of the permitting authority. Accordingly, to avoid regulatory disruption, this final rule takes no action to change the definition of POTW. The definition of POTW remains the same as originally promulgated and continues to include “. . . any intercepting sewers, outfall sewers, sewage collection systems, pumping, power and other equipment.” Likewise, we are not taking final action at this time to revise the originally promulgated definition of the affected source. The definition of affected source continues to mean the “group of all equipment that comprise the POTW treatment plant.”

    E. Pretreatment Requirements

    As stated in section IV.C of this preamble, the EPA proposed removing pretreatment from the applicability criteria and making it a control requirement for new and existing sources. We proposed adding pretreatment requirements in the rule because pretreatment would reduce HAP emissions from the entire source category (i.e., collection systems and the treatment plant) by limiting the quantity of HAP in the wastewater before it is discharged to the collection system. The intent of this requirement was to reduce the pollutant loading into the POTW in order to reduce emissions throughout all stages of treatment.

    Comment: Several commenters objected to the EPA requiring a pretreatment program for HAP emissions. Commenters disagreed with the EPA's contention that a pretreatment program will reduce emissions of HAP by reducing the presence of toxic gases. Specifically, commenters noted that a “pretreatment program under CAA Section 112 is not the same as a pretreatment program under the Clean Water Act (CWA)”, as 40 CFR 403 authorizes POTW to set pretreatment requirements for air contaminants for worker and plant safety, and to prevent interference and pass through. One commenter contended that the proposed rule expands the CAA regulatory framework into the CWA National Pretreatment Program without a legal basis.

    Additionally, several commenters opposed requiring POTW to develop local limits and expressed concerns about the way in which local limits should be determined. Instead, commenters suggested that the EPA establish wastewater concentration limits for HAP to identify pollutants that may need local limits. One commenter stated that the EPA should either “regulate industrial users directly for HAP or provide technically-based wastewater concentrations for HAP that POTW could use for screening (where analytical methods exist under 40 CFR part 136)” to determine the need for establishing local limits.

    Commenters also expressed concerns about the costs related to requiring pretreatment programs wherein POTW evaluate and set local limits for volatile organic HAP. The commenters stated that developing local limits to identify pollutants of concern, as well as identify potential pretreatment controls, would require significant time and that the significant costs these requirements would impose on POTW have not been quantified or justified. In contrast, one commenter stated that categorical limits set by the EPA pursuant to the CWA for certain industries could merit consideration, but additional analysis is required.

    Response: In response to these comments, we are not taking final action at this time to require pretreatment as a control requirement for the revised NESHAP. As explained in section IV.C of this preamble, we are not changing the applicability criteria for 40 CFR part 63, subpart VVV. The existence of a pretreatment program under the CWA will continue to be one of the three rule applicability criteria.

    The EPA Office of Water is responsible for administering the pretreatment program and updates the requirements of the pretreatment program based on the best available technology and taking into account cost effectiveness. As the pretreatment requirements are modified through future updates, additional HAP reductions may occur. Because all of the POTW that are subject to the rule already have pretreatment programs, specifically requiring pretreatment under the NESHAP would not reduce HAP emissions further, but could cause confusion and increase compliance costs. Thus, we are not finalizing any revisions at this time to impose additional pretreatment requirements prior to discharging a wastewater stream to a receiving POTW. Pretreatment will continue to be handled under the authority of the CWA. By retaining the existing regulatory structure of the NESHAP, the EPA avoids redundancy and confusion in having pretreatment requirements included in both air and water permits.

    F. HAP Fraction Emitted for Existing Group 1 and Group 2 Sources

    In the 2016 proposal, we proposed that existing Group 1 and Group 2 POTW operate with an annual rolling average HAP fraction emitted from primary treatment units of 0.08 or less. As stated in the proposal, we believed that the existing POTW we knew about could meet this standard without the need for additional control.

    Comment: We received numerous comments that opposed the proposed HAP fraction emission limit, and we received additional data to suggest the proposed 0.08 HAP fraction limit was not appropriate and did not accurately account for variability in HAP loading at individual POTW.

    Several commenters objected that merely doubling the single largest HAP fractions from the two available sources was not a scientifically or statistically valid method for setting the emission limit and stated that the EPA had provided no support for using the 2x factor to account for variability of emissions. For example, the commenters collectively pointed out that the two POTW on which the proposed standard was based were operating at half capacity, that the available data represent merely a snapshot in time, that other potentially regulated POTW might emit higher HAP fractions, and that the specific combination of HAP measured by the two POTW might not be representative of HAP emitted by other POTW. One commenter suggested that due to the uncertainty associated with such a small data set, the EPA should use a larger multiplier for setting a standard.

    Additionally, commenters stated that the EPA had underestimated the cost of achieving compliance with the 0.08 HAP fraction emitted standard. Specifically, commenters stated that in order to comply, they would incur capital and operating costs, in addition to the recordkeeping and reporting costs that the EPA accounted for in the proposal. One commenter stated that they would potentially need to install covers and controls in order to meet the HAP fraction emitted limit, which would be an expense of $20 to $30 million with negligible emission reductions. Two commenters argued that the compliance cost for the proposed standard was not warranted given the low public health risk that the EPA estimated. Commenters further recommended that the EPA gather more complete data from the universe of affected sources, conduct statistical analysis of those data, and determine a suitable standard based on an acceptable level of risk and variability of the data.

    Response: After reviewing public comments and re-evaluating our analysis, we are not taking final action to adopt the 0.08 HAP fraction emitted limit for existing Group 1 and Group 2 POTW at this time. The proposed HAP fraction emitted limit did not reflect the performance or application of a specific control technology. At proposal, we envisioned this limit as an enforceable numerical limit that would ensure performance consistent with that being achieved by existing sources. However, after consideration of the information provided in public comment, we now recognize that we do not have the comprehensive data on existing POTW that are necessary to conduct a sufficiently robust analysis. The HAP fraction emitted by different POTW is influenced by individual HAP vapor pressures, pollutant loadings, HAP concentrations, sample measurement and analytical techniques, and ambient conditions, which differ from POTW to POTW. Testing of influent loadings is limited by applicable test methods, by compounds identified by dischargers, and by the HAP for which air permits require sampling. Without sufficient data, we cannot determine an appropriate HAP fraction emitted limit, considering the variability in operating conditions that is likely to occur across even well-operated POTW. Moreover, at this time, we are unable to analyze the control costs for all affected sources or the emissions reductions that might be achieved. For all of these reasons, we are not taking final action on the proposed 0.08 HAP fraction at this time, but we may in the future consider promulgating a limit if we obtain further information on the issues discussed above.

    G. New and Existing Group 1 POTW

    In addition to proposing a HAP fraction for existing Group 1 POTW, we also proposed other changes to the requirements for Group 1 POTW.

    The 2002 POTW NESHAP required existing Group 1 POTW to comply only with the requirements of the other NESHAP for which they are acting as an agent of control for the industrial user. We proposed that existing Group 1 POTW must meet both the requirements of the other NESHAP for which they are acting as an agent of control for an industrial user and the proposed requirements for existing Group 2 POTW in the POTW NESHAP (i.e., the proposed 0.08 HAP fraction emitted limit discussed in IV.F, above).

    The 2002 POTW NESHAP required new and reconstructed (which we are now referring to as “new”) Group 1 POTW to comply with the more stringent of the following: (1) The requirements of the other NESHAP for which they are acting as an agent of control for the industrial user; or (2) the requirements applicable to new Group 2 POTW, which allowed the POTW to choose to meet either a requirement to (a) cover all equipment and route emissions through a closed vent system to a control device; or (b) meet a HAP fraction emission limit of 0.014 for emissions from all primary treatment units. We proposed that new Group 1 POTW comply with the other NESHAP for which they are acting as an agent of control for an industrial user and the requirements for new Group 2 POTW in the 2002 POTW NESHAP. (Note that we did not propose, and are not finalizing, any revisions to the requirements for new Group 2 POTW.)

    1. Existing Group 1 POTW

    Comment: We received comments from one of the existing Group 1 POTW that expressed concern that by imposing the HAP fraction emitted limit on the existing Group 1 POTW with no alternative compliance option, the EPA had ignored existing POTW with covers and controls already in place. The commenter stated that new Group 1 POTW have the option of either installing covers or complying with the HAP fraction limit. However, the EPA did not provide that flexibility to existing Group 1 POTW, thereby imposing an additional HAP fraction limit without a cover option and more onerous recordkeeping and reporting requirements. The commenter stated that the EPA should provide existing Group 1 POTW that already use covers the option of adding controls in lieu of complying with a HAP fraction limit.

    Response: The EPA is not taking final action on the proposed changes for existing Group 1 sources at this time. As explained in section IV.F of this preamble, we are not setting a HAP fraction limit for existing Group 1 or Group 2 POTW at this time; therefore, no additional requirements are being added for existing Group 1 POTW in the POTW NESHAP. Thus, as required by the 2002 POTW NESHAP, an existing Group 1 POTW must comply with the control requirements as specified in the appropriate NESHAP for the industrial user(s).

    2. New Group 1 POTW

    We did not receive any comment on our proposed revision to the requirements for new Group 1 POTW. We proposed, and are finalizing, that new Group 1 POTW must (1) meet the requirements of the other NESHAP for which they act as an agent of control for an industrial user and (2) either (a) cover all equipment and route emissions through a closed vent system to a control device or (b) meet a HAP fraction emission limit of 0.014 for emissions from all primary treatment units. See 81 FR 95375 for our rationale for this change. Because we received no adverse comment on our proposal, we are finalizing these requirements as proposed.

    V. Summary of Cost, Environmental, and Economic Impacts and Additional Analyses Conducted A. What are the affected facilities?

    The EPA estimates, based on the responses to the 2015 ICR, the 2011 and 2014 National Emissions Inventory (NEI), and public comments received, that there are 13 POTW that are engaged in treatment of industrial wastewater and are currently subject to the POTW NESHAP. Two of these facilities are considered Group 1 POTW, while the remaining eleven are considered Group 2 POTW. All 13 currently subject to the POTW NESHAP have already met the notification requirements for existing Group 1 and Group 2 POTW. The EPA is not currently aware of any planned new Group 1 or Group 2 POTW that will be constructed or any existing Group 1 or Group 2 POTW that will be reconstructed.

    B. What are the air quality impacts?

    The EPA estimates that annual organic HAP emissions from the 13 POTW subject to the rule are approximately 35 tpy. We expect no emissions of inorganic HAP from this category. The EPA does not anticipate any additional emission reductions from the final changes to the rule, and there are no anticipated new or reconstructed facilities.

    C. What are the cost impacts?

    The 13 entities subject to this proposal will incur only minimal costs related to familiarizing themselves with this rule—estimated to be a one-time total cost of $790 for all 13 entities. For further information on the requirements of this rule, see section IV of this preamble. For further information on the costs associated with the requirements of this rule, see the document titled Economic Impact Analysis for the National Emission Standards for Hazardous Air Pollutants: Publicly Owned Treatment Works Risk and Technology Review, in the docket. The memorandum titled Technology Review Memorandum for the Publicly Owned Treatment Works Source Category, in the docket for this action, presents costs estimated associated with the regulatory options that were not selected for inclusion in this final rule (Docket ID No. EPA-HQ-OAR-2016-0490).

    D. What are the economic impacts?

    The economic impact analysis is designed to inform decision makers about the potential economic consequences of a regulatory action. For this rule, the EPA estimated the annual cost of recordkeeping and reporting as a percentage of reported sewage fees received by the affected POTW. For the revisions promulgated in this final rule, costs are expected to be less than 0.001 percent of collected sewage fees, based on publicly available financial reports from the fiscal year ending in 2015 for the affected entities.

    In addition, the EPA performed a screening analysis for impacts on small businesses by comparing estimated population served by the affected entities to the population limit set forth by the U.S. Small Business Administration. The screening analysis found that the population served for all affected entities is greater than the limit qualifying a public entity as a small business.

    More information and details of the EPA's analysis of the economic impacts, including the conclusions stated above, are provided in the technical document, Final Economic Impact Analysis for the Publicly Owned Treatment Works National Emissions Standards for Hazardous Air Pollutants Risk and Technology Review, which is available in the docket for this final rule (Docket ID No. EPA-HQ-OAR-2016-0490).

    E. What are the benefits?

    We do not anticipate any significant reductions in HAP emissions as a result of these final amendments. However, we think that the amendments will help to enhance the clarity of the rule, which can improve compliance and minimize emissions.

    F. What analysis of environmental justice did we conduct?

    We examined the potential for any environmental justice concerns that might be associated with this source category by performing a demographic analysis of the population close to the six POTW that were modeled for source category risk.4 In this analysis, we evaluated the distribution of HAP-related cancer and non-cancer risks from the POTW source category across different social, demographic, and economic groups within the populations living near facilities identified as having the highest risks. The methodology and the results of the demographic analyses are included in a technical report, Risk and Technology Review—Analysis of Socio-Economic Factors for Populations Living Near POTW Facilities, available in the docket for this action (Docket ID No. EPA-HQ-OAR-2016-0490). The results for various demographic groups are based on the estimated risks from actual emissions levels for the population living within 50 kilometers (km) of the facilities.

    4 See section IV.A of this preamble for an explanation of the residual risk assessment.

    The results of the POTW source category demographic analysis indicate that actual emissions from the source category expose no person to a cancer risk at or above 1-in-1 million or to a chronic non-cancer TOSHI greater than 1. Therefore, we conclude that this final rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. However, this final rule may provide additional benefits to these demographic groups by improving the compliance and implementation of the NESHAP. The demographics of the population living within 50 km of POTW can be found in Table 2 of the document titled Risk and Technology Review—Analysis of Socio-Economic Factors for Populations Living Near Publicly Owned Treatment Works, available in the docket for this final rule (Docket ID No. EPA-HQ-OAR-2016-0490).

    G. What analysis of children's environmental health did we conduct?

    This action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The results of the POTW source category demographic analysis indicate that actual emissions from the source category expose no person to a cancer risk at or above 1-in-1 million or to a chronic non-cancer TOSHI greater than 1. Therefore, the analysis shows that actual emissions from the POTW source category are not expected to have an adverse human health effect on children.

    VI. Statutory and Executive Order Reviews

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

    A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

    This action is not a significant regulatory action and was therefore not submitted to the Office of Management and Budget (OMB) for review.

    B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

    This action is not an Executive Order 13771 regulatory action because this action is not significant under Executive Order 12866.

    C. Paperwork Reduction Act (PRA)

    The information collection activities in this rule have been submitted for approval to the OMB under the PRA. The ICR document that the EPA prepared has been assigned EPA ICR number 1891.08. You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here. The information collection requirements are not enforceable until OMB approves them.

    The information to be collected includes the initial notification that the POTW is subject to the rule. However, as stated in this preamble, the 13 sources that we already know about have already met this initial notification requirement and are not required to submit an additional notification. The information will be used to identify sources subject to the standards.

    Respondents/affected entities: The respondents to the recordkeeping and reporting requirements are owners and operators of POTW. The NAICS code for the respondents affected by the standard is 221320 (Sewage Treatment Facilities), which corresponds to the United States Standard Industrial Classification code 4952 (Sewerage Systems).

    Respondent's obligation to respond: Respondents are obligated to respond in accordance with the notification requirements under 40 CFR 63.1591(a).

    Estimated number of respondents: Zero.

    Frequency of response: One response.

    Total estimated burden: 0 hours (per year). Burden is defined at 5 CFR 1320.3(b).

    Total estimated cost: $0 (per year), includes $0 annualized capital or operation and maintenance costs.

    An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9. When OMB approves this ICR, the Agency will announce that approval in the Federal Register and publish a technical amendment to 40 CFR part 9 to display the OMB control number for the approved information collection activities contained in this final rule.

    D. Regulatory Flexibility Act (RFA)

    I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. This action will not impose any requirements on small entities. There are no small entities affected in this regulated industry. See the technical document, Final Economic Impact Analysis for the National Emission Standards for Hazardous Air Pollutants: Publicly Owned Treatment Works Risk and Technology Review, which is available in the docket for this final rule (Docket ID No. EPA-HQ-OAR-2016-0490) for more detail.

    E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely affect small governments. The action imposes no enforceable duty on any state, local, or tribal governments or the private sector.

    F. Executive Order 13132: Federalism

    This action does not have federalism implications. It will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government.

    G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications as specified in Executive Order 13175. As discussed in section II.B.1 of this preamble, we have identified only 13 POTW that are subject to this final rule and none of those POTW are owned or operated by tribal governments. Thus, Executive Order 13175 does not apply to this action.

    H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    The action is not subject to Executive Order 13045 because it is not economically significant as defined in Executive Order 12866, and because the EPA does not believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. This action's health and risk assessments are contained in sections III.A and B and sections IV.A and B of this preamble and the Residual Risk Report memorandum contained in the docket for this rulemaking.

    I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

    This action is not subject to Executive Order 13211 because it is not a significant regulatory action under Executive Order 12866.

    J. National Technology Transfer and Advancement Act (NTTAA)

    This rulemaking does not involve technical standards.

    K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    The EPA believes that this action does not have disproportionately high and adverse human health or environmental effects on minority populations, low-income populations, and/or indigenous peoples, as specified in Executive Order 12898 (59 FR 7629, February 16, 1994).

    The documentation for this decision is contained in section III.A.6 of this preamble and in the corresponding technical report, Risk and Technology Review—Analysis of Socio-Economic Factors for Populations Living Near Publicly Owned Treatment Works, available in the docket for this action. The proximity results indicate, for eight of the 11 demographic categories, that the population percentages within 5 km and 50 km of source category emissions are greater than the corresponding national percentage for those same demographics. However, the results of the risk analysis presented in section III.A.6 of this preamble and in the corresponding technical report indicate that actual emissions from the source category expose no person to a cancer risk at or above 1-in-1 million or to a chronic non-cancer TOSHI greater than 1.

    L. Congressional Review Act (CRA)

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

    List of Subjects in 40 CFR Part 63

    Environmental protection, Administrative practice and procedures, Air pollution control, Hazardous substances, Intergovernmental relations, Reporting and recordkeeping requirements.

    Dated: October 16, 2017. E. Scott Pruitt, Administrator.

    For the reasons stated in the preamble, the Environmental Protection Agency amends part 63 of title 40, chapter I, of the Code of Federal Regulations as follows:

    PART 63—NATIONAL EMISSION STANDARDS FOR HAZARDOUS AIR POLLUTANTS FOR SOURCE CATEGORIES 1. The authority citation for part 63 continues to read as follows: Authority:

    42 U.S.C. 7401, et seq.

    2. Part 63 is amended by revising subpart VVV to read as follows: Subpart VVV—National Emission Standards for Hazardous Air Pollutants: Publicly Owned Treatment Works Applicability Sec. 63.1580 Am I subject to this subpart? 63.1581 Does the subpart distinguish between different types of POTW treatment plants? Requirements for Group 1 POTW Treatment Plants 63.1582 [Reserved] 63.1583 What are the emission points and control requirements for a Group 1 POTW treatment plant? 63.1584 [Reserved] 63.1585 How does a Group 1 POTW treatment plant demonstrate compliance? Requirements for Group 1 and Group 2 POTW Treatment Plants 63.1586 What are the emission points and control requirements for a Group 1 or Group 2 POTW? 63.1587 When do I have to comply? 63.1588 How do Group 1 and Group 2 POTW treatment plants demonstrate compliance? 63.1589 What records must I keep? 63.1590 What reports must I submit? 63.1591 What are my notification requirements? 63.1592 Which General Provisions apply to my POTW treatment plant? 63.1593 [Reserved] 63.1594 Who enforces this subpart? 63.1595 List of definitions. Table 1 to Subpart VVV of Part 63—Applicability of 40 CFR part 63 General Provisions to Subpart VVV Table 2 to Subpart VVV of Part 63—Compliance Dates and Requirements Subpart VVV—National Emission Standards for Hazardous Air Pollutants: Publicly Owned Treatment Works Applicability
    § 63.1580 Am I subject to this subpart?

    (a) You are subject to this subpart if the following are all true:

    (1) You own or operate a publicly owned treatment works (POTW) that includes an affected source (§ 63.1595);

    (2) The affected source is located at a Group 2 POTW which is a major source of HAP emissions, or at any Group 1 POTW regardless of whether or not it is a major source of HAP; and

    (3) Your POTW is required to develop and implement a pretreatment program as defined by 40 CFR 403.8, or your POTW meets the general criteria for development and implementation of a pretreatment program.

    (b) If your existing POTW treatment plant is not located at a major source as of October 26, 1999, but thereafter becomes a major source for any reason other than reconstruction, then, for the purpose of this subpart, your POTW treatment plant would be considered an existing source.

    Note to paragraph (b):

    See § 63.2 of the National Emission Standards for Hazardous Air Pollutants (NESHAP) General Provisions in subpart A of this part for the definitions of major source and area source.

    (c) If you commence construction or reconstruction of your POTW treatment plant after December 1, 1998, then the requirements for a new POTW apply.

    § 63.1581 Does the subpart distinguish between different types of POTW treatment plants?

    Yes, POTW treatment plants are divided into two subcategories: Group 1 POTW treatment plants and Group 2 POTW treatment plants, as described in paragraphs (a) through (c) of this section.

    (a) Your POTW is a Group 1 POTW treatment plant if an industrial user complies with its NESHAP by using the treatment and controls located at your POTW treatment plant. Your POTW treatment plant accepts the regulated waste stream and provides treatment and controls as an agent for the industrial user. Group 1 POTW treatment plant is defined in § 63.1595.

    (b) Your POTW is a Group 2 POTW treatment plant if your POTW treats wastewater that is not subject to control by another NESHAP or the industrial user does not comply with its NESHAP by using the treatment and controls located at your POTW treatment plant. “Group 2 POTW treatment plant” is defined in § 63.1595.

    (c) If, in the future, an industrial user complies with its NESHAP by using the treatment and controls located at your POTW treatment plant, then your Group 2 POTW treatment plant becomes a Group 1 POTW treatment plant on the date your POTW begins treating that regulated industrial wastewater stream.

    Requirements for Group 1 POTW Treatment Plants
    § 63.1582 [Reserved]
    § 63.1583 What are the emission points and control requirements for a Group 1 POTW treatment plant?

    (a) The emission points and control requirements for an existing Group 1 POTW treatment plant are specified in the appropriate NESHAP for the industrial user(s).

    (b) The emission points and control requirements for a new Group 1 POTW treatment plant are both those specified by the appropriate NESHAP which apply to the industrial user(s) who discharge their waste for treatment to the POTW, and those emission points and control requirements set forth in § 63.1586(b) or (c), as applicable.

    (c) If your existing or new Group 1 POTW treatment plant accepts one or more specific regulated industrial waste streams as part of compliance with one or more other NESHAP, then you are subject to all the requirements of each appropriate NESHAP for each waste stream.

    (d) At all times, the POTW must operate and maintain any affected source, including associated air pollution control equipment and monitoring equipment, in a manner consistent with safety and good air pollution control practices for minimizing emissions. The general duty to minimize emissions does not require the POTW to make any further efforts to reduce emissions if levels required by the applicable standard have been achieved. Determination of whether a source is operating in compliance with operation and maintenance requirements will be based on information available to the Administrator, which may include, but is not limited to, monitoring results, review of operation and maintenance procedures, review of operation and maintenance records, and inspection of the source.

    § 63.1584 [Reserved]
    § 63.1585 How does a Group 1 POTW treatment plant demonstrate compliance?

    (a) An existing Group 1 POTW treatment plant demonstrates compliance by operating treatment and control devices which meet all requirements specified in the appropriate NESHAP. Requirements may include performance tests, routine monitoring, recordkeeping, and reporting.

    (b) A new Group 1 POTW treatment plant demonstrates compliance by operating treatment and control devices which meet all requirements specified in the appropriate NESHAP and by meeting the requirements specified in § 63.1586, as applicable, as well as the applicable requirements in §§ 63.1588 through 63.1595.

    Requirements for Group 1 and Group 2 POTW Treatment Plants
    § 63.1586 What are the emission points and control requirements for a Group 1 or Group 2 POTW?

    (a) An existing Group 1 or Group 2 POTW treatment plant must comply with the initial notification requirements in § 63.1591(a).

    (b) Cover and control standard. Except as provided in paragraph (c) of this section, new Group 1 and Group 2 POTW treatment plants must install covers on the emission points up to, but not including, the secondary influent pumping station or the secondary treatment units. These emission points are treatment units that include, but are not limited to, influent waste stream conveyance channels, bar screens, grit chambers, grinders, pump stations, aerated feeder channels, primary clarifiers, primary effluent channels, and primary screening stations. In addition, all covered units, except primary clarifiers, must have the air in the headspace underneath the cover ducted to a control device in accordance with the standards for closed-vent systems and control devices in § 63.693 of subpart DD—National Emission Standards for Hazardous Air Pollutants from Off-site Waste and Recovery Operations of this part, except you may substitute visual inspections for leak detection rather than Method 21 of appendix A-7 of part 60 of this chapter. Covers must meet the following requirements:

    (1) Covers must be tightly fitted and designed and operated to prevent exposure of the wastewater to the atmosphere. This includes, but is not limited to, the absence of visible cracks, holes, or gaps in the roof sections or between the roof and the supporting wall; broken, cracked, or otherwise damaged seals or gaskets on closure devices; and broken or missing hatches, access covers, caps, or other closure devices.

    (2) If wastewater is in a treatment unit, each opening in the cover must be maintained in a closed, sealed position, unless plant personnel are present and conducting wastewater or sludge sampling, or equipment inspection, maintenance, or repair.

    (c) HAP fraction emitted standard. As an alternative to the requirements in paragraph (b) of this section, a new Group 1 and Group 2 POTW treatment plant may comply by demonstrating, for all emission points up to, but not including, the secondary influent pumping station or the secondary treatment units, that the annual rolling average HAP fraction emitted (calculated as specified in § 63.1588(c)(3)) does not exceed 0.014. You must demonstrate that for your POTW treatment plant, the sum of all HAP emissions from these units divided by the sum of all HAP mass loadings to the POTW treatment plant results in an annual rolling average of the HAP fraction emitted of no greater than 0.014. You may use any combination of pretreatment, wastewater treatment plant modifications, and control devices to achieve this performance standard.

    (d) At all times, the POTW must operate and maintain any affected source, including associated air pollution control equipment and monitoring equipment, in a manner consistent with safety and good air pollution control practices for minimizing emissions. The general duty to minimize emissions does not require the POTW to make any further efforts to reduce emissions if the requirements of the applicable standard have been met. Determination of whether a source is operating in compliance with operation and maintenance requirements will be based on information available to the Administrator, which may include, but is not limited to, monitoring results, review of operation and maintenance procedures, review of operation and maintenance records, and inspection of the source.

    § 63.1587 When do I have to comply?

    Sources subject to this subpart are required to achieve compliance on or before the dates specified in table 2 of this subpart.

    § 63.1588 How do Group 1 and Group 2 POTW treatment plants demonstrate compliance?

    (a) If you are complying with § 63.1586(b) by using covers, you must conduct the following inspections:

    (1) You must visually check the cover and its closure devices for defects that could result in air emissions. Defects include, but are not limited to, visible cracks, holes, or gaps in the roof sections or between the roof and the supporting wall; broken, cracked, or otherwise damaged seals or gaskets on closure devices; and broken or missing hatches, access covers, caps, or other closure devices.

    (2) You must perform an initial visual inspection within 60 calendar days of becoming subject to this NESHAP and perform follow-up inspections at least once per year, thereafter.

    (3) In the event that you find a defect on a cover on a treatment unit in use, you must repair the defect within 45 calendar days. If you cannot repair within 45 calendar days, you must notify the EPA or the delegated authority immediately and report the reason for the delay and the date you expect to complete the repair. If you find a defect on a cover on a treatment unit that is not in service, you must repair the defect prior to putting the treatment unit back in wastewater service.

    (b) If you own or operate a control device used to meet the requirements for § 63.1586(b), you must comply with the inspection and monitoring requirements of § 63.695(c) of subpart DD of this part.

    (c) To comply with the HAP fraction emitted standard specified in § 63.1586(c), you must develop, to the satisfaction of the Administrator, an Inspection and Monitoring Plan. This Inspection and Monitoring Plan must include, at a minimum, the following:

    (1) A method to determine the influent HAP mass loading, i.e., the annual mass quantity for each HAP entering the wastewater treatment plant.

    (2) A method to determine your POTW treatment plant's annual HAP emissions for all units up to, but not including, the secondary influent pumping station or the secondary treatment units. The method you use to determine your HAP emissions, such as modeling or direct source measurement, must:

    (i) Be approved by the Administrator for use at your POTW;

    (ii) Account for all factors affecting emissions from your POTW treatment plant including, but not limited to, emissions from wastewater treatment units; emissions resulting from inspection, maintenance, and repair activities; fluctuations (e.g., daily, monthly, annual, seasonal) in your influent wastewater HAP concentrations; annual industrial loading; performance of control devices; or any other factors that could affect your annual HAP emissions; and

    (iii) Include documentation that the values and sources of all data, operating conditions, assumptions, etc., used in your method result in an accurate estimation of annual emissions from your POTW treatment plant.

    (3) A method to demonstrate that your POTW treatment plant meets the HAP fraction emitted standard specified in § 63.1586(c), i.e., the sum of all HAP emissions from paragraph (c)(2) of this section divided by the sum of all HAP mass loadings from paragraph (c)(1) of this section results in a fraction emitted of 0.014 or less to demonstrate compliance with § 63.1586(c). The Inspection and Monitoring Plan must require, at a minimum, that you perform the calculations shown in paragraphs (c)(3)(i) through (viii) of this section within 90 days of the end of each month. This calculation shall demonstrate that your annual rolling average of the HAP fraction emitted is 0.014 or less when demonstrating compliance with § 63.1586(c).

    (i) Determine the average daily flow in million gallons per day (MGD) of the wastewater entering your POTW treatment plant for the month;

    (ii) Determine the flow-weighted monthly concentration of each HAP listed in Table 1 to subpart DD of this part that is reasonably anticipated to be present in your influent;

    (iii) Using the information in paragraphs (c)(3)(i) and (ii) of this section, determine a total annual flow-weighted loading in pounds per day (lbs/day) of each HAP entering your POTW treatment plant;

    (iv) Sum up the values for each individual HAP loading in paragraph (c)(3)(iii) of this section and determine a total annual flow-weighted loading value (lbs/day) for all HAP entering your POTW treatment plant for the current month;

    (v) Based on the current month's information in paragraph (c)(3)(iii) of this section along with source testing and emission modeling, for each HAP, determine the annual emissions (lbs/day) from all wastewater units up to, but not including, secondary treatment units;

    (vi) Sum up the values in paragraph (c)(3)(v) of this section and calculate the total annual emissions value for the month for all HAP from all wastewater treatment units up to, but not including, secondary treatment units;

    (vii) Calculate the HAP fraction emitted value for the month, using Equation 1 of this section as follows:

    ER26OC17.018 Where: femonthly = HAP fraction emitted for the previous month ∑E = Total HAP emissions value from paragraph (c)(3)(vi) of this section ∑L = Total annual loading from paragraph (c)(3)(iv) of this section

    (viii) Average the HAP fraction emitted value for the month determined in paragraph (c)(3)(vii) of this section, with the values determined for the previous 11 months, to calculate an annual rolling average of the HAP fraction emitted.

    (4) A method to demonstrate, to the satisfaction of the Administrator, that your POTW treatment plant is in continuous compliance with the requirements of § 63.1586(c). Continuous compliance means that your emissions, when averaged over the course of a year, do not exceed the level of emissions that allows your POTW to comply with § 63.1586(c). For example, you may identify a parameter(s) that you can monitor that assures your emissions, when averaged over the entire year, will meet the requirements in § 63.1586(c). Some example parameters that may be considered for monitoring include your wastewater influent HAP concentration and flow, industrial loading from your permitted industrial users, and your control device performance criteria. Where emission reductions are due to proper operation of equipment, work practices, or other operational procedures, your demonstration must specify the frequency of inspections and the number of days to completion of repairs.

    (d) Prior to receiving approval on the Inspection and Monitoring Plan, you must follow the plan submitted to the Administrator as specified in § 63.1590(f).

    § 63.1589 What records must I keep?

    (a) To comply with the cover and control standard specified in § 63.1586(b), you must prepare and maintain the records required in paragraphs (a)(1) through (4) of this section:

    (1) A record for each treatment unit inspection required by § 63.1588(a). You must include a treatment unit identification number (or other unique identification description as selected by you) and the date of inspection.

    (2) For each defect detected during inspections required by § 63.1588(a), you must record the location of the defect, a description of the defect, the date of detection, the corrective action taken to repair the defect, and the date the repair to correct the defect is completed.

    (3) If repair of the defect is delayed as described in § 63.1588(a)(3), you must also record the reason for the delay and the date you expect to complete the repair.

    (4) If you own or operate a control device used to meet the requirements for § 63.1586(b), you must comply with the recordkeeping requirements of § 63.696(a), (b), (g), and (h).

    (b) To comply with the HAP fraction emitted standard specified in § 63.1586(c), you must prepare and maintain the records required in paragraphs (b)(1) through (3) of this section:

    (1) A record of the methods and data used to determine your POTW treatment plant's annual HAP loading and HAP emissions as determined in § 63.1588(c)(1) and (2) as part of your Inspection and Monitoring Plan;

    (2) A record of the methods and data used to determine that your POTW treatment plant meets the HAP fraction emitted standard of 0.014 or less, as determined in § 63.1588(c)(3) as part of your Inspection and Monitoring Plan; and

    (3) A record of the methods and data that demonstrates that your POTW treatment plant is in continuous compliance with the requirements of § 63.1588(c)(4) to calculate annual emissions as specified in your Inspection and Monitoring Plan.

    (c) The POTW must record the malfunction information specified in paragraphs (c)(1) through (3) of this section.

    (1) In the event that an affected unit fails to meet an applicable standard, record the number of failures. For each failure, record the date, time, and duration of the failure.

    (2) For each failure to meet an applicable standard, record and retain a list of the affected sources or equipment, an estimate of the tons per year of each regulated pollutant emitted over any emission limit and a description of the method used to estimate the emissions.

    (3) Record actions taken to minimize emissions in accordance with § 63.1583(d) or § 63.1586(d) and any corrective actions taken to return the affected unit to its normal or usual manner of operation.

    (d) Any records required to be maintained by this part that are submitted electronically via the EPA's Compliance and Emissions Data Reporting Interface (CEDRI) may be maintained in electronic format. This ability to maintain electronic copies does not affect the requirement for facilities to make records, data, and reports available upon request to a delegated air agency or the EPA as part of an on-site compliance evaluation.

    § 63.1590 What reports must I submit?

    (a) An existing Group 1 POTW must meet the reporting requirements specified in the appropriate NESHAP for the industrial user(s).

    (b) A new Group 1 or Group 2 POTW must submit annual reports containing the information specified in paragraphs (b)(1) through (4) of this section, if applicable. You must submit annual reports following the procedure specified in paragraph (b)(5) of this section. For new units, the initial annual report is due 15 months after your POTW becomes subject to the requirements in this subpart and must cover the first 12 months of operation after your POTW becomes subject to the requirements of this subpart. Subsequent annual reports are due by the same date each year as the initial annual report and must contain information for the 12-month period following the 12-month period included in the previous annual report.

    (1) The general information specified in paragraphs (b)(1)(i) and (ii) of this section must be included in all reports.

    (i) The company name, POTW treatment plant name, and POTW treatment plant address, including county where the POTW is located; and

    (ii) Beginning and ending dates of the reporting period.

    (2) If you use covers to comply with the requirements of § 63.1586(b), you must submit the following:

    (i) The dates of each visual inspection conducted;

    (ii) The defects found during each visual inspection; and

    (iii) For each defect found during a visual inspection, how the defects were repaired, whether the repair has been completed, and either the date each repair was completed or the date each repair is expected to be completed.

    (3) If you comply with the HAP fraction emitted standard in § 63.1586(c), you must submit each value of the annual rolling average HAP fraction emitted as calculated in § 63.1588(c)(3)(vii) for the period covered by the annual report. Identify each value by the final month included in the calculation.

    (4) If a source fails to meet an applicable standard, report such events in the annual report. Report the number of failures to meet an applicable standard. For each instance, report the start date, start time, and duration of each failure, as well as a list of the affected sources or equipment. If you comply with the cover and control standard in § 63.1586(b), for each failure, the report must include the percent control achieved. If you comply with the HAP fraction emitted standard in § 63.1586(c), for each failure, the report must include the HAP fraction emitted. You must include an estimate of the tons per year of each regulated pollutant emitted over the emission limit and a description of the method used to estimate the emissions in the report.

    (5) You must submit the report to the Administrator at the appropriate address listed in § 63.13, unless the Administrator agrees to or species an alternate reporting method. Beginning on October 28, 2019 or once the reporting form has been available in CEDRI for 1 year, whichever is later, you must submit subsequent annual reports to the EPA via CEDRI. (CEDRI can be accessed through the EPA's Central Data Exchange (CDX)(https://cdx.epa.gov/)). You must use the appropriate electronic report template on the CEDRI Web site for this subpart or an alternate electronic file format consistent with the extensible markup language (XML) schema listed on the CEDRI Web site (https://www.epa.gov/electronic-reporting-air-emissions/compliance-and-emissions-data-reporting-interface-cedri). The date report templates become available in CEDRI will be listed on the CEDRI Web site. The reports must be submitted by the deadline specified in this subpart, regardless of the method in which the reports are submitted. If you claim that some of the information required to be submitted via CEDRI is confidential business information (CBI), you shall submit a complete report generated using the appropriate form in CEDRI or an alternate electronic file consistent with the extensible markup language (XML) schema listed on the EPA's CEDRI Web site, including information claimed to be CBI, on a compact disc, flash drive, or other commonly used electronic storage medium to the EPA. The electronic medium shall be clearly marked as CBI and mailed to U.S. EPA/OAQPS/CORE CBI Office, Attention: Group Leader, Measurement Policy Group, MD C404-02, 4930 Old Page Rd., Durham, NC 27703. The same file with the CBI omitted shall be submitted to the EPA via the EPA's CDX as described earlier in this paragraph.

    (c) If you own or operate a control device used to meet the cover and control standard in § 63.1586(b), you must submit the notifications and reports required by § 63.697(b), including a notification of performance tests; a performance test report; a malfunction report; and a summary report. These notifications and reports must be submitted to the Administrator, except for performance test reports. Within 60 calendar days after the date of completing each performance test (as defined in § 63.2) required by subpart DD of this part, you must submit the results of the performance test following the procedure specified in paragraphs (c)(1) through (3) of this section.

    (1) For data collected using test methods supported by the EPA's Electronic Reporting Tool (ERT) as listed on the EPA's ERT Web site (https://www.epa/gov/electronic-reporting-air-emissions/electronic-reporting-tool-ert) at the time of the test, you must submit the results of the performance test to the EPA via CEDRI. Performance test data must be submitted in a file format generated through the use of the EPA's ERT or an alternate electronic file format consistent with the XML schema listed on the EPA's ERT Web site.

    (2) For data collected using test methods that are not supported by the EPA's ERT as listed on the EPA's ERT Web site at the time of the test, you must submit the results of the performance test to the Administrator at the appropriate address listed in § 63.13 of subpart A of this part, unless the Administrator agrees to or specifies an alternate reporting method.

    (3) If you claim that some of the performance test information being submitted under paragraph (b)(1) of this section is CBI, you must submit a complete file generated through the use of the EPA's ERT or an alternate electronic file consistent with the XML schema listed on the EPA's ERT Web site, including information claimed to be CBI, on a compact disc, flash drive, or other commonly used electronic storage medium to the EPA. The electronic medium must be clearly marked as CBI and mailed to U.S. EPA/OAQPS/CORE CBI Office, Attention: Group Leader, Measurement Policy Group, MD C404-02, 4930 Old Page Rd., Durham, NC 27703. The same ERT or alternate file with the CBI omitted must be submitted to the EPA via the EPA's CDX as described in paragraph (c)(1) of this section.

    (d) You must comply with the delay of repair reporting required in § 63.1588(a)(3).

    (e) You may apply to the Administrator for a waiver of recordkeeping and reporting requirements by complying with the requirements of § 63.10(f). Electronic reporting to the EPA cannot be waived.

    (f) To comply with the HAP fraction emitted standard specified in § 63.1586(c), you must submit, for approval by the Administrator, an Inspection and Monitoring Plan explaining your compliance approach 90 calendar days prior to beginning operation of your new POTW or by April 24, 2018, whichever is later.

    (g) If you are required to electronically submit a report through the CEDRI in the EPA's CDX, and due to a planned or actual outage of either the EPA's CEDRI or CDX systems within the period of time beginning 5 business days prior to the date that the submission is due, you will be or are precluded from accessing CEDRI or CDX and submitting a required report within the time prescribed, you may assert a claim of EPA system outage for failure to timely comply with the reporting requirement. You must submit notification to the Administrator in writing as soon as possible following the date you first knew, or through due diligence should have known, that the event may cause or caused a delay in reporting. You must provide to the Administrator a written description identifying the date, time and length of the outage; a rationale for attributing the delay in reporting beyond the regulatory deadline to the EPA system outage; describe the measures taken or to be taken to minimize the delay in reporting; and identify a date by which you propose to report, or if you have already met the reporting requirement at the time of the notification, the date you reported. In any circumstance, the report must be submitted electronically as soon as possible after the outage is resolved. The decision to accept the claim of EPA system outage and allow an extension to the reporting deadline is solely within the discretion of the Administrator.

    (h) If you are required to electronically submit a report through CEDRI in the EPA's CDX and a force majeure event is about to occur, occurs, or has occurred or there are lingering effects from such an event within the period of time beginning five business days prior to the date the submission is due, the owner or operator may assert a claim of force majeure for failure to timely comply with the reporting requirement. For the purposes of this section, a force majeure event is defined as an event that will be or has been caused by circumstances beyond the control of the affected facility, its contractors, or any entity controlled by the affected facility that prevents you from complying with the requirement to submit a report electronically within the time period prescribed. Examples of such events are acts of nature (e.g., hurricanes, earthquakes, or floods), acts of war or terrorism, or equipment failure or safety hazard beyond the control of the affected facility (e.g., large scale power outage). If you intend to assert a claim of force majeure, you must submit notification to the Administrator in writing as soon as possible following the date you first knew, or through due diligence should have known, that the event may cause or caused a delay in reporting. You must provide to the Administrator a written description of the force majeure event and a rationale for attributing the delay in reporting beyond the regulatory deadline to the force majeure event; describe the measures taken or to be taken to minimize the delay in reporting; and identify a date by which you propose to report, or if you have already met the reporting requirement at the time of the notification, the date you reported. In any circumstance, the reporting must occur as soon as possible after the force majeure event occurs. The decision to accept the claim of force majeure and allow an extension to the reporting deadline is solely within the discretion of the Administrator.

    § 63.1591 What are my notification requirements?

    (a) You must submit an initial notification that your POTW treatment plant is subject to these standards as specified in paragraphs (a)(1) and (2) of this section.

    (1) If you have an existing Group 1 or Group 2 POTW treatment plant, you must submit an initial notification by October 26, 2018.

    (2) If you have a new Group 1 or Group 2 POTW treatment plant, you must submit an initial notification upon startup.

    (b) The initial notification must include the information included in paragraphs (b)(1) through (4) of this section.

    (1) Your name and address;

    (2) The address (i.e., physical location) of your POTW treatment plant;

    (3) An identification of these standards as the basis of the notification and your POTW treatment plant's compliance date; and

    (4) A brief description of the nature, size, design, and method of operation of your POTW treatment plant, including its operating design capacity and an identification of each point of emission for each HAP, or if a definitive identification is not yet possible, a preliminary identification of each point of emission for each HAP.

    (c) You must submit a notification of compliance status as required in § 63.9(h), as specified below:

    (1) If you comply with § 63.1586(b) and use covers on the emission points and route air in the headspace underneath the cover to a control device, you must submit a notification of compliance status as specified in § 63.9(h) that includes a description of the POTW treatment units and installed covers, as well as the information required for control devices including the performance test results.

    (2) If you comply with § 63.1586(c) by meeting the HAP fraction emitted standard, submission of the Inspection and Monitoring Plan as required in § 63.1588(c) and § 63.1590(f) meets the requirement for submitting a notification of compliance status report in § 63.9(h).

    (d) You must notify the Administrator, within 30 calendar days of discovering that you are out of compliance with an applicable requirement of this subpart, including the following:

    (1) The requirement to route the air in the headspace underneath the cover of all units equipped with covers, except primary clarifiers, to a control device as specified in § 63.1586(b).

    (2) The HAP fraction emitted standard as specified in § 63.1586(c).

    (3) The requirement to operate and maintain the affected source as specified in § 63.1586(d).

    (4) The requirement to inspect covers annually and repair defects as specified in § 63.1588(a).

    (5) The requirement to comply with the inspection and monitoring requirements of § 63.695(c) as specified in § 63.1588(b).

    (6) The procedures specified in an Inspection and Monitoring Plan prepared as specified in § 63.1588(c).

    (7) The requirements specified in an appropriate NESHAP for which the Group 1 POTW treatment plan treats regulated industrial waste as specified in § 63.1583(a) or (b), as applicable.

    § 63.1592 Which General Provisions apply to my POTW treatment plant?

    (a) Table 1 to this subpart lists the General Provisions (40 CFR part 63, subpart A) which do and do not apply to POTW treatment plants.

    (b) Unless a permit is otherwise required by law, the owner or operator of a Group 1 POTW treatment plant which is not a major source is exempt from the permitting requirements established by 40 CFR part 70.

    § 63.1593 [Reserved]
    § 63.1594 Who enforces this subpart?

    (a) This subpart can be implemented and enforced by the U.S. EPA, or a delegated authority such as the applicable state, local, or tribal agency. If the U.S. EPA Administrator has delegated authority to a state, local, or tribal agency, then that agency, in addition to the U.S. EPA, has the authority to implement and enforce this subpart. Contact the applicable U.S. EPA Regional Office to find out if implementation and enforcement of this subpart is delegated to a state, local, or tribal agency.

    (b) In delegating implementation and enforcement authority of this subpart to a state, local, or tribal agency under subpart E of this part, the authorities contained in paragraphs (b)(1) through (5) of this section are retained by the Administrator of U.S. EPA and cannot be delegated to the state, local, or tribal agency.

    (1) Approval of alternatives to the requirements in §§ 63.1580, 63.1583, and 63.1586 through 63.1588.

    (2) Approval of major alternatives to test methods under § 63.7(e)(2)(ii) and (f), as defined in § 63.90, and as required in this subpart.

    (3) Approval of major alternatives to monitoring under § 63.8(f), as defined in § 63.90, and as required in this subpart.

    (4) Approval of major alternatives to recordkeeping and reporting under § 63.10(f), as defined in § 63.90, and as required in this subpart.

    (5) Approval of an alternative to any electronic reporting to the EPA required by this subpart.

    § 63.1595 List of definitions.

    As used in this subpart:

    Affected source means the group of all equipment that comprise the POTW treatment plant.

    Cover means a device that prevents or reduces air pollutant emissions to the atmosphere by forming a continuous barrier over the waste material managed in a treatment unit. A cover may have openings (such as access hatches, sampling ports, gauge wells) that are necessary for operation, inspection, maintenance, and repair of the treatment unit on which the cover is used. A cover may be a separate piece of equipment which can be detached and removed from the treatment unit, or a cover may be formed by structural features permanently integrated into the design of the treatment unit. The cover and its closure devices must be made of suitable materials that will prevent exposure of the waste material to the atmosphere and will maintain the integrity of the cover and its closure devices throughout its intended service life.

    Existing source or existing POTW means a POTW that commenced construction on or before December 1, 1998, and has not been reconstructed after December 1, 1998.

    Fraction emitted means the fraction of the mass of HAP entering the POTW wastewater treatment plant which is emitted prior to secondary treatment.

    Group 1 POTW means a POTW that accepts a waste stream regulated by another NESHAP and provides treatment and controls as an agent for the industrial user. The industrial user complies with its NESHAP by using the treatment and controls located at the POTW. For example, an industry discharges its benzene-containing waste stream to the POTW for treatment to comply with 40 CFR part 61, subpart FF—National Emission Standard for Benzene Waste Operations. This definition does not include POTW treating waste streams not specifically regulated under another NESHAP.

    Group 2 POTW means a POTW that does not meet the definition of a Group 1 POTW. A Group 2 POTW can treat a waste stream that is either:

    (1) Not specifically regulated by another NESHAP, or

    (2) From an industrial user that complies with the specific wastewater requirements in their applicable NESHAP prior to discharging the waste stream to the POTW.

    Industrial user means a nondomestic source introducing any pollutant or combination of pollutants into a POTW. Industrial users can be commercial or industrial facilities whose wastes enter local sewers.

    New source or new POTW means any POTW that commenced construction or reconstruction after December 1, 1998.

    Publicly owned treatment works (POTW) means a treatment works, as that term is defined by section 112(e)(5) of the Clean Air Act, which is owned by a municipality (as defined by section 502(4) of the Clean Water Act), a state, an intermunicipal or interstate agency, or any department, agency, or instrumentality of the federal government. This definition includes any intercepting sewers, outfall sewers, sewage collection systems, pumping, power, and other equipment. The wastewater treated by these facilities is generated by industrial, commercial, and domestic sources. As used in this subpart, the term POTW refers to both any publicly owned treatment works which is owned by a state, municipality, or intermunicipal or interstate agency and, therefore, eligible to receive grant assistance under the Subchapter II of the Clean Water Act, and any federally owned treatment works as that term is described in section 3023 of the Solid Waste Disposal Act.

    POTW treatment plant means that portion of the POTW which is designed to provide treatment (including recycling and reclamation) of municipal sewage and industrial waste.

    Secondary treatment means treatment processes, typically biological, designed to reduce the concentrations of dissolved and colloidal organic matter in wastewater.

    Waste and wastewater means a material, or spent or used water or waste, generated from residential, industrial, commercial, mining, or agricultural operations or from community activities that contain dissolved or suspended matter, and that is discarded, discharged, or is being accumulated, stored, or physically, chemically, thermally, or biologically treated in a publicly owned treatment works.

    Table 1 to Subpart VVV of Part 63—Applicability of 40 CFR Part 63 General Provisions to Subpart VVV General provisions reference Applicable to subpart VVV Explanation § 63.1 Applicability. § 63.1(a)(1) Yes Terms defined in the Clean Air Act. § 63.1(a)(2) Yes General applicability explanation. § 63.1(a)(3) Yes Cannot diminish a stricter NESHAP. § 63.1(a)(4) Yes Not repetitive. Doesn't apply to section 112(r). § 63.1(a)(5) Yes Section reserved. § 63.1(a)(6)-(8) Yes Contacts and authorities. § 63.1(a)(9) Yes Section reserved. § 63.1(a)(10) Yes Time period definition. § 63.1(a)(11) Yes Postmark explanation. § 63.1(a)(12)-(14) Yes Time period changes. Regulation conflict. Force and effect of subpart A. § 63.1(b)(1) Yes Initial applicability determination of subpart A. § 63.1(b)(2) Yes Section reserved. § 63.1(b)(3) No Subpart VVV specifies recordkeeping of records of applicability determination. § 63.1(c)(1) Yes Requires compliance with both subparts A and subpart VVV. § 63.1(c)(2)(i) No State options regarding title V permit. Unless required by the State, area sources subject to subpart VVV are exempted from permitting requirements. § 63.1(c)(2)(ii)-(iii) No State options regarding title V permit. § 63.1(c)(3) Yes Section reserved. § 63.1(c)(4) Yes Extension of compliance. § 63.1(c)(5) No Subpart VVV addresses area sources becoming major due to increase in emissions. § 63.1(d) Yes Section reserved. § 63.1(e) Yes Title V permit before a relevant standard is established. § 63.2 Yes Definitions. § 63.3 Yes Units and abbreviations. § 63.4 Prohibited activities and circumvention. § 63.4(a)(1)-(3) Yes Prohibits operation in violation of subpart A. § 63.4(a)(4) Yes Section reserved. § 63.4(a)(5) Yes Compliance dates. § 63.4(b) Yes Circumvention. § 63.4(c) Yes Severability. § 63.5 Preconstruction review and notification requirements. § 63.5(a)(1) Yes Construction and reconstruction. § 63.5(a)(2) Yes New source—effective dates. § 63.5(b)(1) Yes New sources subject to relevant standards. § 63.5(b)(2) Yes Section reserved. § 63.5(b)(3) Yes No new major sources without Administrator approval. § 63.5(b)(4) Yes New major source notification. § 63.5(b)(5) Yes New major sources must comply. § 63.5(b)(6) Yes New equipment added considered part of major source. § 63.5(c) Yes Section reserved. § 63.5(d)(1) Yes Implementation of section 112(I)(2)—application of approval of new source construction. § 63.5(d)(2) Yes Application for approval of construction for new sources listing and describing planned air pollution control system. § 63.5(d)(3) Yes Application for reconstruction. § 63.5(d)(4) Yes Administrator may request additional information. § 63.5(e) Yes Approval of reconstruction. § 63.5(f)(1) Yes Approval based on State review. § 63.5(f)(2) Yes Application deadline. § 63.6 Compliance with standards and maintenance requirements. § 63.6(a) Yes Applicability of compliance with standards and maintenance requirements. § 63.6(b) Yes Compliance dates for new and reconstructed sources. § 63.6(c) Yes Compliance dates for existing sources apply to existing Group 1 POTW treatment plants. § 63.6(d) Yes Section reserved. § 63.6(e) Yes, except as noted below Operation and maintenance requirements apply to new sources. § 63.6(e)(1)(i) No General duty; See § 63.1583(d) and § 63.1586(d) for general duty requirements. § 63.6(e)(1)(ii) No Requirement to correct malfunctions. § 63.6(e)(3) No SSM plans are not required for POTW. § 63.6(f) Yes, except as noted below Compliance with non-opacity emission standards applies to new sources. § 63.6(f)(1) No The POTW standards apply at all times. § 63.6(g) Yes Use of alternative non-opacity emission standards applies to new sources. § 63.6(h) No POTW treatment plants do not typically have visible emissions. § 63.6(i) Yes Extension of compliance with emission standards applies to new sources. § 63.6(j) Yes Presidential exemption from compliance with emission standards. § 63.7 Performance testing requirements. § 63.7(a) Yes Performance testing is required for new sources. § 63.7(b) Yes New sources must notify the Administrator of intention to conduct performance testing. § 63.7(c) Yes New sources must comply with quality assurance program requirements. § 63.7(d) Yes New sources must provide performance testing facilities at the request of the Administrator. § 63.7(e) Yes, except as noted below Requirements for conducting performance tests apply to new sources. § 63.7(e)(1) No The performance testing provisions of § 63.694 for control devices are incorporated by reference into subpart DD of this part. § 63.7(f) Yes New sources may use an alternative test method. § 63.7(g) Yes Requirements for data analysis, recordkeeping, and reporting associated with performance testing apply to new sources. § 63.7(h) Yes New sources may request a waiver of performance tests. § 63.8 Monitoring requirements. § 63.8(a) Yes Applicability of monitoring requirements. § 63.8(b) Yes Monitoring shall be conducted by new sources. § 63.8(c) Yes, except as noted below New sources shall operate and maintain continuous monitoring systems (CMS). § 63.8(c)(1)(i) No See § 63.1583(d) for general duty requirement with respect to minimizing emissions and continuous monitoring requirements. § 63.8(c)(1)(iii) No See the applicable CMS quality control requirements under § 63.8(c) and (d). § 63.8(d) Yes, except as noted below New sources must develop and implement a CMS quality control program. § 63.8(d)(3) No The owner or operator must keep these written procedures on record for the life of the affected source or until the affected source is no longer subject to the provisions of this part, and make them available for inspection, upon request, by the Administrator. If the performance evaluation plan is revised, the owner or operator must keep previous (i.e., superseded) versions of the performance evaluation plan on record to be made available for inspection, upon request, by the Administrator, for a period of 5 years after each revision of the plan. The program of corrective action should be included in the plan required under § 63.8(d)(2). § 63.8(e) Yes New sources may be required to conduct a performance evaluation of CMS. § 63.8(f) Yes New sources may use an alternative monitoring method. § 63.8(g) Yes Requirements for reduction of monitoring data. § 63.9 Notification requirements. § 63.9(a) Yes Applicability of notification requirements. § 63.9(b) Yes, except as noted below Initial notification due February 23, 2000 or 60 days after becoming subject to this subpart. § 63.9(c) Yes Request for extension of compliance with subpart VVV. § 63.9(d) Yes Notification that source is subject to special compliance requirements as specified in § 63.6(b)(3) and (4). § 63.9(e) Yes Notification of performance test. § 63.9(f) No POTW treatment plants do not typically have visible emissions. § 63.9(g) Yes Additional notification requirements for sources with continuous emission monitoring systems. § 63.9(h) Yes, except as noted Notification of compliance status when the source becomes subject to subpart VVV. See exceptions in § 63.1591(b). § 63.9(i) Yes Adjustments to time periods or postmark deadlines or submittal and review of required communications. § 63.9(j) Yes Change of information already provided to the Administrator. § 63.10 Recordkeeping and reporting requirements. § 63.10(a) Yes Applicability of notification and reporting requirements. § 63.10(b)(1)-(2) Yes, except as noted below General recordkeeping requirements. § 63.10(b)(2)(i) No Recordkeeping for occurrence and duration of startup and shutdown. § 63.10(b)(2)(ii) No Recordkeeping for failure to meet a standard, see § 63.696. § 63.10(b)(2)(iii) Yes Maintenance records. § 63.10(b)(2)(iv) No Actions taken to minimize emissions during SSM. § 63.10(b)(2)(v) No Action taken to minimize emissions during SSM. § 63.10(b)(2)(vi) Yes Recordkeeping for CMS malfunctions. § 63.10(b)(2)(vii)-(ix) Yes Other CMS requirements. § 63.10(b)(3) No Recording requirement for applicability determination. § 63.10(c) Yes, except as noted below Additional recordkeeping requirements for sources with continuous monitoring systems. § 63.10(c)(7) No See § 63.696(h) for recordkeeping of (1) date, time, and duration; (2) listing of affected source or equipment, and an estimate of the tons per year of each regulated pollutant emitted over the standard; and (3) actions to minimize emissions and correct the failure. § 63.10(c)(8) No See § 63.696(h) for recordkeeping of (1) date, time, and duration; (2) listing of affected source or equipment, and an estimate of the tons per year of each regulated pollutant emitted over the standard; and (3) actions to minimize emissions and correct the failure. § 63.10(c)(15) No Use of SSM plan. § 63.10(d) Yes, except as noted below General reporting requirements. § 63.10(d)(5) No See § 63.697(b) for malfunction reporting requirements. § 63.10(e) Yes Additional reporting requirements for sources with continuous monitoring systems. § 63.10(f) Yes, except as noted Waiver of recordkeeping and reporting requirements. Electronic reporting to the EPA cannot be waived. § 63.11 Yes Control device and equipment leak work practice requirements. § 63.11(a) and (b) Yes If a new source uses flares to comply with the requirements of subpart VVV, the requirements of § 63.11 apply. § 63.11(c), (d) and (e) Yes Alternative work practice for equipment leaks. § 63.12 Yes State authority and designation. § 63.13 Yes Addresses of State air pollution control agencies and EPA Regional Offices. § 63.14 Yes Incorporation by reference. § 63.15 Yes Availability of information and confidentiality. Table 2 to Subpart VVV of Part 63—Compliance Dates and Requirements If the construction/reconstruction date is Then the owner or operator must comply with And the owner or operator must achieve compliance Group 1 POTW: (1) After December 27, 2016 (i) New source requirements in §§ 63.1583(b); 63.1586(b) or (c); and 63.1588 through 63.1591 Upon initial startup. (2) After December 1, 1998 but on or before December 27, 2016 (i) New source requirements in § 63.1583(b) but instead of complying with both requirements (industrial user(s) NESHAP and the POTW standards in §§ 63.1586(b) or (c)), you must comply with the most stringent requirement1 Upon initial startup through October 26, 2020. (ii) New source requirements in §§ 63.1586(b) or (c); and 63.1588 through 63.1591 On or before October 26, 2020. (3) On or before December 1, 1998 (i) Existing source requirements in §§ 63.1583(a) By the compliance date specified in the other applicable NESHAP. (ii) Existing source requirements in §§ 63.1588 through 63.1591 On or before October 26, 2018. Group 2 POTW: (4) After December 27, 2016 (i) New source requirements in §§ 63.1586(b) or (c); and 63.1588 through 63.1591 Upon initial startup. (5) After December 1, 1998 but on or before December 27, 2016 (i) New source requirements in § 63.1586(b) or (c)1 Upon initial startup through October 26, 2020. (ii) New source requirements in §§ 63.1586(b) or (c); and 63.1588 through 63.1591 On or before October 26, 2020. (6) On or before December 1, 1998 (i) Existing source requirements in §§ 63.1586(a); and 63.1591(a) On or before October 26, 2018. 1 Note: This represents the new source requirements in the original 1999 NESHAP, which are applicable until October 26, 2020. Between October 26, 2017 and October 26, 2020, you must transition to the new requirements in Table 2 (2)(ii) and (5)(ii) for Group 1 and Group 2 POTW, respectively.
    [FR Doc. 2017-23067 Filed 10-25-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 261 [EPA-R06-RCRA-2017-0153; SW-FRL-9969-73-Region 6] Hazardous Waste Management System; Identification and Listing of Hazardous Waste AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is granting a petition submitted by ExxonMobil Oil Corporation Beaumont Refinery (ExxonMobil) to exclude from hazardous waste control (or delist) a certain solid waste. This final rule responds to the petition submitted by ExxonMobil to have the secondary impoundment basin (SIB) solids excluded, or delisted from the definition of a hazardous waste. The SIB solids are listed as F037 (primary oil/water/solids separation sludge); and F038 (secondary oil/water/solids separation sludge).

    After careful analysis and evaluation of comments submitted by the public, the EPA has concluded that the petitioned wastes are not hazardous waste when disposed of in Subtitle D landfills. This exclusion applies to the surface impoundment solids generated at ExxonMobil's Beaumont, Texas facility. Accordingly, this final rule excludes the petitioned waste from the requirements of hazardous waste regulations under the Resource Conservation and Recovery Act (RCRA) when disposed of in Subtitle D landfills but imposes testing conditions to ensure that the future-generated wastes remain qualified for delisting.

    DATES:

    Effective October 26, 2017.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R06-RCRA-2017-0153. All documents in the docket are listed on the http://www.regulations.gov Web site. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the Internet and will be publicly available only in hard copy form. Publicly available docket materials are available electronically through http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    For technical information regarding the ExxonMobil Beaumont Refinery petition, contact Michelle Peace at 214-665-7430 or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    The information in this section is organized as follows:

    I. Overview Information A. What action is EPA finalizing? B. Why is EPA approving this delisting? C. What are the limits of this exclusion? D. How will Beaumont Refinery manage the waste if it is delisted? E. When is the final delisting exclusion effective? F. How does this final rule affect states? II. Background A. What is a “delisting”? B. What regulations allow facilities to delist a waste? C. What information must the generator supply? III. EPA's Evaluation of the Waste Data A. What waste and how much did Beaumont Refinery petition EPA to delist? B. How did Beaumont Refinery sample and analyze the waste data in this petition? IV. Public Comments Received on the Proposed Exclusion A. Who submitted comments on the proposed rule? B. Comments and Responses V. Statutory and Executive Order Reviews I. Overview Information A. What action is EPA finalizing?

    The EPA is finalizing:

    (1) The decision to grant ExxonMobil's Beaumont Refinery's petition to have its surface impoundment basin solids excluded, or delisted, from the definition of a hazardous waste, subject to certain continued verification and monitoring conditions; and

    (2) to use the Delisting Risk Assessment Software to evaluate the potential impact of the petitioned waste on human health and the environment. The Agency used this model to predict the concentration of hazardous constituents released from the petitioned waste, once it is disposed.

    After evaluating the petition, EPA proposed rule, on May 31, 2017, to exclude the ExxonMobil Beaumont Refinery waste from the lists of hazardous wastes under §§ 261.31 and 261.32. The comments received on this rulemaking will be addressed as part of this decision.

    B. Why is EPA approving this delisting?

    ExxonMobil's petition requests an exclusion from the F037 and F038 waste listings pursuant to 40 CFR 260.20 and 260.22. ExxonMobil does not believe that the petitioned waste meets the criteria for which EPA listed it. ExxonMobil also believes no additional constituents or factors could cause the waste to be hazardous. EPA's review of this petition included consideration of the original listing criteria and the additional factors required by the Hazardous and Solid Waste Amendments of 1984 (HSWA). See section 3001(f) of RCRA, 42 U.S.C. 6921(f), and 40 CFR 260.22 (d)(1)-(4) (hereinafter, all sectional references are to 40 CFR unless otherwise indicated). In making the initial delisting determination, EPA evaluated the petitioned waste against the listing criteria and factors cited in §§ 261.11(a)(2) and (a)(3). Based on this review, EPA agrees with the petitioner that the waste is non-hazardous with respect to the original listing criteria. If EPA had found, based on this review, that the waste remained hazardous based on the factors for which the waste was originally listed, EPA would have proposed to deny the petition. EPA evaluated the waste with respect to other factors or criteria to assess whether there is a reasonable basis to believe that such additional factors could cause the waste to be hazardous. EPA considered whether the waste is acutely toxic, the concentration of the constituents in the waste, their tendency to migrate and to bioaccumulate, their persistence in the environment once released from the waste, plausible and specific types of management of the petitioned waste, the quantities of waste generated, and waste variability. EPA believes that the petitioned waste does not meet the listing criteria and thus should not be a listed waste. EPA's proposed decision to delist waste from ExxonMobil is based on the information submitted in support of this rule, including descriptions of the wastes and analytical data from the Beaumont, Texas facility.

    C. What are the limits of this exclusion?

    This exclusion applies to the waste described in the petition only if the requirements described in Table 1 of part 261, Appendix IX, and the conditions contained herein are satisfied. The one-time exclusion applies to 400,000 cubic yards of surface impoundment basin solids.

    D. How will Beaumont Refinery manage the waste if it is delisted?

    Storage containers with SIB solids will be transported to an authorized solid waste landfill (e.g. RCRA Subtitle D landfill, commercial/industrial solid waste landfill, etc.) for disposal.

    E. When is the final delisting exclusion effective?

    This rule is effective October 26, 2017. The Hazardous and Solid Waste Amendments of 1984 amended Section 3010 of RCRA to allow rules to become effective in less than six months when the regulated community does not need the six-month period to come into compliance. That is the case here because this rule reduces, rather than increases, the existing requirements for persons generating hazardous wastes. These reasons also provide a basis for making this rule effective immediately, upon publication, under the Administrative Procedure Act, pursuant to 5 U.S.C. 553(d).

    F. How does this final rule affect states?

    Because EPA is issuing this exclusion under the Federal RCRA delisting program, only states subject to Federal RCRA delisting provisions would be affected. This would exclude two categories of States: States having a dual system that includes Federal RCRA requirements and their own requirements, and States who have received our authorization to make their own delisting decisions.

    Here are the details: We allow states to impose their own non-RCRA regulatory requirements that are more stringent than EPA's, under section 3009 of RCRA. These more stringent requirements may include a provision that prohibits a Federally issued exclusion from taking effect in the State. Because a dual system (that is, both Federal (RCRA) and State (non-RCRA) programs) may regulate a petitioner's waste, we urge petitioners to contact the State regulatory authority to establish the status of their wastes under the State law.

    EPA has also authorized some States (for example, Louisiana, Georgia, Illinois) to administer a delisting program in place of the Federal program, that is, to make State delisting decisions. Therefore, this exclusion does not apply in those authorized States. If Beaumont Refinery transports the petitioned waste to or manages the waste in any State with delisting authorization, Beaumont Refinery must obtain delisting authorization from that State before they can manage the waste as nonhazardous in the State.

    II. Background A. What is a delisting?

    A delisting petition is a request from a generator to EPA or another agency with jurisdiction to exclude from the list of hazardous wastes, wastes the generator does not consider hazardous under RCRA.

    B. What regulations allow facilities to delist a waste?

    Under 40 CFR 260.20 and 260.22, facilities may petition the EPA to remove their wastes from hazardous waste control by excluding them from the lists of hazardous wastes contained in §§ 261.31 and 261.32. Specifically, § 260.20 allows any person to petition the Administrator to modify or revoke any provision of Parts 260 through 266, 268 and 273 of Title 40 of the Code of Federal Regulations. Section 260.22 provides generators the opportunity to petition the Administrator to exclude a waste on a “generator-specific” basis from the hazardous waste lists.

    C. What information must the generator supply?

    Petitioners must provide sufficient information to EPA to allow the EPA to determine that the waste to be excluded does not meet any of the criteria under which the waste was listed as a hazardous waste. In addition, the Administrator must determine, where he/she has a reasonable basis to believe that factors (including additional constituents) other than those for which the waste was listed could cause the waste to be a hazardous waste, that such factors do not warrant retaining the waste as a hazardous waste.

    III. EPA's Evaluation of the Waste Data A. What waste and how much did Beaumont Refinery petition EPA to delist?

    In August 2016, ExxonMobil petitioned EPA to exclude from the lists of hazardous wastes contained in §§ 261.31 and 261.32, SIB solids (F037, F038) generated from its facility located in Beaumont, Texas. The waste falls under the classification of listed waste pursuant to §§ 261.31 and 261.32. Specifically, in its petition, ExxonMobil requested that EPA grant a one-time exclusion for 400,000 cubic yards of SIB solids.

    The 40 CFR part 261 Appendix VII hazardous constituents which are the basis for listing can be found in Table 1.

    Table 1—EPA Waste Codes for Surface Impoundment Basin Solids and the Basis for Listing Waste code Basis for listing F037 Benzene, benzo(a)pyrene, chrysene, lead, chromium. F038 Benzene, benzo(a)pyrene, chrysene, lead, chromium. B. How did Beaumont Refinery sample and analyze the waste data in this petition?

    To support its petition, ExxonMobil submitted:

    (1) Historical information on waste generation and management practices; and

    (2) analytical results from thirty-nine samples for total and TCLP concentrations of compounds of concern (COC)s;

    Table 2—Analytical Results/Maximum Allowable Delisting Concentration [Secondary Impoundment Basin (SIB) Solids ExxonMobil Beaumont Refinery, Beaumont, Texas] Constituent Maximum total
  • concentration
  • (mg/kg)
  • Maximum
  • TCLP
  • concentration
  • (mg/L)
  • Maximum
  • TCLP
  • delisting
  • level
  • (mg/L)
  • Antimony 4.84 0.023 .109 Arsenic 33.6 0.077 .424 Barium 455 1.47 36 Beryllium 1.38 <0.002 2.0 Cadmium 2.05 <0.002 0.09 Chromium 697 0.205 2.27 Cobalt 19.4 0.0371 0.214 Lead 400 0.656 0.702 Mercury 3.61 0.000049 0.068 Nickel 68.2 0.152 13.5 Selenium 28.7 0.0177 0.890 Silver 1.23 0.002 5.0 Vanadium 90.7 0.0815 3.77 Zinc 2,470 5.43 197 2,4 Dimethylphenol 0.97 0.0018 11.3 2-Methylphenol <0.71 <.000033 28.9 3-Methylphenol <0.64 0.002 28.9 4-Methylphenol <0.64 0.00047 2.89 Acenaphthene 1.7 0.00091 10.6 Anthracene 2.9 0.00019 25.9 Benz(a)anthracene 7.2 0.000034 0.07 Benz(a)pyrene 5 <0.00003 26.3 Bis(2-ethylhexyl)phthalate 34 0.0002 106,000 Chrysene 19 0.000048 7.01 Di-n-butyl phthalate 0.66 0.0013 24.6 Fluoranthene 2.1 0.000078 2.46 Fluorene 4.9 0.0016 4.91 Indeno(1,2,3-cd)pyrene 2.6 <0.000051 73 Naphthalene 26 0.02 0.0327 Phenol <0.71 0.00025 173 Pyrene N/A 0.00019 4.45 Benzene 1.1 <0.004 0.077 Xylenes, total 53 0.18 9.56 Notes: These levels represent the highest constituent concentration found in any one sample and does not necessarily represent the specific level found in one sample.
    IV. Public Comments Received on the Proposed Exclusion A. Who submitted comments on the proposed rule?

    The EPA received four anonymous public comments on the May 31, 2017, proposed rule via regulations.gov. EPA also received comments from the facility regarding the conditions and nomenclature on Table 1. The comments and responses are addressed below.

    B. Comments and Responses

    Comment 1. “Exxon Mobil requests that language found on Pages 24929, 24931, and 24932 be revised to reflect that the SIB solids are delisted upon final publication in the Federal Register. The text in Section IV (Next Steps), Items A.(2) and A.(3) is currently structured such that additional testing would have to be performed to verify that delisting limits are met. Items (2), (3), and (4) of Table 1 (Pages 24931 and 34932) also reflect these requirements. This language appears to be a “holdover” associated with another delisting petition request. Our sampling program included collection of over 30 samples to support the delisting petition request. As such, we believe we have already completed a rigorous sampling program in support of this request. Also, we would note in several locations that the petition volume is listed as “400,000 wet” cubic yards. The SIB solids will contain water upon removal from the pond. However, they will be dewatered (e.g. filtration, addition of cement, etc.) to pass the paint filter test prior to disposal. As such, we suggest removing the word wet in reference to the delisted volume.”

    Response 1. The language found in Table 1 of the exclusion has been revised to remove all conditional exclusion language. The request for the delisting is a one-time exclusion which is conditioned on proper disposal of up to 400,000 cubic yards of SIB solids and contains the data submittals, reopener and disposal notification clauses for all delisting exclusions. The conditions were included in the proposed rule in error. All references regarding the wet solids have been removed because the waste will not be disposed of in this manner. The reference to wet solids was in regards to the volume of solids as generated during the removal.

    Comment 2. “Excuse me? ExxonMobile wants to dump their waste into the landfills where it can pollute our ground water? NO. Absolutely NOT. These waste products are toxic to the environment and need to stay listed as hazardous. We don't want this stuff seeping into our groundwater for our kids to drink. ExxonMobile needs to spend the money on research to break down this waste sludge into something that doesn't hurt the environment. They must not be allowed to put it in dumps or store it somewhere. There probably are some kind of bacteria that will break this stuff down into something useful or non toxic. This stuff should NOT end up in our ground water. If you cannot do something positive with this waste, the process whereby this waste is produced MUST BE STOPPED. We need to move away from fossil fuel use and towards renewable energy and sustainable products.”

    Response 2. The Delisting Program requires extensive waste sampling and a risk assessment is performed to assess a wastes potential harm to human health and the environment. The program is designed to insure that the wastes which are deemed excluded will not be managed in a manner to harm human health or the environment. This waste will be managed in a Subtitle D industrial waste landfill as solid waste to prevent releases to groundwater and air pathways.

    Comment 3. “The EPA should feel obligated to ensure that there are no possible adverse effects to humans or the environment by approving the petition from ExxonMobile. The EPA should conduct their own investigation, take their own samples, and perform data analysis to confirm that there are no discrepancies between their findings and those provided by the Beaumont facility. In the list of constituents provided by ExxonMobile, there are known human carcinogens such as arsenic, beryllium, cadmium, chromium, nickel, and benzene, along with other harmful constituents such as lead and mercury. The EPA should conduct an environmental impact assessment before approving this petition.”

    Response 3. The requirements of the Federal regulations defined in 40 CFR part 260.20, and 260.22, describe the process by which wastes may be removed from the list of hazardous waste. In addition to extensive quality assurance and quality control data for the samples taken, EPA performs a risk assessment using the Delisting Risk Assessment Software to ensure that our decision is protective of human health and the environment. The constituent concentrations found in the surface impoundment basin solids are below the concentrations that would pose harm to human health and the environment.

    Comment 4. “Although the tests that have been run by ExxonMobil's Delisting Risk Assessment Software (DRAS) to provide scientific reasoning to the EPA for the delisting of SIB solids, I believe that more research must be conducted by the EPA itself. Employees of this agency should especially check the individual components of the SIB solids and test for even greater possibilities than those proposed by the DRAS; the DRAS was not said to take into account the effects that chemical exposure would produce on surrounding populations or even employees themselves if buildups were to occur. Risk assessment should be issued for each individual chemical compound by the EPA. Assuming the EPA would like to work rather quickly on this issue considering ExxonMobil's insistence that the SIB solids are non-hazardous, benefits would include reduced regulation on the industry, as well as, one less responsibility for the EPA. However, closer examination needs to occur, especially since this test has only been conducted for Beaumont, Texas.”

    Response 4. A waste is eligible for delisting only if that waste, as generated at a particular facility, does not meet any of the criteria under which the waste was listed as a hazardous waste. In addition, the waste may not contain any other Appendix VIII constituents that would cause the waste to be hazardous. RCRA § 3001(f) and 40 CFR 260.22. A delisting is only intended to address a specific waste stream generated at a specific site. The risk analysis is conducted specifically for each chemical constituent of the waste stream. If any constituent concentration exceeds the delisting limit, the entire waste stream remains hazardous.

    The delisting risk analysis performed using the Delisting Risk Assessment Software evaluates the worst case scenario for the petitioned waste and risk pathways are evaluated. All chemical constituents detected in the waste are individually assessed for their impact on human health and the environment.

    Comment 5. “I believe there should be a thorough health examination of all employees in the facility who work directly with the waste proposed for delisting. Some of these chemicals can build-up in the system over time and if any de-regulations are to occur they need science based evidence to prove the decision would not pose a human safety issue. If the decision would not prove to have a high economical impact, I do not see any reason it should be considered, especially when the decision is for only a single site.”

    Response 5. A waste is eligible for delisting only if that waste, as generated at a particular facility, does not meet any of the criteria under which the waste was listed as a hazardous waste. In addition, the waste may not contain any other Appendix VIII constituents that would cause the waste to be hazardous. RCRA § 3001(f) and 40 CFR 260.22. A delisting is only intended to address a specific waste stream generated at a specific site. Since individual waste streams may vary depending on raw materials, industrial processes, and other factors, it may be appropriate not to list a specific waste from a specific site. Therefore, while a waste described in the regulations or resulting from the operation of the mixture or derived-from rules generally is hazardous, a specific waste from an individual facility may not be hazardous. For this reason, 40 CFR 260.20 and 260.22 provide an exclusion procedure, called delisting, which allows persons to prove that EPA should not regulate a specific waste from a particular generating facility as a hazardous waste. A risk assessment of the petitioned waste is completed and a part of the decision factors in issuing an exclusion. Specific health examinations and worker protection is covered by the facility operating plans and overseen by OSHA. Worker safety during the management of this waste to avoid contact with this material are covered by the Health and Safety plans of the petitioner.

    V. Statutory and Executive Order Reviews

    Under Executive Order 12866, “Regulatory Planning and Review” (58 FR 51735, October 4, 1993), this rule is not of general applicability and therefore, is not a regulatory action subject to review by the Office of Management and Budget (OMB). This rule does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) because it applies to a particular facility only. Because this rule is of particular applicability relating to a particular facility, it is not subject to the regulatory flexibility provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), or to sections 202, 204, and 205 of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. L. 104-4). Because this rule will affect only a particular facility, it will not significantly or uniquely affect small governments, as specified in section 203 of UMRA. Because this rule will affect only a particular facility, this proposed rule does not have federalism implications. It will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, “Federalism”, (64 FR 43255, August 10, 1999). Thus, Executive Order 13132 does not apply to this rule.

    Similarly, because this rule will affect only a particular facility, this proposed rule does not have tribal implications, as specified in Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). Thus, Executive Order 13175 does not apply to this rule. This rule 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 is not economically significant as defined in Executive Order 12866, and because the Agency does not have reason to believe the environmental health or safety risks addressed by this action present a disproportionate risk to children. The basis for this belief is that the Agency used DRAS, which considers health and safety risks to children, to calculate the maximum allowable concentrations for this rule. This rule is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355 (May 22, 2001)), because it is not a significant regulatory action under Executive Order 12866. This rule does not involve technical standards; thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988, “Civil Justice Reform”, (61 FR 4729, February 7, 1996), in issuing this rule, EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct.

    The 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. Section 804 exempts from section 801 the following types of rules: (1) Rules of particular applicability; (2) rules relating to agency management or personnel; and (3) rules of agency organization, procedure, or practice that do not substantially affect the rights or obligations of non-agency parties (5 U.S.C. 804(3)). EPA is not required to submit a rule report regarding today's action under section 801 because this is a rule of particular applicability. Executive Order (E.O.) 12898 (59 FR 7629 (Feb. 16, 1994)) establishes Federal executive policy on environmental justice. Its main provision directs Federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States.

    EPA has determined that this proposed rule will not have disproportionately high and adverse human health or environmental effects on minority or low-income populations because it does not affect the level of protection provided to human health or the environment. The Agency's risk assessment did not identify risks from management of this material in an authorized, solid waste landfill (e.g. RCRA Subtitle D landfill, commercial/industrial solid waste landfill, etc.). Therefore, EPA believes that any populations in proximity of the landfills used by this facility should not be adversely affected by common waste management practices for this delisted waste.

    Lists of Subjects in 40 CFR Part 261

    Environmental protection, Hazardous waste, Recycling, Reporting and recordkeeping requirements.

    Authority:

    Sec. 3001(f) RCRA, 42 U.S.C. 6921(f).

    Dated: October 4, 2017. Wren Stenger, Director, Multimedia Division, Region 6.

    For the reasons set out in the preamble, 40 CFR part 261 is amended as follows:

    PART 261—IDENTIFICATION AND LISTING OF HAZARDOUS WASTE 1. The authority citation for part 261 continues to read as follows: Authority:

    42 U.S.C. 6905, 6912(a), 6921, 6922, and 6938.

    2. In Table 1—Wastes Excluded From Non-Specific Sources in Appendix IX to Part 261, add the following waste stream in alphabetical order by facility to read as follows: Appendix IX to Part 261—Waste Excluded Under §§ 260.20 and 260.22 Table 1—Wastes Excluded From Non-Specific Sources Facility Address Waste description *         *         *         *         *         *         * ExxonMobil Beaumont, TX Secondary Impoundment Basin Solids (SIB) (EPA Hazardous Waste Numbers F037 and F038) generated at a maximum rate of 400,000 cubic yards. (1) Delisting Levels: All concentrations for those constituents must not exceed the maximum allowable concentrations in mg/l specified in this paragraph. Surface Impoundment Basin Solids. Leachable Concentrations (mg/l): Antimony—0.109; Arsenic—0.424; Barium—36; Beryllium—2.0; Cadmium—0.09; Chromium—2.27; Cobalt—0.214; Lead—0.702; Mercury—0.068; Nickel—13.5; Selenium—0.890; Silver—5.0; Vanadium—3.77; Zinc—197; 2,4 Dimethylphenol—11.3; 2-Methylphenol—28.9; 3-Methylphenol—28.9; 4-Methylphenol—2.89; Acenaphthene—10.6; Anthracene-—25.9; Benz(a)anthracene—0.07; Benz(a)pyrene—26.3; Bis(2-ethylhexyl) phthalate—106,000; Chrysene—7.01; Di-n-butyl phthalate—24.6; Fluoranthene—2.46; Fluorene—4.91; Indeno(1,2,3-cd) pyrene—73; Naphthalene—0.0327; Phenol—173; Pyrene—4.45; Benzene—0.077; Xylenes, total—9.56 (2) Reopener (A) If, any time after disposal of the delisted waste ExxonMobil possesses or is otherwise made aware of any environmental data (including but not limited to underflow water data or ground water monitoring data) or any other data relevant to the delisted waste indicating that any constituent identified for the delisting verification testing is at level higher than the delisting level allowed by the Division Director in granting the petition, then the facility must report the data, in writing, to the Division Director within 10 days of first possessing or being made aware of that data. (B) If verification testing (and retest, if applicable) of the waste does not meet the delisting requirements in paragraph 1, ExxonMobil must report the data, in writing, to the Division Director within 10 days of first possessing or being made aware of that data. (C) If ExxonMobil fails to submit the information described in paragraphs (2),(3)(A) or (3)(B) or if any other information is received from any source, the Division Director will make a preliminary determination as to whether the reported information requires EPA action to protect human health and/or the environment. Further action may include suspending, or revoking the exclusion, or other appropriate response necessary to protect human health and the environment. (D) If the Division Director determines that the reported information requires action by EPA, the Division Director will notify the facility in writing of the actions the Division Director believes are necessary to protect human health and the environment. The notice shall include a statement of the proposed action and a statement providing the facility with an opportunity to present information as to why the proposed EPA action is not necessary. The facility shall have 10 days from receipt of the Division Director's notice to present such information. (E) Following the receipt of information from the facility described in paragraph (3)(D) or (if no information is presented under paragraph (3)(D)) the initial receipt of information described in paragraphs (2), (3)(A) or (3)(B), the Division Director will issue a final written determination describing EPA actions that are necessary to protect human health and/or the environment. Any required action described in the Division Director's determination shall become effective immediately, unless the Division Director provides otherwise. (3) Notification Requirements: ExxonMobil must do the following before transporting the delisted waste. Failure to provide this notification will result in a violation of the delisting petition and a possible revocation of the decision. (A) Provide a one-time written notification to any state Regulatory Agency to which or through which it will transport the delisted waste described above for disposal, 60 days before beginning such activities. (B) For onsite disposal, a notice should be submitted to the State to notify the State that disposal of the delisted materials has begun. (C) Update one-time written notification, if it ships the delisted waste into a different disposal facility. (D) Failure to provide this notification will result in a violation of the delisting exclusion and a possible revocation of the decision. *         *         *         *         *         *         *
    [FR Doc. 2017-23239 Filed 10-25-17; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 679 [Docket No. 161020985-7181-02] RIN 0648-XF767 Fisheries of the Exclusive Economic Zone Off Alaska; Exchange of Flatfish in the Bering Sea and Aleutian Islands Management Area AGENCY:

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

    ACTION:

    Temporary rule; reallocation.

    SUMMARY:

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

    DATES:

    Effective October 26, 2017 through December 31, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Steve Whitney, 907-586-7228.

    SUPPLEMENTARY INFORMATION:

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

    The 2017 flathead sole, rock sole, and yellowfin sole CDQ reserves specified in the BSAI are 1,288 metric tons (mt), 5,310 mt, and 16,472 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 48460; October 18, 2017). The 2017 flathead sole, rock sole, and yellowfin sole CDQ ABC reserves are 6,018 mt, 11,286 mt and 11,434 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 48460; October 18, 2017).

    The Yukon Delta Fisheries Development Association has requested that NMFS exchange 60 mt of flathead sole CDQ reserves and 145 mt of rock sole CDQ reserves for 205 mt of yellowfin sole CDQ ABC reserves under § 679.31(d). Therefore, in accordance with § 679.31(d), NMFS exchanges 60 mt of flathead sole CDQ reserves and 145 mt of rock sole CDQ reserves for 205 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 48460; October 18, 2017) are further revised as follows:

    Table 11—Final 2017 Community Development Quota (CDQ) Reserves, Incidental Catch Amounts (ICAS), and Amendment 80 Allocations of the Aleutian Islands Pacific Ocean Perch, and BSAI Flathead Sole, Rock Sole, and Yellowfin Sole TACS [Amounts are in metric tons] Sector Pacific ocean perch Eastern
  • Aleutian
  • district
  • Central
  • Aleutian
  • district
  • Western
  • Aleutian
  • district
  • Flathead sole BSAI Rock sole BSAI Yellowfin sole BSAI
    TAC 7,900 7,000 9,000 14,176 47,225 154,199 CDQ 845 749 963 1,228 5,165 16,677 ICA 100 60 10 4,000 5,000 4,500 BSAI trawl limited access 695 619 161 0 0 18,151 Amendment 80 6,259 5,572 7,866 8,949 37,060 114,871 Alaska Groundfish Cooperative 3,319 2,954 4,171 918 9,168 45,638 Alaska Seafood Cooperative 2,940 2,617 3,695 8,031 27,893 69,233 Note: Sector apportionments may not total precisely due to rounding.
    Table 13—Final 2017 and 2018 ABC Surplus,Community Development Quota (CDQ) ABC Reserves, and Amendment 80 ABC Reserves in the BSAI for Flathead Sole, Rock Sole, and Yellowfin Sole [Amounts are in metric tons] Sector 2017
  • Flathead sole
  • 2017
  • Rock sole
  • 2017
  • Yellowfin sole
  • 2018
  • Flathead sole
  • 2018
  • Rock sole
  • 2018
  • Yellowfin sole
  • ABC 68,278 155,100 260,800 66,164 143,100 250,800 TAC 14,176 47,225 154,199 14,500 47,100 154,000 ABC surplus 54,102 107,875 106,601 51,664 96,000 96,800 ABC reserve 54,102 107,875 106,601 51,664 96,000 96,800 CDQ ABC reserve 6,078 11,431 11,229 5,528 10,272 10,358 Amendment 80 ABC reserve 48,024 96,444 95,372 46,136 85,728 86,442 Alaska Groundfish Cooperative for 2017 1 4,926 23,857 37,891 n/a n/a n/a Alaska Seafood Cooperative for 2017 1 43,098 72,587 57,481 n/a n/a n/a 1 The 2018 allocations for Amendment 80 species between Amendment 80 cooperatives and the Amendment 80 limited access sector will not be known until eligible participants apply for participation in the program by November 1, 2017.
    Classification

    This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the flatfish exchange by the Yukon Delta Fisheries Development Association 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 October 11, 2017.

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

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

    Authority:

    16 U.S.C. 1801 et seq.

    Dated: October 23, 2017. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2017-23340 Filed 10-25-17; 8:45 am] BILLING CODE 3510-22-P
    82 206 Thursday, October 26, 2017 Proposed Rules DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 40 [Docket No. RM17-11-000] Revised Critical Infrastructure Protection Reliability Standard CIP-003-7—Cyber Security—Security Management Controls AGENCY:

    Federal Energy Regulatory Commission, DOE.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Federal Energy Regulatory Commission (Commission) proposes to approve Critical Infrastructure Protection (CIP) Reliability Standard CIP-003-7 (Cyber Security—Security Management Controls), submitted by the North American Electric Reliability Corporation (NERC). Proposed Reliability Standard CIP-003-7 improves upon the current Commission-approved CIP Reliability Standards by clarifying the obligations pertaining to electronic access control for low impact BES Cyber Systems; adopting mandatory security controls for transient electronic devices (e.g., thumb drives, laptop computers, and other portable devices frequently connected to and disconnected from systems) used at low impact BES Cyber Systems; and requiring responsible entities to have a policy for declaring and responding to CIP Exceptional Circumstances related to low impact BES Cyber Systems. In addition, the Commission proposes to direct NERC to develop certain modifications to the NERC Reliability Standards to provide clear, objective criteria for electronic access controls for low impact BES Cyber Systems; and address the need to mitigate the risk of malicious code that could result from third-party transient electronic devices.

    DATES:

    Comments are due December 26, 2017.

    ADDRESSES:

    Comments, identified by docket number, may be filed in the following ways:

    Electronic Filing through http://www.ferc.gov. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format.

    Mail/Hand Delivery: Those unable to file electronically may mail or hand-deliver comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426.

    Instructions: For detailed instructions on submitting comments and additional information on the rulemaking process, see the Comment Procedures section of this document.

    FOR FURTHER INFORMATION CONTACT:

    Matthew Dale (Technical Information), Office of Electric Reliability, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-6826, [email protected], Kevin Ryan (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, (202) 502-6840, [email protected]

    SUPPLEMENTARY INFORMATION:

    1. Pursuant to section 215 of the Federal Power Act (FPA),1 the Commission proposes to approve Critical Infrastructure Protection (CIP) Reliability Standard CIP-003-7 (Cyber Security—Security Management Controls). The North American Electric Reliability Corporation (NERC), the Commission-certified Electric Reliability Organization (ERO), submitted proposed Reliability Standard CIP-003-7 in response to directives in Order No. 822.2 The Commission also proposes to approve the associated violation risk factors and violation severity levels, implementation plan and effective dates proposed by NERC. In addition, the Commission proposes to approve the modified definitions of Transient Cyber Asset and Removable Media as well as the retirement of the definitions for Low Impact External Routable Connectivity (LERC) and Low Impact Electronic Access Point (LEAP) in the NERC Glossary of Terms Used in NERC Reliability Standards (NERC Glossary). Further, the Commission proposes to approve the retirement of Reliability Standard CIP-003-6.

    1 16 U.S.C. 824o (2012).

    2Revised Critical Infrastructure Protection Reliability Standards, Order No. 822, 154 FERC ¶ 61,037, reh'g denied, Order No. 822-A, 156 FERC ¶ 61,052 (2016).

    2. Proposed Reliability Standard CIP-003-7 is designed to mitigate the cybersecurity risks to bulk electric system facilities, systems, and equipment, which, if destroyed, degraded, or otherwise rendered unavailable as a result of a cybersecurity incident, would affect the reliable operation of the bulk electric system.3 As discussed below, the Commission proposes to determine that proposed Reliability Standard CIP-003-7 is just, reasonable, not unduly discriminatory or preferential, and in the public interest and addresses the directives in Order No. 822 by: 1. Clarifying the obligations pertaining to electronic access control for low impact BES Cyber Systems; 4 and 2. adopting mandatory security controls for transient electronic devices (e.g., thumb drives, laptop computers, and other portable devices frequently connected to and disconnected from systems) used at low impact BES Cyber Systems. In addition, by requiring responsible entities to have a policy for declaring and responding to CIP Exceptional Circumstances for low impact BES Cyber Systems, the proposed Reliability Standard aligns the treatment of low impact BES Cyber Systems with that of high and medium impact BES Cyber Systems, which currently include a requirement for declaring and responding to CIP Exceptional Circumstances. Accordingly, we propose to approve proposed Reliability Standard CIP-003-7 because the proposed modifications improve the base-line cybersecurity posture of responsible entities compared to the current Commission-approved CIP Reliability Standards.

    3See NERC Petition at 2.

    4 NERC defines “BES Cyber System” as one or more BES Cyber Assets logically grouped by a responsible entity to perform one or more reliability tasks for a functional entity.

    3. In addition, pursuant to FPA section 215(d)(5), the Commission proposes to direct NERC to develop certain modifications to the CIP Reliability Standards. As discussed below, while proposed Reliability Standard CIP-003-7 improves electronic access control for low impact BES Cyber Systems and enhances security controls for transient electronic devices used at low impact BES Cyber Systems, we propose to direct that NERC modify Reliability Standard CIP-003-7 to: 1. Provide clear, objective criteria for electronic access controls for low impact BES Cyber Systems; and 2. address the need to mitigate the risk of malicious code that could result from third-party transient electronic devices. We believe that modifications addressing these two concerns will address potential gaps and improve the cyber security posture of responsible entities that must comply with the CIP standards.

    I. Background A. Section 215 and Mandatory Reliability Standards

    4. Section 215 of the FPA requires a Commission-certified ERO to develop mandatory and enforceable Reliability Standards, subject to Commission review and approval. Reliability Standards may be enforced by the ERO, subject to Commission oversight, or by the Commission independently.5 Pursuant to section 215 of the FPA, the Commission established a process to select and certify an ERO,6 and subsequently certified NERC.7

    5 16 U.S.C. 824o(e) (2012).

    6Rules Concerning Certification of the Electric Reliability Organization; and Procedures for the Establishment, Approval, and Enforcement of Electric Reliability Standards, Order No. 672, FERC Stats. & Regs. ¶ 31,204, order on reh'g, Order No. 672-A, FERC Stats. & Regs. ¶ 31,212 (2006).

    7North American Electric Reliability Corp., 116 FERC ¶ 61,062, order on reh'g and compliance, 117 FERC ¶ 61,126 (2006), aff'd sub nom. Alcoa, Inc. v. FERC, 564 F.3d 1342 (D.C. Cir. 2009).

    B. Order No. 822

    5. The Commission approved the “Version 1” CIP standards in January 2008, and subsequently acted on revised versions of the CIP standards.8 On January 21, 2016, in Order No. 822, the Commission approved seven CIP Reliability Standards: CIP-003-6 (Security Management Controls), CIP-004-6 (Personnel and Training), CIP-006-6 (Physical Security of BES Cyber Systems), CIP-007-6 (Systems Security Management), CIP-009-6 (Recovery Plans for BES Cyber Systems), CIP-010-2 (Configuration Change Management and Vulnerability Assessments), and CIP-011-2 (Information Protection). The Commission determined that the Reliability Standards under consideration at that time were an improvement over the prior iteration of the CIP Reliability Standards and addressed the directives in Order No. 791 by, among other things, addressing in an equally effective and efficient manner the need for a NERC Glossary definition for the term “communication networks” and providing controls to address the risks posed by transient electronic devices (e.g., thumb drives and laptop computers) used at high and medium impact BES Cyber Systems.9

    8Mandatory Reliability Standards for Critical Infrastructure Protection, Order No. 706, 122 FERC ¶ 61,040, order on reh'g, Order No. 706-A, 123 FERC ¶ 61,174 (2008), order on clarification, Order No. 706-B, 126 FERC ¶ 61,229 (2009), order on clarification, Order No. 706-C, 127 FERC ¶ 61,273 (2009).

    9 Order No. 822, 154 FERC ¶ 61,037 at P 17; see also Version 5 Critical Infrastructure Protection Reliability Standards, Order No. 791, 78 FR 72755 (Dec. 3, 2013), 145 FERC ¶ 61,160 (2013), order on clarification and reh'g, Order No. 791-A, 146 FERC ¶ 61,188 (2014).

    6. In addition, in Order No. 822, pursuant to section 215(d)(5) of the FPA, the Commission directed NERC, inter alia, to: 1. Develop modifications to the LERC definition to eliminate ambiguity surrounding the term “direct” as it is used in the LERC definition; and 2. develop modifications to the CIP Reliability Standards to provide mandatory protection for transient electronic devices used at low impact BES Cyber Systems.10

    10 Order No. 822, 154 FERC ¶ 61,037 at P 18.

    C. NERC Petition

    7. On March 3, 2017, NERC submitted a petition seeking approval of Reliability Standard CIP-003-7 and the associated violation risk factors and violation severity levels, implementation plan and effective dates. NERC states that proposed Reliability Standard CIP-003-7 satisfies the criteria set forth in Order No. 672 that the Commission applies when reviewing a proposed Reliability Standard.11 NERC also sought approval of revisions to NERC Glossary definitions for the terms Removable Media and Transient Cyber Asset, as well as the retirement of the NERC Glossary definitions of LERC and LEAP. In addition, NERC proposed the retirement of Commission-approved Reliability Standard CIP-003-6.

    11See NERC Petition at 2 (citing Order No. 672, FERC Stats. & Regs. ¶ 31,204 at PP 262, 321-337); id. at Exhibit D (Order No. 672 Criteria).

    8. NERC states that proposed Reliability Standard CIP-003-7 improves upon the existing protections that apply to low impact BES Cyber Systems. NERC avers that the proposed modifications address the Commission's directives from Order No. 822 by: 1. Clarifying electronic access control requirements applicable to low impact BES Cyber Systems; and 2. adding requirements for the protection of transient electronic devices used for low impact BES Cyber Systems. In addition, while not required by Order No. 822, NERC proposes a CIP Exceptional Circumstances policy for low impact BES Cyber Systems.

    9. In response to the Commission's directive to develop modifications to eliminate ambiguity surrounding the term “direct” as it is used in the LERC definition, NERC proposes to: 1. Retire the terms LERC and LEAP from the NERC Glossary; and 2. modify Section 3 of Attachment 1 to proposed Reliability Standard CIP-003-7 “to more clearly delineate the circumstances under which Responsible Entities must establish access controls for low impact BES Cyber Systems.” 12 NERC states that the proposed revisions are designed to simplify the electronic access control requirements associated with low impact BES Cyber Systems in order to avoid ambiguities associated with the term “direct.” NERC explains that it recognized the “added layer of unnecessary complexity” introduced by distinguishing between “direct” and “indirect” access within the LERC definition and asserts that the proposed revisions will “help ensure that Responsible Entities implement the required security controls effectively.” 13

    12Id. at 16.

    13Id. at 16.

    10. With regard to the Commission's directive to develop modifications to the CIP Reliability Standards to provide mandatory protection for transient electronic devices used at low impact BES Cyber Systems, NERC proposes to add a new section to Attachment 1 to proposed Reliability Standard CIP-003-7 to require responsible entities to include controls in their cyber security plans to mitigate the risk of the introduction of malicious code to low impact BES Cyber Systems that could result from the use of “Transient Cyber Assets or Removable Media.” Specifically, proposed Section 5 of Attachment 1 lists controls to be applied to Transient Cyber Assets and Removable Media that NERC contends “will provide enhanced protections against the propagation of malware from transient devices.” 14

    14Id. at 26-27.

    11. NERC also proposes a modification that was not directed by the Commission in Order No. 822. Namely, NERC proposes revisions in Requirement R1 of proposed Reliability Standard CIP-003-7 to require responsible entities to have a policy for declaring and responding to CIP Exceptional Circumstances related to low impact BES Cyber Systems.15 NERC states that a number of requirements in the existing CIP Reliability Standards specify that responsible entities do not have to implement or continue implementing these requirements during a CIP Exceptional Circumstance in order to avoid hindering the entities' ability to timely and effectively respond to the CIP Exceptional Circumstance. NERC explains that since the proposed requirements relating to transient electronic devices used at low impact BES Cyber Systems include an exception for CIP Exceptional Circumstances, NERC is proposing to add a requirement for responsible entities to have a CIP Exceptional Circumstances policy that applies to low impact BES Cyber Systems, as it already requires for high and medium impact BES Cyber Systems.16

    15 A CIP Exceptional Circumstance is defined in the NERC Glossary as a situation that involves or threatens to involve one or more of the following, or similar, conditions that impact safety or bulk electric system reliability: A risk of injury or death; a natural disaster; civil unrest; an imminent or existing hardware, software, or equipment failure; a Cyber Security Incident requiring emergency assistance; a response by emergency services; the enactment of a mutual assistance agreement; or an impediment of large scale workforce availability. Glossary of Terms Used in NERC Reliability Standards (August 1, 2017), http://www.nerc.com/files/glossary_of_terms.pdf.

    16 NERC Petition at 31-32.

    12. NERC requests that proposed Reliability Standard CIP-003-7 and the revised definitions of Transient Cyber Asset and Removable Media become effective the first day of the first calendar quarter that is eighteen months after the effective date of the Commission's order approving the proposed Reliability Standard.

    II. Discussion

    13. Pursuant to section 215(d)(2) of the FPA, we propose to approve Reliability Standard CIP-003-7 as just, reasonable, not unduly discriminatory or preferential, and in the public interest. Proposed Reliability Standard CIP-003-7 largely addresses the Commission's directives in Order No. 822 and is an improvement over the current Commission-approved CIP Reliability Standards. Specifically, the modifications to Section 3 of Attachment 1 to Reliability Standard CIP-003-7 clarify the obligations pertaining to electronic access control for low impact BES Cyber Systems. In addition, the modifications to Attachment 1 to Reliability Standard CIP-003-7 require mandatory security controls for transient electronic devices used at low impact BES Cyber Systems. We also propose to approve the new provision in Reliability Standard CIP-003-7, Requirement R1 requiring responsible entities to have a policy for declaring and responding to CIP Exceptional Circumstances related to low impact BES Cyber Systems. While Order No. 822 did not direct NERC to expand the scope of the CIP Exceptional Circumstances policy, the revision aligns the treatment of low impact BES Cyber Systems with that of high and medium impact BES Cyber Systems if and when a CIP Exceptional Circumstance occurs.

    14. We also propose to approve the revisions to the NERC Glossary definitions of Transient Cyber Asset and Removable Media, as well as the retirement of the NERC Glossary definitions for LERC and LEAP since the proposed modifications to Reliability Standard CIP-003-7 obviate the need for the two terms. We further propose to approve the violation risk factor and violation severity level assignments associated with proposed Reliability Standard CIP-003-7 as well as NERC's proposed implementation plan and effective dates.

    15. In addition, as discussed below, pursuant to section 215(d)(5) of the FPA, the Commission proposes to direct NERC to develop certain modifications to the CIP Reliability Standards. While proposed Reliability Standard CIP-003-7 improves electronic access control for low impact BES Cyber Systems and enhances security controls for transient electronic devices used at low impact BES Cyber Systems, we propose to direct that NERC modify Reliability Standard CIP-003-7 to: 1. Provide clear, objective criteria for electronic access controls for low impact BES Cyber Systems; and 2. address the need to mitigate the risk of malicious code that could result from third-party transient electronic devices.

    16. Below, we discuss the following issues: A. Electronic access controls for low impact BES Cyber Systems; B. protection of transient electronic devices; C. proposed retirement and modification of definitions; D. NERC's proposed implementation plan and effective dates; and E. proposed violation severity level and violation risk factor assignments.

    A. Electronic Access Controls for Low Impact BES Cyber Systems Order No. 822

    17. In Order No. 822, the Commission directed NERC to modify the LERC definition to eliminate ambiguity surrounding the term “direct” as it is used in the LERC definition.17 The Commission explained that the directive was intended to codify the clarification provided in NERC's NOPR comments, in which NERC referenced a statement in the Guidelines and Technical Basis section of Reliability Standard CIP-003-6 that electronic access controls must be applied to low impact BES Cyber Systems unless responsible entities implement a “complete security break” between the external host (cyber asset) and any cyber asset(s) that may be used to pass communications to the low impact BES Cyber System.18 The Commission observed that “a suitable means to address our concern is to modify the [LERC] definition consistent with the commentary in the Guidelines and Technical Basis section of CIP-003-6.” 19

    17 Order No. 822, 154 FERC ¶ 61,037 at P 73.

    18Id. (citing NERC NOPR Comments at 31).

    19Id.

    18. In addition, the Commission explained that the directive was also intended to eliminate a loophole that would have allowed transitive connections to out-of-scope cyber assets (e.g., serial devices) to go unprotected under the LERC definition.20

    20Id. (“NERC's clarification on this issue resolves many of the concerns raised by EnergySec, APS, and SPP RE regarding the proposed definition, as a complete security break would not appear to permit transitive connections through one or more out of scope cyber assets to go unprotected under the definition, and would appear to require the assets to maintain `separate conversations' as suggested by SPP RE.”).

    NERC Petition

    19. In its Petition, NERC proposes to: 1. Retire the terms LERC and LEAP from the NERC Glossary; and 2. modify Section 3 of Attachment 1 to Reliability Standard CIP-003-7 “to more clearly delineate the circumstances under which Responsible Entities must establish access controls for low impact BES Cyber Systems.” 21 NERC states that the proposed revisions are designed to simplify the electronic access control requirements associated with low impact BES Cyber Systems in order to avoid ambiguities associated with the term “direct.” NERC states further that it recognized the “added layer of unnecessary complexity” introduced by distinguishing between “direct” and “indirect” access within the LERC definition and asserts that the proposed revisions will “help ensure that Responsible Entities implement the required security controls effectively.” 22

    21 NERC Petition at 16.

    22Id.

    20. NERC states that proposed Reliability Standard CIP-003-7 would require responsible entities to implement electronic access controls for any communication, direct or indirect (i.e., communications through an intermediary device where no direct connection is present), between a low impact BES Cyber System and an outside Cyber Asset that uses a routable protocol when entering or leaving the asset containing the low impact BES Cyber System. NERC asserts that the proposed revisions to Section 3 of Attachment 1 to proposed Reliability Standard CIP-003-7 improve the clarity of the electronic access requirements and focus responsible entities “on the security objective of controlling electronic access to permit only necessary inbound and outbound electronic access to low impact BES Cyber Systems.” 23

    23Id. at 17.

    21. NERC explains that Section 3.1 of Attachment 1 to proposed Reliability Standard CIP-003-7 is composed of three basic elements: 1. Identifying routable protocol communications from outside the asset containing the low impact BES Cyber System; 2. determining necessary inbound and outbound electronic access; and 3. implementing electronic access controls to permit only necessary inbound and outbound electronic access to the low impact BES Cyber System.

    22. With regard to the first element, NERC states that Section 3.1 of Attachment 1 defines the circumstances where communications require electronic access controls. The three characteristics are:

    1. The communication is between the low impact BES Cyber System and a Cyber Asset outside the asset containing low impact BES Cyber System(s);

    2. the communication uses a routable protocol when entering or leaving the asset containing the low impact BES Cyber System(s); and

    3. the communication is not used for time-sensitive protection or control functions between intelligent electronic devices.

    NERC states further that each of the three characteristics were included in the original LERC definition.24

    24Id. at 18.

    23. NERC asserts that the first characteristic helps to properly focus the electronic access controls in light of “the wide array of low impact BES Cyber Systems and the risk-based approach to protecting different types of BES Cyber Systems.” 25 NERC explains that, whether a “Responsible Entity uses a logical border as a demarcation point or some other understanding of what is inside or outside the asset, [the responsible entity] would have to provide a reasonable justification for its determination.” 26 On the second characteristic, NERC states that routable communications present increased risks to the security of BES Cyber Systems and require additional protections. Therefore, communications with a low impact BES Cyber System involving routable connections require protections to address the risk of uncontrolled communications. With regard to the third characteristic, NERC explains that the exclusion of communications for time-sensitive protection and control functions is intended to avoid precluding the functionality of time-sensitive reliability enhancing functions. NERC states, however, that an entity invoking this exclusion may have to demonstrate that applying electronic access controls would introduce latency that would negatively impact functionality.27

    25Id. at 19.

    26Id.

    27Id. at 20.

    24. According to NERC, the second characteristic of Section 3.1 of Attachment 1 provides that responsible entities may permit only necessary inbound and outbound electronic access to low impact BES Cyber Systems as determined by the responsible entity. NERC explains that Section 3.1 does not specify a bright line as to what constitutes “necessary inbound and outbound access” due to “the wide array of assets containing low impact BES Cyber Systems and the myriad of reasons a Responsible Entity may need to allow electronic access to and from a low impact BES Cyber Systems.” 28 NERC maintains that responsible entities “have the flexibility to identify the necessary electronic access to meet their business and operational needs.” 29

    28Id. at 21-22.

    29Id. at 22.

    25. NERC explains that “a Responsible Entity must document the necessity of its inbound and outbound electronic access permissions and provide justification of the need for such access” in order to demonstrate compliance with Section 3.1 of Attachment 1.30 NERC states that absent a documented, reasonable justification, the ERO may find that the responsible entity was not in compliance with Section 3.1. NERC asserts that the purpose of the phrase “as determined by the Responsible Entity” in Section 3.1 is to indicate that the determination whether electronic access is necessary is to be made in the first instance by the responsible entity based on the facts and circumstances of each case. NERC states further that that the phrase “as determined by the Responsible Entity” does not limit the ERO's ability to engage in effective compliance oversight. Specifically, NERC contends that the ERO has the authority to review the documented justification for permitting electronic access and to determine whether it represents a reasonable exercise of discretion in light of the overall reliability objective.31

    30Id.

    31Id. at 22-23.

    26. In support of its position, NERC cites the draft Reliability Standard Audit Worksheet (RSAW) for proposed Reliability Standard CIP-003-7, which provides the following language in the Note to Auditor section for Requirement R2:

    The entity must document its determination as to what is necessary inbound and outbound electronic access and provide justification of the business need for such access. Once this determination has been made and documented, the audit team's professional judgment cannot override the determination made by the Responsible Entity.32

    32Id. at 22, n.42.

    NERC also provides a list of Commission-approved CIP Reliability Standards where the phrase “as determined by the Responsible Entity” or similar language is used. NERC states that in all circumstances where the phrase “as determined by the Responsible Entity” or similar language is used, “the ERO has the authority to evaluate the reasonableness of the Responsible Entity's determination when assessing compliance to ensure it is consistent with the reliability objective of the requirement. To interpret this language otherwise would be inconsistent with NERC's statutory obligation to engage in meaningful compliance oversight . . .” 33

    33Id. at 23-24. NERC also indicates, id at n.42, that Footnote 1 of the draft RSAW states that “[w]hile the information included in this RSAW provides some of the methodology that NERC has elected to use to assess compliance with the requirements of the Reliability Standard, this document should not be treated as a substitute for the Reliability Standard or viewed as additional Reliability Standard requirements. In all cases, the Regional Entity should rely on the language contained in the Reliability Standard itself, and not on the language contained in the RSAW, to determine compliance with the Reliability Standard.” Draft RSAW, http://www.nerc.com/pa/Stand/Project%20201602%20Modifications%20to%20CIP%20Standards%20DL/RSAW_CIP-003-7(i)_v2_Clean_01202017.pdf.

    Commission Proposal

    27. The Commission proposes to approve Reliability Standard CIP-003-7 because, as discussed above, the proposed Reliability Standard largely addresses the directives in Order No. 822 and is an improvement over the current Commission-approved CIP Reliability Standards. However, NERC's proposed revisions to Reliability Standard CIP-003-7 regarding the LERC directive and electronic access controls for low impact BES Cyber Systems raise certain issues. In Order No. 822, the Commission directed NERC to develop modifications to the LERC definition to eliminate ambiguity surrounding the term “direct” as it is used in the definition. The directive was based on the concern that responsible entities could avoid adopting adequate electronic access protections for low impact BES Cyber Systems by simply installing a device, such as a laptop or protocol converter, in front of the BES Cyber System to “break” the direct routable connection. As the Commission noted in Order No. 822, the desired clarification could have been made by including the security concepts from the Guidelines and Technical Basis section of Reliability Standard CIP-003-6 in the definition.34 Instead, NERC's proposal comprehensively revises a responsible entity's obligations under Requirement R2 through the revisions to Attachment 1 by deleting the term LERC and giving responsible entities significantly more deference in determining how they construct the electronic access protections for low impact BES Cyber Systems.

    34See Order No. 822, 154 FERC ¶ 61,037 at P 73.

    28. We are concerned that the proposed revisions may not provide adequate electronic access controls for low impact BES Cyber Systems. Specifically, proposed Reliability Standard CIP-003-7 does not provide clear, objective criteria or measures to assess compliance by independently confirming that the access control strategy adopted by a responsible entity would reasonably meet the security objective of permitting only “necessary inbound and outbound electronic access” to its low impact BES Cyber Systems.

    29. Section 3.1 of Attachment 1 to proposed Reliability Standard CIP-003-7 does not appear to contain clear criteria or objective measures to determine whether the electronic access control strategy chosen by the responsible entity would be effective for a given low impact BES Cyber System to permit only necessary inbound and outbound connections. In order to ensure an objective and consistently-applied requirement, the electronic access control plan required in Attachment 1 should require the responsible entity to articulate its access control strategy for a particular set of low impact BES Cyber Systems and provide a technical rationale rooted in security principles explaining how that strategy will reasonably restrict electronic access. Attachment 1 should also outline basic security principles in order to provide clear, objective criteria or measures to assist in assessing compliance. Without such a requirement, auditors will not necessarily have adequate information to assess the reasonableness of the responsible entity's decision with respect to how the responsible entity identified necessary communications or restricted electronic access to specific low impact BES Cyber Systems. And absent such information, it is possible that an auditor could assess a violation where an entity adequately protected its low impact BES Cyber Systems or fail to recognize a situation where additional protections are necessary to meet the security objective of the standard.

    30. As the Commission stated in Order No. 672, there “should be a clear criterion or measure of whether an entity is in compliance with a proposed Reliability Standard. It should contain or be accompanied by an objective measure of compliance so that it can be enforced and so that enforcement can be applied in a consistent and non-preferential manner.” 35 The Commission reiterated this point in Order No. 791, stating that “the absence of objective criteria to evaluate the controls chosen by responsible entities for Low Impact assets introduces an unacceptable level of ambiguity and potential inconsistency into the compliance process, and creates an unnecessary gap in reliability.” 36 The Commission also observed that “ambiguity will make it difficult for registered entities to develop, and NERC and the regions to objectively evaluate, the effectiveness of procedures developed to implement” the Reliability Standard.37

    35Rules Concerning Certification of the Electric Reliability Organization and Procedures for the Establishment, Approval, and Enforcement of Electric Reliability Standards, Order No. 672, FERC Stats. & Regs. ¶ 31,204, at P 327 (2006).

    36 Order No. 791, 145 FERC ¶ 61,160 at P 108.

    37Id.

    31. As a possible model, the electronic access control requirements that are applied to medium and high impact BES Cyber systems provide a number of criteria that can be used to assess the sufficiency of a responsible entity's electronic access control strategy. For medium and high impact BES Cyber Systems, auditors use the following criteria to review whether the access control strategy is reasonable: 1. Whether the electronic access was granted through an authorized and monitored electronic access point (Reliability Standard CIP-005-5, Requirement R1); 2. whether the electronic access granted to individuals/devices was evaluated based on need (Reliability Standard CIP-005-5, Requirement R1.3); 3. whether the entity has mechanisms to enforce authentication of users with electronic access (Reliability Standard CIP-007-6, Requirement R5); and 4. whether the responsible entity routinely uses strong passwords and manages password changes (Reliability Standard CIP-007-6, Requirement R5). Absent similar criteria in the low impact electronic access control plan that are appropriately tailored to the risks posed by low impact BES Cyber Systems, responsible entities may adopt electronic access controls that do not meet the overarching security objective of restricting inbound and outbound electronic access.

    32. Therefore, pursuant to section 215(d)(5) of the FPA, we propose to direct NERC to develop modifications to Reliability Standard CIP-003-7 to provide clear, objective criteria for electronic access controls for low impact BES Cyber Systems consistent with the above discussion. The Commission seeks comment on this proposal.

    B. Protection of Transient Electronic Devices Order No. 822

    33. In Order No. 822, the Commission directed NERC to develop modifications to provide mandatory protection for transient electronic devices used at low impact BES Cyber Systems based on the risk posed to bulk electric system reliability. The Commission stated that such modifications “will provide an important enhancement to the security posture of the bulk electric system by reinforcing the defense-in-depth nature of the CIP Reliability Standards at all impact levels.” 38 The Commission also stated that the proposed modifications should be designed to effectively address the risks posed by transient electronic devices used at low impact BES Cyber Systems “in a manner that is consistent with the risk-based approach reflected in the CIP version 5 Standards.” 39

    38 Order No. 822, 154 FERC ¶ 61,037 at P 32 (emphasis in original).

    39Id.

    NERC Petition

    34. In its Petition, NERC proposes to add a new section to Attachment 1 to proposed Reliability Standard CIP-003-7 to require responsible entities to include controls in their cyber security plans to mitigate the risk of the introduction of malicious code to low impact BES Cyber Systems through the use of “Transient Cyber Assets or Removable Media.” Specifically, proposed Section 5 of Attachment 1 lists controls to be applied to Transient Cyber Assets and Removable Media that NERC states “will provide enhanced protections against the propagation of malware from transient devices.” 40

    40Id. at 26-27.

    35. NERC states that the language in proposed Section 5 to Attachment 1 parallels the language in Attachment 1 to Reliability Standard CIP-010-2, which addresses mitigation of the risks of the introduction of malicious code to high and medium impact BES Cyber Systems through the use of Transient Cyber Assets or Removable Media. NERC states further that, as in Reliability Standard CIP-010-2, proposed Section 5 distinguishes between Transient Cyber Assets managed by a responsible entity and those managed by a third-party; the distinction arising because of a responsible entity's lack of control over Transient Cyber Assets managed by a third-party. NERC explains that the proposed controls for Removable Media do not distinguish between the responsible entity-managed assets and third-party managed assets due to the functionality of Removable Media. NERC provides the example of a thumb drive that can be scanned prior to use regardless of which party manages the asset.41

    41Id. at 28.

    36. NERC explains that proposed Section 5 of Attachment 1 requires responsible entities to meet the security objectives “by implementing the controls that the Responsible Entity determines necessary to meet its affirmative obligation to mitigate the risks of the introduction of malicious code.” 42 NERC states that the approach reflected in Section 5 provides the flexibility to implement the controls that best suit the needs and characteristics of a responsible entity's organization. NERC explains further that “the Responsible Entity must demonstrate that its selected controls were designed to meet the security objective to mitigate the risk of the introduction of malicious code.” 43

    42Id.

    43Id. at 29.

    37. NERC outlines certain distinctions between proposed Section 5 of Attachment 1 to proposed Reliability Standard CIP-003-7 and Attachment 1 to Reliability Standard CIP-010-2. Specifically, NERC states that proposed Section 5 does not include requirements relating to authorization or software vulnerabilities, as are contained in Attachment 1 to Reliability Standard CIP-010-2. NERC explains that this difference is consistent with the risk-based approach of the CIP Reliability Standards and “the underlying principle of concentrating limited industry resources on protecting those BES Cyber Systems with greater risk to the BES.” NERC states that Section 5 focuses on the risk associated with the introduction of malicious code.44

    44 NERC Petition at 29.

    38. In addition, NERC states that proposed Section 5 to Attachment 1 does not include language requiring a responsible entity to determine whether additional mitigation actions are necessary where a third party manages a Transient Cyber Asset, nor does it include language requiring a responsible entity to implement additional mitigation actions in such situations. NERC states that it nonetheless expects “that if another party's processes and practices for protecting its Transient Cyber Assets do not provide reasonable assurance that they are designed to effectively meet the security objective of mitigating the introduction of malicious code, the Responsible Entity must take additional steps to meet the stated objective.” 45 NERC explains that if a third party's practices and policies do not provide reasonable assurance that the Transient Cyber Assets would be protected from malicious code, “simply reviewing those policies and procedures without taking other steps to mitigate the risks of introduction of malicious code may not constitute compliance.” 46

    45Id. at 29-30.

    46Id. at 30.

    Commission Proposal

    39. NERC's proposed modifications in Reliability Standard CIP-003-7, Requirement R2, Attachment 1, Section 5 that include malware detection and prevention controls for responsible entity-managed Transient Cyber Assets and Removable Media should improve the cybersecurity posture of responsibility entities compared to currently-effective Reliability Standard CIP-003-6. The revisions in Section 5.2, however, do not address one aspect of the reliability gap identified in Order No. 822 regarding low impact BES Cyber Systems. Specifically, as noted above, proposed Reliability Standard CIP-003-7 does not explicitly require mitigation of the introduction of malicious code from third-party managed Transient Cyber Assets, even if the responsible entity determines that the third-party's policies and procedures are inadequate.47 While the proposed Reliability Standard does not explicitly require mitigation of the introduction of malicious code from third-party managed Transient Cyber Assets, NERC states that the failure to mitigate this risk “may not constitute compliance.” 48 NERC's statement suggests that, with regard to low impact BES Cyber Systems, the proposed requirement lacks an obligation for a responsible entity to correct any deficiencies that are discovered during a review of third-party Transient Cyber Asset management practices. Indeed, the parallel provision for high and medium impact BES Cyber Systems specifies that “Responsible Entities shall determine whether any additional mitigation actions are necessary and implement such actions prior to connecting the Transient Cyber Asset.” 49 Yet, such language obligating mitigation action is not proposed for low impact BES Cyber Assets.

    47See NERC Petition at 29-30.

    48Id. at 30.

    49 Reliability Standard CIP-010-2 (Cyber Security—Configuration Change Management and Vulnerability Assessments), Requirement R4, Attachment 1, Section 2.3. In contrast, the obligations to “review” methods used by third-parties to detect and prevent malware are similar for lower, medium and high impact BES Cyber Assets. Cf. CIP-010-2, Attachment 1, Sections 2.1 and 2.2; and proposed CIP-010-3, Attachment 1, Section 3.2.

    40. The proposed Reliability Standard may, therefore, contain a reliability gap where a responsible entity contracts with a third-party but fails to mitigate potential deficiencies discovered in the third-party's malicious code detection and prevention practices prior to a Transient Cyber Asset being connected to a low impact BES Cyber System. That is because the proposed Reliability Standard does not contain: 1. A requirement for the responsible entity to mitigate any malicious code found during the third-party review(s); or 2. a requirement that the responsible entity take reasonable steps to mitigate the risks of third party malicious code on their systems, if an arrangement cannot be made for the third-party to do so. Without these obligations, we are concerned that responsible entities could, without compliance consequences, simply accept the risk of deficient third-party transient electronic device management practices.50 Moreover, the requirement to “review” methods used by third-parties to detect and prevent malware may fail to convey the necessary next steps that a responsible entity should take.51

    50See Order No. 706, 122 FERC ¶ 61,040 at P 150 (rejecting the concept of acceptance of risk in the CIP Reliability Standards).

    51See Order No. 791, 145 FERC ¶ 61,160 at P 108.

    41. Therefore, pursuant to section 215(d)(5) of the FPA, we propose to direct that NERC develop modifications to proposed Reliability Standard CIP-003-7 to address the need to mitigate the risk of malicious code that could result from third-party Transient Cyber Assets consistent with the above discussion. The Commission seeks comment on this proposal.

    C. Proposed NERC Glossary Definitions

    42. Proposed Reliability Standard CIP-003-7 includes two revised definitions for inclusion in the NERC Glossary. Specifically, NERC proposes to revise the definitions of Transient Cyber Asset and Removable Media in order to accommodate the use of the terms at all impact levels. NERC explains that the original definitions include references to concepts or requirements associated only with high and medium impact BES Cyber Systems and the definitions were modified to avoid confusion because protections for Transient Electronic Devices will now be extended to low impact BES Cyber Systems.52

    52 NERC Petition at 30.

    43. In addition, NERC proposes to retire the definitions of LERC and LEAP. NERC states that the proposed retirement of the NERC Glossary terms LERC and LEAP accords with the proposed modifications to Section 3 of Attachment 1 to proposed Reliability Standard CIP-003-7 and is intended to simplify the electronic access control requirements for low impact BES Cyber Systems by avoiding the ambiguities associated with the term “direct.” NERC explains further that it “recognized that distinguishing between `direct' and `indirect' electronic access within the LERC definition added a layer of unnecessary complexity.” 53

    53Id. at 16.

    44. We propose to approve the revised definitions of Transient Cyber Asset and Removable Media, as well as the retirement of the definitions of LERC and LEAP.

    D. Implementation Plan and Effective Dates

    45. NERC requests an effective date for proposed Reliability Standard CIP-003-7 and the revised definitions of Transient Cyber Asset and Removable Media on the first day of the first calendar quarter that is eighteen months after the effective date of the Commission's order approving the proposed Reliability Standard. NERC explains that the proposed implementation plan does not alter the previously-approved compliance dates for Reliability Standard CIP-003-6 other than the compliance date for Reliability Standard CIP-003-6, Requirement R2, Attachment 1, Sections 2 and 3, which would be replaced with the effective date for proposed Reliability Standard CIP-003-7. NERC also proposes that the retirement of Reliability Standard CIP-003-6 and the associated definitions become effective on the effective date of proposed Reliability Standard CIP-003-7.54

    54Id., Exhibit C (Implementation Plan).

    46. We propose to approve NERC's implementation plan for proposed Reliability Standard CIP-003-7, as described above.

    E. Violation Risk Factor/Violation Severity Level Assignments

    47. NERC requests approval of two violation risk factors and violation severity levels assigned to proposed Reliability Standard CIP-003-7. Specifically, NERC requests approval of violation risk factor and violation severity level assignments associated with Requirements R1 and R2 of Reliability Standard CIP-003-7.55 We propose to accept these violation risk factors and violation severity levels.

    55Id., Exhibit F (Analysis of Violation Risk Factors and Violation Severity Levels).

    III. Information Collection Statement

    48. The FERC-725B information collection requirements contained in this proposed rule are subject to review by the Office of Management and Budget (OMB) under section 3507(d) of the Paperwork Reduction Act of 1995.56 OMB's regulations require approval of certain information collection requirements imposed by agency rules.57 Upon approval of a collection of information, OMB will assign an OMB control number and expiration date. Respondents subject to the filing requirements of this rule will not be penalized for failing to respond to these collections of information unless the collections of information display a valid OMB control number. The Commission solicits comments on the Commission's need for this information, whether the information will have practical utility, the accuracy of the burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected or retained, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques.

    56 44 U.S.C. 3507(d) (2012).

    57 5 CFR 1320.11 (2017).

    49. The Commission bases its paperwork burden estimates on the changes in paperwork burden presented by the proposed revision to CIP Reliability Standard CIP-003-7 as compared to the current Commission-approved Reliability Standard CIP-003-6. The Commission has already addressed the burden of implementing Reliability Standard CIP-003-6.58 As discussed above, the immediate rulemaking addresses three areas of modification to the CIP Reliability Standards: 1. Clarifying the obligations pertaining to electronic access control for low impact BES Cyber Systems; 2. adopting mandatory security controls for transient electronic devices (e.g., thumb drives, laptop computers, and other portable devices frequently connected to and disconnected from systems) used at low impact BES Cyber Systems; and 3. requiring responsible entities to have a policy for declaring and responding to CIP Exceptional Circumstances related to low impact BES Cyber Systems.

    58See Order No. 822, 154 FERC ¶ 61,037 at PP 84-88.

    50. The NERC Compliance Registry, as of September 2017, identifies approximately 1,320 U.S. entities that are subject to mandatory compliance with Reliability Standards. Of this total, we estimate that 1,100 entities will face an increased paperwork burden under proposed Reliability Standard CIP 003-7, estimating that a majority of these entities will have one or more low impact BES Cyber Systems. Based on these assumptions, we estimate the following reporting burden:

    RM17-11-000 NOPR [Mandatory Reliability Standards for Critical Infrastructure Protection Reliability Standards] Number of
  • respondents
  • (1)
  • Annual
  • number of
  • responses per respondent
  • (2)
  • Total number of responses
  • (1) * (2) = (3)
  • Average burden & cost
  • per response 59
  • (4)
  • Total annual burden hours & total annual cost
  • (3) * (4) = (5)
  • Cost per
  • respondent
  • ($)
  • (5) ÷ (1)
  • Create low impact TCA assets plan (one-time) 60 1,100 1 1,100 20 hrs.; $1,680 6,875 hrs.; $1,848,000 $1,680 Updates and reviews of low impact TCA assets (ongoing) 61 1,100 62 300 330,000 1.5 hrs. 63; $126 495,000 hrs.; $41,580,000 37,800 Update/modify documentation to remove LERC and LEAP (one-time) 60 1,100 1 1,100 20 hrs.; $1,680 6,875 hrs.; $1,848,000 1,680 Update paperwork for access control implementation in Section 2 64 and Section 3 65 (ongoing) 61 1,100 1 1,100 20 hrs.; $1,680 6,875 hrs.; $1,848,000 1,680 Total (one-time) 60 2,200 13,750 hrs.; $3,696,000 Total (ongoing) 61 331,100 501,875 hrs.; $43,428,000

    51. The following shows the annual cost burden for each group, based on the burden hours in the table above:

    59 The loaded hourly wage figure (includes benefits) is based on the average of three occupational categories for 2016 found on the Bureau of Labor Statistics Web site (http://www.bls.gov/oes/current/naics2_22.htm):

    Legal (Occupation Code: 23-0000): $143.68.

    Electrical Engineer (Occupation Code: 17-2071): $68.12.

    Office and Administrative Support (Occupation Code: 43-0000): $40.89 ($143.68 + $68.12 + $40.89) ÷ 3 = $84.23. The figure is rounded to $84.00 for use in calculating wage figures in this NOPR.

    60 This one-time burden applies in Year One only.

    61 This ongoing burden applies in Year 2 and beyond.

    62 We estimate that each entity will perform 25 updates per month. 25 updates *12 months = 300 updates (i.e. responses) per year.

    63 The 1.5 hours of burden per response is comprised of three sub-categories:

    Updates to managed low TCA assets: 15 minutes (0.25 hours) per response.

    Updates to unmanaged low TCA assets: 60 minutes (1 hour) per response.

    Reviews of low TCA applicable controls: 15 minutes (0.25 hours) per response.

    64 Physical Security Controls.

    65 Electronic Access Controls.

    • Year 1: $3,696,000.

    • Years 2 and 3: $43,428,000.

    • The paperwork burden estimate includes costs associated with the initial development of a policy to address requirements relating to: 1. Clarifying the obligations pertaining to electronic access control for low impact BES Cyber Systems; 2. adopting mandatory security controls for transient electronic devices (e.g., thumb drives, laptop computers, and other portable devices frequently connected to and disconnected from systems) used at low impact BES Cyber Systems; and 3. requiring responsible entities to have a policy for declaring and responding to CIP Exceptional Circumstances related to low impact BES Cyber Systems. Further, the estimate reflects the assumption that costs incurred in year 1 will pertain to policy development, while costs in years 2 and 3 will reflect the burden associated with maintaining logs and other records to demonstrate ongoing compliance.

    52. Title: Mandatory Reliability Standards, Revised Critical Infrastructure Protection Reliability Standards

    Action: Proposed Collection FERC-725B.

    OMB Control No.: 1902-0248.

    Respondents: Businesses or other for-profit institutions; not-for-profit institutions.

    Frequency of Responses: On Occasion.

    Necessity of the Information: This proposed rule proposes to approve the requested modifications to Reliability Standards pertaining to critical infrastructure protection. As discussed above, the Commission proposes to approve NERC's proposed revised CIP Reliability Standard CIP-003-7 pursuant to section 215(d)(2) of the FPA because it improves upon the currently-effective suite of cyber security CIP Reliability Standards.

    Internal Review: The Commission has reviewed the proposed Reliability Standards and made a determination that its action is necessary to implement section 215 of the FPA.

    53. Interested persons may obtain information on the reporting requirements by contacting the following: Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director, email: [email protected], phone: (202) 502-8663, fax: (202) 273-0873].

    54. For submitting comments concerning the collection(s) of information and the associated burden estimate(s), please send your comments to the Commission, and to the Office of Management and Budget, Office of Information and Regulatory Affairs, Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission, phone: (202) 395-4638, fax: (202) 395-7285]. For security reasons, comments to OMB should be submitted by email to: [email protected] Comments submitted to OMB should include Docket Number RM17-11-000 and OMB Control Number 1902-0248.

    IV. Regulatory Flexibility Act Analysis

    55. The Regulatory Flexibility Act of 1980 (RFA) generally requires a description and analysis of proposed rules that will have significant economic impact on a substantial number of small entities.66 The Small Business Administration's (SBA) Office of Size Standards develops the numerical definition of a small business.67 The SBA revised its size standard for electric utilities (effective January 22, 2014) to a standard based on the number of employees, including affiliates (from the prior standard based on megawatt hour sales).68 Proposed Reliability Standard CIP-003-7 is expected to impose an additional burden on 1,100 entities 69 (reliability coordinators, generator operators, generator owners, interchange coordinators or authorities, transmission operators, balancing authorities, transmission owners, and certain distribution providers).

    66 5 U.S.C. 601-12 (2012).

    67 13 CFR 121.101 (2017).

    68 SBA Final Rule on “Small Business Size Standards: Utilities,” 78 FR 77343 (Dec. 23, 2013).

    69 Public utilities may fall under one of several different categories, each with a size threshold based on the company's number of employees, including affiliates, the parent company, and subsidiaries. For the analysis in this NOPR, we are using a 500 employee threshold due to each affected entity falling within the role of Electric Bulk Power Transmission and Control (NAISC Code: 221121).

    56. Of the 1,100 affected entities discussed above, we estimate that approximately 857 or 78 percent 70 of the affected entities are small. As discussed above, proposed Reliability Standard CIP-003-7 enhances reliability by providing criteria against which NERC and the Commission can evaluate the sufficiency of an entity's electronic access controls for low impact BES Cyber systems, as well as improved security controls for transient electronic devices (e.g., thumb drives, laptop computers, and other portable devices frequently connected to and disconnected from systems). We estimate that each of the 857 small entities to whom the proposed modifications to Reliability Standard CIP-003-7 applies will incur one-time costs of approximately $3,360 per entity to implement this standard, as well as the ongoing paperwork burden reflected in the Information Collection Statement (approximately $39,480 per year per entity). We do not consider the estimated costs for these 857 small entities to be a significant economic impact.

    70 77.95 percent.

    57. Based on the above analysis, we propose to certify that the proposed Reliability Standard will not have a significant economic impact on a substantial number of small entities.

    V. Environmental Analysis

    58. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.71 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment. Included in the exclusion are rules that are clarifying, corrective, or procedural or that do not substantially change the effect of the regulations being amended.72 The actions proposed herein fall within this categorical exclusion in the Commission's regulations.

    71Regulations Implementing the National Environmental Policy Act of 1969, Order No. 486, FERC Stats. & Regs. ¶ 30,783 (1987).

    72 18 CFR 380.4(a)(2)(ii) (2017).

    VI. Comment Procedures

    59. The Commission invites interested persons to submit comments on the matters and issues proposed in this notice to be adopted, including any related matters or alternative proposals that commenters may wish to discuss. Comments are due December 26, 2017. Comments must refer to Docket No. RM17-11-000, and must include the commenter's name, the organization they represent, if applicable, and address.

    60. The Commission encourages comments to be filed electronically via the eFiling link on the Commission's Web site at http://www.ferc.gov. The Commission accepts most standard word processing formats. Documents created electronically using word processing software should be filed in native applications or print-to-PDF format and not in a scanned format. Commenters filing electronically do not need to make a paper filing.

    61. Commenters that are not able to file comments electronically must send an original of their comments to: Federal Energy Regulatory Commission, Secretary of the Commission, 888 First Street NE., Washington, DC 20426.

    62. All comments will be placed in the Commission's public files and may be viewed, printed, or downloaded remotely as described in the Document Availability section below. Commenters on this proposal are not required to serve copies of their comments on other commenters.

    VII. Document Availability

    63. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the Internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE., Room 2A, Washington, DC 20426.

    64. From the Commission's Home Page on the Internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number of this document, excluding the last three digits, in the docket number field.

    65. User assistance is available for eLibrary and the Commission's Web site during normal business hours from the Commission's Online Support at 202-502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at [email protected]

    By direction of the Commission.

    Issued October 19, 2017. Nathaniel J. Davis, Sr., <E T="03">Deputy Secretary.</E>
    [FR Doc. 2017-23287 Filed 10-25-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [REG-134247-16] RIN 1545-BN73 Revision of Regulations Under Chapter 3 Regarding Withholding of Tax on Certain U.S. Source Income Paid to Foreign Persons; Correction AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Notice of proposed rulemaking; correction.

    SUMMARY:

    This document corrects a correction to a notice of proposed rulemaking (REG-134247-16) that was published in the Federal Register on Friday, September 15, 2017. The notice of proposed rulemaking, published on January 6, 2017, under section 1441 of the Internal Revenue Code of 1986 (Code), relates to withholding of tax on certain U.S. source income paid to foreign persons and requirements for certain claims for refund or credit of income tax made by foreign persons.

    DATES:

    The correction published on September 15, 2017 (82 FR 43314), is corrected as of October 26, 2017 and is applicable beginning January 6, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Kamela Nelan at (202) 317- 6942 (not a toll-free number).

    SUPPLEMENTARY INFORMATION:

    Background

    The notice of proposed rulemaking (REG-134247-16) that is the subject of this correction is under section 1441 of the Code.

    Need for Correction

    As published, the notice of proposed rulemaking (REG-134247-16) contains an error which may prove to be misleading and needs to be corrected.

    Correction of Publication

    Accordingly, the notice of proposed rulemaking published at 82 FR 43314, September 15, 2017, is corrected as follows:

    On page 43314, in the third column, under the heading “Correction of Publication”, in the fourth line, the language “On page 1636, ” is corrected to read “On page 1646, ”.

    Martin V. Franks, Chief, Publications and Regulations Branch, Legal Processing Division, Associate Chief Counsel (Procedure and Administration).
    [FR Doc. 2017-22815 Filed 10-25-17; 8:45 am] BILLING CODE 4830-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2016-0723] RIN 1625-AA09 Drawbridge Operation Regulation; Atlantic Intracoastal Waterway, St. Augustine, FL AGENCY:

    Coast Guard, DHS.

    ACTION:

    Advance notice of proposed rulemaking; withdrawal.

    SUMMARY:

    The Coast Guard is withdrawing its advance notice of proposed rulemaking (ANPRM) concerning the Bridge of Lions (SR A1A) across the Atlantic Intracoastal Waterway, mile 777.9, at St. Augustine, Florida. The City of St. Augustine proposed to modify the bridge operating schedule to alleviate vehicle traffic congestion. However, the Coast Guard has determined it would be inappropriate to move forward with a notice of proposed rulemaking. The Coast Guard believes placing additional restrictions to the bridge would add additional hazards to mariners and effect the safe navigation of vessels awaiting bridge openings.

    DATES:

    The notice of proposed rulemaking published on March 15, 2017 (82 FR 13785), is withdrawn on October 26, 2017.

    ADDRESSES:

    The docket for this document, USCG-2016-0723 is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH.” Click on Open Docket Folder on the line associated with this document.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions about this document, call or email LT Allan Storm, Sector Jacksonville, Waterways Management Division, U.S. Coast Guard; telephone 904-714-7616, email [email protected]

    SUPPLEMENTARY INFORMATION:

    Background Information and Regulatory History

    On March 15, 2017, the Coast Guard published an ANPRM entitled “Drawbridge Operation Regulation; Atlantic Intracoastal Waterway, St. Augustine, FL” in the Federal Register (82 FR 13785). The advance notice of proposed rulemaking sought comments and information concerning a request from the City of St. Augustine to change the operating schedule for the Bridge of Lions across the Atlantic Intracoastal Waterway, St. Augustine, Florida amending the twice an hour operating schedule to a 7 a.m. to 9 p.m. period. The City of St. Augustine was concerned that vehicle traffic was becoming exponentially worse with each passing season and that the current operating schedule was contributing to vehicle traffic backups.

    Withdrawal

    The Coast Guard received 386 comments, of those, 62 comments were duplicate entries, 204 comments were in favor for the requested change and 120 were against the requested change. The comments in favor of the change generally felt the additional restrictions to the bridge would help alleviate vehicular traffic on or around the bridge and the surrounding area. For the comments that opposed the change, by and large, the main concern was safety of mariners due to strong tidal currents and the high level of vessel activities occurring in the waters near the bridge. Strong currents, the close proximity of mooring fields and marinas would hamper the ability to “keep on station” while waiting for a bridge opening. Also, sailing vessels waiting for bridge opening would be required to be moving constantly all the while avoiding other waiting vessel traffic. The requested change to the operating schedule would extend the twice an hour draw opening schedule by an additional three hours into the evening. Concern was expressed by having to wait for an opening in darkness, stating this would cause additional hazards due to vessels already underway, traffic lights against the city and vehicular lights adjacent to the waterway. The Coast Guard acknowledges all of the above safety concerns, and for that reason, we find that any benefits of the possible additional restrictions to the Bridge of Lions do not outweigh the additional hazards to vessels and mariners transiting the area around the bridge. The current regulation as written in 33 CFR 117.261(d) will remain in effect.

    Dated: October 5, 2017. Peter J. Brown, Rear Admiral, U.S. Coast Guard, Commander, Seventh Coast Guard District.
    [FR Doc. 2017-23321 Filed 10-25-17; 8:45 am] BILLING CODE 9110-04-P
    LIBRARY OF CONGRESS Copyright Office 37 CFR Part 201 [Docket No. 2017-10] Exemptions To Permit Circumvention of Access Controls on Copyrighted Works AGENCY:

    U.S. Copyright Office, Library of Congress.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The United States Copyright Office (“Copyright Office” or “Office”) is conducting the seventh triennial rulemaking proceeding under the Digital Millennium Copyright Act (“DMCA”), concerning possible temporary exemptions to the DMCA's prohibition against circumvention of technological measures that control access to copyrighted works. In this proceeding, the Copyright Office has established a new, streamlined procedure for the renewal of exemptions that were granted during the sixth triennial rulemaking. It is also considering petitions for new exemptions to engage in activities not currently permitted by existing exemptions. On June 30, 2017, the Office published a Notice of Inquiry requesting petitions to renew existing exemptions and comments in response to those petitions, as well as petitions for new exemptions to engage in activities not currently permitted by existing exemptions. The Office has carefully considered the comments received in response to that Notice. With this Notice of Proposed Rulemaking (“NPRM”), the Office intends to recommend each of the existing exemptions for readoption. This NPRM also initiates three rounds of public comment on the newly-proposed exemptions. Interested parties are invited to make full legal and evidentiary submissions in support of or in opposition to the proposed exemptions, in accordance with the requirements set forth below.

    DATES:

    Initial written comments (including documentary evidence) and multimedia evidence from proponents and other members of the public who support the adoption of a proposed exemption, as well as parties that neither support nor oppose an exemption but seek to share pertinent information about a proposal, are due December 18, 2017. Written response comments (including documentary evidence) and multimedia evidence from those who oppose the adoption of a proposed exemption are due February 12, 2018. Written reply comments from supporters of particular proposals and parties that neither support nor oppose a proposal are due March 14, 2018. Commenting parties should be aware that rather than reserving time for potential extensions of time to file comments, the Office has already established what it believes to be the most generous possible deadlines consistent with the goal of concluding the triennial proceeding in a timely fashion.

    ADDRESSES:

    The Copyright Office is using the regulations.gov system for the submission and posting of comments in this proceeding. All comments are therefore to be submitted electronically through regulations.gov. The Office is accepting two types of comments. First, commenters who wish briefly to express general support for or opposition to a proposed exemption may submit such comments electronically by typing into the comment field on regulations.gov. Second, commenters who wish to provide a fuller legal and evidentiary basis for their position may upload a Word or PDF document, but such longer submissions must be completed using the long-comment form provided on the Office's Web site at https://www.copyright.gov/1201/2018. Specific instructions for submitting comments, including multimedia evidence that cannot be uploaded through regulations.gov, are also available on that Web page. If a commenter cannot meet a particular submission requirement, please contact the Office using the contact information below for special instructions.

    FOR FURTHER INFORMATION CONTACT:

    Sarang Vijay Damle, General Counsel and Associate Register of Copyrights, by email at [email protected], Regan A. Smith, Deputy General Counsel, by email at [email protected], Anna Chauvet, Assistant General Counsel, by email at [email protected], or Jason E. Sloan, Attorney-Advisor, by email at [email protected] Each can be contacted by telephone by calling (202) 707-8350.

    SUPPLEMENTARY INFORMATION:

    On June 30, 2017, the Office published a Notice of Inquiry requesting petitions to renew current exemptions, oppositions to the renewal petitions, and petitions for newly proposed exemptions (the “Notice of Inquiry”) in connection with the seventh triennial section 1201 rulemaking.1 In response, the Office received thirty-nine renewal petitions, five comments regarding the scope of the renewal petitions, and one comment in opposition to renewal of a current exemption.2 These comments are discussed further below. In addition, the Office received twenty-three petitions for new exemptions, many of which seek to expand upon a current exemption.

    1 82 FR 29804 (June 30, 2017).

    2 The comments received in response to the Notice of Inquiry are available online at https://www.regulations.gov/docketBrowser?rpp=25&so=DESC&sb=commentDueDate&po=0&dct=PS&D=COLC-2017-0007. References to these comments are by party name (abbreviated where appropriate) followed by either “Renewal Pet.,” “Pet.,” or “Renewal Comment,” as appropriate.

    With this NPRM, the Office sets forth the exemptions the Register of Copyrights intends to recommend for readoption without the need for further development of the administrative record, and outlines the proposed classes for new exemptions for which the Office initiates three rounds of public comment.

    I. Standard for Evaluating Proposed Exemptions

    As the Notice of Inquiry explained, for a temporary exemption from the prohibition on circumvention to be granted through the triennial rulemaking, it must be established that “persons who are users of a copyrighted work are, or are likely to be in the succeeding 3-year period, adversely affected by the prohibition . . . in their ability to make noninfringing uses under [title 17] of a particular class of copyrighted works.” 3 To devise an appropriate class of copyrighted works, the Office begins with the broad categories of works identified in 17 U.S.C. 102 and then refines them by other criteria, such as the technological protection measures (“TPMs”) used, distribution platforms, and/or types of uses or users.4

    3 17 U.S.C. 1201(a)(1)(C).

    4See H.R. Rep. No. 105-551, pt. 2, at 38 (1998) (“Commerce Comm. Report”); Register of Copyrights, Section 1201 Rulemaking: Sixth Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention, Recommendation of the Register of Copyrights 17-18 (2015) (“2015 Recommendation”); U.S. Copyright Office, Section 1201 of Title 17, at 26, 108-10 (2017), https://www.copyright.gov/policy/1201/section-1201-full-report.pdf (“1201 Study”).

    In evaluating the evidence, the Register must consider the following statutory factors: 1. The availability for use of copyrighted works; 2. the availability for use of works for nonprofit archival, preservation, and educational purposes; 3. the impact that the prohibition on the circumvention of technological measures applied to copyrighted works has on criticism, comment, news reporting, teaching, scholarship, or research; 4. the effect of circumvention of technological measures on the market for or value of copyrighted works; and 5. such other factors as the Librarian considers appropriate.” 5 After developing a comprehensive administrative record, the Register makes a recommendation to the Librarian of Congress concerning whether exemptions are warranted based on that record.

    5 17 U.S.C. 1201(a)(1)(C).

    The Office has previously articulated the substantive legal and evidentiary standard for the granting of an exemption under section 1201(a)(1) multiple times, including in its recently-issued video and PowerPoint tutorials, the 1201 Study, and in prior recommendations of the Register concerning proposed classes of exemptions, each of which is accessible from the Office's 1201 rulemaking Web page at https://www.copyright.gov/1201/. At bottom, in considering whether to recommend an exemption, the Office must inquire: “Are users of a copyrighted work adversely affected by the prohibition on circumvention in their ability to make noninfringing uses of a class of copyrighted works, or are users likely to be so adversely affected in the next three years?” 6 This inquiry breaks into the following elements:

    6 1201 Study at 114.

    • The proposed class includes at least some works protected by copyright.

    • The uses at issue are noninfringing under title 17.

    • Users are adversely affected in their ability to make such noninfringing uses or, alternatively, users are likely to be adversely affected in their ability to make such noninfringing uses during the next three years. This element is analyzed in reference to section 1201(a)(1)(C)'s five statutory factors.

    • The statutory prohibition on circumventing access controls is the cause of the adverse effects.7

    7Id. at 115; see also id. at 115-27.

    The Register will consider the Copyright Act and relevant judicial precedents when analyzing whether a proposed use is likely to be noninfringing.8 When considering whether such uses are being adversely impacted by the prohibition on circumvention, the rulemaking focuses on “distinct, verifiable, and measurable impacts” compared to “de minimis impacts.” 9 Taking the administrative record together, the Office will consider whether the preponderance of the evidence in the record shows that the conditions for granting an exemption have been met.10

    8Id. at 115-17. While controlling precedent directly on point is not required to justify an exemption, there is no “rule of doubt” favoring an exemption when it is unclear that a particular use is fair or otherwise noninfringing. See 2015 Recommendation at 15.

    9 Commerce Comm. Report at 37; see also Staff of H. Comm. on the Judiciary, 105th Cong., Section-by-Section Analysis of H.R. 2281 as Passed by the United States House of Representatives on August 4th, 1998, at 6 (Comm. Print 1998) (using the equivalent phrase “substantial adverse impact”) (“House Manager's Report”); see also, e.g., 1201 Study at 119-21 (discussing same and citing application of this standard in five prior rulemakings).

    10See 17 U.S.C. 1201(a)(1)(C) (asking whether users “are, or are likely to be in the succeeding 3-year period, adversely affected by the prohibition [on circumvention] in their ability to make noninfringing uses”) (emphasis added); 1201 Study at 111-12; see also Sea Island Broad. Corp. v. FCC, 627 F.2d 240, 243 (D.C. Cir. 1980) (noting that “[t]he use of the `preponderance of evidence' standard is the traditional standard in civil and administrative proceedings”); 70 FR 57526, 57528 (Oct. 3, 2005); 2015 Recommendation at 15; Register of Copyrights, Section 1201 Rulemaking: Fifth Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention, Recommendation of the Register of Copyrights 6 (2012) (“2012 Recommendation”); Register of Copyrights, Section 1201 Rulemaking: Second Triennial Proceeding to Determine Exemptions to the Prohibition on Circumvention, Recommendation of the Register of Copyrights 19-20 (2003) (“2003 Recommendation”).

    II. Review of Petitions To Renew Existing Exemptions

    During this rulemaking, the Office initiated a new streamlined process for recommending readoption of previously-adopted exemptions to the Librarian. As the Office explained in its recent 1201 Study, the “Register must apply the same evidentiary standards in recommending the renewal of exemptions as for first-time exemption requests,” and the statute requires that “a determination must be made specifically for each triennial period.” 11 The Office further determined that “the statutory language appears to be broad enough to permit determinations to be based upon evidence drawn from prior proceedings, but only upon a conclusion that this evidence remains reliable to support granting an exemption in the current proceeding.” 12

    11 1201 Study at 142, 145.

    12Id. at 143.

    Based on this understanding of the statutory scheme, the Office solicited petitions for the renewal of exemptions as they are currently formulated, without modification. Thus, if a proponent sought to engage in any activities not currently permitted by an existing exemption, a petition for a new exemption had to have been submitted. This is because streamlined renewal is based upon a determination that, due to a lack of legal, marketplace, or technological changes, the factors that led the Register to recommend adoption of the exemption in the prior rulemaking will continue into the forthcoming triennial period.13 That is, the same facts and circumstances underlying the previously-adopted regulatory exemption may be relied on to renew the exemption. Accordingly, to the extent that any renewal petition proposed uses beyond the current exemption, the Office disregarded those portions of the petition for purposes of considering the renewal of the exemption, and instead focused on whether it provided sufficient information to warrant readoption of the exemption in its current form.14

    13Id. at 143-44.

    14 This suffices to address concerns raised that some renewal petitions sought exemptions broader than currently formulated. See Entertainment Software Association, the Motion Picture Association of America, Inc. & the Recording Industry of America, Inc. (collectively, “Joint Creators”) Renewal Comment at 2; DVD Copy Control Association (“DVD CCA”) & The Advanced Access Content System Licensing Administrator (“AACS LA”) AV Noncom. Videos Renewal Comment at 1-2, 4-5; DVD CCA & AACS LA AV Univ. Renewal Comment at 1-2, 5; Alliance of Automobile Manufacturers (“Auto Alliance”) Renewal Comment at 1-2.

    The Office received thirty-nine petitions to renew existing exemptions, including at least one petition to renew each currently-adopted exemption. Each petition to renew an existing exemption included an explanation summarizing the basis for claiming a continuing need and justification for the exemption. In each case, petitioners also signed a declaration stating that, to the best of their personal knowledge, there has not been any material change in the facts, law, or other circumstances set forth in the prior rulemaking record such that renewal of the exemption would not be justified.

    The Office also received six comments in response to the renewal petitions; five did not oppose renewal, but offered more general comments, and one was styled as an opposition to renewal. One general comment filed by the Entertainment Software Association, the Motion Picture Association of America, Inc., and the Recording Industry Association of America, Inc. (collectively, “Joint Creators”) raised some overarching issues with the renewal petitions. Specifically, Joint Creators expressed concern that many of the renewal petitions “were based on what the petitioners attest they have been told by others, rather than on their own personal knowledge.” 15 But as the Office explained in its Notice of Inquiry, it expected that “a broad range of individuals have a sufficient level of knowledge and experience” regarding the continued need for an exemption. For instance, the Notice of Inquiry noted that a renewal petition could be filed by a relevant employee or volunteer at an organization—like the American Foundation for the Blind, which advocates for the blind, visually impaired, and print disabled—who is familiar with the needs of the community, and is well-versed specifically in the e-book accessibility issue, to make the declaration with regard to the current e-book assistive technology exemption.16 Consistent with that direction, the Office received petitions from some individuals who may not themselves have engaged in circumvention, but attested to their personal knowledge of others who have a continuing need for an exemption. Those petitions were signed by individuals at associations that had actively participated in the past rulemaking and described specific continued needs for the exemption.17 Accordingly, the Office finds that these petitions are formally and substantively sufficient for the Office to consider in evaluating whether renewal of the existing exemptions exemption is appropriate.18

    15 Joint Creators Renewal Comment at 2 n.4.

    16 82 FR at 29806. The Office did suggest that it would be improper for a member of the general public to petition for renewal if he or she knew nothing more about matters concerning e-book accessibility other than what he or she might have read in a brief newspaper article, or simply opposed the use of digital rights management tools as a matter of general principle—but none of the renewal petitions raise that issue.

    17See, e.g., The Intellectual Property & Technology Law Clinic of the University of Southern California Gould School of Law (“IPTC U.S.C.”) Renewal Pet. at 3 (“We have personally heard from a number of farmers and farm bureaus that farmers need this exemption and anticipate needing to use it in the future.”); Electronic Frontier Foundation (“EFF”) Repair Renewal Pet. at 3 (describing groups of users with continued need to engage in circumvention of motorized land vehicles and conversation with individual who modifies motorized wheelchairs and mobility scooters to tailor to the individual needs of users). The Office notes that parties demonstrated personal knowledge in multiple ways. One particularly helpful example was the petition submitted by Professors Bellovin, Blaze, and Heninger, which described how they rely on the exemption for their own security research and will continue to do so, discussed reliance on the exemption by other security researchers, and provided a recent example illustrating reliance on the exemption by security researchers. Bellovin, Blaze & Heninger Renewal Pet. at 3.

    18 Joint Creators also urged that petitions that “expressly base their justification . . . on a need to provide circumvention assistance that would likely be prohibited by [the anti-trafficking provision of section 1201] should not be considered supportive of actual renewal.” Joint Creators Renewal Comment at 3 (referencing Auto Care Association (“Auto Care”), Consumer Technology Association (“CTA”), iFixit & Owners' Rights Initiative (“ORI”) Repair Renewal Pet.). The Office agrees that exemptions adopted through the triennial rulemaking cannot extend to the trafficking prohibitions in section 1201, but concludes that the petitions have sufficiently articulated a basis for renewal of the current exemptions under the statutory standard.

    As detailed below, after reviewing the petitions for renewal and comments in response, the Office concludes that it has received a sufficient petition to renew each existing exemption and it does not find any meaningful opposition to renewal. Accordingly, the Register intends to recommend readoption of all existing exemptions in their current form.19

    19 Although the Office's Notice of Inquiry stated that this NPRM would set forth proposed regulatory language for any existing exemptions the Office intends to recommend for readoption, because many of the new petitions seek to expand existing exemptions, the Office concludes that proposing regulatory language at this time would be premature; the Register may propose altering current regulatory language to expand the scope of an existing exemption, where the record suggests such a change is appropriate.

    A. Literary Works Distributed Electronically (i.e., e-Books), for Use With Assistive Technologies for Persons Who Are Blind, Visually Impaired, or Have Print Disabilities

    Multiple organizations petitioned to renew the exemption for literary works distributed electronically (i.e., e-books), for use with assistive technologies for persons who are blind, visually impaired, or have print disabilities (codified at 37 CFR 201.40(b)(2)).20 No oppositions were filed against readoption of this exemption. The petitions demonstrated the continuing need and justification for the exemption, stating that individuals who are blind, visually impaired, or print disabled are significantly disadvantaged with respect to obtaining accessible e-book content because TPMs interfere with the use of assistive technologies such as screen readers and refreshable Braille displays.21 Indeed, AFB, ACB, Samuelson-Glushko TLPC, and LCA noted that the record underpinning this exemption “has stood and been re-established in the past five triennial reviews, dating back to 2003,” and that the “accessibility of ebooks is frequently cited as a top priority” by its members and the patrons of LCA's member institutions.22 In addition, the petitioners demonstrated personal knowledge and experience with regard to the assistive technology exemption; they are all organizations that advocate for the blind, visually impaired, and print disabled.

    20 American Foundation for the Blind (“AFB”), American Council of the Blind (“ACB”), Samuelson-Glushko Technology Law & Policy Clinic at Colorado Law (“Samuelson-Glushko TLPC”) & Library Copyright Alliance (“LCA”) Renewal Pet.; University of Michigan Library Copyright Office (“UMLCO”) eBooks Renewal Pet.

    21 AFB, ACB, Samuelson-Glushko TLPC & LCA Renewal Pet. at 3; UMLCO eBooks Renewal Pet. at 3.

    22 AFB, ACB, Samuelson-Glushko TLPC & LCA Renewal Pet. at 3.

    Based on the information provided in the renewal petitions and the lack of opposition, the Register believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Register intends to recommend renewal of this exemption.

    B. Literary Works Consisting of Compilations of Data Generated by Implanted Medical Devices and Corresponding Personal Monitoring Systems, To Access Personal Data

    Hugo Campos, member of the Coalition of Medical Device Patients and Researchers, and represented by the Harvard Law School Cyberlaw Clinic, petitioned to renew the exemption covering access to patient data on networked medical devices (codified at 37 CFR 201.40(b)(10)).23 No oppositions were filed against the petition to renew this exemption. Mr. Campos's petition demonstrated the continuing need and justification for the exemption, stating that patients continue to need access to data output from their medical devices to manage their health.24 Mr. Campos demonstrated personal knowledge and experience with regard to this exemption, as he is a patient needing access to the data output from his medical device, and is a member of the Coalition of Medical Device Patients and Researchers, a coalition whose members research, comment on, and examine the effectiveness of networked medical devices.

    23 Campos Compilations of Data Renewal Pet.

    24Id. at 3.

    Based on the information provided in the renewal petition and the lack of opposition, the Register believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Register intends to recommend renewal of this exemption.

    C. Computer Programs That Operate Cellphones, Tablets, Mobile Hotspots, or Wearable Devices (e.g., Smartwatches), To Allow Connection of a Used Device to an Alternative Wireless Network (“Unlocking”)

    Multiple organizations petitioned to renew the exemption for computer programs that operate cellphones, tablets, mobile hotspots, or wearable devices (e.g., smartwatches), to allow connection of a used device to an alternative wireless network (“unlocking”) (codified at 37 CFR 201.40(b)(3)).25 No oppositions were filed against the petitions seeking to renew this exemption. The petitions demonstrate the continuing need and justification for the exemption, stating that consumers of the enumerated products continue to need to be able to unlock the devices so they can switch network providers. For example, ISRI stated that its members continue to purchase or acquire donated cell phones and tablets, and try to reuse them, but that wireless carriers still lock devices to prevent them from being used on other carriers.26 In addition, the petitioners demonstrated personal knowledge and experience with regard to this exemption. CCA, ORI, and ISRI represent companies that rely on the ability to unlock cellphones. A number of the petitioners also participated in past 1201 triennial rulemakings relating to unlocking lawfully-acquired wireless devices.

    25 Competitive Carriers Association (“CCA”) Renewal Pet.; Consumers Union Renewal Pet.; Institute of Scrap Recycling Industries, Inc. (“ISRI”) Renewal Pet. (represented by Juelsgaard IP and Innovation Clinic, Mills Legal Clinic at Stanford Law School); ORI Unlocking Renewal Pet.

    26 ISRI Renewal Pet. at 3.

    Based on the information provided in the renewal petitions and the lack of opposition, the Register believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Register intends to recommend renewal of this exemption.

    D. Computer Programs That Operate Smartphones, Smart TVs, Tablets, or Other All-Purpose Mobile Computing Devices, To Allow the Device To Interoperate With or To Remove Software Applications (“Jailbreaking”)

    Multiple organizations petitioned to renew the exemptions for computer programs that operate smartphones, smart TVs, tablets, or other all-purpose mobile computing devices, to allow the device to interoperate with or to remove software applications (“jailbreaking”) (codified at 37 CFR 201.40(b)(4)-(5)).27 The petitions demonstrate the continuing need and justification for the exemption, and that petitioners had personal knowledge and experience with regard to this exemption. Specifically, the petitions state that, absent an exemption, TPMs applied to the enumerated products would have an adverse effect on noninfringing uses, such as being able to install third-party applications on a smartphone or download third-party software on a smart TV to enable interoperability.28 For example, EFF's petition outlined its declarant's experience searching current mobile computing device markets and technologies, working as a software engineer, and participating in four prior 1201 rulemakings.29 Similarly, the Libiquity petition was submitted by someone who “work[s] with the operating system and many of the system libraries that lie at the core of the firmware systems of a large majority of smartphones, portable all-purpose mobile computing devices, and smart televisions.” 30

    27 New Media Rights (“NMR”) Jailbreaking Renewal Pet.; EFF Jailbreaking Renewal Pet.; Libiquity Jailbreaking Renewal Pet.; Software Freedom Conservancy (“SFC”) Renewal Pet.

    28 NMR Jailbreaking Renewal Pet. at 1; EFF Jailbreaking Renewal Pet. at 1; Libiquity Jailbreaking Renewal Pet. at 1; SFC Renewal Pet. at 1.

    29 EFF Jailbreaking Renewal Pet. at 3.

    30 Libquity Jailbreaking Renewal Pet. at 3.

    In a brief two-page comment, BSA | The Software Alliance (“BSA”) opposed the readoption of this exemption, stating that “alternatives to circumvention exist,” and that “jailbreaking can undermine the integrity and security of a platform's operating system in a manner than facilitates copyright infringement and exposes users to heightened risks of privacy violations.” 31

    31 BSA Jailbreaking Renewal Comment at 1-2.

    As the Office explained in the Notice of Inquiry, “[o]pposition to a renewal petition must be meaningful, such that, from the evidence provided, it would be reasonable for the Register to conclude that the prior rulemaking record and any further information provided in the renewal petition are insufficient to support recommending renewal of an exemption.” 32 In such a circumstance, the exemption would be considered pursuant to the more comprehensive rulemaking process (i.e., three rounds of written comment, followed by public hearings).

    32 82 FR at 29807.

    The Office finds that BSA's comment largely re-articulates a general opposition to a jailbreaking exemption, and notes that the past three rulemakings have adopted some form of an exemption for jailbreaking certain types of mobile computing devices.33 Indeed, BSA specifically raised the issue of circumvention alternatives to jailbreaking in the 2015 triennial rulemaking,34 and does not now identify any specific alternatives that are available now but were not available during the previous rulemaking. BSA also cites the same article regarding pirated iOS apps considered by the Register during sixth triennial rulemaking.35 Similarly, BSA references Apple's launch of its App Store in 2008 to evidence how “access controls have increased, rather than decreased, the availability of software applications designed for use on mobile phones.” 36 The sixth triennial rulemaking, however, considered the existence of Apple's App Store and third-party apps.37 Nor does BSA identify changes in case law or new technological developments that might be relevant. Each of the issues raised by BSA in opposition to readoption had been considered and evaluated in granting the exemption previously. BSA provides no new evidence that demonstrates a change in circumstances.

    33 80 FR 65944, 65952-53 (Oct. 28, 2015); 77 FR 65260, 65263-64 (Oct. 26, 2012); 75 FR 43825, 43828-30 (July 27, 2010).

    34 2015 Recommendation at 185-87.

    35Id. at 187 n.1211.

    36 BSA Jailbreaking Renewal Comment at 2.

    37 2015 Recommendation at 181-82.

    The Office therefore concludes that BSA's opposition is not sufficiently meaningful to draw the conclusion that the past rulemaking record is no longer reliable, or that the reasoning adopted in the Register's 2015 Recommendation cannot be relied upon for the next three-year period.

    Based on the information provided in the renewal petitions and the lack of meaningful opposition, the Register believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Register intends to recommend renewal of this exemption.

    E. Computer Programs That Control Motorized Land Vehicles, Including Farm Equipment, for Purposes of Diagnosis, Repair, and Modification of the Vehicle

    Multiple organizations petitioned to renew the exemption for computer programs that control motorized land vehicles, including farm equipment, for purposes of diagnosis, repair, and modification of the vehicle (codified at 37 CFR 201.40(b)(6)).38 The petitions demonstrated the continuing need and justification for the exemption to prevent owners of motorized land vehicles from being adversely impacted in their ability to diagnose, repair, and modify their vehicles as a result of TPMs that protect the copyrighted computer programs on the electronic control units (“ECUs”) that control the functioning of the vehicles. For example, Auto Care, CTA, iFixit, and ORI stated that “approximately 20 percent of American consumers buy automotive parts and products to maintain and repair their own vehicles.” 39 AFBF similarly remarked that many agricultural vehicles are now “equipped with computers that monitor and control vehicle function,” and many agricultural equipment manufacturers have adopted TPMs that restrict access to such computer software.40 Indeed, MEMA, which during the sixth triennial rulemaking initially opposed any exemption that would impact the software and TPMs in vehicles, now supports renewal of this exemption because it strikes “an appropriate balance between encouraging marketplace competition and innovation while mitigating the impact on safety, regulatory, and environmental compliance.” 41 The petitioners demonstrated personal knowledge and experience with regard to this exemption; each either represents or gathered information from individuals conducting repairs or businesses that manufacture, distribute, and sell motor vehicle parts, and perform vehicle service and repair.

    38 Auto Care, CTA, iFixit & ORI Repair Renewal Pet.; American Farm Bureau Federation (“AFBF”) Renewal Pet.; EFF Repair Renewal Pet.; Motor & Equipment Manufacturers Association (“MEMA”) Repair Renewal Pet.; IPTC U.S.C. Renewal Pet.

    39 Auto Care, CTA, iFixit & ORI Repair Renewal Pet. at 3.

    40 AFBF Renewal Pet. at 3.

    41 MEMA Repair Renewal Pet. at 3.

    Although not opposing readoption of this exemption, in response to Auto Care, CTA, iFixit, and ORI's renewal petition, the Auto Alliance submitted comments to clarify that the Office “should reject any part of the . . . petition that argues for expanding the current temporary exemption . . . in section 201.40(b)(6), and should only consider the petition to the extent it seeks renewal of the current exemption as it is currently formulated, without modification.” 42 The Office agrees. As noted above, the Office's Notice of Inquiry clearly stated that renewal petitions could only seek readoption of current exemptions as they are currently formulated, without modification, and the Office disregarded sections of renewal petitions to the extent that they proposed uses beyond the current exemptions. To the extent Auto Care, CTA, iFixit, and ORI propose that repair shops should be able to “lawfully assist[ ] customers in the maintenance, repair, and upgrade of their vehicles” under the existing exemption,43 the Office finds this proposition to be outside the bounds of the procedure for exemption renewal. The Office notes, however, that iFixit petitioned for a new exemption that would expand the existing exemption to permit circumvention of TPMs to allow third-party repair services. The Office discusses iFixit's petition below.

    42 Auto Alliance Renewal Comment at 2.

    43 Auto Care, CTA, iFixit & ORI Repair Renewal Pet. at 3.

    Based on the information provided in the renewal petitions and the lack of opposition to the specific exemption, the Register believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Register intends to recommend renewal of this exemption.44

    44 The Office's recommendation will include removing language relating to a delayed effective date from the existing exemption. As noted in the Office's 1201 Study, during the last triennial rulemaking the Office “implemented a twelve-month delay for certain exemptions relating to security research and automobile repair to allow other agencies to react to the new rule.” 1201 Study at 124; see also 2015 Recommendation at 248, 317-18. But “now that agencies, consumers, and businesses alike have had the opportunity to consider these issues and react to [such] exemptions,” the Office “does not anticipate the Register recommending additional delays for implementation of exemptions unless necessitated by a grave or unusual situation.” 1201 Study at 125-26. Because the time delay for this exemption was intended to be a one-time delay, which has now expired, the Office considers its removal to be a technical change.

    F. Computer Programs That Operate Devices and Machines Primarily Designed for Use by Individual Consumers (Including Voting Machines), Motorized Land Vehicles, or Medical Devices Designed for Implantation in Patients and Corresponding Personal Monitoring Systems, for Purposes of Good-Faith Security Research.

    Multiple organizations and security researchers petitioned to renew the exemption for purposes of good-faith security research (codified at 37 CFR 201.40(b)(7)).45 The petitioners demonstrated the continuing need and justification for the exemption, and personal knowledge and experience with regard to this exemption. For example, Professors Bellovin, Blaze, and Heninger stated that they have conducted their own security research in reliance on the existing exemption, and that they “regularly engage” with other security researchers who have similarly relied on the exemption.46 They provided an example of a recent computer security conference in which thousands of participants relied on the existing exemption to examine and test electronic voting devices, during which they identified ways the security of the voting devices could be manipulated to affect election outcomes—the results of which were reported to election officials to improve the security of their voting systems.47

    45 Bellovin, Blaze & Heninger Renewal Pet. (represented by Professor Andrea Matwyshyn); Campos Security Research Renewal Pet.; Center for Democracy & Technology (“CDT”) Renewal Pet.; Felten, Halderman & ORI Renewal Pet. (represented by Samuelson-Glushko TLPC and Jonathan Band of policbandwidth); Libiquity Security Research Renewal Pet.

    46 Bellovin, Blaze & Heninger Renewal Pet. at 3.

    47Id.

    No oppositions were filed against readoption of this exemption. To the contrary, MEMA, which during the sixth triennial rulemaking initially opposed any exemption that would impact the software and TPMs in vehicles, now supports renewal of this exemption because it strikes “an appropriate balance between encouraging marketplace competition and innovation while mitigating the impact on safety, regulatory, and environmental compliance.” 48 In addition, BSA submitted comments in support of renewal of this exemption, noting that because the circumvention must be “carried out in a controlled environment” and conducted primarily to “promote safety and security,” the exemption “provides important clarity to good-faith security researchers while maintaining important safeguards that protect the safety, privacy and property interests of rights holders and the public.” 49

    48 MEMA Security Research Renewal Pet. at 3.

    49 BSA Security Research Renewal Comment at 2.

    Based on the information provided in the renewal petitions and the lack of opposition, the Register believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Register intends to recommend renewal of this exemption.50

    50 The Office's recommendation will include removing language relating to a delayed effective date from the existing exemption. As noted above regarding the existing exemption for repair, because the time delay for this exemption was intended to be a one-time delay, which has now expired, the Office considers its removal to be a technical change.

    G. Computer Programs That Operate 3D Printers, To Allow Use of Alternative Feedstock

    Michael Weinberg and ORI jointly petitioned to renew the exemption for computer programs that operate 3D printers to allow use of alternative feedstock (codified at 37 CFR 201.40(b)(9)).51 No oppositions were filed against readoption of this exemption. The petition demonstrated the continuing need and justification for the exemption, and the petitioner demonstrated personal knowledge and experience. Specifically, Mr. Weinberg petitioned for the existing exemption, and “continued to participate in the review of that exemption . . . in his personal capacity.” 52 In addition, the petition states that printers continue to restrict the use of third-party feedstock, thereby requiring renewal of the exemption.

    51 Weinberg & ORI Renewal Pet.

    52Id. at 1.

    Based on the information provided in the renewal petition and the lack of opposition, the Register believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Register intends to recommend renewal of this exemption.

    H. Video Games for Which Outside Server Support Has Been Discontinued, To Allow Individual Play by Gamers and Preservation of Games by Libraries, Archives, and Museums (as Well as Necessary Jailbreaking of Console Computer Code for Preservation Uses Only)

    Multiple organizations petitioned to renew the exemption for video games for which outside server support has been discontinued (codified at 37 CFR 201.40(b)(8)).53 The petitions state that libraries and museums continue to need the exemption to preserve and curate video games in playable form. For example, UMCLO stated that “[m]any games still depend on connection to an external server for gameplay,” suggesting that without a renewal of this exemption the ability of gamers to play them would be diminished.54 In addition, the petitioners demonstrated personal knowledge and experience with regard to this exemption through past participation in the 1201 triennial rulemaking relating to access controls on video games and consoles, and/or representing major library associations with members that have relied on this exemption. Readoption of this exemption was unopposed.55

    53 EFF Video Game Renewal Pet.; LCA Video Game Renewal Pet.; UMLCO Video Game Renewal Pet.

    54 UMCLO Video Game Renewal Pet. at 3.

    55 Joint Creators questioned whether the petitions sufficiently requested renewal of the portion of the exemption applicable to personal gameplay. Joint Creators Renewal Comment at 2, n.2. The Office notes that the declarations signed by the petitioners support readoption of the exemption in full. EFF Video Game Renewal Pet.; LCA Video Game Renewal Pet.; UMLCO Video Game Renewal Pet. Joint Creators themselves acknowledged that “the petitions appear to implicitly request renewal of the current exemption in its entirety” and did not oppose such renewal. Joint Creators Renewal Comment at 2, n.2.

    Based on the information provided in the renewal petitions and the lack of opposition, the Register believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Register intends to recommend renewal of this exemption.

    I. Motion Pictures (Including Television Programs and Videos): For Educational Uses by College and University Instructors and Students

    Multiple individuals and organizations petitioned to renew the exemption for motion pictures for educational uses by college and university instructors and students (codified at 37 CFR 201.40(b)(1)(iv)).56 No oppositions were filed against readoption of this exemption. The petitions demonstrated the continuing need and justification for the exemption, and personal knowledge and experience with regard to this exemption. For example, Joint Educators, AAUP, DCSUM, and LCA stated that courses on video essays (or multimedia or videographer criticism), now taught at many universities, would not be able to exist without relying on this exemption.57 Without this exemption, Joint Educators, AAUP, DCSUM, and LCA assert that educators would be “unable to provide an enriching and accurate description and analysis of cinematic or other audiovisual works when prevented from accessing such works due to TPM[s]” 58 —and their declarant, Professor Decherney, has personally relied upon this exemption to teach a course on multimedia criticism.59 Similarly, Professor Hobbs, who represents more than 17,000 digital and media literacy educators, and NAMLE, an organization devoted to media literacy with more than 3,500 members, stated that “sometimes teachers must circumvent a DVD protected by the Content Scramble System when screen-capture software or other non-circumventing alternatives are unable to produce the required level of high-quality content.” 60

    56 Decherney, Sender & Carpini (collectively, “Joint Educators”), American Association of University Professors (“AAUP”), the International Communication Association (“ICA”), Department of Communication Studies at the University of Michigan (“DCSUM”), the Society for Cinema and Media Studies (“SCMS”) & LCA AV Univ. Renewal Pet.; Hobbs & National Association for Media Literary Education (“NAMLE”) AV Univ. Renewal Pet.; UMLCO AV Univ. Renewal Pet.

    57 Joint Educators, AAUP, ICA, DCSUM, SCMS & LCA AV Univ. Renewal Pet. at 1.

    58Id.

    59Id.

    60 Hobbs & NAMLE AV Univ. Renewal Pet. at 1.

    The DVD Copy Control Association (“DVD CCA”) and The Advanced Access Content System Licensing Administrator (“AACS LA”) submitted comments regarding readoption of this exemption. Although DVD CCA and AACS LA did not oppose readoption, they stated that the exemption is “predicated on the need for close analysis of the film in uses that constitute criticism or comment,” and suggested that Joint Educators, AAUP, ICA, DCSUM, SCMS, and LCA did “not focus on the need for close analysis of the film” in their renewal petition.61 DVD CCA and AACS LA asked for clarification that “renewal of this exemption is limited to those uses where close analysis is necessary in the particular circumstance.” 62

    61 DVD CCA & AACS LA AV Univ. Renewal Comment at 1-2.

    62Id. at 4-5.

    As noted above, the Office's Notice of Inquiry stated that renewal petitions are to seek readoption of current exemptions as they are currently formulated, without modification. Therefore, the Office focused on whether the renewal petition provided sufficient information to warrant readoption of the exemption in its current form. In this case, Joint Educators, AAUP, ICA, DCSUM, SCMS, and LCA did state that “close analysis of digital media is being increasingly recognized across many disciplines as a fundamental tool for pedagogy,” followed by examples of such uses.63 Accordingly, the Office concludes that Joint Educators, AAUP, ICA, DCSUM, SCMS, and LCA provided sufficient information to support renewal of the existing exemption.

    63 Joint Educators, AAUP, ICA, DCSUM, SCMS & LCA AV Univ. Renewal Pet. at 3 (emphasis added).

    Based on the information provided in the renewal petitions and the lack of opposition, the Register believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Register intends to recommend renewal of this exemption.

    To the extent petitioners seek a broader exemption, the Office notes that petitions for new exemptions were filed seeking modification of the existing exemptions for educational uses of motion pictures. This NPRM initiates public comment on such modification through Proposed Class 1 described below, which combines multiple petitions for modified exemptions, including one by Joint Educators.

    J. Motion Pictures (Including Television Programs and Videos): For Educational Uses by K-12 Instructors and Students

    Multiple organizations petitioned to renew the exemption for motion pictures for educational uses by K-12 instructors and students (codified at 37 CFR 201.40(b)(1)(vi)).64 No oppositions were filed against readoption of this exemption. The petitions demonstrated the continuing need and justification for the exemption, stating that K-12 instructors and students continue to rely on excerpts from digital media for class presentations and coursework, and must sometimes use screen-capture technology. In addition, the petitioners demonstrated personal knowledge and experience with regard to this exemption through representation of thousands of digital and literacy educators and/or members supporting K-12 instructors and students, combined with past participation in the 1201 triennial rulemaking.

    64 LCA K-12 Renewal Pet.; Hobbs & NAMLE K-12 Renewal Pet.

    Based on the information provided in the renewal petitions and the lack of opposition, the Register believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Register intends to recommend renewal of this exemption.

    K. Motion Pictures (Including Television Programs and Videos): For Educational Uses in Massive Open Online Courses (“MOOCs”)

    Joint Educators, ICA, DCSUM, SCMS, and LCA petitioned to renew the exemption for motion pictures for educational uses in massive open online courses (“MOOCs”) (codified at 37 CFR 201.40(b)(1)(v)).65 No oppositions were filed against readoption of this exemption. The petition demonstrated the continuing need and justification for the exemption, stating that instructors continue to rely on the exemption to develop, provide, and improve MOOCs, as well as increase the number of (and therefore access to) MOOCs in the field of film and media studies. In addition, the declarant, Professor Decherney, demonstrated personal knowledge by describing his reliance on the exemption to teach MOOCs on film and media studies, as well as his past participation in the 1201 triennial rulemaking, along with Professor Carpini, ICA, SCMS, and LCA.

    65 Joint Educators, ICA, DCSUM, SCMS & LCA MOOCs Renewal Pet.

    Based on the information provided in the renewal petition and the lack of opposition, the Register believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Register intends to recommend renewal of this exemption.

    L. Motion Pictures (Including Television Programs and Videos): For Educational Uses in Digital and Literacy Programs Offered by Libraries, Museums, and Other Nonprofits

    Multiple organizations petitioned to renew the exemption for motion pictures for educational uses in digital and literacy programs offered by libraries, museums, and other nonprofits (codified at 37 CFR 201.40(b)(1)(viii)).66 No oppositions were filed against readoption of this exemption. The petitions demonstrated the continuing need and justification for the exemption, and demonstrated personal knowledge and experience with regard to this exemption. For example, LCA stated that librarians across the country have relied on the current exemption and will continue to do so for their digital and literacy programs.67 In addition, Professor Hobbs and NAMLE stated that librarians will continue to rely on this exemption for their digital and literacy programs, and to advance the digital media knowledge of their patrons.68

    66 LCA AV Nonprofit Renewal Pet.; Hobbs & NAMLE AV Nonprofit Renewal Pet.

    67 LCA AV Nonprofit Renewal Pet. at 1.

    68 Hobbs & NAMLE AV Nonprofit Renewal Pet. at 3.

    Based on the information provided in the renewal petitions and the lack of opposition, the Register believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Register intends to recommend renewal of this exemption.

    M. Motion Pictures (Including Television Programs and Videos): For Multimedia e-Books Offering Film Analysis

    A professor and two organizations collectively petitioned to renew the exemption for motion pictures for multimedia e-books offering film analysis (codified at 37 CFR 201.40(b)(1)(iii)).69 No oppositions were filed against readoption of this exemption. The petition demonstrated the continuing need and justification for the exemption, stating that the availability of video necessary for authors to undertake film analysis in e-books continues to be “limited to formats encumbered by technological protection measures. . . .” 70 In addition, the petitioners demonstrated personal knowledge through Professor Buster's continued work on an e-book series based on her lecture series, “Deconstructing Master Filmmakers: The Uses of Cinematic Enchantment,” and Authors Alliance's feedback that its members continue to desire authoring e-books that incorporate film for the purpose of analysis.71

    69 Buster, Authors Alliance & AAUP Renewal Pet. (represented by Samuelson-Glushko TLPC).

    70Id. at 3.

    71See id.

    Based on the information provided in the renewal petition and the lack of opposition, the Register believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Register intends to recommend renewal of this exemption.

    N. Motion Pictures (Including Television Programs and Videos): For Uses in Documentary Films

    Multiple organizations petitioned to renew the exemption for motion pictures for uses in documentary films (codified at 37 CFR 201.40(b)(1)(i)).72 No oppositions were filed against readoption of this exemption. The petitions summarized the continuing need and justification for the exemption, and the petitioners demonstrated personal knowledge and experience with regard to this exemption. For example, Joint Filmmakers, CID, and WIFV—which represent thousands of independent filmmakers across the nation—stated that TPMs such as encryption continue to prevent filmmakers from accessing needed material, and that this is “especially true for the kind of high definition motion picture material filmmakers need to satisfy both distributors and viewers.” 73 In addition, Joint Filmmakers have participated in multiple triennial rulemakings. Petitioners state that they personally know many filmmakers who have found it necessary to rely on this exemption, and will continue to do so.74

    72 Film Independent, International Documentary Association, Kartemquin Educational Films, Inc. (collectively, “Joint Filmmakers”), Center For Independent Documentary (“CID”) & Women in Film and Video (“WIFV”) Renewal Pet. (represented by Donaldson + Callif, LLP and UCI Intellectual Property Arts and Technology Clinic at University of California, Irvine (“UCI”)); NMR AV Documentary Renewal Pet.

    73 Joint Filmmakers, CID & WIFV Renewal Pet. at 3.

    74Id.; NMR AV Documentary Renewal Pet. at 3.

    Based on the information provided in the renewal petitions and the lack of opposition, the Register believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Register intends to recommend renewal of this exemption.

    O. Motion Pictures (Including Television Programs and Videos): For Uses in Noncommercial Videos

    Two organizations petitioned to renew the exemption for motion pictures for uses in noncommercial videos (codified at 37 CFR 201.40(b)(1)(ii)).75 No oppositions were filed against readoption of this exemption. The petitions demonstrated the continuing need and justification for the exemption, and the petitioners demonstrated personal knowledge and experience with regard to this exemption. For example, OTW has advocated for the noncommercial video exemption in past triennial rulemakings, and has heard from “a number of noncommercial remix artists” who have used the exemption and anticipate needing to use it in the future.76 These discussions included a report from an academic that video quality was important in facilitating classroom understanding and discussion.77 Similarly, NMR stated that it has spoken to a number of noncommercial video creators who have relied on this exemption, and intend to do so in the future.78

    75 NMR Noncom. Videos Renewal Pet.; Organization for Transformative Works (“OTW”) Renewal Pet.

    76 OTW Renewal Pet. at 3.

    77Id.

    78 NMR Noncom. Videos Renewal Pet. at 3.

    Although no oppositions were filed against readoption of the exemption as it currently exists, Joint Creators submitted comments expressing concern that OTW's renewal petition proposed using language from the triennial rulemaking initiated in 2008 instead of readopting the exemption without modification.79 DVD CCA and AACS LA made a similar observation.80

    79 Joint Creators Renewal Comment at 2 n.1.

    80 DVD CCA & AACS LA AV Noncom. Videos Renewal Comment at 4.

    As noted above, the Office's Notice of Inquiry stated that renewal petitions are to seek readoption of current exemptions as they are currently formulated, without modification. As a result, the Office did not consider, as part of the renewal process, sections of renewal petitions to the extent that they proposed uses beyond the current exemptions. The Office concludes, however, that OTW's submission, fairly read, did sufficiently petition for renewal of the exemption as it currently exists, providing detailed information supporting the continued need for an exemption for noncommercial videos.81

    81 OTW Renewal Pet. at 3-4.

    Based on the information provided in the renewal petitions and the lack of opposition, the Register believes that the conditions that led to adoption of this exemption are likely to continue during the next triennial period. Accordingly, the Register intends to recommend renewal of this exemption.

    To the extent OTW seeks modification of the existing noncommercial video exemption, the Office notes that a petition for a new exemption was filed seeking such modification. This NPRM initiates public comment on that modification through the proposed class described below.

    III. Analysis and Classification of Proposed New Exemptions

    Having addressed the petitions to renew existing exemptions, the Office now turns to the petitions for new or expanded exemptions. The Office received twenty-three petitions, which it has organized into twelve classes, as described below. Before turning to a description of those classes, the Office first explains the process and standards for submission of written comments.

    A. Submission of Written Comments

    Persons wishing to address proposed exemptions in written comments should familiarize themselves with the substantive legal and evidentiary standards for the granting of an exemption under section 1201(a)(1), which are also described in more detail on the Office's form for submissions of longer comments, available on its Web site. In addressing factual matters, commenters (both proponents and opponents) should be aware that the Office favors specific, “real-world” examples supported by evidence over speculative, hypothetical observations. In cases where the technology at issue is not apparent from the requested exemption, it can be helpful for commenters to describe the TPM(s) that control access to the work and method of circumvention.

    Commenters' legal analysis should explain why the proposal meets or fails to meet the criteria for an exemption under section 1201(a)(1), including, without limitation, why the uses sought are or are not noninfringing as a matter of law. The legal analysis should also discuss statutory or other legal provisions that could impact the necessity for or scope of the proposed exemption (for example, the Unlocking Consumer Choice and Wireless Competition Act (“Unlocking Act”), or 17 U.S.C. 117). Legal assertions should be supported by statutory citations, relevant case law, and other pertinent authority. In cases where a class proposes to expand an existing exemption, commenters should focus their comments on the legal and evidentiary bases for modifying the exemption, rather than the underlying exemption; as discussed above, the Register intends to recommend each current temporary exemption for renewal.

    To ensure a clear and definite record for each of the proposals, commenters are required to provide a separate submission for each proposed class during each stage of the public comment period. Although a single comment may not address more than one proposed class, the same party may submit multiple written comments on different proposals. The Office acknowledges that the requirement of separate submissions may require commenters to repeat certain information across multiple submissions, but the Office believes that the administrative benefits of creating a self-contained, separate record for each proposal will be worth the modest amount of added effort.

    The first round of public comment is limited to submissions from proponents (i.e., those parties who proposed new exemptions during the petition phase) and other members of the public who support the adoption of a proposed exemption, as well as any members of the public who neither support nor oppose an exemption but seek only to share pertinent information about a specific proposal.

    Proponents of exemptions should present their complete affirmative case for an exemption during the initial round of public comment, including all legal and evidentiary support for the proposal. Members of the public who oppose an exemption should present the full legal and evidentiary basis for their opposition in the second round of public comment. The third round of public comment will be limited to supporters of particular proposals and those who neither support nor oppose a proposal, who, in either case, seek to reply to points made in the earlier rounds of comments. Reply comments should not raise new issues, but should instead be limited to addressing arguments and evidence presented by others.

    B. The Proposed Classes

    As noted above, the Office has reviewed and classified the proposed exemptions set forth in the twenty-three petitions received in response to its Notice of Inquiry. Any exemptions adopted as part of this rulemaking must be based on “a particular class of works” 82 ; and the legislative history explains that each class is intended to “be a narrow and focused subset of the broad categories of works . . . identified in Section 102 of the Copyright Act. . . .” 83 As explained in the Notice of Inquiry, the Office consolidates or groups related and/or overlapping proposed exemptions where possible to simplify the rulemaking process and encourage joint participation among parties with common interests (though collaboration is not required). Accordingly, the Office has categorized the petitions into twelve proposed classes of works.

    82 17 U.S.C. 1201(a)(1)(B).

    83 Commerce Comm. Report at 38; see also 1201 Study at 109-10 (noting that while “in some cases, [the Office] can make a greater effort to group similar classes together, and will do so going forward,” “in other cases, the Office's ability to narrowly define the class is what enabled it to recommend the exemption at all, and so the Office will continue to refine classes when merited by the record”).

    Each proposed class is briefly described below; additional information can be found in the underlying petitions posted on regulations.gov. As explained in the Notice of Inquiry, the proposed classes “represent only a starting point for further consideration in the rulemaking proceeding, and will be subject to further refinement based on the record.” 84 The Office further notes that it has not put forward precise regulatory language for the proposed classes, because any specific language for exemptions that the Register ultimately recommends to the Librarian will depend on the full record developed during this rulemaking. Indeed, in the case of proposed modifications to existing exemptions, as stated above, the Register may propose altering current regulatory language to expand the scope of an exemption, where the record suggests such a change is appropriate.

    84 82 FR at 29808.

    In addition, after examining the petitions, the Office has preliminarily identified some initial legal and factual areas of interest with respect to certain proposed classes. The Office stresses, however, that these areas are not exhaustive, and commenters should consider and offer all legal argument and evidence they believe necessary to create a complete record. These early observations are offered without prejudice to the Office's ability to raise other questions or concerns at later stages of the proceeding. Finally, “where an exemption request resurrects legal or factual arguments that have been previously rejected, the Office will continue to rely on past reasoning to dismiss such arguments in the absence of new information.” 85

    85 1201 Study at 147; see also 79 FR 55687, 55690 (Sept. 17, 2014).

    Proposed Class 1: Audiovisual Works—Criticism and Comment

    Several petitions seek expansion of existing exemptions for circumvention of access controls protecting excerpts of motion pictures on DVDs, Blu-Ray discs, and digitally transmitted video for purposes of criticism and comment by various users, including creators of noncommercial videos, college and university faculty and students, faculty of massive open online courses (“MOOCs”), documentary filmmakers, and for multimedia e-books offering film analysis.

    Because the new proposals raise some shared concerns, including the impact of TPMs on the alleged noninfringing uses of motion pictures and whether alternative methods of accessing the content could alleviate potential adverse impacts, the Office has grouped these petitions into one class. This grouping is without prejudice to further refinement of this class, including whether it should be parsed back into subclasses based on specific uses, following the approach of past rulemakings. This approach also accounts for a joint petition by EFF, NMR, and OTW, which seeks to collapse (essentially) the existing exemptions for excerpts of motion pictures to eliminate limitations on the types of user or use, instead allowing circumvention so long as the purpose is for criticism and comment.86 Specifically, EFF, NMR, and OTW seek to retain the vast majority of existing introductory text of section 201.40(b)(1), but then eliminate the various categories of specific users such that the exemption becomes:

    86 EFF, NMR & OTW Class 1 Pet. at 2.

    Motion Pictures (including television shows and videos), as defined in 17 U.S.C. 101, where circumvention is undertaken solely in order to make use of short portions of the works for the purpose of criticism or comment, where the motion picture is lawfully made and acquired on a DVD protected by the Content Scrambling System, on a BluRay disc protected by the Advanced Access Control System, via a digital transmission protected by a technological measure, or a similar technological protection measure intended to control access to a work, where the person engaging in circumvention reasonably believes that non-circumventing alternatives are unable to produce the required level of high-quality source material.87

    87Id.

    The Office notes that in the past, the Register has at times found it necessary to define a class by a use or user in order to recommend an exemption,88 but also recognizes that for these audiovisual exemptions in particular, participants expressed concern that the current exemptions are overly complicated and confusing.89 The Office invites comment on each aspect of these proposals, including whether this grouping is preferable, or whether the existing exemptions should be consolidated in some other manner, such as grouping just the permitted educational uses together.90 For commenters who may be concerned that a single exemption is too broad, could an exemption be refined by specifically excluding types of uses or users, as opposed to enumerating permitted users in multiple exemptions?

    88 1201 Study at 109-10.

    89Id. at 151; see, e.g., EFF, NMR & OTW Class 1 Pet. at 2-3.

    90See 1201 Study at 109 (“[I]n the upcoming seventh rulemaking, the Office will consider consolidating some of the separate classes related to motion pictures into broader categories, such as one related to educational uses.”); see also OTW Renewal Pet. at 4 (requesting adoption of an exemption for noncommercial videos based on regulatory language adopted in the 2008 rulemaking).

    Beyond EFF, NMR, and OTW's proposal, the other petitions seek to expand upon existing exemptions for purposes of criticism and comment, but in a more limited way. Specifically, Professor Buster, Authors Alliance, and OTW propose expanding the exemption for multimedia e-books offering film analysis (codified at 37 CFR 201.40(b)(1)(iii)) by removing the “nonfiction” and “offering film analysis” limitations, and removing references to screen-capture technology.91 Similarly, Joint Filmmakers seek removal of the “documentary” limitation in the current exemption for uses in documentary films (codified at 37 CFR 201.40(b)(1)(i)).92 The Office notes that many of these issues were previously considered by the Register during the 2015 triennial rulemaking, and encourages proponents to provide new factual or legal support for these proposed modifications.93

    91 Buster, Authors Alliance & OTW Class 1 Pet. at 3.

    92 Joint Filmmakers Class 1 Pet. at 3.

    93 2015 Recommendation at 103.

    The two remaining petitions seek to expand the current exemptions for educational uses. Brigham Young University (“BYU”) and BYU—Idaho, Intellectual Property Office (“BYU IPO”) seek expansion of the exemption for educational uses by college and university students and instructors to more broadly cover “uses where circumvention is undertaken to facilitate performance of motion pictures in the course of face-to-face teaching activities, as set forth in 17 U.S.C. 110(1)”; “use of more than short portions of motion picture excerpts”; and “uses beyond film studies or other courses requiring close analysis of film and media excerpts.” 94 The Office notes that in the 2012 and 2015 triennial rulemakings, the Register found the “short portions” limitation was “critical” in deciding to recommend exemptions for the use of motion picture excerpts.95

    94 BYU & BYU IPO Class 1 Pet. at 2.

    95 2015 Recommendation at 99; 2012 Recommendation at 138-39 (also declining to recommend that the exemption apply to “students across all disciplines of study”).

    Joint Educators seek to expand the exemption for motion pictures for educational uses in MOOCs; specifically, they propose removing the “accredited non-profit educational institutions” and “massive open online courses” limitations, and extending the exemption to “all online educational institutions” and “for use by instructors of all online educational courses. . . .” 96 The petition also proposes to have the exempted use “no longer be limited” by the TEACH Act (codified at 17 U.S.C. 110).97 The Office notes that some of these considerations were previously addressed during the 2015 triennial rulemaking, and invites comment on changing legal or factual circumstances with respect to these provisions.98

    96 Joint Educators Class 1 Pet. at 2.

    97Id.

    98 2015 Recommendation at 102.

    In addition, two petitioners seek clarification that “the use of screen-capture technology does not constitute circumvention,” which presumably might result in the removal of current regulatory exemptions for screen capture technology, as they would be unnecessary.99 Again the Office notes that in 2015, the Register noted that the then-existing record did not “include any examples of screen-capture technology that holds itself out as non-circumventing.” 100 The Office invites comment on whether users are relying upon the various screen capture exemptions for uses of motion picture excerpts and whether there is common understanding that screen-capture technology is non-circumventing.

    99 BYU & BYU IPO Class 1 Pet. at 2; Joint Filmmakers Class 1 Pet. at 3; see 37 CFR 201.40(b)(1)(i) (“For use in documentary filmmaking . . . [w]here the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted . . .”); 37 CFR 201.40(b)(1)(iv) (“By college and university faculty and students, for educational purposes . . . [w]here the circumvention is undertaken using screen-capture technology that appears to be offered to the public as enabling the reproduction of motion pictures after content has been lawfully acquired and decrypted. . . .”).

    100 2015 Recommendation at 99.

    Proposed Class 2: Audiovisual Works—Accessibility

    This proposed class would permit circumvention of TPMs for motion pictures by “disability services offices, organizations that support people with disabilities, libraries, and other units at educational institutions that are responsible for fulfilling those institutions' legal and ethical obligations to make works accessible to people with disabilities,” “where circumvention is undertaken for the purpose of making a motion picture accessible to people with disabilities, including through the provision of closed and open captions and audio description.” 101 Specifically, the petition seeks to circumvent works stored on “optical media, video cassettes with access control measures, and streaming services. . . .” 102

    101 Association of Transcribers and Speech-to-text Providers (“ATSP”), Association of Research Libraries (“ARL”), American Library Association (“ALA”) & Association of College and Research Libraries (“ACRL”) Class 2 Pet. at 3.

    102Id. at 3.

    The Office seeks comment on whether this proposed exemption should be adopted, including any proposed regulatory language.

    Proposed Class 3: Audiovisual Works—Space-Shifting

    This proposed class would allow circumvention of access controls on lawfully made and acquired audiovisual works for the purpose of noncommercial space-shifting or format-shifting. The Office received two petitions seeking an exemption permitting circumvention of TPMs on DVDs and Blu-ray discs for space-shifting or format-shifting for personal use.103 The Office notes that in the 2006, 2012, and 2015 triennial rulemakings, the Librarian rejected proposed exemptions for space-shifting or format-shifting, finding that the proponents had failed to establish under applicable law that space-shifting is a noninfringing use.104 The Office seeks comment on all aspects of this proposed exemption, including whether, in the past three years, there has been a change in the legal or factual landscapes regarding whether space-shifting and format-shifting are noninfringing fair uses.

    103 OmniQ Class 3 Pet. at 2-3; De Pretis Class 3 Pet. at 2.

    104See 80 FR at 65960; 77 FR at 65276-77; 71 FR 68472, 68478 (Nov. 27, 2006). The Librarian also previously declined to adopt an exemption to allow motion pictures on DVDs to be played on the Linux operating system. See 68 FR 62011, 62017 (Oct. 31, 2003). For previous discussion of OmniQ's technology, see 2015 Recommendation at 113.

    Proposed Class 4: Audiovisual Works—HDCP/HDMI

    This proposed class would allow circumvention of TPMs “to make noninfringing uses of audiovisual works that are subject to High-bandwidth Digital Content Protection (“HDCP”),” which restricts access to audiovisual works passing over High-Definition Multimedia Interface (“HDMI”) connections, such as through an HDMI cable.105 Andrew “bunnie” Huang has proposed an exemption to circumvent “devices that play video discs and video game software” using HDCP encoding to “captur[e] the output for subsequent noninfringing uses, such as fair use or automated analysis of noncopyrightable elements of the content.” 106 The Office notes that in an ongoing judicial proceeding, Huang alleged that he seeks to market a device called “NeTVCR,” which would circumvent HDCP technology to, among other things, allow people “to save content for later viewing, move content to a viewing device of the user's choice, or convert content to a more useful format.” 107 He further alleged that NeTVCR “would allow customers to engage in new forms of protected and noninfringing expression using HDMI signals.” 108

    105 Huang Class 4 Pet.

    106Id. at 2.

    107 Complaint for Declaratory & Injunctive Relief ¶¶ 90-93, Green v. U.S. Dep't of Justice, No. 16-cv-1492 (D.D.C. July 21, 2016).

    108Id. ¶¶ 100, 101.

    The Office seeks comment on whether this proposed exemption should be adopted, including any proposed regulatory language. The Office encourages commenters, in the course of detailing whether the proposed exemption meets the requirements of section 1201(a)(1), to address the specific types of audiovisual works that would be accessed by this exemption, to provide examples of the types of noninfringing uses implicated, to address whether viable alternatives to circumvention exist, and to detail the effect circumvention might have on the market for or value of copyrighted works.

    Proposed Class 5: Computer Programs—Unlocking

    The proposed class would permit the circumvention of TPMs for computer programs that operate new and used “wireless devices” to allow connection to an alternative wireless network (a process commonly known as “unlocking”).109 Specifically, ISRI proposes expanding the exemption codified at 37 CFR 201.40(b)(3) by eliminating the current enumerated categories of devices on which circumvention may occur (i.e., to allow the unlocking of any wireless device that connects to a wireless telecommunications network), as well as extending the exemption to new devices (i.e., removing the requirement that the devices must be “used”). The Office notes that these issues were to some extent considered in the last rulemaking.110

    109 ISRI Class 5 Pet. #1 at 2; ISRI Class 5 Pet. #2 at 2.

    110 79 FR at 55689 (“The evaluation of whether an exemption would be appropriate under section 1201(a)(1)(C) is likely to be different for different types of wireless devices, requiring distinct legal and evidentiary showings. Thus, a petition proposing a general exemption for `all wireless devices' * * * could be quite difficult to support, in contrast to a petition that focuses on specific categories of devices * * *”); 80 FR at 65952 (limiting final rule to “used” devices).

    The Office seeks comment on whether this proposed exemption should be adopted, including specific examples demonstrating adverse effects stemming from a consumer's inability to choose the mobile wireless communications provider for a new wireless device.

    Proposed Class 6: Computer Programs—Jailbreaking

    The proposed class would allow circumvention of TPMs protecting “general-purpose portable computing devices” to allow the devices to interoperate with or to remove software applications (“jailbreaking”).111 Specifically, EFF proposes to replace the “portable all-purpose mobile computing devices” limitation in the existing jailbreaking exemption (37 CFR 201.40(b)(4)) with the term “general-purpose portable computing devices,” and extend the exemption to such devices “carried” or “used in a home,” as well as the enabling and disabling of hardware features on such devices.112

    111 EFF Class 6 Pet. at 2-3.

    112Id. EFF's Class 6 petition proposes the following language for the exemption:

    Computer programs that enable smartphones and general-purpose portable computing devices to execute lawfully obtained software applications, where circumvention is accomplished solely for one or more of the following purposes: to enable interoperability of such applications with computer programs on the smartphone or device, to enable or disable hardware features of the smartphone or device, or to permit removal of software from the smartphone or device. For purposes of this exemption, a “general-purpose portable computing device” is a portable device that is primarily designed or primarily used to run a wide variety of programs rather than for consumption of a particular type of media content, is equipped with an operating system primarily designed for use in a general purpose computing device, and is primarily designed to be carried or worn by an individual or used in a home.

    Id. at 2.

    The Office notes that during the 2015 rulemaking, the Register recommended the adoption of the current exemption for “portable all-purpose mobile computing devices,” in part, because the record “meaningfully defined” such devices.113

    113 2015 Recommendation at 189.

    The Office seeks comment on whether this proposed exemption should be adopted, including on the definitions of “portable,” “carried,” and “used in the home” that would govern the proposed exemption. The Office welcomes examples of specific types of devices that would be encompassed by the exemption other than those enumerated in the existing exemption codified at 37 CFR 201.40(b)(4).

    Proposed Class 7: Computer Programs—Repair

    Multiple organizations petitioned for exemptions relating to diagnosis, repair, and modification.114 As noted above, the current exemption (codified at 37 CFR 201.40(b)(6)) is limited to the diagnosis, repair or lawful modification of motorized land vehicles, except for computer programs primarily designed for the control of telematics or entertainment systems.115 Multiple petitions seek to expand upon this language. Specifically, EFF proposes to eliminate the limitation to motorized land vehicles, that is, to allow circumvention of TPMs applied to a broader range of devices including the “Internet of Things,” appliances, computer peripherals, computers, storage devices, and playback devices, toys, vehicles, and environment automation systems.116 EFF asserts that its proposed exemption “overlaps significantly” with the Office's recommendation concerning a permanent exemption for repair in its recently concluded 1201 Study.117 The Auto Care and CTA petition proposes keeping the limitation for motorized land vehicles, but removing the “telematics or entertainment systems” limitation, asserting that “telematics systems increasingly are being designed by vehicle manufacturers as the means to access the embedded software that controls the parts and operation of the vehicle.” 118 The Office notes that during the 2015 triennial rulemaking, the Register concluded that the record did not support extending the exemption to ECUs primarily designed for the control of telematics or entertainment systems.119

    114 iFixit Class 7 Pet. at 2; EFF Class 7 Pet. at 2-3; IPTC U.S.C., AFBF, National Corn Growers Association (“NCGA”) & National Farmers Union (“NFU”) Class 7 Pet. at 2; Auto Care & CTA Class 7 Pet. at 2-4.

    115 37 CFR 201.40(b)(6).

    116 EFF Class 7 Pet. at 2-3 (proposing the exemption “enable circumvention of access controls applied to software and compilations of data, where circumvention is for the purpose of noninfringing repair, diagnosis, or modification of a software-enabled device.”). The Office notes that during its study of software-enabled products, the consensus of stakeholders revealed that drawing a legislative distinction for “software-enabled devices” would be unworkable in practice. U.S. Copyright Office, Software-Enabled Consumer Products at 10 (2016), https://www.copyright.gov/policy/software/software-full-report.pdf.

    117 EFF Class 7 Pet. at 2; see also 1201 Study at 88-97 (discussing issues relating to obsolescence, repair and modification and recommending legislative consideration of a “properly-tailored exemption for repair activities,” but concluding that modification is appropriately addressed through the rulemaking process).

    118 Auto Care & CTA Class 7 Pet. at 4.

    119 2015 Recommendation at 246.

    Three petitions seek to expand the existing exemption to allow third parties to provide services on behalf of owners of motorized land vehicles, an issue that also raises potential issues with respect to the anti-trafficking prohibitions under section 1201(a)(2) and (b).120 As noted above, the statute only empowers the triennial rulemaking to adopt temporary exemptions to section 1201(a)(1)'s prohibition on circumvention of access controls. The Office has addressed the interplay of these provisions as part of the Register's recommendation during the 2015 triennial rulemaking, as well as its recent policy study on section 1201.121

    120 iFixit Class 7 Pet. at 2; IPTC U.S.C., AFBF, NCGA & NFU Class 7 Pet. at 2; Auto Care & CTA Class 7 Pet. at 3.

    121 80 FR at 65954; 2015 Recommendation at 246-48 (excluded circumvention “on behalf of” vehicle owners, noting this phrase “may implicate the anti-trafficking provisions set forth in section 1201(a)(2) and (b)”); 1201 Study at 61-62 (discussing third party assistance generally, stating although “it cannot affirmatively recommend exemption language that is likely to be read to authorize unlawful trafficking activity,” where appropriate, the Office will avoid recommending “unduly narrow definitions of exemption beneficiaries” in the context of 1201 rulemaking).

    Similarly, two petitions raise the question of potential interaction with anti-trafficking rules under section 1201(a)(2) and (b) by proposing to expand the exemption to allow the “development and sale of repair tools,” 122 and to “permit companies with expertise in software development to develop and make circumvention and repair solutions available to servicers and customers.” 123 As the Office noted in its recent 1201 Study, “there are strong reasons to conclude that Congress did not intend to apply the manufacturing bar to exemption beneficiaries from producing their own circumvention tools for personal use,” as “such a reading would render the rulemaking process effectively meaningless for many users.” 124 The Office did not recommend, however, that Congress “take the additional step of allowing the distribution of necessary tools to exemption beneficiaries,” noting that permitting the distribution of tools “could significantly erode” the ability of the anti-trafficking provisions to prevent the development of mainstream business models based around the production and sale of circumvention tools.125

    122 iFixit Class 7 Pet. at 2.

    123 Auto Care & CTA Class 7 Pet. at 3.

    124 1201 Study at 54.

    125Id. at 53-56.

    The Office seeks comment on whether an expanded exemption to cover additional repair and related activities should be adopted, including any proposed regulatory language.

    Proposed Class 8: Computer Programs—Video Game Preservation

    The proposed class would expand upon the current exemption (codified at 37 CFR 201.40(b)(8)) permitting circumvention “by an eligible library, archives, or museum,” of TPMs protecting video games, for which outside server support has been discontinued. Specifically, The Museum of Art and Digital Entertainment (“MADE”) proposes expanding the existing exemption “to further include multiplayer online games, video games with online multiplayer features, and massively multiplayer online games (MMOs), whether stored physically or in downloadable formats, and [to] add preservationists affiliated with archival institutions as users.” 126 The Office notes that during the 2015 triennial rulemaking, the Register found that excluding uses that require access to or copying of copyrightable content stored or previously stored on developer game servers “to be an important limitation.” 127 In addition, the Register concluded that the then-existing record did not support extension of the exemption to online multiplayer play.128

    126 MADE Class 8 Pet. at 2.

    127 2015 Recommendation at 350.

    128Id. at 351.

    The Office seeks comment on whether this proposed expanded exemption for abandoned video games should be adopted, including any proposed regulatory language. Specifically, the Office welcomes discussion of how the existing exemption excludes “preservationists affiliated with archival institutions,” and evidence concerning whether an expanded exemption would impact the market for video games 1. by allowing users of unlawfully acquired video games to similarly bypass server checks, 2. by contributing to the circumvention of client-server protocols for nonabandoned video games, or 3. by impairing the market for older video games or for licensed services or products facilitating the backward compatibility of video games.

    Proposed Class 9: Computer Programs—Software Preservation

    The proposed class would allow circumvention of TPMs “on lawfully acquired software” by “libraries, archives, museums, and other cultural heritage institutions” “for the purposes of preserving software and software-dependent materials.” 129

    129 The Software Preservation Network (“SPN”) & LCA Class 9 Pet. at 2.

    Unlike many of the other classes, this proposal represents an entirely new exemption. The Office seeks comment on whether this proposed exemption should be adopted, including specific examples of the types of noninfringing uses that are, or in the next three years, likely to be adversely affected by the prohibition on circumvention, whether viable alternatives to circumvention exist, discussion of the types of works sought to be accessed, and the specific TPMs implicated by the proposed exemption. The Office specifically seeks comment as to whether or how the exception in section 108 for libraries and archives is relevant to this exemption.130 The Office further welcomes any suggested regulatory language, including eligibility requirements,131 a definition of the proposed term “software-dependent materials,” and whether the exemption should be limited to preserving works that are intended for an institution's public collections (e.g., compared to back-office licensed software).

    130See, e.g., 17 U.S.C. 108 (c), (h).

    131See, e.g., U.S. Copyright Office, Section 108 of Title 17 at 17-22 (2016), https://www.copyright.gov/policy/section108/discussion-document.pdf; 37 CFR 201.40(b)(8)(iii)(D).

    Proposed Class 10: Computer Programs—Security Research

    The Office received three petitions to expand the exemption for good-faith security research of computer programs that operate devices and machines primarily designed for use by individual consumers (including voting machines), motorized land vehicles, or medical devices designed for implantation in patients and corresponding personal monitoring systems (codified at 37 CFR 201.40(b)(7)).132

    132 Felten & Halderman Class 10 Pet. at 2-3; Green Class 10 Pet. at 2-3; CDT Class 10 Pet. at 2-3.

    Two petitions propose removing the specific security research categories listed under section 201.40(b)(7)(i)(A)-(C), as well as the following limitations: 1. The “lawfully acquired device or machine” limitation; 2. the “solely” limitation (i.e., “solely for the purpose of good-faith security research”); 3. the “not violate any applicable law, including without limitation the Computer Fraud and Abuse Act of 1986” limitation; 4. the “carried out in a controlled environment designed to avoid any harm to individuals or the public” limitation; and 5. the requirement that “information derived from the activity . . . is not used or maintained in a manner that facilitates copyright infringement.” 133 Another petition by Professor Matthew Green proposes adoption of the regulatory language recommended by NTIA in the last rulemaking, with the further clarification that the existence of an “End User License Agreement” or similar terms does not defeat person's status as owner of copy of computer program.134

    133 Felten & Halderman Class 10 Pet.; CDT Class 10 Pet. The same petitioners also recommend removing the delay in the effective date of the exemption adopted in 2015; however, as addressed above, the Office notes that it has already concluded that removal of a delayed effective date would be appropriate as part of the request to renew this petition.

    134 Green Class 10 Pet. at 2. Specifically, NTIA recommended the following language: “Computer programs, in the form of firmware or software, regardless of the device on which they are run, when circumvention is initiated by the owner of the copy of the computer program or with the permission of the owner of the copy of the computer program, in order to conduct good faith security research. This exemption does not obviate the need to comply with other applicable laws and regulations.” Letter from Lawrence E. Strickling, Assistant Sec'y for Commc'ns & Info., Nat'l Telecomms. & Info. Admin., U.S. Dep't of Commerce, to Maria A. Pallante, Register of Copyrights and Dir., U.S. Copyright Office, at 89 (Sept. 18, 2015), http://www.copyright.gov/1201/2015/2015_NTIA_Letter.pdf.

    The Office notes that during the 2015 triennial rulemaking, the Register determined that the then-existing record did not support adopting an exemption that encompassed all computer programs on all systems and devices, and her recommendation discusses the rationale for the other current limitations.135 For example, the Register noted that there appeared to be “universal agreement” among proponents that testing in “live” conditions was “wholly inappropriate,” and so recommended that the exemption require that the security research be conducted in a controlled setting to avoid harm to the public.136

    135 2015 Recommendation at 317-18.

    136Id. at 318.

    The Office seeks comment on whether an expanded exemption for security research should be adopted, including discussion of the proposed regulatory language, contrasted with the current temporary and permanent exemptions for this activity.

    Proposed Class 11: Computer Programs—Avionics

    This proposed class would allow circumvention of TPMs to access data output by electronic systems used on aircraft, artificial satellites, and spacecraft; such systems are referred to as “avionics.” Specifically, Air Informatics LLC (“AI”) proposed an exemption to circumvent computer programs protecting “access to aircraft flight, operations, maintenance and security data captured by computer programs or firmware.” 137 AI asserts that access to such data currently protected by TPMs would facilitate safety, security, and compliance with Federal Aviation Administration regulations.138

    137 AI Class 11 Pet. at 2.

    138Id. at 2-3.

    The Office seeks comment on whether this exemption should be adopted, including 1. specific examples of the types of noninfringing uses that are, or in the next three years, likely to be adversely affected by a prohibition on circumvention; 2. a description of the specific TPMs sought to be circumvented; 3. the methods for circumvention; 4. the environment in which the circumvention would be accomplished; and 5. whether the proposed exemption could have negative repercussions with respect to safety or security with respect to the works at issue, or otherwise in a manner relevant to section 1201(a)(1)'s statutory factors (for example, by making it easier for wrongdoers to access sensitive data or databases).

    Proposed Class 12: Computer Programs—3D Printing

    This proposed class would expand the current exemption for computer programs that operate 3D printers (codified at 37 CFR 201.40(b)(9)) to allow use of non-manufacturer-approved feedstock in the printers, regardless of whether the 3D printers produce goods or materials for use in commerce the physical production of which is subject to legal or regulatory oversight, or where the circumvention is otherwise unlawful. Specifically, the petition proposes eliminating the following limitation in the current exemption: “that the exemption shall not extend to any computer program on a 3D printer that produces goods or materials for use in commerce the physical production of which is subject to legal or regulatory oversight or a related certification process, or where the circumvention is otherwise unlawful.” 139

    139 Weinberg Class 12 Pet. at 2. Compare 2015 Recommendation at 376-77.

    The Office seeks comment on whether this expanded exemption for 3D printing should be adopted.

    IV. Future Phases of the Seventh Triennial Rulemaking

    As in prior rulemakings, after receipt of written comments, the Office will continue to solicit public engagement to create a comprehensive record. Described below are the future phases of the administrative process that will be employed for this rulemaking, so that parties may use this information in their planning.

    A. Public Hearings

    The Copyright Office intends to hold public hearings following the last round of written comments. The hearings will be conducted in Washington DC during the week of April 9, 2018 and in California with a date and location to be determined. A separate notice providing details about the hearings and how to participate will be published in the Federal Register at a later date. The Office will identify specific items of inquiry to be addressed during the hearings. The hearings in Washington will be live streamed online, and the Office hopes to be able to offer the same for the California hearings.

    B. Post-Hearing Questions

    As with previous rulemakings, following the hearings, the Copyright Office may request additional information with respect to particular classes from rulemaking participants. The Office may rely on this process in cases where it would be useful for participants to supply missing information for the record or otherwise resolve issues that the Office believes are material to particular exemptions. Such requests for information will take the form of a letter from the Copyright Office and will be addressed to individual parties involved in the proposal as to which more information is sought. While responding to such a request will be voluntary, any response will need to be supplied by a specified deadline. After the receipt of all responses, the Office will post the questions and responses on the Office's Web site as part of the public record.

    C. Ex-Parte Communication

    In its 1201 Study, the Office noted that, in response to stakeholder requests, it would consider in this rulemaking whether to utilize informal meetings to discuss proposed regulatory language or address discrete issues prior to issuing a recommendation, including by establishing guidelines for ex parte communications.140 In the past, the Office's communications with participants about the ongoing triennial rulemakings have not included discussions about the substance of the proceeding apart from the noticed phases of written comments and public hearings (although the Office has provided procedural guidance to participants, and has held discussions with other federal agencies, such as NTIA, to discuss matters within their subject matter expertise). The Office has determined that further informal communications with non-governmental participants might be beneficial in limited circumstances where the Office seeks specific information or follow-up regarding the public record, such as to discuss nuances of proposed regulatory language. However, any such communication will be limited to the post-hearing phase of the rulemaking. The primary means to communicate views in the course of the rulemaking will continue to be through the submission of written comments or participation in the public roundtables. In other words, this communication will supplement, not substitute for, the pre-existing record. While exact guidelines governing ex parte communications with the Office regarding the triennial rulemaking will be issued at a later date, they will be similar to those followed by other agencies such as the Consumer Financial Protection Bureau or Federal Communications Commission.141 For example, the participating party or parties will be responsible for submitting a list of attendees and written summary of any oral communication to the Office, which will be made publicly available on the Office's Web site or regulations.gov. In sum, while the Office is establishing the option of informal meetings in response to stakeholder demand, it will require that all such communications be on the record to ensure the greatest possible transparency.

    140 1201 Study at 150-51.

    141 The Office expects to continue to hold informal intra-governmental communications, which would not be included in such guidelines.

    Dated: October 19, 2017. Sarang V. Damle, General Counsel and Associate Register of Copyrights.
    [FR Doc. 2017-23038 Filed 10-25-17; 8:45 am] BILLING CODE 1410-30-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 62 [EPA-R03-OAR-2017-0509; FRL-9969-91-Region 3] Approval and Promulgation of State Air Quality Plans for Designated Facilities and Pollutants; City of Philadelphia; Control of Emissions From Existing Sewage Sludge Incineration Units AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to notify the public that it has received a negative declaration for the City of Philadelphia Air Management Services (Philadelphia AMS) for sewage sludge incineration (SSI) units. This negative declaration certifies that SSI units subject to the requirements of sections 111(d) and 129 of the Clean Air Act (CAA) do not exist within the City of Philadelphia in the Commonwealth of Pennsylvania. EPA is accepting the negative declaration in accordance with the requirements of the CAA. In the Final Rules section of this issue of the Federal Register, EPA is accepting the negative declaration as a direct final rule without prior proposal because the Agency views this as a noncontroversial submittal and anticipates no adverse comments. If no adverse comments are received in response to this action, no further activity is contemplated. If EPA receives adverse comments, the direct final rule will be withdrawn and all public comments received will be addressed in a subsequent final rule based on this proposed rule. EPA will not institute a second comment period. Any parties interested in commenting on this action should do so at this time.

    DATES:

    Comments must be received in writing by November 27, 2017.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R03-OAR-2017-0509 at https://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Michael Gordon, (215) 814-2039, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    For further information regarding the negative declaration submitted by Philadelphia AMS for SSI units, please see the information provided in the technical support document in the rulemaking docket and in the direct final action, with the same title, that is located in the “Rules and Regulations” section of this issue of the Federal Register. The negative declaration letter submitted by Philadelphia AMS and technical support document in support of this action are also available online at www.regulations.gov.

    Dated: October 11, 2017. Cecil Rodrigues, Acting Regional Administrator, Region III.
    [FR Doc. 2017-23231 Filed 10-25-17; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 713 [EPA-HQ-OPPT-2017-0421; FRL-9970-07] RIN 2070-AK22 Mercury; Reporting Requirements for the TSCA Mercury Inventory AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    As required under section 8(b)(10)(D) of the Toxic Substances Control Act (TSCA), EPA is proposing reporting requirements for applicable persons to provide information to assist in the preparation of an “inventory of mercury supply, use, and trade in the United States,” where “mercury” is defined as “elemental mercury” and “a mercury compound.” The requirements would be applicable to any person who manufactures (including imports) mercury or mercury-added products, or otherwise intentionally uses mercury in a manufacturing process. Based on the inventory of information collected, the Agency is directed to “identify any manufacturing processes or products that intentionally add mercury; and . . . recommend actions, including proposed revisions of Federal law or regulations, to achieve further reductions in mercury use.” At this time, EPA is not making such identifications or recommendations.

    DATES:

    Comments must be received on or before December 26, 2017.

    ADDRESSES:

    Submit your comments, identified by docket identification (ID) number EPA-HQ-OPPT-2017-0421, by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

    Mail: Document Control Office (7407M), Office of Pollution Prevention and Toxics (OPPT), Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

    Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

    Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    For technical information contact: Thomas Groeneveld, National Program Chemicals Division, Office of Pollution Prevention and Toxics, Environmental Protection Agency, 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001; telephone number: (202) 566-1188; email address: g[email protected]

    For general information contact: The TSCA-Hotline, ABVI-Goodwill, 422 South Clinton Ave. Rochester, NY 14620; telephone number: (202) 554-1404; email address: [email protected]

    SUPPLEMENTARY INFORMATION: I. Executive Summary A. Does this action apply to me?

    You may be potentially affected by this action if you manufacture (including import) mercury or mercury-added products, or if you otherwise intentionally use mercury in a manufacturing process. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

    • Gold ore mining (NAICS code 212221)

    • Lead ore and zinc ore mining (NAICS code 212231)

    • All other metal ore mining (NAICS code 212299)

    • Asphalt shingle and coating materials manufacturing (NAICS code 324122)

    • Synthetic dye and pigment manufacturing (NAICS code 325130)

    • Other basic inorganic chemical manufacturing (NAICS code 325180)

    • All other basic organic chemical manufacturing (NAICS code 325199)

    • Plastics material and resin manufacturing (NAICS code 325211)

    • Pesticide and other agricultural chemical manufacturing (NAICS code 325320)

    • Medicinal and botanical manufacturing (NAICS code 325411)

    • Pharmaceutical preparation manufacturing (NAICS code 325412)

    • Biological product (except diagnostic) manufacturing (NAICS code 325414)

    • Paint and coating manufacturing (NAICS code 325510)

    • Adhesive manufacturing (NAICS code 325520)

    • Custom compounding of purchased resins (NAICS code 325991)

    • Photographic film, paper, plate, and chemical manufacturing (NAICS code 325992)

    • All other miscellaneous chemical product and preparation manufacturing (NAICS code 325998)

    • Unlaminated plastics film and sheet (except packaging) manufacturing (NAICS code 326113)

    • Unlaminated plastics profile shape manufacturing (NAICS code 326121)

    • Urethane and other foam product (except polystyrene) manufacturing (NAICS code 326150)

    • All other plastics product manufacturing (NAICS code 326199)

    • Tire manufacturing (NAICS code 326211)

    • All other rubber product manufacturing (NAICS code 326299)

    • Iron and steel mills and ferroalloy manufacturing (NAICS code 331110)

    • Rolled steel shape manufacturing (NAICS code 331221)

    • Alumina refining and primary aluminum production (NAICS code 331313)

    • Secondary smelting and alloying of aluminum (NAICS code 331314)

    • Nonferrous metal (except aluminum) smelting and refining (NAICS code 331410)

    • Secondary smelting, refining, and alloying of nonferrous metal (except copper and aluminum) (NAICS code 331492)

    • Iron foundries (NAICS code 331511)

    • Steel foundries (except investment) (NAICS code 331513)

    • Fabricated structural metal manufacturing (NAICS code 332312)

    • Industrial valve manufacturing (NAICS code 332911)

    • Ammunition except small arms manufacturing (NAICS code 332993)

    • Small arms, ordnance, and ordnance accessories manufacturing (NAICS code 332994)

    • All other miscellaneous fabricated metal product manufacturing (NAICS code 332999)

    • Food product machinery manufacturing (NAICS code 333294)

    • Office machinery manufacturing (NAICS code 333313)

    • Other commercial and service industry machinery manufacturing (NAICS code 333319)

    • Heating equipment (except warm air furnaces) manufacturing (NAICS code 333414)

    • Air-conditioning and warm air heating equipment and commercial and industrial refrigeration equipment manufacturing (NAICS code 333415)

    • Pump and pumping equipment manufacturing (NAICS code 333911)

    • Bare printed circuit board manufacturing (NAICS code 334412)

    • Semiconductor and related device manufacturing (NAICS code 334413)

    • Other electronic component manufacturing (NAICS code 334419)

    • Electromedical and electrotherapeutic apparatus manufacturing (NAICS code 334510)

    • Search, detection, navigation, guidance, aeronautical, and nautical system and instrument manufacturing (NAICS code 334511)

    • Automatic environmental control manufacturing for residential, commercial, and appliance use (NAICS code 334512)

    • Instruments and related products manufacturing for measuring, displaying, and controlling industrial process variables (NAICS code 334513)

    • Totalizing fluid meter and counting device manufacturing (NAICS code 334514)

    • Instrument manufacturing for measuring and testing electricity and electrical signals (NAICS code 334515)

    • Analytical laboratory instrument manufacturing (NAICS code 334516)

    • Watch, clock, and part manufacturing (NAICS code 334518)

    • Other measuring and controlling device manufacturing (NAICS code 334519)

    • Electric lamp bulb and part manufacturing (NAICS code 335110)

    • Commercial, industrial, and institutional electric lighting fixture manufacturing (NAICS code 335122)

    • Other lighting equipment manufacturing (NAICS code 335129)

    • Electric house wares and household fan manufacturing (NAICS code 335211)

    • Household vacuum cleaner manufacturing (NAICS code 335212)

    • Household cooking appliance manufacturing (NAICS code 335221)

    • Household refrigerator and home freezer manufacturing (NAICS code 335222)

    • Household laundry equipment manufacturing (NAICS code 335224)

    • Other major household appliance manufacturing (NAICS code 335228)

    • Switchgear and switchboard apparatus manufacturing (NAICS code 335313)

    • Relay and industrial control manufacturing (NAICS code 335314)

    • Primary battery manufacturing (NAICS code 335912)

    • Current-carrying wiring device manufacturing (NAICS code 335931)

    • All other miscellaneous electrical equipment and component manufacturing (NAICS code 335999)

    • Light truck and utility vehicle manufacturing (NAICS code 336112)

    • Heavy duty truck manufacturing (NAICS code 336120)

    • Motor home manufacturing (NAICS code 336213)

    • Travel trailer and camper manufacturing (NAICS code 336214)

    • Other aircraft parts and auxiliary equipment manufacturing (NAICS code 336413)

    • Boat building (NAICS code 336612)

    • Motorcycles and parts manufacturing (NAICS code 336991)

    • Surgical and medical instrument manufacturing (NAICS code 339112)

    • Costume jewelry and novelty manufacturing (NAICS code 339914)

    • Game, toy, and children's vehicle manufacturing (NAICS code 339932)

    • Sign manufacturing (NAICS code 339950)

    • Other chemical and allied products merchant wholesalers (NAICS code 424690)

    • Research and development in the physical, engineering, and life sciences (except biotechnology) (NAICS code 541712)

    • Hazardous waste treatment and disposal (NAICS code 562211)

    • Other nonhazardous waste treatment and disposal (NAICS code 562219)

    • Materials recovery facilities (NAICS code 562920)

    • National security (NAICS code 928110)

    B. What action is the Agency taking?

    EPA is issuing a proposed rule under TSCA section 8(b)(10) to require reporting to assist in the preparation of “an inventory of mercury supply, use, and trade in the United States,” where “mercury” is defined as “elemental mercury” and “a mercury compound.” Hereinafter “mercury” will refer to both elemental mercury and mercury compounds collectively, except where separately identified. This proposed rule would require reporting from any person who manufactures (including imports) mercury or mercury-added products, or otherwise intentionally uses mercury in a manufacturing process. EPA published its initial inventory report in the Federal Register on March 29, 2017 (Ref. 1), which noted data gaps and limitations encountered by the Agency in its historic reliance on publicly available data on the mercury market in the United States. As stated in the initial inventory report, “[f]uture triennial inventories of mercury supply, use, and trade are expected to include data collected directly from persons who manufacture or import mercury or mercury-added products, or otherwise intentionally use mercury in a manufacturing process” (Ref. 1). These proposed reporting requirements would help the Agency narrow such data gaps, as well as to prepare subsequent, triennial publications of the inventory, and to execute the mandate to “identify any manufacturing processes or products that intentionally add mercury; and . . . recommend actions, including proposed revisions of Federal law or regulations, to achieve further reductions in mercury use” (15 U.S.C. 2607(b)(10)(C)).

    In addition, this information could be used by the U.S. Government to assist in its national reporting regarding its implementation of the Minamata Convention on Mercury (Minamata Convention), to which the United States is a Party (Ref. 2). The Minamata Convention is an international environmental agreement that has as its objective the protection of human health and the environment from anthropogenic emissions and releases of elemental mercury and mercury compounds. Article 21 of the Convention requires Parties to include in their national reports, among other information, information demonstrating that the Party has met the requirements of Article 3 on Mercury Supply Sources and Trade and of Article 5 on Manufacturing Processes in Which Mercury or Mercury Compounds Are Used. As proposed, the reporting requirements of the proposed rule will further enhance the understanding of the use of mercury in the United States, in particular with respect to mercury supply sources and trade, mercury-added products, and manufacturing processes, thus providing a body of information that will assist the United States in its implementation of the reporting requirements of the Minamata Convention. EPA intends to use the collected information to implement TSCA and shape the Agency's efforts to reduce the use of mercury in commerce. In so doing, the Agency would conduct a timely evaluation and refinement of these reporting requirements so that they are efficient and non-duplicative for reporters.

    EPA is proposing that supply, use, and trade of mercury include reporting requirements for activities comparable to established TSCA terms: Manufacture, import, distribution in commerce, storage, and export. The reporting requirements also would apply to otherwise intentional use of mercury in a manufacturing process. Persons who manufacture (including import) mercury or mercury-added products, or otherwise intentionally use mercury in a manufacturing process, would report amounts of mercury in pounds (lbs.) used in such activities during a designated reporting year. Reporters also would identify specific mercury compounds, mercury-added products, manufacturing processes, and how mercury is used in manufacturing processes, as applicable, from pre-selected lists. For certain activities, reporters would provide additional, contextual data (e.g., country(ies) of origin/destination for imports/exports and NAICS codes for mercury or mercury-added products distributed in commerce).

    The proposed reporting requirements would not apply to persons engaged in the generation, handling, or management of mercury-containing waste, unless that person manufactures or recovers mercury in the management of that waste with the intent to use the recovered mercury or store it for use. In addition, persons engaged in trade (e.g., brokering, selling wholesale, shipping, warehousing, repackaging, or retail sale), but who do not first manufacture mercury or mercury-added products, or otherwise intentionally use mercury in a manufacturing process, are not required to report. Finally, in an effort to avoid reporting that is unnecessary or duplicative, the Agency is proposing certain exemptions for persons who already report for mercury and mercury-added products to the TSCA section 8(a) Chemical Data Reporting (CDR) rule and the Interstate Mercury Education and Reduction Clearinghouse (IMERC).

    In addition to topics where EPA notes that we are seeking specific comment, the Agency also encourages comment on all aspects of this proposal.

    C. Why is the Agency taking this action?

    EPA is issuing a proposed rule under TSCA section 8(b)(10) to require reporting to assist in the preparation of the statutorily-required inventory of mercury supply, use, and trade in the United States. This proposed rule would require reporting from any person who manufactures (including imports) mercury or mercury-added products, or otherwise intentionally uses mercury in a manufacturing process. After the publication of its initial inventory report in the Federal Register on March 29, 2017 (Ref. 1), the Agency is proposing this rule to support future, triennial publications of the mercury inventory. In administering this mercury inventory, the Agency would “identify any manufacturing processes or products that intentionally add mercury; and . . . recommend actions, including proposed revisions of Federal law or regulations, to achieve further reductions in mercury use” (15 U.S.C. 2607(b)(10)(C)).

    D. What is the Agency's authority for taking this action?

    EPA is issuing this proposed rule pursuant to TSCA section 8(b)(10)(D) to implement the direction at TSCA section 8(b)(10)(B) that “[n]ot later than April 1, 2017, and every 3 years thereafter, the Administrator shall carry out and publish in the Federal Register an inventory of mercury supply, use, and trade in the United States” (15 U.S.C. 2607(b)(10)(B)). TSCA section 8(b)(10)(D) requires EPA to promulgate a final rule by June 22, 2018 that establishes reporting requirements applicable to any person who manufactures mercury or mercury-added products or otherwise intentionally uses mercury in a manufacturing process to assist in the preparation of the inventory (15 U.S.C. 2607(b)(10)(D)). However, persons “engaged in the generation, handling, or management of mercury-containing waste, unless that person manufactures or recovers mercury in the management of that waste” are not required to report to the mercury inventory (15 U.S.C. 2607(b)(10)(D)(iii)).

    In addition, the Paperwork Reduction Act (PRA) requires Federal agencies to manage information resources to reduce information collection burdens on the public; increase program efficiency and effectiveness; and improve the integrity, quality, and utility of information to all users within and outside an agency, including capabilities for ensuring dissemination of public information, public access to Federal Government information, and protections for privacy and security (44 U.S.C. 3506).

    Section 2 of TSCA expresses the intent of Congress that EPA carry out TSCA in a reasonable and prudent manner, and in consideration of the impacts that any action taken under TSCA may have on the environment, the economy, and society (15 U.S.C. 2601). EPA is proposing to manage and leverage its information resources, including information technology, to require the use of electronic reporting in order to implement the mercury inventory reporting requirements of TSCA section 8(b)(10)(D) in a reasonable and prudent manner.

    E. What are the estimated incremental impacts of the proposed rule?

    EPA has prepared an economic analysis of the potential impacts associated with this rulemaking (Ref. 3). The chief benefit of the proposed rule is the collection of detailed data on mercury, which will serve as a basis to recommend actions to further reduce mercury use in the United States, as required at TSCA section 8(b)(10)(C). Another benefit is the use of information collected under the proposed rule to help the United States implement its obligations under the Minamata Convention. There are no quantified benefits for the proposed rule. The statutory mandate specifically calls for and authorizes a rule to support an inventory of mercury supply, use, and trade in the United States, in order to identify any manufacturing processes or products that intentionally add mercury and recommend actions to achieve further reductions in mercury use. As described in the Agency's economic analysis, unquantified benefits include providing increased information on mercury and assisting in the reduction of mercury use (Ref. 3). To the extent that the information gathered through this rule is used to reduce mercury use, benefits to society will result from a reduction in exposure. EPA seeks public comment on all aspects of the economic analysis.

    Table 1—Summary of Costs and Benefits of Proposal Category Description Benefits The proposed rule would provide information on mercury and mercury-added products to which the Agency (and the public) does not currently have access. To the extent that the information gathered through this proposed rule is used to reduce mercury use, benefits to society will result from a reduction in risk. Costs Estimated industry costs and burden total $5.96 million and 74,000 hours (for up to 750 respondents) for the first year of reporting, with an individual estimate of $7,900 and 99 hours. For future triennial reporting cycles, industry costs and burden would be $4.37 million and 54,300 hours, with an individual estimate of $5,800 and 72 hours. These estimates include compliance determination, rule familiarization, CBI substantiation, electronic reporting, and recordkeeping, in addition to completing reporting requirements. Effects on State, Local, and Tribal Governments Government entities are not expected to be subject to the rule's requirements, which apply to entities that manufacture (including import) mercury or mercury-added products, or otherwise intentionally use mercury in a manufacturing process. The proposed rule does not have a significant intergovernmental mandate, significant or unique effect on small governments, or have Federalism implications. Small Entity Impacts The proposed rule would impact 211 companies that meet the U.S. Small Business Administration (SBA) definitions for their respective NAICS classifications: 4 small entities (1.85%) are expected to incur impacts of 1% percent or greater, and 1 of the small entities assessed is expected to incur impacts of greater than 3%. Furthermore, even if the entities whose status is “undetermined” were assumed to be impacted small entities, this would result in only 9 entities (4.17%). Therefore, EPA certifies that this action will not have a significant economic impact on a substantial number of small entities. Environmental Justice and Protection of Children The information obtained from the reporting required by this proposed rule would be used to inform the Agency's decision-making process regarding chemicals to which minority or low-income populations or children may be disproportionately exposed. This information would also assist the Agency and others in determining whether elemental mercury and mercury compounds addressed in this proposed rule present potential risks, allowing the Agency and others to take appropriate action to investigate and mitigate those risks. F. What should I consider as I prepare my comments for EPA?

    1. Submitting CBI. Do not submit this information to EPA through regulations.gov or email. Clearly mark the part or all of the information that you claim to be CBI. For CBI information in a disk or CD-ROM that you mail to EPA, mark the outside of the disk or CD-ROM as CBI and then identify electronically within the disk or CD-ROM the specific information that is claimed as CBI. In addition to one complete version of the comment that includes information claimed as CBI, a copy of the comment that does not contain the information claimed as CBI must be submitted for inclusion in the public docket. Information so marked will not be disclosed except in accordance with procedures set forth in 40 CFR part 2.

    2. Tips for preparing your comments. When preparing and submitting your comments, see the commenting tips at http://www.epa.gov/dockets/comments.html.

    II. Background A. Background on Mercury

    Mercury is a naturally occurring element that originates in the earth's crust and can be found in air, water, fish, and other biota. Mercury exists in three forms: Elemental, organic compounds, and inorganic compounds.

    Elemental mercury (Chemical Abstracts Service Registry Number (CASRN) 7439-97-6) is a shiny, silver-white metal that is liquid at room temperature. Mercury compounds are formed when elemental mercury reacts with another substance, either in nature or intentionally by humans. Organic mercury compounds are formed in the environment when mercury combines with carbon. Inorganic mercury compounds take the form of mercury salts. EPA's TSCA Chemical Substance Inventory lists 69 mercury compounds (Ref. 4).

    In the United States, elemental mercury and mercury compounds are used in the manufacture of mercury-added products and certain manufacturing processes. The typical lifecycle of products includes manufacture, distribution in commerce (including transport and storage), use, and waste management (landfilling or recycling). At any point in the product lifecycle, there is potential for mercury to be released. Globally, the major anthropogenic sources of released elemental mercury are the combustion of coal and use of elemental mercury in artisanal gold mining (Ref. 5). Emitted elemental mercury can be transported in the atmosphere on local, regional, and global scales as it cycles through air, land, and water (Ref. 6). Some of the emitted elemental mercury following deposition and transformation into divalent mercury can be biotransformed into methylmercury (Ref. 6).

    Methylmercury is a persistent and bioaccumulative neurotoxicant. Exposure to methylmercury most commonly occurs when people eat kinds of fish and shellfish that have high levels of methylmercury in their tissues (Ref. 7). Almost all people have at least small amounts of methylmercury in their bodies, reflecting the widespread presence of methylmercury in the environment (Ref. 7). People exposed to high levels of methylmercury may experience adverse health effects (Ref. 7). Generally, the subtlest indicators of methylmercury toxicity are neurological changes (Ref. 7). Neurotoxic effects at comparatively low doses include subtle decrements in motor skills and sensory ability, while extremely high exposures can cause tremors, inability to walk, convulsions, and death (Ref. 7). Exposure to mercury can also cause adverse ecological effects in plants, birds, fish, and mammals (Ref. 6).

    B. Recent Amendments to TSCA

    The Frank R. Lautenberg Chemical Safety for the 21st Century Act (Lautenberg Act) (Pub. L. 114-182, 130 Stat. 448), enacted on June 22, 2016, implemented reforms to TSCA. Among other changes to TSCA, the Lautenberg Act amended TSCA section 8(b) to require EPA to establish: (1) An inventory of mercury supply, use, and trade in the United States; and (2) reporting requirements by rule applicable to any person who manufactures mercury or mercury-added products or otherwise intentionally uses mercury in a manufacturing process not later than June 22, 2018. (15 U.S.C. 2607(b)(10)). Information collected per the proposed reporting requirements would be used to periodically update the mercury inventory; identify any manufacturing processes or products that intentionally add mercury; and recommend actions, including proposed revisions of federal law or regulations, to achieve further reductions in mercury use (15 U.S.C. 2607(b)(10)). The Lautenberg Act also added certain mercury compounds to the TSCA section 12(c) ban on exporting of elemental mercury and authorized EPA to ban the export of additional mercury compounds by rule (15 U.S.C. 2611(c)). The Lautenberg Act also implemented other changes to the Mercury Export Ban Act of 2008 (MEBA) (Pub. L. 110-414, 122 Stat. 4341). Additional information on the Lautenberg Act is available on EPA's Web site at https://www.epa.gov/assessing-and-managing-chemicals-under-tsca/frank-r-lautenberg-chemical-safety-21st-century-act.

    C. Trends in Mercury Supply, Use, and Trade in the United States

    Humans have mined, refined, and used mercury for a wide variety of purposes over thousands of years. In the United States, mercury was mined until 1991, but today is produced only as a byproduct of metals mining or by recovering mercury from waste (Ref. 8). In recent decades, mercury served as a catalyst in the chlor-alkali industry and in a variety of industrial, commercial, and consumer products (Ref. 8). Due to its toxicity and replacement by new technologies, many uses of mercury have been discontinued in the United States, and the overall quantity used has fallen dramatically in recent decades. For example, over the past three decades there has been a strong downward trend of more than 97 percent in the use of mercury in mercury-added products sold in the United States. In 1980, the United States used more than 1,800 metric tons of mercury in mercury-added products annually (Ref. 8). As described in the initial inventory conducted by EPA in 2017, by 2013, only approximately 40 metric tons of mercury in products were sold in the United States (Ref. 1). Many of these products sold have cost-effective, non-mercury substitutes (Ref. 1). The United States also has traded elemental mercury and mercury compounds worldwide, although MEBA prohibited the export of elemental mercury as of January 1, 2013 and prohibits the export of certain mercury compounds as of January 1, 2020.

    Prior to developing its initial inventory, EPA reviewed federal and state reports and databases, among other sources, in order to assemble a collection of available information on mercury, mercury-added products, and manufacturing processes involving mercury (Ref. 1). In reviewing data obtained, the Agency found that its baseline of data lacked the specificity and level of detail required to develop a mercury inventory responsive to TSCA section 8(b)(10)(D) or to be useful to inform mercury use reduction efforts for both the public and private sectors (Ref. 1). For example, in 2015, to develop its understanding of domestic mercury supply and trade, the Agency collected information on the quantity of mercury sold in the United States for the years 2010 and 2013 from five companies identified as the primary recyclers and distributors of mercury in the United States (Ref. 9). Comparing totals for mercury sold in products and the amount of bulk mercury sold in the United States in 2013 revealed a significant data gap of approximately 26 metric tons. IMERC data showed approximately 40 metric tons of mercury in mercury-added products sold in the United States in 2013. The information collected by the Agency for bulk elemental mercury manufactured and processed in the United States in the same year was approximately 66 metric tons. In this instance, EPA determined that mercury may be used in manufacturing processes, including as a reactant or formulation component, which may not be reflected in the amount of mercury reported as sold in products. An additional data gap identified was the amount of mercury in exported mercury-added products. The Agency is also seeking to be able to differentiate between the amount of mercury in imported mercury-added products and the amount in mercury-added products manufactured in the United States. For example, importation or domestic manufacture of mercury-added products may or may not be reflected in data reported as domestic sale of mercury-added products. EPA is committed to further addressing such data gaps and considers the national mercury inventory mandated by Congress to be an instrumental means to establish the requisite body of information to support achievement of that goal.

    D. Stakeholder Involvement

    In developing the proposed rule, the agency coordinated with the Northeast Waste Management Officials' Association, which administers the IMERC database, as directed by TSCA section 8(b)(10)(D)(ii), to avoid duplication.

    III. Summary of Proposed Rule

    This proposed rule, when finalized, would provide for the collection of information that allows EPA to implement statutory requirements at TSCA section 8(b)(10)(B), which directs that “[n]ot later than April 1, 2017, and every 3 years thereafter, the Administrator shall carry out and publish in the Federal Register an inventory of mercury supply, use, and trade in the United States” (15 U.S.C. 2607(b)(10)(B)). TSCA section 8(b)(10)(D) directs the Agency to promulgate this reporting rule no later than two years after the date of enactment of the June 2016 TSCA amendments. Based on the inventory, the Agency is directed to “identify any manufacturing processes or products that intentionally add mercury; and . . . recommend actions, including proposed revisions of Federal law or regulations, to achieve further reductions in mercury use.” At this time, EPA is not making such identifications or recommendations. EPA's proposal for fulfilling specific statutory provisions and terms are set forth by topic as follows.

    A. Definition of Mercury

    TSCA section 8(b)(10)(A) states “notwithstanding [TSCA] section 3(2)(B), the term `mercury' means . . . elemental mercury; and . . . a mercury compound” (15 U.S.C. 2607(b)(10)(A)). As such, the definition for mercury at TSCA section 8(b)(10)(A) supersedes the exclusions for “chemical substances” described in TSCA section 3(2)(B) that would otherwise apply to mercury, mercury-added products, or otherwise intentional uses of mercury in manufacturing processes. For example, any “drug, cosmetic, or device” as described in TSCA section 3(2)(B)(vi), should such items contain mercury, would not be excluded from reporting under the proposed rule.

    For purposes of the proposed rule, the Agency proposes that where EPA distinguishes between elemental mercury and mercury compounds, elemental mercury be limited to elemental mercury (CASRN 7439-97-6) and mercury compounds be inclusive of all instances where elemental mercury or a mercury compound is reacted with another chemical substance. Examples of mercury compounds from the TSCA Chemical Substance Inventory are listed in Table 2.

    Table 2—List of Mercury Compounds Chemical Abstracts Registry No. Mercury compound 10045-94-0 Nitric acid, mercury(2+) salt (2:1). 100-57-2 Mercury, hydroxyphenyl-. 10112-91-1 Mercury chloride (Hg2Cl2). 10124-48-8 Mercury amide chloride (Hg(NH2)Cl). 103-27-5 Mercury, phenyl(propanoato-.kappa.O.)-. 10415-75-5 Nitric acid, mercury(1+) salt (1:1). 104-60-9 Mercury, (9-octadecenoato-.kappa.O)phenyl-. 1191-80-6 9-Octadecenoic acid (9Z)-, mercury(2+) salt (2:1). 12068-90-5 Mercury telluride (HgTe). 13170-76-8 Hexanoic acid, 2-ethyl-, mercury(2+) salt (2:1). 13302-00-6 Mercury, (2-ethylhexanoato-.kappa.O)phenyl-. 1335-31-5 Mercury cyanide oxide (Hg2(CN)2O). 1344-48-5 Mercury sulfide (HgS). 1345-09-1 Cadmium mercury sulfide. 13876-85-2 Mercurate(2-), tetraiodo-, copper(1+) (1:2), (T-4)-. 138-85-2 Mercurate(1-), (4-carboxylatophenyl)hydroxy-, sodium (1:1). 141-51-5 Mercury, iodo(iodomethyl)-. 14783-59-6 Mercury, bis[(2-phenyldiazenecarbothioic acid-.kappa.S) 2-phenylhydrazidato-.kappa.N2]-, (T-4)-. 15385-58-7 Mercury, dibromodi-, (Hg-Hg). 15785-93-0 Mercury, chloro[4-[(2,4-dinitrophenyl)amino]phenyl]-. 15829-53-5 Mercury oxide (Hg2O). 1600-27-7 Acetic acid, mercury(2+) salt (2:1). 1785-43-9 Mercury, chloro(ethanethiolato)-. 19447-62-2 Mercury, (acetato-.kappa.O)[4-[2-[4-(dimethylamino)phenyl]diazenyl]phenyl]-. 20582-71-2 Mercurate(2-), tetrachloro-, potassium (1:2), (T-4)-. 20601-83-6 Mercury selenide (HgSe). 21908-53-2 Mercury oxide (HgO). 22450-90-4 Mercury(1+), amminephenyl-, acetate (1:1). 24579-90-6 Mercury, chloro(2-hydroxy-5-nitrophenyl)-. 24806-32-4 Mercury, [.mu.-[2-dodecylbutanedioato(2-)-.kappa.O1:.kappa.O4]]diphenyldi-. 26545-49-3 Mercury, (neodecanoato-.kappa.O)phenyl-. 27685-51-4 Cobaltate(2-), tetrakis(thiocyanato-.kappa.N)-, mercury(2+) (1:1), (T-4)-. 29870-72-2 Cadmium mercury telluride ((Cd,Hg)Te). 3294-57-3 Mercury, phenyl(trichloromethyl)-. 33770-60-4 Mercury, [3,6-dichloro-4,5-di(hydroxy-.kappa.O)-3,5-cyclohexadiene-1,2-dionato(2-)]-. 3570-80-7 Mercury, bis(acetato-.kappa.O)[.mu.-(3',6'-dihydroxy-3-oxospiro[isobenzofuran-1(3H),9'-[9H]xanthene]-2',7'-diyl)]di-. 537-64-4 Mercury, bis(4-methylphenyl)-. 539-43-5 Mercury, chloro(4-methylphenyl)-. 54-64-8 Mercurate(1-), ethyl[2-(mercapto-.kappa.S)benzoato(2-)-.kappa.O]-, sodium (1:1). 55-68-5 Mercury, (nitrato-.kappa.O)phenyl-. 56724-82-4 Mercury, phenyl[(2-phenyldiazenecarbothioic acid-.kappa.S) 2-phenylhydrazidato-.kappa.N2]-. 587-85-9 Mercury, diphenyl-. 592-04-1 Mercury cyanide (Hg(CN)2). 592-85-8 Thiocyanic acid, mercury(2+) salt (2:1). 593-74-8 Mercury, dimethyl-. 59-85-8 Mercurate(1-), (4-carboxylatophenyl)chloro-, hydrogen. 623-07-4 Mercury, chloro(4-hydroxyphenyl)-. 62-38-4 Mercury, (acetato-.kappa.O)phenyl-. 62638-02-2 Cyclohexanebutanoic acid, mercury(2+) salt (2:1). 627-44-1 Mercury, diethyl-. 6283-24-5 Mercury, (acetato-.kappa.O)(4-aminophenyl)-. 628-86-4 Mercury, bis(fulminato-.kappa.C)-. 629-35-6 Mercury, dibutyl-. 63325-16-6 Mercurate(2-), tetraiodo-, (T-4)-, hydrogen, compd. with 5-iodo-2-pyridinamine (1:2:2). 63468-53-1 Mercury, (acetato-.kappa.O)(2-hydroxy-5-nitrophenyl)-. 63549-47-3 Mercury, bis(acetato-.kappa.O)(benzenamine)-. 68201-97-8 Mercury, (acetato-.kappa.O)diamminephenyl-, (T-4)-. 72379-35-2 Mercurate(1-), triiodo-, hydrogen, compd. with 3-methyl-2(3H)-benzothiazolimine (1:1:1). 7439-97-6 Mercury. 7487-94-7 Mercury chloride (HgCl2). 7546-30-7 Mercury chloride (HgCl). 7616-83-3 Perchloric acid, mercury(2+) salt (2:1). 7774-29-0 Mercury iodide (HgI2). 7783-33-7 Mercurate(2-), tetraiodo-, potassium (1:2), (T-4)-. 7783-35-9 Sulfuric acid, mercury(2+) salt (1:1). 7783-39-3 Mercury fluoride (HgF2). 7789-47-1 Mercury bromide (HgBr2). 90-03-9 Mercury, chloro(2-hydroxyphenyl)-. 94070-93-6 Mercury, [.mu.-[(oxydi-2,1-ethanediyl 1,2-benzenedicarboxylato-.kappa.O2)(2-)]]diphenyldi-. B. Explanation of Supply, Use, and Trade

    Pursuant to TSCA section 8(b)(10)(B), EPA interprets the scope of the mercury inventory to include activities within the domestic and global commodity mercury market that would fall under “supply, use, and trade of mercury in the United States.” An inventory that adequately accounts for mercury in supply, use, and trade includes activities of persons who must report as described in TSCA section 8(b)(10)(d)(i): Manufacture, import, and otherwise intentionally use mercury in a manufacturing process. In addition, the Agency proposes that persons required to report to the mercury inventory also include information on distribution in commerce, storage, and export in order to provide for the requisite inventory of mercury supply, use, and trade in the United States. EPA proposes that reporting to cover “supply” include manufacture and storage of mercury, reporting to cover “use” include use of mercury to manufacture a mercury-added product or otherwise intentional use of mercury in a manufacturing process, and reporting to cover “trade” include import, export, and distribution in commerce of mercury or mercury-added products. EPA proposes that obtaining information related to such activities, including reporting quantities of mercury, as well as qualitative information related to supply, use, and trade, is necessary to create the inventory described at TSCA section 8(b)(10)(B). Examples of such qualitative information include: Country of origin (for imports of mercury or mercury-added products), destination country (for exported mercury-added products or certain mercury compounds), and identification of purchasing or receiving industry sectors via NAICS codes (for mercury or mercury-added products distributed in domestic commerce).

    In addition to using this information for the mercury inventory, this information would be used by the U.S. Government to assist in its implementation of the Minamata Convention (Ref. 2), in particular with respect to mercury supply sources and trade, mercury-added products, manufacturing processes in which mercury is used, and reporting. The United States is a Party to the Minamata Convention, which is a multilateral environmental agreement that addresses the supply, use, and trade in mercury by, among other actions, not allowing the introduction of new mercury mines and the phasing out of existing ones, phasing out and phasing down the use of mercury in a number of products and industrial processes, placing control measures on emissions to air and on releases to land and water, and taking action to reduce the use of mercury in the informal sector of artisanal and small-scale gold mining. EPA seeks comment on the proposed limited data collection requirements, such as the identification of countries that manufacture, import, or export mercury-added products (i.e., countries of origin and destination), as well as the identification of purchasing or receiving industry sectors via NAICS codes, to inform activities under the Minamata Convention.

    In regard to certain exports of mercury, the Agency notes that the export of elemental mercury has been prohibited since January 1, 2013 (15 U.S.C. 2611(c)(1)) and therefore the Agency is not proposing to require reporting on the export of elemental mercury from the United States. TSCA, as of January 1, 2020, will also prohibit the export of certain mercury compounds: Mercury (I) chloride or calomel; mercury (II) oxide; mercury (II) sulfate; mercury (II) nitrate; and cinnabar or mercury sulphide (the statute uses the term “mercury sulphide” which is an alternative spelling of “mercury sulfide” as found in the table above) (15 U.S.C. 2611(c)(7)). EPA recognizes that a complete inventory would include at least one cycle of reporting prior to the effective date of the prohibition for export of the five mercury compounds subject to 15 U.S.C. 2611(c)(7). As such, the inventory would benefit from the recent totals of at least one cycle of reporting prior to the effective date of the prohibition for export of mercury compounds subject to 15 U.S.C. 2611(c)(7) to (1) measure trends in supply, use, and trade; and (2) provide a baseline for comparison of the changes in the amounts of other mercury compounds exported after the 2020 effective date. The Agency also recognizes that the 2020 effective date of 15 U.S.C. 2611(c)(7) is such that any reporting on those five compounds will not assist the Agency in recommending further actions to achieve further reductions in mercury use because the export ban will be in effect as of 2020. Therefore, EPA requests public comment on whether to require one-time reporting for exports of the mercury compounds prohibited from export by 15 U.S.C. 2611(c)(7). It should be noted that reporting for exports of mercury compounds that are not prohibited from export by 15 U.S.C. 2611(c)(7), as well as products that contain intentionally-added elemental mercury and/or any mercury compounds (including the compounds prohibited from export) will be required.

    In order to obtain information for the mercury inventory with the necessary level of detail, EPA is proposing to require reporting on activities that are subsets of defined terms. For example, “manufacture” is defined in TSCA section 3(9) to mean: “import into the customs territory of the United States (as defined in general note 2 of the Harmonized Tariff Schedule of the United States), produce, or manufacture” (15 U.S.C. 2602(9)). While both manufacture and import are described in the statutory definition of “manufacture,” the Agency proposes to separate reporting for these activities of the mercury market in order to capture distinct actions by persons who handle and trade mercury. As such, EPA is proposing that persons required to report specify distinct amounts, if any, of imported or otherwise manufactured mercury, as well as amounts of mercury in imported or otherwise manufactured mercury-added products.

    Conversely, the activity “otherwise intentionally uses mercury in a manufacturing process” is not defined under TSCA. The Agency considers this activity to be similar, but not identical to the definition for “process” at TSCA section 3(13): “preparation of a chemical substance or mixture, after its manufacture, for distribution in commerce . . . in the same form or physical state as, or in a different form or physical state from, that in which it was received by the person so preparing such substance or mixture, or . . . as part of an article containing the chemical substance or mixture” (15 U.S.C. 2602(13)). EPA proposes to require reporting on both the otherwise intentional use of mercury in a manufacturing process, as well as manufacture of mercury or a mercury-added product, distinguished by focusing on how the mercury came to be present in a final product. For manufacture of mercury or a mercury-added product, the Agency views such activities to be the intentional addition of mercury where mercury remains present in the final product for a particular purpose. For otherwise intentional use of mercury in a manufacturing process, the Agency views such activities to be the intentional use of mercury, but where no mercury remains or any mercury present in the final product exists only as an impurity.

    Finally, TSCA section 8(f) states “[f]or purposes of [TSCA section 8], the terms `manufacture' and `process' mean manufacture or process for commercial purposes” (15 U.S.C. 2607(f)). Under a TSCA section 8(a) reporting rule, EPA has previously defined “manufacture for commercial purposes” for the purposes of other information gathering rules to include “import, produce, or manufacture with the purpose of obtaining an immediate or eventual commercial advantage for the manufacturer” and “substances that are produced coincidentally during the manufacture, processing, use, or disposal of another substance or mixture, including both byproducts that are separated from that other substance or mixture and impurities that remain in that substance or mixture . . . [that] may, or may not, in themselves have commercial value” (40 CFR 704.3). In the same rule, similarly, EPA has defined “process for commercial purposes” as “the preparation of a chemical substance or mixture after its manufacture for distribution in commerce with the purpose of obtaining an immediate or eventual commercial advantage for the processor. Processing of any amount of a chemical substance or mixture is included in this definition. If a chemical substance or mixture containing impurities is processed for commercial purposes, then the impurities also are processed for commercial purposes” (40 CFR 704.3). EPA notes that there is a separate definition for “import for commercial purposes” at 40 CFR 704.3, but finds it to be substantially similar to germane portions of “manufacture for commercial purposes.”

    EPA is proposing that the terms “manufacture,” “import,” and “otherwise intentional use of mercury in a manufacturing process” be interpreted for the purposes of mercury inventory reporting based on the aforementioned definitions in 40 CFR 704.3 and the statutory text at TSCA section 8(f). In regard to the manufacture (including import) of mercury as a byproduct, impurity, or similar occurrence, EPA considered whether such chemical substances are intentionally generated and whether such substances are used for commercial purposes. To synthesize these concepts, EPA is proposing to require reporting on mercury or mercury-containing byproducts manufactured for commercial purposes. Mercury generated as a byproduct not used for commercial purposes would not be subject to the proposed rule.

    In addition, EPA is proposing that mercury that exists as an impurity would not be subject to the proposed rule, except where such impurities are present in a final product produced by persons who otherwise intentionally use mercury in a manufacturing process. EPA is distinguishing between the manufacture of mercury-added products versus the final products containing mercury that result from the intentional use of mercury in a manufacturing process. First, EPA considers the addition and presence of mercury in the final products of the former process to be intentional and, therefore, not an impurity. Conversely, EPA considers the presence of mercury in the final product resulting from the intentional use of mercury during the manufacturing processes identified in this proposed rule (see Unit III.D.5.) to be unintentional (i.e., present as an impurity). Second, the Agency has less detailed institutional knowledge of this category of uses and is proposing to collect information on mercury that exists as an unintended impurity in products in such cases to better identify mercury use in manufacturing processes, as directed in TSCA section 8(b)(10)(C).

    EPA determined that actions described in the definition of “distribution in commerce” at TSCA section 3(5): “to sell, or the sale of, the substance, mixture, or article in commerce; to introduce or deliver for introduction into commerce, or the introduction or delivery for introduction into commerce of, the substance, mixture, or article; or to hold, or the holding of, the substance, mixture, or article after its introduction into commerce” (15 U.S.C. 2602(5)), are adequate to describe both distribution in commerce and storage for the proposed rule. In particular, the Agency is interested in quantities of mercury sold or transferred between facilities in the United States. As such, EPA is proposing to incorporate the concept of “domestic” as defined at 40 CFR 704.3 to activities considered to be distribution in commerce, as opposed to international import and export, which would be covered separately. Where “to hold” or “holding of” (i.e., storage) is concerned, EPA is proposing to require reporting for quantities of mercury stored, if any, by persons who manufacture (including import) mercury, as well as those who otherwise intentionally use mercury in a manufacturing process. Mercury stored by persons who only produce mercury-added products would not be required to be reported. Moreover, the Agency is not proposing to require reporting for quantities of mercury within mercury-added products that are stored after manufacture and prior to distribution in commerce. EPA assumes the quantity of mercury that manufacturers of mercury-added products store for later use or keep within product inventories is likely to be too small to help explain the information gap between sold and used mercury. The expected value of the information is likely to be low considering the burden and cost on reporters.

    The Agency considered “export” in the context of “exporter” as defined in the TSCA section 12(b) export notification rule at 40 CFR part 707 Subpart D: “determining and controlling the sending of the chemical substance or mixture to a destination out of the customs territory of the United States” 40 CFR 707.63(b). For purposes of the proposed rule, however, the Agency believes that it is necessary to collect export data not only on certain mercury compounds, but also mercury-added products that are exported from the United States. As such, EPA would include articles in the reporting required for export.

    Therefore, in summary, the Agency proposes to require reporting for the following activities:

    • Import of mercury or a mercury-added product with the purpose of obtaining an immediate or eventual commercial advantage for the importer, except where such mercury is generated as a byproduct not used for commercial purposes or an impurity.

    • Manufacture (other than import) of mercury or a mercury-added product with the purpose of obtaining an immediate or eventual commercial advantage for the manufacturer, except where such mercury is generated as a byproduct not used for commercial purposes or an impurity. In this context, EPA considers manufacture to be the intentional production of mercury, a mercury compound, or a mercury-added product, as opposed to the uses described for “otherwise intentionally uses mercury in a manufacturing process.” Incidental manufacture of mercury (e.g., burning of coal or similar) would not be subject to the proposed rule.

    • Otherwise intentional use of mercury in a manufacturing process, other than the manufacture of a mercury compound or a mercury-added product, with the purpose of obtaining an immediate or eventual commercial advantage for the user, except where such mercury is generated as a byproduct not used for commercial purposes.

    • Distribution in commerce, including domestic sale or transfer, of mercury or a mercury-added product.

    • Storage of mercury after manufacture (including import).

    • Export of mercury or a mercury-added product, including the determining and controlling the sending of mercury (unless specifically prohibited) or a mercury-added product to a destination out of the customs territory of the United States.

    These proposed interpretations of terms are intended to align with the structure and logical flow of reporting requirements described in Unit III.E. Nonetheless, EPA requests comment on the proposed interpretations of activities to be considered as part of supply, use, and trade of mercury in the United States.

    C. Coordination With Existing Reporting Programs

    TSCA section 8(b)(10)(D)(ii) directs the Agency to “coordinate the reporting . . . with the Interstate Mercury Education and Reduction Clearinghouse” to avoid duplication (15 U.S.C. 2607(b)(10)(D)(ii)). Furthermore, TSCA section 8(a)(5)(a) states “[i]n carrying out [TSCA section 8], the Administrator shall, to the extent feasible . . . not require reporting which is unnecessary or duplicative” (15 U.S.C. 2607(a)(5)(a)). The Agency seeks to avoid collecting data on mercury that would duplicate information already reported to existing state and federal programs, and to coordinate with and complement those reporting programs as much as possible. While developing this proposed rule, EPA reviewed four data collection systems applicable to supply, use, and trade of mercury (including mercury-added products and mercury used in manufacturing processes): IMERC, the TSCA section 8(a) Chemical Data Reporting rule, the Toxics Release Inventory (TRI) program, and the U.S. International Trade Commission Interactive Trade DataWeb (USITC DataWeb).

    1. IMERC. IMERC is an online reporting database managed by the Northeast Waste Management Officials' Association (NEWMOA), which provides publicly available, national data on mercury used in products. Laws in certain states (Connecticut, Louisiana, Maine, Massachusetts, New Hampshire, New York, North Carolina, Rhode Island, and Vermont—hereinafter “IMERC Notification states”) require companies that manufacture, distribute, or import mercury-added products to identify the mercury-added products they sell and the volume of mercury in them. The volume information is reported at a national level, although only companies selling mercury products within those states need to report. The IMERC database houses the information that is reported to IMERC Notification states on a triennial basis and provides a detailed picture of some aspects of the mercury product market. There are, however, some concerns about whether all nationwide sales are captured (i.e., no reporting requirement for a company that sells mercury-added products exclusively outside of IMERC Notification states). Despite such concerns and given the statutory direction to coordinate both programs, EPA recognizes that the proposed rule and IMERC reporting requirements for mercury-added products should be harmonized to the greatest extent practicable.

    While developing this proposed rule, the Agency coordinated with IMERC and NEWMOA to ensure that data collected in accordance with the proposed reporting requirements and existing IMERC reporting requirements would not be duplicative and that information collected would be shared to the greatest extent practicable. The Agency is designing the electronic reporting application for the mercury inventory that would automatically skip certain reporting requirement fields when users indicate they report to the IMERC Mercury-Added Products Database. Such users would automatically bypass mercury inventory reporting requirements that are comparable to those reported to IMERC. Specifically, those that report to IMERC would not be required to report the amount of mercury distributed in commerce under this proposed rule because EPA believes that information is captured by IMERC as national sales data. However, those that report to IMERC would still be required to provide qualitative data—NAICS codes related to sales data—as part of the distribution in commerce reporting requirement (see Table 4—Information to Report—Mercury-Added Products).

    2. TSCA Chemical Data Reporting Rule. EPA also sought to avoid duplicating the mercury reporting requirements of its own CDR rule (Ref. 10) and reporting to the TRI program (Ref. 11). The CDR rule collects manufacturing, processing, and use information on certain chemical substances manufactured (including imported) in the United States. Persons required to report include those that manufacture (including import) for commercial purposes in excess of 2,500 lbs. for a specific reporting year for substances meeting certain criteria, which include elemental mercury; or in excess of 25,000 lbs. for a specific reporting year for most other substances, which include mercury compounds.

    In general, CDR reporters do not report information on chemical substances in articles, unless they first import or domestically manufacture the chemical substance that they then incorporate into an article or product (Ref. 12). As discussed in regard to coordinating with IMERC to avoid duplicative reporting, the Agency's intended design for the reporting application for the mercury inventory would allow a CDR reporter to automatically skip certain reporting requirement fields that would be considered duplicative. As an example, those that report to CDR would not be required to provide the amount of mercury imported, however, they would be required to provide qualitative information—in this example the country of origin—as part of the reporting requirement (see Table 3—Information to Report—Mercury).

    3. Toxics Release Inventory. The TRI program collects data on toxic chemical releases to air, water and land from industrial facilities and pollution prevention activities in the United States. The TRI program requires reporting when covered facilities in covered industrial sectors manufacture, process, or otherwise use more than 10 lbs. of elemental mercury and/or mercury compounds per year. However, while the TRI program requires reporters to specify whether mercury is manufactured, processed, or otherwise used in activities comparable to the proposed rule (e.g., article component, formulation component, reactant, chemical processing aid, manufacturing aid), it does not require reporting of quantitative data on amounts of mercury used for such activities or the kind of article involved.

    4. USITC DataWeb. Additionally, EPA reviewed the USITC DataWeb, which provides U.S. international trade statistics and U.S. tariff data to the public (Ref. 13). All trade data are compiled from official data retrieved from the U.S. Bureau of the Census (Census). Data on U.S. exports of merchandise from the United States to all countries, except Canada, are compiled from the Electronic Export Information filed by the U.S. Principal Party in Interest or their agents through the Automated Export System. Published data on U.S. imports of merchandise are compiled primarily from automated data submitted through the Automated Commercial System of U.S. Customs and Border Protection (CBP). Data are also compiled from import entry summary forms, warehouse withdrawal forms and Foreign Trade Zone documents as required by law to be filed with CBP.

    After reviewing these reporting programs, EPA has sought to design the proposed reporting requirements to be least burdensome for reporters already familiar with IMERC, CDR, TRI, and USITC DataWeb protocol. Therefore, the Agency is proposing to incorporate comparable reporting concepts and tools from each program, as well as propose some exemptions, in an attempt to increase the efficacy of while decreasing the burden to the greatest extent practicable for reporting to a national mercury inventory. EPA is seeking comment on the incorporation of the reporting concepts and tools from each program, as well as the proposed exemptions.

    D. Persons Who Must Report

    TSCA section 8(b)(10)(D)(i) states “any person who manufactures mercury or mercury-added products or otherwise intentionally uses mercury in a manufacturing process shall make periodic reports to the Administrator” (15 U.S.C. 2607(b)(10)(D)(i)). As explained in Unit III.B., EPA interprets the statutory text at TSCA sections 8(b)(10)(B), 8(b)(10)(D)(i), and 8(b)(10)(D)(iii) as applying to intentional acts that introduce mercury into supply, use, and trade in the United States. Furthermore, EPA reads TSCA section 8(b)(10)(D)(i) to narrow potential reporters to persons who first manufacture mercury or mercury-added products or otherwise intentionally use mercury in a manufacturing process. As such, EPA determined that persons who merely trade (e.g., brokering, selling wholesale, shipping, warehousing, repackaging, or retail sale), but do not manufacture or import mercury or mercury-added products, should not be subject to the proposed reporting requirements. Aside from its reading of TSCA section 8(b)(10)(D)(i), the Agency is concerned that requiring reporting from such entities risks: (1) Double-counting of mercury as it moves through supply chains; and (2) undue burden or liability on entities that are not likely to be aware if or how mercury is present in products that they trade.

    1. Exemption for Persons Who Generate, Handle, or Manage Mercury-containing Waste. Persons “engaged in the generation, handling, or management of mercury-containing waste, unless that person manufactures or recovers mercury in the management of that waste” are not required to report to the mercury inventory (15 U.S.C. 2607(b)(10)(D)(iii)). There are generally four sources of mercury-containing waste: (1) Industrial processes, which often generate a mixture of elemental mercury or mercury compounds combined with other substances; (2) the discard of mercury-added products such as fluorescent lamps; (3) the discard of elemental mercury (e.g. surplus commodity mercury); and (4) mercury-contaminated environmental media that are excavated as part of a contaminated site clean-up. Mercury-containing waste that is hazardous is regulated by the Resource Conservation and Recovery Act (RCRA).

    EPA considers the following examples of persons and waste types to be exempt from reporting to the proposed rule:

    • Hazardous waste treatment facilities that stabilize and landfill low-concentration mercury-containing waste.

    • Manufacturing facilities that:

    —Generate a mercury-containing waste and send it to a waste management facility. —Use mercury to manufacture products or otherwise intentionally use mercury in a manufacturing process, and also generate a mercury-containing waste from that use or another process. The exemption applies to the mercury in the facility's waste but not to the quantity it uses. Under the proposed rule, the facility would report on the quantity it uses. —Discard mercury-added products, such as fluorescent light bulbs, switches, and thermometers, unless the facility also intentionally uses mercury in a manufacturing process. In that case, the facility would report the mercury it uses, but not the mercury in the products it discards because the products and the mercury within them are waste.

    • A person who uses a mercury-added product but does not manufacture mercury or mercury-added products and does not intentionally use mercury in a manufacturing process.

    • Hazardous waste treatment facilities that recover elemental mercury from mercury-containing waste and manage that elemental mercury as a waste. There are currently two primary ways in which recovered elemental mercury can be managed as a waste: Placed in long-term storage at a facility with a RCRA permit as allowed under Section 5(g) of MEBA, or converted to mercury sulfide and exported for disposal.

    • A generator producing mercury incidentally from the beneficiation or processing of ore or related pollution control activities, who accumulates this mercury on-site.

    • A generator who temporarily stores waste elemental mercury for up to 90 or 180 days pending shipment for long-term storage or for treatment and disposal. The elemental mercury in all of these cases is not subject to the proposed rule.

    EPA seeks comments on the examples provided and requests input on other relevant examples that may be useful.

    The exemption at 15 U.S.C. 2607(b)(10)(D)(iii) does not apply to persons who manufacture or recover elemental mercury in the management of mercury-containing waste with the intent to use it or store it for use. For example, if a waste treatment facility retorts or distills mercury-containing waste to recover elemental mercury and then sells or stores the mercury for later sale, that person is considered to be a manufacturer of mercury and must report to the proposed rule for the amount of elemental mercury it sells or stores. If any manufacturer covered by the proposed rule decides at any time to manage the elemental mercury as a waste, that mercury is subject to the RCRA, but not to the proposed rule. Elemental mercury that is stored under MEBA or converted to a mercury compound and disposed of remains a waste, that is, its status cannot change from waste to commodity mercury.

    2. Reporting Threshold. As discussed in Unit III.C., the Agency compared existing state and federal reporting databases applicable to the supply, use, and trade of mercury. EPA conducted this review in an attempt not only to eliminate duplicative reporting requirements, but also to incorporate applicable features of such programs, including the consideration of respective reporting thresholds.

    The statutory text at TSCA section 8(b)(10) is silent on a reporting threshold; however, TSCA section 8(b)(10)(C) directs the Agency to “identify any manufacturing processes or products that intentionally add mercury” (15 U.S.C. 2607(10)(b)(C)). The Agency interprets the direction to “identify any” to apply to any amount of mercury in a manufacturing process or product. When considered in light of the statutory text at TSCA section 8(b)(10)(C), as well as concerns related to the potential adverse effects on human health and the environment resulting from releases of mercury, the Agency finds that it would be inappropriate to propose a threshold under which reporting would not be required. Therefore, EPA proposes to apply the proposed reporting requirements to any person who manufactures (including imports) mercury, mercury-added products or otherwise intentionally uses mercury in a manufacturing process regardless of the amount of mercury at issue. EPA seeks comment on this approach.

    The absence of a reporting threshold is consistent with IMERC reporting requirements, which apply to the intentional addition of mercury to a product, including where “mercury is intentionally added for any reason or that incorporates a component to which mercury was intentionally added” (Ref. 14). Because of the similarities in the intentional addition of mercury to manufacture a product and otherwise intentional use of mercury in a manufacturing process, EPA determined that all quantities of mercury used in both activities should be reported without a reporting threshold. EPA seeks comment on this approach.

    By comparison, the CDR rule contains reporting thresholds for chemical substances, including elemental mercury and mercury compounds. EPA interprets the mandate in TSCA section 8(b)(10)(B) to call for a comprehensive inventory such that existing data gaps would be eliminated, where feasible. The Agency also seeks as much as possible to complement amounts of quantitative mercury data already collected by, but without overlapping with, reporting requirements of the CDR rule. In general, the Agency seeks to require reporting for persons who manufacture (including import) mercury in quantities less than the CDR thresholds for elemental mercury (2,500 lbs.) and mercury compounds (25,000 lbs.). The coordination between additional, proposed reporting requirements and the CDR rule are discussed in “Persons Who Manufacture (Including Import) Mercury.”

    3. Persons Who Manufacture (Including Import) Mercury. As described in Unit III.B., manufacture and import for the purpose of the proposed rule would include the manufacture (including import) of mercury. Although not exhaustive, persons who engage in the following activities would be required to report under the proposed rule (see Table 3. Information to Report—Mercury):

    • Mining (including extraction and beneficiation processes) mercury;

    • Generating or isolating mercury during ore, petroleum, or natural gas refining;

    • Retorting, recovering, or recycling (including purifying) mercury from waste streams;

    • Chemical manufacturing of mercury;

    • Importing mercury; or

    • Capturing mercury using methods to reduce emissions of hazardous air pollutants, unless the captured mercury is generated, handled, or managed as a waste or is identified as an impurity.

    As described in Unit III.C., the Agency is seeking to decrease the burden of reporting to the greatest extent practicable by, among other things, complementing without overlapping existing reporting requirements related to mercury and mercury-added products. As such, EPA proposes that persons who manufacture (including import) for commercial purposes in excess of 2,500 lbs. for elemental mercury or in excess of 25,000 lbs. for mercury compounds for a specific reporting year would not be required to report amounts manufactured (including imported) or exported that are already reported per the CDR rule. Such persons would, however, be required to provide quantitative data on storage and distribution in commerce, as well as qualitative and contextual information related to all applicable data elements under the proposed rule. In further efforts to decrease reporting burdens, the Agency intends to provide pre-selected lists of mercury compounds to streamline reporting requirements as much as possible.

    Table 3—Information to Report—Mercury Persons who must report Potential reporting requirements Persons who manufacture (including import) mercury in amounts greater than or equal to 2,500 lbs. for elemental mercury or greater than or equal to 25,000 lbs. for mercury compounds for a specific reporting year (i.e., current CDR reporters) —Country(ies) of origin for imported mercury.
  • —Country(ies) of destination for exported mercury.
  • —Amount of mercury stored (lbs.).
  • —Amount of mercury distributed in commerce (lbs.).
  • —NAICS code(s) for mercury distributed in commerce.
  • —As applicable, specific mercury compound(s) from pre-selected list.
  • All other persons who manufacture (including import) mercury —Amount of mercury manufactured (lbs.).
  • —Amount of mercury imported (lbs.).
  • —Country(ies) of origin for imported mercury. —Amount of mercury exported (lbs.), except mercury prohibited from export at 15 U.S.C. 2611(c)(1) and (7). —Country(ies) of destination for exported mercury. —Amount of mercury stored (lbs.). —Amount of mercury distributed in commerce (lbs.). —NAICS code(s) for mercury distributed in commerce. —As applicable, specific mercury compound(s) from pre-selected list.

    4. Persons Who Manufacture or Import Mercury-added Products. As described in Unit III.B., EPA is proposing to require reporting for manufacture (including import) mercury-added products, except import of a product that contains mercury solely as a component that is a mercury-added product. The Agency proposes that a person who imports a product that contains a component that is a mercury-added product (e.g., toy or novelty item containing a mercury-added battery) would not be required to report under the proposed rule. EPA determined that this distinction was appropriate after reviewing the data reported to the IMERC Mercury-Added Products Database and comparing the companies that reported national sales data for individual mercury-added products (including components), as well as items that would be considered to contain a component that is a mercury-added product (Ref. 15). For example, companies that report to IMERC for sales of appliances and vehicles list lamps as a mercury-added component. The Agency is interested in collecting data on original manufacturers (including importers) and users of mercury and believes that requiring certain contextual data (e.g., NAICS codes) would sufficiently describe the use of mercury-added components by companies who do not first manufacture, import, or otherwise intentionally use mercury. Based on its review of the companies who report to IMERC and the types of mercury-added products reported, the Agency is concerned that requiring reporting for products where mercury is present solely within a previously manufactured component poses risks of double-counting and thereby could negatively affect the reliability of future mercury inventory updates.

    EPA also is concerned that requiring reporting for a product that contains a mercury-added component could create undue burden for certain importers. For example, the Agency concluded that it is more likely that an importer of batteries would know if the specific kind of battery contained mercury, as opposed to an importer of toys that may or may not contain a mercury-added battery. However, EPA requests comment on whether persons who manufacture (including import) items that contain components that are mercury-added products should also report under the proposed rule.

    In addition, the Agency is aware of transactions where a consumer directly orders mercury-added drugs (e.g., hemorrhoid ointments, lotions, contact-lens solutions, and nasal sprays) and medical devices (e.g., thermometers and blood pressure devices) from foreign vendors. These parcels typically enter the United States via international mail and are processed at international mail facilities by the U.S. Postal Service, U.S. Customs and Border Protection, or the U.S. Food and Drug Administration. The addressee on the parcel is considered to be the importer of record. If an express courier is used, the express courier may assume the role of the importer of record. In the case where an individual consumer is purchasing and importing a mercury-added product for personal use, the Agency believes that the proposed rule does not apply to such persons. Furthermore, the proposed rule would not apply to persons engaged in the delivery of such mercury-added products to an individual consumer, even if the delivery service constitutes import and distribution in commerce. In both scenarios, the persons who are importing the mercury-added product are not doing so “with the purpose of obtaining an immediate or eventual commercial advantage for the importer.” However, if a delivery service intentionally specialized in part or whole in the import and distribution in commerce of mercury-added products, then that person (or company) would be required to report to the mercury inventory.

    Although not exhaustive, persons who engage in the following activities would be required to report under the proposed rule (see Table 4. Information to Report—Mercury-Added Products):

    • Importing mercury-added products (except the import of a product that contains a component that is a mercury-added product); or

    • Producing mercury-added products (e.g., inserting mercury into a switch or battery, or mixing a mercury compound with other substances to formulate a topical antiseptic).

    Examples of persons who would not be required to report to this proposed rule include:

    • Manufacturers of concrete made from coal ash that contains mercury, but where such mercury originated from coal burned as a fuel source (i.e., mercury was not intentionally added to the coal ash or the concrete);

    • Fuel blenders who combine materials that might contain mercury, but are not chosen for blending because they contain mercury;

    • Consumers who purchase and import mercury-added products for personal use from a foreign vendor; or,

    • Persons engaged in the delivery of mercury-added products to an individual consumer, unless the delivery service intentionally specializes in part or whole in the import and distribution in commerce of mercury-added products.

    For mercury-added products, the Agency seeks not only to balance efforts to increase the efficacy of reporting while decreasing the burden to the greatest extent practicable, but also to fully describe applicable sectors of the mercury market. As described in Unit III.C., persons who report to IMERC identify the amount of mercury sold in mercury-added products that may be manufactured, distributed, or imported. The Agency considers the amount of mercury reported to IMERC as sold to be comparable to the amount of mercury to be reported under the proposed rule as distributed in commerce. As such, EPA proposes that persons reporting to IMERC would not need to report amounts of mercury distributed in commerce under the proposed rule. However, those persons would need to report quantitative and qualitative information for other applicable data elements. Under the proposed rule, such persons also would be required to report contextual information applicable to amounts, if any, of mercury manufactured, imported, distributed in commerce, or exported. In further efforts to decrease reporting burdens, the Agency intends to provide pre-selected lists of mercury-added product categories to streamline reporting requirements as much as possible.

    Table 4—Information to Report—Mercury-Added Products Persons who must report Potential reporting requirements Persons who manufacture (including import) mercury-added products, except a product that contains a component that is a mercury-added product, who currently report to IMERC —Amount of mercury in manufactured products (lbs.).
  • —Amount of mercury in imported products (lbs.).
  • —Country(ies) of origin for imported products.
  • —Amount of mercury in exported products (lbs.). —Country(ies) of destination for exported products. —NAICS code(s) for products distributed in commerce. —As applicable, specific product category(ies) and subcategory(ies) from pre-selected list. All other persons who manufacture (including import) mercury-added products, except a product that contains a component that is a mercury-added product —Amount of mercury in manufactured products (lbs.).
  • —Amount of mercury in imported products (lbs.).
  • —Country(ies) of origin for imported products.
  • —Amount of mercury in exported products (lbs.). —Country(ies) of destination for exported products. —Amount of mercury in products distributed in commerce (lbs.). —NAICS code(s) for products distributed in commerce. —As applicable, specific product category(ies) and subcategory(ies) from pre-selected list.

    5. Persons Who Otherwise Intentionally Use Mercury in a Manufacturing Process. As described in Unit III.B., TSCA section 8(b)(10)(d)(i) includes persons who intentionally use mercury in a manufacturing process amongst those who must report. Examples of persons who otherwise intentionally use mercury in a manufacturing process that would be required to report under the proposed rule include, but are not limited to (see Table 5. Information to Report—Otherwise Intentional Use of Mercury in a Manufacturing Process):

    • Producers of chlorine (e.g., mercury-cell chlor-alkali process);

    • Producers of polyurethane elastomer; or

    • Producers of other commercial chemicals (except mercury compounds).

    Unlike manufacturers (including importers) of mercury and mercury-added products, the Agency believes that persons who otherwise intentionally use mercury in a manufacturing process may currently report to existing data collection programs in the United States; however, the reporting requirements for those programs cover only some of the data elements that would be required of EPA for the mercury inventory. As such, the general, specific, and contextual reporting requirements proposed by EPA are intended to provide a complete picture of uses for which little information is currently available. In further efforts to decrease reporting burdens, the Agency intends to provide pre-selected lists of manufacturing processes and attendant uses of mercury to streamline reporting requirements as much as possible.

    Table 5—Information to Report—Otherwise Intentional Use of Mercury in a Manufacturing Process Persons who must report Potential reporting requirements Persons who otherwise intentionally use mercury in a manufacturing process, other than the manufacture of a mercury compound or a mercury-added product —Amount of mercury intentionally used (lbs.) in pre-selected list of manufacturing processes.
  • —Amount of mercury stored (lbs.).
  • —Amount of mercury in exported final product(s) (lbs.).
  • —Country(ies) of destination for exported final product(s).
  • —Amount of mercury in final product(s) distributed in commerce (lbs.). —NAICS code(s) for mercury in final product(s) distributed in commerce. —As applicable, specific manufacturing process from pre-selected list. —As applicable, specific use of mercury in manufacturing process from pre-selected list.

    To the extent that the proposed persons who must report and descriptions and examples of the kinds of information to be reported can be clarified, the Agency welcomes comment on the aforementioned discussion and tables. In addition, the Agency requests comment on whether other persons should be required to report or, in the alternative, if any of the proposed persons should not report.

    6. Consideration of Small Entities. Based on EPA's economic assessment of the proposed rule (Ref. 3), approximately 40 percent of the respondents will be small entities. However, small businesses are not exempt from reporting requirements because, unlike the exemption for small manufacturers and processors provided under TSCA 8(a)(1)(A) and (B), reporting and recordkeeping requirements associated with TSCA section 8(b) are applicable to all affected entities. EPA is striving to minimize the burden on all respondents, including small entities, as much as possible by developing the reporting application and database to be user-friendly and dynamic, consisting of straightforward questions that are to include fill-in-the-blank (numbers) fields, check boxes, and drop down menus.

    In addition, the Agency is considering the development of compliance guides tailored to small entities that will be required to comply with the reporting requirements. EPA requests public comment on what kinds of information would be particularly important to address for small entities in such compliance guides. EPA expects to conduct outreach and webinars for small businesses to introduce the reporting database, explain requirements, and offer Q&A and other support. Under TSCA section 26(d), EPA also provides specialized assistance to respondents, particularly to small entities, including technical and other non-financial assistance to manufacturers and processors of chemical substances. EPA's TSCA Hotline assists small businesses complying with TSCA rules and provides various materials such as copies of Federal Register notices, advisories, and other information upon request. Contact information for the TSCA Hotline is listed under FOR FURTHER INFORMATION CONTACT.

    E. Reporting Requirements

    TSCA section 8(b)(10)(B) sets the general scope of the inventory as the “mercury supply, use, and trade in the United States” (15 U.S.C. 2607(b)(10)(B)). EPA interprets the core elements to be covered in the mercury inventory to be the amount of mercury used in the activities within the mercury market described in Unit III.B. (i.e., manufacture, import, export, storage, distribution in commerce, and otherwise intentional use of mercury in a manufacturing process). EPA also determined that, for certain elements, requiring reporting of more specific information would help to better contextualize reported quantities of mercury used in domestic and, where appropriate, global supply, use, and trade. The proposed general, specific, and contextual reporting requirements are described in this section.

    1. General Reporting Requirements. EPA considers “supply” to include manufacture and storage, “use” to include otherwise intentional use of mercury in a manufacturing process, and “trade” to include import, export, and distribution in commerce. The Agency is proposing that accounting for such activities is necessary to fulfill statutory mandates at TSCA sections 8(b)(10)(B) and (C). Therefore, for persons required to report (as described in Unit III.D.), EPA proposes reporting quantitative data for mercury, mercury-added products, and otherwise intentional use of mercury in a manufacturing process (as qualified from existing terms as discussed in Unit III.B.) as follows:

    a. Importers of mercury: Amount of mercury imported per year (lbs.); Amount of mercury stored per year (lbs.); Amount of mercury distributed in commerce per year (lbs.); Amount of mercury exported per year (lbs.).

    b. Manufacturers (other than importers) of mercury: Amount of mercury manufactured (other than imported) per year (lbs.); Amount of mercury stored per year (lbs.); Amount of mercury distributed in commerce per year (lbs.).

    c. Importers of any mercury-added product other than a product that contains a component that is a mercury-added product(NOTE—see Unit III.D.): Amount of mercury in imported products per year (lbs.); Amount of mercury in products distributed in domestic commerce per year (lbs.); Amount of mercury in exported products per year (lbs.).

    d. Manufacturers (other than importers) of any mercury-added product other than a product that contains a component that is a mercury-added product (NOTE—see Unit III.D.): Amount of mercury in manufactured (other than imported) products per year (lbs.); Amount of mercury in products distributed in commerce per year (lbs.); Amount of mercury in exported products per year (lbs.).

    e. Persons who intentionally use mercury in manufacturing processes, other than the manufacture of a mercury compound or a mercury-added product: Amount of mercury used in a manufacturing process per year (lbs.); Amount of mercury stored per year (lbs.); Amount of mercury distributed in commerce in final product(s) of manufacturing process per year (lbs.); Amount of mercury exported in final product(s) of manufacturing process per year (lbs.).

    EPA understands that certain persons may report for multiple activities associated with supply, use, and trade of mercury. For example, a person may import mercury and manufacture mercury-added products. As such, the Agency attempted to design the proposed quantitative data elements for reporting requirements such that a person could report both as an “importer of mercury” and “manufacturer of mercury-added products,” but only report for the specific activity in which they engage. The Agency expects there may be certain persons engaged in the supply, use, and trade of mercury who might not be accounted for in the inventory, but EPA views this omission of prospective reporters as an opportunity to limit undue burden and avoid double-counting. Thus, the Agency is proposing to limit the persons who must report at TSCA section 8(b)(10)(D)(i) to only those persons described in Unit III.D. However, EPA requests comment on whether the proposed reporting requirements should apply to persons who do not manufacture or import mercury or mercury-added products, or otherwise intentionally use mercury in a manufacturing process, but engage in the supply, use, and trade of mercury in the United States.

    2. Specific Reporting Requirements. To better understand the categories of mercury-added products and otherwise intentional use of mercury in a manufacturing process, the Agency also proposes to require reporters to identify the specific categories and subcategories of products and functional uses for which quantitative data is reported. The Agency believes this is an appropriate interpretation of the direction to “identify any manufacturing processes or products that intentionally add mercury,” which, in turn, could inform how to “recommend actions, including proposed revisions of Federal law or regulations, to achieve further reductions in mercury use” (15 U.S.C. 2607(b)(10)(C)). Persons required to report would provide the total amount of mercury used during the reporting year in pounds for general reporting activities associated with supply, use, and trade, rather than per category and subcategory. EPA based this decision on issues concerning burden and confidential business information that could be created by reporting quantitative information for increasingly specific categories and subcategories. Nonetheless, EPA requests comment on whether quantitative information should be required for such specific reporting categories and subcategories, as well as on the reporting categories and subcategories.

    a. Mercury-added products. Based on the current knowledge of mercury-added products available in the marketplace, including skin products manufactured abroad and sold illegally in the United States (Ref. 16), EPA proposes the following list of categories and subcategories of mercury-added products:

    Batteries: Button cell, silver; Button cell, zinc-air; Button cell, alkaline; Stacked button cell batteries; Manganese oxide; Silver oxide; Mercuric oxide, non-button cell; Button cell, mercuric oxide; Button cell, zinc carbon; Other (specify).

    Dental amalgam.

    Formulated products (includes uses in cosmetics, pesticides, and laboratory chemicals): Skin-lightening creams; Lotions; Soaps and sanitizers; Topical antiseptics; Bath oils and salts; Preservatives (e.g., for use in vaccines and eye-area cosmetics when no preservative alternatives are available); Pharmaceuticals (including prescription and over-the-counter drug products); Cleaning products (not registered as pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act); Pesticides; Paints; Dyes; Reagents (e.g., catalysts, buffers, fixatives); Other (specify).

    Lighting, lamps, bulbs: Linear fluorescent; Compact fluorescent; U-tube and circular fluorescent; Cold cathode fluorescent; External electrode fluorescent; Mercury vapor; Metal halide; High pressure sodium; Mercury short arc; Neon; Other (specify).

    Measuring instruments: Barometer; Fever thermometer; Flow meter; Hydrometer; Hygrometer/psychrometer; Manometer; Non-fever thermometer; Pyrometer; Sphygmomanometer; Other (specify).

    Pump seals.

    Switches, relays, sensors, valves: Tilt switch; Vibration switch; Float switch; Pressure switch; Temperature switch; Displacement relay; Wetted reed relay; Contact relay; Flame sensor; Thermostat; Other (specify).

    Miscellaneous mercury-added products: Wheel weights; Wheel rotation balancers/stabilizers; Firearm recoil suppressors; Carburetor synchronizers; Joint support/shock absorption bands; Other (specify).

    b. Intentional mercury use in manufacturing processes. Based on the current knowledge of manufacturing processes involving the otherwise intentional use of mercury, EPA proposes the following manufacturing processes for which mercury may be intentionally used: Chlorine production (e.g., mercury-cell chlor-alkali process); Acetaldehyde production; Vinyl chloride monomer production; Sodium/potassium methylate/ethylate production; Polyurethane/plastic production; Other (specify).

    EPA proposes the following list of uses of mercury in the aforementioned manufacturing processes: Catalyst; Reactant; Reagent; Other (specify).

    3. Contextual Reporting Requirements. Within certain sectors of the mercury market, the Agency determined that additional data requirements are important to provide context to the quantitative data reported. While the individual quantities and overarching, categorical sums can help to fulfill the statutory mandate to identify manufacturing processes or products that intentionally add mercury, EPA seeks to collect information to more thoroughly describe such activities and enhance efforts to recommend actions to achieve further reductions in mercury use, as mandated in TSCA section 8(b)(10)(C). Examples of such data requirements include descriptions of countries of origin or destination for reported import and export quantities, as well as NAICS codes for purchasing or receiving industries for mercury or mercury-added products distributed in commerce. In order to fully understand the supply, use, and trade or mercury in the United States, EPA proposes the following reporting requirements:

    a. For imports of mercury or mercury-added products: Country of origin.

    b. For mercury or mercury-added products distributed in commerce: Identify the applicable purchasing or receiving industry sectors via NAICS codes.

    c. For exported mercury or mercury-added products: Destination country.

    The Agency determined that the combination of general, specific, and contextual reporting requirements provides for the body of information required to fulfill statutory mandates of TSCA sections 8(b)(10)(B) and (C). As much as possible, the Agency would design all requirements to be answered only where a reporter engages in the specific activity from the inclusive list of options. In fact, EPA believes that it is unlikely that the typical reporter would be engaged in and, as a result, be required to answer all, or even many, of the proposed reporting requirements. Nonetheless, to the extent that the proposed reporting process can be streamlined, the Agency welcomes comment on the proposed general, specific, and contextual reporting requirements. In addition, the Agency requests comment on whether such reporting requirements should be added or eliminated.

    F. Frequency of Inventory Publication

    TSCA section 8(b)(10)(B) sets the date for publication of initial and subsequent, triennial iterations of the mercury inventory to commence on April 1, 2017 (15 U.S.C. 8(b)(10)(B)). Therefore, EPA expects to publish the first mercury inventory supported by the proposed reporting requirements by April 1, 2020 and every three years thereafter.

    G. Frequency of Data Collection and Reporting Deadline

    TSCA section 8(b)(10)(D) provides the authority to promulgate the rule being proposed here to assist in the preparation of the triennial inventory publication (15 U.S.C. 8(b)(10)(D)), but TSCA offers no guidance on the frequency of collection or reporting deadline. To attempt to minimize reporting obligations, the Agency compared the respective collection frequencies and reporting deadlines for IMERC, the CDR rule, and the TRI program to when EPA is required to publish the mercury inventory. TSCA section 8(b)(10)(B), (15 U.S.C. 8(b)(10)(B)), sets a publication date for the mercury inventory that falls on the reporting deadline for IMERC: April 1 in a triennial cycle starting in April 2017. Data collected under the CDR rule is submitted to the Agency on a quadrennial cycle; the next reporting cycle will occur in 2020, with a reporting deadline of September 2020. The TRI program collects and publishes data on an annual cycle with a reporting deadline of July 1 of each year.

    EPA recognizes that the mercury inventory reporting deadline would need to allow for an appropriate amount of time for quality control and assurance to be performed by EPA staff before the inventory is published. As such, the Agency concluded that the proposed reporting deadline would need to occur at least several months in advance of the publication deadline (April 1). The Agency then considered whether it was feasible to select a date and reporting frequency that would coincide with the IMERC, CDR rule, and TRI program reporting deadlines, so as not to impose an additional date for those that might be required to report to multiple systems. Due to the incongruities of frequency of collection among the proposed rule (triennial cycle—publication date of April 1), IMERC (triennial cycle—reporting deadline of April 1), the CDR rule (quadrennial cycle—reporting deadline of September 30), and TRI program (annual cycle—reporting deadline of July 1), the Agency determined that attempting to coordinate with each program would be more confusing for reporters, would not allow for ample time to review and coordinate similar data (e.g., mismatched dates for reporting deadline and inventory publication between CDR rule and the proposed rule), and could result in gaps of up to several years between the availability of most applicable information (e.g., principal reporting year data for the CDR rule).

    Based on such considerations, the Agency determined that coinciding with the triennial IMERC frequency of collection is appropriate given the mercury inventory publication schedule is also triennial. In addition, the Agency is proposing to set the mercury inventory reporting deadline to coincide with the TRI program deadline in an effort to align with a date with which certain, potential reporters might already be familiar. Therefore, EPA proposes to establish a July 1st reporting deadline for 2019 and every three years thereafter. Data submitted should cover only the calendar year preceding the year in which the reporting deadline occurs (e.g., data for calendar year January 1 to December 31, 2018 reported on or before July 1, 2019). The Agency notes that IMERC “Product Notification” requirements are intended to inform consumers, recyclers, policy makers, and others about the total amount of mercury in the specific products that were sold in the United States in a given year. EPA seeks comment on the proposed timelines and reporting deadlines proposed.

    EPA notes that there would be some discrepancies between the proposed rule and IMERC deadlines (e.g., the Agency's inventory publishing deadline is the same day as IMERC reporting deadline). However, the Agency would look to statutory provisions calling for coordination with IMERC to reconcile such concerns. In addition, the Agency's intent to avoid duplicative reporting of quantitative data could result in reliance on information reported to other data collection systems in differing reporting years (i.e., current reporters to IMERC and the CDR rule). For the reasons described above, EPA believes the proposed reporting parameters would provide for the most convenience and least burden to potential reporters and the Agency. Nonetheless, EPA requests comment on the proposed frequency of data collection, reporting deadline, and timeline.

    H. Recordkeeping

    Consistent with the proposed triennial reporting and publication cycle for the mercury inventory, EPA proposes that each person who is subject to the reporting requirements must retain records that document any information reported to EPA. Records relevant to reporting during a submission period must be retained for a period of 3 years beginning on the last day of the submission period. Submitters are encouraged to retain their records longer than 3 years to ensure that past records are available as a reference when new submissions are being generated.

    I. Reporting Requirements and Confidential Business Information

    Reporters to the information collection of the proposed rule may claim that their submitted information is CBI. The statutory provisions for CBI under TSCA are at Section 14 of the law (15 U.S.C. 2613).

    J. Electronic Reporting

    EPA is proposing to require electronic reporting of the mercury inventory data, using an Agency-provided, web-based reporting software to submit mercury inventory reports through the Internet to EPA's Central Data Exchange (CDX). CDX provides the capability for submitters to access their data through the use of web services. For more information about CDX, go to http://epa.gov/cdx.

    Should EPA adopt a mandatory electronic reporting requirement, submitters would be required to register with EPA's CDX, complete an electronic signature agreement, and to prepare a data file for submission. To submit electronically to EPA via CDX, individuals must first register with that system at http://cdx.epa.gov/epa_home.asp. To register in CDX, the CDX registrant agrees to the Terms and Conditions, provides information about the submitter and organization, selects a user name and password, and follows the procedures outlined in the guidance document for CDX available at https://cdx.epa.gov/TSCA/eTSCA-RegistrationGuide.pdf. The registrant would also select a role and complete an electronic signature agreement either through electronic validation using the LexisNexis services or through wet ink signature. Once registration and the electronic signature agreement are complete, the user would prepare a submission. EPA is proposing mandatory electronic reporting because such a requirement would streamline the reporting process and reduce the administrative costs associated with information submission and recordkeeping. The effort to eliminate paper-based submissions in favor of CDX reporting is part of broader government efforts to move to modern, electronic methods of information gathering. Electronic reporting allows for more efficient data transmittal and a reduction in errors with the built-in validation procedures. EPA determined the adoption of electronic reporting reduces the reporting burden for submitters by reducing the cost and time required to review. Nonetheless, the Agency requests comment on its proposal to require mandatory electronic reporting.

    IV. Request for Comment

    In addition to the areas where EPA has specifically requested comment, EPA requests comment on all other aspects of this proposed rule.

    V. References

    The following is a listing of the documents that are specifically referenced in this document. The docket includes these documents and other information considered by EPA, including documents that are referenced within the documents that are included in the docket, even if the referenced document is not physically located in the docket. For assistance in locating these other documents, please consult the technical person listed under FOR FURTHER INFORMATION CONTACT.

    1. EPA. Mercury; Initial Inventory Report of Supply, Use, and Trade. (82 FR. 15522; March 29, 2017). 2. UNEP. Minamata Convention on Mercury. (No date). Available at http://www.mercuryconvention.org. [Accessed August 4, 2017]. 3. EPA. Economic Analysis for the Proposed Reporting Requirements for the TSCA Mercury Inventory. August 2, 2017. 4. EPA. TSCA Chemical Substance Inventory. (No date). Available at https://www.epa.gov/tsca-inventory. [Accessed August 4, 2017]. 5. AMAP/UNEP. Technical Background Report for the Global Mercury Assessment 2013. 2013. Arctic Monitoring and Assessment Programme, Oslo, Norway/UNEP Chemicals Branch, Geneva, Switzerland. vi + 263 pp. Available at http://apps.unep.org/piwik/download.php?file=/publications/pmtdocuments/-Technical%20background%20report%20for%20the%20global%20mercury%20assessment%20-2013TechBackRepGMA2013.pdf. 6. EPA. Basic Information about Mercury. (No date). Available at https://www.epa.gov/mercury/basic-information-about-mercury. [Accessed August 4, 2017]. 7. EPA. Health Effects of Exposures to Mercury. (No date). Available at https://www.epa.gov/mercury/health-effects-exposures-mercury. [Accessed August 4, 2017]. 8. EPA. EPA's Roadmap for Mercury, EPA-747R-06-001. July 2006. Available at http://www.epa.gov/hg/roadmap.htm. 9. EPA. Subpoena and Information Request. March 20, 2015. Available at https://www.epa.gov/mercury/2015-subpoena-and-information-request-epa-mercury-recyclers. 10. EPA. Chemical Data Reporting under the Toxic Substances Control Act. (No date). Available at https://www.epa.gov/chemical-data-reporting. [Accessed August 4, 2017]. 11. EPA. Toxics Release Inventory (TRI) Program. (No date). Available at https://www.epa.gov/toxics-release-inventory-tri-program. [Accessed August 4, 2017]. 12. EPA. TSCA Chemical Data Reporting Fact Sheet: Articles. 2012. Available at https://www.epa.gov/sites/production/files/documents/articlesfactsheetforcdr_reporting_080312.pdf. 13. USITC. Guide to Foreign Trade Statistics—Description of the Foreign Trade Statistical Program. (No date). Available at https://www.census.gov/foreign-trade/guide/sec2.html. [Accessed August 4, 2017]. 14. NEWMOA. Instructions—Mercury-added Product Notification Form, Version for Use by a Single Manufacturer, Distributor/Wholesaler, or Importer. August 2011. Available at www.newmoa.org/prevention/mercury/imerc/InstructionsMultiple.doc. 15. NEWMOA. Mercury-Added Products Database. (No date). Available at http://www.newmoa.org/prevention/mercury/imerc/notification/. [Accessed August 4, 2017]. 16. U.S. Food and Drug Administration. Mercury Poisoning Linked to Skin Products. (July 26, 2016). Available at https://www.fda.gov/forconsumers/consumerupdates/ucm294849.htm. [Accessed October 3, 2017]. 17. EPA. Collection of Information for Mercury Inventory Reporting Rule; EPA ICR No. 2567.01; OMB Control No.: 2070-NEW. [Month DD], 2017. VI. Statutory and Executive Order Reviews A. Executive Order 12866: Regulatory Planning and Review and Executive Order 13563: Improving Regulation and Regulatory Review

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

    B. Executive Order 13771: Reducing Regulations and Controlling Regulatory Costs

    This action is expected to be subject to the requirements for regulatory actions specified in Executive Order 13771 (82 FR 9339, February 3, 2017). EPA prepared an analysis of the estimated costs and benefits associated with this action. This analysis, “Economic Analysis for the Proposed Reporting Requirements for the TSCA Mercury Inventory” (Economic Analysis, Ref. 3) is available in the docket and is summarized in Unit I.E.

    C. Paperwork Reduction Act (PRA)

    The information collection activities in this proposed rule have been submitted for approval to the Office of Management and Budget (OMB) under the PRA, 44 U.S.C. 3501 et seq. The Information Collection Request (ICR) document that the EPA prepared has been assigned EPA ICR number 2567.01 (Ref. 17). You can find a copy of the ICR in the docket for this rule, and it is briefly summarized here.

    The reporting requirements identified in the proposed rule would provide EPA with information necessary to prepare and periodically update an inventory of mercury supply, use, and trade in the United States, as required by TSCA section 8(b)(10)(D). These proposed reporting requirements would help the Agency to prepare subsequent, triennial publications of the inventory, as well as to carry out the requirement of TSCA section 8(b)(10)(C) to identify any manufacturing processes or products that intentionally add mercury and recommend actions, including proposed revisions of Federal law or regulations, to achieve further reductions in mercury use. EPA intends to use information collected under the rule to assist in efforts to reduce the use of mercury in products and processes and to facilitate reporting on implementation of the Minamata Convention by the United States. Respondents may claim some of the information reported to EPA under the proposed rule as CBI under TSCA section 14. TSCA section 14(c) requires a supporting statement and certification for confidentiality claims asserted after June 22, 2016.

    EPA estimated total burden and costs to industry associated with the proposed rule over the first three years of its promulgation (Ref. 3). For the 750 companies anticipated to be subject to the proposed reporting requirements, the average per respondent burden hours for Year 1 (of a triennial cycle for submitting information) was estimated to be 98.94 hours (Ref. 3). Years 2 and 3 are not data collection years, so there is no cost associated with the proposed rule during these years (Ref. 3). Therefore, the average for total burden hours per the three-year reporting cycle is 32.94 hours per year (Ref. 3).

    Respondents/affected entities: Manufacturers, importers, and processors of mercury.

    Respondent's obligation to respond: Mandatory (15 U.S.C. 2607(b)(10)(D)).

    Estimated number of respondents: 750.

    Frequency of response: Triennially.

    Total estimated annual burden: 24,734 hours (averaged over 3 years). Burden is defined at 5 CFR 1320.3(b).

    Total estimated annual cost: $1,985,446 (averaged over 3 years), includes $0 annualized capital or operation and maintenance costs.

    An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. The OMB control numbers for the EPA's regulations in 40 CFR are listed in 40 CFR part 9.

    Submit your comments on the Agency's need for this information, the accuracy of the provided burden estimates and any suggested methods for minimizing respondent burden to the EPA using the docket identified at the beginning of this rule. You may also send your ICR-related comments to OMB's Office of Information and Regulatory Affairs via email to [email protected], Attention: Desk Officer for the EPA. Since OMB is required to make a decision concerning the ICR between 30 and 60 days after receipt, OMB must receive comments no later than November 27, 2017. The EPA will respond to any ICR-related comments in the final rule.

    D. Regulatory Flexibility Act (RFA)

    Pursuant to section 605(b) of the RFA, 5 U.S.C. 601 et seq., I certify that this action will not have a significant economic impact on a substantial number of small entities under the RFA. The small entities subject to the requirements of this action include those that manufactures, including imports, mercury or mercury-added products (manufacturers), or otherwise intentionally uses mercury in a manufacturing process (processors). To identify the number of firms that are subject to the rule and considered small under SBA size standards, EPA compared the appropriate SBA size definition to the company's revenue or number of employees, as identified using Dun and Bradstreet or other market research Web sites. Of the 506 parent companies that are subject to the rule, 211 companies (42 percent) meet the SBA small business definitions for their respective NAICS classifications.

    The small entity analysis estimated that 1 parent company (0.46 percent of total entities) would incur an impact of 3 percent or greater, and 3 parent companies (1.39 percent of total entities) would incur an impact of 1 to 3 percent. Details of this analysis are included in the accompanying Economic Analysis for this Rule (Ref. 3).

    E. Unfunded Mandates Reform Act (UMRA)

    This action does not contain an unfunded mandate of $100 million or more as described in UMRA, 2 U.S.C. 1531 through 1538, and does not significantly or uniquely affect small governments. As such, the requirements of sections 202, 203, 204, or 205 of UMRA do not apply to this action.

    F. Executive Order 13132: Federalism

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

    G. Executive Order 13175: Consultation and Coordination With Indian Tribal Governments

    This action does not have tribal implications as specified in Executive Order 13175 (65 FR 67249, November 9, 2000). It will not have any effect on tribal governments, on the relationship between the Federal government and the Indian tribes, or on the distribution of power and responsibilities between the Federal government and Indian tribes, as specified in the Order. Thus, EO 13175 does not apply to this action.

    H. Executive Order 13045: Protection of Children From Environmental Health Risks and Safety Risks

    EPA interprets Executive Order 13045 (62 FR 19885, April 23, 1997) as applying only to those regulatory actions that concern environmental health or safety risks that EPA has reason to believe may disproportionately affect children, per the definition of “covered regulatory action” in section 2-202 of the Executive Order. This action is not subject to Executive Order 13045 because it does not concern an environmental health risk or safety risk, nor is this action economically significant as the impact of this action will be less than $100 million.

    I. Executive Order 13211: Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

    This proposed rule is not subject to Executive Order 13211 (66 FR 28355, May 22, 2001) because it is not expected to affect energy supply, distribution, or use.

    J. National Technology Transfer and Advancement Act (NTTAA)

    Since this action does not involve any technical standards, section 12(d) of NTTAA, 15 U.S.C. 272 note, does not apply to this section.

    K. Executive Order 12898: Federal Actions To Address Environmental Justice in Minority Populations and Low-Income Populations

    This action is not subject to Executive Order 12898 (59 FR 7629, February 16, 1994) because it does not establish an environmental health or safety standard. This action establishes an information requirement and does not affect the level of protection provided to human health or the environment.

    List of Subjects in 40 CFR Part 713

    Environmental protection, Mercury, Elemental mercury, Mercury compounds, Inventory, Supply, Use, Trade, Manufacture, Import, Export.

    Dated: October 19, 2017. E. Scott Pruitt, Administrator.

    Therefore, it is proposed that 40 CFR chapter I, subchapter R, be amended by adding a new part 713 to read as follows:

    PART 713—REPORTING REQUIREMENTS FOR THE TSCA INVENTORY OF MERCURY SUPPLY, USE, AND TRADE Sec. 713.1 Purpose, scope, and compliance. 713.5 Mercury for which information must be reported. 713.7 Mercury for which reporting is not required. 713.9 General requirements for which information must be reported. 713.11 Specific requirements for which information must be reported. 713.13 Contextual requirements for which information must be reported. 713.15 Persons who must report. 713.17 Persons not subject to this part. 713.19 Reporting information to EPA. 713.21 When to report. 713.23 Recordkeeping requirements. 713.25 Electronic filing. Authority:

    15 U.S.C. 2607(b)(10)(D).

    § 713.1 Purpose, scope, and compliance.

    (a) This part specifies reporting and recordkeeping procedures under section 8(b)(10) of the Toxic Substances Control Act (TSCA) (15 U.S.C. 2607(b)(10)) for certain manufacturers (including importers) and processers of mercury as defined in section 8(b)(10)(A) to include elemental mercury and mercury compounds. Section 8(b)(10)(D) of TSCA authorizes the EPA Administrator to require reporting from any person who manufactures mercury or mercury-added products or otherwise intentionally uses mercury in a manufacturing process to carry out and publish in the Federal Register an inventory of mercury supply, use, and trade in the United States. In administering this mercury inventory, EPA will identify any manufacturing processes or products that intentionally add mercury and recommend actions, including proposed revisions of Federal law or regulations, to achieve further reductions in mercury use. EPA intends to use the collected information to implement TSCA and shape the Agency's efforts to recommend actions, both voluntary and regulatory, to reduce the use of mercury in commerce. In so doing, the Agency will conduct timely evaluation and refinement of these reporting requirements so that they are efficient and non-duplicative for reporters.

    (b) This part applies to the activities associated with the periodic publication of information on mercury supply, use, and trade in the United States.

    (c) For purposes of this part, the reporting for mercury supply, use, and trade includes the following activities:

    (1) Import of mercury or a mercury-added product with the purpose of obtaining an immediate or eventual commercial advantage for the importer, except:

    (A) Mercury generated as a byproduct not used for commercial purposes or an impurity; or

    (B) A product that contains a component that is a mercury-added product.

    (2) Manufacture (other than import) of mercury or a mercury-added product with the purpose of obtaining an immediate or eventual commercial advantage for the manufacturer, except a product that contains a component that is a mercury-added product.

    (3) Intentional use of mercury in a manufacturing process, other than the manufacture of a mercury compound or a mercury-added product, with the purpose of obtaining an immediate or eventual commercial advantage for the processor, except mercury generated as a byproduct not used for commercial purposes.

    (4) Distribution in commerce, including domestic sale or transfer, of mercury or a mercury-added product.

    (5) Storage of mercury after manufacture (including import).

    (6) Export of mercury or a mercury-added product, including the determining and controlling the sending of mercury (unless specifically prohibited) or a mercury-added product to a destination out of the customs territory of the United States.

    (d) Section 15(3) of TSCA makes it unlawful for any person to fail or refuse to submit information required under this part. In addition, TSCA section 15(3) makes it unlawful for any person to fail to keep, and permit access to, records required by this part. Section 16 of TSCA provides that any person who violates a provision of TSCA section 15 is liable to the United States for a civil penalty and may be criminally prosecuted. Pursuant to TSCA section 17, the Federal Government may seek judicial relief to compel submission of TSCA section 8 information and to otherwise restrain any violation of TSCA section 15.

    (e) Each person who reports under this part must certify the accuracy of its information and maintain records that document information reported under this part and, in accordance with TSCA, permit access to, and the copying of, such records by EPA officials.

    § 713.5 Mercury for which information must be reported.

    (a) Elemental mercury (Chemical Abstracts Registry Number 7439-97-6); or

    (b) A mercury compound, including but not limited to the mercury compounds listed in Table 1 of this part by Chemical Abstracts Registry Number:

    Table 1—Mercury Compounds Chemical abstracts
  • registry No.
  • Mercury compound
    10045-94-0 Nitric acid, mercury(2+) salt (2:1). 100-57-2 Mercury, hydroxyphenyl-. 10112-91-1 Mercury chloride (Hg2Cl2). 10124-48-8 Mercury amide chloride (Hg(NH2)Cl). 103-27-5 Mercury, phenyl(propanoato-.kappa.O)-. 10415-75-5 Nitric acid, mercury(1+) salt (1:1). 104-60-9 Mercury, (9-octadecenoato-.kappa.O)phenyl-. 1191-80-6 9-Octadecenoic acid (9Z)-, mercury(2+) salt (2:1). 12068-90-5 Mercury telluride (HgTe). 13170-76-8 Hexanoic acid, 2-ethyl-, mercury(2+) salt (2:1). 13302-00-6 Mercury, (2-ethylhexanoato-.kappa.O)phenyl-. 1335-31-5 Mercury cyanide oxide (Hg2(CN)2O). 1344-48-5 Mercury sulfide (HgS). 1345-09-1 Cadmium mercury sulfide. 13876-85-2 Mercurate(2-), tetraiodo-, copper(1+) (1:2), (T-4)-. 138-85-2 Mercurate(1-), (4-carboxylatophenyl)hydroxy-, sodium (1:1). 141-51-5 Mercury, iodo(iodomethyl)-. 14783-59-6 Mercury, bis[(2-phenyldiazenecarbothioic acid-.kappa.S) 2-phenylhydrazidato-.kappa.N2]-, (T-4)-. 15385-58-7 Mercury, dibromodi-, (Hg-Hg). 15785-93-0 Mercury, chloro[4-[(2,4-dinitrophenyl)amino]phenyl]-. 15829-53-5 Mercury oxide (Hg2O). 1600-27-7 Acetic acid, mercury(2+) salt (2:1). 1785-43-9 Mercury, chloro(ethanethiolato)-. 19447-62-2 Mercury, (acetato-.kappa.O)[4-[2-[4-(dimethylamino)phenyl]diazenyl]phenyl]-. 20582-71-2 Mercurate(2-), tetrachloro-, potassium (1:2), (T-4)-. 20601-83-6 Mercury selenide (HgSe). 21908-53-2 Mercury oxide (HgO). 22450-90-4 Mercury(1+), amminephenyl-, acetate (1:1). 24579-90-6 Mercury, chloro(2-hydroxy-5-nitrophenyl)-. 24806-32-4 Mercury, [.mu.-[2-dodecylbutanedioato(2-)-.kappa.O1:.kappa.O4]]diphenyldi-. 26545-49-3 Mercury, (neodecanoato-.kappa.O)phenyl-. 27685-51-4 Cobaltate(2-), tetrakis(thiocyanato-.kappa.N)-, mercury(2+) (1:1), (T-4)-. 29870-72-2 Cadmium mercury telluride ((Cd,Hg)Te). 3294-57-3 Mercury, phenyl(trichloromethyl)-. 33770-60-4 Mercury, [3,6-dichloro-4,5-di(hydroxy-.kappa.O)-3,5-cyclohexadiene-1,2-dionato(2-)]-. 3570-80-7 Mercury, bis(acetato-.kappa.O)[.mu.-(3′,6′-dihydroxy-3-oxospiro[isobenzofuran-1(3H),9′-[9H]xanthene]-2′,7′-diyl)]di-. 537-64-4 Mercury, bis(4-methylphenyl)-. 539-43-5 Mercury, chloro(4-methylphenyl)-. 54-64-8 Mercurate(1-), ethyl[2-(mercapto-.kappa.S)benzoato(2-)-.kappa.O]-, sodium (1:1). 55-68-5 Mercury, (nitrato-.kappa.O)phenyl-. 56724-82-4 Mercury, phenyl[(2-phenyldiazenecarbothioic acid-.kappa.S) 2-phenylhydrazidato-.kappa.N2]-. 587-85-9 Mercury, diphenyl-. 592-04-1 Mercury cyanide (Hg(CN)2). 592-85-8 Thiocyanic acid, mercury(2+) salt (2:1). 593-74-8 Mercury, dimethyl-. 59-85-8 Mercurate(1-), (4-carboxylatophenyl)chloro-, hydrogen. 623-07-4 Mercury, chloro(4-hydroxyphenyl)-. 62-38-4 Mercury, (acetato-.kappa.O)phenyl-. 62638-02-2 Cyclohexanebutanoic acid, mercury(2+) salt (2:1). 627-44-1 Mercury, diethyl-. 6283-24-5 Mercury, (acetato-.kappa.O)(4-aminophenyl)-. 628-86-4 Mercury, bis(fulminato-.kappa.C)-. 629-35-6 Mercury, dibutyl-. 63325-16-6 Mercurate(2-), tetraiodo-, (T-4)-, hydrogen, compd. with 5-iodo-2-pyridinamine (1:2:2). 63468-53-1 Mercury, (acetato-.kappa.O)(2-hydroxy-5-nitrophenyl)-. 63549-47-3 Mercury, bis(acetato-.kappa.O)(benzenamine)-. 68201-97-8 Mercury, (acetato-.kappa.O)diamminephenyl-, (T-4)-. 72379-35-2 Mercurate(1-), triiodo-, hydrogen, compd. with 3-methyl-2(3H)-benzothiazolimine (1:1:1). 7439-97-6 Mercury. 7487-94-7 Mercury chloride (HgCl2). 7546-30-7 Mercury chloride (HgCl). 7616-83-3 Perchloric acid, mercury(2+) salt (2:1). 7774-29-0 Mercury iodide (HgI2). 7783-33-7 Mercurate(2-), tetraiodo-, potassium (1:2), (T-4)-. 7783-35-9 Sulfuric acid, mercury(2+) salt (1:1). 7783-39-3 Mercury fluoride (HgF2). 7789-47-1 Mercury bromide (HgBr2). 90-03-9 Mercury, chloro(2-hydroxyphenyl)-. 94070-93-6 Mercury, [.mu.-[(oxydi-2,1-ethanediyl 1,2-benzenedicarboxylato-.kappa.O2)(2-)]]diphenyldi-.
    § 713.7 Mercury for which reporting is not required.

    (a) Mercury that is generated as a byproduct not used for commercial purposes; or

    (b) Mercury-containing waste.

    § 713.9 General requirements for which information must be reported.

    (a) Persons who manufacture (including import) mercury in amounts greater than or equal to 2,500 pounds (lbs.) for elemental mercury or greater than or equal to 25,000 lbs. for mercury compounds for a specific reporting year shall report, as applicable:

    (1) Amount of mercury stored (lbs.); or

    (2) Amount of mercury distributed in commerce (lbs.)

    (b) All other persons who manufacture (including import) mercury shall report, as applicable:

    (1) Amount of mercury manufactured (other than imported) (lbs.);

    (2) Amount of mercury imported (lbs.);

    (3) Amount of mercury exported (lbs.), except mercury prohibited from export at 15 U.S.C. 2611(c)(1) and (7);

    (4) Amount of mercury stored (lbs.); or

    (5) Amount of mercury distributed in commerce (lbs.).

    (c) Persons who sell mercury-added products, except a product that contains a component that is a mercury-added product, in IMERC Notification states shall report, as applicable:

    (1) Amount of mercury in manufactured (other than imported) products (lbs.);

    (2) Amount of mercury in imported products (lbs.); or

    (3) Amount of mercury in exported products (lbs.).

    (d) All other persons who manufacture (including import) mercury-added products, except a product that contains a component that is a mercury-added product, shall report, as applicable:

    (1) Amount of mercury in manufactured (other than imported) products (lbs.);

    (2) Amount of mercury in imported products (lbs.);

    (3) Amount of mercury in exported products (lbs.);

    (4) Amount of mercury in products distributed in commerce (lbs.); or

    (e) Persons who otherwise intentionally use mercury in a manufacturing process, other than the manufacture of a mercury compound or a mercury-added product, shall report, as applicable:

    (1) Amount of mercury otherwise intentionally used (lbs.) in a manufacturing process;

    (2) Amount of mercury stored (lbs.);

    (3) Amount of mercury in exported final product(s) (lbs.); or

    (4) Amount of mercury in final product(s) distributed in commerce (lbs.).

    § 713.11 Specific requirements for which information must be reported.

    (a) Any person who manufactures (including imports) mercury shall specify, as applicable, the specific mercury compound(s) from a pre-selected list (as listed in Table 1 of this part).

    (b) Any person who manufactures (including imports) a mercury-added product, except manufacture (including import) of a product that contains a component that is a mercury-added product, shall specify as applicable, the specific category(ies) and subcategory(ies) from a pre-selected list, as listed in Table 2 of this part:

    Table 2—Categories and Subcategories of Mercury-Added Products Category Subcategory Batteries —Button cell, silver. —Button cell, zinc-air. —Button cell, alkaline. —Stacked button cell batteries. —Manganese oxide. —Silver oxide. —Mercuric oxide, non-button cell. —Button cell, mercuric oxide. —Button cell, zinc carbon. —Other (specify). Dental amalgam [No subcategories]. Formulated products (includes uses in cosmetics, pesticides, and laboratory chemicals) —Skin-lightening creams.
  • —Lotions.
  • —Soaps and sanitizers. —Bath oils and salts. —Topical antiseptics. —Preservatives (e.g., for use in vaccines and eye-area cosmetics when no preservative alternatives are available). —Pharmaceuticals (including prescription and over-the-counter drug products). —Cleaning products (not registered as pesticides under the Federal Insecticide, Fungicide, and Rodenticide Act). —Pesticides. —Paints. —Dyes. —Reagents (e.g., catalysts, buffers, fixatives). —Other (specify). Lighting, lamps, bulbs —Linear fluorescent. —Compact fluorescent. —U-tube and circular fluorescent. —Cold cathode fluorescent. —External electrode fluorescent. —Mercury vapor. —Metal halide. —High pressure sodium. —Mercury short arc. —Neon. —Other (specify). Measuring instruments —Barometer. —Fever thermometer. —Flow meter. —Hydrometer. —Hygrometer/psychrometer. —Manometer. —Non-fever thermometer. —Pyrometer. —Sphygmomanometer. —Other (specify). Pump seals [No subcategories]. Switches, relays, sensors, valves —Tilt switch. —Vibration switch. —Float switch. —Pressure switch. —Temperature switch. —Displacement relay. —Wetted reed relay. —Contact relay. —Flame sensor. —Thermostat. —Other (specify). Miscellaneous/novelty mercury-added products —Wheel weights. —Wheel rotation balancers/stabilizers. —Firearm recoil suppressors. —Carburetor synchronizers. —Joint support/shock absorption bands. —Other (specify).

    (c) Any person who otherwise intentionally uses mercury in a manufacturing process, other than the manufacture of a mercury compound or a mercury-added product, shall specify, as applicable:

    (1) The specific manufacturing process for which mercury is otherwise intentionally added from a pre-selected list, as listed in Table 3 of this part:

    Table 3—Manufacturing Process for Which Mercury Is Otherwise Intentionally Added Chlorine production (e.g., mercury-cell chlor-alkali process). Acetaldehyde production. Vinyl chloride monomer production. Sodium/potassium methylate/ethylate production. Polyurethane/plastic production. Other (specify).

    (2) The specific use of mercury in a manufacturing process from a pre-selected list, as listed in Table 4 of this part:

    Table 4—Specific Use of Mercury in a Manufacturing Process Catalyst. Reactant. Reagent. Other (specify).
    § 713.13 Contextual requirements for which information must be reported.

    (a) Persons who manufacture (including import) mercury in amounts greater than or equal to 2,500 lbs. for elemental mercury or greater than or equal to 25,000 lbs. for mercury compounds for a specific reporting year shall report, as applicable:

    (1) Country(ies) of origin for imported mercury;

    (2) Country(ies) of destination for exported mercury;

    (3) NAICS code(s) for mercury distributed in commerce.

    (b) All other persons who manufacture (including import) mercury shall report, as applicable:

    (1) Country(ies) of origin for imported mercury;

    (2) Country(ies) of destination for exported mercury;

    (3) NAICS code(s) for mercury distributed in commerce.

    (c) Persons who sell mercury-added products, except a product that contains a component that is a mercury-added product, in IMERC Notification states shall report, as applicable:

    (1) Country(ies) of origin for imported products;

    (2) Country(ies) of destination for exported products; or

    (3) NAICS code(s) for products distributed in commerce.

    (d) All other persons who manufacture (including import) mercury-added products, except a product that contains a component that is a mercury-added product, shall report, as applicable:

    (1) Country(ies) of origin for imported products;

    (2) Country(ies) of destination for exported products; or

    (3) NAICS code(s) for products distributed in commerce.

    (e) Persons who otherwise intentionally use mercury in a manufacturing process, other than the manufacture of a mercury compound or a mercury-added product, shall report, as applicable:

    (1) Country(ies) of destination for exported final product(s); or

    (2) NAICS code(s) for mercury in final product(s) distributed in commerce.

    § 713.15 Persons who must report.

    (a) Any person who manufactures (including imports) mercury;

    (b) Any person who manufactures (including imports) a mercury-added product, except a product that contains a component that is a mercury-added product; or

    (c) Any person who otherwise intentionally uses mercury in a manufacturing process, other than the manufacture of a mercury compound or a mercury-added product.

    § 713.17 Persons not subject to this part.

    (a) Any person engaged in the generation, handling, or management of mercury-containing waste, unless that person manufactures or recovers mercury in the management of that waste.

    (b) Any person who engaged in trade (e.g., brokering, selling wholesale, shipping, warehousing, repackaging, or retail sale), but does not first manufacture (including import) mercury or mercury-added products or otherwise intentionally use mercury in a manufacturing process.

    § 713.19 Reporting information to EPA.

    Any person who must report under this part shall report for the submission period described at § 713.21:

    (a) Quantities of mercury in pounds per applicable activity listed under the general requirements for which information must be reported described at § 713.9;

    (b) Specific requirements for which information must be reported described at § 713.11;

    (c) Contextual requirements for which information must be reported described at § 713.13; and

    (d) According to the procedures described at § 713.25.

    § 713.21 When to report.

    (a) Any person who must report under this part shall report for the reporting year described as follows. The 2020 reporting year is from January 1 to December 31, 2018. Subsequent recurring reporting years are from January 1 to December 31 at 3-year intervals, beginning in 2021.

    (b) All information reported for an applicable reporting year must be submitted on or before the first day of July following the reporting year. The 2020 submission deadline is July 1, 2019. Subsequent recurring submission deadlines are from July 1, in 3-year intervals, beginning in 2022.

    § 713.23 Recordkeeping requirements.

    Each person who is subject to the reporting requirements of this part must retain records that document any information reported to EPA. Records relevant to a reporting year must be retained for a period of 3 years beginning on the last day of the reporting year. Submitters are encouraged to retain their records longer than 3 years to ensure that past records are available as a reference when new submissions are being generated.

    § 713.25 Electronic filing.

    (a) You must use [xxx name of application xxx] to complete and submit [xxx form? xxx]. Submissions may only be made as set forth in this section.

    (b) Submissions must be sent electronically to EPA via CDX.

    (c) Access [xxx name of application xxx] and instructions, as follows:

    (1) By Web site. Go to the EPA [xxx name of application xxx] homepage at http://www.epa.gov/[xxxURLxxx] and follow the appropriate links.

    (2) By phone or email. Contact the EPA TSCA Hotline at (202) 554-1404 or [email protected] for a CD-ROM containing the instructions.

    [FR Doc. 2017-23225 Filed 10-25-17; 8:45 am] BILLING CODE 6560-50-P
    82 206 Thursday, October 26, 2017 Notices ARCHITECTURAL AND TRANSPORTATION BARRIERS COMPLIANCE BOARD Meetings AGENCY:

    Architectural and Transportation Barriers Compliance Board.

    ACTION:

    Notice of meetings.

    SUMMARY:

    The Architectural and Transportation Barriers Compliance Board (Access Board) plans to hold its regular committee and Board meetings in Washington, DC, Monday through Wednesday, November 13-15, 2017 at the times and location listed below.

    DATES:

    The schedule of events is as follows:

    Monday, November 13, 2017 9:30 a.m.-4:00 p.m. Achieving Access for People with Disabilities in the Built Environment; an International Comparison Tuesday, November 14, 2017 9:30 a.m.-10:30 a.m. Technical Programs 10:30 a.m.-11:30 a.m. Ad Hoc Committee on Frontier Issues 11:30 a.m.-Noon Budget Wednesday, November 15, 2017 10:00 a.m.-10:30 a.m. Ad Hoc Committee on Design Guidance 10:30 a.m.-Noon Planning and Evaluation 1:30 p.m.-3:00 p.m. Board Meeting ADDRESSES:

    Meetings will be held at the Access Board Conference Room, 1331 F Street NW., Suite 800, Washington, DC 20004.

    FOR FURTHER INFORMATION CONTACT:

    For further information regarding the meetings, please contact David Capozzi, Executive Director, (202) 272-0010 (voice); (202) 272-0054 (TTY).

    SUPPLEMENTARY INFORMATION:

    At the Board meeting scheduled on the afternoon of Wednesday, November 15, 2017, the Access Board will consider the following agenda items:

    • Approval of draft meeting minutes (vote): March 15, 2017; July 12, 2017; September 13, 2017 • Ad Hoc Committee Reports: Design Guidance; Frontier Issues • Technical Programs Committee • Budget Committee • Planning and Evaluation Committee • Election Assistance Commission Report • Executive Director's Report • Public Comment (final 15 minutes of the meeting)

    Members of the public can provide comments either in-person or over the telephone during the final 15 minutes of the Board meeting on Wednesday, November 15, 2017. Any individual interested in providing comment is asked to pre-register by sending an email to [email protected] with the subject line “Access Board meeting—Public Comment” with your name, organization, state, and topic of comment included in the body of your email. All emails to register for public comment must be received by Wednesday, November 8, 2017. Commenters will be provided with a call-in number and passcode before the meeting. Commenters will be called on in the order by which they are pre-registered. Due to time constraints, each commenter is limited to two minutes. Commenters on the telephone will be in a listen-only capacity until they are called on.

    All meetings are accessible to persons with disabilities. An assistive listening system, Communication Access Realtime Translation (CART), and sign language interpreters will be available at the Board meeting and committee meetings.

    Persons attending Board meetings are requested to refrain from using perfume, cologne, and other fragrances for the comfort of other participants (see www.access-board.gov/the-board/policies/fragrance-free-environment for more information).

    You may view the Wednesday, November 15, 2017 meeting through a live webcast from 1:30 p.m. to 3:00 p.m. at: www.access-board.gov/webcast.

    David M. Capozzi, Executive Director.
    [FR Doc. 2017-23323 Filed 10-25-17; 8:45 am] BILLING CODE 8150-01-P
    DEPARTMENT OF COMMERCE Foreign-Trade Zones Board [S-164-2017] Foreign-Trade Zone 295—Central Pennsylvania; Application for Subzone; North American Höganäs Company; Johnstown, Hollsopple and St, Mary's, Pennsylvania

    An application has been submitted to the Foreign-Trade Zones (FTZ) Board by the Pennsylvania Foreign Trade Zone Corporation, grantee of FTZ 295, requesting subzone status for the facilities of North American Höganäs Company (Höganäs), located in Johnstown, Hollsopple and St. Mary's, Pennsylvania. The application was submitted pursuant to the provisions of the Foreign-Trade Zones Act, as amended (19 U.S.C. 81a-81u), and the regulations of the FTZ Board (15 CFR part 400). It was formally docketed on October 19, 2017.

    The proposed subzone would consist of the following sites: Site 1 (9.38 acres) 101 Bridge Street, Johnstown, Cambria County; Site 2 (98.98 acres) 111 Höganäs Way, Hollsopple, Somerset County; and, Site 3 (3.42 acres) 210 Ceramic Street, St. Mary's, Elk County. No authorization for production activity has been requested at this time. The proposed subzone would be subject to the existing activation limit of FTZ 295.

    In accordance with the FTZ Board's regulations, Elizabeth Whiteman of the FTZ Staff is designated examiner to review the application and make recommendations to the Executive Secretary.

    Public comment is invited from interested parties. Submissions shall be addressed to the FTZ Board's Executive Secretary at the address below. The closing period for their receipt is December 5, 2017. Rebuttal comments in response to material submitted during the foregoing period may be submitted during the subsequent 15-day period to December 20, 2017.

    A copy of the application will be available for public inspection at the Office of the Executive Secretary, Foreign-Trade Zones Board, Room 21013, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230-0002, and in the “Reading Room” section of the FTZ Board's Web site, which is accessible via www.trade.gov/ftz.

    For further information, contact Elizabeth Whiteman at [email protected] or (202) 482-0473.

    Dated: October 20, 2017. Andrew McGilvray, Executive Secretary.
    [FR Doc. 2017-23309 Filed 10-25-17; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-533-879, A-570-066] Polytetrafluoroethylene Resin From India and the People's Republic of China: Initiation of Less-Than-Fair-Value Investigations AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    DATES:

    Applicable October 18, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Mark Kennedy at (202) 482-7883 (India), and Catherine Cartsos (the People's Republic of China (PRC)) at (202) 482-1757, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.

    SUPPLEMENTARY INFORMATION:

    The Petitions

    On September 28, 2017, the U.S. Department of Commerce (the Department) received antidumping duty (AD) Petitions concerning imports of polytetrafluoroethylene resin (PTFE resin) from India and the PRC, filed in proper form on behalf of The Chemours Company FC LLC (the petitioner).1 The AD Petitions were accompanied by a countervailing duty (CVD) Petition concerning imports of PTFE resin from India. The petitioner is a domestic producer of PTFE resin.2

    1See Letter to the Secretary of Commerce re: “Polytetrafluoroethylene (PTFE) Resin from the People's Republic of China and India: Antidumping and Countervailing Duty Petitions,” dated September 28, 2017 (the Petitions).

    2See the Petitions at 2.

    On October 2, 2017, and October 3, 2017, the Department requested supplemental information pertaining to certain areas of the Petitions.3 The petitioner filed responses to these requests on October 4, 2017, and October 5, 2017.4 In addition, the petitioner filed revised scope language on October 13, 2017.5

    3See Letter from the Department, “Petitions for the Imposition of Antidumping and Countervailing Duties on Imports of Polytetrafluoroethylene Resin from India and the People's Republic of China: Supplemental Questions,” dated October 2, 2017 (General Issues Questionnaire); see also Letter from the Department, “Petition for the Imposition of Antidumping Duties on Imports of Polytetrafluoroethylene Resin from the People's Republic of China: Supplemental Questions,” dated October 2, 2017 (PRC AD Supplemental Questionnaire); Letter from the Department, “Petition for the Imposition of Antidumping Duties on Imports of Polytetrafluoroethylene Resin from India: Supplemental Questions,” dated October 3, 2017 (India AD Supplemental Questionnaire).

    4See Letter from the petitioner, “Polytetrafluoroethylene (PTFE) Resin from the People's Republic of China and India: Responses to Supplemental Questions Regarding the Antidumping and Countervailing Duty Petitions” (October 4, 2017) (General Issues and AD Supplement); see also Letter from the petitioner, “Polytetrafluoroethylene (PTFE) Resin from the People's Republic of China and India: Additional Responses to Supplemental Questions Regarding the Antidumping and Countervailing Duty Petitions” (October 5, 2017); Letter from the petitioner, “Polytetrafluoroethylene (PTFE) Resin from India: Exhibit III-12” (October 5, 2017).

    5See Letter from the petitioner, “Polytetrafluoroethylene (PTFE) Resin from the People's Republic of China and India: Amendment to the Suggested Scope of the Antidumping and Countervailing Duty Petitions” (October 13, 2017). See also Memorandum to the File, dated October 11, 2017.

    In accordance with section 732(b) of the Tariff Act of 1930, as amended (the Act), the petitioner alleges that imports of PTFE resin from India and the PRC are being, or are likely to be, sold in the United States at less than fair value within the meaning of section 731 of the Act, and that such imports are materially injuring, or threatening material injury to, the domestic industry producing PTFE resin in the United States. Also, consistent with section 732(b)(1) of the Act, the Petitions are accompanied by information reasonably available to the petitioner supporting its allegations.

    The Department finds that the petitioner is an interested party as defined in section 771(9)(C) of the Act and that the petitioner filed these Petitions on behalf of the domestic industry and demonstrated sufficient industry support with respect to the initiation of the AD investigations that the petitioner is requesting.6

    6See the “Determination of Industry Support for the Petitions” section, below.

    Periods of Investigation

    Because the Petitions were filed on September 28, 2017, the period of investigation (POI) for India is July 1, 2016, through June 30, 2017. Because the PRC is a non-market economy (NME) country, the POI for the PRC is January 1, 2017, through June 30, 2017.

    Scope of the Investigations

    The product covered by these investigations is PTFE resin from India and the PRC. For a full description of the scope of these investigations, see the “Scope of the Investigations,” in the Appendix to this notice.

    Comments on Scope of the Investigations

    During our review of the Petitions, the petitioner submitted a revised proposed scope to ensure that the scope language in the Petitions would be an accurate reflection of the products for which the domestic industry is seeking relief.7

    7See Letter from the petitioner, “Polytetrafluoroethylene (PTFE) Resin from the People's Republic of China and India: Amendment to the Suggested Scope of the Antidumping and Countervailing Duty Petitions” (October 13, 2017). See also Memorandum to the File, dated October 11, 2017.

    As discussed in the preamble to the Department's regulations, we are setting aside a period for interested parties to raise issues regarding product coverage (scope).8 The Department will consider all comments received from interested parties and, if necessary, will consult with interested parties prior to the issuance of the preliminary determinations. If scope comments include factual information,9 all such factual information should be limited to public information. To facilitate preparation of its questionnaires, the Department requests all interested parties to submit such comments by 5:00 p.m. Eastern Time (ET) on Tuesday, November 7, 2017, which is 20 calendar days from the signature date of this notice. Any rebuttal comments, which may include factual information, must be filed by 5:00 p.m. ET on Friday, November 17, 2017, which is 10 calendar days from the initial comments deadline.10

    8See Antidumping Duties; Countervailing Duties, Final Rule, 62 FR 27296, 27323 (May 19, 1997).

    9See 19 CFR 351.102(b)(21) (defining “factual information”).

    10See 19 CFR 351.303(b).

    The Department requests that any factual information the parties consider relevant to the scope of the investigations be submitted during this time period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigations may be relevant, the party may contact the Department and request permission to submit the additional information. All such comments must be filed on the records of each of the concurrent AD and CVD investigations.

    Filing Requirements

    All submissions to the Department must be filed electronically using Enforcement and Compliance's Antidumping Duty and Countervailing Duty Centralized Electronic Service System (ACCESS).11 An electronically filed document must be received successfully in its entirety by the time and date it is due. Documents exempted from the electronic submission requirements must be filed manually (i.e., in paper form) with Enforcement and Compliance's APO/Dockets Unit, Room 18022, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230, and stamped with the date and time of receipt by the applicable deadlines.

    11See Antidumping and Countervailing Duty Proceedings: Electronic Filing Procedures; Administrative Protective Order Procedures, 76 FR 39263 (July 6, 2011); see also Enforcement and Compliance; Change of Electronic Filing System Name, 79 FR 69046 (November 20, 2014) for details of the Department's electronic filing requirements, which went into effect on August 5, 2011. Information on help using ACCESS can be found at https://access.trade.gov/help.aspx and a handbook can be found at https://access.trade.gov/help/Handbook%20on%20Electronic%20Filling%20Procedures.pdf.

    Comments on Product Characteristics for AD Questionnaires

    The Department will provide interested parties an opportunity to comment on the appropriate physical characteristics of PTFE resin to be reported in response to the Department's AD questionnaires. This information will be used to identify the key physical characteristics of the merchandise under consideration in order to report the relevant costs of production accurately as well as to develop appropriate product-comparison criteria.

    Interested parties may provide any information or comments that they feel are relevant to the development of an accurate list of physical characteristics. Specifically, they may provide comments as to which characteristics are appropriate to use as: (1) General product characteristics and (2) product-comparison criteria. We note that it is not always appropriate to use all product characteristics as product-comparison criteria. We base product-comparison criteria on meaningful commercial differences among products. In other words, although there may be some physical product characteristics utilized by manufacturers to describe PTFE resin, it may be that only a select few product characteristics take into account commercially meaningful physical characteristics. In addition, interested parties may comment on the order in which the physical characteristics should be used in matching products. Generally, the Department attempts to list the most important physical characteristics first and the least important characteristics last.

    In order to consider the suggestions of interested parties in developing and issuing the AD questionnaires, all product characteristics comments must be filed by 5:00 p.m. ET on November 7, 2017. Any rebuttal comments must be filed by 5:00 p.m. ET on November 17, 2017. All comments and submissions to the Department must be filed electronically using ACCESS, as explained above, on the records of both the India and the PRC less-than-fair-value investigations.

    Determination of Industry Support for the Petitions

    Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”

    Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product,12 they do so for different purposes and pursuant to a separate and distinct authority. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to law.13

    12See section 771(10) of the Act.

    13See USEC, Inc. v. United States, 132 F. Supp. 2d 1, 8 (CIT 2001) (citing Algoma Steel Corp., Ltd. v. United States, 688 F. Supp. 639, 644 (CIT 1988), aff'd 865 F.2d 240 (Fed. Cir. 1989)).

    Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (i.e., the class or kind of merchandise to be investigated, which normally will be the scope as defined in the petition).

    With regard to the domestic like product, the petitioner does not offer a definition of the domestic like product distinct from the scope of the investigations. Based on our analysis of the information submitted on the record, we have determined that PTFE resin, as defined in the scope, constitutes a single domestic like product and we have analyzed industry support in terms of that domestic like product.14

    14 For a discussion of the domestic like product analysis in this case, see Antidumping Duty Investigation Initiation Checklist: Polytetrafluoroethylene (PTFE) Resin from the People's Republic of China (PRC AD Initiation Checklist), at Attachment II, Analysis of Industry Support for the Antidumping and Countervailing Duty Petitions Covering Polytetrafluoroethylene (PTFE) Resin from the People's Republic of China and India (Attachment II); and Antidumping Duty Investigation Initiation Checklist: Polytetrafluoroethylene (PTFE) Resin from India (India AD Initiation Checklist), at Attachment II. These checklists are dated concurrently with, and hereby adopted by, this notice and on file electronically via ACCESS. Access to documents filed via ACCESS is also available in the Central Records Unit, Room B8024 of the main Department of Commerce building.

    In determining whether the petitioner has standing under section 732(c)(4)(A) of the Act, we considered the industry support data contained in the Petitions with reference to the domestic like product as defined in the “Scope of the Investigations,” in Appendix I of this notice. The petitioner provided its own production of the domestic like product in 2016, as well as estimated 2016 production data of the domestic like product by the entire U.S. industry.15 To establish industry support, the petitioner compared its production to the total 2016 production of the domestic like product for the entire domestic industry.16 We relied on the data the petitioner provided for purposes of measuring industry support.17

    15See the Petitions, at 2-4 and Exhibit I-2; see also General Issues and AD Supplement, at 3-4.

    16See the Petitions, at Exhibit I-2; see also General Issues and AD Supplement, at 3-4.

    17Id. For further discussion, see PRC AD Initiation Checklist, at Attachment II; and India AD Initiation Checklist, at Attachment II.

    Our review of the data provided in the Petitions and other information readily available to the Department indicates that the petitioner has established industry support.18 First, the Petitions established support from domestic producers (or workers) accounting for more than 50 percent of the total production of the domestic like product and, as such, the Department is not required to take further action in order to evaluate industry support (e.g., polling).19 Second, the domestic producers (or workers) have met the statutory criteria for industry support under section 732(c)(4)(A)(i) of the Act because the domestic producers (or workers) who support the Petitions account for at least 25 percent of the total production of the domestic like product.20 Finally, the domestic producers (or workers) have met the statutory criteria for industry support under section 732(c)(4)(A)(ii) of the Act because the domestic producers (or workers) who support the Petitions account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the Petitions.21 Accordingly, the Department determines that the Petitions were filed on behalf of the domestic industry within the meaning of section 732(b)(1) of the Act.

    18See PRC AD Initiation Checklist, at Attachment II; and India AD Initiation Checklist, at Attachment II.

    19See section 732(c)(4)(D) of the Act; see also PRC AD Initiation Checklist, at Attachment II; and India AD Initiation Checklist, at Attachment II.

    20See PRC AD Initiation Checklist, at Attachment II; and India AD Initiation Checklist, at Attachment II.

    21Id.

    The Department finds that the petitioner filed the Petitions on behalf of the domestic industry because it is an interested party as defined in section 771(9)(C) of the Act and it has demonstrated sufficient industry support with respect to the AD investigations that it is requesting that the Department initiate.22

    22Id.

    Allegations and Evidence of Material Injury and Causation

    The petitioner alleges that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise sold at less than normal value (NV). In addition, the petitioner alleges that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.23

    23See the Petitions, at 21 and Exhibit I-14.

    The petitioner contends that the industry's injured condition is illustrated by a significant volume of subject imports; an increase in the volume of subject imports relative to U.S. consumption and production; reduced market share; underselling and price suppression or depression; lost sales and revenues; a negative impact on the domestic industry's capacity, capacity utilization, and employment; and a negative impact on revenues and operating profits.24 We have assessed the allegations and supporting evidence regarding material injury, threat of material injury, and causation, and we have determined that these allegations are properly supported by adequate evidence, and meet the statutory requirements for initiation.25

    24Id. at 24-34, Exhibit I-8, and Exhibits I-14, I-16, and I-17.

    25See PRC AD Initiation Checklist, at Attachment III, Analysis of Allegations and Evidence of Material Injury and Causation for the Antidumping and Countervailing Duty Petitions Covering Polytetrafluoroethylene Resin (PTFE Resin) from India and the People's Republic of China (the PRC) (Attachment III); see also India AD Initiation Checklist, at Attachment III.

    Allegations of Sales at Less Than Fair Value

    The following is a description of the allegations of sales at less than fair value upon which the Department based its decision to initiate AD investigations of imports of PTFE resin from India and the PRC. The sources of data for the deductions and adjustments relating to U.S. price and NV are discussed in greater detail in the country-specific initiation checklists.

    Export Price

    For the PRC, the petitioner based the U.S. price on export price (EP) using average unit values (AUVs) of publicly available import data and price quotes for sales of PTFE resin produced in, and exported from, the PRC and offered for sale in the United States.26 For India, the petitioner based U.S. price on EP using AUVs of publicly available import data.27 Where applicable, the petitioner made deductions from U.S. price for movement and other expenses, consistent with the terms of sale.28

    26See PRC AD Initiation Checklist.

    27See India AD Initiation Checklist.

    28See India AD Initiation Checklist and PRC AD Initiation Checklist.

    Constructed Export Price

    For India, because the petitioner had reason to believe that the prices/offers for sale were made through a U.S. affiliate, the petitioner also based the U.S. price on constructed export price (CEP) using price quotes for sales and prices of actual sales of PTFE resin produced in, and exported from, India and offered for sale in the United States.29 Where applicable, the petitioner made deductions from U.S. price for movement and other expenses, consistent with the terms of sale.30

    29See India AD Initiation Checklist.

    30Id.

    Normal Value

    For India, the petitioner provided home market price information for PTFE resin produced and offered for sale in India that was obtained through market research.31 For India, the petitioner provided a declaration from a market researcher to support the price information.32

    31Id.

    32Id.

    With respect to the PRC, the petitioner stated that the Department has found it to be a NME country in prior administrative proceedings in which they were involved.33 In accordance with section 771(18)(C)(i) of the Act, the presumption of NME status remains in effect until revoked by the Department. The presumption of NME status for the PRC has not been revoked by the Department and, therefore, remains in effect for purposes of the initiation of this investigation. Accordingly, NV in the PRC is appropriately based on factors of production (FOPs) valued in a surrogate market economy country, in accordance with section 773(c) of the Act.34 In the course of this investigation, all parties, and the public, will have the opportunity to provide relevant information related to the granting of separate rates to individual exporters.

    33See the Petitions, at 38.

    34See PRC AD Initiation Checklist.

    The petitioner claims that Mexico is an appropriate surrogate country for the PRC because it is a market economy country that is at a level of economic development comparable to that of the PRC, it is a significant producer of comparable merchandise, and public information from Mexico is available to value all material input factors.35 Based on the information provided by the petitioner, we determine that it is appropriate to use Mexico as a surrogate country for initiation purposes.

    35See Petitions, at 39-42 and Exhibits I-1, II-2, II-3.

    Interested parties will have the opportunity to submit comments regarding surrogate country selection and, pursuant to 19 CFR 351.301(c)(3)(i), will be provided an opportunity to submit publicly available information to value FOPs within 30 days before the scheduled date of the preliminary determination.

    Factors of Production

    Because information regarding the volume of inputs consumed by the PRC producers/exporters is not available, the petitioner relied on its own production experience as an estimate of Chinese manufacturers' FOPs.36 The petitioner valued the estimated FOPs using surrogate values from Mexico and used the average POI exchange rate to convert the data to U.S. dollars.37

    36See the Petitions, at 43 and Exhibit II-5.

    37See the Petitions, at 43-46 and Exhibits II-6, II-7, II-8, II-9, II-10, II-11, II-12, II-13, and II-14.

    Fair Value Comparisons

    Based on the data provided by the petitioner, there is reason to believe that imports of PTFE resin from India and the PRC are being, or are likely to be, sold in the United States at less than fair value. Based on comparisons of EP and CEP to NV for India and EP to NV for the PRC in accordance with sections 772 and 773 of the Act, the estimated dumping margins for PTFE resin for each of the countries covered by this initiation are as follows: (1) PRC—23.4 to 408.9 percent,38 and (2) India—15.8 to 128.1 percent.39

    38See PRC AD Initiation Checklist.

    39See India AD Initiation Checklist.

    Initiation of Less-Than-Fair-Value Investigations

    Based upon the examination of the AD Petitions, we find that the Petitions meet the requirements of section 732 of the Act. Therefore, we are initiating AD investigations to determine whether imports of PTFE resin from India and the PRC are being, or are likely to be, sold in the United States at less than fair value. In accordance with section 733(b)(1)(A) of the Act and 19 CFR 351.205(b)(1), unless postponed, we intend to make our preliminary determinations no later than 140 days after the date of this initiation.

    Under the Trade Preferences Extension Act of 2015, numerous amendments to the AD and CVD law were made.40 The 2015 law does not specify dates of application for those amendments. On August 6, 2015, the Department published an interpretative rule, in which it announced the applicability dates for each amendment to the Act, except for amendments contained in section 771(7) of the Act, which relate to determinations of material injury by the ITC.41 The amendments to sections 771(15), 773, 776, and 782 of the Act are applicable to all determinations made on or after August 6, 2015, and, therefore, apply to these AD investigations.42

    40See Trade Preferences Extension Act of 2015, PubLIC LAW 114-27, 129 Stat. 362 (2015).

    41See Dates of Application of Amendments to the Antidumping and Countervailing Duty Laws Made by the Trade Preferences Extension Act of 2015, 80 FR 46793 (August 6, 2015).

    42Id. at 46794-95. The 2015 amendments may be found at https://www.congress.gov/bill/114th-congress/house-bill/1295/text/pl.

    Respondent Selection

    The petitioner named seven companies in India as producers/exporters of PTFE resin.43 For India, following standard practice in AD investigations involving market economy countries, in the event the Department determines that the number of producers/exporters involved in the investigation is large, the Department intends to review U.S. Customs and Border Protection (CBP) data for U.S. imports of PTFE resin during the POI under the appropriate Harmonized Tariff Schedule of the United States subheadings, and if it determines that it cannot individually examine each company based upon the Department's resources, then the Department will select respondents based on that data. We intend to release CBP data under Administrative Protective Order (APO) to all parties with access to information protected by APO within five business days of the announcement of the initiation of this investigation. Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305(b). Instructions for filing such applications may be found on the Department's Web site at http://enforcement.trade.gov/apo.

    43See the Petitions, at Exhibit I-13.

    Interested parties may submit comments regarding the CBP data and respondent selection by 5:00 p.m. ET seven calendar days after the placement of the CBP data on the record of this investigation. Interested parties wishing to submit rebuttal comments should submit those comments five calendar days after the deadline for initial comments.

    Comments must be filed electronically using ACCESS. An electronically-filed document must be received successfully, in its entirety, by ACCESS no later than 5:00 p.m. ET on the date noted above. If respondent selection is necessary, within 20 days of publication of this notice, we intend to make our decisions regarding respondent selection based upon comments received from interested parties and our analysis of the record information.

    With respect to the PRC, the petitioner named 49 companies in the PRC as producers/exporters of PTFE resin.44 In accordance with our standard practice for respondent selection in AD cases involving NME countries, we intend to issue quantity and value (Q&V) questionnaires to producers/exporters of merchandise subject to this NME investigation and, in the event the Department determines that the number of producers/exporters involved in the investigation is large, base respondent selection on the responses received. For this NME investigation, the Department will request Q&V information from known exporters and producers identified, with complete contact information, in the Petitions. In addition, the Department will post the Q&V questionnaire along with filing instructions on Enforcement and Compliance's Web site at http://www.trade.gov/enforcement/news.asp.

    44See the Petitions at Exhibit I-13.

    Producers/exporters of PTFE resin from the PRC that do not receive Q&V questionnaires by mail may still submit a response to the Q&V questionnaire and can obtain a copy of the Q&V questionnaire from Enforcement & Compliance's Web site. The Q&V response must be submitted by the relevant PRC exporters/producers no later than 5:00 p.m. ET on November 2, 2017. All Q&V responses must be filed electronically via ACCESS.

    Separate Rates

    In order to obtain separate-rate status in an NME investigation, exporters and producers must submit a separate-rate application.45 The specific requirements for submitting a separate-rate application in the PRC investigation are outlined in detail in the application itself, which is available on the Department's Web site at http://enforcement.trade.gov/nme/nme-sep-rate.html. The separate-rate application will be due 30 days after publication of this initiation notice.46 Exporters and producers who submit a separate-rate application and have been selected as mandatory respondents will be eligible for consideration for separate-rate status only if they respond to all parts of the Department's AD questionnaire as mandatory respondents. The Department requires that companies from the PRC submit a response to both the Q&V questionnaire and the separate-rate application by the respective deadlines in order to receive consideration for separate-rate status. Companies not filing a timely Q&V response will not receive separate-rate consideration.

    45See Policy Bulletin 05.1: Separate-Rates Practice and Application of Combination Rates in Antidumping Investigation involving Non-Market Economy Countries (April 5, 2005), available at http://enforcement.trade.gov/policy/bull05-1.pdf (Policy Bulletin 05.1).

    46 Although in past investigations this deadline was 60 days, consistent with 19 CFR 351.301(a), which states that “the Secretary may request any person to submit factual information at any time during a proceeding,” this deadline is now 30 days.

    Use of Combination Rates

    The Department will calculate combination rates for certain respondents that are eligible for a separate rate in an NME investigation. The Separate Rates and Combination Rates Bulletin states:

    {w}hile continuing the practice of assigning separate rates only to exporters, all separate rates that the Department will now assign in its NME Investigation will be specific to those producers that supplied the exporter during the period of investigation. Note, however, that one rate is calculated for the exporter and all of the producers which supplied subject merchandise to it during the period of investigation. This practice applies both to mandatory respondents receiving an individually calculated separate rate as well as the pool of non-investigated firms receiving the weighted-average of the individually calculated rates. This practice is referred to as the application of “combination rates” because such rates apply to specific combinations of exporters and one or more producers. The cash-deposit rate assigned to an exporter will apply only to merchandise both exported by the firm in question and produced by a firm that supplied the exporter during the period of investigation.47

    47See Policy Bulletin 05.1 at 6 (emphasis added).

    Distribution of Copies of the Petitions

    In accordance with section 732(b)(3)(A)(i) of the Act and 19 CFR 351.202(f), copies of the public version of the Petitions have been provided to the governments of India and the PRC via ACCESS. To the extent practicable, we will attempt to provide a copy of the public version of the Petitions to each exporter named in the Petitions, as provided under 19 CFR 351.203(c)(2).

    ITC Notification

    We will notify the ITC of our initiation, as required by section 732(d) of the Act.

    Preliminary Determinations by the ITC

    The ITC will preliminarily determine, within 45 days after the date on which the Petitions were filed, whether there is a reasonable indication that imports of PTFE resin from India and/or the PRC are materially injuring or threatening material injury to a U.S. industry.48 A negative ITC determination for either country will result in the investigation being terminated with respect to that country.49 Otherwise, these investigations will proceed according to statutory and regulatory time limits.

    48See section 733(a) of the Act.

    49Id.

    Submission of Information

    Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the Department; and (v) evidence other than factual information described in (i)-(iv). 19 CFR 351.301(b) requires any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted 50 and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct.51 Time limits for the submission of factual information are addressed in 19 CFR 351.301, which provides specific time limits based on the type of factual information being submitted. Interested parties should review the regulations prior to submitting factual information in these investigations.

    50See 19 CFR 351.301(b).

    51See 19 CFR 351.301(b)(2).

    Extensions of Time Limits

    Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351.301, or as otherwise specified by the Secretary. In general, an extension request will be considered untimely if it is filed after the expiration of the time limit established under 19 CFR 351.301. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. ET on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits. Parties should review Extension of Time Limits; Final Rule, 78 FR 57790 (September 20, 2013), available at http://www.thefederalregister.org/fdsys/pkg/FR-2013-09-20/html/2013-22853.htm, prior to submitting factual information in these investigations.

    Certification Requirements

    Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.52 Parties must use the certifications formats provided in 19 CFR 351.303(g).53 The Department intends to reject factual submissions if the submitting party does not comply with applicable certification requirements.

    52See section 782(b) of the Act.

    53See Certification of Factual Information to Import Administration during Antidumping and Countervailing Duty Proceedings, 78 FR 42678 (July 17, 2013) (Final Rule); see also frequently asked questions regarding the Final Rule, available at http://enforcement.trade.gov/tlei/notices/factual_info_final_rule_FAQ_07172013.pdf.

    Notification to Interested Parties

    Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. On January 22, 2008, the Department published Antidumping and Countervailing Duty Proceedings: Documents Submission Procedures; APO Procedures, 73 FR 3634 (January 22, 2008). Parties wishing to participate in these investigations should ensure that they meet the requirements of these procedures (e.g., the filing of letters of appearance as discussed in 19 CFR 351.103(d)).

    This notice is issued and published pursuant to sections 732(c)(2) and 777(i) of the Act, and 19 CFR 351.203(c).

    Dated: October 18, 2017. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix Scope of the Investigations

    The product covered by these investigations is polytetrafluoroethylene (PTFE) resin, including but not limited to granular, dispersion, or coagulated dispersion (also known as fine powder). PTFE is covered by the scope of these investigations whether filled or unfilled, whether or not modified, and whether or not containing co-polymer additives, pigments, or other materials. Also included is PTFE wet raw polymer. The chemical formula for PTFE is C2F4, and the Chemical Abstracts Service Registry number is 9002-84-0.

    PTFE further processed into micropowder, having particle size typically ranging from 1 to 25 microns, and a melt-flow rate no less than 0.1 gram/10 minutes, is excluded from the scope of these investigations.

    PTFE is classified in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 3904.61.0010 and 3904.61.0090. Subject merchandise may also be classified under HTSUS subheading 3904.69.5000. Although the HTSUS subheadings and CAS Number are provided for convenience and Customs purposes, the written description of the scope is dispositive.

    [FR Doc. 2017-23307 Filed 10-25-17; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-533-880] Polytetrafluoroethylene Resin From India: Initiation of Countervailing Duty Investigation AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    DATES:

    Applicable October 18, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Toby Vandall at (202) 482-1664 or Aimee Phelan at (202) 482-0697, AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230.

    SUPPLEMENTARY INFORMATION:

    The Petition

    On September 28, 2017, the U.S. Department of Commerce (the Department) received a countervailing duty (CVD) Petition concerning imports of polytetrafluoroethylene (PTFE) resin from India, filed in proper form on behalf of the Chemours Company FC LLC (the petitioner).1 The CVD Petition was accompanied by antidumping duty (AD) Petitions concerning imports of PTFE resin from India and the People's Republic of China. The petitioner is a domestic producer of PTFE resin.2

    1See Letter from the petitioner, “Re: Polytetrafluoroethylene (PTFE) Resin from the People's Republic of China and India: Antidumping and Countervailing Duty Petitions” (September 28, 2017) (the Petition).

    2Id. at 2.

    On October 3, 2017, the Department requested supplemental information pertaining to certain areas of the Petition.3 The petitioner filed a response to this request on October 6, 2017.4 In addition, the petitioner filed revised scope language on October 13, 2017.5

    3See Letter from the Department, “Petition for the Imposition of Countervailing Duties on Imports of Polytetrafluoroethylene Resin from India: Supplemental Questions” (October 3, 2017).

    4See Letter from the petitioner, “Polytetrafluoroethylene (PTFE) Resin from India: Responses to Supplemental Questions Regarding the Countervailing Duty Petition” (October 6, 2017).

    5See Letter from the petitioner, “Polytetrafluoroethylene (PTFE) Resin from the People's Republic of China and India: Amendment to the Suggested Scope of the Antidumping and Countervailing Duty Petitions” (October 13, 2017).

    In accordance with section 702(b)(1) of the Tariff Act of 1930, as amended (the Act), the petitioner alleges that the Government of India is providing countervailable subsidies, within the meaning of sections 701 and 771(5) of the Act, to imports of PTFE resin from India and that such imports are materially injuring, or threatening material injury to, the domestic industry producing PTFE resin in the United States. Also, consistent with section 702(b)(1) of the Act, for those alleged programs on which we are initiating a CVD investigation, the Petition is accompanied by information reasonably available to the petitioner supporting its allegations.

    The Department finds that the petitioner is an interested party as defined in section 771(9)(C) of the Act and that the petitioner filed this Petition on behalf of the domestic industry and demonstrated sufficient industry support with respect to the initiation of the CVD investigation that the petitioner is requesting.6

    6See “Determination of Industry Support for the Petition” section, below.

    Period of Investigation

    Because the Petition was filed on September 28, 2017, the period of investigation (POI) is January 1, 2016, through December 31, 2016.

    Scope of the Investigation

    The product covered by this investigation is PTFE resin from India. For a full description of the scope of this investigation, see the “Scope of the Investigation,” in the Appendix to this notice.

    Comments on Scope of the Investigation

    During our review of the Petition, the Department issued questions to, and received a response from, the petitioner pertaining to the proposed scope to ensure that the scope language in the Petition would be an accurate reflection of the products for which the domestic industry is seeking relief.7

    7See Letter from the petitioner, “Polytetrafluoroethylene (PTFE) Resin from the People's Republic of China and India: Amendment to the Suggested Scope of the Antidumping and Countervailing Duty Petitions” (October 13, 2017). See also Memorandum to the File (October 11, 2017).

    As discussed in the preamble to the Department's regulations, we are setting aside a period for interested parties to raise issues regarding product coverage (scope).8 The Department will consider all comments received from interested parties and, if necessary, will consult with the interested parties prior to the issuance of the preliminary determinations. If scope comments include factual information,9 all such factual information should be limited to public information. To facilitate preparation of its questionnaires, the Department requests all interested parties to submit such comments by 5:00 p.m. Eastern Time (ET) on Tuesday, November 7, 2017, which is 20 calendar days from the signature date of this notice. Any rebuttal comments, which may include factual information, must be filed by 5:00 p.m. ET on Friday, November 17, 2017, which is 10 calendar days from the initial comments deadline.

    8See Antidumping Duties; Countervailing Duties; Final Rule, 62 FR 27296, 27323 (May 19, 1997).

    9See 19 CFR 351.102(b)(21) (defining “factual information”).

    The Department requests that any factual information the parties consider relevant to the scope of the investigation be submitted during this time period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigation may be relevant, the party may contact the Department and request permission to submit the additional information. All such comments must be filed on the records of each of the concurrent AD and CVD investigations.

    Filing Requirements

    All submissions to the Department must be filed electronically using Enforcement and Compliance's Antidumping Duty and Countervailing Duty Centralized Electronic Service System (ACCESS).10 An electronically filed document must be received successfully in its entirety by the time and date it is due. Documents exempted from the electronic submission requirements must be filed manually (i.e., in paper form) with Enforcement and Compliance's APO/Dockets Unit, Room 18022, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230, and stamped with the date and time of receipt by the applicable deadlines.

    10See Antidumping and Countervailing Duty Proceedings: Electronic Filing Procedures; Administrative Protective Order Procedures, 76 FR 39263 (July 6, 2011), see also Enforcement and Compliance: Change of Electronic Filing System Name, 79 FR 69046 (November 20, 2014) for details of the Department's electronic filing requirements, which went into effect on August 5, 2011. Information on help using ACCESS can be found at https://access.trade.gov/help.aspx, and a handbook can be found at https://access.trade.gov/help/Handbook%20on%20Electronic%20Filling%20Procedures.pdf.

    Consultations

    Pursuant to sections 702(b)(4)(A)(i) and (ii) of the Act, the Department notified representatives of the Government of India of the receipt of the Petition, and provided them the opportunity for consultations with respect to the CVD Petition.11 Consultations with the GOI were held at the Department of Commerce on October 18, 2017.12

    11See Letter to the Embassy of India, “Countervailing Duty Petition on Polytetrafluoroethylene Resin from India” (September 28, 2017).

    12See Memorandum, “Consultations with Officials from the Government of India Regarding the Countervailing Duty Petition on Polytetrafluoroethylene (PTFE) Resin from India” (October 18, 2017).

    Determination of Industry Support for the Petition

    Section 702(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 702(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 702(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”

    Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product,13 they do so for different purposes and pursuant to a separate and distinct authority. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to law.14

    13See section 771(10) of the Act.

    14See USEC, Inc. v. United States, 132 F. Supp. 2d 1, 8 (CIT 2001) (citing Algoma Steel Corp., Ltd. v. United States, 688 F. Supp. 639, 644 (CIT 1988), aff'd 865 F.2d 240 (Fed. Cir. 1989)).

    Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (i.e., the class or kind of merchandise to be investigated, which normally will be the scope as defined in the petition).

    With regard to the domestic like product, the petitioner does not offer a definition of the domestic like product distinct from the scope of this investigation. Based on our analysis of the information submitted on the record, we have determined that PTFE resin, as defined in the scope, constitutes a single domestic like product and we have analyzed industry support in terms of that domestic like product.15

    15 For a discussion of the domestic like product analysis in this case, see Countervailing Duty Investigation Initiation Checklist Polytetrafluoroethylene (PTFE) Resin from India (India CVD Initiation Checklist), at Attachment II, Analysis of Industry Support for the Antidumping and Countervailing Duty Petitions Covering Polytetrafluoroethylene (PTFE) Resin from the People's Republic of China and India (Attachment II). This checklist is dated concurrently with this notice and on file electronically via ACCESS. Access to documents filed via ACCESS is also available in the Central Records Unit, Room B8024 of the main Department of Commerce building.

    In determining whether the petitioner has standing under section 702(c)(4)(A) of the Act, we considered the industry support data contained in the Petition with reference to the domestic like product as defined in the “Scope of the Investigation,” in the Appendix to this notice. The petitioner provided its own production of the domestic like product in 2016, as well as estimated 2016 production data of the domestic like product by the entire U.S. industry.16 To establish industry support, the petitioner compared its production to the total 2016 production of the domestic like product for the entire domestic industry.17 We relied on the data the petitioner provided for purposes of measuring industry support.18

    16See Petition at 2-4 and Exhibit I-2; see also General Issues and AD Supplement at 3-4.

    17See Petition at Exhibit I-2; see also General Issues and AD Supplement at 3-4.

    18Id. For further discussion, see India CVD Initiation Checklist at Attachment II.

    Our review of the data provided in the Petition and other information readily available to the Department indicates that the petitioner has established industry support.19 First, the Petition established support from domestic producers (or workers) accounting for more than 50 percent of the total production of the domestic like product and, as such, the Department is not required to take further action in order to evaluate industry support (e.g., polling).20 Second, the domestic producers (or workers) have met the statutory criteria for industry support under section 702(c)(4)(A)(i) of the Act because the domestic producers (or workers) who support the Petition account for at least 25 percent of the total production of the domestic like product.21 Finally, the domestic producers (or workers) have met the statutory criteria for industry support under section 702(c)(4)(A)(ii) of the Act because the domestic producers (or workers) who support the Petition account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the Petition.22 Accordingly, the Department determines that the Petition was filed on behalf of the domestic industry within the meaning of section 702(b)(1) of the Act.

    19See India CVD Initiation Checklist at Attachment II.

    20See section 702(c)(4)(D) of the Act; see also India CVD Initiation Checklist at Attachment II.

    21See India CVD Initiation Checklist at Attachment II.

    22Id.

    The Department finds that the petitioner filed the Petition on behalf of the domestic industry because it is an interested party as defined in section 771(9)(C) of the Act and it has demonstrated sufficient industry support with respect to the CVD investigation that it is requesting the Department initiate.23

    23Id.

    Injury Test

    Because India is a “Subsidies Agreement Country” within the meaning of section 701(b) of the Act, section 701(a)(2) of the Act applies to this investigation. Accordingly, the ITC must determine whether imports of the subject merchandise from India materially injure, or threaten material injury to, a U.S. industry.

    Allegations and Evidence of Material Injury and Causation

    The petitioner alleges that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise, which are benefitting from countervailable subsidies. In addition, the petitioner alleges that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.24 In CVD petitions, section 771(24)(B) of the Act provides that imports of subject merchandise from developing and least developed countries must exceed the negligibility threshold of four percent. The petitioner also demonstrates that subject imports from India, which has been designated as a least developed country under section 771(36)(B) of the Act, exceed the negligibility threshold of four percent.25

    24See Volume I of the Petitions at 21 and Exhibit I-14.

    25Id.

    The petitioner contends that the industry's injured condition is illustrated by a significant volume of subject imports; an increase in the volume of subject imports relative to U.S. consumption and production; reduced market share; underselling and price suppression or depression; lost sales and revenues; a negative impact on the domestic industry's capacity, capacity utilization, and employment; and a negative impact on revenues and operating profits.26 We have assessed the allegations and supporting evidence regarding material injury, threat of material injury, and causation, and we have determined that these allegations are properly supported by adequate evidence, and meet the statutory requirements for initiation.27

    26Id. at 24-34, Exhibit I-8, and Exhibits I-14, I-16, and I-17.

    27See India CVD Initiation Checklist at Attachment III, Analysis of Allegations and Evidence of Material Injury and Causation for the Antidumping and Countervailing Duty Petitions Covering Polytetrafluoroethylene Resin (PTFE Resin) from India and the People's Republic of China (the PRC) (Attachment III).

    Initiation of CVD Investigation

    Based on the examination of the CVD Petition, we find that the Petition meets the requirements of section 702 of the Act. Therefore, we are initiating a CVD investigation to determine whether imports of PTFE resin from India benefit from countervailable subsidies conferred by the government of this country. In accordance with section 703(b)(1) of the Act and 19 CFR 351.205(b)(1), unless postponed, we intend to make our preliminary determination no later than 65 days after the date of this initiation.

    Under the Trade Preferences Extension Act of 2015, numerous amendments to the AD and CVD laws were made.28 The 2015 law does not specify dates of application for those amendments. On August 6, 2015, the Department published an interpretative rule, in which it announced the applicability dates for each amendment to the Act, except for amendments contained in section 771(7) of the Act, which relate to determinations of material injury by the ITC.29 The amendments to sections 776 and 782 of the Act are applicable to all determinations made on or after August 6, 2015, and, therefore, apply to this CVD investigation.30

    28See Trade Preferences Extension Act of 2015, Public Law 114-27, 129 Stat. 362 (2015).

    29See Dates of Application of Amendments to the Antidumping and Countervailing Duty Laws Made by the Trade Preferences Extension Act of 2015, 80 FR 46793 (August 6, 2015) (Applicability Notice). The 2015 amendments may be found at https://www.congress.gov/bill/114th-congress/house-bill/1295/text/pl.

    30See Applicability Notice, 80 FR at 46794-95.

    Based on our review of the Petition, we find that there is sufficient information to initiate a CVD investigation on 18 of the 22 alleged programs in India. For a full discussion of the basis for our decision on whether to initiate on each program, see the India CVD Initiation Checklist. A public version of the initiation checklist for this investigation is available on ACCESS.

    In accordance with section 703(b)(1) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determination no later than 65 days after the date of this initiation.

    Respondent Selection

    The petitioner named seven companies in India as producers/exporters of PTFE resin.31 For India, following standard practice in CVD investigations, in the event the Department determines that the number of producers/exporters is large, the Department intends to review U.S. Customs and Border Protection (CBP) data for U.S. imports of PTFE resin during the POI under the appropriate Harmonized Tariff Schedule of the United States subheadings, and if it determines it cannot individually examine each company based upon the Department's resources, then the Department will select respondents based on that data.

    31See Petition at Exhibit I-13.

    On October 12, 2017, the Department released CBP data under the Administrative Protective Order (APO) to all parties with access to information protected by APO and indicated that interested parties wishing to comment regarding the CBP data and respondent selection must do so within three business days of the publication date of the notice of initiation of this CVD investigation.32 Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.505(b). Instructions for filing such applications may be found on the Department's Web site at http://enforcement.trade.gov/apo. The Department will not accept rebuttal comments regarding the CBP data or respondent selection.

    32See Memorandum, “Polytetrafluoroethylene (PTFE) Resin from India Countervailing Duty Petition: Release of U.S. Customs and Border Protection Data” (October 12, 2017).

    Comments must be filed electronically using ACCESS. An electronically filed document must be received successfully, in its entirety, by ACCESS no later than 5:00 p.m. ET on the date noted above. If respondent selection is necessary, within 20 days of publication of this notice, we intend to make our decision regarding respondent selection based upon comments received from interested parties and our analysis of the record information.

    Distribution of Copies of the Petition

    In accordance with section 702(b)(4)(A)(i) of the Act and 19 CFR 351.202(f), a copy of the public version of the Petition has been provided to the Government of India via ACCESS. To the extent practicable, we will attempt to provide a copy of the public version of the Petition to each exporter named in the Petition, as provided under 19 CFR 351.203(c)(2).

    ITC Notification

    We will notify the ITC of our initiation, as required by section 702(d) of the Act.

    Preliminary Determination by the ITC

    The ITC will preliminarily determine, within 45 days after the date on which the Petition were filed, whether there is a reasonable indication that imports of PTFE resin from India is materially injuring, or threatening material injury to, a U.S. industry.33 A negative ITC determination will result in the investigation being terminated. 34 Otherwise, this investigation will proceed according to statutory and regulatory time limits.

    33See section 703(a)(2) of the Act.

    34See section 703(a)(1) of the Act.

    Submission of Factual Information

    Factual information is defined in 19 CFR 351.102(b)(21) as: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the Department; and (v) evidence other than factual information described in (i)-(iv). 19 CFR 351.301(b) requires any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted 35 and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct.36 Time limits for the submission of factual information are addressed in 19 CFR 351.301, which provides specific time limits based on the type of factual information being submitted. Interested parties should review the regulations prior to submitting factual information in this investigation.

    35See 19 CFR 351.301(b).

    36See 19 CFR 351.301(b)(2).

    Extensions of Time Limits

    Parties may request an extension of time limits before the expiration of a time limit established under 19 CFR 351.301, or as otherwise specified by the Secretary. In general, an extension request will be considered untimely if it is filed after the time limit established under 19 CFR 351.301 expires. For submissions that are due from multiple parties simultaneously, an extension request will be considered untimely if it is filed after 10:00 a.m. ET on the due date. Under certain circumstances, we may elect to specify a different time limit by which extension requests will be considered untimely for submissions which are due from multiple parties simultaneously. In such a case, we will inform parties in the letter or memorandum setting forth the deadline (including a specified time) by which extension requests must be filed to be considered timely. An extension request must be made in a separate, stand-alone submission; under limited circumstances we will grant untimely-filed requests for the extension of time limits. Parties should review Extension of Time Limits; Final Rule, 78 FR 57790 (September 20, 2013), available at http://www.thefederalregister.org/fdsys/pkg/FR-2013-09-20/html/2013-22853.htm, prior to submitting factual information in this investigation.

    Certification Requirements

    Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.37 Parties must use the certification formats provided in 19 CFR 351.303(g).38 The Department intends to reject factual submissions if the submitting party does not comply with the applicable revised certification requirements.

    37See section 782(b) of the Act.

    38See also Certification of Factual Information to Import Administration During Antidumping and Countervailing Duty Proceedings, 78 FR 42678 (July 17, 2013) (“Final Rule”). Answers to frequently asked questions regarding the Final Rule are available at http://enforcement.trade.gov/tlei/notices/factual_info_final_rule_FAQ_07172013.pdf.

    Notification to Interested Parties

    Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. On January 22, 2008, the Department published Antidumping and Countervailing Duty Proceedings: Documents Submission Procedures; APO Procedures, 73 FR 3634 (January 22, 2008). Parties wishing to participate in this investigation should ensure that they meet the requirements of these procedures (e.g., the filing of letters of appearance as discussed at 19 CFR 351.103(d)).

    This notice is issued and published pursuant to sections 702 and 777(i) of the Act.

    Dated: October 18, 2017. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix Scope of the Investigation

    The product covered by this investigation is polytetrafluoroethylene (PTFE) resin, including but not limited to granular, dispersion, or coagulated dispersion (also known as fine powder). PTFE is covered by the scope of this investigation whether filled or unfilled, whether or not modified, and whether or not containing co-polymer additives, pigments, or other materials. Also included is PTFE wet raw polymer. The chemical formula for PTFE is C2F4, and the Chemical Abstracts Service Registry number is 9002-84-0.

    PTFE further processed into micropowder, having particle size typically ranging from 1 to 25 microns, and a melt-flow rate no less than 0.1 gram/10 minutes, is excluded from the scope of this investigation.

    PTFE is classified in the Harmonized Tariff Schedule of the United States (HTSUS) under subheadings 3904.61.0010 and 3904.61.0090. Subject merchandise may also be classified under HTSUS subheading 3904.69.5000. Although the HTSUS subheadings and CAS Number are provided for convenience and Customs purposes, the written description of the scope is dispositive.

    [FR Doc. 2017-23308 Filed 10-25-17; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Institute of Standards and Technology Judges Panel of the Malcolm Baldrige National Quality Award AGENCY:

    National Institute of Standards and Technology, Department of Commerce.

    ACTION:

    Notice of closed meeting.

    SUMMARY:

    The Judges Panel of the Malcolm Baldrige National Quality Award (Judges Panel) will meet in closed session Sunday, November 5, 2017 through Thursday, November 9, 2017 from 8:30 a.m. until 5:30 p.m. Eastern Time each day. The purpose of this meeting is to review recommendations from site visits, and recommend 2017 Malcolm Baldrige National Quality Award recipients. The meeting is closed to the public in order to protect the proprietary data to be examined and discussed at the meeting.

    DATES:

    The meeting will be held Sunday, November 5, 2017 through Thursday, November 9, 2017, from 8:30 a.m. until 5:30 p.m. Eastern Time each day. The entire meeting will be closed to the public.

    ADDRESSES:

    The meeting will be held at the National Institute of Standards and Technology, 100 Bureau Drive, Gaithersburg, MD 20899.

    FOR FURTHER INFORMATION CONTACT:

    Robert Fangmeyer, Director, Baldrige Performance Excellence Program, National Institute of Standards and Technology, 100 Bureau Drive, Mail Stop 1020, Gaithersburg, MD 20899-1020, telephone number (301) 975-2360, email [email protected]

    SUPPLEMENTARY INFORMATION:

    Authority:

    15 U.S.C. 3711a(d)(1) and the Federal Advisory Committee Act, as amended, 5 U.S.C. App.

    Pursuant to 41 CFR 102-3.150(b), this Federal Register notice for this meeting is being published fewer than 15 calendar days prior to the meeting as exceptional circumstances exist. It is imperative that the Judges Panel will meet on Sunday, November 5, 2017 through Thursday, November 9, 2017, from 8:30 a.m. until 5:30 p.m. Eastern Time each day to accommodate the scheduling priorities of the key participants, who must maintain a strict schedule to review recommendations from site visits, and recommend 2017 Malcolm Baldrige National Quality Award recipients. The Judges Panel is composed of twelve members, appointed by the Secretary of Commerce, with balanced representation from U.S. service, manufacturing, nonprofit, education, and health care industries. Members are selected for their familiarity with quality improvement operations and competitiveness issues of manufacturing companies, service companies, small businesses, health care providers, and educational institutions. Members are also chosen who have broad experience in for-profit and nonprofit areas. The purpose of this meeting is to review recommendations from site visits and recommend 2017 Malcolm Baldrige National Quality Award (Award) recipients. The meeting is closed to the public in order to protect the proprietary data to be examined and discussed at the meeting.

    The Chief Financial Officer and Assistant Secretary for Administration, with the concurrence of the Assistant General Counsel for Administration and Transactions, formally determined on March 21, 2017, pursuant to Section 10(d) of the Federal Advisory Committee Act, in accordance with Section 5(c) of the Government in Sunshine Act, Public Law 94-409, that the meeting of the Judges Panel may be closed to the public in accordance with 5 U.S.C. 552b(c)(4), because the meeting is likely to disclose trade secrets and commercial or financial information obtained from a person which is privileged or confidential; and 5 U.S.C. 552b(c)(9)(B) because the meeting is likely to disclose information the premature disclosure of which would, in the case of any agency, be likely to significantly frustrate implementation of a proposed agency action. The meeting, which involves examination of current Award applicant data from U.S. organizations and a discussion of these data as compared to the Award criteria in order to recommend Award recipients, will be closed to the public.

    Kevin Kimball, NIST Chief of Staff.
    [FR Doc. 2017-23273 Filed 10-25-17; 8:45 am] BILLING CODE 3510-13-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XF750 Atlantic Highly Migratory Species; Exempted Fishing, Scientific Research, Display, and Shark Research Fishery; Letters of Acknowledgment AGENCY:

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

    ACTION:

    Notice of intent; request for comments.

    SUMMARY:

    NMFS announces its intent to issue exempted fishing permits (EFPs), scientific research permits (SRPs), display permits, letters of acknowledgment (LOAs), and shark research fishery permits for Atlantic highly migratory species (HMS) in 2018. EFPs and related permits would authorize collection of a limited number of tunas, swordfish, billfishes, and sharks (collectively known as HMS) from Federal waters in the Atlantic Ocean, Caribbean Sea, and Gulf of Mexico for the purposes of scientific data collection, bycatch research, public display, and to evaluate the efficacy of environmental clean-up efforts, among other things. Letters of acknowledgement acknowledge that scientific research activity aboard a scientific research vessel is being conducted. Generally, EFPs and related permits would be valid from the date of issuance through December 31, 2018, unless otherwise specified, subject to the terms and conditions of individual permits.

    DATES:

    Written comments on these activities received in response to this notice will be considered by NMFS when issuing EFPs and related permits and must be received on or before November 27, 2017.

    ADDRESSES:

    Comments may be submitted by any of the following methods:

    Email: [email protected] Include in the subject line the following identifier: 0648-XF750

    Mail: Craig Cockrell, Highly Migratory Species Management Division (F/SF1), NMFS, 1315 East-West Highway, Silver Spring, MD 20910.

    FOR FURTHER INFORMATION CONTACT:

    Craig Cockrell, phone: (301) 427-8503

    SUPPLEMENTARY INFORMATION:

    Issuance of EFPs and related permits are necessary because HMS regulations (e.g., fishing seasons, prohibited species, authorized gear, closed areas, and minimum sizes) may otherwise prohibit the collection of live animals and/or biological samples for data collection and public display purposes or may otherwise prohibit certain fishing activity. Pursuant to 50 CFR 600 and 635, a NMFS Regional Administrator or Director may authorize, for limited testing, public display, data collection, exploratory fishing, compensation fishing, conservation engineering, health and safety surveys, environmental cleanup, and/or hazard removal purposes, the target or incidental harvest of species managed under an FMP or fishery regulations that would otherwise be prohibited. These permits exempt permit holders from the specific portions of the regulations (e.g., fishing seasons, prohibited species, authorized gear, closed areas, and minimum sizes) that may otherwise prohibit the collection of HMS for public education, public display, or scientific research. Permit holders are not exempted from the regulations in entirety. Collection of HMS under EFPs, SRPs, LOAs, display, and shark research fishery permits represents a small portion of the overall fishing mortality for HMS, and this mortality is counted against the quota of the species harvested, as appropriate and applicable. The terms and conditions of individual permits are unique; however, all permits will include reporting requirements, limit the number and/or species of HMS to be collected, and only authorize collection in Federal waters of the Atlantic Ocean, Gulf of Mexico, and Caribbean Sea.

    EFPs and related permits are issued under the authority of the Magnuson-Stevens Fishery Conservation and Management Reauthorization Act (Magnuson-Stevens Act) (16 U.S.C. 1801 et seq.) and/or the Atlantic Tunas Convention Act (ATCA) (16 U.S.C. 971 et seq.). Regulations at 50 CFR 600.745 and 635.32 govern scientific research activity, exempted fishing, and exempted public display and educational activities with respect to Atlantic HMS. Before issuing LOAs, EFPs, or SRPs, NMFS requests, among other things, copies of scientific research plans. Because the Magnuson-Stevens Act states that scientific research activity which is conducted on a scientific research vessel is not fishing, NMFS issues LOAs and not EFPs for bona fide research activities (e.g., scientific research being conducted from a research vessel and not a commercial or recreational fishing vessel) involving species that are only regulated under the Magnuson-Stevens Act (e.g., most species of sharks) and not under ATCA. NMFS generally does not consider recreational or commercial vessels to be bona fide research vessels. However, if the vessels have been contracted only to conduct research and not participate in any commercial or recreational fishing activities during that research, NMFS may consider those vessels as bona fide research platforms while conducting the specified research. For example, in the past, NMFS has determined that commercial pelagic longline vessels assisting with population surveys for sharks may be considered “bona fide research vessels” while engaged only in the specified research. NMFS acknowledges that the proposed activity meets the definition of scientific research under the Magnuson-Stevens Act and not ATCA by issuing an LOA to researchers. Examples of research conducted under LOAs include tagging and releasing of sharks during bottom longline surveys to understand the distribution and seasonal abundance of different shark species, and collecting and sampling sharks caught during trawl surveys for life history and bycatch studies.

    While scientific research is exempt under MSA, scientific research is not exempt from regulation under ATCA. Therefore, NMFS issues SRPs that authorize researchers to collect HMS from bona fide research vessels for collection of species managed under this statute (e.g., tunas, swordfish, billfish, and some species of sharks). One example of research conducted under SRPs consists of scientific surveys of HMS conducted from NOAA research vessels.

    EFPs are issued to researchers collecting ATCA and Magnuson-Stevens Act-managed species while conducting research from commercial or recreational fishing vessels. Examples of research conducted under EFPs include collection of young-of-the-year bluefin tuna for genetic research; conducting billfish larval tows from private vessels to determine billfish habitat use, life history, and population structure; determining catch rates and gear characteristics of the swordfish buoy gear fishery and the green-stick tuna fishery; and tagging sharks caught on commercial or recreational fishing gear to determining post-release mortality rates.

    NMFS is also seeking public comment on its intent to issue display permits for the collection of sharks and other HMS for public display in 2017. Collection of sharks and other HMS sought for public display in aquaria often involves collection when the commercial fishing seasons are closed, collection of otherwise prohibited species (e.g., sand tiger sharks), and collection of fish below the regulatory minimum size. Under Amendment 2 to the 2006 Consolidated Atlantic HMS Fishery Management Plan, NMFS determined that dusky sharks cannot be collected for public display.

    The majority of EFPs and related permits described in this annual notice relate to scientific sampling and tagging of Atlantic HMS within existing quotas and the impacts of the activities have been previously analyzed in various environmental assessments and environmental impact statements for Atlantic HMS. NMFS intends to issue these permits without additional opportunity for public comment beyond what is provided in this notice. Occasionally, NMFS receives applications for research activities that were not anticipated, or for research that is outside the scope of general scientific sampling and tagging of Atlantic HMS, or rarely, for research that is particularly controversial. Should NMFS receive such applications, NMFS will provide additional opportunity for public comment, consistent with the regulations at 50 CFR part 600.745.

    During the comment period for the November 2016 notice of intent to issue EFPs (81 FR 80646), NMFS received numerous comments regarding previous years' white shark research in Federal waters, focusing primarily on concerns about the need for coordination among researchers regarding the potential effects of one project on another. The volume of these comments indicated that any EFPs or SRP applications involving white sharks in 2017 should be considered “controversial” and warranted additional opportunity for public comment. Subsequently, NMFS published a notice in the Federal Register (March 1, 2017, 82 FR 12340) requesting public comment on applications for exempted fishing permits and related permits for white shark research, particularly on two applications involving white shark research that had been received at that time.

    During the comment period, NMFS received 722 comments related to white shark research and the applications described in the notice. The majority of the comments were in support of continuing white shark research. Other comments that were received commented on a range of issues related to white shark research including concern regarding the proper handling of white sharks and the type of gear being used for research and concern regarding tagging operations on charter and private vessels due to long fight times on light tackle rods and reels. Some of the comments also stated that NMFS should approve EFP applications for white shark research on a case-by-case basis or that NMFS should stop issuing EFPs or related permits for research on sharks. After reviewing these comments, NMFS decided to issue EFPs and related permits for white shark research as appropriate in 2017. During 2018, NMFS anticipates permits for white shark research would be undertaken with substantially the same terms and conditions and scope as last year, with no additional anticipated effects. Comments are invited specifically on these issues related to issuance of white shark permits this year.

    In addition, Amendment 2 to the 2006 Consolidated HMS Fishery Management Plan (FMP) implemented a shark research fishery. This research fishery is conducted under the auspices of the exempted fishing permit program. Shark research fishery permit holders assist NMFS in collecting valuable shark life history and other scientific data required in shark stock assessments. Since the shark research fishery was established in 2008, the research fishery has allowed for: The collection of fishery dependent data for current and future stock assessments; the operation of cooperative research to meet NMFS' ongoing research objectives; the collection of updated life-history information used in the sandbar shark (and other species) stock assessment; the collection of data on habitat preferences that might help reduce fishery interactions through bycatch mitigation; the evaluation of the utility of the mid-Atlantic closed area on the recovery of dusky sharks; and the collection of hook-timer and pop-up satellite archival tag information to determine at-vessel and post-release mortality of dusky sharks. Fishermen who wish to participate must fill out an application for a shark research permit under the exempted fishing program. Shark research fishery participants are subject to 100-percent observer coverage. All non-prohibited shark species brought back to the vessel dead must be retained and will count against the appropriate quotas of the shark research fishery participant. During the 2017 shark research fishery, all participants were limited to a very small number of dusky shark mortalities on a regional basis. Once the number of mortalities occurs in a specific region all shark research fishery activities must stop within that region. Also, participants are limited to two sets per trip with, one set limited to 150 hooks and the second set limited to 300 hooks. All participants are also limited to a maximum of 500 hooks onboard the vessel with on a shark research fishery trip. A Federal Register notice describing the specific objectives for the shark research fishery in 2018 and requesting applications from interested and eligible shark fishermen is expected to publish in the near future. NMFS requests public comment regarding NMFS' intent to issue shark research fishery permits in 2018 during the comment period of this notice.

    The authorized number of species for 2017, as well as the number of specimens collected in 2016, is summarized in Table 1. The number of specimens collected in 2017 will be available when all 2017 interim and annual reports are submitted to NMFS. In 2016, the number of specimens collected was less than the number of authorized specimens for all permit types, other than SRPs issued for shark research.

    In all cases, mortality associated with an EFPs, SRPs, or display permits (except for larvae) is counted against the appropriate quota. NMFS issued a total of 39 EFPs, SRPs, display permits, and LOAs in 2016 for the collection of HMS and a total of 5 shark research fishery permits. As of October 3, 2017, NMFS has issued a total of 33 EFPs, SRPs, display permits, and LOAs and a total of 5 shark research fishery permits.

    Table 1—Summary of HMS Exempted Fishing Permits Issued in 2016 and 2017, Other Than Shark Research Fishery Permits [“HMS” refers to multiple species being collected under a given permit type.] Permit type 2016 Permits issued** Authorized fish
  • (num)
  • Authorized
  • larvae
  • (num)
  • Fish kept/discarded dead
  • (num)
  • Larvae kept
  • (num)
  • 2017 Permits issued** Authorized fish
  • (Num)**
  • EFP HMS 4 247 0 17 0 4 357 Shark 12 721 0 85 0 4 57 Tuna 4 530 0 0 0 2 350 SRP HMS 1 42 0 0 0 3 260 Shark 5 1,165 0 310 0 1 720 Tuna 1 60 0 0 0 0 0 Display HMS 0 0 0 0 0 2 88 Shark 3 109 0 26 0 5 109 Total 30 2,874 0 0 21 1,941 LOA* Shark 9 2,906 0 618 0 12 2,275 *LOAs are issued for bona fide scientific research activities involving non-ATCA managed species (e.g., most species of sharks). Collections made under an LOA are not authorized; rather this estimated harvest for research is acknowledged by NMFS. Permittees are encouraged to report all fishing activities in a timely manner. **Atlantic HMS larvae were authorized for collection but no limit on the number of larvae were set.

    Final decisions on the issuance of any EFPs, SRPs, display permits, and shark research fishery permits will depend on the submission of all required information about the proposed activities, NMFS' review of public comments received on this notice, an applicant's reporting history on past permits, if vessels or applicants were issued any prior violations of marine resource laws administered by NOAA, consistency with relevant NEPA documents, and any consultations with appropriate Regional Fishery Management Councils, states, or Federal agencies. NMFS does not anticipate any significant environmental impacts from the issuance of these EFPs as assessed in the 1999 FMP, the 2006 Consolidated HMS FMP and its amendments, the Environmental Assessment for the 2012 Swordfish Specifications, and the Environmental Assessment for the 2015 Final Bluefin Tuna Quota and Atlantic Tuna Fisheries Management Measures.

    Authority:

    16 U.S.C. 971 et seq. and 16 U.S.C. 1801 et seq.

    Dated: October 23, 2017. Emily H. Menashes, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2017-23312 Filed 10-25-17; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF DEFENSE Department of the Air Force Names of Members of the Performance Review Board for the Department of the Air Force AGENCY:

    Department of the Air Force, DOD.

    ACTION:

    Notice.

    SUMMARY:

    Notice is given of the names of members of the 2017 Performance Review Board for the Department of the Air Force.

    DATES:

    These appointments are effective as of November 13, 2017.

    SUPPLEMENTARY INFORMATION:

    Pursuant to 5 U.S.C. 4314(c) (1-5), the Department of the Air Force (AF) announces the appointment of members to the AF's Senior Executive Service (SES) Performance Review Board (PRB). Appointments are made by the authorizing official. Each board member shall review and evaluate performance scores provided by the SES' immediate supervisor. Performance standards must be applied consistently across the AF. The board will make final recommendations to the authorizing official relative to the performance of the executive.

    The members of the 2017 Performance Review Board for the Air Force are:

    1. Board President—Gen Ellen M. Pawlikowski, Commander, Air Force Material Command 2. Honorable Matthew P. Donovan, Under Secretary of the Air Force 3. General Stephen W. Wilson, Vice Chief of Staff of the Air Force 4. Lt Gen Stayce D. Harris, Assistant Vice Chief of Staff and Director 5. Lt Gen Gina M. Grosso, Deputy Chief of Staff, Manpower, Personnel and Services 6. Lt Gen John F. Thompson, Commander, Space and Missile Systems Center 7. Lt Gen Bradford J. Shwedo, Chief, Information Dominance and Chief Information Officer 8. Lt Gen Jerry D. Harris, Deputy Chief of Staff, Strategic Plans and Requirements 9. Dr. Todd A. Fore, Assistant Deputy Chief of Staff, Manpower, Personnel and Services 10. Ms. Patricia M. Young, Air Force Material Command Executive Director 11. Mr. Richard K. Hartley, Principle Deputy Assistant Secretary, Installations and Environment 12. Mr. Jeffery R. Shelton, Deputy Administrative Assistant for the Secretary of the Air Force 13. Mr. Daniel R. Sitterly, Principal Deputy Assistant Secretary, Manpower and Reserve Affairs 14. Mr. Joseph M. McDade, Principal Deputy General Counsel 15. Mr. John B. Salvatori, Director, Capabilities Management Office 16. Ms. Pamela C. Schwenke, Deputy Assistant Secretary, Cost and Economics 17. Mr. James J. Brooks, Air National Guard, Executive Director 18. Mr. Craig A. Smith, Deputy General Counsel, Intelligence, International and Military Affairs

    Additionally, all career status Air Force Tier 3 SES members not included in the above list are eligible to serve on the 2017 Performance Review Board and are hereby nominated for inclusion on an ad hoc basis in the event of absence(s).

    FOR FURTHER INFORMATION CONTACT:

    Please direct any written comments or requests for information to Ms. Lorna Fermanis, Senior Executive Management, AF/DPS, 1040 Air Force Pentagon, Washington, DC 20330-1040 (PH: 703-697-0897; or via email at [email protected])

    Henry Williams, Acting Air Force Federal Register Liaison Officer.
    [FR Doc. 2017-23327 Filed 10-25-17; 8:45 am] BILLING CODE 5001-10-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID DOD-2017-OS-0035] Submission for OMB Review; Comment Request AGENCY:

    Office of the Under Secretary of Defense for Acquisition, Technology and Logistics, DoD.

    ACTION:

    30-Day information collection notice.

    SUMMARY:

    The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act.

    DATES:

    Consideration will be given to all comments received by November 27, 2017.

    ADDRESSES:

    Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at [email protected] Please identify the proposed information collection by DoD Desk Officer and the Docket ID number and title of the information collection.

    FOR FURTHER INFORMATION CONTACT:

    Fred Licari, 571-372-0493, or [email protected]

    SUPPLEMENTARY INFORMATION:

    Title, Associated Form and OMB Number: Pre-embarkation Certificate of Disinsection, DD Form 3044; OMB Control Number 0704-XXXX.

    Type of Request: New.

    Number of Respondents: 1,000.

    Responses per Respondent: 1.

    Annual Responses: 1,000.

    Average Burden per Response: 10 minutes.

    Annual Burden Hours: 166.67 hours.

    Needs and Uses: The information collection requirement is necessary to provide proof of aircraft disinsection to foreign countries that require it, before cargo and aircrew will be allowed to dis-embark in those countries.

    Affected Public: Individuals or households.

    Frequency: On Occasion.

    Respondent's Obligation: Mandatory.

    OMB Desk Officer: Ms. Jasmeet Seehra.

    You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:

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

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

    DOD Clearance Officer: Mr. Frederick Licari.

    Written requests for copies of the information collection proposal should be sent to Mr. Licari at WHS/ESD Directives Division, 4800 Mark Center Drive, East Tower, Suite 03F09, Alexandria, VA 22350-3100.

    Dated: October 20, 2017. Aaron Siegel, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2017-23258 Filed 10-25-17; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID: DOD-2017-OS-0061] Submission for OMB Review; Comment Request AGENCY:

    Office of the Under Secretary of Defense for Acquisition, Technology and Logistics, DOD.

    ACTION:

    30-day information collection notice.

    SUMMARY:

    The Department of Defense has submitted to OMB for clearance, the following proposal for collection of information under the provisions of the Paperwork Reduction Act.

    DATES:

    Consideration will be given to all comments received by November 27, 2017.

    ADDRESSES:

    Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at [email protected] Please identify the proposed information collection by DoD Desk Officer and the Docket ID number and title of the information collection.

    FOR FURTHER INFORMATION CONTACT:

    Fred Licari, 571-372-0493, or [email protected]

    SUPPLEMENTARY INFORMATION:

    Title, Associated Form and OMB Number: Assessing and Strengthening the Manufacturing and Defense Industrial Base Supply Chain Resiliency of the United States; OMB Control Number 0704-XXXX.

    Type of Request: Emergency.

    Number of Respondents: 300.

    Responses per Respondent: 1.

    Annual Responses: 300.

    Average Burden Per Response: 60 minutes.

    Annual Burden Hours: 300.

    Needs and Uses: The information collection requirement is being submitted as an emergency. The information collection requirement is necessary to obtain information in support of Executive Order 13806: Assessing and Strengthening the United States Manufacturing and Defense Industrial Base and Supply Chain Resiliency. The questionnaire is used to identify, assess, and make recommendations in support of a more robust industrial base.

    Affected Public: Businesses or other for-profit.

    Frequency: One Time.

    Respondent's Obligation: Voluntary.

    OMB Desk Officer: Ms. Jasmeet Seehra.

    You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:

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

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

    DOD Clearance Officer: Mr. Frederick Licari.

    Written requests for copies of the information collection proposal should be sent to Mr. Licari at WHS/ESD Directives Division, 4800 Mark Center Drive, East Tower, Suite 03F09, Alexandria, VA 22350-3100.

    Dated: October 20, 2017. Aaron Siegel, Alternate OSD Federal Register, Liaison Officer, Department of Defense.
    [FR Doc. 2017-23262 Filed 10-25-17; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Department of the Army, Corps of Engineers Environmental Impact Statement Withdrawal and Availability of an Environmental Assessment for the Souris River Basin Flood Risk Management Feasibility Study, Ward County, North Dakota AGENCY:

    U.S. Army Corps of Engineers, DoD.

    ACTION:

    Notice of withdrawal of an environmental impact statement; notice of availability of an environmental assessment.

    SUMMARY:

    In accordance with the National Environmental Policy Act (NEPA), on September 18, 2016, the St. Paul District, U.S. Army Corps of Engineers (Corps) initiated the Environmental Impact Statement (EIS) process to identify and analyze potential impacts associated with flood risk management measures evaluated within a Federal feasibility study for the Souris River Basin within the continental United States. Currently, the Corps has identified a Tentatively Selected Plan (TSP) that includes a high-flow diversion and a 1200-ft long levee. However, preliminary analysis of the TSP indicate no significant impacts are expected, therefore the Corps is terminating the EIS process and is withdrawing the Notice of Intent published in the Thursday, September 18, 2016 issue of the Federal Register. In its place, a draft integrated Feasibility Report and Environmental Assessment (FR/EA) will be available for a 30-day public comment period beginning October 30, 2017.

    DATES:

    Comments on the draft FR/EA may be submitted starting October 30, 2017 through November 30, 2017. If comments are provided by mail, they must be received at the address below no later than November 30, 2017.

    ADDRESSES:

    The draft FR/EA can be viewed online starting October 30, 2017 at http://www.mvp.usace.army.mil/Home/Public-Notices/.

    Comments may be submitted on the draft FR/EA using any of the following methods:

    Mail: Attn: David F. Potter, Regional Planning and Environment Division North, U.S. Army Corps of Engineers, 180 Fifth Street East, Suite 700, St. Paul, MN 55101-1678.

    Email: [email protected].

    Instructions: Direct your comments to Corps of Engineers St. Paul District. Comment letters should include the commenter's physical mailing address and the project title in the subject line. Please ensure that your comments are submitted within the specified comment period. Comments received after the closing date will be marked “late,” and may only be considered if time permits. Please note that comments may be part of the public record.

    FOR FURTHER INFORMATION CONTACT:

    Questions regarding this action can be addressed to Mr. David F. Potter, Regional Planning & Environment Division North, by phone: (651) 290-5713, by fax: (651) 290-5805, by email: [email protected], or by mail: Regional Planning and Environment Division North, U.S. Army Corps of Engineers, 180 Fifth Street East, Suite 700, St. Paul, MN 55101-1678.

    SUPPLEMENTARY INFORMATION:

    The Souris River Basin Flood Risk Management Feasibility Study (Feasibility Study) is being developed by the Corps in partnership with the Souris River Joint Water Resources Board (SRJB). The purpose of this study is to collect and evaluate pertinent engineering, economic, social, and environmental information in order to assess the potential for a federal flood risk management project within the basin. The study objective is to define a feasible and implementable project to reduce flood risk which is relatively high within the basin. Due to the potentially significant environmental effects associated with the project, the Corps issued a Notice of Intent to Prepare an EIS (76 FR 336) on September 18, 2016.

    The Feasibility Study is complementary to the SRJB's local plan, the Mouse River Enhanced Flood Protection Plan (MREFPP). Because of its influence on an existing federal flood project, this non-federal effort has requested permission from the Corps of Engineers to pursue actions under 33 U.S.C. 408 (frequently referred to as Section 408). A separate Notice of Intent was published (FR Doc. 2015-17670 Filed July 16, 2015) for an EIS associated with the Corps of Engineers' decision on the Section 408 request. Additional details on the local, non-federal flood MREFPP can be found at mouseriverplan.com. During this Feasibility Study, many of the initial flood risk management measures were screened out from further consideration. Major features of the TSP include a high-flow diversion and a 1200-ft long levee. Preliminary analysis indicate that the environmental effects of the TSP are less than significant. For this reason, an EIS is no longer being pursued in favor of an EA in accordance with Corps regulations at 33 CFR part 230, Appendix C(2).

    We are advising the public that a draft integrated FR/EA for the Feasibility Study has been prepared and is available for public review and comment. The FR/EA considers the effects of, and alternatives to, the TSP.

    Dated: October 12, 2017. Terry J. Birkenstock, Deputy Chief, Regional Planning and Environment Division North.
    [FR Doc. 2017-23318 Filed 10-25-17; 8:45 am] BILLING CODE 3720-58-P
    DEPARTMENT OF DEFENSE Department of the Army, Corps of Engineers Notice of Availability of a Draft Integrated General Reevaluation Report and Environmental Assessment and Draft Finding of No Significant Impact for the Proposed Lower Pajaro River Flood Risk Management Project, Monterey and Santa Cruz Counties, CA AGENCY:

    Department of the Army, U.S. Army Corps of Engineers, DoD.

    ACTION:

    Notice of availability.

    SUMMARY:

    The U.S. Army Corps of Engineers (USACE), San Francisco District, announces the availability for review and comment of the draft integrated General Reevaluation Report and Environmental Assessment (GRR/EA) and the draft Finding of No Significant Impact (FONSI) for the proposed Pajaro River Flood Risk Management Project, Monterey and Santa Cruz Counties, CA., USACE Procedures for Implementing [the National Environmental Policy Act] NEPA, notice of the availability of this draft GRR/EA and draft FONSI for review and comment is being provided to agencies, organizations, and the interested public.

    DATES:

    Comments on the draft GRR/EA and draft FONSI may be submitted starting October 31, 2017, through November 30, 2017. If comments are provided by mail, they must be received at the address below no later than November 30, 2017.

    ADDRESSES:

    The draft GRR/EA can be viewed online starting October 31, 2017, at: http://www.spn.usace.army.mil/Missions/Projects-and-Programs/Projects-by-Category/Projects-for-Flood-Risk-Management/Pajaro-River-Watsonville/. Comments may be submitted on the draft GRR/EA using any of the following methods:

    Mail: U.S. Army Corps of Engineers, San Francisco District, ATTN: CESPN-ET-PB-Pajaro River, 1455 Market Street, San Francisco, CA 94103-1398.

    Email: [email protected].

    • Comment letters should include the commenter's physical mailing address and include “Pajaro River” in the subject line.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Christopher Eng, U.S. Army Corps of Engineers, San Francisco District, 1455 Market Street, San Francisco, CA 94103-1398. Telephone: (415) 503-6868. Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    1. Proposed Action. USACE and the non-Federal study partners, Monterey and Santa Cruz Counties, propose to reduce flood risk to the City of Watsonville and the town of Pajaro by implementing a combination of structural measures along the lower Pajaro River, Salsipuedes Creek, and Corralitos Creek. These measures include: Improving existing levees; constructing new levees, including setback levees; and constructing new floodwalls. The draft GRR/EA presents the draft findings of the General Reevaluation Study and identifies and describes the benefits, costs, and environmental effects of alternatives plans to reduce flood risk to the city of Watsonville, town of Pajaro, and surrounding area. Based on the evaluation, USACE has identified a Federal interest in at least one alternative plan, the Tentatively Selected Plan (TSP), to reduce the risk of flooding while minimizing adverse environmental effects. The TSP is the National Economic Development Plan (NED). The environmental review conducted as part of this study has initially concluded that, with mitigation, the proposed alternatives would not result in any significant environmental effects. This review and its findings are documented in the draft GRR/EA.

    2. Alternatives. Ten project alternatives, including the no action alternative, have been evaluated in detail in the draft GRR/EA in accordance with NEPA (33 CFR part 230 (USACE NEPA Regulations) and 33 CFR part 325, Appendix B (NEPA Implementation Procedures for USACE Regulatory Projects).

    3. Changes Since Publication of the Notice of Intent (NOI). An NOI was published in the Federal Register on June 8, 2001, (66 FR 30894) to advise the interested public and agencies that USACE planned to prepare a combined EIS/EIR for the Pajaro River Flood Risk Management Study. Since publication of the NOI, USACE and Monterey and Santa Cruz Counties have worked with stakeholders to identify and incorporate measures to avoid, minimize, and compensate for adverse environmental effects. As a result, the environmental review conducted as part of this study has initially concluded that, with mitigation, the proposed alternatives would not result in any significant environmental effects. Therefore, an EA has been prepared instead of an EIS. Also, USACE now requires water resources planning and NEPA documents to be integrated into a single document, in this case, an integrated GRR/EA. The California Environmental Quality Act (CEQA) document for the study is being prepared separately by Santa Cruz and Monterey Counties as the CEQA lead agencies.

    c. USACE is consulting with the State Historic Preservation Officer and with Native American Tribes to comply with the National Historic Preservation Act, and with the U.S. Fish and Wildlife Service and National Marine Fisheries Service to comply with the Endangered Species Act. USACE is also coordinating with the U.S. Fish and Wildlife Service to comply with the Fish and Wildlife Coordination Act.

    4. Availability of the Draft EA. The draft GRR/EA and draft FONSI are available for public review and comment 30 days beginning October 31, 2017 and ending November 30, 2017.

    5. A public meeting to discuss the status of the study, present the draft results of the GRR/EA, and receive questions and comments will be held on November 8, 2017, from 6:00 p.m. to 8:00 p.m. at the Watsonville Civic Plaza Community Room, 275 Main Street, 4th Floor, Watsonville, California 95076-5133.

    Dated: October 18, 2017. Travis J. Rayfield, Lieutenant Colonel, U.S. Army, District Commander.
    [FR Doc. 2017-23276 Filed 10-25-17; 8:45 am] BILLING CODE 3720-58-P
    DEPARTMENT OF EDUCATION [Docket No.: ED-2017-ICCD-0130] Agency Information Collection Activities; Comment Request; State Educational Agency and Local Educational Agency—School Data Collection and Reporting Under ESEA, Title I, Part A AGENCY:

    Office of Elementary and Secondary Education (OESE), Department of Education (ED).

    ACTION:

    Notice.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, ED is proposing an extension of an existing information collection.

    DATES:

    Interested persons are invited to submit comments on or before December 26, 2017.

    ADDRESSES:

    To access and review all the documents related to the information collection listed in this notice, please use http://www.regulations.gov by searching the Docket ID number ED-2017-ICCD-0130. Comments submitted in response to this notice should be submitted electronically through the Federal eRulemaking Portal at http://www.regulations.gov by selecting the Docket ID number or via postal mail, commercial delivery, or hand delivery. Please note that comments submitted by fax or email and those submitted after the comment period will not be accepted. Written requests for information or comments submitted by postal mail or delivery should be addressed to the Director of the Information Collection Clearance Division, U.S. Department of Education, 400 Maryland Avenue SW., LBJ, Room 216-44, Washington, DC 20202-4537.

    FOR FURTHER INFORMATION CONTACT:

    For specific questions related to collection activities, please contact Hannah Hodel, 202-453-6448.

    SUPPLEMENTARY INFORMATION:

    The Department of Education (ED), in accordance with the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3506(c)(2)(A)), provides the general public and Federal agencies with an opportunity to comment on proposed, revised, and continuing collections of information. This helps the Department assess the impact of its information collection requirements and minimize the public's reporting burden. It also helps the public understand the Department's information collection requirements and provide the requested data in the desired format. ED is soliciting comments on the proposed information collection request (ICR) that is described below. The Department of Education is especially interested in public comment addressing the following issues: (1) Is this collection necessary to the proper functions of the Department; (2) will this information be processed and used in a timely manner; (3) is the estimate of burden accurate; (4) how might the Department enhance the quality, utility, and clarity of the information to be collected; and (5) how might the Department minimize the burden of this collection on the respondents, including through the use of information technology. Please note that written comments received in response to this notice will be considered public records.

    Title of Collection: State Educational Agency and Local Educational Agency—School Data Collection and Reporting under ESEA, Title I, Part A.

    OMB Control Number: 1810-0622.

    Type of Review: An extension of an existing information collection.

    Respondents/Affected Public: State, Local, and Tribal Governments.

    Total Estimated Number of Annual Responses: 52.

    Total Estimated Number of Annual Burden Hours: 2,080.

    Abstract: Although the U.S. Department of Education (ED) determines Title I, Part A allocations for Local Educational Agencies (LEAs), State Educational Agencies (SEAs) must adjust ED-determined Title I, Part A LEA allocations to account for newly created LEAs and LEA boundary changes, to redistribute Title I, Part A funds to small LEAs (under 20,000 total population) using alternative poverty data, and to reserve funds for school improvement, State administration, and the State academic achievement awards program. This control number covers only the burden associated with the actual procedures an SEA must follow when adjusting ED-determined LEA allocations.

    Dated: October 20, 2017. Tomakie Washington, Acting Director, Information Collection Clearance Division, Office of the Chief Privacy Officer, Office of Management.
    [FR Doc. 2017-23222 Filed 10-25-17; 8:45 am] BILLING CODE 4000-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following electric corporate filings:

    Docket Numbers: EC17-126-000.

    Applicants: South Central MCN LLC.

    Description: Response to Deficiency Letter and Update to June 1, 2017 Application of South Central MCN LLC for Authorization to Acquire Transmission Facilities.

    Filed Date: 10/19/17.

    Accession Number: 20171019-5135.

    Comments Due: 5 p.m. ET 11/9/17.

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER17-1769-001.

    Applicants: Solar Star Oregon II, LLC.

    Description: Notice of Change in Status of Solar Star Oregon II, LLC.

    Filed Date: 10/20/17.

    Accession Number: 20171020-5107.

    Comments Due: 5 p.m. ET 11/13/17.

    Docket Numbers: ER17-399-002.

    Applicants: Midcontinent Independent System Operator, Inc., Duke Energy Indiana, LLC.

    Description: Compliance filing: 2017-10-20_SA 2285 Duke Energy-AEP WDS (Hagerstown) to be effective 3/1/2017.

    Filed Date: 10/20/17.

    Accession Number: 20171020-5075.

    Comments Due: 5 p.m. ET 11/13/17.

    Docket Numbers: ER17-772-003.

    Applicants: Southwest Power Pool, Inc.

    Description: Compliance filing: Compliance Filing in ER17-772—Order No. 825 Compliance Filing to be effective 5/11/2017.

    Filed Date: 10/20/17.

    Accession Number: 20171020-5088.

    Comments Due: 5 p.m. ET 11/17/17.

    Docket Numbers: ER18-112-000.

    Applicants: Southwestern Public Service Company.

    Description: § 205(d) Rate Filing: SPS-GSEC-DSEC-Intecon Agrmt-Sub 25-692-0.0.0 to be effective 10/21/2017.

    Filed Date: 10/20/17.

    Accession Number: 20171020-5071.

    Comments Due: 5 p.m. ET 11/13/17.

    Docket Numbers: ER18-113-000.

    Applicants: Northern States Power Company, a Minnesota corporation.

    Description: § 205(d) Rate Filing: 2017-10-20 CAPX-Big Stone-So Brkngs-CMA-594-0.1.0-NOC to be effective 12/20/2017.

    Filed Date: 10/20/17.

    Accession Number: 20171020-5080.

    Comments Due: 5 p.m. ET 11/13/17.

    Docket Numbers: ER18-114-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Wholesale Market Participation Agreement No. 4820; Queue AC1-016 to be effective 10/12/2017.

    Filed Date: 10/20/17.

    Accession Number: 20171020-5084.

    Comments Due: 5 p.m. ET 11/13/17.

    Docket Numbers: ER18-115-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Wholesale Market Participation Agreement No. 4821; Queue AC1-017 to be effective 10/12/2017.

    Filed Date: 10/20/17.

    Accession Number: 20171020-5085.

    Comments Due: 5 p.m. ET 11/13/17.

    Docket Numbers: ER18-116-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Wholesale Market Participation Agreement No. 4822; Queue AC1-019 to be effective 10/12/2017.

    Filed Date: 10/20/17.

    Accession Number: 20171020-5086.

    Comments Due: 5 p.m. ET 11/13/17.

    Docket Numbers: ER18-117-000.

    Applicants: Solar Star Oregon II, LLC.

    Description: § 205(d) Rate Filing: Normal filing 1017 to be effective 10/21/2017.

    Filed Date: 10/20/17.

    Accession Number: 20171020-5087.

    Comments Due: 5 p.m. ET 11/13/17.

    Docket Numbers: ER18-118-000.

    Applicants: Public Service Company of New Mexico.

    Description: Notice of Cancellation of Interconnection Agreement (Rate Schedule No. 95) of Public Service Company of New Mexico.

    Filed Date: 10/20/17.

    Accession Number: 20171020-5106.

    Comments Due: 5 p.m. ET 11/13/17.

    Docket Numbers: ER18-119-000.

    Applicants: Pacific Gas and Electric Company.

    Description: § 205(d) Rate Filing: CDWR Work Performance Agreement for Wind Gap Pumping Plant #2 to be effective 10/23/2017.

    Filed Date: 10/20/17.

    Accession Number: 20171020-5110.

    Comments Due: 5 p.m. ET 11/13/17.

    Docket Numbers: ER18-120-000.

    Applicants: Arizona Public Service Company.

    Description: § 205(d) Rate Filing: OATT Attachment G Revision to be effective 12/20/2017.

    Filed Date: 10/20/17.

    Accession Number: 20171020-5115.

    Comments Due: 5 p.m. ET 11/13/17.

    Docket Numbers: ER18-121-000.

    Applicants: Alabama Power Company.

    Description: § 205(d) Rate Filing: Core Solar SPV XX LGIA Filing to be effective 10/10/2017.

    Filed Date: 10/20/17.

    Accession Number: 20171020-5136.

    Comments Due: 5 p.m. ET 11/13/17.

    Docket Numbers: ER18-122-000.

    Applicants: New England Power Pool Participants Committee, ISO New England Inc.

    Description: § 205(d) Rate Filing: Revisions Regarding Modeling Options for Small Generators to be effective 12/20/2017.

    Filed Date: 10/20/17.

    Accession Number: 20171020-5149.

    Comments Due: 5 p.m. ET 11/13/17.

    Docket Numbers: ER18-123-000.

    Applicants: PJM Interconnection, L.L.C.

    Description: § 205(d) Rate Filing: Amendment to Wholesale Market Participation Agreement No. 3499, Queue No. Y1-063 to be effective 1/30/2013.

    Filed Date: 10/20/17.

    Accession Number: 20171020-5160.

    Comments Due: 5 p.m. ET 11/13/17.

    Docket Numbers: ER18-124-000.

    Applicants: Midcontinent Independent System Operator, Inc., Northern States Power Company, a Minnesota corporation, Great River Energy.

    Description: § 205(d) Rate Filing: 2017-10-20_SA 3060 NSP-GRE T-T Pomerleau Lake to be effective 11/1/2017.

    Filed Date: 10/20/17.

    Accession Number: 20171020-5171.

    Comments Due: 5 p.m. ET 11/13/17.

    Take notice that the Commission received the following electric securities filings:

    Docket Numbers: ES17-64-000.

    Applicants: Monongahela Power Company.

    Description: Amendment to September 29, 2017 Application for Authorization Under Section 204(a) of the Federal Power Act to Issue Short-Term Debt Securities of Monongahela Power Company.

    Filed Date: 10/20/17.

    Accession Number: 20171020-5135.

    Comments Due: 5 p.m. ET 11/13/17.

    Docket Numbers: ES18-4-000.

    Applicants: Monongahela Power Company.

    Description: Application Of Monongahela Power Company For Authorization under Section 204(A) of the FPA.

    Filed Date: 10/20/17.

    Accession Number: 20171020-5105.

    Comments Due: 5 p.m. ET 11/13/17.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: October 20, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-23291 Filed 10-25-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL18-18-000] Midcontinent Independent System Operator, Inc.; Notice of Institution of Section 206 Proceeding and Refund Effective Date

    On October 19, 2017, the Commission issued an order in Docket No. EL18-18-000, Midcontinent Indep. Sys. Operator, Inc., 161 FERC 61,057 (2017) (October 2017 Order), pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation to examine the Midcontinent Independent System Operator, Inc. (MISO) Transmission Owners Agreement and any other Commission-jurisdictional MISO documents that must be revised to fully implement the refund commitment concerns identified in the Commission's July 21, 2016 order in Docket No. EL16-99-000 in Ark. Elec. Coop. Corp. v. ALLETE, Inc., 156 FERC 61,061 (2016). The October 2017 Order also consolidated Docket Nos. EL16-99-000 and EL18-18-000.

    The refund effective date in Docket No. EL18-18-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the Federal Register.

    Any interested person desiring to be heard in Docket No. EL18-18-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214, within 21 days of the date of issuance of the order.

    Dated: October 19, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-23296 Filed 10-25-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL18-12-000] ATX Southwest, LLC; Notice of Institution of Section 206 Proceeding and Refund Effective Date

    On October 19, 2017, the Commission issued an order in Docket No. EL18-12-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation into whether the formula rate protocols of ATX Southwest, LLC may be unjust, unreasonable, unduly discriminatory or preferential. ATX Southwest, LLC, 161 FERC 61,049 (2017).

    The refund effective date in Docket No. EL18-12-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the Federal Register.

    Any interested person desiring to be heard in Docket No. EL18-12-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214, within 21 days of the date of issuance of the order.

    Dated: October 19, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-23288 Filed 10-25-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings

    Take notice that the Commission has received the following Natural Gas Pipeline Rate and Refund Report filings:

    Filings Instituting Proceedings

    Docket Numbers: RP17-1103-001.

    Applicants: Transcontinental Gas Pipe Line Company, LLC.

    Description: Tariff Amendment: Virginia Southside Expansion Project II Initial Rates Amended to be effective 12/1/2017.

    Filed Date: 10/17/17.

    Accession Number: 20171017-5178.

    Comments Due: 5 p.m. ET 10/30/17.

    Docket Numbers: RP18-37-000.

    Applicants: Equitrans, L.P.

    Description: Compliance filing Notice Regarding Non-Jurisdictional Gathering Facilities (F-1006 F-1008 F-1009).

    Filed Date: 10/17/17.

    Accession Number: 20171017-5127.

    Comments Due: 5 p.m. ET 10/30/17.

    Docket Numbers: RP18-38-000.

    Applicants: Great Lakes Gas Transmission Limited Partnership.

    Description: § 4(d) Rate Filing: Language Revision and Updates to be effective 11/18/2017.

    Filed Date: 10/17/17.

    Accession Number: 20171017-5139.

    Comments Due: 5 p.m. ET 10/30/17.

    Docket Numbers: RP18-39-000.

    Applicants: Natural Gas Pipeline Company of America LLC.

    Description: § 4(d) Rate Filing: Shell Energy North America-NRA Filing to be effective 10/18/2017.

    Filed Date: 10/17/17.

    Accession Number: 20171017-5163.

    Comments Due: 5 p.m. ET 10/30/17.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and § 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: October 18, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-23283 Filed 10-25-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL18-13-000] Transource Kansas, LLC; Notice of Institution of Section 206 Proceeding and Refund Effective Date

    On October 19, 2017, the Commission issued an order in Docket No. EL18-13-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation into whether the formula rate protocols of Transource Kansas, LLC may be unjust, unreasonable, unduly discriminatory or preferential. Transource Kansas, LLC, 161 FERC 61,050 (2017).

    The refund effective date in Docket No. EL18-13-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the Federal Register.

    Any interested person desiring to be heard in Docket No. EL18-13-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214, within 21 days of the date of issuance of the order.

    Dated: October 19, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-23292 Filed 10-25-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #2

    Take notice that the Commission received the following exempt wholesale generator filings:

    Docket Numbers: EG18-8-000.

    Applicants: 54KR 8ME LLC.

    Description: Notice of Self-Certification of Exempt Wholesale Generator Status of 54KR 8me LLC.

    Filed Date: 10/19/17.

    Accession Number: 20171019-5108.

    Comments Due: 5 p.m. ET 11/9/17.

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER18-7-001.

    Applicants: Lamarr Energy, LLC.

    Description: Tariff Amendment: Market Based Rate Tariff to be effective 12/1/2017.

    Filed Date: 10/19/17.

    Accession Number: 20171019-5079.

    Comments Due: 5 p.m. ET 11/9/17.

    Docket Numbers: ER18-7-002.

    Applicants: Lamarr Energy, LLC.

    Description: Tariff Amendment: Market Based Rate Tariff to be effective 12/1/2017.

    Filed Date: 10/19/17.

    Accession Number: 20171019-5099.

    Comments Due: 5 p.m. ET 11/9/17.

    Docket Numbers: ER18-103-000.

    Applicants: 67RK 8me LLC.

    Description: § 205(d) Rate Filing: SFA to be effective 10/20/2017.

    Filed Date: 10/19/17.

    Accession Number: 20171019-5034.

    Comments Due: 5 p.m. ET 11/9/17.

    Docket Numbers: ER18-104-000.

    Applicants: 67RK 8me LLC.

    Description: § 205(d) Rate Filing: Co-Tenancy Agreement to be effective 10/20/2017.

    Filed Date: 10/19/17.

    Accession Number: 20171019-5035.

    Comments Due: 5 p.m. ET 11/9/17.

    Docket Numbers: ER18-105-000.

    Applicants: 65HK 8me LLC.

    Description: § 205(d) Rate Filing: 65HK 8me LLC Hayworth SFA to be effective 10/20/2017.

    Filed Date: 10/19/17.

    Accession Number: 20171019-5036.

    Comments Due: 5 p.m. ET 11/9/17.

    Docket Numbers: ER18-106-000.

    Applicants: 87RL 8me LLC.

    Description: § 205(d) Rate Filing: 87RL 8me LLC Woodmere SFA to be effective 10/20/2017.

    Filed Date: 10/19/17.

    Accession Number: 20171019-5037.

    Comments Due: 5 p.m. ET 11/9/17.

    Docket Numbers: ER18-107-000.

    Applicants: 65HK 8me LLC.

    Description: § 205(d) Rate Filing: 65HK 8me LLC Hayworth Co-Tenancy Agreement to be effective 10/20/2017.

    Filed Date: 10/19/17.

    Accession Number: 20171019-5038.

    Comments Due: 5 p.m. ET 11/9/17.

    Docket Numbers: ER18-108-000.

    Applicants: 87RL 8me LLC.

    Description: § 205(d) Rate Filing: 87RL 8me LLC Woodmere Co-Tenancy Agreement to be effective 10/20/2017.

    Filed Date: 10/19/17.

    Accession Number: 20171019-5039.

    Comments Due: 5 p.m. ET 11/9/17.

    Docket Numbers: ER18-109-000.

    Applicants: Nevada Power Company.

    Description: Tariff Cancellation: Rate Schedule No. 153 NPC/Aha Macav Termination to be effective 10/20/2017.

    Filed Date: 10/19/17.

    Accession Number: 20171019-5083.

    Comments Due: 5 p.m. ET 11/9/17.

    Docket Numbers: ER18-110-000.

    Applicants: Duke Energy Progress, LLC.

    Description: § 205(d) Rate Filing: DEP Five Towns Pro Forma NITSA Filing to be effective 1/1/2018.

    Filed Date: 10/19/17.

    Accession Number: 20171019-5098.

    Comments Due: 5 p.m. ET 11/9/17.

    Docket Numbers: ER18-111-000.

    Applicants: The United Illuminating Company.

    Description: § 205(d) Rate Filing: Pootatuck Ring Bus Expansion Agreement to be effective 10/20/2017.

    Filed Date: 10/19/17.

    Accession Number: 20171019-5111.

    Comments Due: 5 p.m. ET 11/9/17.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: October 19, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-23285 Filed 10-25-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. ER18-97-000] MS Solar 3, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization

    This is a supplemental notice in the above-referenced proceeding MS Solar 3, LLC`s application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.

    Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.

    Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is November 8, 2017.

    The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests.

    Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426.

    The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected] or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: October 19, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-23297 Filed 10-25-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL18-14-000] Midwest Power Transmission Arkansas, LLC; Notice of Institution of Section 206 Proceeding and Refund Effective Date

    On October 19, 2017, the Commission issued an order in Docket No. EL18-14-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation into whether the formula rate protocols of Midwest Power Transmission Arkansas, LLC may be unjust, unreasonable, unduly discriminatory or preferential. Midwest Power Transmission Arkansas, LLC, 161 FERC 61,051 (201X).

    The refund effective date in Docket No. EL18-14-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the Federal Register.

    Any interested person desiring to be heard in Docket No. EL18-14-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214, within 21 days of the date of issuance of the order.

    Dated: October 19, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-23293 Filed 10-25-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL18-17-000] Midcontinent Independent System Operator, Inc.; Notice of Institution of Section 206 Proceeding and Refund Effective Date

    On October 19, 2017, the Commission issued an order in Docket No. EL18-17-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation into whether the Open Access Transmission, Energy and Operating Reserve Markets Tariff of Midcontinent Independent System Operator, Inc. may be unjust, unreasonable, unduly discriminatory or preferential. Midcontinent Indep. Sys. Operator, Inc., 161 FERC 61,076 (2017).

    The refund effective date in Docket No. EL18-17-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the Federal Register.

    Any interested person desiring to be heard in Docket No. EL18-17-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214, within 21 days of the date of issuance of the order.

    Dated: October 19, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-23295 Filed 10-25-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission Combined Notice of Filings #1

    Take notice that the Commission received the following electric corporate filings:

    Docket Numbers: EC18-6-000.

    Applicants: V3 Commodities Group, LLC.

    Description: Application for Authorization under Section 203 of the Federal Power Act, and Requests for Waivers of Filing Requirements, Expedited Review and Confidential Treatment of V3 Commodities Group, LLC.

    Filed Date: 10/18/17.

    Accession Number: 20171018-5191.

    Comments Due: 5 p.m. ET 11/8/17.

    Take notice that the Commission received the following electric rate filings:

    Docket Numbers: ER13-343-008; ER13-342-012; ER16-700-001; ER16-701-001.

    Applicants: CPV Shore, LLC, CPV Maryland, LLC, CPV Towantic, LLC, CPV Valley, LLC.

    Description: Supplement to June 30, 2017 Market Power Update of CPV Maryland, LLC, et. al.

    Filed Date: 10/18/17.

    Accession Number: 20171018-5183.

    Comments Due: 5 p.m. ET 11/1/17.

    Docket Numbers: ER15-2735-001.

    Applicants: Garrison Energy Center LLC.

    Description: Report Filing: Refund Report—Informational Filing to be effective N/A.

    Filed Date: 10/18/17.

    Accession Number: 20171018-5145.

    Comments Due: 5 p.m. ET 11/8/17.

    Docket Numbers: ER17-2210-000.

    Applicants: Duke Energy Carolinas, LLC.

    Description: Report Filing: DEC-SCEG Refund Report to be effective N/A.

    Filed Date: 10/18/17.

    Accession Number: 20171018-5158.

    Comments Due: 5 p.m. ET 11/8/17.

    Docket Numbers: ER18-99-000.

    Applicants: Southwest Power Pool, Inc.

    Description: § 205(d) Rate Filing: South Central MCN LLC Formula Rate to be effective 12/31/9998.

    Filed Date: 10/18/17.

    Accession Number: 20171018-5171.

    Comments Due: 5 p.m. ET 11/8/17.

    Docket Numbers: ER18-100-000.

    Applicants: Wisconsin Power and Light Company.

    Description: § 205(d) Rate Filing: WPL—ACEC Wholesale Power Agreement to be effective 6/1/2020.

    Filed Date: 10/18/17.

    Accession Number: 20171018-5173.

    Comments Due: 5 p.m. ET 11/8/17.

    Docket Numbers: ER18-101-000.

    Applicants: Wisconsin Power and Light Company.

    Description: § 205(d) Rate Filing: WPL—CWEC Wholesale Power Agreement to be effective 6/1/2020.

    Filed Date: 10/18/17.

    Accession Number: 20171018-5174.

    Comments Due: 5 p.m. ET 11/8/17.

    Docket Numbers: ER18-102-000.

    Applicants: Wisconsin Power and Light Company.

    Description: § 205(d) Rate Filing: WPL—REC Wholesale Power Agreement to be effective 6/1/2020.

    Filed Date: 10/18/17.

    Accession Number: 20171018-5175.

    Comments Due: 5 p.m. ET 11/8/17.

    The filings are accessible in the Commission's eLibrary system by clicking on the links or querying the docket number.

    Any person desiring to intervene or protest in any of the above proceedings must file in accordance with Rules 211 and 214 of the Commission's Regulations (18 CFR 385.211 and 385.214) on or before 5:00 p.m. Eastern time on the specified comment date. Protests may be considered, but intervention is necessary to become a party to the proceeding.

    eFiling is encouraged. More detailed information relating to filing requirements, interventions, protests, service, and qualifying facilities filings can be found at: http://www.ferc.gov/docs-filing/efiling/filing-req.pdf. For other information, call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: October 19, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-23284 Filed 10-25-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. ER18-95-000] Buchanan Energy Services Company, LLC; Supplemental Notice That Initial Market-Based Rate Filing Includes Request for Blanket Section 204 Authorization

    This is a supplemental notice in the above-referenced proceeding Buchanan Energy Services Company, LLC's application for market-based rate authority, with an accompanying rate tariff, noting that such application includes a request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability.

    Any person desiring to intervene or to protest should file with the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426, in accordance with Rules 211 and 214 of the Commission's Rules of Practice and Procedure (18 CFR 385.211 and 385.214). Anyone filing a motion to intervene or protest must serve a copy of that document on the Applicant.

    Notice is hereby given that the deadline for filing protests with regard to the applicant's request for blanket authorization, under 18 CFR part 34, of future issuances of securities and assumptions of liability, is November 8, 2017.

    The Commission encourages electronic submission of protests and interventions in lieu of paper, using the FERC Online links at http://www.ferc.gov. To facilitate electronic service, persons with Internet access who will eFile a document and/or be listed as a contact for an intervenor must create and validate an eRegistration account using the eRegistration link. Select the eFiling link to log on and submit the intervention or protests.

    Persons unable to file electronically should submit an original and 5 copies of the intervention or protest to the Federal Energy Regulatory Commission, 888 First Street, NE., Washington, DC 20426.

    The filings in the above-referenced proceeding are accessible in the Commission's eLibrary system by clicking on the appropriate link in the above list. They are also available for electronic review in the Commission's Public Reference Room in Washington, DC. There is an eSubscription link on the Web site that enables subscribers to receive email notification when a document is added to a subscribed docket(s). For assistance with any FERC Online service, please email [email protected] or call (866) 208-3676 (toll free). For TTY, call (202) 502-8659.

    Dated: October 19, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-23290 Filed 10-25-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL18-15-000] Kanstar Transmission, LLC; Notice of Institution of Section 206 Proceeding and Refund Effective Date

    On October 19, 2017, the Commission issued an order in Docket No. EL18-15-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation into whether the formula rate protocols of Kanstar Transmission, LLC may be unjust, unreasonable, unduly discriminatory or preferential. Kanstar Transmission, LLC, 161 FERC 61,052 (2017).

    The refund effective date in Docket No. EL18-15-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the Federal Register.

    Any interested person desiring to be heard in Docket No. EL18-15-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214, within 21 days of the date of issuance of the order.

    Dated: October 19, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-23289 Filed 10-25-17; 8:45 am] BILLING CODE 6717-01-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission [Docket No. EL18-16-000] South Central MCN LLC; Notice of Institution of Section 206 Proceeding and Refund Effective Date

    On October 19, 2017, the Commission issued an order in Docket No. EL18-16-000, pursuant to section 206 of the Federal Power Act (FPA), 16 U.S.C. 824e (2012), instituting an investigation into whether the formula rate protocols of South Central MCN LLC may be unjust, unreasonable, unduly discriminatory or preferential. South Central MCN LLC, 161 FERC 61,053 (2017).

    The refund effective date in Docket No. EL18-16-000, established pursuant to section 206(b) of the FPA, will be the date of publication of this notice in the Federal Register.

    Any interested person desiring to be heard in Docket No. EL18-16-000 must file a notice of intervention or motion to intervene, as appropriate, with the Federal Energy Regulatory Commission, 888 First Street NE., Washington, DC 20426, in accordance with Rule 214 of the Commission's Rules of Practice and Procedure, 18 CFR 385.214, within 21 days of the date of issuance of the order.

    Dated: October 19, 2017. Nathaniel J. Davis, Sr., Deputy Secretary.
    [FR Doc. 2017-23294 Filed 10-25-17; 8:45 am] BILLING CODE 6717-01-P
    ENVIRONMENTAL PROTECTION AGENCY [FRL-9969-90-Region 1] 2017 Fall Joint Meeting of the Ozone Transport Commission and the Mid-Atlantic Northeast Visibility Union AGENCY:

    Environmental Protection Agency.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The United States Environmental Protection Agency is announcing the joint 2017 Fall Meeting of the Ozone Transport Commission (OTC) and the Mid-Atlantic Northeast Visibility Union (MANE-VU). The meeting agenda will include topics regarding reducing ground-level ozone precursors and matters relative to Regional Haze and visibility improvement in Federal Class I areas in a multi-pollutant context.

    DATES:

    The meeting will be held on November 15, 2017 starting at 9:15 a.m. and ending at 4:00 p.m.

    ADDRESSES:

    Location: Melrose Georgetown Hotel, 2430 Pennsylvania Avenue NW., Washington, DC 20037, 202-955-6400.

    FOR FURTHER INFORMATION CONTACT:

    For documents and press inquiries contact: Ozone Transport Commission, 444 North Capitol Street NW., Suite 322, Washington, DC 20001; (202) 508-3840; email: [email protected]; Web site: http://www.otcair.org.

    SUPPLEMENTARY INFORMATION:

    The Clean Air Act Amendments of 1990 contain at Section 184 provisions for the Control of Interstate Ozone Air Pollution. Section 184(a) establishes an Ozone Transport Region (OTR) comprised of the States of Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, parts of Virginia and the District of Columbia. The purpose of the OTC is to deal with ground-level ozone formation, transport, and control within the OTR.

    The Mid-Atlantic/Northeast Visibility Union (MANE-VU) was formed at in 2001, in response to EPA's issuance of the Regional Haze rule. MANE-VU's members include: Connecticut, Delaware, the District of Columbia, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, Vermont, the Penobscot Indian Nation, the St. Regis Mohawk Tribe along with EPA and Federal Land Managers.

    Type of Meeting: Open.

    Agenda: Copies of the final agenda will be available from the OTC office (202) 508-3840; by email: [email protected] or via the OTC Web site at http://www.otcair.org.

    Dated: October 4, 2017. Deborah Szaro, Acting Regional Administrator, Region I.
    [FR Doc. 2017-23242 Filed 10-25-17; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION [OMB 3060-0848] Information Collection Being Reviewed by the Federal Communications Commission AGENCY:

    Federal Communications Commission.

    ACTION:

    Notice and request for comments.

    SUMMARY:

    As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995, the Federal Communications Commission (FCC or the Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collection. Comments are requested concerning: Whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees. The FCC may not conduct or sponsor a collection of information unless it displays a currently valid control number. No person shall be subject to any penalty for failing to comply with a collection of information subject to the PRA that does not display a valid Office of Management and Budget (OMB) control number.

    DATES:

    Written PRA comments should be submitted on or before December 26, 2017. If you anticipate that you will be submitting comments, but find it difficult to do so within the period of time allowed by this notice, you should advise the contact listed below as soon as possible.

    ADDRESSES:

    Direct all PRA comments to Nicole Ongele, FCC, via email [email protected] and to [email protected].

    FOR FURTHER INFORMATION CONTACT:

    For additional information about the information collection, contact Nicole Ongele at (202) 418-2991.

    SUPPLEMENTARY INFORMATION:

    As part of its continuing effort to reduce paperwork burdens, and as required by the Paperwork Reduction Act (PRA) of 1995 (44 U.S.C. 3501-3520), the Federal Communications Commission (FCC or Commission) invites the general public and other Federal agencies to take this opportunity to comment on the following information collections. Comments are requested concerning: whether the proposed collection of information is necessary for the proper performance of the functions of the Commission, including whether the information shall have practical utility; the accuracy of the Commission's burden estimate; ways to enhance the quality, utility, and clarity of the information collected; ways to minimize the burden of the collection of information on the respondents, including the use of automated collection techniques or other forms of information technology; and ways to further reduce the information collection burden on small business concerns with fewer than 25 employees.

    OMB Control Number: 3060-0848.

    Title: Deployment of Wireline Services Offering Advanced Telecommunications Capability, CC Docket No. 98-147.

    Form Number: N/A.

    Type of Review: Extension of a currently approved collection.

    Respondents: Business or other for-profit.

    Number of Respondents and Responses: 750 respondents; 9,270 responses.

    Estimated Time per Response: 3.54 hours (average burden per response).

    Frequency of Response: On occasion reporting requirement, recordkeeping requirement and third-party disclosure requirement.

    Obligation to Respond: Required to obtain or retain benefits. Statutory authority for this information collection is contained in 47 U.S.C. 201 and 251 of the Communications Act of 1934, as amended.

    Total Annual Burden: 32,845 hours.

    Total Annual Cost: No cost.

    Privacy Act Impact Assessment: No impact(s).

    Nature and Extent of Confidentiality: The Commission is not requesting respondents to submit confidential information. Any respondent that submits information to the Commission that they believe is confidential may request confidential treatment of such information under 47 CFR 0.459 of the Commission's rules.

    Needs and Uses: The information collection requirements implement sections 201 and 251 of the Communications Act of 1934, as amended, to provide for physical collocation on rates, terms and conditions that are just, reasonable and nondiscriminatory, and to promote deployment of advanced telecommunications services without significantly degrading the performance of other services. All of the requirements will be used by the Commission and competitive local exchange carriers (LECs) to facilitate the deployment of telecommunications services, including advanced telecommunications services.

    Federal Communications Commission. Katura Jackson, Federal Register Liaison Officer, Office of the Secretary.
    [FR Doc. 2017-23216 Filed 10-25-17; 8:45 am] BILLING CODE 6712-01-P
    FEDERAL RESERVE SYSTEM Proposed Agency Information Collection Activities; Comment Request AGENCY:

    Board of Governors of the Federal Reserve System.

    ACTION:

    Revision to proposal.

    SUMMARY:

    The Board of Governors of the Federal Reserve System (Board or Federal Reserve) is modifying its proposal to extend for three years, with revision, the Banking Organization Systemic Risk Report (FR Y-15; OMB No. 7100-0352). The Board is extending the proposed implementation date for the proposed revisions to the FR Y-15 from December 31, 2017, to March 31, 2018. The Board is also reopening the public comment period for the proposal by 30 days, so that the comment period ends on November 23, 2017.

    DATES:

    The proposed collection of information is amended effective October 18, 2017 and the public comment period shall terminate on November 23, 2017.

    FOR FURTHER INFORMATION CONTACT:

    A copy of the PRA OMB submission, including the proposed reporting form and instructions, supporting statement, and other documentation will be placed into OMB's public docket files, once approved. These documents will also be made available on the Board's public Web site at: http://www.federalreserve.gov/apps/reportforms/review.aspx or may be requested from the agency clearance officer, whose name appears below.

    Federal Reserve Board Clearance Officer—Nuha Elmaghrabi—Office of the Chief Data Officer, Board of Governors of the Federal Reserve System, Washington, DC 20551, (202) 452-3829. Telecommunications Device for the Deaf (TDD) users may contact (202) 263-4869, Board of Governors of the Federal Reserve System, Washington, DC 20551.

    SUPPLEMENTARY INFORMATION:

    On August 24, 2017, the Board invited public comment on a proposal that would extend for three years the FR Y-15 and make certain revisions to the report (FR Y-15 proposal). As revised, the report would include Mexican pesos in total payments activity rather than as a memorandum item; add securities brokers to the definition of financial institutions; expressly include derivative transactions where a clearing member bank guarantees the performance of a client to a central counterparty; and, specify how certain cleared derivatives transactions are reported.1 As initially proposed, these revisions to the FR Y-15 would have been effective for reports reflecting a December 31, 2017, as-of date. The comment period for the FR Y-15 proposal was previously scheduled to end on October 23, 2017.

    1See 82 FR 40154 (August 24, 2017).

    The Board has received feedback that additional time may be required for affected banking organizations to analyze the impact of, and to provide comments on, the FR Y-15 changes being proposed.

    In response to the feedback, this notice hereby reopens the public comment period for the FR Y-15 proposal by 30 days, with comments due November 23, 2017, to provide additional time for comment.

    This notice also amends the proposed implementation date of the FR Y-15 proposal such that the proposed changes would be effective for reports reflecting the March 31, 2018, as-of date. This revision would provide respondents with an additional 90 days to prepare their systems to reflect any changes to the FR Y-15 that the Board may adopt after reviewing the comments received.

    Board of Governors of the Federal Reserve System, October 23, 2017. Ann E. Misback, Secretary of the Board.
    [FR Doc. 2017-23271 Filed 10-25-17; 8:45 am] BILLING CODE 6210-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention Advisory Council for the Elimination of Tuberculosis Meeting AGENCY:

    Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).

    ACTION:

    Notice of meeting.

    SUMMARY:

    In accordance with the Federal Advisory Committee Act, the Centers for Disease Control and Prevention (CDC) announces the following meeting of the Advisory Council for the Elimination of Tuberculosis (ACET). This meeting is open to the public, limited only by 100 room seating and 100 ports for audio phone lines. Time will be available for public comment. Comments should be submitted in writing by email to the contact person listed below. The deadline for receipt is Monday, December 4, 2017. Persons who desire to make an oral statement, may request it at the time of the public comment period on December 12, 2017 at 11:40 a.m. EST. This meeting is also accessible by teleconference: 1-877-927-1433 and participant passcode: 12016435.

    DATES:

    The meeting will be held on December 11, 2017, 8:30 a.m. to 4:30 p.m., EST and December 12, 2017, 8:30 a.m. to 12:00 p.m., EST.

    ADDRESSES:

    CDC Corporate Square Campus, 8 Corporate Square Boulevard, Atlanta, Georgia 30329.

    FOR FURTHER INFORMATION CONTACT:

    Margie Scott-Cseh, Committee Management Specialist, CDC, 1600 Clifton Road NE., Mailstop: E-07, Atlanta, Georgia 30329, telephone (404) 639-8317; [email protected]

    SUPPLEMENTARY INFORMATION:

    Purpose: This Council advises and makes recommendations to the Secretary of Health and Human Services, the Assistant Secretary for Health, and the Director, CDC, regarding the elimination of tuberculosis. Specifically, the Council makes recommendations regarding policies, strategies, objectives, and priorities; addresses the development and application of new technologies; and reviews the extent to which progress has been made toward eliminating tuberculosis.

    Matters To Be Considered: The agenda will include discussions on (1) Update on preliminary tuberculosis funding formula; (2) Update on whole genome sequencing data sharing plan; (3) Update on three-month Isoniazid/Rifapentine Regimen (3HP) guidelines; and (4) Updates from ACET workgroups. Agenda items are subject to change as priorities dictate.

    The Director, Management Analysis and Services Office, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities, for both the Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry.

    Claudette Grant, Acting Director, Management Analysis and Services Office, Centers for Disease Control and Prevention.
    [FR Doc. 2017-23335 Filed 10-25-17; 8:45 am] BILLING CODE 4163-18-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention Board of Scientific Counselors, Office of Infectious Diseases (BSC, OID) AGENCY:

    Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).

    ACTION:

    Notice of meeting.

    SUMMARY:

    In accordance with the Federal Advisory Committee Act, the Centers for Disease Control and Prevention (CDC), announces the following meeting for the Board of Scientific Counselors, Office of Infectious Diseases (BSC, OID). This meeting is open to the public, limited only by the space available; the meeting room will accommodate up to 100 people. The public is also welcome to listen to the meeting by telephone, limited only by the number of ports available (50); the toll-free dial-in number is 1-877-951-7311, with a pass code of 2208740.

    DATES:

    The meeting will be held on December 6, 2017, 8:30 a.m. to 5:00 p.m., EST, and December 7, 2017, 8:30 a.m. to 12:00 p.m., EST.

    ADDRESSES:

    CDC, Global Communications Center, 1600 Clifton Road NE., Building 19, Auditorium B3, Atlanta, Georgia 30329; also 1-877-951-7311, with a pass code of 2208740.

    FOR FURTHER INFORMATION CONTACT:

    Robin Moseley, MAT, Designated Federal Officer, OID, CDC, 1600 Clifton Road NE., Mailstop D10, Atlanta, Georgia 30329, Telephone (404) 639-4461; [email protected]

    SUPPLEMENTARY INFORMATION:

    Purpose: The BSC, OID, provides advice and guidance to the Secretary, Department of Health and Human Services; the Director, CDC; the Director, OID; and the Directors of the National Center for Immunization and Respiratory Diseases, the National Center for Emerging and Zoonotic Infectious Diseases, and the National Center for HIV/AIDS, Viral Hepatitis, STD, and TB Prevention, CDC, in the following areas: Strategies, goals, and priorities for programs; research within the national centers; and overall strategic direction and focus of OID and the national centers.

    Matters To Be Considered: The agenda will include discussions on priority issues for the national centers, including foodborne infections, advanced molecular detection, antimicrobial resistance, sexually transmitted diseases, and vaccination coverage. A report back from the Board's Food Safety Modernization Act Surveillance Working Group will also be given. Agenda items are subject to change as priorities dictate.

    The Director, Management Analysis and Services Office, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities, for both the Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry.

    Claudette Grant Acting Director, Management Analysis and Services Office, Centers for Disease Control and Prevention .
    [FR Doc. 2017-23336 Filed 10-25-17; 8:45 am] BILLING CODE 4163-19-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention Advisory Board on Radiation and Worker Health (ABRWH or the Advisory Board), National Institute for Occupational Safety and Health (NIOSH); Meeting AGENCY:

    Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).

    ACTION:

    Notice of meeting.

    SUMMARY:

    In accordance with section 10(a)(2) of the Federal Advisory Committee Act, the Centers for Disease Control and Prevention (CDC), announces the following meeting of the Advisory Board on Radiation and Worker Health (ABRWH). This meeting is open to the public, limited only by the space available. The meeting space accommodates approximately 150 people. The public is welcome to submit written comments in advance of the meeting, to the contact person below. Written comments received in advance of the meeting will be included in the official record of the meeting. The public is also welcome to listen to the meeting by joining the teleconference at the USA toll-free, dial-in number at 1-866-659-0537; the pass code is 9933701. The conference line has 150 ports for callers. The Web conference by which the public can view presentations as they are presented is https://webconf.cdc.gov/zab6/yzdq02pl?sl=1.

    DATES:

    The meeting will be held on December 13 from 8:15 to 6:00 p.m. Mountain Time and December 14, 2017, 8:15 a.m. to 11:00 a.m. Mountain Time. A public comment session will begin on December 13 at 6:00 p.m. Mountain Time and conclude at 7:00 p.m. or following the final call for public comment, whichever comes first.

    ADDRESSES:

    Doubletree by Hilton Albuquerque, 201 Marquette Avenue Northwest, Albuquerque, New Mexico 87102; Phone: (505) 247-7057, Fax: (505) 247-7017. Audio conference call via FTS Conferencing. The USA toll-free dial-in number is 1-866-659-0537; the pass code is 9933701. Web conference by Skype: Meeting CONNECTION: https://webconf.cdc.gov/zab6/yzdq02pl?sl=1.

    FOR FURTHER INFORMATION CONTACT:

    Theodore Katz, MPA, Designated Federal Officer, NIOSH, CDC, 1600 Clifton Road, Mailstop E-20, Atlanta, Georgia 30333, Telephone (513) 533-6800, Toll Free 1 (800) CDC-INFO, Email [email protected]

    SUPPLEMENTARY INFORMATION:

    Background: The Advisory Board was established under the Energy Employees Occupational Illness Compensation Program Act of 2000 to advise the President on a variety of policy and technical functions required to implement and effectively manage the new compensation program. Key functions of the Advisory Board include providing advice on the development of probability of causation guidelines which have been promulgated by the Department of Health and Human Services (HHS) as a final rule, advice on methods of dose reconstruction which have also been promulgated by HHS as a final rule, advice on the scientific validity and quality of dose estimation and reconstruction efforts being performed for purposes of the compensation program, and advice on petitions to add classes of workers to the Special Exposure Cohort (SEC). In December 2000, the President delegated responsibility for funding, staffing, and operating the Advisory Board to HHS, which subsequently delegated this authority to the CDC. NIOSH implements this responsibility for CDC. The charter was issued on August 3, 2001, renewed at appropriate intervals, rechartered on March 22, 2016 pursuant to Executive Order 13708, and will expire on September 30, 2019.

    Purpose: This Advisory Board is charged with (a) providing advice to the Secretary, HHS, on the development of guidelines under Executive Order 13179; (b) providing advice to the Secretary, HHS, on the scientific validity and quality of dose reconstruction efforts performed for this program; and (c) upon request by the Secretary, HHS, advising the Secretary on whether there is a class of employees at any Department of Energy facility who were exposed to radiation but for whom it is not feasible to estimate their radiation dose, and on whether there is reasonable likelihood that such radiation doses may have endangered the health of members of this class.

    Matters to be Considered: The agenda will include discussions on: NIOSH Program Update; Department of Labor Program Update; Department of Energy Program Update; SEC Petitions Update; dose reconstruction review methods; review of methods for estimating co-worker radiation doses; possible discussions of Site Profile reviews for Weldon Spring Plant (Weldon Spring, Missouri) and Pacific Proving Grounds (Marshall Islands); the SEC petition for Savannah River Site (1973-2007; Aiken, South Carolina), and possibly one or more of the following SEC petitions: Idaho National Laboratory (1963-1970; Scoville, Idaho), Area IV of Santa Susanna Field Laboratory (1991-1993; Ventura County, California), Ames Laboratory (1971—undetermined ending date; Ames, Iowa); and Board Work Sessions. Agenda items are subject to change as priorities dictate.

    The Director, Management Analysis and Services Office, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities, for both the Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry.

    Claudette Grant, Acting Director, Management Analysis and Services Office, Centers for Disease Control and Prevention.
    [FR Doc. 2017-23333 Filed 10-25-17; 8:45 am] BILLING CODE 4163-19-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Disease Control and Prevention Advisory Committee to the Director (ACD), Centers for Disease Control and Prevention (CDC)—State, Tribal, Local and Territorial (STLT) Subcommittee AGENCY:

    Centers for Disease Control and Prevention (CDC), Department of Health and Human Services (HHS).

    ACTION:

    Notice of meeting.

    SUMMARY:

    In accordance with the Federal Advisory Committee Act, the Centers for Disease Control and Prevention (CDC), announces the following meeting for the State, Tribal, Local and Territorial Subcommittee, Centers for Disease Control and Prevention (STLT, CDC). This meeting is open to the public, limited only by 100 ports for audio phone lines access available. The public is also welcome to listen to the meeting by (866) 917-2712, passcode 9418625. The public comment period is from 03:50 p.m.-03:55 p.m. EST. Please register for public comment by December 8, 2017 via email to [email protected].

    DATES:

    The meeting will be held on December 18, 2017, 2:30 p.m. to 4:00 p.m., EST.

    ADDRESSES:

    Audio Line Access Only (866) 917-2712, passcode 9418625.

    FOR FURTHER INFORMATION CONTACT:

    Jose Montero, MD, MPH, Director, Office for State, Tribal, Local and Territorial Support, CDC, 4770 Buford Highway, Mailstop E70, Atlanta, Georgia 30341, (404) 498-0300, [email protected]

    SUPPLEMENTARY INFORMATION:

    Purpose: The Subcommittee will provide counsel to the ACD, CDC on strategies, future needs, and challenges faced by State, Tribal, Local and Territorial health agencies, and will provide guidance on opportunities for CDC through the ACD.

    Matters To Be Considered: The agenda will include discussions on implementation of ACD-adopted recommendations related to the health department of the future, additional developments that may expand these recommendations, and how CDC can best support STLT health departments. Agenda items are subject to change as priorities dictate.

    The Director, Management Analysis and Services Office, has been delegated the authority to sign Federal Register notices pertaining to announcements of meetings and other committee management activities, for both the Centers for Disease Control and Prevention and the Agency for Toxic Substances and Disease Registry.

    Claudette Grant, Acting Director, Management Analysis and Services Office, Centers for Disease Control and Prevention.
    [FR Doc. 2017-23334 Filed 10-25-17; 8:45 am] BILLING CODE 4163-18-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services [Document Identifiers: CMS-10114 and CMS-417] Agency Information Collection Activities: Submission for OMB Review; Comment Request AGENCY:

    Centers for Medicare & Medicaid Services, HHS.

    ACTION:

    Notice.

    SUMMARY:

    The Centers for Medicare & Medicaid Services (CMS) is announcing an opportunity for the public to comment on CMS' intention to collect information from the public. Under the Paperwork Reduction Act of 1995 (PRA), federal agencies are required to publish notice in the Federal Register concerning each proposed collection of information, including each proposed extension or reinstatement of an existing collection of information, and to allow a second opportunity for public comment on the notice. Interested persons are invited to send comments regarding the burden estimate or any other aspect of this collection of information, including the necessity and utility of the proposed information collection for the proper performance of the agency's functions, the accuracy of the estimated burden, ways to enhance the quality, utility, and clarity of the information to be collected; and the use of automated collection techniques or other forms of information technology to minimize the information collection burden.

    DATES:

    Comments on the collection(s) of information must be received by the OMB desk officer by November 27, 2017.

    ADDRESSES:

    When commenting on the proposed information collections, please reference the document identifier or OMB control number. To be assured consideration, comments and recommendations must be received by the OMB desk officer via one of the following transmissions: OMB, Office of Information and Regulatory Affairs, Attention: CMS Desk Officer, Fax Number: (202) 395-5806 OR, Email: OIRA_ [email protected].

    To obtain copies of a supporting statement and any related forms for the proposed collection(s) summarized in this notice, you may make your request using one of following:

    1. Access CMS' Web site address at Web site address at https://www.cms.gov/Regulations-and-Guidance/Legislation/PaperworkReductionActof1995/PRA-Listing.html.

    2. Email your request, including your address, phone number, OMB number, and CMS document identifier, to [email protected]

    3. Call the Reports Clearance Office at (410) 786-1326.

    FOR FURTHER INFORMATION CONTACT:

    William Parham at (410) 786-4669.

    SUPPLEMENTARY INFORMATION:

    Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501-3520), federal agencies must obtain approval from the Office of Management and Budget (OMB) for each collection of information they conduct or sponsor. The term “collection of information” is defined in 44 U.S.C. 3502(3) and 5 CFR 1320.3(c) and includes agency requests or requirements that members of the public submit reports, keep records, or provide information to a third party. Section 3506(c)(2)(A) of the PRA (44 U.S.C. 3506(c)(2)(A)) requires federal agencies to publish a 30-day notice in the Federal Register concerning each proposed collection of information, including each proposed extension or reinstatement of an existing collection of information, before submitting the collection to OMB for approval. To comply with this requirement, CMS is publishing this notice that summarizes the following proposed collection(s) of information for public comment:

    1. Type of Information Collection Request: Extension of a currently approved collection;

    Title of Information Collection: National Provider Identifier (NPI) Application and Update Form and Supporting Regulations in 45 CFR 142.408, 45 CFR 162.406, 45 CFR 162.408; Use: The National Provider Identifier Application and Update Form is used by health care providers to apply for NPIs and furnish updates to the information they supplied on their initial applications. The form is also used to deactivate their NPIs if necessary. The original application form was approved in February 2005 and has been in use since May 23, 2005. The form is available on paper or can be completed via a web-based process. Health care providers can mail a paper application, complete the application via the web-based process via the National Plan and Provider Enumeration System (NPPES), or have a trusted organization submit the application on their behalf via the Electronic File Interchange (EFI) process. The Enumerator uses the NPPES to process the application and generate the NPI. NPPES is the Medicare contractor tasked with issuing NPIs, and maintaining and storing NPI data. Form Number: CMS-10114 (OMB control number: 0938-0931); Frequency: On occasion; Affected Public: Business or other for-profit, Not-for-profit institutions, and Federal government; Number of Respondents: 1,473,185; Total Annual Responses: 1,473,185; Total Annual Hours: 250,442. (For policy questions regarding this collection contact Kimberly McPhillips at 410-786-5374).

    2. Type of Information Collection Request: Reinstatement without change of a previously approved collection; Title of Information Collection: Hospice Request for Certification and Supporting Regulations; Use: The Hospice Request for Certification Form is the identification and screening form used to initiate the certification process and to determine if the provider has sufficient personnel to participate in the Medicare program. Form Number: CMS-417 (OMB Control number: 0938-0313); Frequency: Annually; Affected Public: Private Sector—Business or other for-profits; Number of Respondents: 851; Total Annual Responses: 851; Total Annual Hours: 213. (For policy questions regarding this collection contact Thomas Pryor at 410-786-1332.)

    Dated: October 23, 2017. William N. Parham, III, Director, Paperwork Reduction Staff, Office of Strategic Operations and Regulatory Affairs.
    [FR Doc. 2017-23341 Filed 10-25-17; 8:45 am] BILLING CODE 4120-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration [Docket No. FDA-2016-N-1486] Authorizations of Emergency Use of In Vitro Diagnostic Devices for Detection of Zika Virus; Availability AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Notice.

    SUMMARY:

    The Food and Drug Administration (FDA) is announcing the issuance of two Emergency Use Authorizations (EUAs) (the Authorizations) for in vitro diagnostic devices for detection of the Zika virus in response to the Zika virus outbreak in the Americas. FDA issued these Authorizations under the Federal Food, Drug, and Cosmetic Act (the FD&C Act), as requested by Thermo Fisher Scientific and The Center for Infection and Immunity, Columbia University. The Authorizations contain, among other things, conditions on the emergency use of the authorized in vitro diagnostic devices. The Authorizations follow the February 26, 2016, determination by the Secretary of Health and Human Services (HHS) that there is a significant potential for a public health emergency that has a significant potential to affect national security or the health and security of U.S. citizens living abroad and that involves Zika virus. On the basis of such determination, the Secretary of HHS declared on February 26, 2016, that circumstances exist justifying the authorization of emergency use of in vitro diagnostic tests for detection of Zika virus and/or diagnosis of Zika virus infection, subject to the terms of any authorization issued under the FD&C Act. The Authorizations, which include an explanation of the reasons for issuance, are reprinted in this document.

    DATES:

    The Authorization for Thermo Fisher Scientific is applicable as of August 2, 2017; the Authorization for The Center for Infection and Immunity, Columbia University is effective as of August 11, 2017.

    ADDRESSES:

    Submit written requests for single copies of the EUAs to the Office of Counterterrorism and Emerging Threats, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 1, Rm. 4338, Silver Spring, MD 20993-0002. Send one self-addressed adhesive label to assist that office in processing your request or include a fax number to which the Authorizations may be sent. See the SUPPLEMENTARY INFORMATION section for electronic access to the Authorizations.

    FOR FURTHER INFORMATION CONTACT:

    Carmen Maher, Office of Counterterrorism and Emerging Threats, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 1, Rm. 4347, Silver Spring, MD 20993-0002, 301-796-8510 (this is not a toll free number).

    SUPPLEMENTARY INFORMATION: I. Background

    Section 564 of the FD&C Act (21 U.S.C. 360bbb-3) as amended by the Project BioShield Act of 2004 (Pub. L. 108-276) and the Pandemic and All-Hazards Preparedness Reauthorization Act of 2013 (Pub. L. 113-5) allows FDA to strengthen the public health protections against biological, chemical, nuclear, and radiological agents. Among other things, section 564 of the FD&C Act allows FDA to authorize the use of an unapproved medical product or an unapproved use of an approved medical product in certain situations. With this EUA authority, FDA can help assure that medical countermeasures may be used in emergencies to diagnose, treat, or prevent serious or life-threatening diseases or conditions caused by biological, chemical, nuclear, or radiological agents when there are no adequate, approved, and available alternatives.

    Section 564(b)(1) of the FD&C Act provides that, before an EUA may be issued, the Secretary of HHS must declare that circumstances exist justifying the authorization based on one of the following grounds: (1) A determination by the Secretary of Homeland Security that there is a domestic emergency, or a significant potential for a domestic emergency, involving a heightened risk of attack with a biological, chemical, radiological, or nuclear agent or agents; (2) a determination by the Secretary of Defense that there is a military emergency, or a significant potential for a military emergency, involving a heightened risk to U.S. military forces of attack with a biological, chemical, radiological, or nuclear agent or agents; (3) a determination by the Secretary of HHS that there is a public health emergency, or a significant potential for a public health emergency, that affects, or has a significant potential to affect, national security or the health and security of U.S. citizens living abroad, and that involves a biological, chemical, radiological, or nuclear agent or agents, or a disease or condition that may be attributable to such agent or agents; or (4)