Federal Register Vol. 83, No.103,

Table of Contents I. Public Participation II. Background III. Proposed Removal of the IE Parole Program Regulations A. Description of the IE Final Rule B. Justification for Removing the IE Parole Program Regulations 1. Parole Is Not the Proper Vehicle for Implementing and Administering an Entrepreneur Immigration Program 2. Entrepreneurs Should Consider Using Existing Immigrant and Nonimmigrant Visas or Congress Could Amend an Existing or Establish an Additional Specialized Visa To Facilitate Investment and Innovation 3. Limited Agency Resources & DHS's Current Priorities C. Transition From the IE Parole Program Regulations IV. Statutory and Regulatory A. Administrative Procedure Act B. Executive Order 12866 (Regulatory Planning and Review) and 13563 (Improving Regulation and Regulatory Review) C. Regulatory Flexibility Act D. Unfunded Mandates Reform Act of 1995 E. Small Business Regulatory Enforcement Fairness Act of 1996 F. Executive Order 13132 (Federalism) G. Executive Order 12988 (Civil Justice Reform) H. National Environmental Policy Act (NEPA) I. Paperwork Reduction Act I. Public Participation

Interested persons are invited to comment on this rulemaking by submitting written data, views, or arguments on all aspects of the rule. Comments that will most assist DHS will focus on whether or not DHS should remove the IE parole program regulations and also explain the reasoning for each recommendation. Comments should include data, information, and the authority that supports each recommendation to the extent possible. Comments previously submitted to this docket do not need to be submitted again.

Instructions for filing comments: All submissions received should include the agency name and DHS docket number USCIS-2015-0006. All comments received (including any personal information provided) will be posted without change to http://www.regulations.gov. See ADDRESSES, above, for methods to submit comments.

On January 17, 2017, the Department of Homeland Security (“DHS” or “Department”) published the IE Final Rule, with an effective date of July 17, 2017. See 82 FR 5238. The IE Final Rule followed the publication of a notice of proposed rulemaking on August 31, 2016. See 81 FR 60130 (“IE NPRM”). The IE Final Rule amended DHS regulations to include criteria that would guide the Secretary's discretionary parole authority for international entrepreneurs who can demonstrate that their temporary parole into the United States under section 212(d)(5) of the Immigration and Nationality Act (INA) would provide a significant public benefit to the United States. The IE Final Rule's criteria allows an entrepreneur to make such a demonstration by showing that, among other things, the start-up entity in which he or she is an entrepreneur received significant capital investment from U.S. investors with established records of successful investments or obtained significant awards or grants from certain Federal, State, or local government entities.

In addition to defining criteria that could support a favorable exercise of the Secretary's discretionary parole authority, the final rule established a period of initial parole for up to 30 months (which could be extended by up to an additional 30 months) to facilitate the applicant's ability to oversee and grow his or her start-up entity in the United States. The final rule also provided for employment authorization incident to parole, such that the entrepreneur parolee would be able to engage in employment at his or her start-up entity immediately upon being paroled into the United States. Under the IE Final Rule, the entrepreneur's dependent spouse and children would be able to apply for parole to accompany or follow-to-join the principal entrepreneur. Dependent spouses would also be able to request employment authorization after being paroled into the United States, but not the entrepreneur's dependent children.

On January 25, 2017, the President issued an executive order (E.O.) prescribing improvements to border security and immigration enforcement. See E.O. 13767, Border Security and Immigration Enforcement Improvements, 82 FR 8793 (Jan. 25, 2017). Section 11(d) of the order requires the Secretary of Homeland Security to “take appropriate action to ensure that parole authority under section 212(d)(5) of the INA (8 U.S.C. 1182(d)(5)) is exercised only on a case-by-case basis in accordance with the plain language of the statute, and in all circumstances only when an individual demonstrates urgent humanitarian reasons or a significant public benefit derived from such parole.”

On July 11, 2017, DHS published a final rule with request for comments to delay the effective date of the IE Final Rule to March 14, 2018. See 82 FR 31887. On December 1, 2017 the U.S. District Court for the District of Columbia vacated the July 11, 2017 rule. See Nat'l Venture Capital Ass'n v. Duke, No. 17-1912, 2017 WL 5990122 (D.D.C. Dec. 1, 2017). In order to ensure compliance with the court order, on December 14, 2017, DHS began accepting applications for foreign entrepreneurs requesting parole under the IE Final Rule. In December 2017, DHS included a proposed rule to remove the IE Final Rule in the fall 2017 Unified Agenda.1

After review of the IE parole program regulations in accordance with E.O. Order 13767, DHS believes that the regulations comprising the IE parole program should be removed, and is soliciting public comments on its proposal to do so.2

Although DHS continues to support the policy objectives of promoting investment and innovation in the United States, the Department believes that the extraordinary use of the Secretary's discretionary parole authority for this purpose set forth in the IE Final Rule is unwarranted and inadvisable for several reasons. First, this sort of complex and highly-structured program contemplated in the IE Final Rule is best left to the legislative procees rather than an unorthodox use of the Secretary's authority to “temporarily” parole, in a categorical way, otherwise inadmissible aliens into the United States for “significant public benefit.” INA 212(d)(5)(A), 8 U.S.C. 1182(d)(5)(A). Second, the IE Final Rule constitutes an extraordinary use of the Secretary's parole authority, prescribing specific, detailed eligibility criteria and requiring exceptionally complex adjudications. Third, the IE Final Rule does not provide durable immigration solutions and in turn inadequately promotes the entrepreneur's ability to sustain the required investment and the jobs that depend on them. The Department believes that the Final Rule focused too narrowly on the economic benefits that potential foreign entrepreneurs may bring, without giving sufficient attention to the existing statutory scheme and the absence of a durable immigration status for these individuals, which is not made available through the device of temporary parole. Fourth, while the Department may eventually recover the costs relating to administration of the International Entrepreneur Rule, through fees paid by applicants for parole under the policy, use of the agency's present resources must be prioritized in light of the current Administration's priorities. As such, the Secretary believes that limited agency resources should not continue to be expended on this program, especially given the sort of difficult, complex, resource-intensive adjudications that the IE Final Rule requires, particularly in relation to other parole determinations. Finally, the Secretary is permitted to decide to exercise her discretionary parole authority under section 212(d)(5) more narrowly than her predecessor(s). The Secretary has elected to do so here for the reasons described herein and in the interest of the efficient, effective implementation of the current statutory scheme, which already prescribes conditions under which certain entrepreneurs and investors may obtain lawful immigration status (such as E-2 treaty investor nonimmigrant status), and in certain instances lawful permanent resident status in the United States (through investment of their own capital either under the employment-based fifth preference (EB-5) immigrant classification or through receipt of a National Interest Waiver of the job offer requirement under the employment-based second preference immigrant classification).

In the IE NPRM, DHS recognized that historically, DHS has exercised its parole authority on an ad hoc basis and with respect to individuals falling within certain classes of aliens identified by regulation or policy. 81 FR at 60134. DHS noted that its statutory parole authority is broad and that Congress did not define “significant public benefit.” Id. Based on various studies, DHS determined that “allowing certain qualified entrepreneurs to come to the United States as parolees on a case-by-case basis would produce a significant public benefit through substantial and positive contributions to innovation, economic growth, and job creation.” Id. at 60136. DHS reasoned in the IE proposed rule that establishing a regulation that would guide the process and evaluation of requests for parole being sought by entrepreneurs of start-up entities was important given that such adjudications could be complex. Id. at 60131.

DHS stands by its previous findings that foreign entrepreneurs make substantial and positive contributions to innovation, economic growth, and job creation in the United States. DHS, however, has reevaluated the IE parole program and believes that the governing regulation should be removed as inadvisable, impracticable, and an unwarranted use of limited agency resources. The Department believes that parole, which allows for the “temporary” entry of inadmissible aliens into the United States for “urgent humanitarian reasons or significant public benefit,” INA 212(d)(5)(A), is not an appropriate legal mechanism to establish and implement a complicated program for entrepreneurs and business startups that requires complex and time-consuming adjudications, both for initial parole and re-parole determinations.

The IE Final Rule's interpretation of significant public benefit, with its myriad and exceptionally detailed eligibility requirements relating to qualifying investments and start-up entities, amounted to an unconventional codification of significant public benefit parole criteria. Multiple commenters responding to the IE proposed rule opposed the rule because it sought to create an administrative program “for highly trained and talented entrepreneurs” without providing for durable immigration status or a concrete pathway to such a status, “when visa and residency pathways already exist” for such individuals. 82 FR at 5267. Upon further review and consideration of the IE Final Rule, DHS agrees with these commenters. The IE Final Rule focused too narrowly on the potential economic benefits that foreign entrepreneurs may bring, without giving sufficient attention to the existing statutory scheme wherein Congress has already provided pathways for certain entrepreneurs to come to the United States to start and grow their business, or to the absence of a durable immigration status for these individuals, which is not made available through the device of temporary parole.

In addition, agency resources are limited, and their use must be prioritized in light of the current Administration's priorities. As such, the Secretary believes that limited agency resources that are needed for other adjudications programs should not continue to be expended on this program, especially given the sort of difficult, complex, resource-intensive adjudications that the IE Final Rule requires, particularly in relation to other parole determinations, and the uncertain status that entrepreneurs would obtain.

These serious concerns motivate the reconsideration of this policy. The Secretary is permitted to decide to exercise her discretionary parole authority under section 212(d)(5) more narrowly than her predecessor(s). As proposed in this rule, the Secretary intends to apply more narrowly her discretionary parole authority for the reasons described herein and in the interest of the efficient, effective implementation of the current statutory scheme, which already prescribes conditions under which certain entrepreneurs and investors may obtain lawful immigration status, and eventually lawful permanent resident status, in the United States. DHS is therefore proposing to remove the regulations comprising the IE parole program.

DHS does not believe the framework of the rule adequately promotes the Administration's policy goals of attracting and retaining the best and brightest individuals from around the world, and encouraging investment and innovation in the United States. The approval of parole is inherently uncertain because it is wholly discretionary, whereas the approval of certain other types of immigration benefits (e.g. EB-5 immigrant investor petitions under INA 203(b)(5)) are not discretionary; if all applicable statutory and regulatory eligibility requirements are met, then the agency must approve the petition). Consequently, parole provides neither the entrepreneur nor the qualifying source of capital (whether private or public) with certainty or predictability necessary to ensure that a start-up entity is a success and ultimately provides a significant public benefit to the United States. Even if an entrepreneur satisfies the IE Final Rule's criteria, there is no certainty that the request for parole would be approved by USCIS in the exercise of discretion (see, e.g., final 8 CFR 212.19(d) 3 ) and, even if the request were approved, U.S. Customs and Border Protection (CBP) may decline to authorize parole at the port of entry.4 And unlike employment-based immigrant and nonimmigrant programs, parole does not allow for derivative beneficiaries, such that each spouse or child must demonstrate that his or her entry itself would serve a significant public benefit. Furthermore, individuals who are granted parole based on a finding of significant public benefit—which can be terminated, generally on notice, at any time in the Secretary's discretion based on a determination that public benefit no longer warrants the individual's continued presence—are not considered to have been admitted to the United States, and cannot change to a nonimmigrant status. To acquire nonimmigrant status, the parolee would have to depart the United States and, unless exempt, apply for a visa with the Department of State. See INA sections 101(a)(13)(B), 212(d)(5)(A), 248(a); 8 U.S.C. 1101(a)(13)(B), 1182(d)(5)(A), 1258(a); see also 8 CFR 212.5(e), 248.1. Moreover, parole does not by itself confer lawful permanent resident status or an avenue to obtain such status. To adjust status to that of a lawful permanent resident, individuals generally must, among other things, be admissible to the United States, have a family-preference or employment-based immigrant visa immediately available to them, and not be subject to the various bars to adjustment of status. See INA section 245(a), (c), (k); 8 U.S.C. 1255(a), (c), (k); 8 CFR 245.1.

To the extent indirect paths for parolees to remain for longer periods already exist, those paths are inherently uncertain. Although parole under the IE Final Rule may be granted for up to 30 months, with possible re-parole for an additional 30 months, it is highly uncertain whether paroled entrepreneurs, including those who successfully start or grow a business in the United States, would qualify for an existing employment-based nonimmigrant or immigrant classification after an approved period of parole ends. The entrepreneur, if unable to qualify for an employment-based nonimmigrant or immigrant classification, most likely would be required to depart the United States and possibly move their operations abroad, eliminating possible further benefit to this country, and possibly creating some negative impacts to U.S. investors. Thus, reliance upon parole adds an additional degree of risk and unpredictability for the U.S. investors who may not be able to achieve the anticipated return on their investment, as well as any U.S. workers employed by or seeking employment with the start-up. This same degree of risk and unpredictability would generally not apply to entities started by U.S. entrepreneurs or even foreign entrepreneurs lawfully relying upon existing nonimmigrant or immigrant visa classifications. While DHS under the former Administration considered some of these risks, having re-evaluated the IE Final Rule consistent with President Trump's Executive Order, DHS now believes that they are significant negative factors supporting its decision to propose removing the IE Final Rule.

While DHS recognizes that some foreign entrepreneurs may face difficulty establishing eligibility under existing nonimmigrant and immigrant categories, options are still available for some foreign entrepreneurs, and removing the IE Final Rule would be more congruent with the overall statutory scheme.

Facilitating investment and innovation in the United States is of great importance to our country's ability to lead and remain competitive in the global marketplace. As indicated above, the United States has visa classifications that can be used by certain entrepreneurs or investors coming to the United States, e.g., E-2 treaty investor nonimmigrant classification, EB-5 immigrant classification, INA sections 101(a)(15)(E), 203(b)(5). While these classifications do not encompass the entire population of entrepreneurs addressed in the IE Final Rule, Congress could create a new visa classification to provide legal immigration status to foreign nationals seeking to remain and start businesses in the United States using venture capital or other U.S.-sourced funding.5 DHS believes this would be a more appropriate means for doing so because Congress is uniquely well-positioned to balance the many competing and complex policy priorities in attracting and retaining foreign entrepreneurs and promoting investment and innovation in the United States, including but not limited to incentivizing innovation and competitiveness of American entrepreneurs, job creation and protection of U.S. workers, United States trade objectives and foreign relations with many nations, and whether U.S. citizens and nationals who seek to pursue entrepreneurial endeavors abroad are treated on par with foreign nationals who seek to seed and promote their start-up entities in the United States. Therefore, in removing the IE Final Rule, DHS is proposing to defer to Congress on whether, and if so how to best create a specific immigration pathway that addresses the unique and varied characteristics of foreign entrepreneurs through the legislative process.

In addition to the considerations discussed above, DHS believes that continuing to administer the IE Final Rule is out of sync with DHS' current policy priorities. The President has tasked DHS with improving existing employment-based immigrant and nonimmigrant visa programs to ensure program integrity and protect the interests of U.S. workers. Given that USCIS already has an established process for assessing a variety of individual parole requests, DHS does not believe that it would be appropriate to continue to expend limited agency resources to administer a parallel and complex regulatory parole framework. The assessments required for a parole determination under this program—including, among others, to resolve “substantial ownership interest” questions, whether the entity has a “substantial potential for rapid growth and job creation,” whether the applicant is “well-positioned . . . to substantially assist” with the growth and success of the business, whether the start-up entity has received “lawfully derived capital,” whether the entity has received either the requisite investment threshold or qualifying “significant awards or grants for economic development” or both, and whether an investor is “qualified” under the rule and has an established record of successful investments—would be highly challenging and extremely labor intensive. See 82 FR at 5286-89. Continuing to administer this parallel framework requires USCIS to expend significant resources to hire and train additional adjudicators with specific technical expertise, modify intake and case management information technology systems, revise application and fee intake contracts, develop guidance for the adjudicators, and communicate with the public about these changes. While the monetary costs associated with continuing to administer the framework to process these applications might be recovered over time, USCIS will not be able to offset the opportunity costs associated with diverting limited agency resources that are needed to meet the current Administration's priorities (for example, reviewing other existing immigration programs, developing new proposed regulatory changes, and carrying out initiatives to better deter and detect fraud and abuse). As such, DHS believes that removal of the IE Final Rule is appropriate to ensure that the agency's limited resources are used in an efficient and effective manner to implement the existing statutory scheme, and to limit the opportunity cost associated with diverting resources (e.g., personnel, training resources) away from other programs in order to continue to administer this parallel framework.

DHS thus proposes, at least in this context, returning to the use of significant public benefit parole as it existed prior to issuance of the IE Final Rule, leaving to Congress whether to establish an entrepreneur immigration program and, in the meantime, encouraging individuals to pursue immigrant and nonimmigrant opportunities already provided in the immigration laws.

Accordingly, DHS proposes to remove the IE parole regulations. DHS is not removing the unrelated revisions to 8 CFR 274a.2(b)(1)(v)(C)(2) promulgated as part of the IE Final Rule which added the Department of State Consular Report of Birth Abroad (Form FS-240) to the regulatory text and to the “List C” listing of acceptable documents for Form I-9 verification purposes. See 82 FR at 5241 n.3. This regulatory change and accompanying form instructions went into effect on July 17, 2017, as originally provided in the IE Final Rule.

In proposing to end the IE parole program and remove the related regulations, DHS is actively considering the transition away from the program. To date, USCIS has received 13 IE parole applications. DHS has not yet granted parole under this program. Under the IE final rule, DHS has discretion to, on a case-by-case basis, approve periods of parole for up to 30 months, including shorter durations. In addition, DHS is considering a number of options for transitioning away from the IE parole program and is specifically soliciting public comments on these options. The options discussed below assume that the final rule removing the IE parole program regulations would go into effect 30 days after publication. The following discussion is organized into groupings by the stage of the parole process an individual may be in on the effective date of the rule finalizing the removal of IE parole program regulations.

a. Automatic termination of IE parole on the effective date of the final rule. DHS believes that terminating IE parole and associated employment authorization on the effective date of the final rule removing the IE parole program regulations is most in line with its proposed policy objectives and reasons for terminating the IE parole program. See E.O. 13767, Border Security and Immigration Enforcement Improvements, 82 FR 8793 (Jan. 25, 2017). Therefore, this is DHS's preferred option for this rulemaking. DHS would amend its regulations to include a provision under which on the effective date of the final rule, parole granted under the IE final rule to both individual entrepreneurs, as well as any spouses and children of such entrepreneurs, would end. In addition, the employment authorization for entrepreneurs and their spouses would be automatically terminated, even if the employment authorization documents for entrepreneur spouses have expiration dates after the effective date of the final rule. Depending on circumstances of the individual whose parole is terminated, including his or her age, the individual may also begin to accrue unlawful presence when IE parole is terminated.

b. Termination of parole on notice. Under this option, DHS would amend its regulations governing termination of parole at 8 CFR 212.19(k) to authorize the termination of all parole granted under the IE final rule after notice and an opportunity for the entrepreneur and any spouse and child of such entrepreneur to demonstrate that parole would otherwise be warranted under the existing non-IE final rule parole framework. The issuance of a notice of intent to terminate would create a presumption of termination that the entrepreneur could overcome by demonstrating that he or she has urgent humanitarian reasons or continues to provide a significant public benefit under 8 CFR 212.5 and merits a favorable exercise of discretion. Depending on the evidence provided, DHS could terminate or amend the period of parole as necessary to align the appropriate timeframe to accomplish the purpose of the parole. Under this option, if DHS determines that parole is warranted under 8 CFR 212.5, the individual would be able to remain in the United States as a parolee as evidenced by Form I-94. However, such Form I-94 would no longer be considered concurrent evidence of employment authorization incident to parole for the entrepreneur. While parolees granted parole under 8 CFR 212.5 may receive employment authorization, under current regulations, they do not receive employment authorization incident to parole and, therefore, cannot use their Form I-94 as evidence of employment authorization. Instead, such parolees must file an Application for Employment Authorization (Form I-765) with the required fee with USCIS on the basis of 8 CFR 274.12(c)(11). If granted, employment authorization would be evidenced on Form I-766 (Employment Authorization Document, EAD), rather than Form I-94. Similarly, the EAD of a spouse of an entrepreneur parolee that is based on 8 CFR 274a.12(c)(34) would no longer be evidence of his or her employment authorization. The spouse of the entrepreneur would have to apply for work authorization under 8 CFR 274a.12(c)(11). Given that DHS is proposing to end IE regulation-based parole, DHS does not believe that the regulations should be amended to make an exception for the small group of parolees who may be affected by this rulemaking by providing for continued employment authorization incident to parole for the entrepreneurs or allowing the spouses to continue work on a facially invalid EAD. However, DHS welcomes public comment on this issue. To minimize a potential gap in employment authorization under this option, DHS is considering permitting individuals to submit Forms I-765 with their response to a Notice of Intent to Terminate.

For those cases where DHS decides that termination of parole is warranted, the individual's employment authorization would be terminated on the date of the final notice of termination. There would be no opportunity to appeal a parole termination decision.

c. Reopening of IE parole determination. Under this option, DHS would reopen all of the IE parole adjudications on its own motion, without fee to the applicant, consistent with 8 CFR 103.5(a)(5), and provide the entrepreneur and any spouse or child of the entrepreneur with the opportunity to present evidence that he or she is eligible for parole under the existing non-IE final rule parole framework, rather than IE parole program regulations. DHS would consider eligibility for parole de novo under 8 CFR 212.5, including evidence already in the record and any new evidence the entrepreneur may provide. If DHS determines that the individual warrants a favorable exercise of discretion, DHS would issue a final decision. However, to receive employment authorization, the individual would need to make a request by filing an Application for Employment Authorization (Form I-765) with USCIS on the basis of 8 CFR 274a.12(c)(11). As discussed under the previous option involving Notices of Intent to Terminate, if DHS were to grant parole under 8 CFR 212.5, such parole would not include the benefit of employment authorization incident to parole. Therefore, employment authorization would have to be separately requested (with the required fee), granted, and evidenced through issuance of Form I-766 (Employment Authorization Document, EAD). Under this option, DHS could change the original validity period of parole in line with its case-by-case determination and underlying purpose of the parole.

d. Expiration of initial period of parole. Under this option, DHS would allow the parole approved under the IE parole program regulations to naturally expire, along with any associated employment authorization, unless otherwise terminated on other grounds. In this scenario, DHS would provide a later effective date for the removal of the § 212.19(k) termination provisions in order to retain the specific termination grounds for any individuals who remain paroled under the IE parole program. This approach would apply to the entrepreneur and any dependent spouse or child of the entrepreneur.

a. Automatic Termination. DHS believes that automatically terminating the approval of all I-941 parole applications is most in line with its proposed policy objectives and purpose for removing the IE parole program regulations and, therefore, is DHS's preferred option. DHS would amend its regulations at 8 CFR 212.19 to authorize, notwithstanding 8 CFR 212.5(e), automatic termination of approvals of Forms I-941 approved under the IE final rule. Such termination of the approval would prevent the individual from seeking parole pursuant to the approved Form I-941 at the port of entry or from obtaining automatic employment authorization (entrepreneurs) or applying for employment authorization on the basis of parole (spouses of entrepreneurs) unless the individual separately applies for and is granted parole under the existing non-IE final rule parole framework. If an individual is paroled into the United States, he or she would need to apply for employment authorization pursuant to 8 CFR 274a.12(c)(11).

b. Termination of advance parole document on notice. Under this option, DHS would amend its regulations governing termination of parole to authorize terminating USCIS-approved IE advance parole documents after notice and opportunity to respond is provided to the entrepreneur and any spouse and child of such entrepreneur—including demonstrating that parole would otherwise be warranted under the existing non-IE final rule parole framework. The issuance of a notice of intent to terminate would create a presumption of termination that the entrepreneur could overcome by demonstrating that he or she has urgent humanitarian reasons or continues to provide a significant public benefit under 8 CFR 212.5 and merits a favorable exercise of discretion. Depending on the evidence provided, DHS could terminate or amend the period of parole as necessary to align the appropriate timeframe to accomplish the purpose of the parole. If the advance parole document remains approved, individuals could then seek to be paroled into the United States at a port of entry. Under this option, employment authorization for an entrepreneur would not be automatic for the entrepreneur; rather, each individual parolee would need to separately apply for employment authorization, with the required fee, pursuant to 8 CFR 274a.12(c)(11) to the extent consistent with the purpose of parole.

c. Re-opening of IE parole determination. Under this option, DHS would reopen all approved I-941 parole applications on its own motion, without fee to the applicant, consistent with 8 CFR 103.5(a)(5) and provide the entrepreneur and any spouse or child of the entrepreneur with the opportunity to present evidence that would allow DHS to reconsider the grant of parole under the existing non-IE final rule parole framework, rather than the IE parole program regulations. DHS would consider eligibility for parole de novo under 8 CFR 212.5, including evidence already in the record and any new evidence the entrepreneur may provide. If DHS determines that the individual warrants a favorable exercise of discretion, DHS would issue a final decision and the individual could then seek to be paroled into the United States. Under this option, and to the extent applicable, each parolee would need to apply for employment authorization, with the required fee, pursuant to 8 CFR 274a.12(c)(11) to the extent consistent with the purpose of parole.

a. Rejection of pending parole applications. Under this option, DHS would amend its regulations to allow for the rejecting of all pending I-941 applications for IE parole, and the return or refund of associated fees. This approach would be most consistent with DHS's proposed policy objectives and purpose for withdrawing the IE parole program regulations and, therefore, is DHS's preferred option.

b. Withdrawal of pending applications for parole or conversion to adjudication under the existing non-IE final rule parole framework. Under this option, DHS would amend its regulations to allow applicants to request to withdraw pending parole applications and request refund of all application fees or would issue a request for evidence (RFE) to allow applicants to demonstrate that they warrant the favorable exercise of discretion under the existing non-IE final rule parole framework. DHS is considering providing a period of 60 days after the effective date of the rule during which individuals may request withdrawal and full refund of application fees. If during that period an application is not withdrawn, DHS would proceed to adjudicate the application by issuing an RFE. Where the applicant does not respond to the RFE or is not able to demonstrate that he or she merits the favorable exercise of discretion under the existing non-IE final rule parole framework, DHS would deny the application and retain the application fee. Note that for those applicants whose applications are granted, and who are later paroled into the United States, the basis for their parole would be under 8 CFR 212.5 rather than 8 CFR 212.19. Therefore, employment would not be authorized incident to parole, and evidence of parole on Form I-94 could not also serve as evidence of employment authorization. Instead, those parolees seeking employment authorization in the United States would need to file an Application for Employment Authorization, with the required fee, with USCIS under 8 CFR 274a.12(c)(11). Because spouses and children of the entrepreneur would be applying for parole separately under the 8 CFR 212.5 criteria, spouses and children (otherwise eligible to work based on their age) could also submit Applications for Employment Authorization under 8 CFR 274a.12(c)(11).

c. Adjudication of pending parole applications under the IE final rule criteria. Under this option, DHS would continue to adjudicate all pending applications that were received prior to the effective date of the rescission under the IE final rule criteria at 8 CFR 212.19 until all such applications are either approved or denied. Where an application is approved, the individual could seek to be paroled into the United States at a port of entry. Entrepreneurs approved under the IE final rule would also benefit from employment authorization incident to their parole and their spouses whose parole is approved could apply for employment authorization in line with IE final rule requirements. Under this option, children of entrepreneurs would continue to be ineligible for employment authorization as specified in the IE final rule. In addition, DHS would retain the discretion to approve parole for an initial period of up to 30 months, which may be less than 30 months. In this scenario, DHS would provide a later effective date for the removal of the § 212.19(k) termination provisions in order to retain the specific termination grounds for any individuals who remain paroled under the IE parole program. DHS is also considering a variation on this proposal, in which it would amend its regulations to truncate the initial period of parole to a shorter duration, e.g., 12 months for all pending requests that are approved.

Upon the termination of the IE parole program, individuals would not be able to seek re-parole under 8 CFR 212.19.

DHS is soliciting public comments on all of the options proposed for transitioning away from the IE parole program.

DHS is publishing this proposed rule to remove the IE parole program regulations with a 30-day comment period in the Federal Register in accordance with the Administrative Procedure Act, 5 U.S.C. 553. DHS separately published a final rule on July 11, 2017, with a request for comments to extend the effective date of the IE Final Rule to March 14, 2018. On December 1, 2017, the U.S. District Court for the District of Columbia vacated that rule. See Nat'l Venture Capital Ass'n v. Duke, No. 17-1912, 2017 WL 5990122 (D.D.C. Dec. 1, 2017).

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 (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This rule has been designated a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, the rule has been reviewed by the Office of Management and Budget.

As was described fully in Part IV, Statutory and Regulatory Requirements of the IE Final Rule,6 the costs of that rule consisted of the filing costs of principal applicants applying for parole and from the associated filing costs of dependents of principal applicants. Therefore, this proposal to remove the IE parole program regulations would result in a loss of these filing costs for those entrepreneurs and their dependents who apply for parole that would later be terminated. DHS stands by its previous findings that foreign entrepreneurs have made substantial and positive contributions to innovation, economic growth, and job creation in the United States, and that therefore the removal of the rule could cause potential loss of some of these economic benefits. However, for reasons explained previously, DHS is proposing to remove the IE parole program regulations after determining that the program is not a good use of DHS resources. While the monetary costs associated with developing and implementing the framework to process and adjudicate the applications might be recovered by the fees USCIS charges for applications, USCIS would not be able to offset the opportunity costs associated with diverting limited agency resources that are needed to meet other current priorities.

In the IE Final Rule, DHS cited studies that provided general support for the positive effects of entrepreneurs, but did not attempt to estimate the total number of new jobs that might be produced or quantify any new economic activity that might take place. Here, DHS has not attempted to estimate the total number of jobs that might not be produced or to quantify any new economic activity that might not take place with the removal of this rule. This discussion regarding the net impact on economic activity, for which we specifically request comment, also depends critically on the extent to which entrepreneurs would avail themselves of other immigraton programs. The costs of this rule would also depend on the costs of the other programs to which entrepreneurs might avail themselves. However, DHS is not able to predict which other programs these entrepreneurs would be eligible for since it would be specific to the circumstances of the entrepreneur. Therefore, these costs are not quantified in this proposed rule and DHS requests any data or comments on such costs. DHS had previously estimated that 2,940 foreign nationals annually could be eligible to apply for parole under the IE Final Rule, but also stated “DHS has no way of predicting with certainty the actual number of foreign nationals who will seek parole under [the IE rule] rule over time.” 82 FR 5277. This remains true as of the publication of this proposal.

The filing costs associated with the IE Final Rule involved the application fees as well as the opportunity costs of time associated with filing. Each principal applicant faces a filing cost of $1,200 for the Application for Entrepreneur Parole (Form I-941), and additional costs of $405.32, which covered the costs of submitting biometric information and the time related opportunity costs of filing for parole. This additional monetized cost breakdown includes an $85 per applicant biometrics filing fee and $28.75 in costs incurred for travel to an application support center (ASC) to submit the information.7 The total time burden of filing, biometrics submission, and associated travel is estimated to be 8.37 hours. In order to anticipate the full opportunity cost of time to petitioners, DHS multiplied the average hourly U.S. wage rate by 1.46 to account for the full cost of employee benefits such as paid leave, insurance, and retirement,8 for a total of $34.84.9 Multiplying this benefits-burdened average hourly wage of $34.84 by 8.37 hours yields $291.57 in time-related opportunity costs. Adding this $291.57 opportunity costs, the $85 biometrics fee and the $28.75 travel cost yields $405.32. The total cost per principal applicant for entrepreneur parole was expected to be $1,605.32.10 If DHS receives as many as 2,940 applications from persons eligible to apply, such applications would result in annual costs of $4,719,641.11

In addition, the spouse of each principal is able to file for employment authorization under the IE Final Rule via an Application for Employment Authorization (Form I-765) with a filing fee of $410. DHS estimates that the Form I-765 would take 3.42 hours to complete, generating time related opportunity costs of $36.20. The total costs per applicant would be $446.20, which for 2,940 spousal applicants would result in total costs of $1,311,830.12

In addition, DHS projected approximately 3,234 dependents could file an Application for Travel Document (Form I-131) and be required to submit biometrics. The fee for the Form I-131 is $575 and each applicant would face additional costs of $190.28, yielding a total cost per I-131 applicant of $765.28, which for the estimated 3,234 applicants would amount to $2,474,914.13

This proposed rule would remove the IE parole program regulations and therefore, the filing costs described above would be sunk costs for those entrepreneurs who have applied for parole since the effective date, but would no longer maintain parole once this rule is finalized. Additionally, DHS assumes that there will be familiarization costs associated with this rule. DHS assumes that each entreprenuer who has applied or been approved for parole would need to review the rule. Similarly, DHS assumes that the start-up entity and its investors also would need to review the rule. Based on the 2,940 IEs referenced as a maximum number of entrepreneurs who may apply, DHS assumes a total of at least 2,940 entrepreneurs would likely need to review the rule. It is also likely that some investors, venture capitalists, angel investors, and others who may be involved in the startup would also review the rule. DHS does not have data on the number of startups or investors who would need to review this rule at this time, and hence, will use 2,940 as a reasonable estimate. DHS assumes that it would take about 2 hours to review and inform any additional parties of the changes in this proposed rule. As mentioned previously, the weighted 2016 mean hourly wage across all occupations is $34.84. Therefore, the total cost of familiarization would be $204,859 based on the maximum number of potential IEs.14

In addition to the filing costs and familiarization of the final rule withdrawing the International Entrepreneur parole program, those entrepreneurs and their dependents who have approved parole and would have already traveled to the United States could incur some additional costs by leaving the United States earlier than expected. Such costs could be associated with the early notice of termination of housing or vehicle leases or with removing dependent children from school among other costs. Additionally, these entrepreneurs would have expended money, time, and/or other resources in their start-up entity. Under the original IE final rule, entrepreneurs have to show ownership in the start-up at the time they apply for IE parole. Even if the IE has to leave the country, they can still remain owners and work for the start-up from outside of the country. The rescission of the IE parole program means that they cannot work for the start-up from within the United States on this basis. It is possible that when the IE leaves, the start-up could lose additional funding from both current and future investors, but it is also possible that current and future investors could be undeterred by the IE's departure and could continue to fund the start-up entity's continued operations and growth. DHS is not able to predict the behavior of these entrepreneurs or their investors at this time. Additionally, DHS notes that it is also possible that the start-up entity may have one or more co-founders/owners, and those co-founders/owners could be U.S. citizens or otherwise authorized to work in the United States. As such, the IE's temporary or permanent departure from the country would not automatically mean that the start-up would dissolve. Though there is a possibility that the start-up entity could move outside of the United States with the entrepreneur as a result of this rule as well. DHS welcomes any public comments on the costs associated with the automatic termination option.

DHS also recognizes that it may be possible that once this rule is final and becomes effective that some spouses already paroled into the United States would be involuntarily separated from their employers. These employers would then face labor turnover costs as a result. While DHS estimates a total of 2,940 spouses of entrepreneurs who may be eligible to apply for parole, DHS cannot predict how many of these spouses and entrepreneurs will apply before this proposed rule would become finalized or how many entrepreneurs and spouses would qualify under other parole provisions and remain in the country. Therefore, DHS does not estimate the number of spouses who may involuntarily be separated or the number of companies that might incur labor turnover costs.

However, DHS can estimate the cost of labor turnover per spouse to employers. DHS has reviewed recent research and literature concerning turnover costs. While there is not an abundance of recently published peer-reviewed research to draw on, there are several dozen studies available which are cited repeatedly across various reports. These studies focus on specific locations and occupations, and measure turnover costs in different ways. A 2012 report published by the Center for American Progress surveyed several dozen studies that considered both direct and indirect costs and determined that turnover costs per employee ranged from 10 to 30 percent of the salary for most salaried workers, and, on average, an employer paid an average of about 20 percent of the worker's salary in total labor turnover costs.15 Consistent with wages used for filing costs, if we assume the spouse is making the weighted minimum wage of $10.59 and assume typical annual work hours of 2,080, the annual salary would be $22,027 for a spouse. If DHS uses 20 percent of the spouse's salary to estimate labor related turnover costs, each employer that hired a spouse would incur a labor related turnover cost of $4,405 per worker.16

Entrepreneurs who have been approved for parole and have already traveled to the United States may be considered under the non-IE final rule parole framework. These entrepreneurs would be sent a notice of intent to terminate by USCIS. During this time, entrepreneurs may present information to be considered under the non-IE related parole framework. IEs would incur some additional time burden in gathering and submitting information to show they remain eligible for parole. However, DHS anticipates this time burden to be minimal. There may be some additional costs to the government in reconsidering these applications. However, those costs are anticipated to be minimal and covered by the original filing fees. USCIS would incur some costs associated with the creating and mailing of these notices, though DHS also anticipates these costs to be minimal. DHS would not require the IE or dependents to file an additional parole application and therefore, no fees would be charged. Under this option, however, if IEs are approved under the non-IE related parole framework, the IE and their dependents would be required to submit a Form I-765 with the notice of intent to terminate to minimize gaps in employment authorization. Form I-765 includes a filing fee of $410 and a total time burden of 3.42 hours to complete and file the application. Using the weighted mean hourly wage previously established of $34.84, the total cost for entrepreneurs to file Form I-765 is $529 per application.17 As previously discussed, the total cost for dependents to file Form I-765 is $446 per application.18 DHS does not have an estimate of the numbers of entrepreneurs or dependents that may qualify to apply for employment authorization under another non-IE related parole.

Under the option to reopen all IE parole adjudications for those IE with approved parole and already in the United States, DHS anticipates minimal costs to IE associated with the burden of providing evidence for parole under the existing non-IE final rule parole framework, rather than IE parole program regulations. DHS does not plan to charge any filing fees for reopening adjudication in these cases because they will be reopened on USCIS's own motion. DHS believes the benefits of being considered under the non-IE final rule parole framework outweighs the minimal burdens added by presenting additional evidence. As with the notice of intent to terminate option, entrepreneurs and dependents would be required to submit a Form I-765 for employment authorization if approved for non-IE related parole. Entrepreneurs and dependents would incur costs of $529 and $446 per application, respectively. Again, DHS is not able to estimate the number of applicants who might be eligible for non-IE related parole.

Finally, the option to allow parole approved under the IE parole program regulations to naturally expire, along with any associated employment authorization, unless otherwise terminated on other grounds would require no additional costs on behalf of the applicant or the government.

For those indviduals who have an approved IE parole application, but have not yet traveled to the United States, automatic termination for these individuals would result in the loss of the costs associated with filing Form I-941 totaling $1,605 per principal application. If the entrepreneur's dependents filed for Form I-131, additional losses of $765 per application would be incurred for parole that could never be realized. If these applications are automatically terminated, these individuals would lose any costs if they attempt to seek parole pursuant to the IE parole program at a port of entry after the effectiveness of this termination. DHS cannot predict how many IEs may fall into this group at this time, but welcomes comments from the public.

For the option of termination of the advance parole document on notice, those IEs who would receive notice and the opportunity to respond would incur some costs in terms of burden associated with providing evidence to demonstrate that parole would otherwise be warranted under the existing non-IE final rule parole framework for the entrepreneur and any dependents of such entrepreneur. Depending on the evidence provided, DHS may terminate or amend the validity period of the advance parole as necessary to align the appropriate timeframe to accomplish the purpose of the parole. If the advance parole document remains approved, individuals could then seek, during the validity of the advance parole document, to be paroled into the United States at a port of entry. Under this option, employment authorization for an entrepreneur would not be automatic; rather, each individual parolee would need to separately apply for employment authorization pursuant to 8 CFR 274a.12(c)(11) to the extent consistent with the purpose of parole. DHS does not know how many entrepreneurs would fall into this category, however, requests comments from the public on any such data or estimate. As previously established, the costs for entrepreneurs and dependents to submit Form I-765 would be $529 and $446 per application, respectively.

For the option of re-opening IE parole determinations, DHS would reopen all approved Form I-941 parole applications without any additional fees to the applicant. These applicants would lose some of their initial $1,605 application costs associated with the original Form I-941. Some of this loss would be offset by not being required to reapply under the non-IE final rule parole framework which would have costs associated with Form I-131. Addtionally, there may be some time burden to the entrepreneur and dependents of the entrepreneur associated with the opportunity to present evidence that would allow DHS to reconsider the grant of parole under the the non-IE final rule parole framework, rather than the IE parole program regulations. There may be some additional costs to the government in reconsidering these applications. However, those costs are anticipated to be minimal and covered by the original filing fees. Similar to the option to terminate the advance parole document on notice, this option would require each parolee to apply for employment authorization if approved for non-IE final rule parole. DHS does not have information to determine how many individuals might fall into this option and therefore cannot estimate the numbers of IEs. However, the costs for entrepreneurs and dependents to submit Form I-765 would be $529 and $446 per application, respectively. DHS welcomes any public comment on any data or costs not considered under this option.

Finally if an IE is denied under the non-IE final rule parole framework, an entrepreneur whose original application was successfully adjudicated would have spent additional time providing evidence to be considered eligible under the non-IE final rule parole framework. This additional time would vary amongst applicants so DHS does not estimate the time or opportunity costs. Additionally and as discussed earlier, entrepreneurs have to show ownership in the start-up at the time they apply for IE parole. Therefore, even if the IE does not come into the country, they can still remain owners and work for the start-up from outside of the country. It is possible that the start-up could lose additional funding if investors follow the entrepreneur elsewhere or decide not to continue to invest in the start-up entity because of the proposed rescission of parole, however DHS cannot predict the behavior of a start-up entity's current or future investors. DHS welcomes any public comments on the costs associated with entrepreneurs who have approved IE parole applications, but have not yet traveled to the United States.

For individuals with pending parole applications on the effective data of the final rule, under the first option DHS would reject all pending Form I-941 applications for IE parole and return or refund associated fees. These IEs would incur only opportunity costs of time to file applications which would include $405 per application for Form I-941 per entrepreneur, $36 per application for Form I-765 per dependent, or $190 per application for Form I-131 per dependent. The filing fees for each application would be returned or refunded. There may be some administrative costs associated with the issuance of refunds to USCIS. USCIS does not have cost estimates indicating the number of hours required to process and issue these refunds. DHS welcomes any public comments on the impacts of this option.

Under the second option to withdraw pending applications for parole and request a refund for fees, the IE would again incur only costs related to the opportunity costs of time for completing Form I-941, Form I-765, or Form I-131. For those IE who choose to convert their adjudication to existing non-IE parole, they may incur some additional costs associated with providing evidence to demonstrate that they warrant the favorable exercise of discretion under existing non-IE final rule parole frameworks. Applicants that do not respond to RFEs or are not able to favorably demonstrate that they merit approval under the existing non-IE final rule parole framework, would lose the application filing fees in addition to the opportunity costs of time to complete the application (Form I-941—$1,605, Form I-765—$446, or Form I-131—$765). USCIS would keep Form I-941 fees for applicants that respond to RFEs and are approved for non-IE related parole. Therefore, the costs for the original applications would be incurred as described above. Additionally, applicants would need to apply for employment authorization upon arrival to the United States. Applicants would incur an additional $529 per entrepreneur and $466 per dependent to file a Form I-765 upon arrival.

The third option is to adjudicate all pending applications received prior to the effective date of the rescission of the IE final rule criteria until all applications are approved or denied. For approved applications, DHS would provide a later effective date for rescission of the final rule and DHS is considering various timeframes for length of parole. This option does not impose any additional costs to applicants other than the original filing costs.

There would be no additional costs for individuals who would no longer be able to seek re-parole after the effective date of this proposed IE parole program rescission. The IE parole program was originally limited to up to 30 months with a possible extension of an additional 30 months. By no longer allowing re-parole, DHS would shorten this timeframe.

Finally, DHS does not know whether some of the startup entities of these entrepreneurs could be considered small entities and could indirectly be impacted by this proposed rule or if some employers who hire the dependents of these entrepreneurs could be small entites and impacted by this proposed rule. Therefore, DHS has prepared an initial regulatory flexibility analysis (IRFA) under the Regaultory Flexibility Act (RFA) requesting more information on these impacts.

This proposed rule would amend DHS regulations to remove the IE parole program promulgated through the IE Final Rule, 82 FR 5238. In accordance with the Regulatory Flexibility Act (RFA), 5 U.S.C. 601(6), DHS examined the impact of this rule on small entities. A small entity may be a small business (defined as any independently owned and operated business not dominant in its field that qualifies as a small business per the Small Business Act, 15 U.S.C. 632), a small not-for-profit organization, or a small governmental jurisdiction (locality with fewer than 50,000 people).

In the IE Final Rule, DHS certified that the rule would not impose a significant impact on a substantial number of small entities. This certification was based on grounds that individual entrepreneurs are not considered small entities under the purview of the RFA. In addition, participation is strictly voluntary for the estimated population of 2,940 annual principal applicants. The IE Final Rule did not require any individuals or businesses, including those created by foreign nationals, to seek parole—either generally or as a specific condition for establishing or operating a business in the United States. While there are numerous costs associated with starting a new business, these various costs would be driven by the business activity that each applicant chooses to endeavor in and not by the rule itself.

Based on public comment feedback to the 2016 proposed rule (81 FR 60130), DHS considered the possibility that a business entity associated with the applicant entrepreneur could pay the parole application fees for these entrepreneurs. However, as DHS explained in the IE Final Rule and reiterates here, while this rule proposes to eliminate the entrepreneur-specific criteria and parole process established by the IE Final Rule, it does not eliminate an individual's ability to apply for parole using the standard Form I-131 process. DHS continues to stand by the determinations made in the final rule.

While DHS does not believe that there would be a direct impact to entrepreneurs who are individuals and therefore would not be considered as small entities under the RFA, DHS recognizes that there may be some indirect impacts imposed on small entities that are tied to these entrepreneurs. The RFA does not require indirect impacts to small entities to be considered, nevertheless, DHS has prepared an initial regulatory flexibility analysis (IRFA) and invites public comment on potential impacts of this proposed removal to small entities.

DHS proposes to remove the IE parole program regulations. As was discussed in the IE Final Rule and in the above sections of this notice, entreprenuers or individuals would be directly impacted by this proposed rule, however, individuals are not small entities and therefore, are not considered for RFA purposes. DHS recognizes that there could be some indirect impacts that this proposed rule may have on small entities that are tied to these entrepreneurs. While DHS does not have to consider indirect impacts for RFA purposes, DHS is including this analysis to determine if the proposed removal would indirectly impact small entities. Additionaly, DHS recognizes that some of the options presented could also impact the entities that hire the spouse of entrepreneurs and welcomes public comment on potential impacts of the proposed changes on small entities.

a. A description of the reasons why the action by the agency is being considered.

DHS is proposing to remove the IE parole program regulations because the policy it promulgated is not the appropriate vehicle for attracting and retaining international entrepreneurs and does not adequately protect U.S. investors and U.S. workers. Part III, Section B of the preamble of this proposed rule more fully describes the reasons for why action is being taken by the agency.

b. A succinct statement of the objectives of, and legal basis for, the proposed rule.

DHS objectives and legal authority for this proposed rule are discussed in the preamble of this proposed rule.

c. A description and, where feasible, an estimate of the number of small entities to which the proposed changes would apply.

In the Executive Orders 12866 and 13563 sections of this proposed rule and the IE Final Rule, DHS estimated that about 2,940 principal applicants, or entrepreneurs, could be eligible to apply each year. Again, this proposed rule directly impacts individual entrepreneurs, which are not required to be analyzed under the RFA. However, DHS recognizes that some small entities that are tied to the entrepreneur may be indirectly impacted by this proposed rule and therefore provides this discussion. Currently, DHS is not able to estimate how many entities may be associated with or started by this group of potential applicants. However, DHS assumes that since these entrepreneurs are involved in startups and startups generally tend to be small, most of the entities tied to these entreprenuers could be considered small. Additionally, DHS could assume that these small entities tied to these entrepreneurs could face costs in terms of lost application fees, jobs that might not be produced, or other economic activity that might not take place. However, DHS does not currently have conclusive information to determine how many of these entities would be small entities and what the impact might be.

Additionally, DHS recognizes that the options proposed in the preamble may impact some entities that hire the spouses of entrepreneurs, which could be small entities. However, DHS does not have enough information at this time to estimate the number of small entities that may employ the spouses of these entrepreneurs. DHS welcomes public comments or data on the number of small entities that might be impacted by this proposed rule and what the impact might be to those small entities.

d. A description of the projected reporting, recordkeeping, and other compliance requirements of the proposed rule, including an estimate of the classes of small entities that will be subject to the requirement and the types of professional skills.

The proposed rule does not directly impose any new or additional “reporting” or “recordkeeping” requirements on filers. The proposed rule does not require any new professional skills for reporting.

e. An identification of all relevant Federal rules, to the extent practical, that may duplicate, overlap, or conflict with the proposed rule.

DHS is unaware of any duplicative, overlapping, or conflicting Federal rules, but invites any comment and information regarding any such rules.

f. Description of any significant alternatives to the proposed rule that accomplish the stated objectives of applicable statutes and that minimize any significant economic impact of the proposed rule on small entities.

The IE Final Rule requires that applicants attain significant investor capital from qualified U.S. investors. A component of this requirement involves a minmum investment threshold of $250,000. DHS considered several alternatives for this amount, based on public input, in which commenters proposed levels for this minimum ranging from about $100,000 to $1 million. The minimum investment is not itself a size standard to determine whether entities are small. Furthermore, since the rule will involve startups, most would be small by definition, which is a feature of the business startup environment and not specifically the rule itself. Hence, the raising or lowering the minimum from the level established in the IE Final Rule would affect the number of potential applicants that would be eligible at a specific point in time, but DHS does not believe the alternatives would generate a considerable impact to small entities. First, DHS is not aware of evidence that establishes a significant relation between the size of firms over their lifetime and the amount of capital they receive in their seed or startup stage of development. Second, the amount of investment that firms receive at early stages of development reflect perceptions concerning their future success to investors and not their size. Third, DHS does not have evidence to suggest a higher or lower threshold would impact capital costs. DHS determined that changing the level of the threshold still would not address underlying issues over an appropriate vehicle to use in attracting and retaining international entrepreneurs. Therefore, this alternative was not considered any further.

The Unfunded Mandates Reform Act of 1995 (UMRA) is intended, among other things, to curb the practice of imposing unfunded Federal mandates on State, local, and tribal governments. Title II of the Act requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in $100 million or more expenditure (adjusted annually for inflation) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector. The value equivalent of $100 million in 1995 adjusted for inflation to 2016 levels by the Consumer Price Index for All Urban Consumer (CPI-U) is $157 million.

This rule does not exceed the $100 million expenditure in any one year when adjusted for inflation ($157 million in 2016 dollars), and this rulemaking does not contain such a mandate. The requirements of Title II of the Act, therefore, do not apply, and DHS has not prepared a statement under the Act.

This proposed rule is not a major rule as defined by section 804 of the Small Business Regulatory Enforcement Act of 1996, Public Law 104-121, 804, 110 Stat. 847, 872 (1996), 5 U.S.C. 804(2). This proposed rule has not been found to 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 or export markets.

This rule does not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order No. 13132, 64 FR 43255 (Aug. 4, 1999), 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 No.12988, 61 FR 4729 (Feb. 5, 1996).

DHS Directive (Dir) 023-01 Rev. 01 establishes the procedures that DHS and its components use to comply with NEPA and the Council on Environmental Quality (CEQ) regulations for implementing NEPA. 40 CFR parts 1500 through 1508.

DHS analyzed this action and concludes that it is not a NEPA-triggering action. Removing a rule that was determined not to individually or cumulatively have a significant effect on the human environment accordingly has no impact on the human environment. If the rule was believed to have a significant impact an Environmental Impact Statement would have been prepared. If the rule was believed to have significant effects that were to be mitigated to insignificance, an Environmental Assessment would have been conducted and a Finding of No Significant Impact with mitigating measures would have been issued. If the rule had been found to have no significant effects because it is covered by one or more categorical exclusions from further analysis, its removal again would have no significant effects. Therefore, we conclude that this proposed removal does not significantly affect the quality of the human environment. The IE parole program regulations, which this proposed rule seeks to remove, provide criteria and procedures for applying the Secretary's existing statutory parole authority to entrepreneurs in a manner to ensure consistency in case-by-case adjudications.

Furthermore, unlike the rescission of policy letters or other actions which do not involve rulemaking, public involvement, an important value of NEPA, is fully protected by the rulemaking process.

Under the Paperwork Reduction Act of 1995, Public Law 104-13, all agencies are required to submit any reporting requirements inherent in a rule to the Office of Management and Budget (OMB) for review and approval. This rule calls for no new collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

DHS is withdrawing all changes to the Form I-131 and Form I-765 approved with the IE Final Rule published at 82 FR 5238 on January 17, 2017. DHS will continue to use the version of Form I-765 approved by OMB on April 13, 2017, and will continue to use the version of Form I-131 approved on December 21, 2016. DHS also is proposing to discontinue the new information collection Form I-941 originally approved as a result of the Final Rule published at 82 FR 5238 on January 17, 2017. Finally, DHS is withdrawing all changes to the Form I-9 that were approved in connection with the IE Final Rule.

(1) Type of Information Collection: Revision of a Currently Approved Collection.

(2) Title of the Form/Collection: Employment Eligibility Verification.

(3) Agency form number, if any, and the applicable component of the DHS sponsoring the collection: I-9; USCIS.

(4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. This form was developed to facilitate compliance with section 274A of the Immigration and Nationality Act, which prohibits the knowing employment of unauthorized aliens. This information collection is necessary for employers, agricultural recruiters and referrers for a fee, and state employment agencies to verify the identity and employment authorization of individuals hired (or recruited or referred for a fee, if applicable) for employment in the United States.

(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: The estimated total number of employer and recruiter respondents for the information collection I-9 is 55,400,000 and the estimated hour burden per response is .33 hours. The estimated total number of employee respondents for the information collection I-9 is 55,400,000 and the estimated hour burden per response is .17 hours. The estimated total number of recordkeeping respondents for the information collection I-9 is 20,000,000 and the estimated hour burden per response is .08 hours.

(6) An estimate of the total public burden (in hours) associated with the collection: The total estimated annual hour burden associated with this collection is 29,300,000 hours.

(7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is $0.

(1) Type of Information Collection: Revision of a Currently Approved Collection.

(2) Title of the Form/Collection: Application for Travel Document.

(3) Agency form number, if any, and the applicable component of the DHS sponsoring the collection: I-131; USCIS.

(4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. Certain aliens, principally permanent or conditional residents, refugees or asylees, applicants for adjustment of status, aliens in Temporary Protected Status (TPS) and aliens abroad seeking humanitarian parole, in need to apply for a travel document to lawfully enter or reenter the United States. Lawful permanent residents may now file requests for travel permits (transportation letter or boarding foil).

(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: The estimated total number of respondents for the information collection I-131 is 594,324 and the estimated hour burden per response is 1.9 hours. The estimated total number of respondents for the biometrics collection is 71,665 and the estimated hour burden per response is 1.17 hours. The estimated total number of respondents for the passport style photographs is 319,727 and the estimated hour burden per response is .5 hours

(6) An estimate of the total public burden (in hours) associated with the collection: The total estimated annual hour burden associated with this collection is 1,372,928 hours.

(7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is 177,928,330.

(1) Type of Information Collection: Revision of a Currently Approved Collection.

(3) Agency form number, if any, and the applicable component of the DHS sponsoring the collection: I-765; USCIS.

(4) Affected public who will be asked or required to respond, as well as a brief abstract: Primary: Individuals or households. The information collected on this form is used by the USCIS to determine eligibility for the issuance of the employment document.

(5) An estimate of the total number of respondents and the amount of time estimated for an average respondent to respond: The estimated total number of respondents for the information collection I-765 is 2,139,523 and the estimated hour burden per response is 3.42 hours. The estimated total number of respondents for the biometrics collection is 405,067 and the estimated hour burden per response is 1.17 hours. The estimated total number of respondents for the information collection I-765WS (Work Sheet) is 250,000 and the estimated hour burden per response is .5 hours. The estimated total number of respondents for the Passport-style Photographs is 2,136,583 and the estimated hour burden per response is .5 hours.

(6) An estimate of the total public burden (in hours) associated with the collection: The total estimated annual hour burden associated with this collection is 8,985,859 hours.

(7) An estimate of the total public burden (in cost) associated with the collection: The estimated total annual cost burden associated with this collection of information is 650,414,992.

DHS is discontinuing the new USCIS Form I-941 (OMB Control Number 1615-0136).

Accordingly, DHS is proposing to amend chapter I of title 8 of the Code of Federal Regulations as follows:

The revisions read as follows:

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0454; Product Identifier 2017-NM-056-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM based on those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this NPRM.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0060, dated April 7, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A330-200 Freighter series airplanes; Airbus Model A330-200 and -300 series airplanes; and Airbus Model A340-200 and -300 series airplanes. The MCAI states:

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-2018-0454.

Airbus has issued Service Bulletin A330-57-3123, Revision 01, including Appendixes 02 and 03, dated September 27, 2017; and Service Bulletin A340-57-4130, Revision 01, including Appendixes 02 and 03, dated September 27, 2017. This service information describes procedures for a detailed inspection of the front stop lateral and aft surfaces for marks (dents or scratches), repetitive special detailed inspections of the front stop attachment areas, of slat track numbers 5 to 16 inclusive, both LH and RH wings for cracks, and corrective actions. These documents are distinct since they apply to different airplane models.

Airbus has also issued Service Bulletin A330-57-3126, including Appendixes 02 and 03, dated December 21, 2017; and Service Bulletin A340-57-4133, including Appendixes 02 and 03, dated December 21, 2017. This service information describes procedures for modification of all affected slat tracks on an airplane. These documents are distinct since they apply to different airplane models.

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.

This product has been approved by the aviation authority of another country, and is approved for operation in the United States. Pursuant to our bilateral agreement with the State of Design Authority, we have been notified of the unsafe condition described in the MCAI and service information referenced above. We are proposing this AD because we evaluated all pertinent information and determined an unsafe condition exists and is likely to exist or develop on other products of these same type designs.

Although the MCAI specifies to continue repetitive inspections if certain cracks that do not exceed specified damage limits are found, this proposed AD would require repairing before further flight in accordance with the Accomplishment Instructions of Airbus Service Bulletin A330-57-3123, Revision 01, including Appendixes 02 and 03, dated September 27, 2017; Airbus Service Bulletin A340-57-4130, Revision 01, including Appendixes 02 and 03, dated September 27, 2017; or obtaining corrective action instructions approved by the Manager, International Section, Transport Standards Branch, FAA; or EASA; or Airbus's EASA Design Organization Approval (DOA), and accomplishing them within the compliance time specified therein.

Although the MCAI specifies accomplishing the proposed actions in accordance with Airbus Service Bulletin A330-57-3123, dated June 14, 2016, or Airbus Service Bulletin A340-57-4130, dated June 14, 2016, this proposed AD would require using Airbus Service Bulletin A330-57-3123, Revision 01, including Appendixes 02 and 03, dated September 27, 2017, or Airbus Service Bulletin A340-57-4130, Revision 01, including Appendixes 02 and 03, dated September 27, 2017. For airplanes on which the actions specified in Airbus Service Bulletin A330-57-3123, dated June 14, 2016, or Airbus Service Bulletin A340-57-4130, dated June 14, 2016, have been done, this proposed AD provides credit for those actions provided that the additional work identified in Airbus Service Bulletin A330-57-3123, Revision 01, including Appendixes 02 and 03, dated September 27, 2017, or Airbus Service Bulletin A340-57-4130, Revision 01, including Appendixes 02 and 03, dated September 27, 2017, is done. The additional work includes inspecting for certain part numbers and for those affected parts, doing a detailed inspection, and corrective actions if necessary. We have coordinated this difference with EASA.

We estimate that this proposed AD affects 101 airplanes of U.S. registry.

We estimate the following costs to comply with this proposed AD:

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.

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

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

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

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

3. Will not affect intrastate aviation in Alaska; and

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

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

Comments Invited

We invite you to send any written relevant data, views, or arguments about this proposal. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0452; Product Identifier 2017-NM-150-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this NPRM. We will consider all comments received by the closing date and may amend this NPRM because of those comments.

We will post all comments we receive, without change, to http://www.regulations.gov, including any personal information you provide. We will also post a report summarizing each substantive verbal contact we receive about this proposed AD.

We have received a report indicating that the results of a fleet survey of retired 737 airplanes revealed cracking in the bulkhead frame web at the upper lobe of the station (STA) 259.5 bulkhead frame webs. Two web cracks, measuring 0.45 inch and 1.7 inches, were found at the outer chord fastener locations between stringer (S)-11R and S-12R. A subsequent review of fleet data sources revealed additional crack findings on other 737 airplanes in the left and right side frame webs between S-11 and S-12. Fleet findings have been reported on a total of 5 airplanes with a range of between 60,640 and 73,655 total flight cycles. Such cracking may lead to subsequent failure of the skin and cockpit window surround structure, and could result in rapid decompression. No cracks have been reported on Model 727 airplanes but Model 727 and Model 737 airplanes have a similar frame installation at STA 259.5.

We reviewed Boeing Alert Requirements Bulletin 727-53A0235 RB, dated October 12, 2017. The service information describes procedures for repetitive high frequency eddy current inspections and low frequency eddy current inspections for cracks of the STA 259.5 bulkhead frame web from the first stiffener above S-10 to S-13, on the left and right sides of the airplane, and applicable on-condition actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

We are proposing this AD because we evaluated all the relevant information and determined the unsafe condition described previously is likely to exist or develop in other products of the same type design.

This proposed AD would require accomplishment of the actions identified in the Boeing Alert Requirements Bulletin 727-53A0235 RB, dated October 12, 2017, described previously, except for any differences identified as exceptions in the regulatory text of this proposed AD.

For information on the procedures and compliance times, see this service information at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0452.

The FAA worked in conjunction with industry, under the Airworthiness Directives Implementation Aviation Rulemaking Committee (AD ARC), to enhance the AD system. One enhancement is a process for annotating which steps in the service information are “required for compliance” (RC) with an AD. Boeing has implemented this RC concept into Boeing service bulletins.

In an effort to further improve the quality of ADs and AD-related Boeing service information, a joint process improvement initiative was worked between the FAA and Boeing. The initiative resulted in the development of a new process in which the service information more clearly identifies the actions needed to address the unsafe condition in the “Accomplishment Instructions.” The new process results in a Boeing Requirements Bulletin, which contains only the actions needed to address the unsafe condition (i.e., only the RC actions).

We estimate that this proposed AD affects 106 airplanes of U.S. registry. We estimate the following costs to comply with this proposed AD:

We have received no definitive data that would enable us to provide cost estimates for the on-condition actions specified in this proposed AD.

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

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

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

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

For the reasons discussed above, I certify this proposed regulation:

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

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

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

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

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

Authority for This Rulemaking

The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend the route structure in the Chicago, IL, area as necessary to preserve the safe and efficient flow of air traffic within the National Airspace System.

Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal.

Communications should identify both docket numbers (FAA Docket No. FAA-2018-0464; Airspace Docket No. 18-AGL-12) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at http://www.regulations.gov.

Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2018-0464; Airspace Docket No. 18-AGL-12.” The postcard will be date/time stamped and returned to the commenter.

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

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

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

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

The FAA is planning to decommission the Chicago O'Hare, IL, VOR/DME in January 2019 in support of construction activities for a new runway at Chicago O'Hare International Airport.

With the planned decommissioning of the Chicago O'Hare VOR/DME, the NAVAID radial used to define the BEBEE fix, located southeast of Chicago O'Hare International Airport, would no longer be available; thus, making the fix unusable. In lieu of redefining the BEBEE fix with another NAVAID remaining in the area, the FAA is proposing to remove the 2 nautical mile airway segment between the BEBEE and NILES fixes from the V-97 and V-422 descriptions.

The airway segment between the BEBEE and NILES fixes overlays V-7, so removal of the airway segment from V-97 and V-422 would be mitigated by V-7 remaining unchanged and appear transparent to instrument flight rules traffic navigating through the area. Similarly, visual flight rules pilots who elect to navigate via the airways through the affected area would be unaffected and able to continue using V-7 in the area.

Additionally, the KRENA fix, located northwest of Chicago O'Hare International Airport, is defined in the V-97 description as the intersection of the Northbrook, IL, VOR/DME 291° and Janesville, WI, VOR/DME 112° radials, which is virtually a straight line. The FAA proposes to redefine the fix in its current location using radials from the DuPage, IL, VOR/DME and Janesville, WI, VOR/DME NAVAIDs to better define the fix using intersecting radials.

The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to modify the descriptions of VOR Federal airways V-97 and V-422. The planned decommissioning of the Chicago O'Hare, IL, VOR/DME has made these actions necessary. The proposed VOR Federal airway changes are described below.

V-97: V-97 currently extends between the Dolphin, FL, VOR/Tactical Air Navigation (VORTAC) and the intersection of the Chicago Heights, IL, VORTAC 358° and Chicago O'Hare, IL, VOR/DME 127° radials (BEBEE fix), and between the intersection of the Northbrook, IL, VOR/DME 291° and Janesville, WI, VOR/DME 112° radials (KRENA fix) and the Gopher, MN, VORTAC. The airspace below 2,000 feet MSL outside the United States is excluded. The FAA proposes to remove the airway segment between the intersection of the Chicago Heights, IL, VORTAC 358°(T)/356°(M) and DuPage, IL, VOR/DME 101°(T)/099°(M) radials (NILES fix) and the intersection of the Chicago Heights, IL, VORTAC 358° and Chicago O'Hare, IL, VOR/DME 127° radials (BEBEE fix). Also, the KRENA fix would be redefined in its existing location using the intersection of the DuPage, IL, VOR/DME 347°(T)/345°(M) and Janesville, WI, VOR/DME 112°(T)/109°(M) radials. The unaffected portions of the existing airway would remain as charted.

V-422: V-422 currently extends between the intersection of the Chicago O'Hare, IL, VOR/DME 127° and Chicago Heights, IL, VORTAC 358° radials (BEBEE fix) and the Flag City, OH, VORTAC. The FAA proposes to remove the airway segment between the intersection of the Chicago Heights, IL, VORTAC 358° and Chicago O'Hare, IL, VOR/DME 127° radials (BEBEE fix) and the intersection of the Chicago Heights, IL, VORTAC 358°(T)/356°(M) and DuPage, IL, VOR/DME 101°(T)/099°(M) radials (NILES fix). The unaffected portions of the existing airway would remain as charted.

All radials in the route descriptions below that are unchanged are stated in True degrees. Radials that are stated in True and Magnetic degrees are new computations based on available NAVAIDS.

Lastly, a minor editorial correction would be made to the V-97 airway description to correct the state abbreviation for the Cincinnati, KY, VORTAC. The “Cincinnati, OH” airway point listed would be changed to “Cincinnati, KY”.

VOR Federal airways are published in paragraph 6010(a) of FAA Order 7400.11B dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The VOR Federal airways listed in this document would be subsequently published in the Order.

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

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

In consideration of the foregoing, the Federal Aviation Administration proposes to amend 14 CFR part 71 as follows:

I. Background Airport Sponsor Obligations

Airport sponsors that have accepted grants under the Airport Improvement Program (AIP) have agreed to comply with certain Federal policies included in each AIP grant agreement as sponsor assurances. The Airport and Airway Improvement Act of 1982 (AAIA) (Pub. L. 97-248), as amended and recodified at 49 U.S.C., § 47107(a)(1), and the contractual sponsor assurances require that the airport sponsor make the airport available for aviation use. Title 49 U.S.C., § 47107(a)(8) requires grant agreements to include an assurance that “a proposal to close the airport temporarily for a nonaeronautical purpose must first be approved by the Secretary [of Transportation].” This requirement is implemented by Grant assurance 19, Operation and Maintenance, which incorporates the requirement that a temporary airport closure for a nonaeronautical purpose be first approved by the Secretary. The Secretary's approval authority has been delegated to the FAA as part of the administration of the AIP. It is the longstanding policy of the FAA that airport property be available for aeronautical use unless a particular nonaeronautical use is approved by the FAA.

Each year sponsors of federally obligated airports request temporary closure of a ramp, taxiway, runway or an entire airport for a nonaeronautical event, typically for a period of one to three days. Any such request must be approved by the FAA in advance before the event can take place. While the FAA offices generally applied a consistent set of criteria to the evaluation of requests for temporary closure, the agency has not provided uniform guidance for sponsors on the process to apply for a temporary closure. The FAA believes that a detailed description of the contents of an application for temporary closure of airport facilities, and a clear listing of the obligations of an airport sponsor before, during and after a closure, will benefit both to airport sponsors and to the FAA offices handling applications.

Conducting an event on airport property is a complex undertaking. Whether the purpose is an aeronautical event (e.g., air show) or nonaeronautical event, and whether the event requires a full closure of the airport or simply a closure of a ramp or taxiway, the event will require detailed planning and preparation that should not be taken lightly. The airport sponsor's primary purpose is to operate a safe airport providing access to aviation community.

The FAA affirms in this Notice that federally assisted airports should remain open for aviation use. Where an airport sponsor does request a temporary closure of airport facilities for a nonaeronautical event, this Notice describes the required contents of a request, and the criteria for FAA's approval.

The proposed policy statement provides a standard application process for approval of nonaeronautical events at a federally obligated airport, and a detailed explanation of the measures an airport sponsor will need to take in order to protect the airport and comply with the terms of the FAA grant agreements. In summary:

• As a first step, the airport sponsor should arrange a meeting with the local FAA office to discuss their plans for the event.

• Applications for temporary closure must be submitted to the FAA in writing in advance, with a complete explanation and justification for the event.

• The greater the degree of impact on aeronautical use, the greater the justification required for closure and the greater the need for mitigation of impacts on airport operations, facilities and resources.

• Mitigation measures to ensure safety and preservation of airport assets include:

○ Timely notice to tenants and to itinerant operators through NOTAMs;

○ Development of a `Safety Plan' to include notice to airport tenants and users, special markings, airport security, and provisions for crowd control and separation from operations;

○ Filing of a Form 7460 when necessary to allow the FAA review of any temporary structures or other elements that may impact the National Airspace System (NAS);

○ Receipt of fair market value compensation for use of airport facilities; and

○ Restoration of all airport facilities to the condition prior to the event at the event proponent's expense.

• The FAA will review applications for justification, adequate safety mitigation, full reimbursement of airport expenses, and protection and restoration of airport facilities.

In consideration of the foregoing, the Federal Aviation Administration proposes to adopt the following statement of policy on its statutory responsibility to review and approve or disapprove requests for temporary closure of federally obligated airport facilities for a nonaeronautical airport event.

To implement the requirements of 49 U.S.C., § 47107(a)(8) and AIP Grant Assurance 19, the FAA will use the following procedures and criteria to evaluate and approve requests for the temporary closure of a federally obligated airport for a nonaeronautical event.

A. Policy. Airports should remain available for aviation use. Under certain circumstances, the FAA may approve temporary closure for nonaeronautical event purposes, such as car races/shows, county fairs, parades, car testing, model airplane events, running events and fireworks; however, the FAA will not approve a closure where impacts to safety and efficiency have not been mitigated and would result in a negative impact to civil aviation. In most cases, the impact to aviation, safety, security, liability, and other risks outweighs the financial and community goodwill returns promised to the airport for nonaeronautical activities. A proposed nonaeronautical use of an airport should not prevent the airport from realizing its economic potential nor diminish or hamper its existing or forecasted role in the system of airports.

B. Mitigation measures. If a temporary closure of the airport is planned, the sponsor must ensure that adequate measures will be in place to:

1. Make no permanent change in airport facilities as depicted on the Airport Layout Plan;

2. Maintain the safety, efficiency, and utility of the airport consistent with the limited authority of the FAA to grant a temporary closure for a nonaeronautical event;

3. Provide timely notice to tenants and itinerant aircraft operators of the planned event and the effect on the availability of airport facilities;

4. Receive fair market value for all nonaeronautical use of airport property;

5. Use of airport property for nonaeronautical activities at less than fair market value is limited to community use as defined in section VII.D of the Policy and Procedures Concerning the Use of Airport Revenue (Revenue Use Policy);

6. Provide benefits to the airport that outweigh the temporary impact on aviation use;

7. Ensure that airport revenue, personnel and equipment are not used to subsidize non-airport activities;

8. Ensure compliance with operational safety, certification and security regulations, protection of airspace, and maintenance of the FAA design and safety standards during aircraft operations; and

9. Ensure that the sponsor does not surrender its rights and powers at any time before, during, or after the event.

C. Degree of impact on aeronautical use. The greater the effect on aeronautical use of the airport from a proposed closure, the greater the justification required for the temporary closure, and the more attention and detail required for mitigation of safety, efficiency and other impacts.

1. Where an event would require that aircraft operations be suspended during the event, a proposal must identify why closure of the airport is necessary, and how the proposed nonaeronautical use justifies loss of the use of the airport for the duration of the event. The proposal must include a Safety Plan that describes how based and itinerant aircraft operators will be advised of the closure.

2. Where an event would use aeronautical facilities but not require total suspension of aircraft operations, the Safety Plan must include measures to assure that the temporary changes in available facilities do not affect the safety of concurrent operations.

3. In all cases, an application for temporary closure must identify measures for maintaining separation between public event areas and aircraft operating areas.

4. Documentation must demonstrate that the event was coordinated with air carriers, Flight Standards District Office (FSDO), Air Traffic Control Tower (ATCT), aeronautical tenants and users serving the airport as applicable. Documentation must show that concerns have been properly addressed.

5. Identify other airports in the area that could accommodate diverted traffic during the closure.

6. Regional Airports Division (Region) or Airports District Office (ADO) should coordinate with the appropriate FAA regional Lines of Business. Most events trigger notification requirements as per the current version of FAA Order 7400.2, Procedures for Handling Airspace Matters, which requires internal coordination through the Obstruction Evaluation/Airport Airspace Analysis (OE/AAA) system. When events have been circulated through the OE/AAA, the non-rulemaking airports (NRA) case number should be included in the agency approval/disapproval letter.

7. When the nonaeronautical event is at an airport with air carrier service, the sponsor must coordinate with the Transportation Security Administration.

D. Airshows and aeronautical events. While 49 U.S.C., § 47107(a)(8) and Grant Assurance 19 do not require Office of Airports approval of the temporary closure of an airport for aeronautical events in the processes of issuing an airshow waiver Flight Standards Service (AFS) will describe the safety conditions for the FAA's approval of the event. However, the AFS waiver relates to aircraft operations and the separation between aircraft operations and the viewing public. AFS will coordinate the ground operations plan with Regions and ADOs as appropriate. Events that are primarily nonaeronautical with an air show or other aeronautical event as an incidental activity should be reviewed by the Region or ADO.

E. Maintaining safety

1. For a proposed closure of the airport to operations or a closure of any part of the airfield movement area or proposed obstructions to movement area associated safety clearances, the sponsor must prepare a Safety Plan to include at least the following items:

a. Special markings for the event, and removal and restoration of markings after the event.

b. Notice to tenants and airmen, including appropriate NOTAMs.

c. Inspection and repair of any damage to airport property.

d. Reporting and marking of any structures affecting protected zones or surfaces.

e. Safe separation between aircraft operations and the public. These may include: special taxi routes, access to terminal gates, crowd control, vehicular routes, staging areas, and others.

f. Sponsor's determination and analysis that there is no adverse effect on the airport's approved security plan.

g. Where necessary to maintain the safety, security and efficiency of airport operations, Regions or ADOs should use applicable elements from the AC 150/5370-2, Operational Safety on Airports During Construction.

2. The airport sponsor must provide timely advance notice of the nonaeronautical event to pilots and airport tenants, and to the ATC tower if applicable. The sponsor must issue appropriate NOTAMs to advise itinerant pilots of any limited availability of the airport during the event. The sponsor must provide advance notice to airport businesses and other tenants of any effect on use of airport property during the event.

3. Filing of a Form 7460 may be necessary to obtain FAA review of any temporary structures on the airport and use of airport property. The Form 7460 can be filed prior to or with the application for approval of closure, but must be filed no later than 120 days prior to the event to allow time for the FAA to review, comment and response from proponent.

F. Ensuring That the Event Sponsor Bears the Costs of the Event

1. The airport must recover fair market value (FMV) payment for the nonaeronautical use of airport property to the extent required by the Revenue Use Policy.

2. The airport sponsor must receive full compensation for the time of airport personnel and the use of airport resources for the event (e.g. police/airport operations overtime pay), but not necessarily staff time for review of the event.

3. Airport funds and resources may not be used to subsidize the event, except insofar as the event will be staged by the airport sponsor itself. Use of airport property for a nonaeronautical purpose at below fair market value payment is considered a subsidy.

4. The airport sponsor's agreement with the event promoter should contain the event promoter's binding written agreement to indemnify and hold harmless the airport sponsor for any damages, liabilities or judgments against the airport sponsor relating to the use of the airport for the event.

G. Protection of Airport Property and Resources

1. The airport sponsor should assess the condition of airfield facilities and airport property in the event areas before the event, and have the event proponent acknowledge that condition in writing.

2. The airport sponsor's agreement with the event sponsor must include the event proponent's binding written agreement to restore airport property to its pre-event condition and repair all damage to airport facilities resulting from the event. All repairs and restoration of property must be completed at the expense of the event proponent in a timely manner and in conformance with FAA standards.

3. The event areas should be re-inspected following the event to assure that they have been restored to the preexisting condition.

To apply for temporary airport closure for a nonaeronautical purpose, an airport sponsor must submit a proposal to the Region or ADO for analysis and approval. In Block Grant states the proposal may be submitted to the State Block Grant Agency with a copy to the Region or ADO. The airport sponsor must submit sufficient information and assurances to indicate that each requirement has been or will be satisfied.

The airport sponsor requesting a temporary airport closure must submit the information below to the Region and or ADO or State Block Grant Agency to request approval of the temporary closure:

1. The dates of the proposed closure periods including any necessary set up and take down period. Identify whether this is an annual or one-time event.

2. An estimation of the number of operations (commercial, general aviation, military) to be impacted and how this number was determined.

3. An event map depicting:

a. Where and how the airport property will be used for the nonaeronautical activity (e.g., spectator areas, parking areas, staging areas, fueling, concession areas).

b. Areas used for the event that have been developed or improved with Federal funds (identify the grant number and anticipated impact to the Federal investment).

c. Impacted Navigational Aids (NAVAIDs).

d. Location and description of elements 1 that may affect the NAS.

e. Structures or other elements that may require a form 7460 application.

4. Procedures and equipment to delineate closed areas (e.g., X on runways, fencing, gates, barricades, etc.).

5. A Safety Plan.

6. If applicable, a description of the mutual aid fire and rescue agreements and whether there needs to be a presence of mutual aid safety services during the event.

7. Plan to assess the airport property prior to re-opening for aeronautical uses to identify and fix:

a. Damage.

b. Temporary markings HAZMAT issues (if applicable).

c. Conduct Foreign Object Debris (FOD) sweep.

8. Identification of the party who will be responsible for funding any repairs and a timeframe within which the repairs will be made.

9. Indicate impacts to NAVAIDs and procedures for taking these out and in service.

10. Draft of the NOTAM(s) to be issued for the event.

11. Certification of Notification to Stakeholders—at a minimum the following entities must be notified of the event and provided an opportunity to give feedback. The sponsor should address concerns from stakeholders and include comments and responses in the proposal, including mitigation where applicable. Provide a list of those notified, the concerns raised and the mitigations made to address the concerns:

a. Tenants, FBOs, airlines, and local users (e.g., DOD, etc.).

b. Air traffic control tower.

c. Local aviation organizations.

d. Airport security and local law enforcement agencies.

e. Flight Standards District Office.

12. An explanation of how the event benefits the airport and is compliant with the FAA Policy on Revenue Use.

a. For an event proposed by a commercial/for-profit party:

i. Financial benefits must be equal to at least the fair market value of the subject property use.

ii. In-kind services or benefits must be equivalent to FMV compensation.

iii. Airport revenue cannot be used toward conducting the event (e.g., use of airport staff must be reimbursed, equipment rental, advertisement of the event cannot be funded in part or whole by the airport).

iv. The event should also generate intangible benefits for the airport such as community goodwill and community interest.

b. For an event organized by a non-profit/charitable organization or by the airport sponsor itself on its own behalf. In all non-profit nonaeronautical cases there needs to be a benefit to the airport that clearly outweighs the loss or displacement of aeronautical activities. Examples of benefits to the airport may include:

i. Advertising for the airport included in the event advertising at no cost to the airport.

ii. A percentage of ticket sales paid to the airport.

iii. Intangible benefits (e.g., community goodwill, increasing local awareness of the airport, encouraging local and community support of the airport, generating an interest in airport use).

c. For events proposed by a party other than the airport sponsor, the event proponent should assume the costs of the event, e.g., equipment rental, advertisement of the event, staffing, and restoration of facilities to pre-event conditions.

13. Approval of the closure of airport facilities for a nonaeronautical event is a Federal action that requires environmental review.

On February 23, 2018, the City of North Charleston notified the Coast Guard that it will be conducting a fireworks display from 10 p.m. to 11 p.m. on July 4, 2018. The fireworks are to be launched from a barge along the bank of the Cooper River at River Front Park in North Charleston, SC. Hazards from firework displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. The Captain of the Port Charleston (COTP) has determined that potential hazards associated with the fireworks to be used in this display would be a safety concern for anyone within a 500-yard radius of the barge.

The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within a 500-yard radius of the fireworks barge before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

The COTP proposes to establish a safety zone from 9:45 p.m. to 11:15 p.m. on July 4, 2018. The safety zone would cover all navigable waters within 500 yards of the fireworks barge located at River Front Park on the Cooper River in North Charleston, SC. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 10 p.m. to 11 p.m. fireworks display. No vessel or person would be permitted to enter, transit through, anchor in, or remain within the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document. The Coast Guard would provide notice of the safety zone by Local Notice to Mariners, Broadcast Notice to Mariners, and on-scene designated representatives.

We developed this proposed 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 NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. The safety zone will only be enforced for an hour and a half, and although persons and vessels may not enter, transit through, anchor in, or remain within the safety zone without authorization from the Captain of the Port Charleston or a designated representative, vessel traffic would be able to safely operate in the surrounding area during the enforcement period and the rule would allow vessels to seek permission to enter the zone. Moreover, the Coast Guard will provide advance notification of the safety zone to the local maritime community by Local Notice to Mariners and Broadcast Notice to Mariners via VHF-FM marine channel 16.

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 proposed rule would not have a significant economic impact on a substantial number of small entities.

We have considered the impact of this proposed rule on small entities. This rule may affect the following entities, some of which may be small entities: The owner or operators of vessels intending to enter, transit through, anchor in, or remain within the regulated area during the enforcement period. For the reasons stated in section IV.A. above, this proposed rule would not have a significant economic impact on a substantial number of small entities.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

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 proposed 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. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would 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 proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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 proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this proposed 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 made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone lasting an hour and a half that would prohibit entry within 500 yards of a barge from which fireworks will be launched. Normally such actions are categorically excluded from further review under paragraph L 60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, you may review a Privacy Act notice regarding the Federal Docket Management System in the March 24, 2005, issue of the Federal Register (70 FR 15086).

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

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

On April 17, 2018, the City of Lake Oswego notified the Coast Guard that it will be conducting a fireworks display from 10 p.m. to 10:30 p.m. on July 4, 2018, to commemorate Independence Day. The fireworks will launch from a barge in the Willamette River approximately 150 yards east of George Rodgers Park in Lake Oswego, OR. Hazards from firework displays include accidental discharge of fireworks, dangerous projectiles, and falling hot embers or other debris. The Captain of the Port Columbia River has determined that potential hazards associated with the fireworks in this display are a safety concern for anyone within a 450-yard radius of the barge.

The purpose of this rulemaking is to ensure the safety of vessels and the navigable waters within a 450-yard radius of the fireworks barge before, during, and after the scheduled event. The Coast Guard proposes this rulemaking under authority in 33 U.S.C. 1231.

The Captain of the Port Columbia River proposes to establish a safety zone from 9 p.m. to 11:30 p.m. on July 4, 2018. The safety zone would cover all navigable waters of the Willamette River within 450-yards of a barge located at 45°24′37.46″ N, 122°39′29.70″ W, in vicinity of George Rogers Park in Lake Oswego, OR. The duration of the zone is intended to ensure the safety of vessels and these navigable waters before, during, and after the scheduled 10 p.m. to 10:30 p.m. fireworks display. No vessel or person would be permitted to enter the safety zone without obtaining permission from the COTP or a designated representative. The regulatory text we are proposing appears at the end of this document.

We developed this proposed 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 NPRM has not been designated a “significant regulatory action,” under Executive Order 12866. Accordingly, the NPRM has not been reviewed by the Office of Management and Budget (OMB), and pursuant to OMB guidance it is exempt from the requirements of Executive Order 13771.

This regulatory action determination is based on the size, location, duration, and time-of-day of the safety zone. Vessel traffic would be able to safely transit around this safety zone which would impact a small designated area of the Willamette River for approximately two hours during the evening when vessel traffic is normally low. Moreover, the Coast Guard would issue a Broadcast Notice to Mariners via VHF-FM marine channel 16 about the zone, and the rule would allow vessels to seek permission to enter the zone.

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 proposed rule would not have a significant economic impact on a substantial number of small entities.

While some owners or operators of vessels intending to transit the safety zone may be small entities, for the reasons stated in section IV.A above, this proposed rule would not have a significant economic impact on any vessel owner or operator.

If you think that your business, organization, or governmental jurisdiction qualifies as a small entity and that this rule would have a significant economic impact on it, please submit a comment (see ADDRESSES) explaining why you think it qualifies and how and to what degree this rule would economically affect it.

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 proposed 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. The Coast Guard will not retaliate against small entities that question or complain about this proposed rule or any policy or action of the Coast Guard.

This proposed rule would 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 proposed rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order 13132.

Also, this proposed rule does not have tribal implications under Executive Order 13175, Consultation and Coordination with Indian Tribal Governments, because it would 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 proposed rule has implications for federalism or Indian tribes, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section.

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 proposed rule would not result in such an expenditure, we do discuss the effects of this rule elsewhere in this preamble.

We have analyzed this proposed rule under Department of Homeland Security Directive 023-01, which guides the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This proposed rule involves a safety zone lasting less than two and a half hours that would prohibit entry within 450-yards of a fireworks barge. Normally such actions are categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES. We seek any comments or information that may lead to the discovery of a significant environmental impact from this proposed rule.

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.

We view public participation as essential to effective rulemaking, and will consider all comments and material received during the comment period. Your comment can help shape the outcome of this rulemaking. If you submit a comment, please include the docket number for this rulemaking, indicate the specific section of this document to which each comment applies, and provide a reason for each suggestion or recommendation.

We encourage you to submit comments through the Federal eRulemaking Portal at http://www.regulations.gov. If your material cannot be submitted using http://www.regulations.gov, contact the person in the FOR FURTHER INFORMATION CONTACT section of this document for alternate instructions.

We accept anonymous comments. All comments received will be posted without change to http://www.regulations.gov and will include any personal information you have provided. For more about privacy and the docket, visit http://www.regulations.gov/privacyNotice.

Documents mentioned in this NPRM as being available in the docket, and all public comments, will be in our online docket at http://www.regulations.gov and can be viewed by following that website's instructions. Additionally, if you go to the online docket and sign up for email alerts, you will be notified when comments are posted or a final rule is published.

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

Table of Contents I. Introduction II. Proposal One III. Notice and Comment IV. Ordering Paragraphs I. Introduction

On May 17, 2018, the Postal Service filed a petition pursuant to 39 CFR 3050.11 requesting that the Commission initiate a rulemaking proceeding to consider changes to analytical principles relating to periodic reports and compliance determinations.1 The Petition identifies the proposed analytical method changes filed in this docket as Proposal One.

Background. Proposal One relates to sampling procedures for the Delivery Point Sequenced (DPS) portion of the Rural Carrier Cost System (RCCS) data used for the distribution of rural carrier costs within the Cost and Revenue Analysis (CRA) Report. Petition at 1. The RCCS is a continuous, ongoing cross-sectional statistical study, or probability sample of rural carrier route-days. Id. Proposal One at 1. For each selected route-day, a sample of mail is selected, and for each selected mailpiece, characteristics are recorded directly into a portable microcomputer. Id. RCCS data are primarily used to distribute rural carrier costs among the products that rural carriers deliver. Id. at 2.

The Origin-Destination Information System—Revenue, Pieces, and Weight (ODIS-RPW) used to estimate volume and revenue is also a probability-based destinating mail sampling system in which data collectors also record mail characteristics from sampled mailpieces. Id. Data collectors record mail characteristics using digitally captured images of letter-shaped and card-shaped mail, thereby eliminating the need for manual sampling of DPS letters and cards. Id. Mailpiece information obtained from ODIS-RPW digital sampling is similar to RCCS DPS data elements, including the destinating carrier route number. Id.

Proposal. Proposal One involves a methodology change in RCCS data collection procedures and in the volume proportion estimation procedures used for cost distribution for certain DPS mail. Id. at 1. Proposal One is similar to Proposal Nine approved by the Commission in Docket No. RM2017-13, which proposed use of digital image samples for the City Carrier Cost System (CCCS).2

Proposal One would allow utilization of the same digital data (regarding DPS pieces destined for delivery by rural routes) currently employed by ODIS-RPW to simultaneously enhance the RCCS estimation of delivered DPS volumes and eliminate the need to manually sample a large portion of DPS mail. Petition, Proposal One at 2. Details about the mapping of products to mailcodes are set forth in the RCCS Digital Mailcode Flowchart Excel file electronically attached to the Petition. The RCCS Digital System documentation electronically attached to Proposal One as a PDF document provides more details on the proposed procedures. For rural routes in ZIP Codes that are not included in the ODIS-RPW digital sampling frame, the current methodology of manually sampling DPS mail would continue, and those estimates would be combined with the digital DPS estimates to produce the distribution key for DPS mail used to apportion street activity costs to categories of mail in Cost Segment 10. Id. at 3.

Rationale and impact. The Postal Service states that including ODIS-RPW digital data would greatly enhance RCCS DPS estimates and would substantially magnify the benefits of utilizing digital data already approved by the Commission. Id. RCCS data collectors on most RCCS tests would no longer have to take the time to pull sample mailpieces from DPS letter trays. Id. This would allow them more time to devote to sampling other mail types, like parcels and cased letters and flats. Id. at 3-4. This could also help avoid delays of carriers leaving the office to deliver mail. Id. at 4.

The automated, systematic method of collecting images of DPS letter and cards used to collect the sample would reduce the risk of undetected sampling errors, and the retention of the mailpiece images for 30 days would permit review and post-analysis by data collectors and supervisors. Id. Detailed information regarding the rational and impact of Proposal One, Rural Carrier Cost System—Digital DPS Statistical Documentation, is attached to the Petition as a PDF document. A table, Impact of Proposal One, included in the Petition also compares the FY 2017 DPS distribution key proportions and estimates the impact on unit costs from the proposal. Id. at 5. The Postal Service states that the table and an electronically attached Excel file demonstrate that the expected impact of Proposal One would be minimal. Id. at 4.

The Commission establishes Docket No. RM2018-4 for consideration of matters raised by the Petition. More information on the Petition may be accessed via the Commission's website at http://www.prc.gov. Interested persons may submit comments on the Petition and Proposal One no later than June 13, 2018. Reply comments are due no later than June 20, 2018. Pursuant to 39 U.S.C. 505, Lawrence Fenster is designated as an officer of the Commission (Public Representative) to represent the interests of the general public in this proceeding.

It is ordered:

1. The Commission establishes Docket No. RM2018-4 for consideration of the matters raised by the Petition of the United States Postal Service for the Initiation of a Proceeding to Consider Proposed Changes in Analytical Principles (Proposal One), filed May 17, 2018.

2. Comments by interested persons in this proceeding are due no later than June 13, 2018.

3. Reply comments are due no later than June 20, 2018.

4. Pursuant to 39 U.S.C. 505, the Commission appoints Lawrence Fenster to serve as an officer of the Commission (Public Representative) to represent the interests of the general public in this docket.

5. The Secretary shall arrange for publication of this order in the Federal Register.

Throughout this document wherever “we,” “us,” or “our” is used, we mean the EPA.

Ground-level ozone is an air pollutant that is formed from the reactions of nitrogen oxides (NOx) and volatile organic compounds (VOCs) (77 FR 30088, 30089, May 21, 2012). In 2008 we revised the 8-hour ozone primary and secondary NAAQS to a level of 0.075 parts per million (ppm) to provide increased protection of public health and the environment (73 FR 16436, March 27, 2008). The Houston-Galveston-Brazoria 2008 8-hour ozone NAAQS nonattainment area (HGB area) was classified as a “Marginal” ozone nonattainment area for the 2008 8-hour ozone NAAQS (77 FR 30088, May 21, 2012). The area consists of Brazoria, Chambers, Fort Bend, Galveston, Harris, Liberty, Montgomery and Waller counties. The area was initially given an attainment date of no later than December 31, 2015 (77 FR 30160, May 21, 2012).

On December 23, 2014, the D.C. Circuit Court issued a decision rejecting, among other things, our attainment deadlines for the 2008 ozone nonattainment areas, finding that we did not have statutory authority under the CAA to extend those deadlines to the end of the calendar year. NRDC v. EPA, 777 F.3d 456, 464-69 (D.C. Cir. 2014). Consistent with the court's decision we modified the attainment deadlines for all nonattainment areas for the 2008 ozone NAAQS, and set the attainment deadline for all 2008 ozone Marginal nonattainment areas, including the HGB area as July 20, 2015 (80 FR 12264, March 6, 2015). The HGB area qualified for a 1-year extension of the attainment deadline and we revised the attainment deadline to July 20, 2016 (81 FR 26697, May 4, 2016). As the HGB area did not meet the revised attainment deadline of July 20, 2016, we reclassified the area to “Moderate” and set a due date for submittal of a revised SIP of January 1, 2017 (81 FR 90207, December 14, 2016). The 2008 ozone NAAQS attainment deadline for Moderate areas is July 20, 2018 (40 CFR 51.1103). As an attainment showing is based on the most recent three full years of ozone data available, the relevant years for demonstrating attainment by the attainment deadline for Moderate areas is 2015-2017 and the “attainment year” is 2017 (80 FR 12313, 12268).

When we reclassified the HGB area, we also identified the SIP requirements for the area. The requirements being addressed in this notice are: (1) Modeling and an attainment demonstration (40 CFR 51.1108), (2) RACM (40 CFR 51.1112), (3) a contingency measures plan in the event of failure to attain the NAAQS by the applicable attainment date (CAA sections 172(c)(9) and 182(c)(9)), and (4) attainment MVEBs for 2017, which is the attainment year for the HGB area (40 CFR 93.118(b)).

For areas classified as Moderate and above, CAA section 182(b)(1)(A) requires a SIP revision that provides for VOC and NOX reductions as necessary to attain the ozone standard by the applicable attainment date. For areas classified as Moderate nonattainment or above for the 2008 ozone NAAQS, adequacy of an attainment demonstration shall be demonstrated by means of a photochemical grid model or any other analytical method determined by the Administrator to be at least as effective (40 CFR 51.1108).

We previously approved SIP revisions addressing the following requirements for the HGB area: (1) Emissions inventory (80 FR 9204, February 20, 2015) and (2) confirmation of provisions addressing emissions statements from facilities, new source review emission offsets and a basic vehicle inspection and maintenance program (82 FR 22291, May 15, 2017). In a separate action we are proposing to approve the HGB area reasonable further progress (RFP) demonstration and RFP milestone failure contingency measures plan (83 FR 17964, April 25, 2018). We plan to address the HGB area's reasonable available control technology demonstration in a separate action.

On December 29, 2016, Texas submitted a SIP revision for the HGB area. The SIP revision included a description of how CAA requirements for the 2008 ozone NAAQS in the HGB area are met for: (1) Modeling and attainment demonstration, (2) RACM, (3) a contingency plan and (4) MVEBs. A copy of the SIP revision is available on line at www.regulations.gov, Docket number EPA-R06-OAR-2017-0053.

We have prepared technical support documents (TSDs) for this rulemaking which detail our evaluation. Our TSDs may be accessed online at http://www.regulations.gov, Docket No. EPA-R06-OAR-20173-0053.

EPA's regulations at 40 CFR 51.1108(c) specifically require that areas classified as moderate and above submit a modeled attainment demonstration based on a photochemical grid modeling evaluation or any other analytical method determined by the Administrator to be at least as effective as photochemical modeling. Section 51.1108(c) also requires each attainment demonstration to be consistent with the provisions of section 51.112, including Appendix W to 40 CFR part 51 (i.e., “EPA's Guideline on Air Quality Models,” 70 FR 68218, November 9, 2005 and 82 FR 5182, January 17, 2017). See also EPA's “Guidance on the Use of Models and Other Analyses for Air Quality Goals in Attainment Demonstrations for Ozone, PM2.5, and Regional Haze,” April 2007 and “Draft Modeling Guidance for Demonstrating Attainment of Air Quality Goals for Ozone, PM2.5, and Regional Haze,” December 2014 (hereafter referred to as “EPA's 2007 A.D. guidance” and “EPA's 2014 Draft A.D. guidance”) 1 , which describe criteria that an air quality model and its application should meet to qualify for use in an 8-hour ozone attainment demonstration. For our more detailed evaluation of the attainment demonstration (modeling and the Weight of Evidence (WOE) analyses) for the HGB 8-hour Ozone Attainment Demonstration see the “Modeling and Other Analyses Attainment Demonstration” (MOAAD) TSD. The MOAAD TSD also includes a complete list of applicable modeling guidance documents. These guidance documents provide the overall framework for the components of the attainment demonstration, how the modeling and other analyses should be conducted, and overall guidance on the technical analyses for attainment demonstrations.

As with any predictive tool, there are inherent uncertainties associated with photochemical modeling. EPA's guidance recognizes these limitations and provides approaches for considering other analytical evidence to help assess whether attainment of the NAAQS is demonstrated. This process is called a WOE determination. EPA's modeling guidance (updated in 1996, 1999, and 2002) discusses various WOE approaches. EPA's modeling guidance has been further updated in 2005, 2007 and in addition a draft in 2014 was issued for the 2008 8-hour ozone attainment demonstration procedures. EPA guidance has consistently recommended that all attainment demonstrations include supplemental analyses, WOE, in addition to the recommended modeling. These supplemental analyses would provide additional information such as data analyses, and emissions and air quality trends, which would help strengthen the overall conclusion drawn from the photochemical modeling. EPA's Guidance for 1997 8-hour ozone SIPs was that a WOE analysis is specifically recommended to be included as part of any attainment demonstration SIP where the modeling results predict Future Design Values (FDVs) 2 ranging from 82 to less than 88 ppb (EPA's 2005 and 2007 A.D. Guidance documents). EPA's recent 2014 Draft A.D. Guidance removed the specific range and indicated that WOE should be analyzed when the results of the modeling attainment test are close to the standard. EPA's interpretation of the Act to allow a WOE analysis has been upheld. See 1000 Friends of Maryland v. Browner, 265 F. 3d 216 (4th Cir. 2001) and BCCA Appeal Group v. EPA, 355 F.3d 817 (5th Cir. 2003).

TCEQ submitted the HGB attainment demonstration SIP with photochemical modeling and a WOE analyses on December 29, 2016. The results of the photochemical modeling and WOE analyses are discussed below.

Photochemical grid models are the state-of-the-art method for predicting the effectiveness of control strategies in reducing ozone levels. The models use a three-dimensional grid to represent conditions in the area of interest. TCEQ chose to use the Comprehensive Air Model with Extensions (CAMx), Version 6.31 photochemical model for this attainment demonstration SIP. The model is based on well-established treatments of advection, diffusion, deposition, and chemistry. TCEQ has used the CAMx model in other SIPs and EPA has approved many SIPs using CAMx based modeling analyses. 40 CFR part 51 Appendix W indicates that photochemical grid models should be used for ozone SIPs and lists a number of factors to be considered in selecting a photochemical grid model to utilize. EPA has reviewed the TCEQ's reasons for selecting CAMx and EPA agrees with the choice by TCEQ to utilize CAMx for this SIP.

In this case, TCEQ has developed a modeling grid system that consists of three nested grids. The outer grid stretches from west of California to east of Maine and parts of the Atlantic Ocean to the east, and from parts of southern Canada in the north to much of Mexico to the south extending to near the Yucatan Peninsula on the southern edge. The model uses nested grid cells of 36 km on the outer portions, 12 km for most of the Region 6 states (most of New Mexico and all of Oklahoma, Arkansas, Louisiana, and Texas) and 4-kilometer grid cells for much of Texas (not including West Texas and the Panhandle) and portions of nearby States. The 4-kilometer grid cells include the HGB Nonattainment Area. For more information on the modeling domain, see the MOAAD TSD. The model simulates the movement of air and emissions into and out of the three-dimensional grid cells (advection and dispersion); mixes pollutants upward and downward among layers; injects new emissions from sources such as point, area, mobile (both on-road and nonroad), and biogenic into each cell; and uses chemical reaction equations to calculate ozone concentrations based on the concentration of ozone precursors and incoming solar radiation within each cell. Air quality planners choose historical time period(s) (episode(s)) of high ozone levels to apply the model. Running the model requires large amounts of data inputs regarding the emissions and meteorological conditions during an episode.

Modeling to duplicate conditions during an historical time period is referred to as the base case modeling and is used to verify that the model system can predict historical ozone levels with an acceptable degree of accuracy. It requires the development of a base case inventory, which represents the emissions during the time period for the meteorology that is being modeled. These emissions are used for model performance evaluations. Texas modeled much of the 2012 ozone season (May 1—September 30), so the base case emissions and meteorology are for 2012. If the model can adequately replicate the measured ozone levels in the base case and responds adequately to diagnostic tests, it can then be used to project the response of future ozone levels to proposed emission control strategies.

TCEQ chose to use recent versions of Weather Research and Forecasting Model (WRF) version 3.7.1 for the meteorological modeling for generation of meteorological fields and the Emission Processing System (EPS) version 3 for the emission processing to generate the necessary meteorological and emission fields to be used in CAMx. TCEQ also chose one of the most recent versions of CAMx, version 6.31 for the photochemical grid modeling. WRF is considered a state of the science meteorological model and its use is acceptable in accordance with 40 CFR part 51 Appendix W Section 5. The use of EPS for emissions processing and CAMx for photochemical modeling are also one of the two predominant modeling platforms used for SIP level modeling and these models and versions that TCEQ used. EPA reviewed the models used and modeling grids and determined that the model versions used are recent versions of the model and the modeling grid is large and sufficiently sized to try and minimize the impact of sources outside the grid. Both the models used and the modeling grid are acceptable and in accordance with 40 CFR part 51 Appendix W Section 5.

Texas chose to model May 1st thru September 30th, which is the core of the 2012 ozone season (HGB ozone season is January 1st through December 31st) and includes a number of historical episodes with monitored exceedances. The 2012 ozone season was a period when multiple exceedance days occurred with a good variation of meteorological conditions that lead to ozone exceedances in the HGB area. Texas evaluated other years (2011 and 2013) in their episode selection process. The 2011 core ozone season period had a number of exceedances but was also complicated by a drought through much of Texas and surrounding states that made 2011 less desirable than 2012 which had a similar level of exceedances. The 2013 core ozone season period had significantly less exceedances than 2012. Other years considered either did not have as many exceedances or were older episodes so TCEQ chose the 2012 period to model.

We evaluated Texas' 2012 period/episode selection for consistency with our modeling guidance (2007, and Draft 2014 versions). Among the items that we considered were the ozone levels during the selected period compared to the Design Value (DV) at the time; how the meteorological conditions during the proposed episode match with the conceptual model of ozone exceedances that drive the area's DV; number of days modeled; and whether the time period selected was sufficiently representative of the meteorology that drives elevated ozone in the area. This evaluation is necessary to insure the model would be adequate for evaluating future air quality and any potential control strategies. EPA's guidance indicates that all of these items should be considered when evaluating available episodes and selecting periods/episodes to be modeled. EPA believes that the 2012 core ozone period (May 1-September 30) includes many exceedance days and is an acceptable time period for use in TCEQ's development of the 8-hour ozone attainment plan. This period has a number of meteorological conditions that are consistent with the conditions that yield high ozone in the conceptual model for the HGB area, and was among the episode periods evaluated with the highest number of ozone exceedances. In selecting periods, it is advantageous to select periods with several exceedance days and with multiple monitors exceeding the standard each day when possible. This 2012 period was among the best of all the periods evaluated when the selection was being conducted. EPA concurs with this period. See the MOAAD TSD for further discussion and analysis.

Model performance is a term used to describe how well the model predicts the meteorological and ozone levels in an historical episode. EPA has developed various diagnostic, statistical and graphical analyses which TCEQ performed to evaluate the model's performance. TCEQ performed several analyses of both interim model runs and the final base case model run and deemed the model's performance adequate for control strategy development. As described below, we agree that the TCEQ's model performance is adequate.

From 2014 to 2016, several iterations of the modeling were performed by TCEQ incorporating various improvements to the meteorological modeling, the 2012 base case emissions inventory, and other model parameters. TCEQ shared model performance analyses with EPA and EPA provided input. This data included analysis of meteorological outputs compared to benchmark statistical parameters. TCEQ also performed graphical analyses of the meteorology and extensive analyses of the photochemical modeling for several base case modeling runs.

EPA has reviewed the above information and is satisfied that the meteorological modeling was meeting most of the statistical benchmarks, and was transporting air masses in the appropriate locations for most of the days.3 EPA also conducted a review of the model's performance in predicting ozone and ozone pre-cursors and found that performance was within the recommended 1-hour ozone statistics for most days. We evaluate 1-hour time series and metrics as this information has less averaging/smoothing than the 8-hour analyses and results in a higher resolution for evaluating if the modeling is getting the rise and fall of ozone in a similar manner as the monitoring data. We also evaluated the 8-hour statistics, results of diagnostic and sensitivity tests, and multiple graphical analyses and determined that overall the ozone performance was acceptable for Texas to move forward with future year modeling and development of an attainment demonstration.

EPA does not expect any modeling to necessarily be able to meet all the EPA model performance goals, but relies on a holistic approach to determine if the modeling is meeting enough of the goals and the time series are close enough and diagnostic/sensitivity modeling indicates the modeling is performing well enough to be used for assessing changes in emissions for the model attainment test.4 EPA agrees that the overall base case model performance is acceptable, but notes that even with the refinements, the modeling still tends to have some underestimation bias on some of the higher ozone days. See the MOAAD TSD for further analysis.

Before using the modeling for attainment test and potential control strategy evaluation, TCEQ evaluated the base case emission inventory, and made minor adjustments to the inventory to account for things that would not be expected to occur again or that were not normal. Examples of this are: (1) Inclusion of electric generating units, or EGUs, that were not operating due to temporary shutdown during the base case period but were expected to be operating in 2017 and (2) Adjusting the hour specific EGUs continuous emissions monitor (CEM) based NOX emissions to a typical Ozone season day emission rate). This adjusted emission inventory is called the 2012 baseline emission inventory. The photochemical model is then executed again to obtain a 2012 baseline model projection.

Since the HGB area is classified as a Moderate nonattainment area, the attainment date is as expeditiously as practicable but no later than July 20, 2018. To meet this deadline, it is necessary for emission reductions to be in place by no later than what is termed the attainment year, which in this case is 2017. Future case modeling using the base case meteorology and estimated 2017 emissions is conducted to estimate future ozone levels factoring in the impact of economic growth in the region and State and Federal emission controls.

EPA's 8-hour ozone modeling guidance recommends that the attainment test use the modeling analysis in a relative sense instead of an absolute sense. To predict future ozone levels, we estimate a value that we refer to as the Future Design Value (FDV). First, we need to calculate a Base Design Value (BDV) from the available monitoring data. The BDV is calculated for each monitor that was operating in the base period by averaging the three DVs that include the base year (2012). The DVs for 2010-2012, 2011-2013, and 2012-2014 are averaged to result in a center-weighted BDV for each monitor.

To estimate the FDV, a value is also calculated for each monitor that is called the Relative Response Factor (RRF) using a ratio of future and baseline modeling results around each monitor. This calculation yields the RRF for that monitor. The RRF is then multiplied by the Base Design Value (BDV) for each monitor to yield the FDV for that monitor. The modeled values for each monitor may be calculated to hundredths of a ppb, then truncated to an integer (in ppb) as the final step in the calculation as recommended by EPA's guidance. The truncated values are included in Table 1. TCEQ employed EPA's recommended approach for calculating FDV's. For information on how the FDV is calculated refer to the MOAAD TSD.

The 2014 Draft A.D. Guidance indicates that instead of using all days above the standard (0.075 ppm or 75 ppb) in the baseline, that the subset of 10 highest modeled baseline days at each monitor should be used for calculating an RRF.5 The 10 highest days are the 10 highest 8-hour maximum daily values at each specific monitor. TCEQ provided the 2017 FDV values for each of the monitors using the procedure in the 2014 Draft A.D. Guidance.

EPA has reviewed the components of TCEQ's photochemical modeling demonstration and finds the analysis meets 40 CFR part 51, including 40 CFR part 51 Appendix W—Guideline on Air Quality Models. For a more complete description of the details of the base and future case modeling inputs, set-up, settings, the meteorology and photochemical model performance analysis (and EPA's evaluation of these procedures and conclusions, see the MOAAD TSD in the Docket for this action (EPA-RO6-OAR-2017-0053).

The results of the 2012 and 2017 baseline modeling run RRFs and model FDV calculations using EPA's 2014 Draft A.D Guidance methods are shown in Table 1. Table 1 includes the modeling projections prior to evaluating any other modeling sensitivity runs. EPA's full analysis for this HGB modeling and our results/conclusions for all the monitors is included in the MOAAD TSD.

The second column is the Base DV for the 2012 period. Using the 2014 Draft A.D. Guidance, 19 of the 20 HGB area monitors are in attainment and one is projected to have a 2017 FDV of 79 ppb.

The standard attainment test is applied only at regulatory monitor locations. The 2007 A.D. Guidance and the 2014 Draft A.D. Guidance both recommend that areas within or near nonattainment counties but not adjacent to monitoring locations be evaluated in an unmonitored areas (UMA) analysis to demonstrate that these UMAs are expected to reach attainment by the required future year. The UMA analysis is intended to identify any areas not near a monitoring location that are at risk of not meeting the NAAQS by the attainment date. EPA provided the Modeled Attainment Test Software (MATS) to conduct UMA analyses, but has not specifically recommended in EPA's guidance documents that the only way of performing the UMA analysis is by using the MATS software.

TCEQ used their own UMA analysis (called the TCEQ Attainment Test for Unmonitored areas or TATU). EPA previously reviewed TATU during our review of the modeling protocol for the HGB area (2010 Attainment Demonstration SIP) and we approved analysis using TATU in previous approval of the 2013 HGB 1997 8-hour attainment demonstration (See MOAAD TSD for 2013 SIP approval in Docket EPA-R06-OAR-2013-0387 (79 FR 57, January 2, 2014). We are proposing approval of the use of the TATU tool as providing an acceptable UMA analysis for this SIP approval action (See MOAAD TSD for review and evaluation details). The TATU is integrated into the TCEQ's model post-processing stream and MATS requires that modeled concentrations be exported to a personal computer-based platform, thus it would be more time consuming to use MATS for the UMA. Based on past analysis, results between TATU and MATS are similar and EPA's guidance (2007 and Draft 2014) provides states the flexibility to use other technically supportable tools for the UMA.

The TATU analysis included in the SIP indicates the maximum in most of the unmonitored areas is not significantly different than the 2017 FDVs calculated using all days above 75 ppb in the baseline (2007 A.D. Guidance). TCEQ's TATU analysis found two unmonitored areas that indicated high values above the standard but neither of these areas are higher than the area wide maximum modeled value at Manvel Croix Park monitor that is part of the monitored attainment test. One is a small unmonitored area on the Harris and Montgomery County border that is indicated just above the standard and areas in the Gulf of Mexico. The area on the Harris and Montgomery County border is an area between the Conroe and NW Harris Co. regulatory monitors but there is also a non-regulatory monitor (UH WG Jones Forest) that represents some of the area between these two regulatory monitors. In comparison to these two regulatory monitors the UH WG Jones Forest (UH WG) monitor's recent 4th High 8-hour ozone values (2013—preliminary 2017) 6 have been equal or similar to 4th Highs of at least one of these two regulatory monitors except in 2016 when the UH WG 4th High was higher. The 2016 UH WG 4th High was still several ppb lower than the 2016 HGB maximum 4th High indicating that this area including the unmonitored area did not represent the area with highest ozone levels in 2016. The UH WG DV (non-regulatory) has been within 3 ppb of one of these two regulatory monitors and also several ppb less that the HGB maximum DV in recent years (2013-preliminary 2017), further indicating that this unmonitored area is not an area of significant concern. The other area identified was an area over the Gulf of Mexico and parts of Galveston Island where there are no meteorology or ozone monitors to evaluate model performance/accuracy, the accuracy of the spatial interpolation, and the predicted 2017 FDVs, therefore these values are less reliable. Additionally, they are not higher than the value at Manvel Croix monitor.

We agree with TCEQ's analysis finding that the 2 areas identified that are outside of the monitored areas are not a concern because they are not higher than the value predicted at Manvel Croix and because of the issues discussed above. Therefore, the 2017 FDVs are properly capturing the geographic locations of the monitored peaks and no additional significant hotspots were identified that need to be further addressed.

For a more complete description of the modeling attainment test procedures and conclusions and EPA's evaluation of these procedures and conclusions, see the MOAAD TSD in the Docket for this action.

EPA has reviewed the modeling and modeling results and finds they meet 40 CFR part 51 requirements. The modeling using the 2014 Draft A.D. Guidance indicates that 19 out of 20 of the monitors are projected to be in attainment in 2017 while one monitor has a 2017 FDV of 79 ppb, above the 2008 8-hour Ozone NAAQS (75 ppb). EPA concludes that given that 95% of the monitors are in attainment, only one monitor is predicted above the standard, and the unmonitored area analysis did not show any areas of concern with values higher than the maximum value at the Manvel Croix monitor, the overall modeling results are within the range 7 where EPA recommends Weight of Evidence (WOE) be considered to determine if the attainment demonstration is approvable.

A WOE analysis provides additional scientific analyses as to whether the proposed control strategy, although not modeling attainment, demonstrates attainment by the attainment date. The intent of EPA's guidance is to recognize potential uncertainty in the modeling system and future year projections therefore utilize other supplemental information or WOE in deciding if attainment will be achieved. Thus, in the HGB case, even though the modeling predicts one out of 20 monitors has an FDV above the NAAQS, additional information (WOE) can provide a basis to conclude attainment is demonstrated. EPA's guidance indicates that several items should be considered in a WOE analyses, including the following: Additional modeling, additional reductions not modeled, recent emissions and monitoring trends, known uncertainties in the modeling and/or emission projections, and other pertinent scientific evaluations. Pursuant to EPA's guidance, TCEQ supplemented the control strategy modeling with WOE analyses.

We briefly discuss the more significant components of the WOE that impacted EPA's evaluation of the attainment demonstration in this action. Many other elements are discussed in the MOAAD TSD that had less significant impact on EPA's evaluation. For EPA's complete evaluation of the WOE considered for this action, see the MOAAD TSD.

TCEQ used a modeling concept that tracks the ozone generated in the modeling from ozone precursors by location and category of type of emission source that is referred to as source apportionment.8 TCEQ performed source apportionment modeling using 2012 baseline and 2017 future case modeling databases using the Anthropogenic Precursor Culpability Assessment (APCA) tool. 9 TCEQ provided analysis for select monitors that tend to drive the HGB area's DV (Manvel Croix, Aldine, and Deer Park) and two of the outer monitors that can have higher monitored values and also be more representative of background depending on the transport pattern of a given day (Galveston and Conroe Relocated). Overall, the APCA indicated that HGB emission sources contribute more on the 10 highest days that are used for the RRF and FDV calculations than on other days. For these 10 highest days used in the modeled attainment test at the higher monitors, the amount of 8-hour ozone at the monitor in 2017 due to emissions from local HGB sources was often in the 15-40 ppb range for Manvel Croix (10-day average 28.2 ppb from HGB emissions and 5.35 ppb from rest of Texas emissions), 6-48 ppb range for Aldine (10-day average 27.9 ppb from HGB emissions and 3.24 ppb from rest of Texas emissions), 7-32 ppb range for Deer Park (10-day average 18.1 ppb from HGB emissions and 5.2 ppb from rest of Texas emissions). This source apportionment indicates that on the worst days in the HGB area, local emission reductions and reductions within Texas are more beneficial than on other baseline exceedance days. This adds a positive WOE that HGB area reductions in mobile on-road and non-road categories, emission reductions in point source cap and trade programs as well as other categories aid in demonstrating attainment. When we say positive WOE, EPA is indicating that the WOE element factors more into supporting the demonstration of attainment. For EPA's complete evaluation of the modeled WOE elements considered for this action, see the MOAAD TSD.

TCEQ showed that 8-hour and 1-hour ozone DVs have decreased over the past 12 years, based on monitoring data in the HGB Area (2005 through 2016). TCEQ indicated that the 2015 8-hour ozone DV for the HGB nonattainment area is 80 ppb at Manvel Croix, which is in attainment of the former 1997 8-hour standard (84 ppb) and demonstrates progress toward the current 75 ppb standard.

TCEQ's trend line for the 1-hour ozone DV shows a decrease of about 4 ppb per year, and the trend line for the 8-hour ozone DV shows a decrease of about 2 ppb per year and reaching attainment of the 75 ppb standard in 2017. The 1-hour ozone DVs decreased about 29% from 2005 through 2016 and the 8-hour ozone DVs decreased about 23% over that same time.

EPA has also supplemented TCEQ's monitoring data analysis with additional analysis of 2014-2016 and preliminary 2017 monitoring data 10 (See Tables 2 and 3). There were 20 regulatory monitors in 2012 (base case year) so the modeling was restricted to FDVs at 20 monitors, but the regulatory ambient network has expanded to 21 monitors in recent years. The Manvel Croix monitor is located on the south side of the urban core, to the west of the Houston Ship Channel. The Aldine monitor is located on the north side of the urban core and to the northwest of the Houston Ship Channel. One of these two monitors has been setting the HGB area DV from 2009 through 2016 years (and preliminarily in 2017). The 2016 DV (2014-2016 data) data indicates that only three of the 21 regulatory monitors had a DV above the standard (Aldine—79 ppb, West Hollow and Galveston—76 ppb). Current preliminary 2015-2017 DV data indicates that only five of the 21 monitors in the HGB area may be above the standard with a preliminary 2017 DVs of 81 ppb at Aldine, Park Place and Bayland Park with 77 ppb, and Westhollow and Lang with 76 ppb.11

The monitored DV is calculated by averaging the 4th High values from three consecutive years and truncating to integer (whole number) level in ppb. For example, the 2016 DV is the truncated average of 4th Highs from 2014-2016. See Table 3 for the 2014-prelminary 2017 4th High 8-hour values. In 2014 none of the 21 monitors in the HGB area had a 4th High 8-hour high value above 75 ppb. In 2015 worse meteorology (more conducive for formation of ozone) occurred and the 4th high 8-hour exceedance value monitored at Aldine jumped to 95 ppb with the second highest value of 91 ppb at Lang (both 27 ppb higher than their 2014 value) and 15 other monitors had 4th High 8-hour values greater than 75 ppb (17 of the 21 monitors were greater than 75 ppb). In 2016, the 4th High 8-hour values went back down and only Westhollow and Bayland Park monitors had 4th High 8-hour values greater than 75 ppb with 79 ppb and 78 ppb respectively, all other HGB area monitors (19 of 21) were 75 ppb or less. In the preliminary 2017 data, only 3 of the 21 monitors had 4th High 8-hour values above 75 ppb (Conroe—79 ppb, Clinton Drive—77 ppb, and Manvel Croix—77 ppb) and the other 18 monitors had values of 75 ppb or less. It is unusual that the 79 ppb at the Conroe monitor was the monitor with the preliminary highest 4th High in 2017 in the HGB area and the Clinton Drive monitor had a 77 ppb, as these monitors are not some of the typical High DV monitors in HGB. The Conroe and Clinton Drive monitor's 2015 and 2016 DVs are below the standard (Clinton Drive 69 ppb both years and Conroe 2015—73 ppb and 2016-72 ppb) even with the higher ozone monitored in 2015. Considering as recently as 2012, 15 of 20 monitors were violating the NAAQS, the area has had large decreases in ozone levels.

Overall as seen in Tables 2 and 3 below, 2015 stands out with high ozone monitored data compared to other recent years (2014, 2016 and preliminary 2017). These 4th High 8-hour values support that the area with recent emission levels has been close to attaining the standard for several years. The high 2015 4th High 8-hour data is driving all the DVs for 2015, 2016, and preliminary 2017. To assess what might have occurred if 2015 hadn't been such a high year we have calculated the average of the last two years (2016 and preliminary 2017) 4th Highs and all are equal to or below 75 ppb except the Bayland Park monitor with 76 ppb,12 confirming that 2015 is driving the recent DVs because the 2015 4th Highs are much higher than other recent years (2014, 2016, and preliminary 2017).

Despite the high 2015 4th High 8-hour data that contributed to higher 2015, 2016, and preliminary 2017 DV values, examination of the 4th High 8-hour values for 2014, 2016 and preliminary 2017, support the conclusion that the general long term trend identified by TCEQ of a steady reduction in DV of 2 ppb per year is anticipated to continue. Both the individual 4th High monitoring data from 2014, 2016, and 2017 and the average of the 2016 and preliminary 2017 data are strong WOE. The ozone data indicates that emission levels in HGB area and the meteorology that occurred in 2014, 2016, and 2017 have led to ozone levels that are consistent with attainment of the NAAQS. Overall, with the exception of the high 2015 data, the recent monitoring data provides a strong positive WOE.

TCEQ also submitted WOE components that are further discussed in the MOAAD TSD including the following: Conceptual model and selection of the 2012 period to fit the range of days and meteorological cycles that yield high ozone in HGB, meteorological transport clustering, additional ozone design value trends, ozone variability analysis and trends, NOX and VOC monitoring trends, emission trends, NOX and VOC chemistry limitation analysis, and local contribution analyses. Details of these WOE components that also provide positive WOE are included in Chapter 5 of the December 29, 2016 SIP submittal and discussed in the MOAAD TSD.

Refinery Consent Decrees—Texas noted that EPA's existing and continued efforts are resulting in many consent decrees that obtain reductions at refineries across the U.S. and approximately 14% of the nation's refining capacity is in the HGB area. Texas indicted that these consent decrees are yielding reductions in flaring operations, better monitoring of emissions using continuous emission monitors or predictive emission monitoring systems, and other emission reductions from large emissions sources at these facilities. Texas indicated that not all of these emissions have been quantified and included in the model, so some emission reductions required by these actions provide positive WOE.

Texas Emission Reduction Plan (TERP)—The TERP program provides financial incentives to eligible individuals, businesses, or local governments to reduce emissions from polluting vehicles and equipment. In 2015, the Texas Legislature increased funding for TERP to $118.1 million per year for FY 2016 and 2017, which was an increase of $40.5 million per year which resulted in more grant projects in eligible TERP areas, including the HGB area. Texas also noted that since the inception of TERP in 2001 through August 2016, over $1,013 million dollars have been spent within the state through TERP and the Diesel Emission Reduction Incentive Program (DERI) that has resulted in 171,945 tons of NOX reductions in Texas by 2016. TCEQ also noted that over $423.6 million in DERI grants have been awarded to projects in the HGB area through 2016 resulting with a projected NOX reduction of 75,739 tons that is also estimated as 14.1 tons per day of NOX. These DERI and TERP benefits were not modeled but the reductions and future reductions do provide positive WOE.

Low-Income Vehicle Repair Assistance, Retrofit, and Accelerated Vehicle Retirement Program (LIRAP)—TCEQ established a financial assistance program for qualified owners of vehicles that fail the emissions test. The purpose of this voluntary program is to repair or remove older, higher emitting vehicles from use in certain counties with high ozone. In HGB area between December 12, 2007 and May 31, 2016, the program repaired 19,297 and retired and replaced 29,716 vehicles at a cost of $98.1 million. Participating HGB area counties were allocated approximately $20.1 million per year for LIRAP for FYs 2016 and 2017. This is an increase of approximately $17.5 million per year over the previous biennium. These LIRAP benefits were not modeled but the reductions and future reductions do provide positive WOE.

Local Initiative Projects (LIP)—Funds are provided to counties participating in the LIP for implementation of air quality improvement strategies through local projects and initiatives (Examples: Studies on emissions inspection fraud and targeting high emission vehicles). The 2016 and 2017 state budgets included increases of approximately $1.9 million per year over previous biennium. These LIP benefits were not modeled but the reductions and future reductions do provide positive WOE.

Local Initiatives—TCEQ indicated that there is an assortment of locally implemented strategies in the HGB nonattainment area including pilot programs, new programs, or programs with pending methodologies. These Local Initiatives benefits were not modeled but the reductions and future reductions do provide positive WOE.

Energy Efficiency/Renewable Energy (EE/RE) Measures—Additional quantified and unquantified WOE emissions reductions (without NOX reductions calculated) include a number of energy efficiency measures (Residential and Commercial Building Codes, municipality purchase of renewable energies, political subdivision projects, electric utility sponsored programs, Federal facilities EE/RE Projects, etc.). These efforts are not easily quantifiable for an equivalent amount of NOX reductions that may occur, but they do provide positive WOE that growth in electrical demand is reduced and this results in reduced NOX emissions from EGUs.

Voluntary Measures—Blue Skyway and Smartway programs encourage voluntary emission reductions in fleets by supporting reduced fuel combustion and use of alternative fuels. Since these are voluntary measures and reporting/verification is not a requirement, the amount of NOX and VOC reductions that may occur are not easily quantifiable, but they do provide positive WOE from this sector.

Consistent with EPA's regulations at 40 CFR 51.1108(c), Texas submitted a modeled attainment demonstration based on a photochemical grid modeling evaluation. EPA has reviewed the components of TCEQ's photochemical modeling demonstration and finds the analysis is consistent with EPA's guidance and meets 40 CFR part 51, including 40 CFR part 51 Appendix W—Guideline on Air Quality Models. The photochemical modeling was conducted to project 2017 ozone levels to demonstrate attainment of the standard by the attainment date. Although the modeled attainment test is not met at one of the 20 HGB monitors because one of the monitors was projected to remain above the standard, consistent with our A.D. guidance, TCEQ submitted a WOE analysis that supports that the emission levels in the area are consistent with attainment. This WOE analysis provides additional scientific analyses based on identification of emission reductions not captured in the modeling, monitoring trends, recent monitoring data (EPA included more recent monitoring data since the SIP submission) and other modeling analyses. The average of the 2016 and preliminary 2017 4th High Data indicates all monitors but one are at or below the standard. This includes the Manvel Croix monitor, the one monitor projected in the modeling to be over the standard, with a value of 73 ppb. The one monitor, which the 2016-2017 average is above standard is just 1 ppb over. The combination of the modeling and the WOE indicate that recent emission levels are consistent with attainment of the standard and demonstrate attainment by the attainment date. We are therefore proposing to approve the attainment demonstration submitted in the December 29, 2016 submittal.

A demonstration is required that all RACM necessary to demonstrate attainment as expeditiously as practicable has been adopted (CAA section 172(c)(1) and 40 CF 51.1112(c)). We consider a control measure to be necessary under the RACM requirement if it: (1) Is technologically feasible, (2) is economically feasible, (3) does not cause substantial widespread and long-term adverse impacts, (4) is not absurd, unenforceable, or impracticable and (5) can advance the attainment date by at least a year (57 FR 13498, 13560, April 16, 1992; 74 FR 2945, 2951, January 16, 2009; and 78 FR 55037, 55044, September 9, 2013).

Texas identified and analyzed whether potential control measures would be considered a RACM measure. Texas determined that none of these measures meet the five RACM criteria. We reviewed the RACM analysis and propose to approve the Texas demonstration that the HGB area has met the RACM requirement. We note that to advance the attainment date by at least a year (to July 20, 2017) additional control measures would need to be implemented at the beginning of 2016. Given the requirement for a SIP revision was published December 14, 2016, it is not feasible that additional measures could be implemented at the beginning of 2016.

CAA section 172(c)(9) require contingency measures to be implemented in the event of failure to attain the NAAQS by the applicable attainment date or if the area fails to make reasonable further progress. These contingency measures must be fully adopted rules or measures which are ready for implementation quickly upon failure to meet attainment. Implementation of the contingency measures should provide additional emissions reductions of up to 3% of the base year inventory (or lesser percentage that will cure the identified failure). The reductions are to be achieved in the year following the year in which the failure has been identified (57 FR 13498, 13510-12, April 16, 1992). The base year inventory is that specified by CAA section 182(b)(1)(B) and 40 CFR 51.1115.

The Texas contingency measures plan is based on (1) a 2011 base year inventory, (2) a 2% NOX emissions reduction and a 1% VOC emissions reduction and (3) reductions from 2017 to 2018 due to Federal control measures for on-road motor vehicles. Texas used the EPA MOVES2014a mobile source emissions estimation model to calculate the on-road emissions reductions.

Table 4 is a summary of the Texas contingency measures plan for the HGB area. As Texas has demonstrated that the base year emissions will be reduced by at least 3% from 2017 to 2018, we propose to approve the HGB contingency measures plan.

MVEBs are required for ozone attainment demonstrations to ensure that transportation plans, transportation improvement programs and federally supported highway and transit projects are consistent with (“conform to”) the purpose of the SIP. Conformity to the purpose of the SIP means that transportation activities will not cause new air quality violations, worsen existing violations, or delay timely attainment of the relevant NAAQS or interim reductions and milestones (81 FR 12264, 12283-84, March 6, 2015). The SIP included attainment NOX and VOC MVEBs for the 2017 attainment year (table 5). The MVEBs represents the maximum level of on-road emissions of NOX and VOC that can be produced in 2017—when considered with emissions from all other sources—which demonstrate attainment of the NAAQS. As our review found that the 2017 MVEBs are consistent with the emissions inventory and control measures that we are proposing provide for attainment, we propose to approve the MVEBs.

When reviewing submitted “control strategy” SIPs containing MVEBs, EPA may affirmatively find the MVEBs contained therein adequate for use in determining transportation conformity. EPA's substantive criteria for determining adequacy of a MVEB are set out in 40 CFR 93.118(e)(4). EPA is evaluating the adequacy of the submitted MVEBs in parallel to this proposed approval action on the attainment demonstration. The NOX and VOC MVEBs for the HGB area opened for public comment on EPA's adequacy website on May 17, 2018, found at: https://www.epa.gov/state-and-local-transportation/state-implementation-plans-sip-submissions-currently-under-epa. The adequacy comment period for these MVEBs will close on June 18, 2018.

Once EPA affirmatively finds the submitted MVEBs are adequate for transportation conformity purposes, these MVEBs must be used by state and Federal agencies in determining whether proposed transportation projects conform to the SIP as required by section 176(c) of the CAA. Within 24 months from the effective date of EPA's adequacy determination for the MVEBs or the publication date for the final rule for this action, whichever is earlier, the transportation partners will need to demonstrate conformity to the new NOX and VOC MVEBs pursuant to 40 CFR 93.104(e)(3).

Section 110(l) of the CAA precludes EPA from approving a revision of a plan if the revision would interfere with any applicable requirement concerning attainment and RFP (as defined in section 171 of the Act), or any other applicable requirement of the CAA. This action proposes approval of a plan that demonstrates that already adopted measures both Federal or State will provide levels of emissions consistent with attaining the ozone NAAQS. Since it is a demonstration, it will not interfere with any other requirement of the Act. Also in this action, we are proposing to approve the attainment MVEBs, which are lower than MVEBs proposed to be approved for RFP (83 FR 17964, April 25, 2018), and the contingency measures plan. The lower attainment demonstration MVEBs and on-going emission reductions through the contingency measures plan both provide progress toward attainment and as such do not interfere with any applicable requirement of the Act.

We are proposing to approve elements of a HGB area SIP revision for the 2008 8-hour ozone NAAQS. Specifically, we are proposing approval of the attainment demonstration, a RACM analysis, the contingency measures plan in the event of failure to attain the NAAQS by the applicable attainment date, and NOX and VOC MVEBs for 2017. We are proposing approval of the use of TATU's tool and its Unmonitored Area analysis as acceptable for meeting the recommended evaluation of ozone levels in the Unmonitored Area analysis for this SIP approval action. Further, as part of today's action, we are describing the status of our adequacy determination for the NOX and VOC MVEBs for 2017 in accordance with 40 CFR 93.118(f)(2). Within 24 months from the effective date of our adequacy determination for the MVEBs or the publication date for a final rule approving the MVEBs, whichever is earlier, the transportation partners will need to demonstrate conformity to the new NOX and VOC MVEBs pursuant to 40 CFR 93.104(e)(3).

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

• Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) 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 CAA; and

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

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