Federal Register Vol. 82, No.232,

I. Background

On November 2, 2015, the President signed into law the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (the 2015 Act), which further amended the Federal Civil Penalties Inflation Adjustment Act of 1990 (the Inflation Adjustment Act), to improve the effectiveness of CMPs and to maintain their deterrent effect. The 2015 Act requires agencies to:

(1) Adjust the level of CMPs with an initial “catch-up” adjustment through a final rulemaking (FR); and

(2) Make subsequent annual adjustments for inflation.

Previously, the Inflation Adjustment Act required agencies to adjust CMP levels every 4 years based on the percentage by which the Consumer Price Index (CPI) for the month of June of the prior calendar year exceeded the CPI for the month of June of the calendar year during which the last adjustment was made. The Inflation Adjustment Act also capped the increase for each adjustment at 10 percent and rounded the adjustment based on the size of the penalty (for example, multiple of $10 in the case of penalties less than or equal to $100). The rounding process meant that penalties would often not be increased at all if the inflation factor was not large enough. Furthermore, the cap on increases of 10 percent in tandem with the rounding meant that the formula over time caused penalties to lose value relative to total inflation. The 2015 Act updates these requirements by prescribing that agencies make annual adjustments for inflation based on the CPI for the month of October and round to the nearest dollar after an initial adjustment.

In order to eliminate the inconsistent changes caused by the prior method, the 2015 Act resets the inflation adjustment by excluding prior inflationary adjustments under the Inflation Adjustment Act, which contributed to a decline in the real value of penalty levels. To do this, the 2015 Act provides that the initial adjustment will be the percentage by which the CPI for the month of October 2015 exceeds that of the month of October of the calendar year during which the amount of the CMP was originally established or otherwise adjusted under a provision of law other than the Inflation Adjustment Act. While the 2015 Act does not provide a cap on adjustments going forward, the initial adjustment under the 2015 Act does limit large CMP increases by providing that no initial adjustments may exceed 150 percent of the amount of the CMP as of the date the 2015 Act was enacted, November 2, 2015. Lastly, the 2015 Act requires that agencies publish a final rule with the initial adjustment by July 1, 2016, and have the adjustments take effect no later than August 1, 2016. The initial adjustment under the 2015 Act also provides that, following public comment, the head of an agency may reduce the required increase if the agency head determines that the increase will have a negative economic impact or the social costs of the increase outweigh the benefits and the Director of the Office of Management and Budget concurs.

Several USDA agencies administer laws that provide for the imposition of CMPs being adjusted by this final rule. Those agencies are:

(1) Agricultural Marketing Service;

(2) Animal and Plant Health Inspection Service;

(3) Food and Nutrition Service;

(4) Food Safety and Inspection Service;

(5) Forest Service;

(6) Grain Inspection, Packers and Stockyards Administration;

(7) Federal Crop Insurance Corporation;

(8) Rural Housing Service,

(9) Farm Service Agency,

(10) Commodity Credit Corporation, and

(11) Office of the Secretary.

The CMPs in this final rule are listed according to the applicable administering agency.

In developing this final rule, we are waiving the usual notice of proposed rulemaking and public comment procedures contained in 5 U.S.C. 553. We have determined that, under 5 U.S.C. 553(b)(3)(B), good cause exists for dispensing with the notice of proposed rulemaking and public comment procedures for this rule. Specifically the rulemaking comports with and is consistent with the statutory authority required by Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015, as amended, with no issue of policy discretion. Accordingly, we have determined that opportunity for prior comment is unnecessary and contrary to the public interest, and we are issuing this revised regulation as a final rule that will apply to all future cases.

The Office of Management and Budget (OMB) has reviewed this regulatory action in accordance with the provisions of Executive Order 12866, Regulatory Planning and Review, and has determined that it does not meet the criteria for significant regulatory action. 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).

As indicated above, the provisions of this final rulemaking contain inflation adjustments in compliance with the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015. The great majority of individuals, organizations, and entities affected participating in the programs affected by this regulation do not engage in prohibited activities and practices that would result in civil monetary penalties being incurred. Accordingly, we believe that any aggregate economic impact of this revised regulation will be minimal, affecting only the limited number of program participants that may engage in prohibited behavior in violation of the statutes.

The provisions of the Regulatory Flexibility Act relating to an initial and final regulatory flexibility analysis (5 U.S.C. 603, 604) are not applicable to this final rule because USDA was not required to publish notice of proposed rulemaking under 5 U.S.C. 553 or any other law. Accordingly, a regulatory flexibility analysis is not required.

This final rule imposes no new reporting or recordkeeping requirements necessitating clearance by OMB.

For the reasons set forth in the preamble, USDA amends 7 CFR part 3 as follows:

On November 30, 2016, the Department published in the Federal Register a rule proposing to amend EOIR's regulations relating to the annual limitation on cancellation of removal and suspension of deportation. 81 FR 86291 (Nov. 30, 2016). The comment period ended on January 30, 2017. The Department received four comments. For the reasons set forth below, the proposed rule is adopted without change.

The Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (“IIRIRA”), Public Law 104-208, Div. C, 110 Stat. 3009-546, added section 240A(e) to the Immigration and Nationality Act (“INA” or the “Act”), Public Law 82-414, 66 Stat. 163 (1952) (codified as amended in scattered sections of 8, 18, and 22 U.S.C.), by establishing an annual limitation on the number of aliens who may be granted suspension of deportation or cancellation of removal followed by adjustment of status. The annual limitation is as follows:

On October 3, 1997, the Department issued an interim rule, which authorized immigration judges and the Board to grant applications for suspension of deportation and cancellation of removal only on a “conditional basis.” 62 FR 51760, 51762 (Oct. 3, 1997). This interim rule was a temporary measure to give the Department time to decide how best to implement the annual statutory limitation. Pursuant to the rule, the Chief Immigration Judge instructed immigration judges to convert previously reserved grants of suspension and cancellation to conditional grants.

On November 19, 1997, Congress enacted the Nicaraguan Adjustment and Central American Relief Act (“NACARA”), Public Law 105-100, title II, 111 Stat. 2160, 2193-2201, which amended section 240A(e) of the Act. NACARA reaffirmed the annual limitation of 4,000 grants but exempted from the limitation certain nationals of Guatemala, El Salvador, and the former Soviet bloc countries. See NACARA sec. 204, 111 Stat. at 2200-01. NACARA provided for an additional 4,000 suspension/cancellation grants to increase the annual limitation to a total of 8,000 for fiscal year 1998 only. Id.

On September 30, 1998, the Department issued the current interim rule, which eliminated the “conditional grant” process established in the October 1997 interim rule and provided new procedures for immigration judges and the Board to follow with respect to implementing the numerical limitation on suspension and cancellation of removal imposed by IIRIRA and NACARA, 63 FR 52134 (Sept. 30, 1998) (codified at 8 CFR 1240.21 (as in effect prior to publication of this rule)).

First, the interim rule created a process to address a discrete issue that required resolution before the end of fiscal year 1998: The interaction between the October 1997 interim rule authorizing immigration judges and the Board to grant applications for suspension and cancellation on a “conditional basis,” see 62 FR 51760, 51762 (Oct. 3, 1997), and the enactment of NACARA in November 1997, which added 4,000 grants to the statutory annual limitation, creating a total of 8,000 available grants for fiscal year 1998, see NACARA sec. 202, 111 Stat. at 2193-96. These procedures were set forth in 8 CFR 1240.21(b) (as in effect prior to publication of this rule). See 63 FR at 52138-39.

Second, the interim rule created a new procedure for processing applications for suspension and cancellation in order to avoid exceeding the annual limitation. See 63 FR at 52139-40 (codified at 8 CFR 1240.21(c) (as in effect prior to publication of this rule)). The rule eliminated the conditional grant process. Id. at 52138 (codified at 8 CFR 1240.21(a)(2)). Instead, under the interim rule, immigration judges and the Board issued grants of suspension or cancellation in chronological order until grants were no longer available in a fiscal year. The interim rule provided that when grants were no longer available in a fiscal year, “further decisions to grant or deny such relief shall be reserved” until grants become available in a future fiscal year. Id. at 52140 (codified at 8 CFR 1240.21(c)(1) (as in effect prior to publication of this rule)). With respect to denials, the interim rule stated that immigration judges and the Board “may deny without reserving decision or may pretermit those suspension of deportation or cancellation of removal applications in which the applicant has failed to establish statutory eligibility for relief.” Id. However, the interim rule prohibited immigration judges and the Board from basing such denials “on an unfavorable exercise of discretion, a finding of no good moral character on a ground not specifically noted in section 101(f) of the [INA], a failure to establish exceptional or extremely unusual hardship to a qualifying relative in cancellation cases, or a failure to establish extreme hardship to the applicant and/or qualifying relative in suspension cases.” Id.

For the reasons discussed in the preamble to the proposed rule “Procedures Further Implementing the Annual Limitation on Suspension of Deportation and Cancellation of Removal,” see 81 FR 86291 (Nov. 30, 2016), on November 30, 2016, the Department proposed to amend the 1998 interim rule codified at 8 CFR 1240.21 (as in effect prior to publication of this rule). The comment period ended on January 30, 2017. The Department received four comments. For the reasons discussed below, the Department will adopt the proposed amendments to 8 CFR 1240.21 as final without change.

The final rule makes three amendments to the current interim regulation. First, the final rule eliminates the text of 8 CFR 1240.21(b) (as in effect prior to publication of this rule), which, as discussed above, established a procedure to convert 8,000 conditional grants of suspension of deportation and cancellation of removal to outright grants before the end of fiscal year 1998 and to convert some conditional grants to grants of adjustment of status under NACARA. The need for such procedures ceased to exist after fiscal year 1998. Second, the final rule amends the interim rule to allow immigration judges and the Board to issue final decisions denying cancellation and suspension applications, without restriction, regardless of whether the annual limitation has been reached. Under the final rule, after the annual limitation has been reached, only grants would be required to be reserved. The final rule will apply prospectively and will have no effect on decisions that were reserved prior to the final rule's effective date. Lastly, the final rule makes a technical amendment to 8 CFR 1240.21(c).

As noted above, the Department received four comments in response to the proposed rule. One comment was from the American Immigration Lawyers Association; one was from an attorney with a private law firm, and two were from individual commenters. The comments are addressed by topic because some commenters raised multiple subjects and some comments overlapped.

None of the commenters expressed concern with the final rule's elimination of certain procedures created in 1998 to convert 8,000 conditional grants of suspension and cancellation to outright grants before the end of fiscal year 1998. Additionally, none of the commenters expressed concern with the final rule's technical amendment to 8 CFR 1240.21(c).

Rather, the commenters focused on the rule's provision authorizing immigration judges and the Board to issue final decisions denying cancellation and suspension applications, without restriction, regardless of whether the annual limitation has been reached. There is nothing in the statutory language suggesting that decisions denying eligibility need to be delayed; the statutory provision only calls for delaying decisions to grant such relief when necessary because the statutory cap has been reached in a particular year. As explained in the preamble to the proposed rule, the purpose of this amendment is to: “decrease the high volume of reserved decisions that result when the annual limitation is reached early in the fiscal year; reduce the associated delays caused by postponing the resolution of pending cases before EOIR; and provide an applicant with knowledge of a decision in the applicant's case on or around the date of the hearing held on the applicant's suspension or cancellation application.” 81 FR 86291.

Comment: One commenter expressed concern that the rule will unfairly disadvantage applicants because it “freezes the record in place for purposes of a decision denying cancellation or suspension but leaves it open for a potentially positive reserved decision.” For example, the commenter hypothesized that under the interim rule an immigration judge is required to reserve decision on a cancellation application, which might otherwise be denied for failure of the applicant to meet the statutory requirement that the applicant must demonstrate that the applicant's removal would result in exceptional and extremely unusual hardship to a qualifying relative. The commenter states that if the immigration judge had reserved the decision and the applicant's qualifying relative develops serious health-problems while the reserved denial is still pending, the applicant could present this new information and potentially obtain cancellation of removal. On the other hand, under the final rule, an immigration judge would be required to reserve a decision on an application which would otherwise be granted (but for the annual statutory limitation) if the applicant demonstrated that the applicant's removal would result in exceptional and extremely unusual hardship to a qualifying relative such as the applicant's United States citizen child who is in poor health. If the applicant's qualifying child dies or “ages-out” and no longer qualifies as a “qualifying relative” while the decision is reserved, the applicant may lose eligibility for cancellation of removal. In light of these concerns, the commenter urges EOIR to keep the interim rule in place.

Response: The Department declines to change the final rule in light of this comment. As an initial matter, the Department notes that the final rule is consistent with section 240A(e)(1) of the INA, which limits the number of aliens who may be granted suspension of deportation or cancellation of removal to 4,000 aliens in any fiscal year. The Department has determined that the statute does not prohibit the issuance of denials of suspension or cancellation applications once the annual limitation has been reached, but it does require immigration judges and the Board to reserve applications that are to be granted until numbers become available in a subsequent fiscal year.

Moreover, the possibility that an applicant's qualifying relative may “age-out” or die while a decision is reserved exists under the current interim regulations. This final regulation therefore does not create a greater likelihood that an applicant may lose eligibility due to a qualifying relative “aging out” or dying while a decision is reserved.

The Department also notes that an applicant may file a motion to reopen if the applicant's qualifying relative experiences a change in circumstances that may qualify the applicant to receive cancellation of removal after the applicant's application was denied. The same commenter suggests that an applicant may be unable to file a motion to reopen if the applicant has been removed from the United States. EOIR notes, however, that most federal courts of appeal have held that the physical removal of an alien from the United States before a timely motion to reopen is filed does not preclude the alien from pursuing a motion to reopen, notwithstanding the current regulatory departure bar set forth at 8 CFR 1003.2(d) and 1003.23(b)(1).1

Comment: One commenter stated that “[i]f EOIR decides to implement the proposed rule for applications that were previously reserved, [it should] notify the [applicant] and counsel of any intent to deny the case” so that the applicant and counsel can supplement the record with additional evidence prior to the issuance of a decision.

Response: As noted above, the final rule will apply prospectively beginning thirty days after the rule's publication and will have no effect on decisions that were reserved prior to the final rule's effective date. See Bowen v. Georgetown Univ. Hosp., 488 U.S. 204, 208 (1988) (“[A]dministrative rules will not be construed to have retroactive effect unless their language requires this result.”).

Comment: One commenter expressed concern that the final rule will create an incentive for immigration judges and the Board to deny otherwise meritorious cancellation and suspension applications because it will ease EOIR's docket pressures and alleviate the backlog of reserved cases.

Response: The Department does not agree with the commenter's speculation that the rule will create an incentive for immigration judges and the Board to deny otherwise meritorious claims. Immigration judges and Board members are required to exercise their “independent judgment and discretion” in deciding all cases that come before them and adjudicate cases based on the law and facts presented. See 8 CFR 1003.10(b), 1003.1(d)(1)(ii). There is a presumption of regularity that attaches to the actions of government agencies, see United States Postal Serv. v. Gregory, 534 U.S. 1, 10 (2001), and the Supreme Court has long held that adjudicators such as immigration judges are “assumed to be [individuals] of conscience and intellectual discipline, capable of judging a particular controversy fairly on the basis of its own circumstances.” Withrow v. Larkin, 421 U.S. 35, 55 (1975) (internal quotation mark omitted).

Additionally, as explained in the preamble to the proposed rule, immigration judges and the Board will still be required under this final rule to provide a legal and factual analysis for all decision denying cancellation and suspension applications. See 8 CFR 1003.37, 1003.1(d)(1). If an applicant believes an immigration judge's decision was erroneous and not based on the appropriate applicable law and the facts of the case, the applicant may appeal the immigration judge's decision to the Board, 8 CFR 1003.38, and after exhausting administrative remedies, an applicant may be able to file a petition for review in the appropriate circuit court of appeals. See INA sec. 242 et seq. (8 U.S.C. 1252 et seq.).

Comment: One commenter suggested that, instead of adopting as final the provisions of the proposed rule, EOIR should adopt a rule allowing immigration judges and the Board to “provisionally approve or provisionally deny” cancellation or suspension applications once the annual numerical limitation has been reached.

Response: The Department has previously determined that the statutory language and history of the cancellation cap provision does not support a permanent regime based on conditional grants. As discussed more fully in the preamble to the proposed rule, on September 30, 1996, Congress enacted IIRIRA, which included a statutory cap on the number of applications for suspension of deportation and cancellation of removal that the Attorney General could grant each fiscal year. On October 3, 1997, the Department adopted a conditional grant process as a temporary measure that gave the Department time to consider how best to implement the statutory cap. 62 FR 51760. After considering the issue, the Department determined that the statute does not support a conditional grant system that carries over from year to year (such as the one established in the 1997 interim regulation) because the statutory cap language in section 240A(e) of the INA has been interpreted to mean that those eligible applicants must be granted relief of suspension or cancellation during the fiscal year in which they are given a grant under the cap. 63 FR at 52135-36. Therefore, the Department eliminated the conditional grant process with its publication of the current interim rule. Id. (codified at 8 CFR 1240.21(c) (as in effect prior to publication of this rule)). The Department continues to believe that the statute does not support returning to a “conditional grant” or “provisional grant” system. Accordingly, the Department will not change the rule to adopt the commenter's suggestion.

The Department has reviewed this regulation in accordance with the RFA (5 U.S.C. 605(b)) and the Attorney General certifies that this rule will not have a significant economic impact on a substantial number of small entities. The rule will not regulate “small entities,” as that term is defined in 5 U.S.C. 601(6).

This rule will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any one year, and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Reform Act of 1995.

This rule is not a major rule as defined by section 251 of the Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA), 5 U.S.C. 804(2). This rule will not result in an annual effect on the economy of $100 million or more; a major increase in costs or prices; or significant adverse effects on competition, employment, investment, productivity, innovation, or on the ability of United States-based companies to compete with foreign-based companies in domestic and export markets.

The Department has determined that this rule is not a “significant regulatory action” under section 3(f) of Executive Order 12866, Regulatory Planning and Review and, therefore, it has not been reviewed by the Office of Management and Budget.

Moreover, this rule eliminates existing costs associated with the prior interim rule for purposes of Executive Order 13771, Reducing Regulation and Controlling Regulatory Costs. Specifically, EOIR estimates that this rule will reduce the administrative burden and scheduling complications, as well as related costs, associated with cancellation of removal cases subject to the annual limitation.2 See EOIR, OPPM 12-01 (outlining current procedures immigration judges and court staff must follow to reserve denials).

First, in cases involving denials, immigration judges will no longer be required to render oral decisions via an audiocassette and ship the audio tape to EOIR headquarters for a transcription but instead can issue an oral or written decision immediately. EOIR estimates that this could save the agency $607,000 annually. Second, in cases involving denials, the new regulation will alleviate the need for the immigration court to both store case files and communicate with parties about the status of cases while reserved, which could save the government $18,000 annually. Third, in cases involving denials, there will no longer be a need to refresh background checks, see 8 CFR 1003.47, that expire while a case sits in reserve and which are required to be current before an immigration judge issues a decision. EOIR estimates this could save the government $152,000 annually. Finally, once numbers become available each fiscal year, many immigration judges dispose of their cases by calling the parties back into court for a hearing to confirm completion of required background checks and to render an oral decision. Additionally, in some cases, new information may arise, which may require additional hearing time. In cases involving denials, an immigration judge may issue a decision immediately, which circumvents the need to reschedule or rehear these cases. EOIR estimates that this may save the government approximately $748,000 annually. Accordingly, EOIR estimates this rule will eliminate existing costs associated with the current interim regulation in the amount of $1.5 million annually.

This rule has been drafted in accordance with the principles of Executive Order 12866, section 1(b), 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 consideration of 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. It calls on each agency to periodically review its existing regulations and determine whether any should be modified, streamlined, expanded, or repealed to make the agency's regulatory program more effective or less burdensome in achieving its regulatory objectives.

The Department is issuing this final rule consistent with these Executive Orders. This rule would allow the adjudication of suspension of deportation and cancellation of removal cases, without unnecessary delays, in appropriate cases where the immigration judge or the Board determines that the application for such relief should be denied. The Department expects this rule would reduce the number of reserved suspension of deportation and cancellation of removal cases once the annual limitation has been reached. Further, this rule will have a positive economic impact on Department functions because it will significantly reduce the administrative work and scheduling complications associated with suspension of deportation and cancellation of removal cases subject to the annual limitation. While this rule would remove the current restrictions on issuing denials, immigration judges and the Board will still be required to provide a legal analysis for all decisions denying a suspension of deportation or cancellation of removal application. Accordingly, the Department does not foresee any burdens to the public as a result of this rule. To the contrary, it will benefit the public by saving administrative costs and allowing earlier resolution of cases.

This rule 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 section 6 of Executive Order 13132, the Department has determined that this rule does not have sufficient federalism implications to warrant the preparation of a federalism summary impact statement.

This rule meets the applicable standards set forth in sections 3(a) and 3(b)(2) of Executive Order 12988.

The provisions of the Paperwork Reduction Act of 1995, Public Law 104-13, 44 U.S.C. chapter 35, and its implementing regulations, 5 CFR part 1320, do not apply to this rule because there are no new or revised recordkeeping or reporting requirements.

Accordingly, for the reasons stated in the preamble, the Department of Justice amends 8 CFR part 1240 as follows:

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain Airbus Model A318 and A319 series airplanes; and Model A320-211, -212, -214, -216, -231, -232, and -233 airplanes. The NPRM published in the Federal Register on July 25, 2017 (82 FR 34453) (“the NPRM”). The NPRM was prompted by a report indicating that the lower rib foot angle of the center wing box did not match with the bottom skin panel inner surface. The NPRM proposed to require repetitive inspections for cracking of the external bottom skin in certain areas on the left and right wings, and corrective actions if necessary, and provided an optional terminating modification for the repetitive inspections. We are issuing this AD to detect and correct cracking of the external bottom skin in the area of the rib 2 attachment of the wings, which could result in reduced structural integrity of the wings.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2016-0222, dated November 7, 2016 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A318 and A319 series airplanes; and Model A320-211, -212, -214, -216, -231, -232, and -233 airplanes. The MCAI states:

The corrective action for cracking is to repair using a method approved by the Manager, International Section, Transport Standards Branch, FAA; EASA; or Airbus's EASA Design Organization Approval. 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-2017-0709.

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.

Delta Airlines asked for another “Contacting the Manufacturer” subparagraph acknowledging Technical Adaptations from Airbus to be added under paragraph (j) of the proposed AD, “Other FAA AD Provisions.” Delta observed that the FAA provision for contacting the manufacturer in paragraph (j) of the proposed AD would provide allowances for corrective actions without alternative methods of compliance (AMOCs). Delta noted that operators often receive Technical Adaptations that include an EASA Design Organization Approval (DOA) authorized signature for typographical, omitted instruction, and technical errors, and that they should be included in the proposed AD.

We disagree with the commenter. The “Contacting the Manufacturer” paragraph in ADs only addresses the requirement to contact the manufacturer for corrective actions for the identified unsafe condition and does not cover deviations from other AD requirements. This paragraph states, in part, that for any requirement in an AD to obtain corrective actions from a manufacturer, the actions must be accomplished using a method approved by the FAA; or the EASA; or Airbus's EASA DOA. We do not agree to extend this allowance to other AD requirements. All deviations from the service information sections that are marked “RC” (Required for Compliance) require AMOC approval unless otherwise stated in the AD. We have not changed this AD in this regard.

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:

Airbus has issued Service Bulletin A320-57-1205, dated May 26, 2016. This service information describes procedures for inspecting the external bottom skin for cracking in the area of the rib 2 attachment between stringer 8 and stringer 11 on both wings, and repairing any cracks.

Airbus has also issued Service Bulletin A320-57-1207, including Appendix 01 and Appendix 02, dated May 26, 2016. This service information describes procedures for inspecting the lower rib feet (rib 2) and the bottom skin upper surface on both wings for cracking, modifying the wings by installing shims between the lower rib foot (rib 2) and the bottom skin upper surface, and repairing any cracks.

This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We estimate that this AD affects 10 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

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 the optional modification 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 available costs in our cost estimate.

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.

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.

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 757-200, -200PF, and -300 series airplanes. The NPRM published in the Federal Register on May 19, 2017 (82 FR 22915). The NPRM was prompted by reports of cracking found at a certain fuselage frame inner chord. The NPRM proposed to require repetitive inspections for any cracking of a certain fuselage frame inner chord, identification of the material of a certain fuselage frame inner chord for certain airplanes, and applicable corrective actions. We are issuing this AD to detect and correct such cracks, which could result in the cargo door opening during flight, and result in rapid decompression of the airplane and the inability to sustain loads required for continued safe flight and landing.

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. FedEx and United Airlines supported the NPRM.

Aviation Partners Boeing stated that accomplishing the supplemental type certificate (STC) ST01518SE does not affect the actions specified in the NPRM.

We concur with the commenter. We have redesignated paragraph (c) of the proposed AD (82 FR 22915, May 19, 2017) as paragraph (c)(1) of this AD and added paragraph (c)(2) to this AD to state that installation of STC ST01518SE does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01518SE 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.

Boeing requested credit for previous accomplishment of the inspections in the NPRM. Boeing stated that Boeing Alert Service Bulletin 757-53A0101, dated November 8, 2016 (referenced in the NPRM as the appropriate source of service information), was published on November 8, 2016. Boeing commented that the effective date of the AD could be more than 7 months later than publication date of the service information. Boeing stated that it is likely that some Model 757 operators have already accomplished the inspections in accordance with the service information by the time the AD takes effect; therefore, the AD should provide credit for those inspections.

We acknowledge the commenter's request and agree to clarify. Paragraph (f) of this AD states to accomplish the actions within the compliance times specified, unless those actions are already done. Therefore, if operators have accomplished the inspections in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin 757-53A0101, dated November 8, 2016, before the effective date of this AD, no further action is necessary. We have not revised this AD in this regard.

Delta Airlines (DAL) stated that it has concerns that the Accomplishment Instructions provided in Boeing Alert Service Bulletin 757-53A0101, dated November 8, 2016, do not include the corrective action. DAL commented that it will likely accomplish the inspections during 10-day maintenance visit checks, which would not be sufficient time for repair development if a crack is found. DAL also commented that operators would benefit from having corrective actions provided in the service information.

DAL stated that Boeing Alert Service Bulletin 757-53A0101, dated November 8, 2016, requires operators to repetitively inspect the inner chord, and the service information does not provide an option for an inspection should there be a previously installed FAA-approved repair. DAL commented that a previous repair of the frame has the potential to inhibit the ability to accomplish the inspection. DAL also commented that this leaves operators unable to accomplish the inspection as specified in Boeing Alert Service Bulletin 757-53A0101, dated November 8, 2016, and will require additional instruction as an AMOC.

We infer that DAL is requesting to delay issuance of the final rule until a revision of the service information includes repair data and alternative inspection instructions for previously accomplished repairs.

We disagree with the commenter's request. Including the repair data would delay issuance of this AD. Unique repair configurations may be necessary depending on the cracking that is detected. It is not possible to address each individual repair configuration in one AD. The various repair configurations and locations are unknown and therefore cannot be addressed at this time. Therefore, if cracking is found, it must be repaired before further flight using the corrective actions specified in Boeing Alert Service Bulletin 757-53A0101, dated November 8, 2016, or in accordance with paragraph (i)(2) of this AD. For previously approved repairs that prevent accomplishment of the inspections required by this AD, operators may request approval of an AMOC using the procedures in paragraph (j) of this AD. We have not revised this AD in this regard.

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

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

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

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

We reviewed Boeing Alert Service Bulletin 757-53A0101, dated November 8, 2016. The service information describes procedures for repetitive surface high frequency eddy current (HFEC) inspections for any cracking of the fuselage station (STA) 1380 frame inner chord; an identification of the material (an inspection or measurement) of the fuselage STA 1380 frame inner chord; and applicable corrective 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.

We estimate that this AD affects 588 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

Background

The value of cultural property, whether archaeological or ethnological in nature, is immeasurable. Such items often constitute the very essence of a society and convey important information concerning a people's origin, history, and traditional setting. The importance and popularity of such items regrettably makes them targets of theft, encourages clandestine looting of archaeological sites, and results in their illegal export and import.

The United States shares in the international concern for the need to protect endangered cultural property. The appearance in the United States of stolen or illegally exported artifacts from other countries where there has been pillage has, on occasion, strained our foreign and cultural relations. This situation, combined with the concerns of museum, archaeological, and scholarly communities, was recognized by the President and Congress. It became apparent that it was in the national interest for the United States to join with other countries to control illegal trafficking of such articles in international commerce.

The United States joined international efforts and actively participated in deliberations resulting in the 1970 United Nations Educational, Scientific and Cultural Organization (UNESCO) Convention on the Means of Prohibiting and Preventing the Illicit Import, Export and Transfer of Ownership of Cultural Property (hereinafter, “1970 UNESCO Convention” or “the Convention” (823 U.N.T.S. 231 (1972))). The United States implemented the Convention in U.S. law through the Convention on Cultural Property Implementation Act (hereafter, “the Cultural Property Implementation Act” or “the Act” (Pub. L. 97-446, 19 U.S.C. 2601 et seq.)). This was done to promote U.S. leadership in achieving greater international cooperation towards preserving cultural treasures that are of importance to the nations from which they originate and contribute to greater international understanding of our common heritage.

Pursuant to the provisions of the Act, the United States may enter into international agreements with another State Party to the Convention to impose import restrictions on eligible archaeological and ethnological materials under procedures and requirements prescribed by the Act.

In certain limited circumstances, the Cultural Property Implementation Act authorizes the imposition of restrictions on an emergency basis (19 U.S.C. 2603). The emergency restrictions are effective for no more than five years from the date of the State Party's request and may be extended for three years where it is determined that the emergency condition continues to apply with respect to the covered materials (19 U.S.C. 2603(c)(3)). These restrictions may also be continued pursuant to an agreement concluded within the meaning of the Act (19 U.S.C. 2603(c)(4)).

Under Article 9 of the 1970 UNESCO Convention, as contemplated at 19 U.S.C. 2602(a), the Government of Libya, a State Party to the 1970 UNESCO Convention, requested that import restrictions be imposed on certain archaeological and ethnological material, the pillage of which jeopardizes the cultural heritage of Libya. The Act authorizes the President (or designee) to apply import restrictions on an emergency basis if the President determines that an emergency condition applies with respect to any archaeological or ethnological material of any requesting state (19 U.S.C. 2603).

On September 22, 2017, the Acting Under Secretary for Public Diplomacy and Public Affairs, acting pursuant to delegated authority, made the determinations necessary under the Act for the emergency implementation of import restrictions on categories of archaeological and ethnological material from Libya. The Designated List below sets forth the categories of material that the import restrictions apply to. Thus, CBP is amending 19 CFR 12.104g(b) accordingly.

Importation of covered materials from Libya will be restricted for a five-year period until May 30, 2022. Importation of such materials from Libya continues to be restricted through that date unless the conditions set forth in 19 U.S.C. 2606 and 19 CFR 12.104c are met.

The Designated List covers archaeological material of Libya and Ottoman ethnological material of Libya (as defined in section 302 of the Convention on Cultural Property Implementation Act (19 U.S.C. 2601)), including, but not limited to, the following types of material. The archaeological materials represent the following periods and cultures: Paleolithic, Neolithic, Punic, Greek, Roman, Byzantine, Islamic and Ottoman dating approximately 12,000 B.C. to 1750 A.D. The ethnological materials represent categories of Ottoman objects derived from sites of religious and cultural importance made from 1551 A.D. through 1911 A.D.

The Designated List set forth below is representative only. Any dimensions are approximate.

1. Sculpture

a. Architectural Elements—In marble, limestone, sandstone, and gypsum, in addition to porphyry and granite. From temples, forts, palaces, mosques, synagogues, churches, shrines, tombs, monuments, public buildings, and domestic dwellings, including doors, door frames, window fittings, columns, capitals, bases, lintels, jambs, friezes, pilasters, engaged columns, altars, mihrabs (prayer niches), screens, fountains, mosaics, inlays, and blocks from walls, floors, and ceilings. May be plain, molded, or carved. Often decorated with motifs and inscriptions. Approximate date: 1st millennium B.C. to 1750 A.D.

b. Architectural and Non-Architectural Relief Sculpture—In marble, limestone, sandstone, and other stone. Types include carved slabs with figural, vegetative, floral, geometric, or other decorative motifs, carved relief vases, stelae, and plaques, sometimes inscribed in Greek, Punic, Latin, or Arabic. Used for architectural decoration, funerary, votive, or commemorative monuments. Approximate date: 1st millennium B.C. to 1750 A.D.

c. Monuments—In marble, limestone, and other kinds of stone. Types include votive statues, funerary and votive stelae, and bases and base revetments. These may be painted, carved with relief sculpture, decorated with moldings, and/or carry dedicatory or funerary inscriptions in Greek, Punic, Latin, or Arabic. Approximate date: 1st millennium B.C. to 1750 A.D.

d. Statuary—Primarily in marble, but also in limestone and sandstone. Large- and small-scale, including deities, human, animal, and hybrid figures, as well as groups of figures in the round. Common types are large-scale and free-standing statuary from approximately 3 to 8 ft. in height, life-sized portrait or funerary busts (head and shoulders of an individual), waist-length female busts that are either faceless (aniconic) and/or veiled (head or face), and statuettes typically 1 to 3 ft. in height. Includes fragments of statues. Approximate date: 1st millennium B.C. to 1750 A.D.

e. Sepulchers—In marble, limestone, and other kinds of stone. Types of burial containers include sarcophagi, caskets, and chest urns. May be plain or have figural, geometric, or floral motifs painted on them, be carved in relief, and/or have decorative moldings. Approximate date: 1st millennium B.C. to 1750 A.D.

2. Vessels and Containers—In marble and other stone. Vessels may belong to conventional shapes such as bowls, cups, jars, jugs, lamps, and flasks, and also include smaller funerary urns. Funerary urns can be egg-shaped vases with button-topped covers and may have sculpted portraits, painted geometric motifs, inscriptions, scroll-like handles and/or be ribbed.

3. Furniture—In marble and other stone. Types include thrones, tables, and beds. May be funerary, but do not have to be. Approximate date: 1st millennium B.C. to 15th century A.D.

4. Inscriptions—Primarily in marble and limestone. Inscribed stone materials date from the late 7th century B.C. to 5th century A.D. May include funerary stelae, votive plaques, tombstones, mosaic floors, and building plaques in Greek, Punic, Latin, or Arabic. Approximate date: 1st millennium B.C. to 1750 A.D.

5. Tools and Weapons—In flint, chert, obsidian, and other hard stones. Prehistoric and Protohistoric microliths (small stone tools). Chipped stone types include blades, borers, scrapers, sickles, cores, and arrow heads. Ground stone types include grinders (e.g., mortars, pestles, millstones, whetstones), choppers, axes, hammers, and mace heads. Approximate date: 12,000 B.C. to 1,400 B.C.

6. Jewelry, Seals, and Beads—In marble, limestone, and various semi-precious stones, including rock crystal, amethyst, jasper, agate, steatite, and carnelian. Approximate date: 1st millennium B.C. to 12th century A.D.

1. Sculpture

a. Statuary—Primarily in bronze, iron, silver, or gold, including fragments of statues. Large- and small-scale, including deities, human, and animal figures, as well as groups of figures in the round. Common types are large-scale, free-standing statuary from approximately 3 to 8 ft. in height and life-size busts (head and shoulders of an individual) and statuettes typically 1 to 3 ft. in height. Approximate date: 1st millennium B.C. to 324 A.D.

b. Reliefs—Relief sculpture, including plaques, appliques, stelae, and masks. Often in bronze. May include Greek, Punic, Latin, and Arabic inscriptions. Approximate date: 1st millennium B.C. to 324 A.D.

c. Inscribed or Decorated Sheet—In bronze or lead. Engraved inscriptions, “curse tablets,” and thin metal sheets with engraved or impressed designs often used as attachments to furniture. Approximate date: 1st millennium B.C. to 15th century A.D.

2. Vessels and Containers—In bronze, silver, and gold. These may belong to conventional shapes such as bowls, cups, jars, jugs, strainers, cauldrons, and oil lamps, or may occur in the shape of an animal or part of an animal. Also include scroll and manuscript containers for Islamic, Jewish, or Christian manuscripts. All can portray deities, humans or animals, as well as floral motifs in relief. Islamic Period objects may be inscribed in Arabic. Approximate date: 1st millennium B.C. to 15th century A.D.

3. Jewelry and Other Items for Personal Adornment—In iron, bronze, silver, and gold. Metal can be inlaid (with items such as red coral, colored stones, and glass). Types include necklaces, chokers, pectorals, rings, beads, pendants, belts, belt buckles, earrings, diadems, straight pins and fibulae, bracelets, anklets, girdles, belts, mirrors, wreaths and crowns, make-up accessories and tools, metal strigils (scrapers), crosses, and lamp-holders. Approximate date: 1st millennium B.C. to 15th century A.D.

4. Seals—In lead, tin, copper, bronze, silver, and gold. Types include rings, amulets, and seals with shank. Approximate date: 1st millennium B.C. to 15th century A.D.

5. Tools—In copper, bronze and iron. Types include hooks, weights, axes, scrapers, trowels, keys and the tools of crafts persons such as carpenters, masons and metal smiths. Approximate date: 1st millennium B.C. to 15th century A.D.

6. Weapons and Armor—Body armor, including helmets, cuirasses, shin guards, and shields, and horse armor often decorated with elaborate engraved, embossed, or perforated designs. Both launching weapons (spears and javelins) and weapons for hand to hand combat (swords, daggers, etc.). Approximate date: 8th century B.C. to 4th century A.D.

7. Coins

a. General—Examples of many of the coins found in ancient Libya may be found in: A. Burnett and others, Roman Provincial Coinage, multiple volumes (British Museum Press and the Bibliothèque Nationale de France, 1992-), R.S. Poole and others, Catalogue of Greek Coins in the British Museum, volumes 1-29 (British Museum Trustees 1873-1927) and H. Mattingly and others, Coins of the Roman Empire in the British Museum, volumes 1-6 (British Museum Trustees 1923-62). For Byzantine coins, see Grierson, Philip, Byzantine Coins, London, 1982. For publication of examples of coins circulating in archaeological sites, see La moneta di Cirene e della Cirenaica nel Mediterraneo. Problemi e Prospettive, Atti del V Congresso Internazionale di Numismatica e di Storia Monetaria, Padova, 17-19 marzo 2016, Padova 2016 (Numismatica Patavina, 13).

b. Greek Bronze Coins—Struck by city-states of the Pentapolis, Carthage and the Ptolemaic kingdom that operated in territory of the Cyrenaica in eastern Libya. Approximate date: 4th century B.C. to late 1st century B.C.

c. Greek Silver and Gold Coins—This category includes coins of the city-states of the Pentapolis in the Cyrenaica and the Ptolemaic Kingdom. Coins from the city-state of Cyrene often bear an image of the silphium plant. Such coins date from the late 6th century B.C. to late 1st century B.C.

d. Roman Coins—In silver and bronze, struck at Roman and Roman provincial mints including Apollonia, Barca, Balagrae, Berenice, Cyrene, Ptolemais, Leptis Magna, Oea, and Sabratha. Approximate date: late 3rd century B.C. to 1st century A.D.

e. Byzantine Coins—In bronze, silver, and gold by Byzantine emperors. Struck in Constantinople and other mints. From 4th century A.D. through 1396 A.D.

f. Islamic Coins—In bronze, silver, and gold. Dinars with Arabic inscriptions inside a circle or square, may be surrounded with symbols. Struck at mints in Libya (Barqa) and adjacent regions. From 642 A.D. to 15th century A.D.

g. Ottoman—Struck at mints in Istanbul and Libya's neighboring regions. Approximate date: 1551 A.D. through 1750 A.D.

1. Sculpture

a. Architectural Elements—Baked clay (terracotta) elements used to decorate buildings. Elements include acroteria, antefixes, painted and relief plaques, revetments. Approximate date: 1st millennium B.C. to 30 B.C.

b. Architectural Decorations—Including carved and molded brick, and tile wall ornaments and panels.

c. Statuary—Large- and small-scale. Subject matter is varied and includes deities, human and animal figures, human body parts, and groups of figures in the round. May be brightly colored. These range from approximately 4 to 40 in. in height. Approximate date: 1st millennium B.C. to 3rd century A.D.

d. Terracotta Figurines—Terracotta statues and statuettes, including deities, human, and animal figures, as well as groups of figures in the round. Late 7th century B.C. to 3rd century A.D.

2. Vessels

a. Neolithic Pottery—Handmade, often decorated with a lustrous burnish, decorated with applique´ and/or incision, sometimes with added paint. These come in a variety of shapes from simple bowls and vases to large storage jars. Approximate date: 10th millennium B.C. to 3rd millennium B.C.

b. Greek Pottery—Includes both local and imported fine and coarse wares and amphorae. Also imported Attic Black Figure, Red Figure and White Ground Pottery—these are made in a specific set of shapes (e.g., amphorae, kraters, hydriae, oinochoi, kylikes) decorated with black painted figures on a clear clay ground (Black Figure), decorative elements in reserve with background fired black (Red Figure), and multi-colored figures painted on a white ground (White Ground). Corinthian Pottery—Imported painted pottery made in Corinth in a specific range of shapes for perfume and unguents and for drinking or pouring liquids. The very characteristic painted and incised designs depict human and animal figural scenes, rows of animals, and floral decoration. Approximate date: 8th century B.C. to 6th century B.C.

c. Punic and Roman Pottery—Includes fine and coarse wares, including terra sigillata and other red gloss wares, and cooking wares and mortaria, storage and shipping amphorae.

d. Byzantine Pottery—Includes undecorated plain wares, lamps, utilitarian, tableware, serving and storage jars, amphorae, special shapes such as pilgrim flasks. Can be matte painted or glazed, including incised “sgraffitto” and stamped with elaborate polychrome decorations using floral, geometric, human, and animal motifs. Approximate date: 324 A.D. to 15th century A.D.

e. Islamic and Ottoman Pottery—Includes plain or utilitarian wares as well as painted wares.

f. Oil Lamps and Molds—Rounded bodies with a hole on the top and in the nozzle, handles or lugs and figural motifs (beading, rosette, silphium). Include glazed ceramic mosque lamps, which may have a straight or round bulbous body with flared top, and several branches. Approximate date: 1st millennium B.C. to 15th century A.D.

3. Objects of Daily Use—Including game pieces, loom weights, toys, and lamps.

1. Architectural Elements—Mosaics and glass windows.

2. Vessels—Shapes include small jars, bowls, animal shaped, goblet, spherical, candle holders, perfume jars (unguentaria), and mosque lamps. Those from prehistory and ancient history may be engraved and/or colorless or blue, green or orange, while those from the Islamic Period may include animal, floral, and/or geometric motifs. Approximate date: 1st millennium B.C. to 15th century A.D.

3. Beads—Shapes include small jars, bowls, animal shaped, goblet, spherical, candle holders, perfume jars (unguentaria). Approximate date: 1st millennium B.C. to 15th century A.D.

4. Mosque Lamps—May have a straight or round bulbous body with flared top, and several branches. Approximate date: 642 A.D. to 1750 A.D.

1. Floor Mosaics—Including landscapes, scenes of deities, humans, or animals, and activities such as hunting and fishing. There may also be vegetative, floral, or geometric motifs and imitations of stone. Often have religious imagery. They are made from stone cut into small bits (tesserae) and laid into a plaster matrix. Approximate date: 5th century B.C. to 4th century A.D.

2. Wall and Ceiling Mosaics—Generally portray similar motifs as seen in floor mosaics. Similar technique to floor mosaics, but may include tesserae of both stone and glass. Approximate date: 5th century B.C. to 4th century A.D.

1. Rock Art—Painted and incised drawings on natural rock surfaces. There may be human, animals, geometric and/or floral motifs. Include fragments. Approximate date: 12,000 B.C. to 100 A.D.

2. Wall Painting—With figurative (deities, humans, animals), floral, and/or geometric motifs, as well as funerary scenes. These are painted on stone, mud plaster, lime plaster (wet—buon fresco—and dry—secco fresco), sometimes to imitate marble. May be on domestic or public walls as well as in tombs. Approximate date: 1st millennium B.C. to 1551 A.D.

Stucco reliefs, plaques, stelae, and inlays or other architectural decoration in stucco.

1. Textiles—Linen cloth was used in Greco-Roman times for mummy wrapping, shrouds, garments, and sails. Islamic textiles in linen and wool, including garments and hangings.

2. Basketry—Plant fibers were used to make baskets and containers in a variety of shapes and sizes, as well as sandals and mats.

3. Rope—Rope and string were used for a great variety of purposes, including binding lifting water for irrigation, fishing nets, measuring, and stringing beads for jewelry and garments.

1. Small Statuary and Figurines—Subject matter includes human, animal, and hybrid figures, and parts thereof as well as groups of figures in the round. These range from approximately 4 to 40 in. in height. Approximate date: 1st millennium B.C. to 15th century A.D.

2. Reliefs, Plaques, Stelae, and Inlays—Carved and sculpted. May have figurative, floral and/or geometric motifs.

3. Personal Ornaments and Objects of Daily Use—In bone, ivory, and spondylus shell. Types include amulets, combs, pins, spoons, small containers, bracelets, buckles, and beads. Approximate date: 1st millennium B.C. to 15th century A.D.

4. Seals and Stamps—Small devices with at least one side engraved with a design for stamping or sealing; they can be discoid, cuboid, conoid, or in the shape and animals or fantastic creatures (e.g., a scarab). Approximate date: 1st millennium B.C. to 2nd millennium B.C.

5. Luxury Objects—Ivory, bone, and shell were used either alone or as inlays in luxury objects including furniture, chests and boxes, writing and painting equipment, musical instruments, games, cosmetic containers, combs, jewelry, amulets, seals, and vessels made of ostrich egg shell.

Items such as tablets (tabulae), sometimes pierced with holes on the borders and with text written in ink on one or both faces, typically small in size (4 to 12 in. in length), recording sales of property (such as slaves, animals, grain) and other legal documents such as testaments. Approximate date: late 2nd to 4th centuries A.D.

1. Architectural Elements—The most common stones are marble, limestone, and sandstone. From sites such as forts, palaces, mosques, shrines, tombs, and monuments, including doors, door frames, window fittings, columns, capitals, bases, lintels, jambs, friezes, pilasters, engaged columns, altars, mihrabs (prayer niches), screens, fountains, mosaics, inlays, and blocks from walls, floors, and ceilings. Often decorated in relief with religious motifs.

2. Architectural and Non-Architectural Relief Sculpture—In marble, limestone, and sandstone. Types include carved slabs with religious, figural, floral, or geometric motifs, as well as plaques and stelae, sometimes inscribed.

3. Statuary—Primarily in marble, but also in limestone and sandstone. Large- and small-scale, such as human (including historical portraits or busts) and animal figures.

4. Sepulchers—In marble, limestone, and other kinds of stone. Types of burial containers include sarcophagi, caskets, coffins, and chest urns. May be plain or have figural, geometric, or floral motifs painted on them, be carved in relief, and/or have decorative moldings.

5. Inscriptions, Memorial Stones, and Tombstones—Primarily in marble, most frequently engraved with Arabic script.

6. Vessels and Containers—Include stone lamps and containers such as those used in religious services, as well as smaller funerary urns.

1. Architectural Elements—Primarily copper, brass, lead, and alloys. From sites such as forts, palaces, mosques, shrines, tombs, and monuments, including doors, door fixtures, other lathes, chandeliers, screens, and sheets to protect domes.

2. Architectural and Non-Architectural Relief Sculpture—Primarily bronze and brass. Includes appliques, plaques, and stelae. Often with religious, figural, floral, or geometric motifs. May have inscriptions in Arabic.

3. Vessels and Containers—In brass, copper, silver, or gold, plain, engraved, or hammered. Types include jugs, pitchers, plates, cups, lamps, and containers used for religious services (like Koran boxes). Often engraved or otherwise decorated.

4. Jewelry and Personal Adornments—In a wide variety of metals such as iron, brass, copper, silver, and gold. Includes rings and ring seals, head ornaments, earrings, pendants, amulets, bracelets, talismans, and belt buckles. May be adorned with inlaid beads, gemstones, and leather.

5. Weapons and Armor—Often in iron or steel. Includes daggers, swords, saifs, scimitars, other blades, with or without sheaths, as well as spears, firearms, and cannons. Ottoman types may be inlaid with gemstones, embellished with silver or gold, or engraved with floral or geometric motifs and inscriptions. Grips or hilts may be made of metal, wood, or even semi-precious stones such as agate, and bound with leather. Armor consisting of small metal scales, originally sewn to a backing of cloth or leather, and augmented by helmets, body armor, shields, and horse armor.

6. Ceremonial Paraphernalia—Including boxes (such as Koran boxes), plaques, pendants, candelabra, stamp and seal rings.

7. Musical Instruments—In a wide variety of metals. Includes cymbals and trumpets.

1. Architectural Decorations—Including carved and molded brick, and engraved and/or painted tile wall ornaments and panels, sometimes with Arabic script. May be from forts, palaces, mosques, shrines, tombs, or monuments.

2. Vessels and Containers—Includes glazed, molded, and painted ceramics. Types include boxes, plates, lamps, jars, and flasks. May be plain or decorated with floral or geometric patterns, or Arabic script, primarily using blue, green, brown, black, or yellow colors.

1. Architectural Elements—From sites such as forts, palaces, mosques, shrines, tombs, monuments, and madrassas, including doors, door fixtures, panels, beams, balconies, stages, screens, ceilings, and tent posts. Types include doors, door frames, windows, window frames, walls, panels, beams, ceilings, and balconies. May be decorated with religious, geometric or floral motifs or Arabic script.

2. Architectural and Non-Architectural Relief Sculpture—Carved and inlaid wood panels, rooms, beams, balconies, stages, panels, ceilings, and doors, frequently decorated with religious, floral, or geometric motifs. May have script in Arabic or other languages.

3. Koran Boxes—May be carved and inlaid, with decorations in religious, floral, or geometric motifs, or Arabic script.

4. Study Tablets—Arabic inscribed training boards for teaching the Quran.

1. Ceremonial Paraphernalia—Types include boxes, reliquaries (and their contents), plaques, pendants, candelabra, stamp and seal rings.

2. Inlays—For religious decorative and architectural elements.

Vessels and containers in glass from mosques, shrines, tombs, and monuments, including glass and enamel mosque lamps and ritual vessels.

In linen, silk, and wool. Religious textiles and fragments from mosques, shrines, tombs, and monuments, including garments, hangings, prayer rugs, and shrine covers.

1. Books and Manuscripts—Either as sheets or bound volumes. Text is often written on vellum or other parchment (cattle, sheep, goat, or camel) and then gathered in leather bindings. Paper may also be used. Types include the Koran and other Islamic books and manuscripts, often written in brown ink, and then further embellished with colorful floral or geometric motifs.

2. Musical Instruments—Leather drums of various sizes (e.g., bendir drums used in Sufi rituals, wedding processions and Mal'uf performances).

Ottoman Period paintings may depict courtly themes (e.g., rulers, musicians, riders on horses) and city views, among other topics.

This amendment involves a foreign affairs function of the United States and is, therefore, being made without notice or public procedure under section 553(a)(1) of the Administrative Procedure Act (“APA”) (5 U.S.C. 553(a)(1)). In addition, CBP has determined that such notice or public procedure would be impracticable and contrary to the public interest because the action being taken is essential to implement emergency import restrictions (5 U.S.C. 553(b)(B)). For the same reason, a delayed effective date is not required under 5 U.S.C. 553(d)(3).

Because no notice of proposed rulemaking is required, the provisions of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) do not apply.

CBP has determined that this document is not a regulation or rule subject to the provisions of Executive Order 12866 or Executive Order 13771 because it pertains to a foreign affairs function of the United States, as described above, and therefore is specifically exempted by section 3(d)(2) of Executive Order 12866 and section 4(a) of Executive Order 13771.

This regulation is being issued in accordance with 19 CFR 0.1(a)(1), pertaining to the Secretary of the Treasury's authority (or that of his/her delegate) to approve regulations related to customs revenue functions.

For the reasons set forth above, part 12 of Title 19 of the Code of Federal Regulations (19 CFR part 12) is amended as set forth below.

Background TTB Authority

The Alcohol and Tobacco Tax and Trade Bureau (TTB) of the Department of the Treasury administers chapter 51 of the Internal Revenue Code (IRC), which sets forth the Federal excise taxes on wine and related provisions, including provisions addressing the production and marking of wine (see 26 U.S.C. chapter 51). Section 5041 of the IRC (26 U.S.C. 5041) imposes six excise tax rates, including the hard cider tax rate, on wines. These tax rates are associated with six tax classes that correspond to section 5041(b), subparagraphs (1) through (6). The tax on wine is determined at the time of removal (generally, removal from a bonded wine premises or release from customs custody) for consumption or sale (26 U.S.C. 5041(a)). Wine so removed must be in containers bearing marks and labels evidencing compliance with the IRC as the Secretary of the Treasury may by regulations prescribe (26 U.S.C. 5368(b)).

TTB administers chapter 51 of the IRC and its implementing regulations pursuant to section 1111(d) of the Homeland Security Act of 2002, codified at 6 U.S.C. 531(d). In addition, the Secretary has delegated various authorities through Treasury Department Order 120-01, dated December 10, 2013 (superseding Treasury Order 120-01, dated January 24, 2003), to the TTB Administrator to perform the functions and duties in the administration and enforcement of these laws. The TTB regulations that implement the provisions of the IRC, as they relate to wine, include regulations in 27 CFR part 24 for domestic wine and 27 CFR part 27 for imported wine.

On December 18, 2015, the President signed into law the Consolidated Appropriations Act, 2016 (Pub. L. 114-113). Division Q of this Act is titled the Protecting Americans from Tax Hikes Act of 2015 (PATH Act). Section 335(a) of the PATH Act amended the IRC at 26 U.S.C. 5041 by modifying the definition of “hard cider” for excise tax classification purposes. Pursuant to section 335(b) of the PATH Act, the amended definition applies to hard cider removed on or after January 1, 2017. This allowed a broader range of products to be eligible for the hard cider tax rate. Effective January 1, 2017, a wine removed from wine premises or customs custody is eligible for the hard cider tax rate of 22.6 cents per gallon if it:

• Contains no more than 0.64 gram of carbon dioxide per 100 milliliters of wine;

• Is derived primarily from apples or pears, or from apple juice concentrate or pear juice concentrate and water;

• Contains no fruit product or fruit flavoring other than apple or pear; and

• Contains at least one-half of 1 percent and less than 8.5 percent alcohol by volume.

In response to the PATH Act, TTB published in the Federal Register on January 23, 2017, a temporary rule, T.D. TTB-147 (82 FR 7653), to amend its regulations in 27 CFR parts 24 and 27 pertaining to the modified definition of “hard cider” for tax purposes. In addition, TTB solicited comments from the public on the temporary regulations implementing the PATH Act through a notice of proposed rulemaking (NPRM), Notice No. 168 (82 FR 7753), published in the Federal Register concurrently with the temporary rule. The temporary rule, the notice of proposed rulemaking, and the comments regarding the temporary regulations received in response to the NPRM may be viewed in their entirety within Docket No. TTB-2016-0014 at the Regulations .gov Web site at https://www.regulations.gov/.

In T.D. TTB-147, TTB amended its regulations in parts 24 and 27 to require the statement “Tax class 5041(b)(6)” to appear on the container of any wine for which the hard cider tax rate is claimed; see §§ 24.257(a)(4) and 27.59(b). In issuing the temporary rule, TTB recognized that industry members who produce and import hard cider would need time to comply with this requirement. Therefore, in § 24.257(a)(4), TTB provided a one-year grace period before the tax class labeling requirement would go into effect, and, as set forth in T.D. TTB-147, this grace period applies to products removed prior to January 1, 2018. As such, T.D. TTB-147 requires that for wine removed on or after January 1, 2018, the tax class statement “Tax Class 5041(b)(6)” must appear on the container of any wine for which the hard cider tax rate is claimed.

In response to the request for comments on T.D. TTB-147, TTB received a comment, posted on February 15, 2017, from Ian Flom of Mercier Orchards, indicating that the timeframe to implement the new “Tax Class 5041(b)(6)” labeling statement requirement is insufficient because he buys labels in bulk and has a supply of labels that do not bear the tax class statement that he will not be able to use up before January 1, 2018. Mr. Flom also submitted other comments for TTB consideration.

TTB also was copied on a letter addressed to Steven T. Mnuchin, Secretary of the Treasury, dated August 1, 2017, from the United States Association of Cider Makers (USACM), which represents approximately one-half of the cider makers in the United States. In its letter, USACM requested a one year delay of the requirement to place the hard cider tax class labeling statement on products claiming the hard cider tax rate removed from wine premises or customs custody after January 1, 2018.

In light of this comment and request, TTB is delaying the compliance date for the labeling statement requirement.

In a February 23, 2017 comment in response to Notice No. 168, USACM formally requested a 60-day extension of the public comment period in order to give its members more time to properly address any of their concerns with the regulatory changes. USACM referred to the outstanding extension request in their August 1, 2017 letter.

Through a notice of proposed rulemaking published elsewhere in this issue of the Federal Register, TTB is reopening for 60 days the comment period for Notice No 168. TTB will consider any new comments submitted in response to the reopening of the comment period on T.D. TTB-147 along with any comments received on this Temporary Rule, T.D. TTB-147A, and the suggestions that have already been received from Mr. Flom.

Through publication of this new temporary rule, TTB is amending 27 CFR 24.257(a)(4) to delay until January 1, 2019, the requirement that the tax class statement “Tax class 5041(b)(6)” appear on any container of wine removed from wine premises or customs custody for which the hard cider tax rate is claimed. Because the tax class labeling requirement for imported wine claiming the hard cider tax rate contained in 27 CFR 27.59(b) is a cross-reference to § 24.257(a)(4), no change to the regulatory text in § 27.59(b) is required.

In addition, TTB notes that, under the requirements of the Paperwork Reduction Act, the Office of Management and Budget (OMB) approved the hard cider tax class labeling statement information collection requirement under OMB control number 1513-0138. Therefore, TTB is amending §§ 24.257 and 27.59 in this temporary rule to reflect that control number. TTB also is correcting the OMB control number statement in § 24.257 to reflect that the IRC-based wine labeling requirements are covered under OMB control number 1513-0092, Marks on Wine Containers, and not the labeling-related recordkeeping requirements covered under 1513-0115, Usual and Customary Business Records Relating to Wine.

TTB notes that several rule documents published in late 2016 and early 2017 affected 27 CFR part 27, including the authority citation list set out at the beginning of that part. Specifically, T.D. TTB-145, Amendments To Streamline Importation of Distilled Spirits, Wine, Beer, Malt Beverages, Tobacco Products, Processed Tobacco, and Cigarette Papers and Tubes and Facilitate Use of the International Trade Data System, published on December 22, 2016, at 81 FR 94186, revised the part 27 authority citation list to add 26 U.S.C. 5382 (Cellar Treatment of Natural Wine) and 26 U.S.C. 6109 (Identifying Numbers). However, T.D. TTB-146, Changes to Certain Alcohol-Related Regulations Governing Bond Requirements and Tax Return Filing Periods, published on January 4, 2017, at 82 FR 1108, also revised the part 27 authority citation list to add 26 U.S.C. 6109 but not 26 U.S.C. 5382, resulting in the inadvertent removal of 26 U.S.C. 5382 from the list, and this error was not corrected in T.D. TTB-147. Therefore, in this temporary rule, TTB is correcting the authority citation for 27 CFR part 27 to return 26 U.S.C. 5382 to that part's list of authorities.

To submit comments on the delayed compliance date for the hard cider tax class labeling statement described in this temporary rule, or to submit new comments on any of the hard cider regulations contained in T.D. TTB-147, published in the Federal Register on January 23, 2017, at 82 FR 7653, please refer to Notice No. 168A, published in the “Proposed Rules” section of this issue of the Federal Register.

Certain TTB regulations issued under the IRC, including this one, are exempt from the requirements of Executive Order 12866, as supplemented and reaffirmed by Executive Order 13563. Therefore, a regulatory impact assessment is not required.

In accordance with the Regulatory Flexibility Act (5 U.S.C. 601 et seq.), TTB certifies that this temporary rule will not have a significant economic impact on a substantial number of small entities. The temporary rule will not impose, or otherwise cause, a significant increase in reporting, recordkeeping, or other compliance burdens on a substantial number of small entities. Rather, this temporary rule decreases burden on impacted entities by delaying the compliance date for a TTB labeling requirement that implements certain changes to the Internal Revenue Code of 1986 made by the Protecting Americans from Tax Hikes Act of 2015 (see Pub. L. 114-113, Division Q, section 335).

The regulatory sections addressed in this temporary rule (27 CFR 24.257 and 27.59) contain collections of information that have been previously reviewed and approved by OMB in accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. 3507) and assigned control numbers 1513-0092 and 1513-0138. No changes are being made to the existing approved information collections.

TTB is issuing this temporary rule without prior notice and comment pursuant to authority under section 4(a) of the Administrative Procedure Act, as amended (APA; 5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.”

In this temporary rule, TTB is delaying the compliance date for the requirement that the tax class statement “Tax class 5041(b)(6)” appear on containers of wine for which the hard cider tax class is claimed, from January 1, 2018, to January 1, 2019. TTB finds that prior notice and comment is unnecessary because a delayed compliance date will provide additional time to industry members to comply with that labeling requirement.

TTB is issuing this temporary rule without a delayed effective date pursuant to authority under section 4(c) of the APA (5 U.S.C. 553(d)). TTB finds good cause under 5 U.S.C. 553(d)(1) to dispense with the effective date limitation in 5 U.S.C. 553(d). This temporary rule grants a one-year exemption by delaying the compliance date for a labeling statement requirement that would otherwise become effective on January 1, 2018. Accordingly, the effective date of this temporary rule is December 5, 2017.

Kara Fontaine of the Regulations and Rulings Division drafted this document with the assistance of other Alcohol and Tobacco Tax and Trade Bureau personnel.

For the reasons discussed in the preamble, TTB is amending 27 CFR chapter I, parts 24 and 27 as follows:

The CSX Transportation requested a temporary deviation from the operating schedule of the CSX Railroad Swing Bridge across Rigolets Pass, mile 0.0, near Slidell, St. Tammany Parish, Louisiana. This deviation is necessary to replace the center pivot bearing and the wedge machinery on the south center and southwest end of the swing span.

For the purposes of this deviation, the bridge will be allowed to remain in the closed-to-navigation position from 4 a.m. on Tuesday, December 12, 2017, through 4 a.m. on Friday, December 15, 2017, and a one-hour advance notice for openings to facilitate passage of vessel traffic from 7 a.m. to 5 p.m., each day, on December 18, 2017, through December 22, 2017, and from January 2, 2018 through January 12, 2018. At all other times the bridge will operate in accordance with 33 CFR 117.5.

The vertical clearance of the bridge is 14.5 feet above mean low water (MLW), elevation 11.9 feet above mean high water (MHW) in the closed-to-navigation position. Navigation on the waterway consists of tugs with tows, commercial fishing vessels and some recreational crafts.

For the duration of the repair work, vessels will not be allowed to pass through the bridge in the closed-to-navigation position and will not be able to open for emergencies. The alternate route for vessels to pass is the Pearl River. 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, 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.

On October 10, 2017, the commercial fishing vessel PACIFIC PARADISE ran aground approximately 400 yards southwest of Kaimana Beach, in the navigable waters of Mamala Bay, Oahu, Hawaii at position 21°15.69′ N.; 157°49.49′ W. On October 11, 2017, the Coast Guard established a seven-day temporary safety zone encompassing all waters extending 500 yards in all directions around the grounded vessel to facilitate vessel salvage operations and protect personnel, vessels and the marine environment from the hazards associated with them. Due to the emergent nature of the grounding and subsequent removal operations, the temporary final rule (TFR) was not initially published in the Federal Register. On October 18, 2017, the temporary safety zone was extended for two additional weeks to account for delays in salvage operations due to ocean and weather conditions. The extension of the temporary safety zone was published in the Federal Register (82 FR 49111) on October 24, 2017. On November 1, 2017, the safety zone was extended for one additional month to account for delays in salvage operations due to ocean and weather conditions. The safety zone extension was published in the Federal Register (82 FR 51767) on November 8, 2017. Ongoing challenges with the salvage efforts and weather necessitate a third extension of the temporary safety zone for an additional thirty days.

The temporary safety zone continues to encompass all waters extending 500 yards in all directions around the grounded fishing vessel located approximately 400 yards southwest of Kaimana Beach at position 21°15.69′ N.; 157°49.49′ W. When the vessel is off the reef, the stationary safety zone will shift to a moving safety zone extending 500 yards in all directions around the vessel and continue until December 31, 2017 at 8:00 a.m. or until the removal operation is complete, whichever is earlier.

The Coast Guard is extending the existing temporary safety zone without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because the initial estimate to salvage the vessel from the grounding was estimated at one week or less. Immediate action remains needed to respond to the safety hazards associated with this fishing vessel salvage effort for an estimated additional thirty days. Therefore, publishing an NPRM is impracticable and contrary to public interest.

We are issuing this rule, and under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making it effective less than 30 days after publication in the Federal Register. For the same reasons stated in the preceding paragraph, delaying the effective period of this temporary safety zone would be impracticable and contrary to the public interest.

The Coast Guard is issuing this rule pursuant to 33 U.S.C. 1231. On October 10, 2017, the Coast Guard was informed the commercial fishing vessel PACIFIC PARADISE ran aground in Mamala Bay, Oahu, Hawaii, near Waikiki's Kaimana Beach. The COTP Honolulu determined that potential hazards associated with the salvage and removal operations, including high winds and seas, constituted a safety concern. Accordingly, the COTP Honolulu established a temporary safety zone extending 500 yards in all directions around the grounded vessel to protect personnel, vessels, and the marine environment during ongoing salvage and removal operations.

This rule extends an existing temporary safety zone. This rule is effective from 8:00 a.m. on December 1, 2017 through 8:00 a.m. on December 31, 2017, or until salvage operations are complete, whichever is earlier. If the temporary safety zone is terminated prior to 8:00 a.m. on December 1, 2017, the Coast Guard will provide notice via a broadcast notice to mariners.

The temporary safety zone encompasses all waters from the surface of the water to the ocean floor extending 500 yards in all directions around the commercial fishing vessel 400 yards southwest of Kaimana Beach near position 21°15.69′ N.; 157°49.49′ W. The temporary safety zone is currently stationary around the grounded vessel. When the vessel is removed from the reef, it will be towed to a disposal site, at which time the stationary safety zone will shift to a moving safety zone. The zone shall continue to encompass 500 yards in all directions around the commercial fishing vessel PACIFIC PARADISE and remain in effect until December 31, 2017 at 8:00 a.m. or until the disposal operation is complete, whichever is earlier. When the vessel is off the reef and removal operations commence, the Coast Guard will provide notice of the moving safety zone via a broadcast notice to mariners. No vessel or person will be permitted to enter the safety zone absent the express authorization of the COTP Honolulu or his designated representative.

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

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

This regulatory action determination is based on the size, location and duration of the temporary safety zone. Vessel traffic will be able to safely transit around this temporary safety zone away from the reef or during the salvage tow, which would impact only a small designated area of the waters off Kaimana Beach and Waikiki where vessel traffic is normally low. Closer to shore, the waterway is used primarily for beach recreation activities. Offshore of the beach, waterway traffic is primarily tourism related operations which will not be affected by the tow due to the open space in the area. Moreover, vessels wishing to enter the zone may seek permission as set forth below.

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

While some owners or operators of vessels intending to transit the temporary safety zone may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator. The temporary safety zone is limited in size and duration, and the grounded vessel is not in an actively used navigable waterway. When the vessel is removed from the reef, it will be towed to a disposal site. The tow evolution will not have a significant impact on existing waterway users. Mariners may request to enter the zone by contacting the COTP, as described below.

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the extension of a temporary safety zone extension for thirty days, or until the salvage and removal operations are suspended. It is categorically excluded from further review under paragraph 34(g) of Figure 2-1 of the Commandant Instruction. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 165 as follows:

I. Proposed Rule and Response

In October 2017, the Postal Service filed a notice of mailing services price adjustments with the Postal Regulatory Commission (PRC) for products and services covered by Mailing Standards of the United States Postal Service, International Mail Manual (IMM®), to be effective on January 21, 2018. On October 24, 2017, the USPSTM published a notice of proposed product and price changes in the Federal Register entitled “International Mailing Services: Proposed Product and Price Changes—CPI” (82 FR 49160). The document included price changes that the Postal Service would adopt for products and services covered by Mailing Standards of the United States Postal Service, International Mail Manual (IMM®) and publish in Notice 123, Price List, on Postal Explorer® at pe.usps.com. The Postal Service received no comments.

As stated in the PRC's Order No. 4215, issued on November 9, 2017, the PRC found that the prices in the Postal Service's Notice may go into effect on January 21, 2018. The new prices will accordingly be posted in Notice 123, on Postal Explorer at pe.usps.com.

The following product changes to the IMM, conforming to the requirements of the Universal Postal Convention limiting the contents of First-Class Mail International postcard, letter, and large envelope (flat) mail to personal correspondence and non-dutiable documents, were also accepted without comment and will accordingly be posted in the January 21, 2018, revision of the IMM on Postal Explorer at pe.usps.com.

The Postal Service hereby adopts the following changes to Mailing Standards of the United States Postal Service, International Mail Manual (IMM), which is incorporated by reference in the Code of Federal Regulations. See 39 CFR 20.1.

Accordingly, 39 CFR part 20 is amended as follows:

On June 13, 2017, West Virginia submitted a SIP revision to update the State's incorporation by reference of federal standards, ambient air monitoring reference methods, and equivalent monitoring reference methods. The SIP revisions updated the effective date by which the West Virginia regulations incorporate by reference the national ambient air quality standards (NAAQS), additional monitoring methods, and additional equivalent monitoring methods. This update was intended to add effectively the following to the West Virginia SIP: The 2015 ozone NAAQS; monitoring reference and equivalent methods pertaining to fine particulate matter (PM2.5), carbon monoxide (CO), and coarse particulate matter (PM10); a revised ozone monitoring season; the Federal Reference Method (FRM); the Federal Equivalent Method (FEM); and the Photochemical Assessment Monitoring Stations (PAMS) network. The effective date of the incorporation by reference changed from June 1, 2013 to June 1, 2017. The SIP revision also sought to change a reference from the “West Virginia Department of Environmental Protection,” to the “Division of Air Quality.”

In the direct final rule published on Monday, October 16, 2017 (82 FR 47981), EPA stated that if we received adverse comment by November 15, 2017, the rule would be withdrawn and not take effect. EPA subsequently received adverse comment. EPA will address the comments received in a subsequent final rulemaking action based upon the proposed action, also published on Monday, October 16, 2017 (82 FR 48033). EPA will not institute a second comment period on this action.

EPA is conditionally approving portions of New York's December 1, 2015 SIP submittal concerning CSAPR 1 trading programs for annual emissions of NOX and SO2.

Large Electric Generating Units (EGUs) in New York are subject to CSAPR FIPs that require the units to participate in the federal CSAPR NOX Annual Trading Program and the federal CSAPR SO2 Group 1 Trading Program. CSAPR provides a process for the submission and approval of SIP revisions to replace certain provisions of the CSAPR FIPs while the remaining FIP provisions continue to apply. This type of CSAPR SIP is termed an abbreviated SIP. EPA proposed to conditionally approve New York's submittal on August 29, 2017 (82 FR 40963).

The New York State Department of Environmental Conservation (DEC) amended portions of Title 6 of the New York Codes, Rules and Regulations (6 NYCRR) in order to incorporate CSAPR requirements into the State's rules and allow the DEC to allocate CSAPR allowances to regulated entities in New York. 6 NYCRR Part 244, “CAIR NOX Annual Trading Program,” has been repealed and replaced in its entirety with a new rule, 6 NYCRR Part 244, “Transport Rule NOX Annual Trading Program.” 6 NYCRR Part 245, “CAIR SO2 Trading Program,” has also been repealed and replaced in its entirety with a new rule, 6 NYCRR Part 245, “Transport Rule SO2 Group 1 Trading Program.” Attendant revisions were made to 6 NYCRR Part 200, “General Provisions,” to update the list of referenced materials that are cited in the amended New York regulations. EPA is conditionally approving into the SIP the revised versions of 6 NYCRR Parts 200, 244 and 245.

EPA is conditionally approving this SIP revision, as opposed to fully approving it, because of several deficiencies that New York must address. The conditional approval of portions of New York's SIP submittal is conditioned on New York meeting the commitment, articulated in its letters to EPA dated July 14, 2016, March 4, 2017, and July 6, 2017, to make the necessary changes to 6 NYCRR Parts 200, 244, and 245 to meet the requirements of the Clean Air Act (CAA) and EPA's regulations for approval of an abbreviated SIP revision to replace EPA's default allocations of CSAPR emission allowances with state-determined allocations. In a July 6, 2017 letter to EPA, the DEC committed to submitting a SIP revision that addresses EPA identified deficiencies by December 29, 2017.2 Once EPA determines that the DEC has satisfied these conditions and EPA approves the revisions (after EPA notice and comment), EPA shall remove the conditional approval and this SIP revision will at that time receive full approval status. The conditionally approved SIP submission will remain part of the SIP until EPA takes further action. If New York fails to meet its commitment to submit a revised SIP by December 29, 2017 [i.e., the date of commitment from the state's July 6, 2017 letter], the conditional approval will revert to a disapproval.

This action conditionally approves into New York's SIP state-determined allowance allocation procedures for annual NOX and SO2 allowances that would replace EPA's default allocation procedures for the control periods in 2017 and beyond. The conditional approval of this SIP revision does not alter any provision of either the CSAPR NOX Annual Trading Program or the CSAPR SO2 Group 1 Trading Program as applied to New York units other than the allowance allocation provisions, and the FIP provisions requiring those units to participate in the programs (as modified by this SIP revision) remain in place.

New York also repealed 6 NYCRR Part 243, “CAIR NOX Ozone Season Trading Program,” and replaced it in its entirety with a new rule, 6 NYCRR Part 243, “Transport Rule NOX Ozone Season Trading Program,” which was included in New York's December 1, 2015 SIP submittal. EPA is not acting at this time on the portion of New York's SIP submittal addressing 6 NYCRR Part 243. Since New York's December 1, 2015 submission, EPA has finalized the CSAPR Update rule 3 to address Eastern states' interstate air pollution mitigation obligations with regard to the 2008 Ozone National Ambient Air Quality Standard (NAAQS). Among other things, starting in 2017 the CSAPR Update requires New York EGUs to participate in the new CSAPR NOX Ozone Season Group 2 Trading Program instead of the earlier CSAPR NOX Ozone Season Trading Program (now renamed the “Group 1” program) and replaces the ozone season budget for New York with a lower budget developed to address the revised and more stringent 2008 Ozone NAAQS. In DEC's July 14, 2016 commitment letter to EPA, New York indicated that the State would revise 6 NYCRR Part 243 to conform with the final CSAPR Update. For this reason, EPA is acting at this time only on 6 NYCRR Parts 200, 244 and 245.

This conditional final rule is effective immediately upon publication in the Federal Register. Section 553(d) of the Administrative Procedure Act (5 U.S.C. 553(d)), which generally provides that final rules may not take effect earlier than 30 days after publication in the Federal Register but allows exceptions where an agency finds good cause and publishes its finding with the rule, applies to this action. Ordinarily, a 30-day transition period before a new rule takes effect would give affected parties an opportunity to adjust their behavior and prepare for compliance. However, in this instance no transition period is necessary because this rule does not impose new requirements. Under CSAPR's existing requirements, on March 1 of each year affected sources must hold quantities of emissions allowances not less than their emissions during the prior year's control period. The CSAPR regulations provide for default allocations to affected sources of allowances eligible for use in meeting this requirement. In this rule, in accordance with options CSAPR makes available to States, EPA is conditionally approving into New York's SIP the State's allocation rules to replace the default federally-established allocations. The sooner this rule is effective, the sooner allowances eligible for use for the 2017 control period can be issued to affected sources in New York in the amounts determined under New York's rules, which will assist the sources in planning to meet their March 1, 2018, compliance requirement. EPA therefore finds good cause to make this conditional final rule effective immediately upon publication in the Federal Register.

EPA issued CSAPR in July 2011 to address the requirements of CAA section 110(a)(2)(D)(i)(I) concerning interstate transport of air pollution. As amended (including the 2016 CSAPR Update), CSAPR requires 27 Eastern states to limit their statewide emissions of SO2 and/or NOX in order to mitigate transported air pollution unlawfully impacting other states' ability to attain or maintain four NAAQS: the 1997 annual PM2.5 NAAQS, the 2006 24-hour PM2.5 NAAQS, the 1997 Ozone NAAQS, and the 2008 Ozone NAAQS. The CSAPR emissions limitations are defined in terms of maximum statewide “budgets” for emissions of annual SO2, annual NOX, and/or ozone-season NOX by each covered state's large EGUs. The CSAPR state budgets are implemented in two phases of generally increasing stringency, with the Phase 1 budgets applying to emissions in 2015 and 2016 and the Phase 2 (and CSAPR Update) budgets applying to emissions in 2017 and later years. As a mechanism for achieving compliance with the emissions limitations, CSAPR establishes five federal emissions trading programs: A program for annual NOX emissions, two geographically separate programs for annual SO2 emissions, and two geographically separate programs for ozone-season NOX emissions. CSAPR also establishes FIP requirements applicable to the large EGUs in each covered state. The CSAPR FIP provisions require each state's EGUs to participate in up to three of the five CSAPR trading programs.

CSAPR includes provisions under which states may submit and EPA will approve SIP revisions to modify or replace the CSAPR FIP requirements while allowing states to continue to meet their transport-related obligations using either CSAPR's federal emissions trading programs or state emissions trading programs integrated with the federal programs.4 Through such a SIP revision, a state may replace EPA's default provisions for allocating emission allowances among the state's units, employing any state-selected methodology to allocate or auction the allowances, subject to timing criteria and limits on overall allowance quantities. In the case of CSAPR's federal trading programs for ozone-season NOX emissions (or integrated state trading programs), a state may also expand trading program applicability to include certain smaller EGUs.5 If a state wants to replace CSAPR FIP requirements with SIP requirements under which the state's units participate in a state trading program that is integrated with and identical to the federal trading program even as to the allocation and applicability provisions, the state may submit a SIP revision for that purpose as well. However, no emissions budget increases or other substantive changes to the trading program provisions are allowed. A state whose units are subject to multiple CSAPR FIPs and federal trading programs may submit SIP revisions to modify or replace either some or all of those FIP requirements.

States can submit two basic forms of CSAPR-related SIP revisions effective for emissions control periods in 2017 or later years.6 Specific criteria for approval of each form of SIP revision are set forth in the CSAPR regulations. Under the first alternative—an “abbreviated” SIP revision—a state may submit a SIP revision that upon approval replaces the default allowance allocation and/or applicability provisions of a CSAPR federal trading program for the state.7 Approval of an abbreviated SIP revision leaves the corresponding CSAPR FIP and all other provisions of the relevant federal trading program in place for the state's units.

Under the second alternative—a “full” SIP revision—a state may submit a SIP revision that upon approval replaces a CSAPR federal trading program for the state with a state trading program integrated with the federal trading program, so long as the state trading program is substantively identical to the federal trading program or does not substantively differ from the federal trading program except as discussed above with regard to the allowance allocation and/or applicability provisions.8 For purposes of a full SIP revision, a state may either adopt state rules with complete trading program language, incorporate the federal trading program language into its state rules by reference (with appropriate conforming changes), or employ a combination of these approaches.

The CSAPR regulations identify several important consequences and limitations associated with approval of a full SIP revision. First, upon EPA's approval of a full SIP revision as correcting the deficiency in the state's SIP that was the basis for a particular set of CSAPR FIP requirements, the obligation to participate in the corresponding CSAPR federal trading program is automatically eliminated for units subject to the state's jurisdiction without the need for a separate EPA withdrawal action, so long as EPA's approval of the SIP is full and unconditional.9 Second, approval of a full SIP revision does not terminate the obligation to participate in the corresponding CSAPR federal trading program for any units located in any Indian country within the borders of the state, and if and when a unit is located in Indian country within a state's borders, EPA may modify the SIP approval to exclude from the SIP, and include in the surviving CSAPR FIP instead, certain trading program provisions that apply jointly to units in the state and to units in Indian country within the state's borders.10 Finally, if at the time a full SIP revision is approved EPA has already started recording allocations of allowances for a given control period to a state's units, the federal trading program provisions authorizing EPA to complete the process of allocating and recording allowances for that control period to those units will continue to apply, unless EPA's approval of the SIP revision provides otherwise.11

On December 1, 2015, New York submitted to EPA an abbreviated SIP revision that, if approved, would replace the default allowance allocation provisions of the CSAPR SO2 Group 1, CSAPR NOX Annual, and CSAPR NOX Ozone Season Trading Programs for the state's EGUs for the control periods in 2017 and beyond with provisions establishing state-determined allocations for those control periods but would leave the corresponding CSAPR FIPs and all other provisions of the trading programs in place.

The SIP submittal includes the following adopted state rules: 6 NYCRR Part 243, “Transport Rule NOX Ozone Season Trading Program,” 6 NYCRR Part 244, “Transport Rule NOX Annual Trading Program,” and 6 NYCRR Part 245, “Transport Rule SO2 Trading Program.” Previous versions of the rules developed for state participation in the Clean Air Interstate Rule 12 (CAIR), i.e., 6 NYCRR Part 243, “CAIR NOX Ozone Season Trading Program,” 6 NYCRR Part 244, “CAIR NOX Annual Trading Program,” and 6 NYCRR Part 245, “CAIR SO2 Trading Program,” have been repealed and replaced in their entirety with the new rules. Attendant revisions were made to 6 NYCRR Part 200, “General Provisions,” to update the list of referenced material that are cited in the amended New York regulations. The regulations were adopted on November 10, 2015, and effective on December 12, 2015.

As discussed in section I, EPA is not acting at this time on the portion of New York's SIP submittal addressing 6 NYCRR Part 243, which will be addressed in another rulemaking at a later date. In this rulemaking, EPA is addressing NYCRR Parts 244, 245, and 200.

In a notice of proposed rulemaking (NPRM) published on August 29, 2017 (82 FR 40963), EPA proposed to conditionally approve the portion of New York's submittal designed to replace the federal CSAPR SO2 Group 1, and CSAPR NOX Annual Trading Programs. The NPRM provides additional detail regarding the background and rationale for EPA's conditional approval.

Comments on the NPRM were due on September 28, 2017. EPA received no comments on the proposed action.

The EPA is conditionally approving the New York SIP revision submitted on December 1, 2015 concerning allocations to New York units of CSAPR NOX Annual allowances and CSAPR SO2 Group 1 allowances for the control periods in 2017 and 2018, and future control periods beyond 2018. This rule conditionally approves into the New York SIP amendments to 6 NYCRR Parts 244 and 245 that incorporate CSAPR requirements into the State rules, and allows the DEC to allocate CSAPR allowances to regulated entities in New York. EPA is also conditionally approving the attendant revisions to 6 NYCRR Part 200 to update the list of referenced materials cited in the amended New York regulations.

The conditional approval of Parts 200, 244, and 245 is based upon DEC's commitment to make the necessary changes, identified in the July 14, 2016, March 4, 2017, and July 6, 2017 commitment letters, to New York's 6 NYCRR Part 244, “Transport Rule NOX Annual Trading Program,” Part 245, “Transport Rule SO2 Group 1 Trading Program,” and Part 200, “General Provisions.” See section IV B. of the NPRM published on August 29, 2017 (82 FR 40967) concerning EPA's analysis of New York's budget, allowance allocation methodology, timing of submission of allocations, replaceable provisions of a CSAPR federal trading program under an abbreviated SIP, applicability determinations, and other substantive changes to the CSAPR federal trading program regulations.

Following the conditional approval of Part 200, Part 244, and Part 245, allocations of CSAPR NOX Annual allowances and CSAPR SO2 Group 1 allowances will be made according to the provisions of New York's SIP (as modified by the DEC's July 14, 2016, March 24, 2017, and July 6, 2017 commitment letters to EPA) instead of 40 CFR 97.411(a), 97.411(b)(1), 97.412(a), 97.611(a), 97.611(b)(1), and 97.612(a). EPA's action on this SIP revision does not alter any provisions of the federal CSAPR NOX Annual Trading Program and the federal CSAPR SO2 Group 1 Trading Program as applied to New York units other than the allowance allocation provisions, and the FIPs requiring the units to participate in the programs (as modified by this SIP revision) remain in place. EPA is finalizing the conditional approval of Part 200, Part 244 and Part 245 because New York's rules (when modified by the DEC as indicated in its July 14, 2016, March 24, 2017, and July 6, 2017 commitment letters to EPA) will meet the requirements of the CAA and EPA's regulations for an abbreviated SIP revision and will replace EPA's default allocations of CSAPR emission allowances with state-determined allocations, as discussed in section IV.B of the NPRM.

Under CAA section 110(k)(4), the EPA may approve a SIP revision based on a commitment by a state to adopt specific enforceable measures by a date certain, but not later than one year after the date of final conditional approval. If the state fails to meet its commitment to submit a revised SIP by December 29, 2017 [i.e., the date of commitment from the state's July 6, 2017 letter], or if the EPA finds the state's revisions to be incomplete, or the EPA disapproves the state's revisions, the conditional approval will, by operation of law, become a disapproval. EPA would notify the state by letter that such action has occurred. At that time, the SIP revisions in question would not be part of the approved SIP. If that were to occur, EPA would subsequently publish a document in the Federal Register notifying the public that the conditional approval automatically converts to a disapproval.13 If, however, the state meets its commitment within the applicable timeframe, EPA would subsequently publish in the Federal Register a document notifying the public that EPA intends to convert the conditional approval to a full approval.

Because a FIP already in place satisfies New York's obligations to mitigate interstate transport air pollution, should a disapproval become finalized as noted above, the EPA will not be required to take further action. Additionally, since the SIP submission is not required in response to a SIP call under CAA section 110(k)(5), mandatory sanctions under CAA section 179 would not apply because the deficiencies are not with respect to a submission that is required under CAA title I part D.

In this rule, with our conditional approval, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing, with our conditional approval, the incorporation by reference revisions to 6 NYCRR Parts 200, entitled “General Provisions”, adopted November 10, 2015, 6 NYCRR Part 244, entitled “Transport Rule NOX Annual Trading Program”, adopted November 10, 2015, and NYCRR Part 245, entitled “Transport Rule SO2 Group 1 Trading Program, adopted November 10, 2015. EPA has made, and will continue to make, these materials generally available through www.regulations.gov, and/or at the EPA Region 2 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information). Therefore, these materials have been conditionally approved by EPA for inclusion in the SIP, have been incorporated by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference by the Director of the Federal Register in the next update of the SIP compilation.14

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

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

• Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866.

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

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

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

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

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

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

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

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by February 5, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

Part 52 chapter I, title 40 of the Code of Federal Regulations is amended as follows:

You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. 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:

• Crop production (NAICS code 111), e.g., agricultural workers; greenhouse, nursery, and floriculture workers; farmers.

• Animal production (NAICS code 112), e.g., cattle ranchers and farmers, dairy cattle farmers, livestock farmers.

• Food manufacturing (NAICS code 311), e.g., agricultural workers; farmers; greenhouse, nursery, and floriculture workers; ranchers; pesticide applicators.

• Pesticide manufacturing (NAICS code 32532), e.g., agricultural workers; commercial applicators; farmers; greenhouse, nursery, and floriculture workers; residential users.

You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl. To access the OSCPP test guidelines referenced in this document electronically, please go to http://www.epa.gov/ocspp and select “Test Methods and Guidelines.”

Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2011-1033 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before February 5, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2011-1033, 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 CBI or other information whose disclosure is restricted by statute.

• Mail: OPP Docket, Environmental Protection Agency Docket Center (EPA/DC), (28221T), 1200 Pennsylvania Ave. NW., Washington, DC 20460-0001.

• Hand Delivery: To make special arrangements for hand delivery or delivery of boxed information, please follow the instructions at http://www.epa.gov/dockets/contacts.html.

In the Federal Register of March 14, 2012 (77 FR 15012) (FRL-9335-9), EPA issued a document pursuant to FFDCA section 408(d)(3), 21 U.S.C. 346a(d)(3), announcing the filing of a pesticide tolerance petition (PP 1F7914) by Albemarle Corporation, 451 Florida Street, Baton Rouge, LA 70801. The petition requested that 40 CFR 180.940(a) be amended by establishing an exemption from the requirement of a tolerance for residues of the antimicrobial 1,3-dibromo-5,5-dimethylhydantoin resulting from the use of this antimicrobial in food contact surface sanitizing solutions applied to food contact surfaces in public eating places, dairy processing equipment, and food-processing equipment and utensils at concentrations not to exceed 500 parts per million (ppm) of total bromine. The petition also requested establishment of an exemption from the requirement of a tolerance for residues of the antimicrobial 1,3-dibromo-5,5-dimethylhydantoin in or on all raw agricultural commodities resulting from the use of 1,3-dibromo-5,5-dimethylhydantoin as an antimicrobial treatment in solutions containing a diluted end-use concentration of all bromide-producing chemicals in the solution not to exceed 900 ppm of total bromine. That document referenced a summary of the petition prepared by Albemarle Corporation, the petitioner, which is available in the docket, http://www.regulations.gov. There were no comments received in response to the notice of filing.

Section 408(c)(2)(A)(i) of FFDCA allows EPA to establish an exemption from the requirement for a tolerance (the legal limit for a pesticide chemical residue in or on a food) only if EPA determines that the exemption is “safe.” Section 408(c)(2)(A)(ii) of FFDCA defines “safe” to mean that “there is a reasonable certainty that no harm will result from aggregate exposure to the pesticide chemical residue, including all anticipated dietary exposures and all other exposures for which there is reliable information.” This includes exposure through drinking water and in residential settings, but does not include occupational exposure. Pursuant to FFDCA section 408(c)(2)(B), in establishing or maintaining in effect an exemption from the requirement of a tolerance, EPA must take into account the factors set forth in FFDCA section 408(b)(2)(C), which requires EPA to give special consideration to exposure of infants and children to the pesticide chemical residue in establishing a tolerance and to “ensure that there is a reasonable certainty that no harm will result to infants and children from aggregate exposure to the pesticide chemical residue . . . .”

Consistent with FFDCA section 408(c)(2)(A), and the factors specified in FFDCA section 408(c)(2)(B), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for 1,3-dibromo-5,5-dimethylhydantoin including exposure resulting from the exemption established by this action. EPA's assessment of exposures and risks associated with 1,3-dibromo-5,5-dimethylhydantoin follows.

EPA has evaluated the available toxicity data and considered its validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children.

Exposures to 1,3-dibromo-5,5-dimethylhydantoin (DBDMH) only occur during the mixing of the treatment solution. These exposures would only be associated with the occupational handling/applying when pouring and mixing with water. When mixed with water, DBDMH rapidly hydrolyzes to 5,5-dimethylhydantion (DMH). DMH is stable in water and is the residue available for dietary exposure.

Most of the toxicology studies submitted to the Agency in support of registration of DBDMH were conducted on DMH (including subchronic oral toxicity in the rat and dog; subchronic dermal toxicity in the rat; chronic toxicity in the dog; combined chronic/oncogenicity in the rat and mouse; oncogenicity in the mouse; developmental toxicity in the rat and rabbit; 2-generation reproductive toxicity in the rat; genotoxicity battery; and general metabolism in the rat). These studies generally show lack of systemic toxicity up to the limit dose. No specific target organs were identified in adult animals tested. No developmental or maternal toxicity was observed. There was no evidence of carcinogenicity. There is also no indication of neurotoxicity or immunotoxicity in the database.

The formation of the bromide ion is also present during the degradation of DBDMH. Based on available data, the Agency has previously determined that bromine does not present adverse systemic effects and therefore no endpoints were identified. See Bromine Final Registration Review Decision, Case 4015, which is document number 10 in docket number EPA-HQ-OPP-2009-0167, in www.regulations.gov. Based on its previous assessment, which remains valid, the Agency has determined that there are no risks of concern from exposures to bromine.

Specific information on the studies received from the toxicity studies can be found at http://www.regulations.gov in document 1,3-dibromo-5,5-dimethylhydantoin (DBDMH), Human health and ecological risk assessment for the new use as a Fruit and Vegetable Wash and Food Contact Surface Sanitizer in docket ID number EPA-HQ-OPP-2011-1033.

Once a pesticide's toxicological profile is determined, EPA identifies toxicological points of departure (POD) and levels of concern to use in evaluating the risk posed by human exposure to the pesticide. For hazards that have a threshold below which there is no appreciable risk, the toxicological POD is used as the basis for derivation of reference values for risk assessment. PODs are developed based on a careful analysis of the doses in each toxicological study to determine the dose at which no adverse effects are observed (the NOAEL) and the lowest dose at which adverse effects of concern are identified (the LOAEL). Uncertainty/safety factors are used in conjunction with the POD to calculate a safe exposure level—generally referred to as a population-adjusted dose (PAD) or a reference dose (RfD)—and a safe margin of exposure (MOE). For non-threshold risks, the Agency assumes that any amount of exposure will lead to some degree of risk. Thus, the Agency estimates risk in terms of the probability of an occurrence of the adverse effect in a lifetime. For more information on the general principles EPA uses in risk characterization and a complete description of the risk assessment process, see http://www.epa.gov/pesticides/factsheets/riskassess.htm.

The Agency did not identify any toxicological points of departure because the available data indicate a lack of toxicity for DBDMH and its degradates (DMH and the bromide ion).

1. Dietary exposure from food uses and drinking water. Based on the use patterns for DBDMH, residues of the degradate DMH may be present in or on food as a result of exposure to the substance in treatment solutions or on treated food contact surfaces. DMH residues are unlikely to be in drinking water because the product is intended to be used in treatment solutions in RAC treatment facilities and on food contact surfaces in public eating places or processing. Nevertheless, because of the lack of toxicological endpoints, quantitative dietary food and drinking water exposure and risk assessments were not conducted.

2. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables). 1,3-dibromo-5,5-dimethylhydantoin is not registered for use on any sites that would result in residential exposure. Further information regarding EPA standard assumptions and generic inputs for residential exposures may be found at http://www.epa.gov/pesticides/trac/science/trac6a05.pdf.

3. Cumulative effects from substances with a common mechanism of toxicity. Section 408(b)(2)(D)(v) of FFDCA requires that, when considering whether to establish, modify, or revoke a tolerance, the Agency consider “available information” concerning the cumulative effects of a particular pesticide's residues and “other substances that have a common mechanism of toxicity.”

EPA has not found 1,3-dibromo-5,5-dimethylhydantoin to share a common mechanism of toxicity with any other substances, and 1,3-dibromo-5,5-dimethylhydantoin does not appear to produce a toxic metabolite produced by other substances. Based on the lack of toxicity for DBDMH and its metabolites and degradates, therefore, EPA concludes that 1,3-dibromo-5,5-dimethylhydantoin does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemical, see EPA's Web site at http://www.epa.gov/pesticides/cumulative.

Section 408(b)(2)(C) of FFDCA provides that EPA shall apply an additional tenfold (10X) margin of safety for infants and children in the case of threshold effects to account for prenatal and postnatal toxicity and the completeness of the database on toxicity and exposure unless EPA determines based on reliable data that a different margin of safety will be safe for infants and children. This additional margin of safety is commonly referred to as the Food Quality Protection Act (FQPA) Safety Factor (SF). In applying this provision, EPA either retains the default value of 10X, or uses a different additional safety factor when reliable data available to EPA support the choice of a different factor.

There are adequate pre- and/or post-natal toxicity studies for DMH that show no qualitative or quantitative susceptibility from exposure to DMH. As a result, the Agency has conducted a qualitative assessment in which safety factors were not relevant. Moreover, because of the lack of any threshold effects, the requirement to retain an additional 10X safety factor does not apply.

Based on the toxicological profile of DBDMH, EPA concludes that exposures to the antimicrobial 1,3-dibromo-5,5-dimethylhydantoin will not pose a risk under reasonably foreseeable circumstances. In order to use this substance as antimicrobial treatment in process water and as a food contact surface sanitizer, the substance must be mixed with water, necessarily resulting in the conversion of DMDBH into DMH and bromine, for which the Agency has not identified any toxicological endpoints of concern. Therefore, the Agency concludes that reasonably foreseeable uses of this substance are safe. Accordingly, EPA finds that there is a reasonable certainty of no harm will result to the general population, or to infants and children from aggregate exposure to 1,3-dibromo-5,5-dimethylhydantoin residues.

An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation.

Although the petitioner requested exemptions for residues of 1,3-dibromo-5,5-dimethylhydantoin with limitations on the amount of DBDMH in sanitizing and antimicrobial treatment solutions, EPA is establishing exemptions, without the requested limitations, for residues of 1,3-dibromo-5,5-dimethylhydantoin, because of the lack of toxicity of DMDBH and its metabolites and degradates.

Therefore, exemptions from the requirement of a tolerance are established for residues of 1,3-dibromo-5,5-dimethylhydantoin as follows: When used in food contact surface sanitizing solutions applied to food contact surfaces in public eating places, dairy-processing equipment, and food-processing equipment and utensils and when used as an antimicrobial treatment in solutions applied to raw agricultural commodities in treatment facilities.

This action establishes exemptions from tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001) or Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

Since tolerances and exemptions that are established on the basis of a petition under FFDCA section 408(d), such as the tolerance in this final rule, do not require the issuance of a proposed rule, the requirements of the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), do not apply.

This action directly regulates growers, food processors, food handlers, and food retailers, not States or tribes, nor does this action alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). As such, the Agency has determined that this action will not have a substantial direct effect on States or tribal governments, on the relationship between the national government and the States or tribal governments, or on the distribution of power and responsibilities among the various levels of government or between the Federal Government and Indian tribes. Thus, the Agency has determined that Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999) and Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000) do not apply to this action. In addition, this action does not impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.).

This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note).

Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), EPA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. This action is not a “major rule” as defined by 5 U.S.C. 804(2).

Therefore, 40 CFR chapter I is amended as follows:

Section 11 of the STB Reauthorization Act, Public Law 114-110, 129 Stat. 2228 (2015), directs the Board to “initiate a proceeding to assess procedures that are available to parties in litigation before courts to expedite such litigation and the potential application of any such procedures to rate cases.” In addition, section 11 requires the Board to comply with a new timeline in Stand-Alone Cost (SAC) cases.

In advance of initiating this proceeding, Board staff held informal meetings with stakeholders 1 to explore and discuss: (1) How procedures to expedite court litigation could be applied to rate cases and (2) additional ways to move SAC cases forward more expeditiously. The Board issued an Advance Notice of Proposed Rulemaking on June 15, 2016, seeking formal comment on specific ideas raised in the informal meetings as well as comments on any other relevant matters. Expediting Rate Cases (ANPRM), EP 733 (STB served June 15, 2016). See 81 FR 40250 (June 21, 2016). The Board received eight opening comments and six reply comments on the ANPRM.

On March 31, 2017, the Board issued a Notice of Proposed Rulemaking, addressing the comments on the ANPRM and proposing specific amendments to its regulations. Expediting Rate Cases (NPRM), EP 733 (STB served Mar. 31, 2017). See 82 FR 16550 (April 5, 2017). The Board received four opening comments and six reply comments on the NPRM. 2

Below, the Board addresses the comments and suggestions submitted by parties in response to the NPRM and discusses clarifications and modifications being adopted in the final rule to help improve the rate review process.3 The text of the final rule is below.

Pre-Complaint Period. In the NPRM, the Board proposed to create a pre-complaint period, which would begin when a SAC complainant files a pre-filing notice with the Board. Under the proposed rule, a complainant would file the pre-filing notice at least 70 days prior to filing its complaint. The proposed pre-filing notice would contain the rate and origin/destination pair(s) to be challenged, the commodities at issue, and a motion for protective order pursuant to the proposed, new 49 CFR 1104.14(c).4 The Board also proposed to revise its regulations to move mandatory mediation in SAC cases to the pre-complaint period.

Several stakeholders generally support the Board's proposed pre-complaint period, although some suggested modification to the proposed rule. ACC, TFI, and NITL state that the pre-filing notice would allow parties to begin many functions that would typically occur after a complaint is filed and note that engaging in mediation before the filing of a complaint could potentially avoid the filing of a complaint at all. (ACC, TFI, & NITL NPRM Comments 3.) They also suggest that the Board allow for skipping or shortening the pre-complaint period when the statute of limitations would otherwise bar any portion of a complaint that is filed after the notice period expires. (Id. at 4.) AAR also supports conducting mediation during the pre-complaint period, noting that a pre-filing notice would potentially foster private-sector resolution of the dispute by allowing Board-administered mediation to begin earlier. (AAR NPRM Comments 5-6.) AAR, however, urges the Board to clarify that protective orders filed with the pre-filing notice may continue to include provisions recognizing a party's right to review its own confidential or highly confidential material referenced in the other party's filings. (AAR NPRM Comments 7; see also Coal Shippers/NARUC NPRM Reply 4 (noting that they do not object to this request).) NGFA does not oppose the Board's proposal to provide for a pre-complaint period and pre-filing notice so parties can engage in mediation before filing a SAC complaint but recommends that the mediation period span no more than 45 days, subject to extensions by agreement of the parties. (NGFA NPRM Comments 4.)

Coal Shippers/NARUC urge the Board not to adopt the proposed pre-complaint period rules. (Coal Shippers/NARUC NPRM Comments 14.) According to Coal Shippers/NARUC, the pre-filing notice requirement would lengthen the rate case schedule. (Id. at 16.) They also argue that the pre-filing notice would not expedite discovery. (Id. at 23 (citing NSR ANPRM Comments 35 (“The railroad can only begin to gather the necessary documents and data once a shipper has . . . served its discovery requests, informing the railroad of the time frame for discovery materials and segments of the railroad for which discovery is sought”); AAR ANPRM Comments 6 (pre-filing notice “would not actually expedite the rate case itself once it is filed”)); see also ACC, TFI, & NITL NPRM Reply 5.) According to Coal Shippers/NARUC, railroads would continue to “withhold” production of the most important information unless the Board establishes expedited post-complaint deadlines for discovery production. (Coal Shippers/NARUC NPRM Comments 24 (citing NSR ANPRM Comments 6).)

Coal Shippers/NARUC urge that, if the Board establishes a pre-filing notice requirement, it should also require railroads to provide common carrier rates and service terms to shippers upon request no later than 90 days prior to the anticipated start of the common carrier service. (Coal Shippers/NARUC NPRM Comments 29; see also ACC, TFI, & NITL NPRM Reply 5-6; NGFA NPRM Reply 3.) Coal Shippers/NARUC further argue that the pre-filing notice should be optional, (Coal Shippers/NARUC NPRM Reply 11), and should be filed at least 40 days prior to the proposed filing date of a complaint, (Coal Shippers/NARUC NPRM Comments 30; Coal Shippers/NARUC NPRM Reply 12; see also ACC, TFI, & NITL NPRM Reply 6; NGFA NPRM Reply 3).

Coal Shippers/NARUC also do not support moving mandatory mediation to the pre-complaint period. According to Coal Shippers/NARUC, by the time a case reaches the Board, it is unlikely that a mediated resolution can be obtained. (Coal Shippers/NARUC NPRM Comments 20.) Coal Shippers/NARUC further argue that mediation is more beneficial following a complaint because the complaint provides valuable information to both the defendant carrier and mediator. (Id. at 21.) Coal Shippers/NARUC argue that the Board could best deal with the burdens imposed by the Board's current mandatory mediation rules by changing those rules to make mediation voluntary, not mandatory, in SAC cases. (Id. at 22.) Coal Shippers/NARUC argue that, if the Board proceeds with the proposed pre-complaint period, the mediation period should be 40 days (beginning when the pre-filing notice is submitted), subject to extensions if requested by all parties. (Id. at 32-33; Coal Shippers/NARUC NPRM Reply 12; see also ACC, TFI, & NITL NPRM Reply 6; NGFA NPRM Reply 3.) Coal Shippers/NARUC also argue that the Board should reduce the time allotted (i) to assign mediators after the pre-filing notice is submitted from within 10 business days to within three business days, and (ii) for mediators to contact the parties from within five business days of assignment to within three business days. (Coal Shippers/NARUC NPRM Comments 32.)

NGFA suggests the Board shorten the mediation period, specifically to no more than 45 days, subject to extension by mutual agreement of the parties. (NGFA NPRM Comments 4; NGFA NPRM Reply 3; see also ACC, TFI, & NITL NPRM Reply 4.) According to NGFA, by the time any non-agricultural shipper files a SAC complaint, it already would have engaged in thorough discussions with the defendant railroad and formal action likely would be required to resolve their differences. (NGFA NPRM Comments 4; see also ACC, TFI, & NITL NPRM Reply 4.)

UP opposes Coal Shippers/NARUC's suggestion that the Board require a carrier to provide common carrier rates and service terms 90 days prior to the anticipated start of that service, arguing such a requirement would constitute a modification to the Board's rules governing the establishment of common carrier rates, which are neither the subject of this proceeding nor a logical outgrowth of the proposed rule. (UP NPRM Reply 6.) UP further argues that, even if such a rule were permissible, a carrier would retain its statutory right to increase the rate with 20-days' notice or reduce the rate with no notice. (Id. at 7 (citing 49 U.S.C. 11101(c) & Burlington N. R.R. v. STB, 75 F.3d 685, 694 (D.C. Cir. 1996)).)

The Board continues to believe that establishing a pre-complaint period, during which parties would engage in mediation, would help rate cases proceed more efficiently. The pre-filing notice would put parties on notice as to what they likely will need to produce in discovery and enable parties to begin many activities that typically would occur only after a complaint is filed. In this respect, the pre-complaint period could shorten the rate case schedule by lessening the need for parties to request extensions of time once discovery begins. Establishing a pre-complaint period will also allow parties to engage in mediation before a complaint is filed, enabling parties to focus on mediation without the distractions of fully active litigation.5 In addition, the Board continues to believe that the early submission of a motion for protective order will expedite discovery production and disclosures by allowing a protective order to be in place at the outset of a case.

Additionally, completing Board-sponsored mediation during the pre-complaint period could potentially prevent the filing of a complaint altogether. The Board prefers the resolution of disputes through mediation in lieu of formal Board proceedings whenever possible. See 49 CFR 1109.1. AAR noted, and the Board agrees, that pre-complaint mediation could foster such resolutions before a formal complaint is filed. Mediation is widely used by courts as a measure for expediting proceedings.6 The Board disagrees with NGFA and Coal Shippers/NARUC that, by the time a complaint is filed, formal action would be required to resolve the parties' differences. In fact, parties in several rate cases have successfully mediated resolutions to rate disputes, even following the filing of a formal complaint. See NRG Power Marketing LLC v. CSX Transp., Inc., NOR 42122, slip op. at 1 (STB served July 8, 2010); Williams Olefins, L.L.C. v. Grand Trunk Corp., NOR 42098 (STB served Feb. 15, 2007). See also E.I. Du Pont De Nemours & Co. v. CSX Transp., Inc., NOR 42112 (STB served May 11, 2009) (complaint challenging the reasonableness of rates dismissed following voluntary settlement). Resolving disputes in mediation would save parties considerable time and expense, and could better preserve their ongoing commercial relationship.

The Board also continues to believe that 70 days is the most appropriate length for the pre-complaint period because it would allow sufficient time for mediation to be completed before the filing of a formal complaint, thus freeing parties to focus on mediating a resolution before litigation begins. The Board is not persuaded by the arguments set forth by Coal Shippers/NARUC and NGFA in support of shorter pre-complaint and mediation periods. Coal Shippers/NARUC provide no support for their claim that 40 days is “more than enough time” for parties to reach a mediated solution.

For these reasons, the Board will adopt the proposal in the NPRM with two modifications. First, the Board will modify the rule proposed in the NPRM to adopt Coal Shippers/NARUC's suggestion that the assignment of the mediator(s) should occur in fewer than 10 business days after the shipper submits its pre-filing notice. The Board finds that five business days would be a reasonable amount of time for the Board to assign the mediator(s).7 The Board will also modify the introductory text of the proposed new section to clarify that the pre-filing notice is required only in SAC cases.

Second, in response to AAR's concern regarding a party's ability to view its own confidential information when such information is referenced in another party's filing, the Board clarifies that the rules adopted here would not affect the parties' ability to negotiate protective orders addressing that situation, as is routinely done now.

The Board declines to adopt Coal Shippers/NARUC's suggestion that the Board require railroads to provide common carrier rates to shippers upon request no later than 90 days prior to the start of that service. The Board agrees with UP that the dates associated with the establishment of common carrier rates are beyond the scope of this proceeding.

The Board also declines to adopt ACC, TFI, and NITL's suggestions that the Board allow the pre-complaint period to be skipped or shortened when the statute of limitations would otherwise bar any portion of a complaint. Adopting such an approach would effectively permit parties to ignore the pre-complaint period established in this final rule. Parties should take the applicable statute of limitations into account when preparing to file a rate case.

Discovery. The Board also sought comment on several ways the Board could change its discovery procedures to help improve the processing of rate cases.

a. Service of initial discovery requests and deadlines for production. In the NPRM, the Board proposed requiring parties in SAC proceedings to certify that they have served their initial discovery requests simultaneously with their complaint and answer. Several stakeholders generally support the Board's proposal. (See ACC, TFI, & NITL NPRM Comments 4; Coal Shippers/NARUC NPRM Comments 33-34; UP NPRM Reply 2.) Both Coal Shippers/NARUC and ACC, TFI, and NITL argue that the proposal would ensure discovery begins promptly. (See ACC, TFI, & NITL NPRM Comments 4; Coal Shippers/NARUC NPRM Comments 34.) However, ACC, TFI, and NITL suggest that the Board limit subsequent discovery requests because a party could “game[]” this requirement by submitting a skeletal initial discovery request with the intention of serving principal discovery requests at a later date. (ACC, TFI, & NITL NPRM Comment 4.) Coal Shippers/NARUC also argue that shippers should be permitted to include in their pre-filing notices discovery requests for “Core SAC Data,” which Coal Shippers/NARUC describe as key categories of information shippers need to present a SAC case. (Coal Shippers/NARUC NPRM Comments 30 & Attachment 1.) According to Coal Shippers/NARUC, this requirement would allow carriers to begin collecting requested documents, expedite discovery, and eliminate the delay caused by “carrier foot-dragging.” (Id. at 30-32; Coal Shippers/NARUC NPRM Reply 13-14.)

Additionally, both Coal Shippers/NARUC and ACC, TFI, and NITL suggest that the Board establish firm deadlines for defendant carriers to produce certain data. (ACC, TFI, & NITL NPRM Comments 4; Coal Shippers/NARUC NPRM Reply 15.) ACC, TFI, and NITL argue that defendant carriers should be required to produce traffic data within 90 days of the initial discovery request. (ACC, TFI, & NITL NPRM Comments 4-5.) Coal Shippers/NARUC argue that the defendant carrier(s) should be required to produce “Core SAC Data” no later than 70 days after receipt of the shipper's initial discovery requests.8 (Coal Shippers/NARUC NPRM Comments 32.) NGFA supports Coal Shippers/NARUC's proposal, arguing that establishing a date for production of such data after the commencement of a formal complaint proceeding seems logical and efficient. (NGFA NPRM Reply 3.)

Both AAR and UP dispute the claims that railroads delay discovery. (AAR NPRM Reply 5-6; UP NPRM Reply 2.) They also both claim that production of discovery material in SAC cases, especially production of traffic data, is a resource- and time-intensive task, requiring the development of information not maintained in the ordinary course of business. (AAR NPRM Reply 7-8; UP NPRM Reply 2-3, V.S. Sanford 1 & 3.) According to UP, carriers should not be expected to begin compiling discovery material during the mediation period for several reasons. First, according to UP, doing so would effectively transform the pre-filing notice into a complaint by immediately triggering discovery, yet ignoring the burdens involved in addressing disputes over the scope of discovery. Second, the proposal would cause a waste of resources if mediation succeeds. Third, parties may be able to resolve part of their dispute in mediation and narrow the scope of discovery. (UP NPRM Reply 5-6.)

Additionally, UP argues that the Board need not establish a firm discovery deadline because one already exists. (UP NPRM Reply 3 (“The rules establish a 150-day discovery period, followed by a 60-day period for preparing evidence.”).) According to UP, if the Board were to subdivide and micromanage the discovery period, the Board would generate more litigation by creating new types of disputes for the Board to resolve, imposing additional costs and delay. (Id.) UP also argues that shippers' timelines are unrealistic and assume that a railroad should produce traffic data without questioning the scope of a shipper's discovery requests. (UP NPRM Reply 3-4.) Additionally, UP notes that a defendant cannot begin producing traffic data until the geographical and temporal limits of a case are settled. (UP NPRM Reply 2, V.S. Sanford 1 & 3.) AAR likewise argues that an “arbitrary” deadline for the production of “Core SAC Data” is unwarranted and impracticable given shipper groups' failure to provide any evidence in support of their “foot-dragging” claims and given the significant effort required of carriers to produce certain categories of “Core SAC Data.” (AAR NPRM Reply 5-8.)

The final rule will adopt the proposal as set forth in the NPRM. The Board continues to believe that beginning discovery earlier in the rate review process (i.e., serving discovery requests with the complaint and answer) will help expedite discovery. These changes will eliminate the current potential gap between the filing of a complaint and the beginning of discovery, thus expediting both discovery and the rate case in general.

The Board declines to adopt Coal Shippers/NARUC's recommendation that complainants be permitted to include discovery requests for “Core SAC Data” with their pre-filing notices. Because the scope of discovery could potentially evolve as parties proceed through mediation, the Board believes the appropriate time for parties to submit discovery requests is with the respective filings of the complaint and answer. Parties may resolve certain aspects of the dispute, such as the geographical and temporal limits for the case, and those agreements could significantly affect what data a party is required to produce and could render prior efforts to gather data superfluous.

Additionally, because the Board's rules already provide a default procedural schedule for SAC cases that includes a 150-day deadline for the completion of discovery, the Board need not establish other interim discovery deadlines in this rulemaking. See 49 CFR 1111.8(a). The parties are free to—within the context of the Board's default procedural schedule or an agreed-upon procedural schedule—negotiate interim discovery deadlines on a case-by-case basis.

Lastly, the Board declines to adopt the suggestion made by ACC, TFI, and NITL that the Board include a limit on subsequent discovery requests in the revised regulations. In accordance with 49 CFR 1103.27, the Board expects practitioners to exercise candor and fairness in dealing with other litigants. Attempts to “game” discovery requirements would contravene the canons of ethics governing practitioners before the Board. If a party believes subsequent discovery is overly broad or unduly burdensome, it may move to quash those requests. Additionally, the Board can, on its own initiative or at the request of a party, convene a staff conference to aid in resolving a discovery dispute.

b. Meet-and-confer requirement. The Board also proposed in the NPRM to amend its regulations to require a party filing a motion to compel in a SAC or simplified standards case to certify that it has in good faith conferred or attempted to confer with the party serving discovery to settle the dispute without Board intervention. This requirement is similar to Federal Rule of Civil Procedure 37.

Railroad and shipper interests generally support the Board's proposed meet-and-confer requirement. (AAR NPRM Comments 6-7; ACC, TFI, & NITL NPRM Comments 5; Coal Shippers/NARUC NPRM Comments 35; NGFA NPRM Comments 5; UP NPRM Reply 2.) Coal Shippers/NARUC ask the Board to clarify whether the proposed meet-and-confer obligation applies to requests for document production.9 (Coal Shippers/NARUC NPRM Comments 36; Coal Shippers/NARUC NPRM Reply 16; see also NGFA NPRM Reply 4.)

The Board agrees with the majority of commenters that adding a meet-and-confer requirement modeled on Federal Rule of Civil Procedure 37 would encourage parties to resolve disputes without involving the Board, thus reducing the number of disputes that reach the Board, requiring fewer Board decisions, and avoiding potential delays in processing rate cases. As requested by Coal Shippers/NARUC, the Board will clarify in the final rule adopted here that the requirement that a party filing a motion to compel in a SAC or simplified standards case certify that it has in good faith conferred or attempted to confer with the party serving discovery to settle the dispute without Board intervention will apply to all motions to compel.

Evidentiary Submissions. The Board proposed several changes to its regulations governing the submission of evidence that were intended to improve and expedite the presentation of evidence in rate cases.

a. Staggered filings and confidential designations. In the NPRM, the Board proposed changing its regulations to stagger the submission of confidential and public filings. Under the proposed rule, parties would submit highly confidential versions of the filings according to the procedural schedule, followed by public versions of those filings within three business days after the filing of the highly confidential versions. Additionally, the Board proposed standard identifying markers for the submission of confidential, highly confidential, and sensitive security information in both SAC and simplified standards rate cases.10 Specifically, the Board proposed that all confidential information be contained in single braces, i.e., {X}, all highly confidential information be contained in double braces, i.e., {{Y}}, and all sensitive security information be contained in triple braces, i.e., {{{Z}}}.

AAR and NGFA support the proposal to establish a standard convention for identifying confidential, highly confidential, and sensitive security information. (See AAR NPRM Comments 7; NGFA NPRM Comments 5.) AAR, Coal Shippers/NARUC, and NGFA also support the Board's proposal to stagger the submission of public and highly confidential versions of filings.11 (See AAR NPRM Comments 7; Coal Shippers/NARUC NPRM Comments 38; NGFA NPRM Comments 5.)

ACC, TFI, and NITL do not object to this proposal but question whether it is feasible in practice. (ACC, TFI, & NITL NPRM Comments 6.) Specifically, ACC, TFI, and NITL state that, if confidentiality designations are not made until after the highly confidential version has been filed, confidential versions would no longer identify confidential text; as such, parties will have to cross-reference the confidential versions with the redacted public versions to identify confidential text, a process they claim is cumbersome and creates risk of inadvertent disclosures of confidential information. (ACC, TFI, & NITL NPRM Comments 6; ACC, TFI, & NITL NPRM Reply 8.) Coal Shippers/NARUC, however, believe the Board's proposal would be feasible in practice and note that ACC, TFI, and NITL's feasibility concern appears to be premised on a scenario where the Board's proposal is interpreted as not requiring parties to make all bracket designations (i.e., highly confidential, confidential, and sensitive security information) when they make their initial filings with the Board containing this information. Coal Shippers/NARUC ask the Board to clarify its intent given ACC, TFI, and NITL's concern. (Coal Shippers/NARUC NPRM Reply 19-20.)

The Board finds that the standard designations for confidential information will help eliminate any confusion caused by parties using different methods of identification and, accordingly, this proposal will be adopted in the final rules. The Board also continues to believe that the proposal to stagger the filing of confidential and public filings will be beneficial and, therefore, will adopt this proposal as well. However, the Board will provide clarification in response to ACC, TFI, and NITL's concern regarding the feasibility of staggering the filings. Under the NPRM, a party would submit, by the deadline set forth in the procedural schedule, the non-public (e.g., confidential, highly confidential) version(s) of its filing with the appropriate confidentiality designations around any confidential, highly confidential, and sensitive security information.12 In this fashion, a party's non-public version(s) will clearly designate what information is confidential, highly confidential, and sensitive security information. The non-public version(s) would not be posted to the Board's Web site. The party would then have an additional three days to redact the confidential, highly confidential, and sensitive security information from the document(s) it filed with the Board and submit a public version of the filing to the Board. Thus, all confidentiality designations would be included in the initial version(s) of the filing submitted to the Board by the procedural deadline, indicating which information is non-public and the degree of confidentiality assigned. Accordingly, parties would not need to cross-reference the non-public version(s) with the redacted public version(s) to identify confidential text, as ACC, TFI, and NITL suggest. Rather, the purpose of this requirement is to provide parties a reasonable amount of time to ensure confidentiality redactions are properly made after submitting the non-public version(s) of each filing without delaying the case. To codify this clarification in the final rule, the Board will replace the phrase “highly confidential versions of filings” with “non-public (e.g., confidential, highly confidential) versions of filings.”

b. Limits on final briefs. In the NPRM, the Board proposed limiting the length of final briefs in SAC and Simplified-SAC cases to 30 pages, inclusive of exhibits.13 Coal Shippers/NARUC and NGFA generally support limits on the length of final briefs. (See ACC, TFI, & NITL NPRM Comments 7; Coal Shippers/NARUC NPRM Comments 38; NGFA NPRM Comments 5; Coal Shippers/NARUC NPRM Reply 21.) AAR also supports limiting final briefs but suggests that the Board set a limit of 30 pages or 13,000 words, consistent with the Federal Rules of Appellate Procedure, to avoid gamesmanship regarding type fonts and margins. (AAR NPRM Comments 8.) Neither ACC, TFI, and NITL nor Coal Shippers/NARUC object to such a word limit, although Coal Shippers/NARUC note that the Board's rules already contain standards governing document formatting and font sizes. (ACC, TFI, & NITL NPRM Reply 8; Coal Shippers/NARUC NPRM Reply 4-5, 21-22.)

ACC, TFI, and NITL also suggest that the Board stagger the submission of final briefs so a complainant would file its final brief two weeks after the defendant files its final brief. (ACC, TFI, & NITL NPRM Comments 7.) According to ACC, TFI, and NITL, staggering briefs would ensure that complainants, who have the burden of proof, can respond to the defendant's final brief rather than simply reiterate their rebuttal. (Id.; see also Coal Shippers/NARUC NPRM Reply 4-5, 21; NGFA NPRM Reply 4.) UP urges the Board to reject ACC, TFI, and NITL's proposal because final briefs are not evidence. (UP NPRM Reply 8 (citing NPRM, EP 733, slip op. at 9).) Similarly, AAR argues that a complainant that has not included improper new arguments or new evidence in its rebuttal evidence should have little need to “react” to a defendant's brief. (AAR NPRM Reply 8-10.) AAR also argues that staggering final briefs would make it harder for the Board to process cases expeditiously since the Board's deadline for deciding a case now runs from the filing of rebuttal evidence—not the filing of final briefs. (AAR NPRM Reply 8-10.)

AAR also asks the Board to reiterate its commitment to policing improper rebuttal evidence, strictly enforcing those rules, and either relieving defendants from the brief limit when responding to improper rebuttal evidence or giving defendants an opportunity to file a separate document (not subject to the brief length limit) that responds to improper rebuttal evidence. (AAR NPRM Comments 8.) ACC, TFI, and NITL object to AAR's proposal, arguing that it would give railroads the right to decide unilaterally when there has been an improper rebuttal and relieve themselves of brief limits. ACC, TFI, and NITL further state that the Board already has procedures for dealing with improper rebuttal evidence through motions to strike. (ACC, TFI, & NITL NPRM Reply 8.) Coal Shippers/NARUC also object to AAR's proposal, arguing that it would create a loophole that would defeat the purpose of the proposed rule and deprive shippers of procedural due process because shippers would not have an opportunity to respond to the carrier's claims of improper rebuttal. (Coal Shippers/NARUC NPRM Reply 5, 22.)

Lastly, NGFA recommends that the Board tailor final briefs to “specific issues of concern to the Board” by determining whether final briefs are needed on a case-by-case basis and imposing even shorter page limits where the issues do not justify 30 pages. (NGFA NPRM Comments 5-6.) Both Coal Shippers/NARUC and ACC, TFI, and NITL state that they do not object to the Board determining on a case-by-case bases the need for, and length of, final briefs. (ACC, TFI, & NITL NPRM Reply 9; Coal Shippers/NARUC NPRM Reply 4-5, 21.)

The Board will adopt the proposed 30-page limit, inclusive of exhibits, on the length of final briefs in SAC and Simplified-SAC cases. The Board believes the page limit will encourage parties to focus their briefs on the most important issues. As the Board noted in the NPRM, it has on occasion, in individual cases, imposed page limits on final briefs. See, e.g., Consumers Energy Co. v. CSX Transp., Inc., NOR 42142, slip op. at 1 (STB served June 3, 2016); Total Petrochems. & Ref. USA, Inc. v. CSX Transp., Inc., NOR 42121, slip op. at 4 (STB served Sept. 26, 2013). Based on the Board's prior experience in those cases, it believes 30 pages provides space sufficient for the parties to articulate their final concerns, but limited enough to prevent improper surrebuttal. The Board is not persuaded that a 13,000-word limit on final briefs, as proposed by AAR, is necessary to prevent gamesmanship regarding type fonts and margins. The Board's regulations already provide guidelines concerning document formatting and font sizes. See 49 CFR 1104.2 (“white paper not larger than 81/2 by 11 inches,” “double-spaced (except for footnotes and long quotations which may be single-spaced),” “using type not smaller than 12 point”).

The Board also declines to adopt ACC, TFI, and NITL's suggestion that the Board stagger the submission of final briefs. First, staggering final briefs would shorten the time between when final briefs are filed and when the Board must render a decision. Second, because parties are not permitted to raise new evidence or arguments in final briefs, a complainant need not respond to a defendant's final brief. Rather, final briefs are intended as a concise summary of the parties' positions to help focus the Board's analysis of the evidence and arguments and facilitate a more efficient resolution of outstanding issues. Nor will the Board adopt AAR's proposal to relieve defendants from the page limit to respond to improper rebuttal evidence or give defendants an opportunity to file a separate document when responding to improper rebuttal evidence. The Board agrees with ACC, TFI, and NITL that the Board's existing procedures for dealing with improper rebuttal evidence are sufficient.14

As the Board noted in the NPRM, while the Board believes designating topics for final briefs could be beneficial, doing so would require an additional Board decision following the close of evidence. The Board remains concerned that this additional step would curtail the already shortened period available to the Board for issuing a decision on the merits in SAC cases. The case-by-case approach regarding the necessity of and length for briefs proposed by NGFA would similarly require an additional decision by the Board. As is already the case, if, following receipt of final briefs, the Board believes it requires additional information to reach its decision, the Board may request supplemental information from the parties.

Interaction with Board Staff. In the NPRM, the Board proposed increasing staff involvement at all stages of a rate case, both through technical conferences/written questions and a Board-appointed liaison to the parties. This change was intended to reduce the number of disputes between the parties that can delay the resolution of cases. The Board proposed appointing a liaison to the parties within 10 business days of the submission of the pre-filing notice in SAC cases, and within 10 business days of the filing of the complaint in Simplified-SAC and Three-Benchmark cases. The liaison would not be recused from handling substantive elements of the case. In addition, the Board proposed greater use of written questions from staff and technical conferences with the parties at every stage of the case. When a technical conference is requested by a party or parties or convened by the Board, the Board would provide advance notice of the topics to be discussed to promote an efficient and productive conference.

ACC, TFI, and NITL support the Board's proposal, stating that a liaison will improve communications between the parties and with the Board, potentially resolve disagreements, provide guidance on process, and keep the case moving forward through status conferences. (ACC, TFI, & NITL NPRM Comments 3-4.) NGFA also supports this proposal, noting that the proposed staff involvement contemplated by the NPRM, including the establishment of ground rules, issue-specific Board expectations, and a point of contact for questions about the process, could prove to be extremely useful to grain and other agricultural shippers in the event such a case is filed. (NGFA NPRM Comments 6.)

Coal Shippers/NARUC also generally support the Board's proposal for increased staff involvement in rate cases, but suggest two modifications. (See Coal Shippers/NARUC NPRM Comments 39.) First, Coal Shippers/NARUC argue that the Board should appoint the liaison after the shipper files its complaint. (Coal Shippers/NARUC NPRM Reply 23.) According to Coal Shippers/NARUC, there is no need for the Board to appoint a staff liaison during the mediation period, and the appointment itself could cause confusion because the Board's rules call for the mediator to supervise the parties' mediation, not the liaison. (Coal Shippers/NARUC NPRM Comments 26.) NGFA, however, disagrees, arguing that appointment of a liaison should be made during the pre-filing phase to assist those parties that may be new to or unfamiliar with the rate-complaint process. (NGFA NPRM Reply 4-5.)

Second, Coal Shippers/NARUC request the Board clarify that the parties and the liaison must abide by the Board's rules governing ex parte communications. (Coal Shippers/NARUC NPRM Comments 27.) Specifically, Coal Shippers/NARUC argue: (1) The liaison should be free to engage in joint communications with counsel for the parties as is done in technical conferences; (2) while it may not be necessary for the liaison to convene joint meetings at all times, all communications between the liaison and any of the parties to a case (e.g., letters, emails, and phone discussions) should be joint ones (e.g., conference calls where both parties participate, written communications copied to all parties, etc.); and (3) unless the parties otherwise agree, the parties should not be permitted to address the merits of the case (or case evidence) with the liaison and the liaison should not be permitted to address the merits of the case (or case evidence) with the parties. (Id. at 27-28; Coal Shippers/NARUC NPRM Reply 23.)

UP argues that the ex parte restrictions proposed by Coal Shippers/NARUC are vague, would have a chilling effect on communications, and would undermine the usefulness of the staff liaison. (UP NPRM Reply 7.) Moreover, UP argues, the Board's ex parte regulations should address any concern shippers have. (Id.) Likewise, AAR argues that the Board's ex parte regulations do not require that “all communications” be joint ones because the ex parte regulations bar only communications “concerning the merits of the proceeding.” (AAR NPRM Reply 4.) AAR states that to effectively and efficiently manage rate cases, the staff liaison occasionally may need to communicate separately with parties on procedural issues, and such communications violate neither the ex parte rules nor the rules' purpose of safeguarding due process. (Id.)

AAR supports increased use of written questions and technical conferences and the appointment a staff liaison to a rate case; however, AAR asks the Board to clarify that the staff liaison and the appointed mediator would be two separate individuals. (AAR NPRM Comments 6; AAR NPRM Reply 3-4.) AAR further suggests the Board modify its regulations to delegate to the liaison the authority to convene a technical conference and to rule on issues raised in such conferences. (AAR NPRM Comments 6.) According to AAR, this modification would enable the liaison to facilitate negotiation among the parties while still providing a clear path for Board oversight, as the liaison's rulings would be subject to the appellate standards for interlocutory appeals under 49 CFR 1115.9(b). (Id.) ACC, TFI, and NITL do not endorse AAR's suggestion, arguing that if the Board were to adopt such a change, it should provide details in a subsequent rulemaking for public comment and any such proposal should address the division of responsibility between the liaison and administrative law judges. (ACC, TFI, & NITL NPRM Reply 4.) Coal Shippers/NARUC likewise object to AAR's proposal, arguing that it would delay Board consideration of rate cases and turn informal technical conferences into formal adversarial proceedings. (Coal Shippers/NARUC NPRM Reply 5, 25.) Coal Shippers/NARUC also note that AAR's proposal is at odds with the role the Board envisioned the liaison would perform. (Id. at 25 (citing NRPM, EP 733, slip op. at 9 (the function of the liaison is “to answer questions about the process and to intervene informally (e.g., hold status conferences) if it would help discovery or other matters move more smoothly”).))

The Board will adopt the proposal in the NPRM. The Board continues to believe that increased communication between the parties and the Board will increase the efficiency of processing rate cases. The Board also believes that the appropriate time to appoint the liaison is following the submission of the shipper's pre-filing notice. As the Board noted in the NPRM, the goal of the liaison is to increase staff involvement at all stages of a rate cases, which would begin with the newly created pre-complaint period. The Board does not agree with Coal Shippers/NARUC that the appointment of a liaison would cause confusion with the mediator. The liaison and mediator will be clearly identified and distinct individuals, and the liaison will not participate in the mediation.15

However, the Board will clarify that the liaison would be required to comply with the Board's ex parte regulations. See 49 CFR 1102.2; see also Ex Parte Commc'ns in Informal Rulemaking Proceedings, EP 739 (STB served Sept. 28, 2017) (proposing modifications to the Board's ex parte regulations in informal rulemaking proceedings). See 82 FR 45771 (Oct. 2, 2017). The Board is committed to ensuring that rate case proceedings, including the new liaison role, are conducted in a transparent and fair manner. Coal Shippers/NARUC have not provided any reason to believe that the Board's regulations would be ineffective; therefore, the Board finds no reason to expand its ex parte restrictions in rate case proceedings as suggested by Coal Shippers/NARUC.

Additionally, AAR's suggestion that the Board delegate to the liaison the authority to rule on issues exceeds the intended scope of the liaison's role. As noted in the NPRM, the liaison is intended to “answer questions about the process and to intervene informally (e.g., hold status conferences) if it would help discovery or other matters move more smoothly.” NPRM, EP 733, slip op. at 9. The liaison's role would be to work with parties to help primarily with procedural issues that arise through the processing of a rate case.16

Additional Comments. In addition to commenting on these specific proposals, some parties have also raised more general comments on how the Board could expedite rate cases. AAR notes certain internal reforms that could aid the Board in expediting rate case litigation without the need for changes to the Board's rules. (AAR NPRM Comments 10.) Specifically, AAR cites to five recommendations of the Institute for the Advancement of the American Legal System at the University of Denver: (1) Setting firm dates early in the pretrial process for the close of discovery, the filing of dispositive motions, and trial, and maintaining those dates except in rare and truly unusual circumstances; (2) ruling expeditiously on motions, even when the motions are denied; (3) limiting the number of extensions sought by the parties during any phase of the case; (4) working to foster a local legal culture that accepts efficient case processing as the norm, and enforcing that culture through active judicial case management; and (5) tracking the status of cases and motions through internal statistical reporting, and disseminating the results internally and externally as appropriate. (AAR NPRM Comments 8, 8 n.28. (citing Civil Case Processing in the Federal District Courts, Inst. for the Advancement of the Am. Legal Sys. 9-10 (2009), http://www.uscourts.gov/sites/default/files/iaals_civil_case_processing_in_the_federal_district_courts_0.pdf).) ACC, TFI, and NITL similarly argue that the Board should enforce deadlines for completing discovery and grant extensions of time only in extraordinary circumstances and for the shortest possible time. (ACC, TFI, & NITL NPRM Reply 9.) The Board appreciates that the parties offered these additional recommendations. The Board is committed to processing rate cases as expeditiously as possible, and agrees that it is important to timely rule on motions and grant extensions of time judiciously.

The final rule adopted by the Board here contains changes to the Board's regulations at 49 CFR parts 1104, 1109, 1111, 1114, and 1130, which are set out below. The final rule would amend the existing procedures for filing and litigating a rate case, as directed by section 11 of the STB Reauthorization Act. While the rules adopted here are largely in response to section 11 of the STB Reauthorization Act, the Board intends to continue to review its rate regulations so that it may propose additional improvements to its rate review process in a subsequent rulemaking proceeding.

Pre-Complaint Period. The final rule includes changes creating and detailing a pre-complaint period in SAC cases, which is intended to provide parties an opportunity to mediate the dispute free from the distraction of litigation and take steps in preparation for litigation before the filing of the complaint.

1. Pre-filing Notice. The Board creates a pre-complaint period in a new 49 CFR 1111.1 by requiring a SAC complainant to submit a pre-filing notice at least 70 days prior to filing its complaint.17 The pre-filing notice shall contain the rate and origin/destination pair(s) to be challenged, the commodities at issue, and a motion for protective order pursuant to newly created 49 CFR 1104.14(c).

2. Mandatory Mediation. The Board revises 49 CFR 1109.4 to move mandatory mediation in SAC cases to the pre-complaint period. This change to the regulations would not impose new requirements but would require mediation to take place earlier to allow parties to focus on the mediation process without the distractions of fully active litigation. The Board intends for mediation to be complete prior to the filing of the complaint; however, consistent with current procedures, the rules will allow for an extension of time via Board order. Additionally, the Board revises its regulations to provide that it will assign one or more mediators to a case within 5 business days after the shipper submits its pre-filing notice (rather than the 10-business day period currently in place).

3. Appointment of a Board Liaison to the Parties. The Board will require the appointment of a liaison to the parties within 10 business days of the complainant's submission of the pre-filing notice in SAC cases pursuant to new 49 CFR 1111.1(b) and in cases using simplified standards pursuant to newly redesignated 49 CFR 1111.10(a).

Discovery. The final rule also includes changes to the Board's discovery regulations intended to streamline discovery in rate cases.

1. Initial Discovery Requests. The Board will add 49 CFR 1111.2(f) and amend 49 CFR 1114.21(d) & (f) to require a complainant in a SAC proceeding to certify that it has served its initial discovery requests simultaneously with its complaint. The Board also will add 49 CFR 1111.5(f) and amend 49 CFR 1114.21(d) & (f) to require a defendant in a SAC proceeding to certify that it has served its initial discovery requests simultaneously with its answer. To address the filing of an amended or supplemental complaint, the Board will amend the newly redesignated 49 CFR 1111.3(b) to require the complainant to certify that it has served on the defendant any new or modified discovery requests affected by the amended or supplemental complaint, if any. The Board will adopt a corresponding requirement at 49 CFR 1111.5(f), in which a defendant responding to an amended or supplemental complaint must certify that it has served on the complainant any new or modified discovery requests affected by the amended or supplemental complaint, if any.

2. Meet-and-Confer Requirement. The Board will amend 49 CFR 1114.31(a)(2) to require that all motions to compel in SAC cases and cases filed under simplified standards include a certification that the party filing the motion has in good faith conferred or attempted to confer with the party failing to answer discovery to settle the dispute over those terms without Board intervention.

Evidentiary Submissions. The final rule includes changes to the Board's regulations governing the submission of evidence intended to improve and expedite the presentation of evidence in rate cases.

1. Stagger the Submission of Public and Highly Confidential Versions of Filings. In both SAC and simplified standards cases, the Board will allow parties to submit non-public (e.g., confidential, highly confidential) versions of the filings according to the procedural schedule in a particular case, and submit public versions of those filings within three business days after the filing of the non-public versions.

2. Standard Convention for Identifying Confidential, Highly Confidential, and Sensitive Security Information. The Board will revise 49 CFR 1104.14 to create standard identifying markers set forth in protective orders for the submission of confidential, highly confidential, and sensitive security information in rate cases. The standard identifying markers are as follows: All confidential information will be contained in single braces, i.e., {X}, all highly confidential information will be contained in double braces, i.e., {{Y}}, and all sensitive security information will be contained in triple braces, i.e., {{{Z}}}.

3. Limits on Final Briefs. The Board will limit the length of final briefs to 30 pages, inclusive of exhibits, in SAC and Simplified-SAC cases.

Technical Modifications. The Board adopts two technical modifications to the existing regulations. Specifically, the Board will amend the newly redesignated 49 CFR 1111.11(b) (requiring parties to meet at the beginning of the case to discuss procedural matters) to clarify that its requirements also apply to SAC cases. The Board also will amend 49 CFR 1130.1 to include the correct reference to the newly redesignated 49 CFR 1111.2(a).

Regulatory Flexibility Act. The Regulatory Flexibility Act of 1980 (RFA), 5 U.S.C. 601-612, generally requires a description and analysis of new rules that would have a significant economic impact on a substantial number of small entities. In drafting a rule, an agency is required to: (1) Assess the effect that its regulation will have on small entities; (2) analyze effective alternatives that may minimize a regulation's impact; and (3) make the analysis available for public comment. Sections 601-604. In its final rule, the agency must either include an initial regulatory flexibility analysis, section 603(a), or certify that the proposed rule would not have a “significant impact on a substantial number of small entities,” section 605(b). The impact must be a direct impact on small entities “whose conduct is circumscribed or mandated” by the proposed rule. White Eagle Coop. v. Conner, 553 F.3d 467, 480 (7th Cir. 2009).

In the NPRM, the Board certified under 5 U.S.C. 605(b) that the proposed rule would not have a significant economic impact on a substantial number of small entities within the meaning of the RFA.18 The Board explained that the proposed changes to its regulations would not mandate or circumscribe the conduct of small entities. Rather, the changes proposed would be largely procedural or would codify existing practice, and would not have a significant economic impact on small entities. Additionally, the Board noted that, since the inception of the Board in 1996, only three of the 51 filed cases challenging the reasonableness of freight rail rates involved a Class III rail carrier as a defendant. Those three cases involved a total of 13 Class III rail carriers. The Board estimated that there are approximately 656 Class III rail carriers. Therefore, the Board certified under 5 U.S.C. 605(b) that these proposed rules, if promulgated, would not have a significant economic impact on a substantial number of small entities within the meaning of the RFA.

The final rule adopted here revises the rules proposed in the NPRM; however, the same basis for the Board's certification of the proposed rule applies to the final rule. The final rule will not create a significant impact on a substantial number of small entities, as the regulations do not mandate or circumscribe the conduct of small entities. Thus, the Board again certifies under 5 U.S.C. 605(b) that the final rule will not have a significant economic impact on a substantial number of small entities within the meaning of the RFA. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration, Washington, DC 20416.

Paperwork Reduction Act. In this proceeding, the Board is modifying an existing collection of information that is currently approved by the Office of Management and Budget (OMB) through May 31, 2020, under OMB Control No. 2140-0029. In the NPRM, the Board sought comments pursuant to the Paperwork Reduction Act (PRA), 44 U.S.C. 3501-3549, and Office of Management and Budget (OMB) regulations at 5 CFR 1320.8(d)(3) regarding: (1) Whether the collection of information, as modified in the proposed rule and further described below, is necessary for the proper performance of the functions of the Board, including whether the collection has practical utility; (2) the accuracy of the Board's burden estimates; (3) ways to enhance the quality, utility, and clarity of the information collected; and (4) 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, when appropriate. No comments were received pertaining to the collection of this information under the PRA.

This modification to an existing collection will be submitted to OMB for review as required under the PRA, 44 U.S.C. 3507(d), and 5 CFR 1320.11.

It is ordered:

1. The Board adopts the final rule as set forth in this decision. Notice of the adopted rule will be published in the Federal Register.

2. This decision is effective December 30, 2017.

3. A copy of this decision will be served upon the Chief Counsel for Advocacy, Office of Advocacy, U.S. Small Business Administration.

For the reasons set forth in the preamble, the Surface Transportation Board amends title 49, chapter X, parts 1104, 1109, 1111, 1114, and 1130 of the Code of Federal Regulations as follows:

Regulations governing the summer flounder fishery are found at 50 CFR part 648. The regulations require annual specification of a commercial quota that is apportioned on a percentage basis among the coastal states from Maine through North Carolina. The process to set the annual commercial quota and the percent allocated to each state is described in § 648.102.

The coastwide commercial quota for summer flounder for the 2017 calendar year is 5,658,260 lb (2,566,544 kg) (81 FR 93842, December 22, 2016). The percent allocated to vessels landing summer flounder in New Jersey is 16.72499 percent, resulting in an initial commercial quota of 946,512 lb (429,331 kg). New Jersey conducted one quota transfer of 380 lb (172 kg) to Rhode Island on October 4, 2017 (82 FR 46936), reducing its commercial quota to 946,132 lb (429,158 kg).

The NMFS Administrator for the Greater Atlantic Region (Regional Administrator) monitors the state commercial landings and determines when a state's commercial quota has been harvested. NMFS is required to publish a notice in the Federal Register advising and notifying commercial vessels and dealer permit holders that, effective upon a specific date, the state's commercial quota has been harvested and no commercial summer flounder quota is available to land in that state. The Regional Administrator has determined, based on dealer reports and other available information, that the 2017 New Jersey commercial summer flounder quota will be harvested by December 11, 2017.

Section 648.4(b) provides that Federal permit holders agree, as a condition of the permit, not to land summer flounder in any state that the Regional Administrator has determined no longer has commercial quota available. Therefore, effective November 30, 2017, landing of summer flounder in New Jersey by vessels holding summer flounder commercial Federal fisheries permits is prohibited for the remainder of the 2017 calendar year, unless additional quota becomes available through a transfer and is announced in the Federal Register. Effective November 30, 2017, federally permitted dealers are also notified that they may not purchase summer flounder from vessels that land in New Jersey for the remainder of the calendar year, or until additional quota becomes available through a transfer from another state.

This action is required by 50 CFR part 648 and is exempt from review under Executive Order 12866.

The Assistant Administrator for Fisheries, NOAA, finds good cause pursuant to 5 U.S.C. 553(b)(B) to waive prior notice and the opportunity for public comment because it would be contrary to the public interest. This action closes the commercial summer flounder fishery for New Jersey through December 31, 2017, under current regulations. The regulations at § 648.103(b) require such action to ensure that summer flounder vessels do not exceed quotas allocated to the states. If implementation of this closure was delayed to solicit prior public comment, the quota for this fishing year will be exceeded, thereby undermining the conservation objectives of the Summer Flounder Fishery Management Plan. The Assistant Administrator further finds, pursuant to 5 U.S.C. 553(d)(3), good cause to waive the 30-day delayed effectiveness period for the reason stated above.