Federal Register Vol. 83, No.108,

Federal Register Volume 83, Issue 108 (June 5, 2018)

Page Range25849-26202
FR Document

83_FR_108
Current View
Page and SubjectPDF
83 FR 26201 - African-American Music Appreciation Month, 2018PDF
83 FR 26199 - National Ocean Month, 2018PDF
83 FR 26197 - National Homeownership Month, 2018PDF
83 FR 26040 - Federal Commission on School Safety; Listening SessionsPDF
83 FR 26074 - Termination of the Designation of Honduras for Temporary Protected StatusPDF
83 FR 25879 - National Caribbean-American Heritage Month, 2018PDF
83 FR 25857 - Adjusting Imports of Steel Into the United StatesPDF
83 FR 26057 - Notice to All Interested Parties of Intent To Terminate ReceivershipsPDF
83 FR 25849 - Adjusting Imports of Aluminum Into the United StatesPDF
83 FR 26096 - Sunshine Act Meeting NoticePDF
83 FR 26131 - Sunshine Act MeetingsPDF
83 FR 25943 - 340B Drug Pricing Program Ceiling Price and Manufacturer Civil Monetary Penalties RegulationPDF
83 FR 26036 - International internet Policy PrioritiesPDF
83 FR 25977 - Air Plan Approval; Nebraska; Revisions to Title 115 of the Nebraska Administrative Code; Rules of Practice and ProcedurePDF
83 FR 26141 - Petition for Waiver of CompliancePDF
83 FR 25995 - Sabine-Angelina Resource Advisory CommitteePDF
83 FR 26041 - Applications for New Awards; Expanding Opportunity Through Quality Charter Schools Program (CSP)-National Dissemination GrantsPDF
83 FR 26092 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Open Mobile AlliancePDF
83 FR 25941 - Alpha-cypermethrin; Pesticide TolerancesPDF
83 FR 26092 - Notice Pursuant to the National Cooperative Research, and Production Act of 1993-Cooperative Research Group on Hedge IVPDF
83 FR 25983 - Approval of AL Plan for Control of Emissions From Commercial and Industrial Solid Waste Incineration UnitsPDF
83 FR 26092 - Notice Pursuant to the National Cooperative Research and Production Act of 1993-Cooperative Research Group on ROS-Industrial Consortium AmericasPDF
83 FR 25997 - U.S. Department of Commerce Trade Finance Advisory CouncilPDF
83 FR 25936 - Ethoxylated Fatty Acid Methyl Esters; Exemption From the Requirement of a TolerancePDF
83 FR 26052 - Certain New Chemical Substances; Receipt and Status Information for February 2018PDF
83 FR 26012 - Northeast Regional Stock Assessment Workshop and Stock Assessment Review Committee Public MeetingPDF
83 FR 25997 - Proposed Information Collection; Comment Request; Licensing Responsibilities and EnforcementPDF
83 FR 25996 - Submission for OMB Review; Comment Request: Request for the Appointment of a Technical Advisory CommitteePDF
83 FR 26088 - Cold-Drawn Mechanical Tubing from China, Germany, India, Italy, Korea, and SwitzerlandPDF
83 FR 26087 - Certain Blood Cholesterol Testing Strips and Associated Systems Containing the Same; Institution of InvestigationPDF
83 FR 26088 - Certain Blow-Molded Bag-In-Container Devices, Associated Components, and End Products Containing or Using Same: Institution of InvestigationPDF
83 FR 26058 - Appraisal Subcommittee Notice of MeetingPDF
83 FR 26089 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Revision of a Currently Approved Collection; Licensed Firearms Manufacturers Records of Production, Disposition, and Supporting DataPDF
83 FR 26090 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Records of Acquisition and Disposition, Registered Importers of Arms, Ammunition & Implements of War on the U.S. Munitions Import ListPDF
83 FR 26091 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Report of Firearms Transactions-Demand 2 (ATF Form 5300.5)PDF
83 FR 25915 - Case Management Services Grant ProgramPDF
83 FR 26065 - Findings of Research MisconductPDF
83 FR 26059 - Availability of Program Application Instructions for MIPPA Program FundsPDF
83 FR 26065 - Meeting of the Tick-Borne Disease Working GroupPDF
83 FR 26139 - BNSF Railway Company-Abandonment Exemption-in the City of Des Moines, Polk County, Iowa; Norfolk Southern Railway Company-Discontinuance of Service Exemption-in the City of Des Moines, Polk County, IowaPDF
83 FR 26013 - Takes of Marine Mammals Incidental to Specified Activities; Taking Marine Mammals Incidental to Demolition and Reuse of the Original East Span of the San Francisco-Oakland Bay BridgePDF
83 FR 26058 - Change in Bank Control Notices; Acquisitions of Shares of a Bank or Bank Holding CompanyPDF
83 FR 26080 - Housing Trust Fund; Fiscal Year (FY) 2018 Allocation NoticePDF
83 FR 26139 - Surrender of License of Small Business Investment CompanyPDF
83 FR 26139 - Medley SBIC, L.P.; Notice Seeking Exemption Under Section 312 of the Small Business Investment Act, Conflicts of InterestPDF
83 FR 26140 - Hours of Service of Drivers: Application for Exemption; Small Business in Transportation CoalitionPDF
83 FR 26081 - Agency Information Collection Activities: 30 CFR Parts 1227, 1228, and 1229, Delegated and Cooperative Activities With States and Indian TribesPDF
83 FR 26119 - Pendency for Request for Approval of Special Withdrawal Liability Rules: Alaska Electrical Pension Plan of the Alaska Electrical Pension FundPDF
83 FR 26011 - Public Meeting on the Definition of Fish Aggregating DevicesPDF
83 FR 26148 - Proposed Collection; Comment Request for Form 4422 and Form 15056PDF
83 FR 26060 - Formal Meetings Between the Food and Drug Administration and Sponsors or Applicants of Biosimilar User Fee Act Products; Draft Guidance for Industry; AvailabilityPDF
83 FR 26008 - Proposed Information Collection; Comment Request; Certification Requirements for Distributors of NOAA Electronic Navigational Charts/NOAA Hydrographic ProductsPDF
83 FR 26011 - Submission for OMB Review; Comment RequestPDF
83 FR 26109 - Advisory Committee on Reactor Safeguards (ACRS) Meeting of the ACRS Subcommittee on Nuscale; Notice of MeetingPDF
83 FR 26112 - Advisory Committee on Reactor Safeguards (ACRS); Meeting of the ACRS Subcommittee on Planning and Procedures; Notice of MeetingPDF
83 FR 26109 - Meeting of the Advisory Committee on Reactor Safeguards (ACRS) Subcommittee on APR1400PDF
83 FR 25981 - Air Plan Approval; Rhode Island; Control of Volatile Organic Compound Emissions, Control of Nitrogen Oxide Emissions, and Sulfur Content of FuelsPDF
83 FR 26064 - Agency Information Collection Activities: Proposed Collection: Public Comment Request Information Collection Request Title: The Secretary's Advisory Committee on Heritable Disorders in Newborns and Children's Public Health System Assessment Surveys OMB No. 0906-0014, RevisionPDF
83 FR 26070 - Government-Owned Inventions; Availability for LicensingPDF
83 FR 26066 - Center For Scientific Review; Notice of Closed MeetingsPDF
83 FR 26050 - Combined Notice of FilingsPDF
83 FR 26051 - Combined Notice of Filings #1PDF
83 FR 25936 - New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants; Delegation of Authority to New MexicoPDF
83 FR 26001 - Citric Acid and Certain Citrate Salts From Belgium: Affirmative Final Determination of Sales at Less Than Fair ValuePDF
83 FR 26004 - Citric Acid and Certain Citrate Salts From Thailand: Final Negative Countervailing Duty Determination, and Final Negative Critical Circumstances DeterminationPDF
83 FR 26095 - Agency Information Collection Activities; Submission for OMB Review; Comment Request; Youth CareerConnect EvaluationPDF
83 FR 25998 - Citric Acid and Certain Citrate Salts From Thailand: Affirmative Final Determination of Sales at Less Than Fair Value and Final Affirmative Determination of Critical Circumstances in PartPDF
83 FR 26002 - Citric Acid and Certain Citrate Salts From Colombia: Affirmative Final Determination of Sales at Less Than Fair Value and Final Negative Determination of Critical CircumstancesPDF
83 FR 26062 - Agency Information Collection Activities: Submission to OMB for Review and Approval; Public Comment Request; The Maternal, Infant, and Early Childhood Home Visiting Program Performance Measurement Information System, OMB No. 0906-0017-RevisionPDF
83 FR 26008 - Open Meeting of the Information Security and Privacy Advisory BoardPDF
83 FR 26063 - Agency Information Collection Activities: Submission to OMB for Review and Approval; Public Comment Request; Office of the Advancement of Telehealth Outcome Measures, OMB No. 0915-0311-RevisionPDF
83 FR 26093 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension of a Currently Approved CollectionPDF
83 FR 26094 - Agency Information Collection Activities; Proposed eCollection eComments Requested; Extension of a Currently Approved CollectionPDF
83 FR 26009 - Marine Mammals; File No. 21719PDF
83 FR 26143 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel INTRIGUE; Invitation for Public CommentsPDF
83 FR 26142 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel INFINITY; Invitation for Public CommentsPDF
83 FR 26142 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel GRATITUDE; Invitation for Public CommentsPDF
83 FR 26143 - Requested Administrative Waiver of the Coastwise Trade Laws: Vessel BLAZE II; Invitation for Public CommentsPDF
83 FR 26111 - Effect of LWR Water Environments on the Fatigue Life of Reactor MaterialsPDF
83 FR 26110 - Guidelines for Evaluating the Effects of Light-Water Reactor Water Environments in Fatigue Analyses of Metal ComponentsPDF
83 FR 26038 - Draft Guidelines for Determining Age Appropriateness of Toys; Notice of Extension of Comment PeriodPDF
83 FR 26096 - National Space Council Users' Advisory Group; MeetingPDF
83 FR 26048 - Records Governing Off-the-Record Communications; Public NoticePDF
83 FR 26051 - Sunrise Pipeline LLC; Notice of Petition for Declaratory OrderPDF
83 FR 26049 - Combined Notice of Filings #1PDF
83 FR 26144 - Hazardous Materials: Notice of Updated Rail Tank Car Thermal Protection Systems ListPDF
83 FR 26097 - Records Schedules; Availability and Request for CommentsPDF
83 FR 26049 - Yuba County Water Agency; Notice of Availability of the Draft Environmental Impact Statement for the Yuba River Development ProjectPDF
83 FR 26123 - Self-Regulatory Organizations; Miami International Securities Exchange LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend Exchange Rule 307, Position Limits, and Exchange Rule 309, Exercise LimitsPDF
83 FR 26131 - Self-Regulatory Organizations; NYSE American LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Intercontinental Exchange, Inc. Director Independence PolicyPDF
83 FR 26129 - Self-Regulatory Organizations; Nasdaq BX, Inc.; Notice of Filing and Immediate Effectiveness of the Proposed Rule Change To Amend the Descriptions of Certain Data Feeds Within Chapter VI, Section 19 Entitled “Data Feeds and Trade Information.”PDF
83 FR 26128 - Self-Regulatory Organizations; Nasdaq PHLX LLC; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change To Amend the Descriptions of Certain Data Feeds Within Rule 1070PDF
83 FR 26136 - Self-Regulatory Organizations; NYSE National, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Intercontinental Exchange, Inc. Director Independence PolicyPDF
83 FR 26134 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Intercontinental Exchange, Inc. Director Independence PolicyPDF
83 FR 26125 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the Intercontinental Exchange, Inc. Director Independence PolicyPDF
83 FR 26121 - Self-Regulatory Organizations; NYSE American LLC; Notice of Filing of Proposed Rule Change To Amend Rule 7.35E Relating to the Auction Reference Price for a Trading Halt Auction Following a Regulatory HaltPDF
83 FR 26010 - Pacific Island Fisheries; Western Pacific Stock Assessment Review; Public MeetingPDF
83 FR 26058 - Board of Scientific Counselors, National Center for Injury Prevention and Control, (BSC, NCIPC); CorrectionPDF
83 FR 25995 - Notice of Public Meeting of the Oregon Advisory CommitteePDF
83 FR 25996 - Notice of Public Meeting of the Alaska Advisory CommitteePDF
83 FR 25920 - Approval and Promulgation of Implementation Plans; Texas; Infrastructure and Interstate Transport for the 2012 Fine Particulate Matter Ambient Air Quality StandardPDF
83 FR 26009 - Notice of Intent To Prepare an Environmental Impact Statement; Extension of Public Comment PeriodPDF
83 FR 26072 - Agency Information Collection Activities: Ship's Store DeclarationPDF
83 FR 26162 - Great Lakes Pilotage Rates-2018 Annual Review and Revisions to MethodologyPDF
83 FR 26138 - Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the Commonwealth of KentuckyPDF
83 FR 26139 - Presidential Declaration Amendment of a Major Disaster for Public Assistance Only for the State of OhioPDF
83 FR 26073 - Private Sector Clearance Program Request FormPDF
83 FR 25949 - Revitalization of the AM Radio ServicePDF
83 FR 26070 - National Institute of Neurological Disorders and Stroke; Notice of Closed MeetingsPDF
83 FR 26072 - National Institute of Mental Health; Notice of Closed MeetingsPDF
83 FR 26071 - National Institute of General Medical Sciences; Notice of Closed MeetingPDF
83 FR 26068 - National Heart, Lung, and Blood Institute; Notice of MeetingPDF
83 FR 26069 - National Cancer Institute; Notice of MeetingPDF
83 FR 26071 - Center for Scientific Review: Notice of Closed MeetingsPDF
83 FR 26069 - Center For Scientific Review; Notice of Closed MeetingPDF
83 FR 26067 - Center for Scientific Review; Notice of Closed MeetingsPDF
83 FR 25947 - Medicare Program; Update to the Required Prior Authorization List of Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) Items That Require Prior Authorization as a Condition of PaymentPDF
83 FR 25881 - Commercial LendingPDF
83 FR 26149 - Fund Availability Under the Grants for Transportation of Veterans in Highly Rural AreasPDF
83 FR 26154 - Fund Availability Under the Grants for Transportation of Veterans in Highly Rural AreasPDF
83 FR 25951 - Procedures and Standards for Declining Surety Immigration Bonds and Administrative Appeal Requirement for BreachesPDF
83 FR 26006 - Stainless Steel Flanges From the People's Republic of China: Countervailing Duty OrderPDF
83 FR 26039 - Proposed Collection; Comment RequestPDF
83 FR 25910 - Medical Devices; Exemptions From Premarket Notification: Class II DevicesPDF
83 FR 25904 - Amendment of Class E Airspace; Flint, MI, and Establishment of Class E Airspace; Owosso, MIPDF
83 FR 25967 - Proposed Amendment of Class D Airspace and Class E Airspace; Williamsport, PAPDF
83 FR 25902 - Amendment of Class D Airspace and Establishment of Class E Airspace; Norman, OK; and Amendment of Class E Airspace; Oklahoma City, OKPDF
83 FR 25901 - Amendment of Class E Airspace; Duncan, OKPDF
83 FR 25971 - Proposed Amendment of Class D and E Airspace; Austin, TX; and Establishment of Class E Airspace; Georgetown, TX, and Austin, TXPDF
83 FR 25905 - Establishment of Class D Airspace; Burns Flat, OK; Revocation of Class D Airspace; Clinton-Sherman Airport, OK; and Amendment of Class E Airspace for the Following Oklahoma Towns: Burns Flat, OK; Clinton, OK; and Elk City, OKPDF
83 FR 25969 - Proposed Amendment of Class D and E Airspace; Eau Claire, WIPDF
83 FR 25973 - Proposed Amendment of Class D Airspace and Class E Airspace, and Revocation of Class E Airspace: New Smyrna Beach, FLPDF
83 FR 26098 - Biweekly Notice; Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards ConsiderationsPDF
83 FR 25986 - North Dakota: Proposed Authorization of State Hazardous Waste Management Program Revisions and Incorporation by ReferencePDF
83 FR 25907 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous AmendmentsPDF
83 FR 25909 - Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous AmendmentsPDF
83 FR 25885 - Airworthiness Directives; The Boeing Company AirplanesPDF
83 FR 25894 - Airworthiness Directives; The Boeing Company AirplanesPDF
83 FR 25898 - Airworthiness Directives; Airbus AirplanesPDF
83 FR 25922 - Air Plan Approval; New Hampshire; Nonattainment Plan for the Central New Hampshire Sulfur Dioxide Nonattainment AreaPDF
83 FR 25979 - Approval of Missouri Air Quality Implementation Plans; Infrastructure SIP Requirements for the 2012 Annual Fine Particulate Matter (PM2.5PDF
83 FR 25975 - Approval of Nebraska Air Quality Implementation Plan; Particulate Emissions; Limitations and StandardsPDF
83 FR 25891 - Airworthiness Directives; The Boeing Company AirplanesPDF
83 FR 25882 - Airworthiness Directives; Bombardier, Inc., AirplanesPDF
83 FR 26112 - Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving Proposed No Significant Hazards Considerations and Containing Sensitive Unclassified Non-Safeguards Information and Order Imposing Procedures for Access to Sensitive Unclassified Non-Safeguards InformationPDF

Issue

83 108 Tuesday, June 5, 2018 Contents Agriculture Agriculture Department See

Forest Service

Alcohol Tobacco Firearms Alcohol, Tobacco, Firearms, and Explosives Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Licensed Firearms Manufacturers Records of Production, Disposition, and Supporting Data, 26089-26090 2018-12051 Records of Acquisition and Disposition, Registered Importers of Arms, Ammunition & Implements of War on the U.S. Munitions Import List, 26090-26091 2018-12050 Report of Firearms Transactions—Demand 2, 26091-26092 2018-12049 Antitrust Division Antitrust Division NOTICES Changes Under the National Cooperative Research and Production Act: Cooperative Research Group on HEDGE IV, 26092 2018-12065 Cooperative Research Group on ROS-Industrial Consortium-Americas, 26092-26093 2018-12063 Open Mobile Alliance, 26092 2018-12067 Centers Disease Centers for Disease Control and Prevention NOTICES Meetings: Board of Scientific Counselors, National Center for Injury Prevention and Control; Correction, 26058-26059 2018-11976 Centers Medicare Centers for Medicare & Medicaid Services RULES Medicare Program: Update to the Required Prior Authorization List of Durable Medical Equipment, Prosthetics, Orthotics, and Supplies Items That Require Prior Authorization as a Condition of Payment, 25947-25949 2018-11953 Civil Rights Civil Rights Commission NOTICES Meetings: Alaska Advisory Committee, 25996 2018-11974 Oregon Advisory Committee, 25995-25996 2018-11975 Coast Guard Coast Guard RULES Great Lakes Pilotage Rates—2018 Annual Review and Revisions to Methodology, 26162-26193 2018-11969 Commerce Commerce Department See

Industry and Security Bureau

See

International Trade Administration

See

National Institute of Standards and Technology

See

National Oceanic and Atmospheric Administration

See

National Telecommunications and Information Administration

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Request for the Appointment of a Technical Advisory Committee, 25996-25997 2018-12056
Community Living Administration Community Living Administration NOTICES Availability of Program Application Instructions for MIPPA Program Funds, 26059-26060 2018-12046 Consumer Product Consumer Product Safety Commission NOTICES Guidance: Draft Guidelines for Determining Age Appropriateness of Toys; Extension of Comment Period, 26038-26039 2018-11994 Defense Department Defense Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 26039-26040 2018-11887 Education Department Education Department NOTICES Applications for New Awards: Expanding Opportunity Through Quality Charter Schools Program—National Dissemination Grants, 26041-26048 2018-12068 Listening Sessions: Federal Commission on School Safety, 26040-26041 2018-12171 Energy Department Energy Department See

Federal Energy Regulatory Commission

Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: New Hampshire; Nonattainment Plan for the Central New Hampshire Sulfur Dioxide Nonattainment Area, 25922-25936 2018-11597 Texas; Infrastructure and Interstate Transport for the 2012 Fine Particulate Matter Ambient Air Quality Standard, 25920-25922 2018-11973 Delegation of New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants for the States: New Mexico, 25936 2018-12013 Pesticide Tolerances: Alpha-cypermethrin, 25941-25943 2018-12066 Tolerance Exemptions: Ethoxylated Fatty Acid Methyl Esters, 25936-25941 2018-12060 PROPOSED RULES Air Quality State Implementation Plans; Approvals and Promulgations: Alabama; Plan for Control of Emissions From Commercial and Industrial Solid Waste Incineration Units, 25983-25986 2018-12064 Missouri Air Quality Implementation Plans; Infrastructure SIP Requirements for the 2012 Annual Fine Particulate Matter (PM2.5) National Ambient Air Quality Standard Interstate Transport, 25979-25981 2018-11580 Nebraska Air Quality Implementation Plan; Particulate Emissions; Limitations and Standards, 25975-25977 2018-11579 Nebraska; Revisions to the Nebraska Administrative Code; Rules of Practice and Procedure, 25977-25979 2018-12072 Rhode Island; Control of Volatile Organic Compound Emissions, Control of Nitrogen Oxide Emissions, and Sulfur Content of Fuels, 25981-25983 2018-12020 Proposed Authorizations of State Hazardous Waste Management Program: North Dakota; Revisions, 25986-25994 2018-11842 NOTICES Certain New Chemical Substances: Receipt and Status Information for February 2018, 26052-26057 2018-12059 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus Airplanes, 25898-25901 2018-11688 Bombardier, Inc., Airplanes, 25882-25885 2018-11414 The Boeing Company Airplanes, 25885-25898 2018-11427 2018-11816 2018-11825 Class D Airspace; Establishments; Class D Airspace; Revocations; Class E Airspace; Amendments: Burns Flat, OK; Clinton-Sherman Airport, OK; Burns Flat, Clinton, and Elk City, OK, 25905-25907 2018-11858 Class D and E Airspace; Amendments and Class E Airspace; Establishments: Norman, OK; Oklahoma City, OK, 25902-25904 2018-11861 Class E Airspace; Amendments: Duncan, OK, 25901-25902 2018-11860 Class E Airspace; Amendments; Class E Airspace; Establishments: Flint, MI; Owosso, MI, 25904-25905 2018-11864 Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures: Miscellaneous Amendments, 25907-25910 2018-11836 2018-11840 PROPOSED RULES Class D and E Airspace; Amendments, and Class E Airspace; Revocation: New Smyrna Beach, FL, 25973-25975 2018-11848 Class D and E Airspace; Amendments: Eau Claire, WI, 25969-25971 2018-11852 Williamsport, PA, 25967-25969 2018-11862 Class D and E Airspace; Amendments; Class E Airspace; Establishments: Austin, TX; Georgetown and Austin, TX, 25971-25973 2018-11859 Federal Communications Federal Communications Commission RULES Revitalization of the AM Radio Service, 25949-25950 2018-11965 Federal Deposit Federal Deposit Insurance Corporation NOTICES Terminations of Receiverships, 26057-26058 2018-12139 Federal Energy Federal Energy Regulatory Commission NOTICES Combined Filings, 26049-26051 2018-11989 2018-11990 2018-12014 2018-12015 Environmental Impact Statements; Availability, etc.: Yuba County Water Agency; Yuba River Development Project, 26049-26050 2018-11986 Petitions for Declaratory Orders: Sunrise Pipeline LLC, 26051 2018-11991 Records Governing Off-the-Record Communications, 26048-26049 2018-11992 Federal Financial Federal Financial Institutions Examination Council NOTICES Meetings: Appraisal Subcommittee, 26058 2018-12052 Federal Motor Federal Motor Carrier Safety Administration NOTICES Hours of Service of Drivers; Exemption Applications: Small Business in Transportation Coalition, 26140-26141 2018-12037 Federal Railroad Federal Railroad Administration NOTICES Petitions for Waivers of Compliance, 26141-26142 2018-12071 Federal Reserve Federal Reserve System NOTICES Changes in Bank Control: Acquisitions of Shares of a Bank or Bank Holding Company, 26058 2018-12042 Food and Drug Food and Drug Administration RULES Medical Devices: Exemptions From Premarket Notification; Class II Devices, 25910-25915 2018-11879 NOTICES Guidance: Formal Meetings Between the Food and Drug Administration and Sponsors or Applicants of Biosimilar User Fee Act Products, 26060-26062 2018-12027 Forest Forest Service NOTICES Meetings: Sabine-Angelina Resource Advisory Committee, 25995 2018-12069 Health and Human Health and Human Services Department See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Community Living Administration

See

Food and Drug Administration

See

Health Resources and Services Administration

See

National Institutes of Health

RULES 340B Drug Pricing Program Ceiling Price and Manufacturer Civil Monetary Penalties Regulation, 25943-25947 2018-12103 NOTICES Findings of Research Misconduct, 26065-26066 2018-12047 Meetings: Tick-Borne Disease Working Group, 26065 2018-12045
Health Resources Health Resources and Services Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Office of the Advancement of Telehealth Outcome Measures, 26063-26064 2018-12005 The Maternal, Infant, and Early Childhood Home Visiting Program Performance Measurement Information System, 26062-26063 2018-12007 The Secretary's Advisory Committee on Heritable Disorders in Newborns and Children's Public Health System Assessment Surveys, 26064-26065 2018-12019 Homeland Homeland Security Department See

Coast Guard

See

U.S. Citizenship and Immigration Services

See

U.S. Customs and Border Protection

See

U.S. Immigration and Customs Enforcement

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Private Sector Clearance Program Request Form, 26073-26074 2018-11966
Housing Housing and Urban Development Department NOTICES Housing Trust Fund; Fiscal Year 2018 Allocation Notice, 26080-26081 2018-12041 Industry Industry and Security Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Licensing Responsibilities and Enforcement, 25997 2018-12057 Interior Interior Department See

Office of Natural Resources Revenue

Internal Revenue Internal Revenue Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 26148-26149 2018-12028 International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Citric Acid and Certain Citrate Salts From Thailand, 26004-26006 2018-12011 Stainless Steel Flanges From the People's Republic of China, 26006-26008 2018-11908 Determinations of Sale at Less Than Fair Value: Citric Acid and Certain Citrate Salts From Belgium, 26001-26002 2018-12012 Citric Acid and Certain Citrate Salts From Colombia, 26002-26004 2018-12008 Citric Acid and Certain Citrate Salts From Thailand, 25998-26000 2018-12009 Meetings: Trade Finance Advisory Council, 25997-25998 2018-12062 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Certain Blood Cholesterol Testing Strips and Associated Systems Containing the Same, 26087-26088 2018-12054 Certain Blow-Molded Bag-In-Container Devices, Associated Components, and End Products Containing or Using Same, 26088-26089 2018-12053 Cold-Drawn Mechanical Tubing From China, Germany, India, Italy, Korea, and Switzerland, 26088 2018-12055 Justice Department Justice Department See

Alcohol, Tobacco, Firearms, and Explosives Bureau

See

Antitrust Division

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 26093-26095 2018-12002 2018-12003 2018-12004
Labor Department Labor Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Youth CareerConnect Evaluation, 26095-26096 2018-12010 Legal Legal Services Corporation NOTICES Meetings; Sunshine Act, 26096 2018-12119 Maritime Maritime Administration NOTICES Requests for Administrative Waivers of the Coastwise Trade Laws: Vessel BLAZE II, 26143-26144 2018-11997 Vessel GRATITUDE, 26142 2018-11998 Vessel INFINITY, 26142-26143 2018-11999 Vessel INTRIGUE, 26143 2018-12000 NASA National Aeronautics and Space Administration NOTICES Meetings: National Space Council Users' Advisory Group, 26096 2018-11993 National Archives National Archives and Records Administration NOTICES Records Schedules, 26097-26098 2018-11987 National Credit National Credit Union Administration RULES Commercial Lending, 25881-25882 2018-11946 National Institute National Institute of Standards and Technology NOTICES Meetings: Information Security and Privacy Advisory Board, 26008 2018-12006 National Institute National Institutes of Health NOTICES Government-Owned Inventions; Availability for Licensing, 26070-26071 2018-12017 Meetings: Center for Scientific Review, 26066-26069, 26071 2018-11955 2018-11956 2018-11957 2018-12016 National Cancer Institute, 26069-26070 2018-11958 National Heart, Lung, and Blood Institute, 26068-26069 2018-11959 National Institute of General Medical Sciences, 26071-26072 2018-11960 2018-11961 National Institute of Mental Health, 26072 2018-11962 National Institute of Neurological Disorders and Stroke, 26070 2018-11963 National Oceanic National Oceanic and Atmospheric Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 26011-26012 2018-12025 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Certification Requirements for Distributors of NOAA Electronic Navigational Charts/NOAA Hydrographic Products, 26008-26009 2018-12026 Environmental Impact Statements; Availability, etc.: Washington Department of Fish and Wildlife and Puget Sound Tribes, 26009 2018-11971 Meetings: Definition of Fish Aggregating Devices, 26011 2018-12029 Northeast Regional Stock Assessment Workshop and Stock Assessment Review Committee, 26012-26013 2018-12058 Pacific Island Fisheries; Western Pacific Stock Assessment Review, 26010-26011 2018-11977 Permit Applications: Marine Mammals; File No. 21719, 26009-26010 2018-12001 Takes of Marine Mammals Incidental to Specified Activities: Demolition and Reuse of the Original East Span of the San Francisco Oakland Bay Bridge, 26013-26036 2018-12043 National Telecommunications National Telecommunications and Information Administration NOTICES International Internet Policy Priorities, 26036-26038 2018-12075 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Facility Operating and Combined Licenses: Applications and Amendments Involving No Significant Hazards Considerations; Biweekly Notice, 26098-26109 2018-11843 Applications and Amendments Involving Proposed No Significant Hazards Considerations, etc., 26112-26119 2018-10982 Guidance: Effect of LWR Water Environments on the Fatigue Life of Reactor Materials, 26111-26112 2018-11996 Guidelines for Evaluating the Effects of Light-Water Reactor Water Environments in Fatigue Analyses of Metal Components, 26110-26111 2018-11995 Meetings: Advisory Committee on Reactor Safeguards; Subcommittee on APR1400, 26109 2018-12022 Advisory Committee on Reactor Safeguards; Subcommittee on NuScale, 26109-26110 2018-12024 Advisory Committee on Reactor Safeguards; Subcommittee on Planning and Procedures, 26112 2018-12023 Natural Resources Office of Natural Resources Revenue NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Delegated and Cooperative Activities With States and Indian Tribes, 26081-26087 2018-12036 Pension Benefit Pension Benefit Guaranty Corporation NOTICES Pendency for Request for Approval of Special Withdrawal Liability Rules: Alaska Electrical Pension Plan of the Alaska Electrical Pension Fund, 26119-26121 2018-12035 Pipeline Pipeline and Hazardous Materials Safety Administration NOTICES Hazardous Materials: Updated Rail Tank Car Thermal Protection Systems List, 26144-26148 2018-11988 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: African-American Music Appreciation Month (Proc 9763), 26201-26202 2018-12260 National Caribbean-American Heritage Month (Proc. 9760), 25879-25880 2018-12152 National Homeownership Month (Proc. 9761), 26195-26198 2018-12257 National Ocean Month (Proc. 9762), 26199-26200 2018-12259 Trade: Aluminum; Adjusting Imports Into the U.S. (Proc. 9758), 25849-25855 2018-12137 Steel; Adjusting Imports Into the U.S. (Proc. 9759), 25857-25877 2018-12140 Securities Securities and Exchange Commission NOTICES Meetings; Sunshine Act, 26131 2018-12116 Self-Regulatory Organizations; Proposed Rule Changes: Miami International Securities Exchange LLC, 26123-26125 2018-11985 Nasdaq BX, Inc., 26129-26131 2018-11983 Nasdaq PHLX LLC, 26128-26129 2018-11982 New York Stock Exchange LLC, 26125-26128 2018-11979 NYSE American LLC, 26121-26123, 26131-26134 2018-11978 2018-11984 NYSE Arca, Inc., 26134-26136 2018-11980 NYSE National, Inc., 26136-26138 2018-11981 Small Business Small Business Administration NOTICES Disaster Declarations: Kentucky, 26138-26139 2018-11968 Ohio, 26139 2018-11967 Exemptions: Medley SBIC, LP, 26139 2018-12038 Surrender of License: Kinderhook Captial SBIC Fund I, LP, 26139 2018-12039 Surface Transportation Surface Transportation Board NOTICES Abandonment Exemptions; Discontinuance of Service Exemptions: BNSF Railway Co., Des Moines, Polk County, IA; Norfolk Southern Railway Co., Des Moines, Polk County, IA, 26139-26140 2018-12044 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Motor Carrier Safety Administration

See

Federal Railroad Administration

See

Maritime Administration

See

Pipeline and Hazardous Materials Safety Administration

Treasury Treasury Department See

Internal Revenue Service

U.S. Citizenship U.S. Citizenship and Immigration Services NOTICES Termination of the Designation of Honduras for Temporary Protected Status, 26074-26080 2018-12161 Customs U.S. Customs and Border Protection NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Ship's Store Declaration, 26072-26073 2018-11970 Immigration U.S. Immigration and Customs Enforcement PROPOSED RULES Procedures and Standards for Declining Surety Immigration Bonds and Administrative Appeal Requirement for Breaches, 25951-25967 2018-11940 Veteran Affairs Veterans Affairs Department RULES Case Management Services Grant Program, 25915-25920 2018-12048 NOTICES Funding Availability: Grants for Transportation of Veterans in Highly Rural Areas, 26149-26159 2018-11943 2018-11944 Separate Parts In This Issue Part II Homeland Security Department, Coast Guard, 26162-26193 2018-11969 Part III Presidential Documents, 26195-26202 2018-12260 2018-12257 2018-12259 Reader Aids

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

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

83 108 Tuesday, June 5, 2018 Rules and Regulations NATIONAL CREDIT UNION ADMINISTRATION 12 CFR Parts 702 and 723 RIN 3133-AE89 Commercial Lending AGENCY:

National Credit Union Administration (NCUA).

ACTION:

Final rule.

SUMMARY:

The NCUA Board (Board) is amending the definition of member business loan (MBL) in its MBL rule with respect to 1- to 4- family dwellings. This regulatory change conforms to a recent amendment to the Federal Credit Act (FCU Act) by the Economic Growth, Regulatory Relief, and Consumer Protection Act (Economic Growth Act).

DATES:

This rule is effective June 5, 2018.

FOR FURTHER INFORMATION CONTACT:

Justin M. Anderson, Senior Staff Attorney, Office of General Counsel, 1775 Duke Street, Alexandria, VA 22314-3428 or telephone (703) 518-6540.

SUPPLEMENTARY INFORMATION: I. Background II. Good Cause Exception III. Regulatory Procedures I. Background

On May 24, 2018, the President signed the Economic Growth Act,1 which among other things, amended the definition section of the MBL provisions of the FCU Act.2 Prior to the Economic Growth Act, the FCU Act defined an MBL, in relevant part, as any loan, line of credit, or letter of credit, the proceeds of which will be used for a commercial, corporate or other business investment property or venture, or agricultural purpose but does not include an extension of credit that is fully secured by a lien on a 1-to 4- family dwelling that is the primary residence of a member. 3

1 Economic Growth, Regulatory Relief, and Consumer Protection Act, S.2155, 115th Cong. (2018).

2Id. at sec. 105.

3 12 U.S.C. 1757a(c)(1)(B)(i).

The Economic Growth Act removed from that definition the words “that is the primary residence of a member.” As a result, the definition of an MBL now excludes all extensions of credit that are fully secured by a lien on a 1- to 4- family dwelling regardless of the borrower's occupancy status. Because these kinds of loans are no longer considered MBLs, they do not count towards the aggregate MBL cap imposed on each federally insured credit union by the FCU Act.

This statutory amendment became effective upon enactment of the Economic Growth Act. The Board is issuing this final rule to conform the NCUA's MBL rule to the revised FCU Act.

This final rule also revises the NCUA's Prompt Corrective Action rule, part 702,4 by amending outdated citations to the NCUA's MBL rule. These changes are technical in nature and will not have any substantive effect.

4 12 CFR part 702.

II. Good Cause Exception

The Board is issuing this rule as final, without having first provided notice and an opportunity for public comment because the NCUA for good cause finds that notice and public procedure thereon are impracticable, unnecessary, or contrary to the public interest pursuant to the Administrative Procedure Act (APA), 5 U.S.C. 553(b)(3)(B). This rule implements a mandated statutory change that provides the NCUA with no choice and no discretion. The Board finds these reasons are good cause to dispense with the APA's notice and comment requirements.

III. Regulatory Procedures 1. Paperwork Reduction Act

In accordance with the requirements of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501, et seq.) (PRA), the NCUA may not conduct or sponsor, and the respondent is not required to respond to, an information collection unless it displays a currently valid Office of Management and Budget (OMB) control number. The information collection requirements associated with part 723 are currently approved by OMB and assigned OMB control number 3133-0101. This rule will not impose any new paperwork burdens or amend existing paperwork burdens, as defined by the PRA.

2. Small Business Regulatory Enforcement Fairness Act

The Small Business Regulatory Enforcement Fairness Act of 1996 (SBREFA) provides generally for congressional review of agency rules. A reporting requirement is triggered in instances where the NCUA issues a final rule as defined by Section 551 of the APA. The NCUA believe this final rule is “major” within the meaning of the relevant sections of SBREFA. The NCUA has submitted the rule to the Office of Management and Budget for its determination in that regard.

3. Executive Order 13132

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. The NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order to adhere to fundamental federalism principles. The final 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. The NCUA has therefore determined that this final rule does not constitute a policy that has federalism implications for purposes of the executive order.

4. Assessment of Federal Regulations and Policies on Families

The NCUA has determined that this rule will not affect family well-being within the meaning of section 654 of the Treasury and General Government Appropriations Act, 1999, Public Law 105-277, 112 Stat. 2681 (1998).

List of Subjects 12 CFR Part 702

Credit unions, Reporting and recordkeeping requirements.

12 CFR Part 723

Credit, Credit unions, Reporting and recordkeeping requirements.

By the National Credit Union Administration Board on May 30, 2018.

Gerard Poliquin, Secretary of the Board.

For the reasons discussed above, the NCUA amends 12 CFR parts 702 and 723 as follows:

PART 702—CAPITAL ADEQUACY 1. The authority citation for part 702 continues to read as follows: Authority:

12 U.S.C. 1766(a), 1790d.

§ 702.104 [Amended]
2. In § 702.104, amend paragraphs (a), (b), and (g) by removing the citation “12 CFR 723.1” and adding in its place “12 CFR 723.8(b)” and by removing the citation “12 CFR 723.20” and adding in its place “12 CFR 723.10” wherever they appear. PART 723—MEMBER BUSINESS LOANS; COMMERCIAL LENDING 3. The authority citation for part 723 continues to read as follows: Authority:

12 U.S.C. 1756, 1757, 1757A, 1766, 1785, 1789.

4. In § 723.8, add paragraph (b)(3) and revise paragraph (c) to read as follows:
§ 723.8 Aggregate member business loan limit; exclusions and exceptions.

(b) * * *

(3) Any loan that is fully secured by a lien on a 1- to 4- family dwelling.

(c) Exception. Any loan secured by a vehicle manufactured for household use that will be used for a commercial, corporate, or other business investment property or venture, or agricultural purpose, is not a commercial loan but it is a member business loan (if the outstanding aggregate net member business loan balance is $50,000 or greater) and must be counted toward the aggregate limit on a federally insured credit union's member business loans.

[FR Doc. 2018-11946 Filed 6-4-18; 8:45 am] BILLING CODE 7535-01-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-1246; Product Identifier 2017-NM-086-AD; Amendment 39-19297; AD 2018-11-09] RIN 2120-AA64 Airworthiness Directives; Bombardier, Inc., Airplanes AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We are superseding Airworthiness Directive (AD) 2014-02-01, which applied to certain Bombardier, Inc., Model CL-600-2C10 (Regional Jet Series 700, 701, & 702), Model CL-600-2D15 (Regional Jet Series 705), and Model CL-600-2D24 (Regional Jet Series 900) airplanes. AD 2014-02-01 required repetitive inspections of the rudder travel limiter (RTL) return springs and primary actuator, and corrective actions if necessary; and replacement of certain RTL return springs. This AD requires an inspection of the RTL return springs for signs of chafing; an inspection of the casing of the primary actuator for signs of chafing or missing paint; replacement of the RTL return springs; and an inspection of the lugs of the RTL limiter arm assembly for cracks, and modification or replacement, as applicable; and applicable corrective actions. This AD also adds airplanes to the applicability. This AD was prompted by reports that when installing the RTL return springs, the RTL limiter arm assembly lug(s) can become deformed. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective July 10, 2018.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of July 10, 2018.

ADDRESSES:

For service information identified in this final rule, contact Bombardier, Inc., 400 Côte-Vertu Road West, Dorval, Québec H4S 1Y9, Canada; Widebody Customer Response Center North America toll-free telephone: 1-866-538-1247 or direct-dial telephone: 1-514-855-2999; fax 514-855-7401; email: [email protected]; internet: http://www.bombardier.com. You may view this referenced service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-1246.

Examining the AD Docket

You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-1246; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The address for the Docket Office (telephone: 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Cesar Gomez, Aerospace Engineer, Airframe and Mechanical Systems Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone: 516-228-7318; fax: 516-794-5531.

SUPPLEMENTARY INFORMATION: Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 to supersede AD 2014-02-01, Amendment 39-17729 (79 FR 7382, February 7, 2014) (“AD 2014-02-01”). AD 2014-02-01 applied to certain Bombardier, Inc., Model CL-600-2C10 (Regional Jet Series 700, 701, & 702), Model CL-600-2D15 (Regional Jet Series 705), and Model CL-600-2D24 (Regional Jet Series 900) airplanes. The NPRM published in the Federal Register on January 16, 2018 (83 FR 2090). The NPRM was prompted by reports that when installing RTL return spring part number BA-670-93468-1, the RTL limiter arm assembly lug(s) can become deformed when the RTL return spring attachment bolt is torqued; and the determination that additional airplanes are affected by the unsafe condition. The NPRM proposed to require an inspection of the RTL return springs for signs of chafing; an inspection of the casing of the primary actuator for signs of chafing or missing paint; replacement of the RTL return springs; and an inspection of the lugs of the RTL limiter arm assembly for cracks, and modification or replacement, as applicable; and applicable corrective actions. The NPRM also proposed to add airplanes to the applicability. We are issuing this AD to prevent deformed RTL limiter arm assembly lug(s), which can lead to failure of the RTL limiter arm assembly lug(s). In combination with failure of the RTL, failure of the RTL limiter arm assembly lug(s) could result in reduced controllability of the airplane.

Transport Canada Civil Aviation (TCCA), which is the aviation authority for Canada, has issued Canadian AD CF-2017-19, dated June 6, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Bombardier, Inc., Model CL-600-2C10 (Regional Jet Series 700, 701, & 702), Model CL-600-2D15 (Regional Jet Series 705), and Model CL-600-2D24 (Regional Jet Series 900) airplanes. The MCAI states:

Transport Canada AD CF-2010-18R1 [which corresponds to FAA AD 2014-02-01] mandated a repetitive inspection and introduced a new rudder travel limiter (RTL) return spring, part number (P/N) BA670-93468-1, to correct the potential dormant RTL spring failure. This [Canadian] AD is issued to supersede the repetitive inspection and the replacement of the RTL spring due to discoveries made after the issuance of [Canadian] AD CF-2010-18R1.

When installing the RTL return spring P/N BA670-93468-1 as mandated by [Canadian] AD CF-2010-18R1, it was found that it is possible for the RTL limiter arm assembly lug to be deformed. The lugs become bent when the RTL return spring attachment bolt is torqued. This condition, if not corrected, can lead to failure of the limiter arm assembly lug. In combination with failure of the RTL, failure of the limiter arm assembly lug could affect the controllability of the aeroplane.

This [Canadian] AD mandates the inspection for cracked RTL limiter arm lugs and modification of the RTL limiter arm to prevent the RTL limiter arm lugs from bending during RTL assembly.

Required actions include: A detailed visual inspection of the RTL return springs for signs of chafing; a detailed visual inspection of the casing of the primary actuator for signs of chafing or missing paint; replacement of the RTL return springs; an eddy current inspection of the lugs of the RTL limiter arm assembly for cracks, and modification or replacement of the RTL limiter arm assembly, as applicable; and applicable corrective actions. Corrective actions include: replacement of the RTL return springs, repair of the primer and topcoat of the primary actuator, and replacement of the primary actuator. You may examine the MCAI in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-1246.

Comments

We gave the public the opportunity to participate in developing this AD. We considered the comment received. The Air Line Pilots Association, International supported the NPRM.

Conclusion

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

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

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

Related Service Information Under 1 CFR Part 51

Bombardier has issued Bombardier Service Bulletin 670BA-27-070, Revision B, dated March 31, 2017. This service information describes procedures for an inspection of the RTL return springs for signs of chafing; an inspection of the casing of the primary actuator for signs of chafing or missing paint; replacement of the RTL return springs; and an inspection of the lugs of the RTL limiter arm assembly for cracks, and modification or replacement, as applicable; and applicable corrective actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Costs of Compliance

We estimate that this AD affects 544 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

Estimated Costs for Required Actions Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • 16 work-hours × $85 per hour = $1,360 $2,960 $4,320 $2,350,080

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

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by removing Airworthiness Directive (AD) 2014-02-01, Amendment 39-17729 (79 FR 7382, February 7, 2014) and adding the following new AD: 2018-11-09 Bombardier, Inc.: Amendment 39-19297; Docket No. FAA-2017-1246; Product Identifier 2017-NM-086-AD. (a) Effective Date

    This AD is effective July 10, 2018.

    (b) Affected ADs

    This AD replaces AD 2014-02-01, Amendment 39-17729 (79 FR 7382, February 7, 2014) (“AD 2014-02-01”).

    (c) Applicability

    This AD applies to the airplanes identified in paragraphs (c)(1) and (c)(2) of this AD, certificated in any category.

    (1) Bombardier, Inc., Model CL-600-2C10 (Regional Jet Series 700, 701, & 702) airplanes, serial number 10002 through 10344 inclusive.

    (2) Bombardier, Inc., Model CL-600-2D15 (Regional Jet Series 705) airplanes and Model CL-600-2D24 (Regional Jet Series 900) airplanes, serial numbers 15001 through 15397 inclusive.

    (d) Subject

    Air Transport Association (ATA) of America Code 27, Flight controls.

    (e) Reason

    This AD was prompted by reports that when installing the rudder travel limiter (RTL) return springs, the RTL limiter arm assembly lug(s) can become deformed. We are issuing this AD to prevent deformed RTL limiter arm assembly lug(s), which can lead to failure of the RTL limiter arm assembly lug(s). In combination with failure of the RTL, failure of the RTL limiter arm assembly lug(s) could result in reduced controllability of the airplane.

    (f) Compliance

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

    (g) Inspections, Modification, and Replacement

    (1) For airplanes equipped with RTL return spring part number BA-670-93465-1 or E0650-069-02750S: Within 800 flight hours or 4 months after the effective date of this AD, whichever occurs first, do a detailed visual inspection of the casing of the primary actuator for signs of chafing or missing paint, and all applicable corrective actions; replace the RTL return springs; and do an eddy current inspection of the lugs of the RTL limiter arm assembly for cracks, and modify or replace the RTL limiter arm assembly, as applicable; in accordance with Part A of the Accomplishment Instructions of Bombardier Service Bulletin 670BA-27-070, Revision B, dated March 31, 2017. Accomplishment of the actions specified in Bombardier Service Bulletin 670BA-27-059 does not meet the requirements of this paragraph.

    (2) For airplanes equipped with RTL return spring part number BA-670-93468-1: Within 8,000 flight hours after the effective date of this AD, do a detailed visual inspection of the RTL return springs for signs of chafing, and applicable corrective actions; a detailed visual inspection of the casing of the primary actuator for signs of chafing or missing paint, and all applicable corrective actions; and do an eddy current inspection of the lugs of the RTL limiter arm assembly for cracks, and modify or replace the RTL limiter arm assembly, as applicable; in accordance with Part B of the Accomplishment Instructions of Bombardier Service Bulletin 670BA-27-070, Revision B, dated March 31, 2017. Accomplishment of the actions specified in Bombardier Service Bulletin 670BA-27-059 does not meet the requirements of this paragraph.

    (h) Credit for Previous Actions

    This paragraph provides credit for actions required by paragraph (g) of this AD, if those actions were performed before the effective date of this AD using the service information specified in paragraph (h)(1) or (h)(2) of this AD.

    (1) Bombardier Service Bulletin 670BA-27-070, dated December 17, 2015.

    (2) Bombardier Service Bulletin 670BA-27-070, Revision A, dated September 01, 2016.

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

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

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

    (j) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) Canadian AD CF-2017-19, dated June 6, 2017, for related information. This MCAI may be found in the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-1246.

    (2) For more information about this AD, contact Cesar Gomez, Aerospace Engineer, Airframe and Mechanical Systems Section, FAA, New York ACO Branch, 1600 Stewart Avenue, Suite 410, Westbury, NY 11590; telephone: 516-228-7318; fax: 516-794-5531.

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

    (k) Material Incorporated by Reference

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

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

    (i) Bombardier Service Bulletin 670BA-27-070, Revision B, dated March 31, 2017.

    (ii) Reserved.

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

    (4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

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

    Issued in Des Moines, Washington, on May 18, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-11414 Filed 6-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2015-1421; Product Identifier 2014-NM-177-AD; Amendment 39-19302; AD 2018-11-14] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 767-300 and -300F series airplanes. This AD was prompted by reports of fatigue cracking on airplanes with Aviation Partners Boeing winglets installed. This AD requires high frequency eddy current (HFEC) inspections for cracking of the lower outboard wing skin, and repair or modification if necessary. This AD also requires one of three follow-on actions: Repeating the HFEC inspections, modifying certain internal stringers and oversizing and plugging the existing fastener holes of the lower wing, or modifying the external doubler/tripler and doing repetitive post-modification inspections. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective July 10, 2018.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of July 10, 2018.

    ADDRESSES:

    For service information identified in this final rule, contact Aviation Partners Boeing, 2811 S. 102nd Street, Suite 200, Seattle, WA 98168; telephone 206-762-1171; internet https://www.aviationpartnersboeing.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-1421.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2015-1421; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The address for Docket Operations (phone: 800-647-5527) is Docket Operations, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Allen Rauschendorfer, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA; phone and fax: 206-231-3528; email: [email protected]

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 767-300 and -300F series airplanes. The NPRM published in the Federal Register on June 5, 2015 (80 FR 32066). The NPRM was prompted by reports of fatigue cracking on airplanes with Aviation Partners Boeing winglets installed. The NPRM proposed to require a HFEC inspection for cracking of the lower outboard wing skin, and repair or modification if necessary. The NPRM also proposed to require one of three follow-on actions: Repeating the HFEC inspections, modifying certain internal stringers and oversizing and plugging the existing fastener holes of the lower wing, or modifying the external doubler/tripler and doing repetitive post-modification inspections.

    We issued an SNPRM to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 767-300 and -300F series airplanes. The SNPRM published in the Federal Register on November 27, 2017 (82 FR 55958). The SNPRM proposed adding new HFEC inspections for cracking of an expanded area of the lower outboard wing skin for certain airplanes.

    We are issuing this AD to address fatigue cracking in the lower outboard wing skin, which could result in failure and subsequent separation of the wing and winglet and consequent reduced controllability of the airplane.

    Comments

    We gave the public the opportunity to participate in developing this final rule. The following presents the comments received on the SNPRM and the FAA's response to each comment. One commenter, Matt Leritz, supported the content of the SNRPM.

    Request To Correct Compliance Time

    Aviation Partners Boeing (APB) and United Airlines (UAL) asked that we correct the compliance time in paragraphs (h)(2)(ii) and (h)(3)(ii) of the proposed AD (in the SNPRM). The commenters stated that those paragraphs would require the initial post-repair HFEC inspection of the lower wing skin at stringer L-6.5 at the applicable time specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017. The commenters added that the compliance time for the Part 3 HFEC inspection specified in paragraph 1.E. does not begin after doing the Part 2 repair, but instead begins after the initial issue of the service bulletin (after the effective date of the AD). UAL stated that, as written, this would require doing post-repair inspections on airplanes above the total flight-hour and flight-cycle threshold within 18 months after the effective date of the AD, regardless of if or when the repair was actually done. APB confirmed that the calendar-based compliance time in the referenced service information, for airplanes in Group 1, Configurations 2 and 3, and Groups 2 and 3, should be the same as for airplanes in Group 1, Configuration 1, on which the Part 2 repair has been done. The commenters asked that the compliance time for the Part 3 HFEC inspection be corrected to the following: “Within 6,000 flight cycles after doing the Part 2 repair, or within 18,000 flight hours since doing the Part 2 repair, whichever occurs first.”

    We agree with the commenters' request for the reasons provided. We have added paragraph (j)(3) of this AD to include this compliance-time exception.

    Request To Remove a Certain Terminating Action

    Boeing asked that we remove the terminating action sentence at the end of paragraph (g)(2) of the proposed AD (in the SNPRM). Paragraph (g)(2) of the proposed AD (in the SNPRM) applies to Group 3 airplanes with external doublers, and if a crack is found it requires a repair using a method approved by the FAA. That paragraph also specifies that “[a]n approved repair terminates the repetitive inspections required by paragraph (g)(2) of this AD.” Boeing stated that any repair for cracks found will require follow-on repetitive inspections, which would be approved as part of the AMOC repair approval process.

    We agree that the repairs for Group 3 airplanes will have an approved follow-on inspection program, but the repairs may apply to the cracked areas only. We do not agree with removing the terminating action provision because other areas may require the repetitive inspections specified in paragraph (g)(2) of this AD, for which approved terminating action would be appropriate. We have revised that sentence as follows: “An approved repair terminates the repetitive inspections required by paragraph (g)(2) of this AD for the repaired area only.”

    Request To Add Grace Period for Post-Repair (Modification) Inspections

    American Airlines (AAL), APB, UAL, and Delta Airlines (Delta) asked that we add a grace period for the proposed post-repair (modification) inspections.

    AAL stated that Table 4 of paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017, includes numerous inspections that are due within a specified number of flight hours or flight cycles after previous repair or modification of the airplane. AAL added that since it has completed many repairs and modifications using previous revisions of the referenced service information, there will be airplanes out of compliance with the AD requirements on the effective date because there is no grace period based on the AD due date.

    APB and Delta stated that paragraph (g) of the proposed AD (in the SNPRM) specifies compliance times specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017, for initial post-repair inspections. APB added that the referenced service information added a flight-hour threshold of 90,000 total flight cycles to the existing flight-cycle threshold of 30,000 total flight cycles for the initial compliance time. APB noted that the grace period published in the referenced service information for airplanes on which the flight-hour or flight-cycle threshold has been reached is set to 18 months after accomplishment of the repair. APB stated that this creates a drop-dead inspection situation for airplanes on which either the flight-hour or flight-cycle threshold has been reached, and on which the Part 8 or Part 11 repair was accomplished over 18 months ago. Delta stated that the compliance table on pages (i) and (ii) of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017, should be added to paragraph 1.E., “Compliance” and included in the AD.

    UAL stated that paragraph (g) of the proposed AD (in the SNPRM) would require the repetitive post-repair inspections specified in Parts 9 and 13 of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017, in airplane total times or within 18 months after accomplishment of Part 8 and 11 repairs, respectively. UAL is concerned that older airplanes on which the repair was done more than 18 months ago could be out of compliance on the effective date of the AD. UAL noted that the 18-month grace period covers the initial inspection, but does not cover post-repair inspections. UAL suggested that we provide similar relief for airplanes on which the threshold has been exceeded.

    We do not agree with the commenters' requests to add a grace period. The current revisions of the referenced service information provide a compliance time of 18 months for the initial inspection for all airplanes. The compliance times for certain conditional inspections are in terms of airplane threshold or time since accomplishment of the specified repair or modification. Those previously installed repairs or modifications may have been done using a version of Aviation Partners Boeing Service Bulletin AP767-57-010 before Revision 11 or alternative method, and may involve deviations, additional repair activity, and previous repairs. Under the provisions of paragraph (k) of this AD, we will consider requests for approval of AMOCs to extend the compliance time if sufficient data are submitted to substantiate that it would provide an acceptable level of safety. We have determined that each situation must be handled separately in the AMOC evaluation. We have not changed this AD in this regard.

    Request To Add Compliance Tables to Certain Service Information

    Delta asked that a compliance table be added to Aviation Partners Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017, for airplanes on which the actions specified in Aviation Partners Boeing Service Bulletin AP767-57-010 have been previously accomplished. Delta noted that page i of Aviation Partners Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017, provides a compliance information table only for Group 3 airplanes; there are no tables for Groups 1 and 2 airplanes.

    We do not agree with the commenter's request. The compliance information table on page i of Aviation Partners Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017, provides only a description of additional work, if any, necessary based on work accomplished using the previous revision. These tables are reference information only, and do not reflect all the actions required by the AD. The necessary compliance tables are provided in paragraph 1.E., “Compliance” of Aviation Partners Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017. Therefore, we have not changed this AD in this regard.

    Request To Clarify Group 4 Airplanes Not Affected

    UAL asked that we include a clarification in the proposed AD (in the SNPRM) that Group 4 airplanes are not affected. UAL stated that Group 4 airplanes are identified in the effectivity table in paragraph 1.A. of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017. UAL noted that an equivalent change to the service information was incorporated during winglet installation with no additional work being necessary. UAL asked that we add paragraph (g)(3) to the AD to clarify that Group 4 airplanes are not affected by the requirements in the AD.

    We agree with the commenter for the reasons provided. Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017, specifies that an equivalent change has been incorporated in APB winglet retrofit kits for Group 4 airplanes, and that no more work is necessary on those airplanes. We have included a clarification in paragraph (g)(3) of this AD that specifies that Group 4 airplanes are not affected by the actions required by paragraph (g) of this AD.

    Request To Remove an Airplane Having a Certain Line Number

    FedEx asked that we remove the airplane having line number 1027 from the applicability in the proposed AD (in the SNPRM), or allow Aviation Partners Boeing Service Bulletin AP767-57-012, dated September 2015, as an AMOC. FedEx stated that it will be modifying that airplane by removing the winglets and installing Boeing wing tips in accordance with Aviation Partners Boeing Service Bulletin AP767-57-012, dated September 2015. FedEx anticipated that the modification will be completed prior to the effective date of the AD. FedEx added that the unsafe condition will be addressed when the winglets are removed.

    We do not agree with the commenter's request. There are many factors that led to the cracking of the lower wing skin, and the additional loading of the winglet is only one of those factors. Other contributory factors are design details with the added internal wing structure, which resulted in shortening the fatigue life of the blended winglet installation. We have not changed this AD in this regard.

    Request Approval for Alternative Open Hole HFEC Inspection

    UAL asked that provisions be added to paragraph (g) of the proposed AD (in the SNPRM) to allow an alternative open-hole HFEC inspection procedure to inspect for cracking at the five inboard fastener locations. UAL stated that an open-hole HFEC inspection with the fasteners removed, in accordance with nondestructive test (NDT) Part 6, Chapter 51-00-16, using the same notch sensitivity provides an equivalent crack detection method. UAL added that APB has concurred with the inspection. UAL concluded that it has been performing the optional preventive modification, which trims out the skin containing the five fastener holes, and allows for the open-hole HFEC to be performed easily because the fasteners in the doubler are removed.

    We do not agree with the commenter's request. Although UAL developed an inspection method that works better for its situation, the HFEC inspection specified in the referenced service information is required by this AD to address all situations. However, under the provisions of paragraph (k) of this AD, we will consider requests for approval of AMOCs if sufficient data are submitted to substantiate that the open-hole HFEC inspection procedure provides an acceptable level of safety. We have not changed this AD in this regard.

    Request To Clarify Credit for Previously Accomplished Repairs Approved by an Organization Designation Authorization (ODA)

    All Nippon Airways (ANA), AAL, APB, and Delta asked that we clarify credit in paragraph (i) of the proposed AD (in the SNPRM), for previously accomplished repairs approved by a Boeing ODA prior to June 15, 2017.

    ANA stated that during discussions with the FAA, it was informed that repair deviations approved by Boeing ODAs prior to the FAA approval of the APB revised fatigue analysis issued on June 15, 2017, and the release of Aviation Partners Boeing Service Bulletins AP767-57-010, Revision 11, AP767-57-013, Revision 1, and AP767-57-014, Revision 1, do not qualify for AMOC credit to the AD after it is released. ANA added that the proposed AD (in the SNPRM) would provide AMOC credit for repair deviations approved by Boeing ODAs with 8100-9 forms dated after June 15, 2017, because the Boeing ODAs would be using the APB revised fatigue analysis.

    AAL stated that paragraph (i) of the proposed AD (in the SNPRM) specifies that repairs accomplished before June 15, 2017, and before the AD effective date approved by a Boeing ODA can be considered approved repairs in accordance with paragraphs (g) and (h) of the proposed AD (in the SNPRM). AAL added that Boeing has indicated through Multi-Operator Message MOM-MOM-17-0480-01B that repairs approved prior to June 15, 2017, can be re-evaluated and approved on a new 8100-9 form. AAL noted that the language in paragraph (i) should be clarified to indicate that repairs accomplished prior to June 15, 2017, are also acceptable, as long as they have an 8100-9 approval from a Boeing ODA dated after June 15, 2017.

    APB requested that we clarify paragraph (i) of the proposed AD (in the SNPRM) to state that accomplishment of previous revisions of Aviation Partners Boeing Service Bulletins AP767-57-010 should be acceptable for credit for previously accomplished repairs and modifications of the lower outboard wing skin. APB stated that after the effective date of the AD, operators that did not seek relief for previously completed actions would need to request approval of AMOCs.

    Delta stated that paragraph (i) of the proposed AD (in the SNPRM) provides repair approval for repairs of the lower outboard wing skin done after June 15, 2017, and before the effective date of the AD, that are approved by the Boeing ODA authorized by the Manager, Seattle ACO Branch, are approved for the applicable repairs required by paragraphs (g) and (h) of the AD. Delta added that prior to issuance of the referenced service information, both inspection and repair instructions for stringers L-9.5 and L-6.5 were contained in Revisions 1, 2, 4, 6, 7, 8, and 9 of Aviation Partners Boeing Service Bulletin AP767-57-010. Delta added that it has performed many inspections and repairs for stringers L-9.5 and L-6.5 with those revisions. Delta suggested that credit be provided for repairs approved by a Boeing 8100-9 or previously accomplished using Revisions 1, 2, 4, 6, 7, 8, and 9 of Aviation Partners Boeing Service Bulletin AP767-57-010. Delta added that AMOCs will have to be obtained for each approved 8100-9 if no credit is provided.

    We agree to clarify the language in paragraph (i) of this AD to include certain language provided by the commenters' for the reasons provided. We have clarified the language in paragraph (i) of this AD by adding that the ODA repairs approved after June 15, 2017, and before the effective date of this AD, will have post-installation inspection requirements in lieu of the post-inspection instructions specified in Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017; and Aviation Partners Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017.

    Request To Correct Error in Service Information

    APB and UAL asked that we correct an error specified in Part 13 of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017.

    APB and UAL stated that paragraphs (g)(1)(i)(D)(2), (g)(1)(ii)(B)(2), and (g)(1)(iii)(B)(2) of the proposed AD (in the SNPRM) would require the post-repair HFEC inspection in accordance with Part 13 of the referenced service information. UAL stated that Part 13, Step 1.d., specifies repeating the Part 9 HFEC inspection; however, it should specify repeating the Part 13 HFEC inspection because Part 9 applies to airplanes without the stringer replacement. UAL noted that the paragraphs in the proposed AD (in the SNPRM) correctly specify repeating the Part 13 HFEC inspection. UAL added that the steps in the referenced service information are listed as RC (required for compliance), and must be done to comply with the AD.

    We agree that the error exists in the service information. We have added an exception in paragraph (j)(4) of this AD that specifies repeating the Part 13 HFEC inspection instead of the Part 9 inspection.

    Request To Provide Credit for Previous Service Information

    AAL, UAL, and United Parcel Service (UPS) asked that we provide credit for doing the modification required by paragraph (i) of the proposed AD (in the SNPRM) using previous revisions of the referenced service information. UAL and UPS noted that paragraph (i) of the proposed AD (in the NPRM), which provided credit for previous actions using previous revisions of the referenced service information, was deleted in the SNPRM.

    We do not agree with the commenters' requests. No credit is given for previously installed repairs or modifications due to each situation being unique; therefore, a re-evaluation will have to be done and may involve additional work for certain airplanes. Under the provisions of paragraph (k) of this AD, we will consider requests for approval of AMOCs if sufficient data are submitted to substantiate that work done using previous revisions of the service information provides an acceptable level of safety. We have not changed this AD in this regard.

    Conclusion

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

    • Are consistent with the intent that was proposed in the SNPRM for addressing the unsafe condition; and

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

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

    Related Service Information Under 1 CFR Part 51

    We reviewed APB Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017. The service information describes procedures for an HFEC inspection for cracking of the external surface of the lower outboard wing skin at stringer L-9.5, and on-condition actions that include repetitive HFEC inspections, modification by oversizing and plugging the existing fastener holes of the wing skin, repair (modification) of the stringer with new stringer, and repair (modification) of the stringer with external doubler/tripler; repetitive post-repair inspections for cracking, and repair.

    We also reviewed APB Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017. The service information describes procedures for an HFEC inspection for cracking of the lower outboard wing skin at stringer L-6.5 and on-condition actions that include repetitive HFEC inspections, repair (modification) of the stringer with new stringer, repetitive post-repair HFEC inspections for cracking, and repair.

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

    Costs of Compliance

    We estimate that this AD affects 140 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

    Estimated Costs—Required Actions Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • HFEC Inspections 6 work-hours × $85 per hour = $510 $0 $510 $71,400

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

    Estimated Costs—On-Condition Actions Action Labor cost Parts cost Cost per
  • product
  • Post-repair Inspections 6 work-hours × $85 per hour = $510 per inspection cycle $0 $510 Repair/Modification 262 work-hours × $85 per hour = $22,270 0 22,270

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

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-11-14 The Boeing Company: Amendment 39-19302; Docket No. FAA-2015-1421; Product Identifier 2014-NM-177-AD. (a) Effective Date

    This AD is effective July 10, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 767-300 and -300F series airplanes, certificated in any category, with Aviation Partners Boeing winglets installed; as identified in Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017; and Aviation Partners Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017.

    (d) Subject

    Air Transport Association (ATA) of America Code 57, Wings.

    (e) Unsafe Condition

    This AD was prompted by reports of fatigue cracking in the lower outboard wing skin at the inboard fastener of stringer L-9.5, and the lower outboard wing skin of stringer L-6.5, on airplanes with winglets installed per Supplemental Type Certificate ST01920SE. We are issuing this AD to prevent fatigue cracking in the lower outboard wing skin, which could result in failure and subsequent separation of the wing and winglet and consequent reduced controllability of the airplane.

    (f) Compliance

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

    (g) Repetitive Stringer L-9.5 Inspections, Modification, Repair (Modification), Repetitive Post-Repair Inspections, and Repair

    (1) For Group 1 and Group 2 airplanes identified in Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017: At the applicable time specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017, except as required by paragraph (j)(1) of this AD: Do a high frequency eddy current (HFEC) inspection for cracking of the lower outboard wing skin at stringer L-9.5, in accordance with Part 1 of the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017.

    (i) For airplanes on which “Condition 1” is found, as defined in the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017, during any inspection required by paragraph (g)(1) or (g)(1)(i)(A) of this AD: Do the applicable actions required by paragraph (g)(1)(i)(A), (g)(1)(i)(B), (g)(1)(i)(C), or (g)(1)(i)(D) of this AD.

    (A) Repeat the inspection specified in paragraph (g)(1) of this AD thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017.

    (B) Do the applicable actions required by paragraphs (g)(1)(i)(B)(1), (g)(1)(i)(B)(2), and (g)(1)(i)(B)(3) of this AD.

    (1) Before further flight, do actions (modifications and repair (modification)) in accordance with Part 2, Part 3, Part 4, and Part 5, as applicable, of the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017.

    (2) For airplanes on which the repair (modification) specified in Part 5 of Aviation Partners Boeing Service Bulletin AP767-57-010 was done: At the applicable time specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017, do a post-repair HFEC inspection for cracking, in accordance with Part 12 of the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017; and repeat the inspection thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017.

    (3) If any crack is found during any inspection required by paragraph (g)(1)(i)(B)(2) of this AD, repair before further flight using a method approved in accordance with the procedures specified in paragraph (k) of this AD.

    (C) Do the actions required by paragraphs (g)(1)(i)(C)(1) and (g)(1)(i)(C)(2) of this AD, and do all applicable actions required by paragraph (g)(1)(i)(C)(3) of this AD.

    (1) Before further flight, repair (modify) in accordance with Part 8 of the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017.

    (2) At the applicable time specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017, do a post-repair HFEC inspection for cracking, in accordance with Part 9 of the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017; and repeat the inspection thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017.

    (3) If any crack is found during any inspection required by paragraph (g)(1)(i)(C)(2) of this AD, repair before further flight using a method approved in accordance with the procedures specified in paragraph (k) of this AD.

    (D) Do the actions required by paragraphs (g)(1)(i)(D)(1) and (g)(1)(i)(D)(2) of this AD, and do all applicable actions required by paragraph (g)(1)(i)(D)(3) of this AD.

    (1) Before further flight, repair (modify) in accordance with Part 11 of the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017.

    (2) At the applicable time specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017, do a post-repair HFEC inspection for cracking, in accordance with Part 13 of the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017; and repeat the inspection thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017; except as required by paragraph (j)(4) of this AD.

    (3) If any crack is found during any inspection required by paragraph (g)(1)(i)(D)(2) of this AD, repair before further flight using a method approved in accordance with the procedures specified in paragraph (k) of this AD.

    (ii) For airplanes on which “Condition 2” is found, as defined in the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017, during any inspection required by paragraph (g)(1) or (g)(1)(i)(A) of this AD: Do the actions required by paragraph (g)(1)(ii)(A) or (g)(1)(ii)(B) of this AD.

    (A) Do the actions required by paragraphs (g)(1)(ii)(A)(1) and (g)(1)(ii)(A)(2) of this AD, and do all applicable actions required by paragraph (g)(1)(ii)(A)(3) of this AD.

    (1) Before further flight, repair (modify) in accordance with Part 8 of the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017.

    (2) At the applicable time specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017, do a post-repair HFEC inspection for cracking, in accordance with Part 9 of the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017; and repeat the inspection thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017.

    (3) If any crack is found during any inspection required by paragraph (g)(1)(ii)(A)(2) of this AD, repair before further flight using a method approved in accordance with the procedures specified in paragraph (k) of this AD.

    (B) Do the actions required by paragraphs (g)(1)(ii)(B)(1) and (g)(1)(ii)(B)(2) of this AD, and do all applicable actions required by paragraph (g)(1)(ii)(B)(3) of this AD.

    (1) Before further flight, repair (modify) in accordance with Part 11 of the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017.

    (2) At the applicable time specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017, do a post-repair HFEC inspection for cracking, in accordance with Part 13 of the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017; and repeat the inspection thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017; except as required by paragraph (j)(4) of this AD.

    (3) If any crack is found during any inspection required by paragraph (g)(1)(ii)(B)(2) of this AD, repair before further flight using a method approved in accordance with the procedures specified in paragraph (k) of this AD.

    (iii) For airplanes on which “Condition 3” is found, as defined in the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017, during the actions specified in paragraph (g)(1)(i)(B)(1) of this AD: Do the actions required by paragraph (g)(1)(iii)(A) or (g)(1)(iii)(B) of this AD.

    (A) Do the actions required by paragraphs (g)(1)(iii)(A)(1) and (g)(1)(iii)(A)(2) of this AD, and do all applicable actions required by paragraph (g)(1)(iii)(A)(3) of this AD.

    (1) Before further flight, repair (modify) in accordance with Part 8 of the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017.

    (2) At the applicable time specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017, do a post-repair HFEC inspection for cracking, in accordance with Part 9 of the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017; and repeat the inspection thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017.

    (3) If any crack is found during any inspection required by paragraph (g)(1)(iii)(A)(2) of this AD, repair before further flight using a method approved in accordance with the procedures specified in paragraph (k) of this AD.

    (B) Do the actions required by paragraphs (g)(1)(iii)(B)(1) and (g)(1)(iii)(B)(2) of this AD, and do all applicable actions required by paragraph (g)(1)(iii)(B)(3) of this AD.

    (1) Before further flight, repair (modify) in accordance with Part 11 of the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017.

    (2) At the applicable time specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017, do a post-repair HFEC inspection for cracking, in accordance with Part 13 of the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017; and repeat the inspection thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017; except as required by paragraph (j)(4) of this AD.

    (3) If any crack is found during any inspection required by paragraph (g)(1)(iii)(B)(2) of this AD, repair before further flight using a method approved in accordance with the procedures specified in paragraph (k) of this AD.

    (iv) For airplanes on which “Condition 4” is found, as defined in the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017, during any action specified in paragraph (g)(1)(i)(C)(1), (g)(1)(i)(D)(1) (g)(1)(ii)(A)(1), (g)(1)(ii)(B)(1), (g)(1)(iii)(A)(1), and (g)(1)(iii)(B)(1) of this AD: Repair before further flight using a method approved in accordance with the procedures specified in paragraph (k) of this AD.

    (2) For Group 3 airplanes identified in Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017: At the applicable time specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017, or within 6 months after the effective date of this AD, whichever occurs later, do an HFEC inspection for cracking of the lower outboard wing skin at stringer L-9.5, in accordance with Part 7 of the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017. Repeat the inspection thereafter at the applicable time specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017. If any cracking is found during any inspection, repair before further flight using a method approved in accordance with the procedures specified in paragraph (k) of this AD. An approved repair terminates the repetitive inspections required by paragraph (g)(2) of this AD for the repaired area only.

    (3) Group 4 airplanes identified in Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017, are not affected by the actions required by paragraph (g) of this AD.

    (h) Repetitive Stringer L-6.5 Inspections, Repair (Modification), Repetitive Post-Repair Inspections, and Repair

    (1) For airplanes identified in Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017: At the applicable time specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017, except as required by paragraph (j)(2) of this AD: Do an HFEC inspection for cracking of stringer L-6.5 of the lower outboard wing skin, in accordance with Part 1 of Aviation Partners Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017. If no cracking is found, repeat the inspection thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017, except as provided by paragraph (h)(3) of this AD.

    (2) If any crack is found during any inspection required by paragraph (h)(1) of this AD, do the actions required by paragraphs (h)(2)(i) and (h)(2)(ii) of this AD, and do all applicable actions required by paragraph (h)(2)(iii) of this AD.

    (i) Before further flight, repair (modify) stringer L-6.5, in accordance with Part 2 of the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017.

    (ii) Except as required by paragraph (j)(3) of this AD: At the applicable time specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017, except as required by paragraph (j)(2) of this AD, do an HFEC post-repair inspection for cracking, in accordance with Part 3 of the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017, and repeat the inspection thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017.

    (iii) If any crack is found during any inspection required by paragraph (h)(2)(ii) of this AD, repair before further flight using a method approved in accordance with the procedures specified in paragraph (k) of this AD.

    (3) As an option to the repetitive inspections required by paragraph (h)(1) of this AD, do the actions required by paragraphs (h)(3)(i) and (h)(3)(ii) of this AD, and do all applicable actions required by paragraph (h)(3)(iii) of this AD.

    (i) Before further flight after accomplishing the most recent inspection required by paragraph (h)(1) of this AD, repair (modify) stringer L-6.5, in accordance with Part 2 of the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017.

    (ii) Except as required by paragraph (j)(3) of this AD: At the applicable time specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017, except as required by paragraph (j)(2) of this AD, do a post-repair HFEC inspection for cracking, in accordance with Part 3 of the Accomplishment Instructions of Aviation Partners Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017, and repeat the inspection thereafter at the applicable times specified in paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017.

    (iii) If any crack is found during any inspection required by paragraph (h)(3)(ii) of this AD, repair before further flight using a method approved in accordance with the procedures specified in paragraph (k) of this AD.

    (i) Repair Approval

    Repairs of the lower outboard wing skin that were approved after June 15, 2017, and before the effective date of this AD, by the Boeing Commercial Airplanes Organization Designation Authorization (ODA) that has been authorized by the Manager, Seattle ACO Branch, are approved for the applicable repairs required by paragraphs (g) and (h) of this AD. The ODA repairs will have post-installation inspection requirements in lieu of the post-inspection instructions specified in Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017; and Aviation Partners Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017.

    (j) Exceptions to Service Information Specifications

    (1) Where paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017, specifies a compliance time “after the issue date of Revision 11 of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (2) Where paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017, specifies a compliance time “after the initial issue date of this service bulletin,” this AD requires compliance within the specified compliance time after the effective date of this AD.

    (3) For Condition 1 and Condition 2 airplanes: Where paragraph 1.E., “Compliance,” of Aviation Partners Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017, specifies a compliance time for accomplishing the Part 3 HFEC inspection of 18 months “after the initial issue date of this service bulletin,” the required compliance time is 6,000 flight cycles or 18,000 flight hours, whichever occurs first, after doing the Part 2 repair.

    (4) For airplanes on which a stringer L-9.5 replacement was accomplished per Part 11 of Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017: Where Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017, specifies repeating the post-repair HFEC inspection “in Part 9,” this AD requires repeating the post-repair HFEC inspection in Part 13.

    (k) Alternative Methods of Compliance (AMOCs)

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

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

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

    (4) Except as required by paragraphs (g)(1)(i)(B)(3), (g)(1)(i)(C)(3), (g)(1)(i)(D)(3), (g)(1)(ii)(A)(3), (g)(1)(ii)(B)(3), (g)(1)(iii)(A)(3), (g)(1)(iii)(B)(3), (g)(1)(iv), (g)(2), (h)(2)(iii), and (h)(3)(iii) of this AD: For service information that contains steps that are labeled as Required for Compliance (RC), the provisions of paragraphs (k)(4)(i) and (k)(4)(ii) of this AD apply.

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

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

    (l) Related Information

    For more information about this AD, contact Allen Rauschendorfer, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA; phone and fax: 206-231-3528; email: [email protected]

    (m) Material Incorporated by Reference

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

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

    (i) Aviation Partners Boeing Service Bulletin AP767-57-010, Revision 11, dated April 3, 2017.

    (ii) Aviation Partners Boeing Service Bulletin AP767-57-014, Revision 1, dated April 12, 2017.

    (3) For service information identified in this AD, contact Aviation Partners Boeing, 2811 S. 102nd Street, Suite 200, Seattle, WA 98168; telephone 206-762-1171; internet https://www.aviationpartnersboeing.com.

    (4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

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

    Issued in Des Moines, Washington, on May 21, 2018. James Cashdollar, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-11825 Filed 6-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-1099; Product Identifier 2017-NM-093-AD; Amendment 39-19296; AD 2018-11-08] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 767-200 and -300 series airplanes. This AD was prompted by a report of two cracks at a certain frame inner chord. This AD requires a detailed inspection for any material review board (MRB) filler installed in the area from the frame web to the stub-beam fitting at certain stations to determine if the filler extends above the frame-to-stub-beam joint, and applicable on-condition actions. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective July 10, 2018.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of July 10, 2018.

    ADDRESSES:

    For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone 562-797-1717; internet https://www.myboeingfleet.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-1099.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-1099; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The address for Docket Operations (phone: 800-647-5527) is Docket Operations, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Wayne Lockett, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 S. 216th St., Des Moines, WA 98198; phone and fax: 206-231-3524; email: [email protected].

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 767-200 and -300 series airplanes. The NPRM was published in the Federal Register on December 6, 2017 (82 FR 57552). The NPRM was prompted by a report of a crack on the transition radius of the station (STA) 883.5 frame inner chord and an additional crack indication at a fastener hole in the frame inner chord common to a material review board (MRB) filler that extended above the frame-to-stub-beam joint. The NPRM proposed to require a detailed inspection for any MRB filler installed in the area from the frame web to the stub-beam fitting at certain stations to determine if the filler extends above the frame-to-stub-beam joint, and applicable on-condition actions.

    We are issuing this AD to detect and correct cracking of the frame inner chord, which could result in the inability of one or more overwing stub frames between STA 808 and STA 933, each a principal structural element, to sustain limit loads; this condition could adversely affect the structural integrity of the airplane.

    Comments

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

    Effect of Winglets on Accomplishment of the Proposed Actions

    Aviation Partners Boeing stated that accomplishing the Supplemental Type Certificate (STC) ST01920SE does not affect the actions specified in the NPRM.

    We concur with the commenter. We have redesignated paragraph (c) of the proposed AD as paragraph (c)(1) of this AD and added paragraph (c)(2) to this AD to state that installation of STC ST01920SE does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01920SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

    Request To Confirm Intent of Compliance Time

    Paragraph (h)(1) of the proposed AD allowed operators to substitute “the effective date of this AD” for “the original issue date of Requirements Bulletin 767-53A0278 RB.” United Airlines noted that this wording is different from that of recent NPRMs, where the AD effective date is the sole compliance date. United added that the proposed wording suggested that the operator can choose to use either the AD effective date or the original issue date of the RB when determining the compliance timeline. United requested that we clarify the intent of the provision of paragraph (h)(1) of the proposed AD.

    We agree with the commenter. We have revised paragraph (h)(1) of this AD to specify use of the effective date of this AD in determining the compliance time.

    Conclusion

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

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

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

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

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Requirements Bulletin 767-53A0278 RB, dated June 30, 2017. This service information describes procedures for a detailed inspection for any MRB filler installed in the area from the frame web to the stub-beam fitting on the left and right side at STA 859.5, 883.5, and 903.5 to determine if the filler extends above the frame-to-stub-beam joint, and applicable on-condition actions. The applicable on-condition actions include repetitive surface high frequency eddy current inspections and repair for cracking in the frame inner chord around the end fastener common to each affected MRB filler. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    Costs of Compliance

    We estimate that this AD affects 51 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

    Estimated Costs for Required Actions Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Detailed Inspection 20 work-hours × $85 per hour = $1,700 $0 $1,700 $86,700

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

    Estimated Costs of On-Condition Inspections Labor cost Parts cost Cost per product 3 work-hours × $85 per hour = $255 per inspection cycle $0 $255 per inspection cycle.

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

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-11-08 The Boeing Company: Amendment 39-19296; Docket No. FAA-2017-1099; Product Identifier 2017-NM-093-AD. (a) Effective Date

    This AD is effective July 10, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    (1) This AD applies to The Boeing Company Model 767-200 and -300 series airplanes, as identified in Boeing Alert Requirements Bulletin 767-53A0278 RB, dated June 30, 2017, certificated in any category.

    (2) Installation of Supplemental Type Certificate (STC) ST01920SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/59027F43B9A7486E86257B1D006591EE?OpenDocument&Highlight=st01920se) does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01920SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

    (d) Subject

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

    (e) Unsafe Condition

    This AD was prompted by a report of a crack on the transition radius of the station (STA) 883.5 frame inner chord and an additional crack indication at a fastener hole in the frame inner chord common to a material review board (MRB) filler that extended above the frame-to-stub-beam joint. We are issuing this AD to detect and correct cracking of the frame inner chord, which could result in the inability of one or more overwing stub frames between STA 808 and STA 933, each a principal structural element, to sustain limit loads; this condition could adversely affect the structural integrity of the airplane.

    (f) Compliance

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

    (g) Required Actions

    Except as required by paragraph (h) of this AD: At the applicable times specified in the “Compliance” paragraph of Boeing Alert Requirements Bulletin 767-53A0278 RB, dated June 30, 2017, do all applicable actions identified in, and in accordance with, the Accomplishment Instructions of Boeing Alert Requirements Bulletin 767-53A0278 RB, dated June 30, 2017.

    Note 1 to paragraph (g) of this AD: Guidance for accomplishing the actions required by this AD can be found in Boeing Alert Service Bulletin 767-53A0278, dated June 30, 2017, which is referred to in Boeing Alert Requirements Bulletin 767-53A0278 RB, dated June 30, 2017.

    (h) Exceptions to Service Information Specifications

    (1) For purposes of determining compliance with the requirements of this AD: Where Boeing Alert Requirements Bulletin 767-53A0278 RB, dated June 30, 2017, uses the phrase “the original issue date of Requirements Bulletin 767-53A0278 RB,” this AD requires using “the effective date of this AD.”

    (2) Where Boeing Alert Requirements Bulletin 767-53A0278 RB, dated June 30, 2017, specifies contacting Boeing, this AD requires repair using a method approved in accordance with the procedures specified in paragraph (i) of this AD.

    (3) For airplanes identified as Group 1, Configuration 1, in Boeing Alert Requirements Bulletin 767-53A0278 RB, dated June 30, 2017, that have been modified to a freighter configuration: The actions specified in Boeing Alert Requirements Bulletin 767-53A0278 RB, dated June 30, 2017, for Group 1, Configuration 2, must be done instead of the actions for Group 1, Configuration 1, except as required by paragraph (h)(2) of this AD.

    (4) For airplanes identified as Group 2, Configuration 1, in Boeing Alert Requirements Bulletin 767-53A0278 RB, dated June 30, 2017, that have been modified to a freighter configuration: The actions specified in Boeing Alert Requirements Bulletin 767-53A0278 RB, dated June 30, 2017, for Group 2, Configuration 2, must be done instead of the actions for Group 2, Configuration 1, except as required by paragraph (h)(2) of this AD.

    (i) Alternative Methods of Compliance (AMOCs)

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

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

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

    (j) Related Information

    For more information about this AD, contact Wayne Lockett, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 S. 216th St., Des Moines, WA 98198; phone and fax: 206-231-3524; email: [email protected].

    (k) Material Incorporated by Reference

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

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

    (i) Boeing Alert Requirements Bulletin 767-53A0278 RB, dated June 30, 2017.

    (ii) Reserved.

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

    (4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

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

    Issued in Des Moines, Washington, on May 18, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-11427 Filed 6-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-0779; Product Identifier 2017-NM-040-AD; Amendment 39-19301; AD 2018-11-13] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 787-8 airplanes. This AD was prompted by a report of possible degraded bond-line performance of co-bonded upper wing stringer-to-skin joints. This AD requires repetitive inspections of certain upper wing stringers for any disbond and corrective actions, if necessary; and a terminating preventive modification of installing disbond arrestment (DBA) fasteners. This AD also requires revising the inspection or maintenance program to incorporate an airworthiness limitation. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD is effective July 10, 2018.

    The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of July 10, 2018.

    ADDRESSES:

    For service information identified in this final rule, contact Boeing Commercial Airplanes, Attention: Contractual & Data Services (C&DS), 2600 Westminster Blvd., MC 110-SK57, Seal Beach, CA 90740-5600; telephone: 562-797-1717; internet: https://www.myboeingfleet.com. You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0779.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2017-0779; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The address for Docket Operations (phone: 800-647-5527) is Docket Operations, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

    FOR FURTHER INFORMATION CONTACT:

    Allen Rauschendorfer, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3528; email: [email protected].

    SUPPLEMENTARY INFORMATION: Discussion

    We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to certain The Boeing Company Model 787-8 airplanes. The NPRM was published in the Federal Register on August 25, 2017 (82 FR 40511). The NPRM was prompted by a report of possible degraded bond-line performance of co-bonded upper wing stringer-to-skin joints. The NPRM proposed to require repetitive inspections of certain upper wing stringers for any disbond, and corrective actions if necessary; and a terminating preventive modification of installing DBA fasteners. The NPRM also proposed to require revising the inspection or maintenance program to incorporate an airworthiness limitation.

    The degraded stringer bond-line does not meet the residual strength requirements if an adjacent stringer becomes disbonded due to induced damage at a critical location. We are issuing this AD to prevent upper wing stringer-to-skin joint disbonding, which can reduce the structural integrity of the airplane.

    Comments

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

    Support for the NPRM

    One commenter, Ken Mayes, and United Airlines (UAL) expressed support for the NPRM.

    Request To Specify Updated Service Information

    UAL, Japan Airlines (JAL), All Nippon Airways (ANA), and Boeing requested that we specify a later revision of the service information. Boeing pointed out that Issue 002 of Boeing Alert Service Bulletin B787-81205-SB570030-00 is expected to be released in the first half of 2018. JAL pointed out that Boeing has released Information Notice B787-81205-SB570030-00 IN-01, dated April 5, 2017, to include a certain special tool. JAL mentioned communications with Boeing regarding “location 2” fasteners that are for the dry bay installation and part of the basic design features. JAL also mentioned that Boeing communicated that certain specifications for ultraviolet protections were not the latest revisions in Boeing Alert Service Bulletin B787-81205-SB570030-00, Issue 001, dated March 17, 2017. JAL specifically mentioned its preference to avoid deviations based on these issues. UAL specified that seven airplanes from the UAL fleet are affected by the NPRM. ANA pointed out that Issue 002 of Boeing Alert Service Bulletin B787-81205-SB570030-00 is expected to include alternative non-destructive test (NDT) procedures, alternative cleaning procedures, additional removal and installation specifications, and alternative special tools. ANA also pointed out that certain details regarding the new copper foils are incorrect in Issue 001 of the service information and that Issue 002 will correct those inaccuracies.

    We do not consider that delaying this action until release of the planned service bulletin is warranted. Issue 002 of Boeing Alert Service Bulletin B787-81205-SB570030-00 is not yet approved, and we cannot specify future revisions of service information in this AD. Boeing Alert Service Bulletin B787-81205-SB570030-00, Issue 001, dated March 17, 2017, is the currently available revision, and it provides adequate information to address the identified unsafe condition. We have not reviewed the proposed Issue 002 of Boeing Alert Service Bulletin B787-81205-SB570030-00. However, the proposed Issue 002 of Boeing Alert Service Bulletin B787-81205-SB570030-00, is expected to provide more options, clarifications, and corrections, which may be helpful, but are not necessary to accomplish the requirements of this AD. These revisions are not expected to affect an operator's ability to comply with this AD. Therefore, we do not plan to wait for the release of Issue 002 of Boeing Alert Service Bulletin B787-81205-SB570030-00 before issuing this AD. However, we will consider requests for approval of an alternative method of compliance (AMOC) to allow the use of Issue 002 of Boeing Alert Service Bulletin B787-81205-SB570030-00 after it has been published, under the provisions of paragraph (l) of this AD. We have not changed this final rule regarding this issue.

    Request To Clarify Information Leading to AD Action

    Boeing requested that we clarify the information leading to the AD action in the SUMMARY of the NPRM and paragraph (e) of the proposed AD. The commenter pointed out that Boeing notified the FAA of possible degraded bond-line performance, but that there have been no reports of stringer disbonds found in the fleet.

    We agree for the reasons provided. We have revised the SUMMARY section of this final rule and paragraph (e) of this AD to specify that this AD was prompted by a report of possible degraded bond-line performance of co-bonded upper wing stringer-to-skin joints.

    Request To Clarify the Cause of the Possible Degraded Bond-Line Performance

    Boeing requested that we clarify the cause of the possible degraded bond-line performance. The commenter pointed out that a specific type of Boeing Material Specification (BMS) 8-308 peel ply, and exposure to cure times that exceeded 4 hours at a temperature of 355 Fahrenheit degrees (±10 Fahrenheit degrees), are contributing factors. The commenter also pointed out that other types of BMS 8-308 peel ply are not affected by the unsafe condition. The commenter also mentioned that the temperature specified (345 Fahrenheit degrees (±10 Fahrenheit degrees)) in Boeing Alert Service Bulletin 787-81205-SB570030-00, Issue 001, dated March 17, 2017, in the description of the incident was incorrect.

    We agree that clarification is necessary, in that, the BMS 8-308 specification includes multiple different types of peel ply material, and not all BMS 8-308 material types are affected by this AD. In fact, the replacement peel ply material specified in the service information was also selected from the BMS 8-308 specification. However, we do not agree to specify the temperature in this AD, because that information is not restated in the final rule. We have not changed this final rule regarding this issue.

    Request To Clarify the Condition That Could Cause the Unsafe Condition

    Boeing requested that we revise the Discussion section of the NPRM to clarify the condition that could cause the unsafe condition. The commenter pointed out that the upper wing stringer-to-skin joint may not sustain limit load if a stringer has a one-bay disbond and is adjacent to a critical stringer with a degraded bond-line, which could adversely affect the structural integrity of the airplane. The commenter also pointed out that the degraded bond-lines are good for ultimate load and long-term durability when not assuming an adjacent stringer disbond. The commenter stated that the only way to show less than limit load capability is to assume that the degraded bond-line is adjacent to a one-bay disbond.

    We agree that clarification is necessary, in that, the unsafe condition is a residual strength requirement that assumes an already damaged structure. We have revised the Discussion section of this final rule to reflect this condition.

    Request To Clarify “Assumed” Conditions of Unsafe Condition

    Boeing requested that we revise the NPRM to specify that the unsafe condition is based on additional assumed conditions. The commenter stated that the NPRM would not prevent anything, as the structure is good for ultimate static and fatigue, but would ensure that no “assumed” disbonds could be adjacent to a degraded bond-line.

    We disagree with the request to revise paragraph (e) of this AD. This AD mandates inspections and provides a terminating action for airplanes with a known manufacturing non-conformance, which, under certain conditions, could reduce the structural capability of the airframe to less than limit load. We have not changed this final rule regarding this issue.

    Request To Specify That the Unsafe Condition Does Not Develop

    Boeing requested that we revise the “FAA's Determination” section of the NPRM to specify that while the unsafe condition could exist, it cannot develop. The commenter pointed out that the unsafe condition is a function of fabrication and not durability issues.

    We disagree to make the requested wording change. The “FAA's Determination” section of the NPRM is not restated in the final rule. We have not changed this final rule regarding this issue.

    Conclusion

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

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

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

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

    Related Service Information Under 1 CFR Part 51

    We reviewed Boeing Alert Service Bulletin B787-81205-SB570030-00, Issue 001, dated March 17, 2017. The service information describes procedures for inspection of certain upper wing stringers for any disbond and corrective actions; and for a preventive modification which consists of, depending on airplane configuration, applying copper foil to the upper wing at certain stringer and rib bay locations, installing DBA fasteners on the upper flanges of the upper wing stringers at the stringer and rib bay locations, applying cap seals to the DBA fasteners, and applying edge sealant to the stringers at the DBA fastener installation locations.

    We have also reviewed Airworthiness Limitation (AWL) 57-AWL-13, “Inspection Requirements for In-Tank Fasteners and Edge Seal near Disbond Arrestment (DBA) Fastener Installations in Lightning Zone 2,” of Boeing 787 Special Compliance Items/Airworthiness Limitations, D011Z009-03-04, dated February 2017. This service information describes tasks for inspecting in-tank fasteners and edge seals near DBA fastener installations of lightning zone 2.

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

    Costs of Compliance

    We estimate that this AD affects 24 airplanes of U.S. registry. We estimate the following costs to comply with this AD:

    Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Inspection 49 work-hours × $85 per hour = $4,165 per inspection cycle $0 $4,165 per inspection cycle $99,960 per inspection cycle. Modification Up to 352 work-hour × $85 per hour = $29,920 1,902 Up to $31,822 Up to $763,728. Maintenance or Inspection Program Revision 1 work-hour × $85 per hour = $85 0 $85 $2,040.

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

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]

    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-11-13 The Boeing Company: Amendment 39-19301; Docket No. FAA-2017-0779; Product Identifier 2017-NM-040-AD. (a) Effective Date

    This AD is effective July 10, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to The Boeing Company Model 787-8 airplanes, certificated in any category, as identified in Boeing Alert Service Bulletin B787-81205-SB570030-00, Issue 001, dated March 17, 2017, and line numbers 10, 13, 15, 16, 17, 18, and 19.

    (d) Subject

    Air Transport Association (ATA) of America Code 57, Wings.

    (e) Unsafe Condition

    This AD was prompted by a report of possible degraded bond-line performance of co-bonded upper wing stringer-to-skin joints. We are issuing this AD to prevent upper wing stringer-to-skin joint disbonding, which can reduce the structural integrity of the airplane.

    (f) Compliance

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

    (g) Inspections and Corrective Actions

    For airplanes identified in Boeing Alert Service Bulletin B787-81205-SB570030-00, Issue 001, dated March 17, 2017, except as specified in paragraph (k)(1) of this AD, at the applicable time specified in paragraph 5., “Compliance,” of Boeing Alert Service Bulletin B787-81205-SB570030-00, Issue 001, dated March 17, 2017: Do an ultrasonic inspection for any disbond on the left side and right side upper wing stringers; and do all applicable corrective actions; in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB570030-00, Issue 001, dated March 17, 2017, except as specified in paragraph (k)(2) of this AD. Do all applicable corrective actions before further flight. Repeat the inspection of the upper wing stringers thereafter at the applicable intervals specified in paragraph 5., “Compliance,” of Boeing Alert Service Bulletin B787-81205-SB570030-00, Issue 001, dated March 17, 2017, until the actions required by paragraph (j) of this AD are done.

    (h) Maintenance or Inspection Program Revision

    (1) For airplanes identified in Boeing Alert Service Bulletin B787-81205-SB570030-00, Issue 001, dated March 17, 2017: Prior to or concurrently with accomplishing the actions required by paragraph (g) of this AD, revise the inspection or maintenance program, as applicable, to incorporate Airworthiness Limitation (AWL) 57-AWL-13, “Inspection Requirements for In-Tank Fasteners and Edge Seal near Disbond Arrestment (DBA) Fastener Installations in Lightning Zone 2,” of Boeing 787 Special Compliance Items/Airworthiness Limitations, D011Z009-03-04, dated February 2017 (“AWL 57-AWL-13”). The initial compliance time for accomplishing the tasks specified in AWL 57-AWL-13 is within 24,000 flight cycles or 12 years, whichever occurs first, after accomplishing the actions specified in Boeing Alert Service Bulletin B787-81205-SB570030-00, Issue 001, dated March 17, 2017.

    (2) For airplanes having line numbers 10, 13, and 15 through 19 inclusive: Within 60 days after the effective date of this AD, revise the inspection or maintenance program, as applicable, to incorporate AWL 57-AWL-13. The initial compliance time for accomplishing the tasks specified in AWL 57-AWL-13 is prior to the accumulation of 24,000 total flight cycles or within 12 years after the date of issuance of the original airworthiness certificate or date of issuance of the original export certificate of airworthiness, whichever occurs first.

    (i) No Alternative Actions or Intervals

    After the action required by paragraph (h) of this AD has been done, no alternative actions (e.g., inspections) or intervals may be used unless the actions or intervals are approved as an alternative method of compliance (AMOC) in accordance with the procedures specified in paragraph (l) of this AD.

    (j) Inspection and Modification

    For airplanes identified in Boeing Alert Service Bulletin B787-81205-SB570030-00, Issue 001, dated March 17, 2017, on which “PART 3: PREVENTIVE MODIFICATION” of the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB570030-00, Issue 001, dated March 17, 2017, has not been done at all of the unrepaired areas of the upper wing stringers, except as specified in paragraph (k)(1) of this AD: At the applicable time specified in paragraph 5., “Compliance,” of Boeing Alert Service Bulletin B787-81205-SB570030-00, Issue 001, dated March 17, 2017, do the actions specified in paragraphs (j)(1) and (j)(2) of this AD, in accordance with the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB570030-00, Issue 001, dated March 17, 2017, except as specified in paragraph (k)(2) of this AD. Doing the actions required by this paragraph terminates the repetitive inspections required by paragraph (g) of this AD.

    (1) Do an ultrasonic inspection for any disbond on the left side and right side upper wing stringers, and do all applicable corrective actions. Do all applicable corrective actions before further flight.

    (2) Do the preventive modification in accordance with “PART 3: PREVENTIVE MODIFICATION” of the Accomplishment Instructions of Boeing Alert Service Bulletin B787-81205-SB570030-00, Issue 001, dated March 17, 2017.

    (k) Exceptions to Service Information

    (1) For purposes of determining compliance with the requirements of this AD: Where Boeing Alert Service Bulletin B787-81205-SB570030-00, Issue 001, dated March 17, 2017, uses the phrase “the Issue 001 date of this service bulletin,” this AD requires using “the effective date of this AD.”

    (2) Where Boeing Alert Service Bulletin B787-81205-SB570030-00, Issue 001, dated March 17, 2017, specifies contacting Boeing, and specifies that action as RC: This AD requires repair using a method approved in accordance with the procedures specified in paragraph (l) of this AD.

    (l) Alternative Methods of Compliance (AMOCs)

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

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

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

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

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

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

    (m) Related Information

    For more information about this AD, contact Allen Rauschendorfer, Aerospace Engineer, Airframe Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3528; email: [email protected]

    (n) Material Incorporated by Reference

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

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

    (i) Boeing Alert Service Bulletin B787-81205-SB570030-00, Issue 001, dated March 17, 2017.

    (ii) Boeing Airworthiness Limitation 57-AWL-13, “Inspection Requirements for In-Tank Fasteners and Edge Seal near Disbond Arrestment (DBA) Fastener Installations in Lightning Zone 2,” of Boeing 787 Special Compliance Items/Airworthiness Limitations, D011Z009-03-04, dated February 2017.

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

    (4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

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

    Issued in Des Moines, Washington, on May 21, 2018. James Cashdollar, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-11816 Filed 6-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0490; Product Identifier 2018-NM-018-AD; Amendment 39-19299; AD 2018-11-11] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule; request for comments.

    SUMMARY:

    We are adopting a new airworthiness directive (AD) for certain Airbus Model A350-941 airplanes. This AD requires a detailed inspection of the four retaining pins in the main landing gear support structure (MLGSS) trunnion block, left- and right-hand sides, and related investigative and corrective actions if necessary. This AD was prompted by a determination that short retaining pins may have been installed at the incorrect location of the MLGSS forward pintle. We are issuing this AD to address the unsafe condition on these products.

    DATES:

    This AD becomes effective June 20, 2018.

    The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of June 20, 2018.

    We must receive comments on this AD by July 20, 2018.

    ADDRESSES:

    You may send comments, using the procedures found in 14 CFR 11.43 and 11.45, by any of the following methods:

    Federal eRulemaking Portal: Go to http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-493-2251.

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

    Hand Delivery: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

    For service information identified in this final rule, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; internet http://www.airbus.com. You may view this referenced service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0490.

    Examining the AD Docket

    You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0490; or in person at the Docket Operations office between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations office (telephone 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

    FOR FURTHER INFORMATION CONTACT:

    Kathleen Arrigotti, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone and fax 206-231-3218.

    SUPPLEMENTARY INFORMATION: Discussion

    The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA Airworthiness Directive 2018-0008, dated January 10, 2018 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for certain Airbus Model A350-941 airplanes. The MCAI states:

    Following an Airbus quality control review on the final assembly line, it was identified that short retaining pins may have inadvertently been installed at the incorrect location of the main landing gear support structure (MLGSS) forward pintle. On the A350, two short retaining pins are installed through the fuse pin carrier and four long retaining pins are installed through the trunnion block. These six retaining pins are to prevent rotation and migration of the fuse pins.

    This condition, if not detected and corrected, could lead to premature failure of the retaining pin, subsequent fuse pin migration and disconnection, with consequent main landing gear collapse, possibly resulting in damage to the aeroplane and injury to the occupants.

    To address this potential unsafe condition, Airbus issued Service Bulletin (SB) A350-57-P011 to provide inspection instructions.

    For the reasons described above, this [EASA] AD requires a one-time detailed inspection (DET) of the four retaining pins installed in the MLGSS trunnion block, both left hand (LH) and right hand (RH) sides [for nonconforming (incorrect) pins, i.e., those having a gap between the retaining pin and the forward surface of the trunnion block], and, depending on findings, accomplishment of applicable [related investigative actions, i.e., a detailed inspection for damage or deformation of nonconforming pins and] corrective action(s) [including repairing or replacing damaged (cracked), deformed, or nonconforming retaining pins].

    You may examine the MCAI on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0490.

    Related Service Information Under 1 CFR Part 51

    Airbus has issued Service Bulletin A350-57-P011, dated May 17, 2017. This service information describes procedures for a detailed inspection of the four retaining pins installed in the MLGSS trunnion block, left- and right-hand sides, and related investigative and corrective actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

    FAA's Determination and Requirements of This AD

    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 issuing this AD because we evaluated all pertinent information and determined the unsafe condition exists and is likely to exist or develop on other products of the same type design.

    FAA's Determination of the Effective Date

    Since none of the affected aircraft are currently on the U.S. Register, notice and opportunity for public comment before issuing this AD are unnecessary.

    Comments Invited

    This AD is a final rule that involves requirements affecting flight safety, and we did not precede it by notice and opportunity for public comment. We invite you to send any written relevant data, views, or arguments about this AD. Send your comments to an address listed under the ADDRESSES section. Include “Docket No. FAA-2018-0490; Product Identifier 2018-NM-018-AD” at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this AD. We will consider all comments received by the closing date and may amend this AD 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 AD.

    Costs of Compliance

    Currently, there are no affected U.S.-registered airplanes. If an affected airplane is imported and placed on the U.S. Register in the future, we provide the following cost estimates to comply with this AD:

    Estimated Costs for Required Actions Labor cost Parts cost Cost per
  • product
  • 6 work-hours × $85 per hour = $510 $0 $510

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

    Estimated Costs of On-Condition Actions Labor cost Parts cost Cost per
  • product
  • Up to 16 work-hours × $85 per hour = Up to $1,360 Up to $16,000 Up to $17,360

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

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

    Authority for This Rulemaking

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

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

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

    Regulatory Findings

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

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

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

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

    3. Will not affect intrastate aviation in Alaska; and

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-11-11 Airbus: Amendment 39-19299; Docket No. FAA-2018-0490; Product Identifier 2018-NM-018-AD. (a) Effective Date

    This AD becomes effective June 20, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to Airbus Model A350-941 airplanes, certificated in any category, manufacturer serial numbers (MSN) 0006 to 0040 inclusive, except MSN 0025, 0032, 0033, 0036, 0038, and 0039.

    (d) Subject

    Air Transport Association (ATA) of America Code 57, Wings.

    (e) Reason

    This AD was prompted by a determination that short retaining pins may have been installed at the incorrect location of the main landing gear support structure (MLGSS) forward pintle. We are issuing this AD to address incorrect retaining pin installations, which could lead to premature failure of the retaining pin and subsequent fuse pin migration and disconnection, and could ultimately lead to main landing gear collapse and possible damage to the airplane.

    (f) Compliance

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

    (g) Detailed Inspection

    Before exceeding 1,880 flight cycles since first flight of the airplane, accomplish a detailed inspection for nonconformance (incorrect retaining pins, i.e., those having a gap between the retaining pin and the forward surface of the trunnion block) of the four retaining pins installed in the MLGSS trunnion block, left- and right-hand sides and related investigative actions, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A350-57-P011, dated May 17, 2017.

    (h) Corrective Actions

    (1) If, during any inspection required by paragraph (g) of this AD, any nonconforming retaining pin is found and that pin has damage (including cracks) or deformation: Before further flight, repair using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or the European Aviation Safety Agency (EASA); or Airbus's EASA Design Organization Approval (DOA). If approved by the DOA, the approval must include the DOA-authorized signature.

    (2) If, during any inspection required by paragraph (g) of this AD, any nonconforming but undamaged and undeformed retaining pin is found: Before exceeding 1,880 flight cycles since first flight of the airplane, replace the nonconforming pin(s) with new conforming pins in accordance with the Accomplishment Instructions of Airbus Service Bulletin A350-57-P011, dated May 17, 2017.

    (i) Other FAA AD Provisions

    The following provisions also apply to this AD:

    (1) Alternative Methods of Compliance (AMOCs): The Manager, International Section, Transport Standards Branch, FAA, has the authority to approve AMOCs for this AD, if requested using the procedures found in 14 CFR 39.19. In accordance with 14 CFR 39.19, send your request to your principal inspector or local Flight Standards District Office, as appropriate. If sending information directly to the International Section, send it to the attention of the person identified in paragraph (j)(2) of this AD. Information may be emailed to: [email protected] Before using any approved AMOC, notify your appropriate principal inspector, or lacking a principal inspector, the manager of the local flight standards district office/certificate holding district office.

    (2) Contacting the Manufacturer: For any requirement in this AD to obtain corrective actions from a manufacturer, the action must be accomplished using a method approved by the Manager, International Section, Transport Standards Branch, FAA; or EASA; or Airbus's DOA. If approved by the DOA, the approval must include the DOA-authorized signature.

    (3) Required for Compliance (RC): If any service information contains procedures or tests that are identified as RC, those procedures and tests must be done to comply with this AD; any procedures or tests that are not identified as RC are recommended. Those procedures and tests that are not identified as RC may be deviated from using accepted methods in accordance with the operator's maintenance or inspection program without obtaining approval of an AMOC, provided the procedures and tests identified as RC can be done and the airplane can be put back in an airworthy condition. Any substitutions or changes to procedures or tests identified as RC require approval of an AMOC.

    (j) Related Information

    (1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA Airworthiness Directive 2018-0008, dated January 10, 2018, for related information. You may examine the MCAI on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0490.

    (2) For more information about this AD, contact Kathleen Arrigotti, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th Street, Des Moines, WA 98198; telephone and fax 206-231-3218.

    (k) Material Incorporated by Reference

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

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

    (i) Airbus Service Bulletin A350-57-P011, dated May 17, 2017.

    (ii) Reserved.

    (3) For service information identified in this AD, contact Airbus SAS, Airworthiness Office—EAL, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone +33 5 61 93 36 96; fax +33 5 61 93 45 80; email [email protected]; internet http://www.airbus.com.

    (4) You may view this service information at the FAA, Transport Standards Branch, 2200 South 216th St., Des Moines, WA. For information on the availability of this material at the FAA, call 206-231-3195.

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

    Issued in Des Moines, Washington, on May 21, 2018. James Cashdollar, Acting Director, System Oversight Division, Aircraft Certification Service.
    [FR Doc. 2018-11688 Filed 6-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0100; Airspace Docket No. 18-ASW-3] RIN 2120-AA66 Amendment of Class E Airspace; Duncan, OK AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action amends Class E airspace extending upward from 700 feet above the surface at Halliburton Field, Duncan, OK. This action is a result of an airspace review caused by the decommissioning of the Duncan VHF omnidirectional range (VOR) navigation aid as part of the VOR Minimum Operational Network (MON) Program and the cancellation of the associated instrument procedures. The geographic coordinates of the airport are also being updated to coincide with the FAA's aeronautical database, as well as an editorial change removing the city associated with the airport name in the airspace legal designation.

    DATES:

    Effective 0901 UTC, September 13, 2018. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.

    ADDRESSES:

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

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

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class E airspace extending upward from 700 feet above the surface at Halliburton Field, Duncan, OK, to support instrument flight rules operations at this airport.

    History

    The FAA published a notice of proposed rulemaking in the Federal Register (83 FR 10644; March 12, 2018) for Docket No. FAA-2018-0100 to amend the Class E airspace extending upward from 700 feet above the surface at Halliburton Field, Duncan, OK. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

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

    Availability and Summary of Documents for Incorporation by Reference

    This document amends 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 Rule

    This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 modifies the Class E airspace extending upward from 700 feet above the surface to within a 6.6-mile radius (decreased from a 6.7-mile radius) at Halliburton Field, Duncan, OK, and removes the extension to the north of the airport associated with the Halliburton Field Localizer. This action also adds an extension within 4 miles each side of the 359° bearing from the airport from the 6.6-mile radius to 11.6 miles north of the airport.

    The geographic coordinates of the airport are also being updated to coincide with the FAA's aeronautical database, and the name of the city associated with the airport in the airspace legal description is being removed to comply with a change to FAA Order 7400.2L, Procedures for Handling Airspace Matters.

    This action is necessary due to an airspace review caused by the decommissioning of the Duncan VOR as part of the VOR MON Program and cancellation of the associated instrument procedures.

    Regulatory Notices and Analyses

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

    Environmental Review

    The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ASW OK E5 Duncan, OK [Amended] Halliburton Field, OK (Lat. 34°28′17″ N, long. 97°57′36″ W)

    That airspace extending upward from 700 feet above the surface within a 6.6-mile radius of Halliburton Field, and within 4.0 miles each side of the 359° bearing from the airport extending from the 6.6-mile radius to 11.6 miles north of the airport.

    Issued in Fort Worth, Texas, on May 24, 2018. Christopher L. Southerland, Acting Manager, Operations Support Group, ATO Central Service Center.
    [FR Doc. 2018-11860 Filed 6-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-0825; Airspace Docket No. 17-ASW-12] RIN 2120-AA66 Amendment of Class D Airspace and Establishment of Class E Airspace; Norman, OK; and Amendment of Class E Airspace; Oklahoma City, OK AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action amends Class D airspace and establishes Class E airspace designated as a surface area at University of Oklahoma Westheimer Airport, Norman, OK. The University of Oklahoma Westheimer Airport requested establishment of this airspace. This action also amends Class E airspace extending upward from 700 feet above the surface at the University of Oklahoma Westheimer Airport contained within the Oklahoma City, OK, airspace legal description, by removing the Oklahoma Westheimer Airport ILS localizer and realigning the southwest segment. Additionally, the name of the University of Oklahoma Westheimer Airport is being updated to coincide with the FAA's aeronautical database in the Class D airspace legal description. This action is necessary for the safety and management of instrument flight rules (IFR) operations at this airport.

    DATES:

    Effective 0901 UTC, September 13, 2018. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.

    ADDRESSES:

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

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

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it amends Class D airspace, establishes Class E airspace designated as a surface area, and amends Class E airspace extending upward from 700 feet above the surface at the University of Oklahoma Westheimer Airport, Norman, OK, to support IFR operations at this airport.

    History

    The FAA published a notice of proposed rulemaking in the Federal Register (82 FR 44981; September 27, 2017) for Docket No. FAA-2017-0825 to amend Class D airspace, establish Class E airspace designated as a surface area, and amend Class E airspace extending upward from 700 feet above the surface at the University of Oklahoma Westheimer Airport, Norman, OK, to support IFR operations at the airport. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

    Subsequent to publication, the FAA discovered a typographic error in the regulatory text for Class E airspace designated as a surface area. The Notice to Airmen information incorrectly references Class D airspace instead of Class E airspace.

    Additionally, the names of the cities associated with the airports listed in the airspace descriptions have been removed to comply with a recent change to FAA Order 7400.2L, Procedures for Handling Airspace Matters.

    Except for the edits noted above, this rule is the same as published in the NPRM.

    Class D and E airspace designations are published in paragraph 5000, 6002, and 6005, respectively, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

    Availability and Summary of Documents for Incorporation by Reference

    This document amends 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 Rule

    This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71:

    Amends Class D airspace to within a 4.2-mile radius (reduced from 4.5-miles) of University of Oklahoma Westheimer Airport (formerly University of Oklahoma Westheimer Airpark), Norman, OK, and updates the name of the airport to coincide with the FAA's aeronautical database;

    Establishes Class E airspace designated as a surface area within a 4.2-mile radius of University of Oklahoma Westheimer Airport, and corrects the reference to the NOTAM information to Class E airspace vice Class D airspace; and

    Amends Class E airspace extending upward from 700 feet above the surface at University of Oklahoma, Westheimer Airport, Norman, OK, contained within the Oklahoma City, OK, airspace description, to within a 6.7-mile radius (reduced from 8.9-miles), removing the University of Oklahoma Westheimer Airport ILS Localizer from the airspace description, and realigning the southwest extension to 2-miles (increased from 1.8-miles) either side of the 213° bearing from the airport (previously referenced from the University of Oklahoma Westheimer Airport ILS Localizer) from the 6.7-mile radius to 7.8-miles southwest of the airport.

    Regulatory Notices and Analyses

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

    Environmental Review

    The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 5000 Class D Airspace. ASW OK D Norman, OK [Amended] University of Oklahoma Westheimer Airport, OK (Lat. 35°14′44″ N, long. 97°28′20″ W)

    That airspace extending upward from the surface to and including 3,700 feet MSL within a 4.2-mile radius of University of Oklahoma Westheimer Airport, excluding that airspace within the Oklahoma City, OK, Class C airspace area. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    Paragraph 6002 Class E Airspace Designated as a Surface Area ASW OK E2 Norman, OK [New] University of Oklahoma Westheimer Airport, OK (Lat. 35°14′44″ N, long. 97°28′20″ W)

    That airspace extending upward from the surface to and including 3,700 feet MSL within a 4.2-mile radius of University of Oklahoma Westheimer Airport excluding that airspace within the Oklahoma City, OK, Class C airspace area. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth ASW OK E5 Oklahoma City, OK [Amended] Will Rogers World Airport, OK (Lat. 35°23′35″ N, long. 97°36′03″ W) Tinker AFB, OK (Lat. 35°24′53″ N, long. 97°23′12″ W) University of Oklahoma Westheimer Airport, OK (Lat. 35°14′44″ N, long. 97°28′20″ W) David Jay Perry Airport, OK (Lat. 35°09′18″ N, long. 97°28′13″ W) Clarence E. Page Municipal Airport, OK (Lat. 35°29′17″ N, long. 97°49′25″ W) El Reno Regional Airport, OK (Lat. 35°28′22″ N, long. 98°00′21″ W) Wiley Post Airport, OK (Lat. 35°32′03″ N, long. 97°38′49″ W) Sundance Airport, OK (Lat. 35°36′07″ N, long. 97°42′22″ W)

    That airspace extending upward from 700 feet above the surface within an 8.1-mile radius of Will Rogers World Airport, and within an 8.2-mile radius of Tinker AFB, and within a 6.7-mile radius of University of Oklahoma Westheimer Airport, and within 2.0 miles each side of the 213° bearing from the airport extending from the 6.7-mile radius to 7.8 miles southwest of the airport, and within a 6.3-mile radius of David Jay Perry Airport, and within a 6.5-mile radius of Clarence E. Page Municipal Airport, and within a 6.6-mile radius of El Reno Regional Airport, and within a 6.8-mile radius of Wiley Post Airport, and within a 6.8-mile radius of Sundance Airport.

    Issued in Fort Worth, Texas, on May 24, 2018. Christopher L. Southerland, Acting Manager, Operations Support Group, ATO Central Service Center.
    [FR Doc. 2018-11861 Filed 6-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0020; Airspace Docket No. 17-AGL-28] RIN 2120-AA66 Amendment of Class E Airspace; Flint, MI, and Establishment of Class E Airspace; Owosso, MI AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action modifies Class E airspace extending upward from 700 feet above the surface at Bishop International Airport, Flint, MI, and establishes separate Class E airspace extending upward from 700 feet above the surface at Owosso Community Airport, Owosso, MI. This action is necessary due to the closure of the Athelone Williams Memorial Airport, Davison, MI, which is included in the Flint, MI, airspace description; the cancellation of the instrument approach procedures at the Genesys Regional Medical Center, Grand Blanc, MI, also included in the Flint, MI, airspace description; and updates the Bishop International Airport airspace and the Owosso Community Airport airspace to comply with FAA Order 7400.2L, Procedures for Handling Airspace Matters. The geographic coordinates of the Bishop International Airport and Prices Airport, Linden, MI, are also being updated to coincide with the FAA's aeronautical database.

    DATES:

    Effective 0901 UTC, September 13, 2018. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.

    ADDRESSES:

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

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

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

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

    History

    The FAA published a notice of proposed rulemaking in the Federal Register for Docket No. FAA-2018-0020 (83 FR 8638; February 28, 2018) to amend Class E airspace extending upward from 700 feet above the surface at Bishop International Airport, Flint, MI, and establish separate Class E airspace extending upward from 700 feet above the surface at Owosso Community Airport, Owosso, MI. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

    Subsequent to publication, the FAA discovered a typographical error in the geographic coordinates for Bishop International Airport in the Class E airspace extending upward from 700 feet above the surface airspace description. That error has been corrected in this action.

    Class E airspace designations are published in paragraph 6002 and 6005, respectively, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class E airspace designations listed in this document will be published subsequently in the Order.

    Availability and Summary of Documents for Incorporation by Reference

    This document amends 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 Rule

    This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71:

    Modifies the Class E airspace designated as a surface area at Bishop International Airport, Flint, MI, by updating the geographic coordinates of the airport to coincide with the FAA's aeronautical database, and replaces the outdated term “Airport/Facility Directory” with the term “Chart Supplement” in the airspace legal description;

    Modifies the Class E airspace area extending upward from 700 feet above the surface to within a 6.9-mile radius (decreased from a 10.5-mile radius) at Bishop International Airport; removes the extension to the north referencing the Flint ILS localizer; adds an extension 2.4 miles each side of the 016° radial of the Flint VORTAC extending from the 6.9-mile radius to 7.9 miles north of the airport; adds an extension 2.4 miles each side of the 179° radial of the Flint VORTAC extending from the 6.9-mile radius to 7.9 miles south of the airport; removes the Owosso Community Airport, Owosso, MI, from the airspace description (a separate Class E airspace area extending upward from 700 feet above the surface is being created for Owosso Community Airport as it no longer adjoins the Flint, MI, Class E airspace area extending upward from 700 feet above the surface with this amendment); removes Athelone Williams Memorial Airport, Davison, MI, from the airspace description; removes the PETLI LOM from the airspace description; removes Genesys Regional Medical Center, Grand Blanc, MI, from the airspace description; updates the geographic coordinates for Bishop International Airport and Prices Airport, Linden, MI, to coincide with the FAA's aeronautical database; and removes exclusionary language contained in the legal description to comply with FAA Order 7400.2L; and

    Establishes Class E airspace area extending upward from 700 feet above the surface to within a 6.4-mile radius of Owosso Community Airport, Owosso, MI.

    Airspace reconfiguration is necessary due to the closure of the Athelone Williams Memorial Airport and the cancellation of the instrument procedures at the Genesys Regional Medical Center, as they no longer require a Class E airspace area extending upward from 700 feet above the surface. This action enhances safety and the management of IFR operations at these airports.

    Regulatory Notices and Analyses

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

    Environmental Review

    The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 6002. Class E Surface Area Airspace. AGL MI E2 Flint, MI [Amended] Bishop International Airport, MI (Lat. 42°57′56″ N, long. 83°44′41″ W)

    That airspace extending upward from the surface within a 5-mile radius of Bishop International Airport. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    Paragraph 6005. Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. AGL MI E5 Flint, MI [Amended] Bishop International Airport, MI (Lat. 42°57′56″ N, long. 83°44′41″ W) Prices Airport, MI (Lat. 42°48′27″ N, long. 83°46′08″ W) Flint VORTAC (Lat. 42°58′00″ N, long. 83°44′49″ W)

    That airspace extending upward from 700 feet above the surface within a 6.9-mile radius of Bishop International Airport, and within 2.4 miles each side of the 016° radial of the Flint VORTAC extending from the 6.9-mile radius to 7.9 miles north of Bishop International Airport, and within 2.4 miles each side of the 179° radial of the Flint VORTAC extending from the 6.9-mile radius to 7.9 miles south of Bishop International Airport, and within a 6.4-mile radius of Prices Airport.

    AGL MI E5 Owosso, MI [New] Owosso Community Airport, MI (Lat. 42°59′35″ N, long. 84°08′19″ W)

    That airspace extending upward from 700 feet above the surface within a 6.4-mile radius of Owosso Community Airport.

    Issued in Fort Worth, Texas, on May 24, 2018. Christopher L. Southerland, Acting Manager, Operations Support Group, ATO Central Service Center.
    [FR Doc. 2018-11864 Filed 6-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-0618; Airspace Docket No. 17-ASW-9] RIN 2120-AA66 Establishment of Class D Airspace; Burns Flat, OK; Revocation of Class D Airspace; Clinton-Sherman Airport, OK; and Amendment of Class E Airspace for the Following Oklahoma Towns: Burns Flat, OK; Clinton, OK; and Elk City, OK AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

    This action establishes Class D airspace at Clinton-Sherman Airport, Burns Flat, OK; removes Class D airspace at Clinton-Sherman Airport, Clinton-Sherman Airport, OK; and amends Class E airspace extending upward from 700 feet above the surface at Clinton-Sherman Airport, Burns Flat, OK; Clinton Municipal Airport, Clinton, OK; and Elk City Regional Business Airport, Elk City, OK. This action is due to the decommissioning of the Sayre co-located VHF omnidirectional range and tactical air navigation (VORTAC) facility, which provided navigation guidance for the instrument procedures to these airports. The VORTAC is being decommissioned as part of the VHF omnidirectional range (VOR) Minimum Operational Network (MON) Program.

    DATES:

    Effective 0901 UTC, September 13, 2018. The Director of the Federal Register approves this incorporation by reference action under Title 1, Code of Federal Regulations, part 51, subject to the annual revision of FAA Order 7400.11 and publication of conforming amendments.

    ADDRESSES:

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

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

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it establishes Class D airspace at Clinton-Sherman Airport, Burns Flat, OK; removes Class D airspace at Clinton-Sherman Airport, Clinton-Sherman Airport, OK; and amends Class E airspace extending upward from 700 feet above the surface at Clinton-Sherman Airport, Burns Flat, OK; Clinton Municipal Airport, Clinton, OK; and Elk City Regional Business Airport, Elk City, OK, to support the management of instrument flight rule (IFR) operations at these airports.

    History

    The FAA published a notice of proposed rulemaking in the Federal Register (82 FR 40078; August 24, 2017) for Docket No. FAA-2017-0618 to establish Class D airspace at Clinton-Sherman Airport, Burns Flat, OK; remove Class D airspace at Clinton-Sherman Airport, Clinton-Sherman Airport, OK; and amend Class E airspace extending upward from 700 feet above the surface at Clinton-Sherman Airport, Burns Flat, OK; Clinton Municipal Airport, Clinton, OK; and Elk City Regional Business Airport, Elk City, OK. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. No comments were received.

    Class D and E airspace designations are published in paragraphs 5000 and 6005, respectively, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

    Availability and Summary of Documents for Incorporation by Reference

    This document amends 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 Rule

    This amendment to Title 14, Code of Federal Regulations (14 CFR) part 71:

    Establishes Class D airspace within a 4.7-mile radius of Clinton-Sherman Airport, Burns Flat, OK, to replace the airspace designation of Clinton-Sherman Airport, Clinton-Sherman Airport, OK, and bring the airspace legal descriptions in line with the requirements of FAA Order 7400.2L, Procedures for Handling Airspace Matters;

    Removes Class D airspace at Clinton-Sherman Airport, Clinton-Sherman Airport, OK; and

    Modifies Class E airspace extending upward from 700 feet above the surface as follows:

    Within a 7.2-mile radius (reduced from an 8.2-mile radius) of Clinton-Sherman Airport, Burns Flat, OK, and removes the Burns Flat VORTAC and extensions to the south and north of the airport from the airspace legal description;

    Correcting the airspace header to Clinton, OK, (formerly Clinton Municipal Airport, OK) to comply with FAA Order 7400.2L, removes the extension south of Clinton Regional Airport (formerly Clinton Municipal Airport), adds an extension 2 miles each side of the 359° bearing from the airport from the 6.5-mile radius to 7 miles north of the airport, and updates the name of the airport to coincide with the FAA's aeronautical database; and

    Within a 6.5-mile radius (increased from a 6.4-mile radius) of Elk City Regional Business Airport (formerly Elk City Municipal Airport), Elk City, OK, removes the extension to the northeast of the airport, removes the Elk City RBN from the airspace legal description, and updates the name and geographic coordinates of the airport to coincide with the FAA's aeronautical database.

    Airspace reconfiguration is necessary due to the decommissioning of the Sayre VORTAC as part of the VOR MON Program, and to bring the airspace and airspace descriptions into compliance with FAA Order 7400.2L. Controlled airspace is necessary for the safety and management of standard instrument approach procedures for IFR operations at these airports.

    Regulatory Notices and Analyses

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

    Environmental Review

    The FAA has determined that this action qualifies for categorical exclusion under the National Environmental Policy Act in accordance with FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures,” paragraph 5-6.5.a. This airspace action is not expected to cause any potentially significant environmental impacts, and no extraordinary circumstances exist that warrant preparation of an environmental assessment.

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    Adoption of the Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 5000 Class D Airspace. ASW OK D Burns Flat, OK [New] Clinton-Sherman Airport, OK (Lat. 35°20′23″ N, long. 99°12′02″ W)

    That airspace extending upward from the surface to and including 4,500 feet within a 4.7-mile radius of Clinton-Sherman Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    ASW OK D Clinton-Sherman Airport, OK [Removed] Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ASW OK E5 Burns Flat, OK [Amended] Clinton-Sherman Airport, OK (Lat. 35°20′23″ N, long. 99°12′02″ W)

    That airspace extending upward from 700 feet above the surface within a 7.2-mile radius of Clinton-Sherman Airport.

    ASW OK E5 Clinton, OK [Amended] Clinton Regional Airport, OK (Lat. 35°32′18″ N, long. 98°55′58″ W)

    That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Clinton Regional Airport, and within 2.0 miles each side of the 359° bearing from the airport extending from the 6.5-mile radius to 7.0 miles north of the airport.

    ASW OK E5 Elk City, OK [Amended] Elk City Regional Business Airport, OK (Lat. 35°25′51″ N, long. 99°23′39″W)

    That airspace extending upward from 700 feet above the surface within a 6.5-mile radius of Elk City Regional Business Airport.

    Issued in Fort Worth, Texas, on May 24, 2018. Christopher L. Southerland, Acting Manager, Operations Support Group, ATO Central Service Center.
    [FR Doc. 2018-11858 Filed 6-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 31196; Amdt. No. 3802] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

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

    DATES:

    This rule is effective June 5, 2018. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.

    The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of June 5, 2018.

    ADDRESSES:

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

    For Examination

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

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

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

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

    Availability

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

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

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

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

    Availability and Summary of Material Incorporated by Reference

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

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

    The Rule

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

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

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

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

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

    List of Subjects in 14 CFR Part 97

    Air traffic control, Airports, Incorporation by reference, Navigation (air).

    Issued in Washington, DC, on May 18, 2018. John S. Duncan, Executive Director, Flight Standards Service. Adoption of the Amendment

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

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

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

    2. Part 97 is amended to read as follows:

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

    Effective Upon Publication AIRAC date State City Airport FDC NO. FDC date Subject 21-Jun-18 MI Boyne Falls Boyne Mountain 8/5325 4/30/18 This NOTAM, published in TL 18-13, is hereby rescinded in its entirety. 21-Jun-18 MI Flint Bishop Intl 7/9070 5/14/18 RNAV (GPS) RWY 18, Amdt 1A 21-Jun-18 ND Oakes Oakes Muni 8/1046 4/30/18 RNAV (GPS) RWY 30, Orig-A 21-Jun-18 MI Boyne Falls Boyne Mountain 8/2421 5/14/18 RNAV (GPS) RWY 35, Orig 21-Jun-18 AR West Memphis West Memphis Muni 8/2705 5/9/18 RNAV (GPS) RWY 17, Orig 21-Jun-18 AR West Memphis West Memphis Muni 8/2720 5/9/18 RNAV (GPS) RWY 35, Orig 21-Jun-18 NE Red Cloud Red Cloud Muni 8/4511 5/14/18 RNAV (GPS) RWY 34, Orig-A 21-Jun-18 SD Watertown Watertown Rgnl 8/6084 5/14/18 RNAV (GPS) RWY 12, Orig 21-Jun-18 CA Groveland Pine Mountain Lake 8/6207 5/2/18 RNAV (GPS) RWY 9, Orig-A 21-Jun-18 CA Groveland Pine Mountain Lake 8/6212 5/2/18 GPS RWY 27, Orig-A 21-Jun-18 WA Seattle Seattle-Tacoma Intl 8/6624 5/2/18 ILS OR LOC RWY 34C, Amdt 3D 21-Jun-18 WA Seattle Seattle-Tacoma Intl 8/6626 5/2/18 RNAV (GPS) Y RWY 16L, Amdt 5A 21-Jun-18 WA Seattle Seattle-Tacoma Intl 8/6627 5/2/18 RNAV (GPS) Y RWY 34C, Amdt 2C 21-Jun-18 TX Stratford Stratford Field 8/6666 5/2/18 Takeoff Minimums and Obstacle DP, Amdt 4 21-Jun-18 NM Tucumcari Tucumcari Muni 8/7528 5/2/18 VOR RWY 26, Amdt 6 21-Jun-18 MI Owosso Owosso Community 8/7559 5/2/18 VOR/DME RWY 29, Amdt 1C 21-Jun-18 MI Owosso Owosso Community 8/7562 5/2/18 RNAV (GPS) RWY 29, Amdt 1D 21-Jun-18 MI Owosso Owosso Community 8/7568 5/2/18 RNAV (GPS) RWY 11, Amdt 1D 21-Jun-18 MI Rogers City Presque Isle County 8/7570 5/2/18 RNAV (GPS) RWY 9, Orig 21-Jun-18 WI Waukesha Waukesha County 8/8589 5/2/18 ILS OR LOC RWY 10, Amdt 2A 21-Jun-18 MO Aurora Jerry Sumners Sr Aurora Muni 8/9573 5/9/18 RNAV (GPS) RWY 36, Orig-A 21-Jun-18 TX Temple Draughon-Miller Central Texas Rgnl 8/9931 5/9/18 VOR RWY 33, Amdt 4
    [FR Doc. 2018-11840 Filed 6-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 97 [Docket No. 31195; Amdt. No. 3801] Standard Instrument Approach Procedures, and Takeoff Minimums and Obstacle Departure Procedures; Miscellaneous Amendments AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Final rule.

    SUMMARY:

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

    DATES:

    This rule is effective June 5, 2018. The compliance date for each SIAP, associated Takeoff Minimums, and ODP is specified in the amendatory provisions.

    The incorporation by reference of certain publications listed in the regulations is approved by the Director of the Federal Register as of June 5, 2018.

    ADDRESSES:

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

    For Examination

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

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

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

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

    Availability

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

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION:

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

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

    Availability and Summary of Material Incorporated by Reference

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

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

    The Rule

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

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

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

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

    List of Subjects in 14 CFR Part 97

    Air traffic control, Airports, Incorporation by reference, Navigation (air).

    Issued in Washington, DC, on May 18, 2018. John S. Duncan, Executive Director, Flight Standards Service. Adoption of the Amendment

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

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

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

    2. Part 97 is amended to read as follows: Effective 21 June 2018 Fort Madison, IA, Fort Madison Muni, RNAV (GPS) RWY 17, Amdt 1A Big Rapids, MI, Roben-Hood, Takeoff Minimums and Obstacle DP, Amdt 6A Detroit, MI, Detroit Metropolitan Wayne County, ILS OR LOC RWY 22L, ILS RWY 22L SA CAT I, Amdt 32A Detroit, MI, Detroit Metropolitan Wayne County, RNAV (RNP) W RWY 22R, Orig-A Detroit, MI, Detroit Metropolitan Wayne County, RNAV (RNP) X RWY 3R, Orig-A Detroit, MI, Detroit Metropolitan Wayne County, RNAV (RNP) X RWY 21L, Orig-A St Paul, MN, St Paul Downtown Holman Fld, ILS OR LOC RWY 32, Amdt 6A Omaha, NE, Eppley Airfield, RNAV (GPS) Y RWY 18, Amdt 4A Saranac Lake, NY, Adirondack Rgnl, Takeoff Minimums and Obstacle DP, Amdt 8 Cleveland, OH, Cleveland-Hopkins Intl, RNAV (GPS) Y RWY 6L, Amdt 2A Ottawa, OH, Putnam County, VOR RWY 27, Amdt 2C Effective 19 July 2018 Manley Hot Springs, AK, Manley Hot Springs, RNAV (GPS) RWY 18, Orig Manley Hot Springs, AK, Manley Hot Springs, RNAV (GPS) RWY 36, Orig Manley Hot Springs, AK, Manley Hot Springs, Takeoff Minimums and Obstacle DP, Orig Fayetteville/Springdale/Rogers, AR, Northwest Arkansas Rgnl, ILS OR LOC RWY 34, Amdt 4 Auburn, CA, Auburn Muni, RNAV (GPS) RWY 7, Orig-B Long Beach, CA, Long Beach/Daugherty Field/, ILS OR LOC RWY 30, Amdt 34 Long Beach, CA, Long Beach/Daugherty Field/, RNAV (RNP) RWY 26R, Amdt 1A Long Beach, CA, Long Beach/Daugherty Field/, Takeoff Minimums and Obstacle DP, Amdt 6A Long Beach, CA, Long Beach/Daugherty Field/, VOR OR TACAN RWY 30, Amdt 9 Oakland, CA, Metropolitan Oakland Intl, RNAV (RNP) Z RWY 12, Amdt 2 Palm Springs, CA, Jacqueline Cochran Rgnl, RNAV (GPS) RWY 30, Amdt 1 Palm Springs, CA, Jacqueline Cochran Rgnl, VOR RWY 30, Amdt 2 Palm Springs, CA, Jacqueline Cochran Rgnl, VOR-A, Amdt 1 Panama City, FL, Northwest Florida Beaches Intl, ILS OR LOC RWY 16, ILS RWY 16 SA CAT I, ILS RWY 16 SA CAT II, Amdt 3 Douglas, GA, Douglas Muni, ILS OR LOC RWY 4, Amdt 2C Kahului, HI, Kahului, ILS OR LOC RWY 2, Amdt 25A Springfield, IL, Abraham Lincoln Capital, VOR RWY 4, Orig-C Sterling/Rockfalls, IL, Whiteside Co Arpt-Jos H Bittorf Fld, ILS OR LOC RWY 25, Amdt 11 Sterling/Rockfalls, IL, Whiteside Co Arpt-Jos H Bittorf Fld, LOC BC RWY 7, Amdt 6 Sterling/Rockfalls, IL, Whiteside Co Arpt-Jos H Bittorf Fld, NDB RWY 7, Amdt 6, CANCELED Sterling/Rockfalls, IL, Whiteside Co Arpt-Jos H Bittorf Fld, RNAV (GPS) RWY 7, Amdt 1 Sterling/Rockfalls, IL, Whiteside Co Arpt-Jos H Bittorf Fld, RNAV (GPS) RWY 25, Amdt 1 Howell, MI, Livingston County Spencer J Hardy, RNAV (GPS) RWY 31, Amdt 1B Howell, MI, Livingston County Spencer J Hardy, VOR RWY 31, Amdt 11A, CANCELED Menominee, MI, Menominee Rgnl, ILS OR LOC RWY 3, Amdt 3 Menominee, MI, Menominee Rgnl, RNAV (GPS) RWY 3, Orig-A Menominee, MI, Menominee Rgnl, RNAV (GPS) RWY 21, Orig-C Menominee, MI, Menominee Rgnl, RNAV (GPS) RWY 32, Amdt 1C Menominee, MI, Menominee Rgnl, Takeoff Minimums and Obstacle DP, Amdt 3A Menominee, MI, Menominee Rgnl, VOR-A, Amdt 3C Cabool, MO, Cabool Memorial, RNAV (GPS) RWY 21, Orig-B Cabool, MO, Cabool Memorial, VOR/DME RWY 21, Amdt 2A, CANCELED Ithaca, NY, Ithaca Tompkins Rgnl, ILS OR LOC RWY 32, Amdt 7 Ithaca, NY, Ithaca Tompkins Rgnl, RNAV (GPS) RWY 32, Orig-B Ithaca, NY, Ithaca Tompkins Rgnl, VOR RWY 14, Amdt 14A, CANCELED Ogdensburg, NY, Ogdensburg Intl, RNAV (GPS) RWY 9, Amdt 1 Watertown, NY, Watertown Intl, Takeoff Minimums and Obstacle DP, Amdt 3 Tiffin, OH, Seneca County, NDB RWY 24, Amdt 7D Tiffin, OH, Seneca County, RNAV (GPS) RWY 6, Orig-B Tiffin, OH, Seneca County, RNAV (GPS) RWY 24, Amdt 1C Tiffin, OH, Seneca County, VOR RWY 6, Amdt 9B Anderson, SC, Anderson Rgnl, RNAV (GPS) RWY 23, Amdt 2 Weslaco, TX, Mid Valley, RNAV (GPS) RWY 14, Orig-A Weslaco, TX, Mid Valley, VOR-A, Orig-B Eastsound, WA, Orcas Island, RNAV (GPS) RWY 16, Amdt 2 Port Angeles, WA, William R Fairchild Intl, ILS OR LOC RWY 8, Amdt 3A Port Angeles, WA, William R Fairchild Intl, RNAV (GPS) RWY 8, Amdt 1A Port Angeles, WA, William R Fairchild Intl, RNAV (GPS) RWY 26, Amdt 1B Port Angeles, WA, William R Fairchild Intl, Takeoff Minimums and Obstacle DP, Amdt 3A Port Angeles, WA, William R Fairchild Intl, WATTR SEVEN, Graphic DP New Holstein, WI, New Holstein Muni, RNAV (GPS) RWY 14, Orig-B
    [FR Doc. 2018-11836 Filed 6-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 862, 866, 876, 880, and 884 [Docket No. FDA-2017-N-1129] Medical Devices; Exemptions From Premarket Notification: Class II Devices AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final order.

    SUMMARY:

    The Food and Drug Administration (FDA or the Agency) is publishing an order to exempt a list of class II devices from premarket notification (510(k)) requirements, subject to certain limitations. This exemption from 510(k), subject to certain limitations, is immediately in effect for the listed class II devices. This exemption will decrease regulatory burdens on the medical device industry and will eliminate private costs and expenditures required to comply with certain Federal regulations. FDA is also amending the codified language for the listed class II devices to reflect this final determination. FDA is publishing this order in accordance with the section of the Federal Food, Drug, and Cosmetic Act (FD&C Act) permitting the exemption of a device from the requirement to submit a 510(k).

    DATES:

    This order is effective June 5, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Scott McFarland, Center for Devices and Radiological Health (CDRH), Food and Drug Administration, 10903 New Hampshire Ave, Bldg. 66, Rm. 4676, Silver Spring, MD 20993-0002, 301-796-6217.

    SUPPLEMENTARY INFORMATION: I. Statutory Background

    Section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and the implementing regulations, 21 CFR part 807, subpart E, require persons who intend to market a new device to submit and obtain clearance of a premarket notification (510(k)) containing information that allows FDA to determine whether the new device is “substantially equivalent” within the meaning of section 513(i) of the FD&C Act (21 U.S.C. 360c(i)) to a legally marketed device that does not require premarket approval.

    On December 13, 2016, the 21st Century Cures Act (Cures Act) (Pub. L. 114-255) was signed into law. Section 3054 of the Cures Act amended section 510(m) of the FD&C Act. As amended, section 510(m)(2) provides that, 1 calendar day after the date of publication of the final list under section 510(1)(B), FDA may exempt a class II device from the requirement to submit a report under section 510(k) of the FD&C Act, upon its own initiative or a petition of an interested person, if FDA determines that a 510(k) is not necessary to provide reasonable assurance of the safety and effectiveness of the device. This section requires FDA to publish in the Federal Register a notice of intent to exempt a device, or of the petition, and provide a 60-calendar-day comment period. Within 120 days of publication of such notice, FDA shall publish an order in the Federal Register that sets forth its final determination regarding the exemption of the device that was the subject of the notice.

    II. Criteria for Exemption

    There are a number of factors FDA may consider to determine whether a 510(k) is necessary to provide reasonable assurance of the safety and effectiveness of a class II device. These factors are discussed in the January 21, 1998, Federal Register notice (63 FR 3142) and subsequently in the guidance the Agency issued on February 19, 1998, entitled “Procedures for Class II Device Exemptions from Premarket Notification, Guidance for Industry and CDRH Staff” (“Class II 510(k) Exemption Guidance”). That guidance can be obtained through the internet at https://www.fda.gov/downloads/MedicalDevices/DeviceRegulationandGuidance/GuidanceDocuments/UCM080199.pdf or by sending an email request to [email protected] to receive a copy of the document. Please use the document number 159 to identify the guidance you are requesting.

    Accordingly, FDA generally considers the following factors to determine whether premarket notification is necessary for class II devices: (1) The device does not have a significant history of false or misleading claims or of risks associated with inherent characteristics of the device; (2) characteristics of the device necessary for its safe and effective performance are well established; (3) changes in the device that could affect safety and effectiveness will either (a) be readily detectable by users by visual examination or other means such as routine testing, before causing harm, or (b) not materially increase the risk of injury, incorrect diagnosis, or ineffective treatment; and (4) any changes to the device would not be likely to result in a change in the device's classification. FDA may also consider that, even when exempting devices, these devices would still be subject to the limitations on exemptions.

    III. Comments on the Proposed Exemption and FDA Response

    In the Federal Register of November 7, 2017 (82 FR 51633), FDA published a notice (“November 2017 notice”) announcing its intent to exempt, upon its own initiative, certain class II devices listed in table 1 from 510(k) requirements, subject to certain limitations, and provided opportunity for interested persons to submit comments by January 8, 2018. After reviewing comments received, FDA is now providing its final determination on exempting the certain class II devices listed in table 1 from 510(k) requirements, subject to certain limitations as identified in this order. FDA is also amending the codified language for the classification regulations for the certain class II devices listed in table 1 to reflect this final determination. Persons with pending 510(k) submissions for devices that are now exempt from 510(k), subject to the limitations, should withdraw their submissions.

    In response to the November 2017 notice announcing FDA's intent to exempt those device types from 510(k) requirements, FDA received a submission from one commenter—a professional organization—opposing an exemption from 510(k) for the genetic health risk assessment test device type.

    To make it easier to identify comments and our responses, the word “Comment” appears in parentheses before the comment's description, and the word “Response” in parentheses precedes the response. Specific issues raised by the comment and the Agency's response follows.

    (Comment) The commenter recommended FDA not exempt one-time FDA reviewed genetic health risk assessment system devices from the 510(k) requirement because there would be insufficient oversight to ensure the analytical and clinical validity of these tests, consumers would be misled regarding which tests FDA has affirmed are scientifically valid, and concerns that, if one-time FDA reviewed genetic health risk assessment system devices were exempted, consumers would not be assured of being adequately informed about test quality. The commenter believed it is not possible to assess the analytical and clinical validity of all genetic health risks a company might offer by conducting a one-time review of its `assessment system', as proposed by FDA. Such oversight, it is argued, will only allow FDA to assess the analytical and clinical validity, and `mitigate the risks of false negatives and positives', for tests initially proposed by the company during this one-time review. The commenter believed that it does not appear that there will be assessment of the analytical or clinical validity of subsequent tests offered, nor any assessment of the risks to the consumer of an incorrect result. This commenter believed that FDA's proposal to exempt one-time FDA reviewed genetic health risk assessment system devices will not prevent scientifically invalid tests from being marketed to the public and lacks a comprehensive assessment. Further, the commenter argued that, after undergoing the one-time FDA review for genetic health risk assessment tests, companies would be able to market subsequent tests to the public as part of the same system and declare that the tests meet FDA's standards. Such tests would not be held to any specific standards of analytical or clinical validity. The public would likely assume (and purveyors would likely advertise) that FDA had reviewed and approved such tests as valid even though they had not been reviewed by the Agency. The commenter also argued that there is a vast range of quality (i.e., scientific merit) of direct-to-consumer (DTC) genetic health risk assessment tests on the market. The commenter argued that the market's current mixing of entertainment tests, which make claims unsubstantiated by the scientific literature, with those tests which have a clinical utility, are clinically valid, and can be supported by current scientific literature, is particularly confusing for the average consumer.

    (Response) We agree that the concerns raised above are important. These concerns were considered during our review and development of the initial classification regulation for genetic health risk assessment system devices and in our consideration of whether to exempt one-time FDA reviewed genetic health risk assessment system devices from the 510(k) requirement. We believe these concerns have been addressed and accounted for in our determination that the 510(k) requirement is not necessary to provide a reasonable assurance of safety and effectiveness for these devices. We outline our rationale below.

    Consumer understanding of genetic risk is clearly an important issue that was considered extensively by FDA in the context of genetic health risk assessment system devices. This issue was balanced with the increasing desire from the public to learn more about one's own genetic makeup and how it affects genetic risk for health conditions. To ensure that the tests and test reports are presented to the lay consumer in a manner that is understandable, we employed several requirements. Consumer understanding of the tests and associated test reports is assured by user comprehension study requirements, specific labeling requirements for these over-the-counter (OTC) tests, and general requirements for devices. The special labeling requirements for these devices under § 866.5950(b) (21 CFR 866.5950(b)) include providing information on the manufacturer's website about frequently asked questions, available professional guidelines, and how to obtain access to a genetic counselor.

    A. User Comprehension Study

    A user comprehension study is required under § 866.5950(b)(3)(iii)(M). The required user comprehension study must assess comprehension of the test process and results by potential users of the test with pre- and post-test user comprehension studies. This study must be conducted on a statistically sufficient sample size of non-trained individuals who represent the demographics of the United States as well as a diverse range of age and educational levels. The study must include directly evaluating a representative sample of the material being presented to the user during use of the test. The test that is given to the participants must be informed by a physician and/or genetic counselor that identifies the appropriate general and variant-specific concepts contained within the material being tested in the user comprehension study to ensure that all relevant concepts are incorporated in the study as well as having included the definition of the target condition being tested and related symptoms, explain the intended use and limitations of the test, explain the relevant ethnicities in regard to the variant tested, explain genetic health risks and relevance to the user's ethnicity, and assess participants' ability to understand the following comprehension concepts: The test's limitations, purpose, appropriate action, test results, and other factors that may have an impact on the test results. The outcome of this study has to meet rigorous standards, including meeting predefined primary endpoint criteria, including a minimum of a 90 percent or greater overall comprehension rate (i.e., selection of the correct answer) for each comprehension concept. In addition, the testing must follow a format where users have limited time to complete the studies (such as an onsite survey format and a one-time visit with a cap on the maximum amount of time that a participant has to complete the tests). From our experience with user comprehension studies, the Agency believes that meeting or exceeding these user comprehension study requirements ensures that the materials presented to the user are adequate for OTC use. The information the test provider must provide on its website includes a summary table of comprehension rates regarding comprehension concepts (e.g., purpose of test, test results, test limitations, ethnicity relevance for the test results, etc.) for each study report.

    B. Frequently Asked Questions

    The manufacturer's website must have a frequently asked questions section in the summary and technical information sections under § 866.5950(b)(3)(ii)(C)(3) and (b)(3)(iii)(L)(3). For the frequently asked questions sections, information must be included that is specific for each variant/disease pair that is reported and scientifically valid and supported by corresponding publications. Further information must be included that explains the health condition/disease being tested, the purpose of the test, the information the test will and will not provide, the relevance of race and ethnicity on the test results, information about the population to which the variants in the test is most applicable, the meaning of the result(s), other risks factors that contribute to disease, appropriate followup procedures, how the results of the test may affect the user's family, including children, and links to resources that provide additional information.

    C. Resources

    Likely the test labeling information provided by the test manufacturer will not be the sole source of information that the consumer is seeking or even requires. For this reason, there are requirements under § 866.5950(b)(3)(ii)(C)(2) and (b)(3)(iii)(L)(2) that the manufacturer of the test provide a pre-purchase page in the summary and technical information sections that includes information regarding professional guidelines for testing specific genes and variants. Similar information must be provided in the frequently asked questions section found in the summary and technical information sections on the manufacturer's website, under § 866.5950(b)(3)(ii)(C)(3) and (b)(3)(iii)(L)(3). These frequently asked questions sections must include a statement about the current professional guidelines for testing these specific gene(s) and variant(s) and, if guidelines do not exist for certain genes or variants being tested for, then this information must be provided as well. Further, to facilitate more personalized support, under § 866.5950(b)(1)(i)(E), test manufacturers are required to provide information in the § 809.10 (21 CFR 809.10) compliant labeling and any pre-purchase page and test report generated regarding how a user obtains access to a genetic counselor, board-certified clinical molecular geneticist, or equivalent healthcare professional regarding the results of a user's test.

    D. Genetic Health Risk Assessment System Tests

    The tests that fall under the genetic health risk assessment system regulation are identified in the regulation in § 866.5950(a) as a qualitative in vitro molecular diagnostic system used for detecting variants in genomic deoxyribonucleic acid (DNA) isolated from human specimens that will provide information to users about their genetic risk of developing a disease to inform lifestyle choices and/or conversations with a healthcare professional. This assessment system is for OTC use. This device does not determine the person's overall risk of developing a disease.

    The limitations that are most important for lay users to know about the intended use of these tests that fall under this device type are conveyed via the limiting statements required, under § 866.5950(b)(1)(i), to be provided on the § 809.10 compliant labeling and any pre-purchase page and test report generated. One of these limiting statements must explain that this test is not intended to diagnose a disease, tell you anything about your current state of health, or be used to make medical decisions, including whether or not you should take a medication or how much of a medication you should take. The limitations that are most important for healthcare professionals to know about the intended use of tests that fall under this device type are, under § 866.5950(b)(1)(ii), required to be provided in the § 809.10 labeling and any test report generated. These limitations include that the test is intended to provide users with their genetic information to inform lifestyle decisions and conversations with their doctor or other healthcare professional and that any diagnostic or treatment decisions should be based on testing and/or other information that a healthcare professional determines to be appropriate for a patient.

    E. Rigorous Validation Requirements

    FDA believes the analytical validation requirements are sufficiently detailed in the special controls under § 866.5950(b)(3)(iii)(J) that test providers will have no difficulty in appropriately following these requirements. A high accuracy requirement is necessary for tests that are provided under this regulation and accuracy point estimates for all variants is required to be 99 percent or higher under § 866.5950(b)(3)(iii)(J)(1)(vii) or else they cannot be claimed or reported. Once FDA has reviewed one test that demonstrates this level of accuracy, then the test provider has demonstrated an ability to meet the accuracy requirements for additional similar tests offered.

    F. Four Important Limitations on the Scope of the Classification Regulation

    FDA agrees that there are four important express limitations to the types of tests that can be offered under this classification regulation even when these special controls are met. Tests cannot be offered under this classification regulation that are indicated for prenatal testing; predisposition for cancer where the result of the test may lead to prophylactic screening, confirmatory procedures, or treatments that may incur morbidity or mortality to the patient; assessing the presence of genetic variants that impact the metabolism, exposure, response, risk of adverse events, dosing, or mechanisms of prescription or OTC medications; or assessing the presence of deterministic autosomal dominant variants.

    G. False or Misleading Claims

    It is a prohibited act for devices to have labeling that is false or misleading in any particular manner, and thus FDA would deem such device to be misbranded under section 502(a) of the FD&C Act (21 U.S.C. 352(a)). This prohibition would include prohibiting the manufacturer of a genetic health risk assessment test device from falsely or misleadingly representing a test as having been part of an original FDA cleared device when it was added subsequently to FDA clearance. This prohibition would also include falsely or misleadingly representing the analytical or clinical validity of one of its tests. In addition, under section 502(c) of the FD&C Act, it is a prohibited act and thus FDA would deem a device to be misbranded if any information required on the labeling of a device by FDA by or under the FD&C Act is not placed prominently thereon with such conspicuousness and in such terms, as to render it likely to be read and understood by the ordinary individual under customary conditions of purchase and use. Thus, a genetic health risk assessment test device for which a manufacturer later modified the formerly compliant labeling to make the labeling such that the labeling was not likely to be read and understood by the ordinary individual under customary conditions of purchase and use would be a misbranded device.

    H. Conclusion

    In summary, all tests that are marketed under this classification regulation must meet the general controls and the special controls that are specified in the regulation. Ability of a manufacturer to meet these special controls is demonstrated during the one-time review. Even after the one-time review, the general controls and special controls must continue to be met, including for all tests added or modified after the one-time review of a manufacturer's device.

    IV. Limitations on Exemptions

    FDA has determined that 510(k) is not necessary to assure the safety and effectiveness of the class II devices listed in table 1. This determination is based, in part, on the Agency's knowledge of the device, including past experience and relevant reports or studies on device performance (as appropriate), the applicability of general and special controls, and the Agency's ability to limit an exemption.

    A. General Limitations of Exemptions

    FDA's exemption from 510(k) for class II devices listed in table 1 applies only to those devices that have existing or reasonably foreseeable characteristics of commercially distributed devices within that generic type, or, in the case of in vitro diagnostic devices, for which a misdiagnosis, as a result of using the device, would not be associated with high morbidity or mortality. A manufacturer of a listed device is still required to submit a 510(k) to FDA before introducing a device or delivering it for introduction into commercial distribution when the device meets any of the conditions described in §§ 862.9 to 892.9 (21 CFR 862.9 to 21 CFR 892.9).

    B. Partial Limitations of Exemptions

    In addition to the general limitations, FDA may also partially limit an exemption from 510(k) requirements to specific devices within a listed device type when initial Agency assessment determines that the factors laid out in the Class II 510(k) Exemption Guidance do not weigh in favor of exemption for all devices in a particular group. In such situations where a partial exemption limitation has been identified, FDA has determined that premarket notification is necessary to provide a reasonable assurance of safety and effectiveness for these devices. In table 1, for example, FDA is listing the exemption of the genetic health risk assessment system, but limits the exemption to such devices that have received a first-time FDA marketing authorization (e.g., 510(k) clearance) for the genetic health risk assessment system (a “one-time FDA reviewed genetic health risk assessment system”). FDA has determined that a one-time FDA review (e.g., premarket notification) of a genetic health risk assessment system is necessary to provide reasonable assurance of the safety and effectiveness of the device. FDA has determined that a one-time FDA review of a genetic health risk assessment system is necessary to mitigate the risk of false negatives and false positives by ensuring that certain information be submitted to FDA to allow the Agency to assess the safety and effectiveness of the devices as well as to ensure the devices perform to acceptable standards.

    Exemption from the requirement of 510(k) does not exempt a device from other applicable regulatory controls under the FD&C Act, including the applicable general and special controls. This exemption from 510(k), subject to the limitations described above, is immediately in effect for the device types identified in table 1. This exemption will decrease regulatory burdens on the medical device industry and will eliminate private costs and expenditures required to comply with Federal regulations.

    V. List of Class II Devices

    FDA is identifying the following list of class II devices that will no longer require premarket notification under section 510(k) of the FD&C Act, subject to the general limitations to the exemptions found in §§ 862.9 to 892.9 and any partial exemption limitations identified in table 1:

    Table 1—Class II Devices 21 CFR section Device type Product code Partial exemption limitation (if applicable) 862.1840 Total 25-hydroxyvitamin D Mass Spectrometry Test System PSL 866.5950 Genetic Health Risk Assessment System PTA Exemption is limited to a genetic health risk assessment system that has received a first-time FDA marketing authorization (e.g., 510(k) clearance) for the genetic health risk assessment system (a “one-time FDA reviewed genetic health risk assessment system”). 876.1500 Endoscope Disinfectant Basin PUP 880.6710 Purifier, Water, Ultraviolet, Medical KMG 884.5960 Vibrator for Therapeutic Use, Genital KXQ

    FDA is revising the name of product code PUP to further clarify the device type that this product code is intended to represent. The device type was previously “Endoscope Maintenance System.” To more accurately reflect the devices which fall within this device type (product code PUP), the device type has been renamed “Endoscope Disinfectant Basin.” Specifically, these devices are described as “Wall-mounted tube(s) for holding disinfectant solution and endoscope insertion tubes and accessories.” This description has not changed since publication of the November 2017 notice.

    VI. Analysis of Environmental Impact

    The Agency has determined under 21 CFR 25.30(h) that this action is of a type that does not individually or cumulatively have a significant effect on the human environment. Therefore, neither an environmental assessment nor an environmental impact statement is required.

    VII. Paperwork Reduction Act of 1995

    This final order refers to previously approved collections of information found in other FDA regulations and guidance. These collections of information are subject to review by the Office of Management and Budget (OMB) under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520). The collections of information in part 807, subpart E, regarding premarket notification submissions, have been approved under OMB control number 0910-0120; and the collections of information in 21 CFR parts 801 and 809, regarding labeling, have been approved under OMB control number 0910-0485.

    List of Subjects 21 CFR Part 862

    Medical devices.

    21 CFR Part 866

    Biologics, Laboratories, Medical devices.

    21 CFR Parts 876, 880, and 884

    Medical devices.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR parts 862, 866, 876, 880, and 884 are amended as follows:

    PART 862—CLINICAL CHEMISTRY AND CLINICAL TOXICOLOGY DEVICES 1. The authority citation for part 862 continues to read as follows: Authority:

    21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.

    2. In § 862.1840, revise paragraph (b) introductory text to read as follows:
    § 862.1840 Total 25-hydroxyvitamin D mass spectrometry test system.

    (b) Classification. Class II (special controls). The device is exempt from the premarket notification procedures in part 807, subpart E, of this chapter subject to the limitations in § 862.9. The device must comply with the following special controls:

    PART 866—IMMUNOLOGY AND MICROBIOLOGY DEVICES 3. The authority citation for part 866 continues to read as follows: Authority:

    21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.

    4. In § 866.5950, revise paragraph (b) introductory text to read as follows:
    § 866.5950 Genetic health risk assessment system.

    (b) Classification. Class II (special controls). The genetic health risk assessment system device, when it has previously received a first-time FDA marketing authorization (e.g., 510(k) clearance) for the genetic health risk assessment system (a “one-time FDA reviewed genetic health risk assessment system”), is exempt from the premarket notification procedures in part 807, subpart E, of this chapter subject to the limitations in § 866.9. The device must comply with the following special controls:

    PART 876—GASTROENTEROLOGY-UROLOGY DEVICES 5. The authority citation for part 876 continues to read as follows: Authority:

    21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.

    6. In § 876.1500, revise paragraph (b)(1) to read as follows:
    § 876.1500 Endoscope and accessories.

    (b) * * *

    (1) Class II (performance standards). The device, when intended as an endoscope disinfectant basin, which consists solely of a container that holds disinfectant and endoscopes and accessories, is exempt from the premarket notification procedures in part 807, subpart E, of this chapter subject to the limitations in § 876.9.

    PART 880—GENERAL HOSPITAL AND PERSONAL USE DEVICES 7. The authority citation for part 880 continues to read as follows: Authority:

    21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.

    8. In § 880.6710, revise paragraph (b) to read as follows:
    § 880.6710 Medical ultraviolet water purifier.

    (b) Classification. Class II (performance standards). The device is exempt from the premarket notification procedures in part 807, subpart E, of this chapter subject to the limitations in § 880.9.

    PART 884—OBSTETRICAL AND GYNECOLOGICAL DEVICES 9. The authority citation for part 884 continues to read as follows: Authority:

    21 U.S.C. 351, 360, 360c, 360e, 360j, 360l, 371.

    10 In § 884.5960, revise paragraph (b) to read as follows:
    § 884.5960 Genital vibrator for therapeutic use.

    (b) Classification. Class II (performance standards). The device is exempt from the premarket notification procedures in part 807, subpart E, of this chapter subject to the limitations in § 884.9.

    Dated: May 29, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-11879 Filed 6-1-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF VETERANS AFFAIRS 38 CFR Part 17 RIN 2900-AQ15 Case Management Services Grant Program AGENCY:

    Department of Veterans Affairs.

    ACTION:

    Interim final rule.

    SUMMARY:

    The Department of Veterans Affairs (VA) is amending its regulations that govern programs benefitting homeless veterans to implement a new statutory requirement to establish a new grant program that will provide case management services to improve the retention of housing by veterans who were previously homeless and are transitioning to permanent housing and to veterans who are at risk of becoming homeless. The grant program established by this interim final rule will be an essential part of VA's attempts to eliminate homelessness among the veteran population.

    DATES:

    This final rule is effective June 5, 2018. Comments must be received on or before August 6, 2018.

    ADDRESSES:

    Written comments may be submitted through http://www.Regulations.gov; by mail or hand-delivery to: Director, Regulation Policy and Management (00REG), Department of Veterans Affairs, 810 Vermont Ave. NW, Room 1063B, Washington, DC 20420; or by fax to (202) 273-9026. (This is not a toll-free telephone number.) Comments should indicate that they are submitted in response to “RIN 2900-AQ15—Case Management Services Grant Program.” Copies of comments received will be available for public inspection in the Office of Regulation Policy and Management, Room 1063B, between the hours of 8 a.m. and 4:30 p.m., Monday through Friday (except holidays). Please call (202) 461-4902 for an appointment. (This is not a toll-free telephone number.) In addition, during the comment period, comments may be viewed online through the Federal Docket Management System (FDMS) at http://www.Regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Jeffery Quarles, Director, Grant and Per Diem Program, (10NC1HM), VA National Grant and Per Diem Program Office, 10770 N 46th Street, Suite C-200, Tampa, FL 33617, (877) 332-0334. (This is a toll-free number.)

    SUPPLEMENTARY INFORMATION:

    In an effort to reduce homelessness in the veteran population, Congress has required VA to expand its benefits for homeless veterans by establishing a new grant program to provide funds to organizations within communities that will provide case management services to improve the retention of housing by veterans who were previously homeless and are transitioning to permanent housing and to veterans who are at risk of becoming homeless. See Public Law 114-315, sec. 712 (Dec. 16, 2016) (codified at 38 U.S.C. 2013). This interim final rule adds this new case management program to VA's Homeless Providers Grant and Per Diem Program regulations by adding a new subpart G to 38 CFR part 61 to accurately reflect these changes in law. The new case management program will mirror existing homeless grant per diem programs as much as possible for ease of administrating and running the new grant program.

    61.90 Grant for Case Management Services—Program

    Paragraph (a) of § 61.90 states that non-profit organizations and State, local, and tribal governments are eligible to apply for a grant to provide case management services. (For purposes of this program, the term “tribal government” means an entity described in paragraph (2) of the definition of public entity in 38 CFR 61.1.) To ensure that grant funding is used to provide case management services to as many veterans as possible, this same paragraph provides that case management services grant funds under this program “may not be used for veterans who are receiving case management services from permanent supportive housing programs (e.g. Housing and Urban Development-VA Supportive Housing) or rapid re-housing/homeless prevention programs (e.g. Supportive Services for Veterans Families (SSVF)).” Paragraph (b) identifies examples of case management services that grantees can provide using these grant funds. Such services include, but are not limited to, “Making home visits by the case manager to monitor housing stability; Providing or coordinating educational activities related to meal planning, tenant responsibilities, the use of public transportation, community resources, financial management, and the development of natural supports; Making referrals to needed services, such as mental health, substance use disorder, medical, and employment services; and Participating in case conferencing with other service providers who are working with the veteran.” Paragraph (c) sets a 6-month time limit for veterans to receive case management services. However, VA may approve a request to extend services beyond the 6-month period if an organization submits a request to VA in writing and VA approves it before the 6-month time limit expires. Because in most circumstances case management services are provided to veterans after they have been in receipt of benefits under the Grant and Per Diem Program, VA believes that 6 months would, in most cases, be sufficient time for a veteran to have the necessary tools in place to retain permanent housing.

    61.92 Grant for Case Management Services—Application and Rating Criteria

    For ease of administration and internal consistency between grant programs benefiting homeless veterans, VA will, to the extent applicable and appropriate, adopt standards for the new case management services grant program from its existing capital grants program. VA has successfully used the application package requirements and rating criteria for the capital grants program found in in §§ 61.12 and 61.13 for other grant programs. See §§ 61.32 and 61.41, We, therefore, adopt these requirements and rating criteria as relevant and slightly modified to meet the needs of the case management services grant program, expecting their use will render equally successful results here. Specifically, an applicant must submit an application package for case management services grants, which must:

    • Be on the correct application form.

    • Be completed in all parts, including all information requested in the Notice of Fund Availability (NOFA).

    • Include a signed Application for Federal Assistance (SF 424) that contains the Employer Identification Number or Taxpayer Identification Number (EIN/TIN) that corresponds to the applicant's Internal Revenue Service (IRS) 501(c)(3) or (19) determination letter. Applicants that apply under a group EIN/TIN must be identified by the parent EIN/TIN as a member or sub-unit of the parent EIN/TIN and provide supporting documentation.

    • Be received before the deadline specified by the NOFA.

    In addition, the applicant must be an eligible entity at the time of application; the activities for which funding is requested must be eligible for funding under this subpart; the applicant must submit an application and agree to comply with the requirements of this subpart and demonstrate the capacity to do so; the applicant must not have any outstanding obligation to VA that is in arrears, or have an overdue or unsatisfactory response to an audit; and, the applicant must not have been notified by VA as being in default. If the applicant does not meet any one of these requirements, the application will be rejected without further consideration.

    As to the rating criteria, the criteria in § 61.13 have been adopted and modified for purposes of this more narrow program, as listed in full in the regulatory text. So, an applicant under this program must receive at least 750 points out of a possible 1000 in order to be considered eligible to receive a grant for case management services. Generally speaking, VA will grant points as follows: Up to 400 points for project planning; up to 200 points for the applicant's ability to develop and operate a project; up to 150 points for the demonstration of a substantial unmet need for supportive services for formerly homeless veterans; up to 50 points based on the review panel's confidence that the applicant has effectively demonstrated that the grant can be completed as described in the application; and up to 200 points for demonstrating the applicant has coordinated with Federal, state, local, private and other entities serving homeless persons or persons at risk for homelessness in the planning and operation of the case management services project.

    61.94 Grant for Case Management Services—Selection of Grantees

    Section 61.94 describes the selection process for grants available under this subpart and sets out the priorities among applicants as established in the law. Public Law 114-315 mandates that VA give extra priority to organizations that voluntarily stop receiving amounts provided by the Secretary under sections 2012 and 2061 of title 38 and converts a facility that the organization used to provide transitional housing services into a facility that the organization uses to provide permanent housing that meets housing quality standards established under section 8(o)(8)(B) of the United States Housing Act of 1937 (42 U.S.C. 1437f(o)(8)(B)). This extra priority is provided for in paragraph (a)(1) of § 61.94. We would add that in order to obtain this extra priority, organizations must provide documentation showing that the permanent housing meets these housing quality standards. VA will thus award case management services grants first to applicants whose applications that meet the criteria of § 61.94(a)(1). The Public Law also states that VA shall give priority to organizations that demonstrate a capability to provide case management services . . . particularly organizations that are successfully providing or have successfully provided transitional housing services using amounts provided by the Secretary under sections 2012 and 2061 of title 38. We are stating this priority in paragraph (a)(2). So, once all applications described in the “extra priority” paragraph are awarded a grant, VA will award grants to those who qualify for priority under paragraph (a)(2). Paragraph (a)(3) provides that VA may also consider applications from other organizations without a Grant and Per Diem grant that seek to provide time limited case management services “to formerly homeless veterans who have exited VA transitional housing or other VA homeless residential treatment services to permanent housing.” In order to permit VA to rank applications for these grants within each priority, paragraph (b) will state that within each of the three priorities in paragraph (a), an application with more points using the rating criteria in § 61.92(b) will be given a higher priority for a grant award. Ranking applications within each priority would be needed if VA only has enough funds to award grants to some but not all applicants in one of the above priorities.

    61.96 Grant for Case Management Services—Awards

    Section 61.96 describes the award and funding process for grants available under this subpart and identifies permissible uses for the grant funds. Paragraph (a) states that funding for grants for case management services will be offered from the Grant and Per Diem Program budget and will be annually limited by VA's funding availability and commitments to existing programs. VA's aim is to alert potential applicants that yearly funding for the program may vary, which will be stated in the NOFA. Because the available funding for the grants for case management services is limited, paragraph (b) identifies the limited authorized uses of grant funds for costs associated with administrating these grants. Specifically, case management services grant funds may be used for the following administrative purposes: Providing funding for case management staff; providing transportation for the case manager; providing cell phones and computers to facilitate home visits and other case management activities associated with the grant; and, providing office furniture for the use of the case management staff. For all grants awarded under this section, VA will incorporate into the grant agreements the agreement and funding actions described in § 61.61, which currently apply to the Grant and Per Diem Program. This will help align operations for this new grant program with current Grant and Per Diem Program practices. Paragraph (c) therefore states that VA will execute an agreement and make payments to the grantee in accordance with the award and funding actions applicable to the Grant and Per Diem Program as described in § 61.61.

    61.98 Grant for Case Management Services—Requirements and Oversight

    Section 61.98 provides that VA will oversee grants to make certain that grantees operate their programs in accordance with the requirements of §§ 61.90 through 61.98. VA's oversight responsibilities include reviewing and responding to requests from grantees for extensions to the otherwise applicable maximum 6-month time limit. Further, this section states that grantees must also comply with the requirements of 38 CFR 61.65, 61.67(d), 61.67(e), and 61.80(c), (g), (h), (i), (n), (o), (p), and (q). Section 61.80 sets forth requirements for supportive housing and service centers for which assistance is provided under part 61. The assistance provided with case management services grants will not be for the construction, acquisition, renovation, or operation of supportive housing or service centers. We will thus not require grantees under this program to comply with those requirements in § 61.80 pertaining to housing and service centers. For example, VA will not require the housing in which the veterans who obtain services under this program reside to comply with the Life Safety code and state and local housing codes, licensing requirements, fire and safety requirements, or any other State of local requirements as would be otherwise imposed under § 61.80(a). We will also not require that supportive housing in which veterans who receive assistance under this program reside comply with the structural, space, and operational requirements in § 61.80(b) through (f), (m), and (r). We will not require compliance under this program with the requirements for service centers in § 61.80(k) and (l). Finally, we have addressed the requirements in § 61.80(j) by providing that VA may disapprove use of services provided by the grantee if VA determines that such services are of unacceptable quality in which case grant funds may not be used to pay for such services. VA lacks the authority to manage private or public entities and can only select grantees and oversee compliance with the terms of grant agreements consistent with §§ 61.90 through 61.98. VA similarly inspects and provides oversight to other Grant and Per Diem programs as a means to verify that grant funds and services are properly delivered by the grantee. As all transitional housing grants have some form of case management, we will apply the oversight requirements of 38 CFR part 61, subpart F, (in addition to those specifically listed above in § 61.80) as applicable, to grantees in the case management services program.

    Administrative Procedure Act

    In accordance with U.S.C. 553(b)(B) and (d)(3), the Secretary of Veterans Affairs has concluded that there is good cause to publish this rule without prior opportunity for public comment and to publish this rule with an immediate effective date. This final rule implements the mandates of section 712 of Public Law 114-315. Section 712 mandates that VA have regulations in place to implement this section no later than one year after the date of the enactment of the Public Law, which was December 16, 2017. One of VA's top priorities is the elimination of homelessness among the veteran population. This rule will, in support of this goal, provide veterans with case management services that will assist them in obtaining and maintaining permanent housing. This rule incorporates statutory requirements and complements the already existing Grant and Per Diem Program. The additional time associated with a public comment period would disadvantage and cause hardship to veterans who are in immediate or near-future need of the case management services available under this program (to avoid lapsing to a state of homelessness) and therefore would be contrary to the public interest. The Secretary finds that it is impracticable and contrary to the public interest to delay this rule for the purpose of soliciting advance public comment or to have a delayed effective date. For the above reason, the Secretary issues this rule as an interim final rule with an immediate effective date. VA will consider and address comments that are received within 60 days of the date this interim final rule is published in the Federal Register.

    Effect of Rulemaking

    Title 38 of the Code of Federal Regulations, as revised by this interim final rule, represents VA's implementation of its legal authority on this subject. Other than future amendments to this regulation or governing statutes, no contrary guidance or procedures are authorized. All existing or subsequent VA guidance must be read to conform with this rule if possible or, if not possible, such guidance is superseded by this rule.

    Paperwork Reduction Act

    This interim final rule includes a provision constituting a collection of information under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3521) that requires approval by the Office of Management and Budget (OMB). Accordingly, under 44 U.S.C. 3507(d), VA has submitted a copy of this rulemaking to OMB for review.

    OMB assigns control numbers to collections of information it approves. VA may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. Section 61.92 contains a collection of information under the Paperwork Reduction Act of 1995. If OMB does not approve the collection of information as requested, VA will immediately remove the provision containing a collection of information or take such other action as is directed by OMB.

    Comments on the collection of information contained in this interim final rule should be submitted to the Office of Management and Budget, Attention: Desk Officer for the Department of Veterans Affairs, Office of Information and Regulatory Affairs, Washington, DC 20503, with copies sent by mail or hand delivery to the Director, Regulations Management (00REG), Department of Veterans Affairs, 810 Vermont Avenue NW, Room 1068, Washington, DC 20420; fax to (202) 273-9026; or through www.Regulations.gov. Comments should indicate that they are submitted in response to “RIN 2900-AQ15 Case Management Services Grant Program.”

    OMB is required to make a decision concerning the collections of information contained in this interim final rule between 30 and 60 days after publication of this document in the Federal Register. Therefore, a comment to OMB is best assured of having its full effect if the comment is received within 30 days of publication. This does not affect the 60-day deadline for the public to comment on the interim final rule.

    VA considers comments by the public on proposed collections of information in—

    • Evaluating whether the proposed collections of information are necessary for the proper performance of the functions of VA, including whether the information will have practical utility;

    • Evaluating the accuracy of VA's estimate of the burden of the proposed collections of information, including the validity of the methodology and assumptions used;

    • Enhancing the quality, usefulness, and clarity of the information to be collected; and

    • Minimizing the burden of the collections of information on those who are to respond, including through the use of appropriate automated, electronic, mechanical, or other technological collection techniques or other forms of information technology, e.g., permitting electronic submission of responses.

    The collections of information contained in regulatory section 38 CFR 61.92 are described immediately following this paragraph, under their respective titles.

    Title: Case Management Services Grant Program.

    Summary of collection of information: Paragraph (a) requires that the applicant must meet the application requirements in this paragraph (a) or the application will be rejected and not considered further. Such documentation must be submitted to VA by the deadline established in the Notice of Fund Availability.

    Description of the need for information and use of information: The information is needed to establish eligibility for a case management services grant.

    Description of likely respondents: Non-profit organizations, State and local governments, or Tribal Indian governments who seek to receive a case management services grant.

    Estimated number of respondents per month/year: 100.

    Estimated frequency of responses per month/year: 1 time per year.

    Estimated average burden per response: 35 minutes.

    Estimated total annual reporting and recordkeeping burden: 58 hours.

    Regulatory Flexibility Act

    The Secretary hereby certifies that this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. This final rule will only impact those entities that choose to participate and apply for a grant. Small entity applicants will not be affected to a greater extent than large entity applicants. Small entities must elect to participate, and it is considered a benefit to those who choose to apply. To the extent this final rule will have any impact on small entities, it will not have an impact on a substantial number of small entities. VA estimates that possibly up to 150 organizations will submit grant applications under this program and so be affected by this rule. The Secretary therefore certifies that the adoption of this final rule will not have a significant economic impact on a substantial number of small entities as they are defined in the Regulatory Flexibility Act, 5 U.S.C. 601-612. Therefore, pursuant to 5 U.S.C. 605(b), this rulemaking is exempt from the initial and final regulatory flexibility analysis requirements of 5 U.S.C. 603 and 604.

    Executive Orders 12866, 13563 and 13771

    Executive Orders 12866 and 13563 direct agencies to assess the costs and benefits of available regulatory alternatives and, when regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, and other advantages; distributive impacts; and equity). Executive Order 13563 (Improving Regulation and Regulatory Review) emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. Executive Order 12866 (Regulatory Planning and Review) defines a “significant regulatory action,” requiring review by OMB, unless OMB waives such review, as any regulatory action that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order. The economic, interagency, budgetary, legal, and policy implications of this regulatory action have been examined, and it has been determined not to be a significant regulatory action under Executive Order 12866. VA's impact analysis can be found as a supporting document at http://www.regulations.gov, usually within 48 hours after the rulemaking document is published. Additionally, a copy of the rulemaking and its impact analysis are available on VA's website at http://www.va.gov/orpm/, by following the link for “VA Regulations Published From FY 2004 Through Fiscal Year to Date.” This rule is not an E.O. 13771 regulatory action because this rule is not significant under E.O. 12866.

    Unfunded Mandates

    The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that agencies prepare an assessment of anticipated costs and benefits before issuing any rule that may result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. This interim final rule will have no such effect on State, local, and tribal governments, or the private sector.

    Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance program number and title for this interim final rule are as follows: 64.024 VA Homeless Providers Grant and Per Diem Program.

    Signing Authority

    The Secretary of Veterans Affairs, or designee, approved this document and authorized the undersigned to sign and submit the document to the Office of the Federal Register for publication electronically as an official document of the Department of Veterans Affairs. Jacquelyn Hayes-Byrd, Acting Chief of Staff, Department of Veterans Affairs, approved this document on May 31, 2018, for publication.

    Dated: May 31, 2018. Consuela Benjamin, Regulation Development Coordinator, Office of Regulation Policy & Management, Office of the Secretary, Department of Veterans Affairs. List of Subjects in 38 CFR Part 61

    Administrative practice and procedure, Alcohol abuse, Alcoholism, Day care, Dental health, Drug abuse, Government contracts, Grant programs—health, Grant programs-veterans, Health care, Health facilities, Health professions, Health records, Homeless, Mental health programs, Reporting and recordkeeping requirements, Travel and transportation expenses, Veterans.

    For the reasons set forth in the preamble, we are amending 38 CFR part 61 as follows:

    PART 61—VA HOMELESS PROVIDERS GRANT AND PER DIEM PROGRAM 1. The authority citation for part 61 is revised to read as follows: Authority:

    38 U.S.C. 501, 2001, 2002, 2011, 2012, 2013, 2061, 2064.

    2. Add subpart G to read as follows: Subpart G—Case Management Services Grant Program Sec. 61.90 Grant for case management services—program. 61.92 Grant for case management services—application and rating criteria. 61.94 Grant for case management services—selection of grantees. 61.96 Grant for case management services—awards. 61.98 Grant for case management services—requirements and oversight.
    § 61.90 Grant for case management services—program.

    (a) General. VA may award grants for case management services to non-profit organizations and State, local and tribal governments for the provision of case management services to improve the retention of housing by veterans who were previously homeless and are transitioning to permanent housing and to veterans who are at risk of becoming homeless. (For purposes of this program, the term “tribal government” means an entity described in paragraph (2) of the definition of “public entity” in 38 CFR 61.1.) The goals of the grant program are: The maintenance of permanent housing by a veteran following discharge from homeless residential services, a reduction in recidivism, and an increase in exits to permanent housing. These grant funds may not be used for veterans who are receiving case management services from permanent supportive housing programs (e.g. Housing and Urban Development—VA Supportive Housing) or rapid re-housing/homeless prevention programs (e.g. Supportive Services for Veterans Families (SSVF)).

    (b) Case management services. Case management services include, but are not limited to, the following:

    (1) Making home visits by the case manager to monitor housing stability;

    (2) Providing or coordinating educational activities related to meal planning, tenant responsibilities, the use of public transportation, community resources, financial management, and the development of natural supports;

    (3) Making referrals to needed services, such as mental health, substance use disorder, medical, and employment services; and

    (4) Participating in case conferencing with other service providers who are working with the veteran.

    (c) Time limit. Case management services may be provided for a particular veteran for up to 6 months, unless VA receives and approves a written request for additional time before the 6-month time limit expires.

    § 61.92 Grant for case management services—application and rating criteria.

    (a) General requirements. When funds are available for grants for case management services authorized under §§ 61.90 through 61.98, VA will publish a Notice of Fund Availability (NOFA) in the Federal Register in accordance with § 61.3. The applicant must meet all of the following requirements or the application will be rejected without further consideration:

    (1) The applicant must submit an application and comply with the application requirements identified in the NOFA, e.g., complete all parts of the correct form and include all information requested in the NOFA.

    (2) Include a signed Application for Federal Assistance (SF 424) that contains the applicant's Employer Identification Number or Taxpayer Identification Number (EIN/TIN). All non-profit applicants must provide their Internal Revenue Service 501(c)(3) or (19) determination letter, which includes the EIN/TIN contained in the application. Applicants that apply under a group EIN/TIN must be identified by the parent EIN/TIN as a member or sub-unit of the parent EIN/TIN and provide supporting documentation.

    (3) The application must be received before the deadline established in the NOFA.

    (4) The applicant must be a nonprofit organization or a State, local, or tribal government.

    (5) The activities for which assistance is requested must be eligible for funding under §§ 61.90-61.98.

    (6) The applicant must agree to comply with the requirements of §§ 61.90 through 61.98 and demonstrate the capacity to do so.

    (7) The applicant must not have an outstanding obligation to VA that is in arrears, or have an overdue or unsatisfactory response to an audit.

    (8) The applicant must not have been notified by VA as being in default.

    (b) Rating criteria. To be eligible for a case management grant, an applicant must receive at least 750 points (out of a possible 1000) and must receive points under paragraphs (c) through (f) of this section.

    (c) Project plan. VA will award up to 400 points based on the demonstration and quality of the following:

    (1) The process used for deciding which veterans are referred and accepted for case management services.

    (2) How, when, and by whom the progress of participants who are receiving case management services toward meeting their individual goals will be monitored, evaluated, and documented. This monitoring includes, but is not limited to, a description of how home visits would be provided and the general purpose and frequency anticipated of the home visits.

    (3) How the participant's system of natural supports would be assessed and developed.

    (4) How crisis intervention services will be coordinated, as needed, to promote the maintenance of permanent housing, access to medical care, mental health or substance use disorder treatment.

    (5) How the applicant will provide education to case management participants, as needed, in the areas of tenant rights and responsibilities, rental/lease agreements, landlords rights and responsibilities, and budgeting.

    (6) How case management services will be phased out.

    (d) Ability of the applicant to develop and operate a project. VA will award up to 200 points based on the extent to which the applicant demonstrates the necessary staff and organizational experience to develop and operate the proposed project, based on the following:

    (1) Staffing plan for the project that reflects the appropriate professional staff, both administrative and clinical;

    (2) Experience of staff, or if staff is not yet hired, position descriptions and expectations of time to hire;

    (3) Applicant's previous experience assessing and providing for the housing needs of formerly homeless veterans;

    (4) Applicant's previous experience in providing case management services to assist persons in maintaining permanent housing;

    (5) Applicant's previous experience in coordinating crisis intervention services, including medical, mental health, and substance use disorder services.

    (6) Applicant's experience in working with local landlords as part of providing housing support services.

    (7) Historical documentation of past performance both with VA and non-VA projects, including those from other Federal, state and local agencies, and audits by private or public entities.

    (e) Need. VA will award up to 150 points based on the extent to which the applicant demonstrates:

    (1) Substantial unmet need for formerly homeless veterans who have exited homeless transitional housing or residential services and are in need of time limited case management to maintain permanent housing. Demonstration of need must be based on reliable data from reports or other data gathering systems that directly support claims made; and

    (2) An understanding of the formerly homeless population to be served and its supportive service needs.

    (f) Completion confidence. VA will award up to 50 points based on the review panel's confidence that the applicant has effectively demonstrated the case management services project will be completed as described in the application. VA may use historical program documents demonstrating the applicant's past performance, including those from other Federal, state and local agencies, as well as audits by private or public entities in determining confidence scores.

    (g) Coordination with other programs. VA will award up to 200 points based on the extent to which the applicant demonstrates that it has coordinated with Federal, state, local, private, and other entities serving homeless persons or persons at risk for homelessness in the planning and operation of the case management services project. Such entities include, but are not limited to, shelters, transitional housing, Public Housing Authorities, health care or social service providers, providers funded through Federal initiatives, local planning coalitions or provider associations, or other program providers relevant to the needs of formerly homeless veterans in the local community. Applicants are required to demonstrate that they have coordinated with the VA medical facility of jurisdiction or VA regional office of jurisdiction in their area. VA will award up to 50 points of the 200 points based on the extent to which commitments to provide supportive services are documented at the time of application. Up to 150 points of the 200 points will be given to the extent applicants demonstrate that:

    (1) They are part of an ongoing community-wide planning process within the framework described in this section, which is designed to share information on available resources and reduce duplication among programs that serve homeless veterans (e.g. Continuum of Care);

    (2) They have consulted directly with the closest VA medical facility and other providers within the framework described in this section regarding coordination of services for project participants; and

    (3) They have coordinated with the closest VA medical facility their plan to assure access to health care, case management, and other care services.

    (Approved by the Office of Management and Budget under control number 2900-XXXX.)
    § 61.94 Grant for case management services—selection of grantees.

    (a) Award priority. Grants for case management services will be awarded in order of priority as follows:

    (1) VA will give extra priority to grants for case management services to applications from operational Grant and Per Diem funded organizations that have given up per diem or special need funding and converted their transitional housing to permanent housing. In order to obtain this extra priority, organizations must provide documentation showing that their permanent housing meets the quality housing standards established under section 8(o)(8)(B) of the United States Housing Act of 1937 (42 U.S.C. 1437f(o)(8)(B)).

    (2) VA will give priority to applications from organizations that demonstrate a capability to provide case management services, particularly organizations that are successfully providing or have successfully provided transitional housing services using grants provided by VA under 38 U.S.C. 2012 and 2061.

    (3) Applications from other organizations without a Grant and Per Diem grant that seek to provide time limited case management to formerly homeless veterans who have exited VA transitional housing or other VA homeless residential treatment services to permanent housing.

    (b) Higher award priority. Within each of the three priorities in paragraph (a) of this section, an application with more points using the rating criteria in § 61.92(b) will be given a higher priority for a grant award.

    § 61.96 Grant for case management services—awards.

    (a) Funding. Grants for case management services will be offered from the current Grant and Per Diem Program budget and will be limited annually by VA's funding availability and commitments to existing programs.

    (b) Use of grant funds for administrative costs. Grant funds may be used for the following administrative purposes

    (1) Case management staff;

    (2) Transportation for the case manager;

    (3) Cell phones and computers to facilitate home visits and other case management activities associated with the grant; and

    (4) Office furniture for the use of the case management staff.

    (c) Awards. VA will execute an agreement and make payments to the grantee in accordance with the award and funding actions applicable to the Grant and Per Diem Program as described in § 61.61.

    § 61.98 Grant for case management services—requirements and oversight.

    VA will oversee grants for case management services to ensure that each grantee operates its program in accordance with §§ 61.90 through 61.98. VA's oversight responsibilities include reviewing and responding to requests from grantees for extensions to the otherwise applicable maximum 6-month time limit. Grantees must also comply with the requirements of 38 CFR 61.65; 61.67(d) and 61.67(e); and 61.80(c), (g), (h), (i), (n), (o), (p), and (q). VA may disapprove of case management services provided by the grantee if VA determines that they are of unacceptable quality in which case grant funds may not be used to pay for them.

    [FR Doc. 2018-12048 Filed 6-4-18; 8:45 am] BILLING CODE 8320-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R06-OAR-2015-0843; FRL-9978-48—Region 6] Approval and Promulgation of Implementation Plans; Texas; Infrastructure and Interstate Transport for the 2012 Fine Particulate Matter Ambient Air Quality Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    Pursuant to the Federal Clean Air Act (CAA or the Act), the Environmental Protection Agency (EPA) is approving elements of the Texas Infrastructure State Implementation Plan (i-SIP) submittal addressing how the existing SIP provides for implementation, maintenance and enforcement of the 2012 fine particulate matter (PM2.5) National Ambient Air Quality Standard (NAAQS).

    DATES:

    This rule is effective on July 5, 2018.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R06-OAR-2015-0843. All documents in the docket are listed on the http://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at the EPA Region 6, 1445 Ross Avenue, Suite 700, Dallas, Texas 75202-2733.

    FOR FURTHER INFORMATION CONTACT:

    Sherry Fuerst, 214-665-6454, [email protected].

    SUPPLEMENTARY INFORMATION:

    Throughout this document “we,” “us,” and “our” means the EPA.

    I. Background

    The background for this action is discussed in detail in our March 22, 2018 proposal (83 FR 12522). In that document we proposed to approve the December 1, 2015 i-SIP submittal from Texas Commission on Environmental Quality (TCEQ) pertaining to the implementation, maintenance and enforcement of the 2012 PM2.5 NAAQS in Texas and three of the four of the interstate transport requirements.

    We received two comments in support of our proposal, one from the TCEQ and one that was anonymously submitted. We also received seventeen comments that are not relevant to the action we proposed. All comments can be found in the docket for this action.

    II. Response to Comments

    Comment: TCEQ commented that while they are in support of our proposed approval that Texas meets its infrastructure and transport obligation for the 2012 PM2.5 NAAQS, they believe that Texas is meeting all four sub-element requirements of Section 110(a)(2)(D)(i). TCEQ noted that EPA did not provide an explanation as to why no action was taken on the interference with visibility provision for CAA Section 110(a)(2)(D)(i)(II).

    Response: We acknowledge TCEQ's support of our proposed action. We note that we did not propose to take any action on the portion of the SIP submittal that was submitted to address the interference with visibility provision found in CAA Section 110(a)(2)(D)(i)(II), therefore the comment related to this provision is outside the scope of this action. EPA believes the visibility transport provision is closely related to the Act's Regional Haze requirements and therefore, intends to address this provision separately in a future action.

    II. Final Action

    We are finalizing this rule as proposed, therefore approving the portions of the December 1, 2015 2012 PM2.5 NAAQS i-SIP submittal pertaining to implementation, maintenance and enforcement including transport except for sub-element four pertaining to interference with visibility protection in other states.

    III. Statutory and Executive Order Reviews

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

    • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011); • Is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempted under Executive Order 12866; • Does not impose an information collection burden under the provisions of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.); • Is certified as not having a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.); • Does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (Public Law 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 rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

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

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 6, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Particulate matter.

    Dated: May 29, 2018. Anne Idsal, Regional Administrator, Region 6.

    40 CFR part 52 is amended as follows:

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart SS—Texas 2. In § 52.2270 the second table titled “EPA-Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP” is amended by adding an entry for “Infrastructure and Interstate Transport for the 2012 PM2.5 NAAQS” at the end to read as follows:
    § 52.2270 Identification of plan

    (e) * * *

    EPA Approved Nonregulatory Provisions and Quasi-Regulatory Measures in the Texas SIP Name of SIP provision Applicable
  • geographic or
  • nonattainment
  • area
  • State
  • submittal/
  • effective
  • date
  • EPA approval date Comments
    *         *         *         *         *         *         * Infrastructure and Interstate Transport for the 2012 PM2.5 NAAQS Statewide 12/01/2015 6/5/2018, [Insert Federal Register citation] Approval for CAA elements 110(a)(2)(A), (B), (C), (D)(i)(I), (D)(i)(II) (portion pertaining to PSD), (D)(ii), (E), (F), (G), (H), (J), (K), (L), and (M). 6/5/2018, [Insert Federal Register citation].
    [FR Doc. 2018-11973 Filed 6-4-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2017-0083; FRL-9978-27—Region 1] Air Plan Approval; New Hampshire; Nonattainment Plan for the Central New Hampshire Sulfur Dioxide Nonattainment Area AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving the State Implementation Plan (SIP) revision that the State of New Hampshire submitted to EPA on January 31, 2017, for attaining the 1-hour sulfur dioxide (SO2) primary national ambient air quality standard (NAAQS) for the Central New Hampshire Nonattainment Area. This plan (herein called a “nonattainment plan”) includes New Hampshire's attainment demonstration and other elements required under the Clean Air Act (CAA). In addition to an attainment demonstration, the nonattainment plan addresses the requirements for meeting reasonable further progress (RFP) toward attainment of the NAAQS, implementation of reasonably available control measures and reasonably available control technology (RACM/RACT), base-year and projection-year emission inventories, enforceable emissions limitations and control measures, and contingency measures. EPA concludes that New Hampshire has appropriately demonstrated that the nonattainment plan provisions provide for attainment of the 2010 1-hour primary SO2 NAAQS in the Central New Hampshire Nonattainment Area by the applicable attainment date and that the nonattainment plan meets the other applicable requirements under the CAA. This action is being taken in accordance with the CAA.

    DATES:

    This rule is effective on July 5, 2018.

    ADDRESSES:

    EPA has established a docket for this action under Docket Identification No. EPA-R01-OAR-2017-0083. All documents in the docket are listed on the www.regulations.gov website. Although listed in the index, some information is not publicly available, i.e., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available at www.regulations.gov or at the U.S. Environmental Protection Agency, EPA New England Regional Office, Office of Ecosystem Protection, Air Permits Toxics and Indoor Programs Unit, 5 Post Office Square—Suite 100, Boston, MA. EPA requests that if at all possible, you contact the contact listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding legal holidays.

    FOR FURTHER INFORMATION CONTACT:

    Leiran Biton, Air Permits, Toxics, and Indoor Programs Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square—Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912, tel. (617) 918-1267, email [email protected].

    SUPPLEMENTARY INFORMATION:

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

    Table of Contents I. Background and Purpose II. Response to Comments III. Final Action IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. Background and Purpose

    On June 22, 2010, EPA promulgated a new 1-hour primary SO2 NAAQS of 75 parts per billion (ppb), which is met at an ambient air quality monitoring site when the 3-year average of the annual 99th percentile of daily maximum 1-hour concentrations does not exceed 75 ppb, as determined in accordance with appendix T of 40 CFR part 50. See 75 FR 35520, codified at 40 CFR 50.17(a) and (b). On August 5, 2013, EPA designated a first set of 29 areas of the country as nonattainment for the 2010 SO2 NAAQS, including the Central New Hampshire Nonattainment Area within the State of New Hampshire. See 78 FR 47191, codified at 40 CFR part 81, subpart C. These “round one” area designations were effective October 4, 2013. Section 191(a) of the CAA directs states to submit SIPs for areas designated as nonattainment for the SO2 NAAQS to EPA within 18 months of the effective date of the designation, i.e., by no later than April 4, 2015 in this case. These SIPs are required to demonstrate that their respective areas will attain the NAAQS as expeditiously as practicable, but no later than 5 years from the effective date of designation, which is October 4, 2018, in accordance with CAA sections 191-192.

    Section 192(a) requires that such plans shall provide for NAAQS attainment as expeditiously as practicable, but no later than 5 years from the effective date of the nonattainment designation. Section 172(c) of part D of the CAA lists the required components of a nonattainment plan submittal. The base year emissions inventory (section 172(c)(3)) is required to show a “comprehensive, accurate, current inventory” of all relevant pollutants in the nonattainment area. The nonattainment plan must identify and quantify any expected emissions from the construction of new sources to account for emissions in the area that might affect reasonable further progress (RFP) toward attainment, or that might interfere with attainment and maintenance of the NAAQS, and it must provide for a nonattainment new source review (NNSR) program (section 172(c)(5)). The attainment demonstration must include a modeling analysis showing that the enforceable emissions limitations and other control measures taken by the state will provide for RFP and expeditious attainment of the NAAQS (section 172(c)(2), (4), (6), and (7)). The nonattainment plan must include an analysis and provide for implementation of the RACM considered, including RACT (section 172(c)(1)). Finally, the nonattainment plan must provide for contingency measures (section 172(c)(9)) to be implemented either in the case that RFP toward attainment is not made, or in the case that the area fails to attain the NAAQS by the attainment date.

    On April 23, 2014, EPA issued a guidance document entitled, “Guidance for 1-Hour SO2 Nonattainment Area SIP Submissions.” This guidance provides recommendations for the development of SO2 nonattainment SIPs to satisfy CAA requirements (see, e.g., sections 172, 191, and 192). An attainment demonstration must also meet the requirements of 40 CFR part 51, subparts F and G, and 40 CFR part 51, appendix W (the Guideline on Air Quality Models; “the Guideline”), and include inventory data, modeling results, and emissions reduction analyses on which the state has based its projected attainment. The guidance also discusses criteria EPA expects to use in assessing whether emission limits with longer averaging times of up to 30 days ensure attainment of the SO2 NAAQS.

    For a number of areas, including the Central New Hampshire Nonattainment Area, EPA published a document on March 18, 2016, that pertinent states had failed to submit the required SO2 nonattainment plan by the submittal deadline. See 81 FR 14736. This finding initiated a deadline under CAA section 179(a) for the potential imposition of new source review and highway funding sanctions, and for EPA to promulgate a federal implementation plan (FIP) under section 110(c) of the CAA. In response to the requirement for SO2 nonattainment plan submittals, New Hampshire submitted a nonattainment plan for the Central New Hampshire Nonattainment Area on January 31, 2017. Pursuant to New Hampshire's January 31, 2017 submittal and EPA's subsequent completeness determination letter dated March 20, 2017, these sanctions under section 179(a) will not be imposed as a result of New Hampshire's having missed the April 4, 2015 submission deadline. Furthermore, with this current action issuing final approval of New Hampshire's SIP submittal, EPA's FIP obligation no longer applies, and no FIP will be imposed as a result of New Hampshire's missing the deadline.

    On November 29, 2017, EPA received a letter from New Hampshire correcting a misstatement in its January 2017 submittal to EPA. The State had earlier intended to modify its January 2017 submittal to EPA in response to a public comment on its draft nonattainment area plan, but inadvertently neglected to make the correction. Specifically, the State enclosed in its January 2017 submittal to EPA all comments and responses to comments relating to its draft nonattainment area plan, and among those was a set of comments submitted by Sierra Club to the State on January 5, 2017. Among other comments, Sierra Club asserted that the draft nonattainment area plan “incorrectly suggests that an attainment demonstration can be made based on monitor readings alone,” counter to EPA's April 2014 guidance, and stated that the plan should be revised to remove this inconsistency. In its response to that comment, New Hampshire indicated that it would remove the language per Sierra Club's comment, but inadvertently included the erroneous language nonetheless in its January 2017 submittal to EPA. New Hampshire's November 29, 2017 correction modifies the State's original submittal to exclude the erroneous language identified by Sierra Club, consistent with the State's response to comments. Hereafter, references to the State's January 31, 2017 SIP submittal are intended to include the November 29, 2017 correction.

    On September 28, 2017 (82 FR 45242), EPA proposed to approve New Hampshire's January 31, 2017 nonattainment plan submittal and SO2 attainment demonstration. The State's submittal and attainment demonstration included all the specific attainment elements mentioned above, including new SO2 emission limits found to be comparably stringent to the 1-hour form of the primary SO2 NAAQS and associated control technology efficiency requirements for the electric generating source Merrimack Station, currently owned and operated by GSP Merrimack LLC and formerly by Public Service of New Hampshire (PSNH) d/b/a Eversource Energy, impacting the Central New Hampshire Nonattainment Area. Merrimack Station's new SO2 emission limits were developed in accordance with EPA's April 2014 guidance. Comments on EPA's proposed rulemaking were due on or before October 30, 2017. EPA received a single set of comments on the proposed approval of New Hampshire's nonattainment area plan for the Central New Hampshire Nonattainment Area. The comments are available in the docket for this final rulemaking action. EPA's summary of the comments and EPA's responses are provided below. For a comprehensive discussion of New Hampshire's SIP submittal and EPA's analysis and rationale for approval of the State's submittal and attainment demonstration for this area, please refer to EPA's September 28, 2017 notice of proposed rulemaking.

    The remainder of this preamble summarizes EPA's final approval of New Hampshire's SIP submittal and attainment demonstration for the Central New Hampshire Nonattainment Area and contains EPA's response to public comments.

    II. Response to Comments

    The single set of comments addressing the proposed approval of the SIP revision for the Central New Hampshire Nonattainment Area was received from Sierra Club on October 30, 2017. The Sierra Club's October 30, 2017 comments explicitly incorporated a July 15, 2016 comment letter with supporting attachments submitted to New Hampshire by Sierra Club on behalf of both Sierra Club and Conservation Law Foundation (CLF) regarding the State's proposed permit for Merrimack Station. Because the October 30, 2017 Sierra Club comments on EPA's proposal are nearly identical to the prior July 15, 2016 comments, except where the October 30, 2017 comments provide updated information, EPA's responses to the October 30, 2017 Sierra Club comments also serve to respond to issues raised in the July 15, 2016 comments to the State, except where EPA identifies discussion as specifically applying only to comments from July 15, 2016. In the following discussion, EPA will refer to the Sierra Club or Sierra Club/CLF as “the Commenter.” To review the complete set of comments received, refer to the docket for this rulemaking as identified above. A summary of the comments received and EPA's responses are provided below.

    Comment 1: The commenter asserted that the proposed 7-day average limit on emissions from Merrimack Station is insufficient to protect the 1-hour NAAQS. The commenter indicated that short-term exposure to SO2 for as little as five minutes has significant health impacts and causes decrement in lung function, aggravation of asthma, chest tightness, and respiratory and cardiovascular morbidity. The commenter stated that such short-term exposure is especially risky for children with asthma. To support these statements regarding health effects, the commenter cited several EPA documents related to the final SO2 NAAQS and air quality trends. The commenter stated that EPA changed the NAAQS from 140 ppb averaged over 24 hours to 75 ppb averaged over one hour in order to address these health impacts. The commenter stated that as a result of the form of the standard, which is evaluated through reference to the fourth-highest daily maximum hourly-average concentrations in each year, emission limits with an averaging period longer than one hour are highly unlikely to be able to protect the 1-hour NAAQS. The commenter indicated that the form of the NAAQS means that ambient air quality can be evaluated as unsafe with as few as four hours of elevated emissions over the course of a year. The commenter stated that even if the 7-day limit is complied with, possible short-term emission “spikes” that may coincide with startup, shutdown, or control system malfunction events, for example, could nevertheless cause ambient 1-hour SO2 concentrations sufficient to violate the NAAQS. In support of this point, the commenter provided language making similar points excerpted from two EPA letters that had been included in the attachments to the commenter's July 15, 2016 comments to New Hampshire, specifically an August 12, 2010 comment letter from EPA Region 7 to Kansas regarding the Sunflower Holcomb Station Expansion Project, and a February 1, 2012 comment letter from EPA Region 5 to Michigan regarding a draft construction permit for the Detroit Edison Monroe Power Plant. The commenter concluded that the 7-day limit proposed for inclusion in the State's SIP has an averaging period that is 168 times longer than that of the 1-hour NAAQS and should be revised to adequately protect the NAAQS. The commenter added that hourly emissions limits are not unreasonable, and cited several examples of permits that impose such limits. Therefore, the commenter concluded that a 1-hour emissions limit should be imposed.

    Response 1: EPA appreciates the commenter's concerns about the appropriateness of approving nonattainment plans with emission limitations that apply over a longer time period than the 1-hour form of the 2010 SO2 NAAQS. We discussed similar issues in EPA's April 2014 guidance. In this case, EPA has concluded that the approach employed by New Hampshire to develop the emission limitations for Merrimack Station and included in the State's SIP submittal is consistent with recommendations discussed in EPA's April 2014 guidance and adequately protects against violation of the 1-hour SO2 NAAQS. EPA's rationale for this conclusion is explained in further detail below.

    The health effects information provided by the commenter is not in dispute in this rulemaking. This rulemaking instead addresses whether New Hampshire's plan is adequate to meet the previously established NAAQS.

    As mentioned above, CAA section 172(c) directs states with areas designated as nonattainment to demonstrate that the submitted nonattainment plan provides for attainment of the NAAQS. EPA's rules at 40 CFR part 51, subpart G further delineate the control strategy requirements that SIPs must meet, and EPA has long required that all control strategies in nonattainment plans reflect four fundamental principles of quantification, enforceability, replicability, and accountability. See “State Implementation Plans; General Preamble for the Implementation of Title I of the Clean Air Act Amendments of 1990; Proposed Rule,” 57 FR 13498 (April 16, 1992) (General Preamble), at 13567-68. Additional guidance is provided in EPA's April 2014 guidance. For SO2, there are generally two components needed to support an attainment demonstration submitted under section 172(c): (1) Emission limitations and other control measures that assure implementation of permanent, enforceable, and necessary emission controls; and (2) a modeling analysis that meets the requirements of 40 CFR part 51, appendix W and demonstrates that these emission limitations and control measures provide for timely attainment of the primary SO2 NAAQS as expeditiously as practicable, but by no later than the applicable attainment date for the affected area. In all cases, the emission limitations and control measures must be accompanied by appropriate methods and conditions to determine compliance with the respective emission limitations and control measures. Furthermore, in all cases, the emission limitations and control measures must be: Quantifiable (i.e., a specific amount of emission reduction can be ascribed to the measures), fully enforceable (specifying clear, unambiguous, and measurable requirements for which compliance can be practicably determined), replicable (the procedures for determining compliance are sufficiently specific and non-subjective such that two independent entities applying the procedures would obtain the same result), and accountable (source specific limitations must be permanent and must reflect the assumptions used in the SIP demonstrations).

    In our April 2014 guidance, EPA notes that past Agency guidance has recommended that averaging times in SO2 SIP emissions limitations should not exceed the averaging time of the applicable NAAQS that the limit is intended to help attain (e.g., addressing emissions averaged over one or three hours). EPA's April 2014 guidance also discusses the possibility of utilizing emission limitations with longer averaging times of up to 30 days, so long as the state meets various suggested criteria to show that the longer-term limits are comparably stringent to the 1-hour critical emission value that is needed to meet the NAAQS. See EPA's April 2014 guidance, pp. 22 to 39. The guidance recommends that—should states elect to use longer averaging times—the longer-term average limit should be set at an adjusted level to reflect a stringency comparable to the 1-hour average critical emission value shown to provide for attainment through a modeling analysis that the plan otherwise would have set as an emission limit.

    At the outset, EPA notes that the specific examples of earlier EPA statements cited by the commenter (i.e., those contained in Exhibits 1, 2, 3, and 4 to Appendix A of the comment submission) all pre-date the release of EPA's April 2014 guidance. As such these examples only reflect the Agency's development of its policy for implementing the 2010 SO2 NAAQS as of the dates of their own issuance. At the time of their issuance, EPA had not yet addressed the specific question of whether it might be possible to devise an emission limit with an averaging period longer than 1-hour, with appropriate adjustments that would make it comparably stringent to an emission limit shown to attain 1-hour emission level, that could adequately ensure attainment of the SO2 NAAQS. None of the pre-2014 EPA documents cited by the commenter address this question; consequently, it is not reasonable to read any of them as rejecting that possibility. However, EPA's April 2014 guidance specifically addressed this issue as it pertains to requirements for SIPs for SO2 nonattainment areas under the 2010 NAAQS, especially with regard to the use of appropriately set comparably stringent limitations based on averaging times as long as 30 days (see p. 2). EPA developed this guidance pursuant to a lengthy stakeholder outreach process regarding implementation strategies for the 2010 NAAQS, which had not yet concluded (or in some cases even begun) when the documents cited by the commenter were issued. As such, EPA's April 2014 guidance was the first instance in which the Agency provided recommended guidance for that component of this action. Consequently, EPA does not view those prior EPA statements as conflicting with the Agency's guidance addressing this specific question of how to devise a longer-term limit that is comparably stringent to a 1-hour critical emission value that has been modeled to attain the NAAQS. Moreover, EPA notes that the commenter has not raised specific objections to the general policy and technical rationale EPA provided in its proposed approval or in EPA's April 2014 guidance for why such longer-term averaging-based limits may in specific cases be adequate to ensure NAAQS attainment, which we again summarize below.

    EPA's April 2014 guidance provides an extensive discussion of EPA's rationale for positing that an appropriately-set, comparably stringent limitation based on an averaging time as long as 30 days can, based on a situation's specific facts, be found to provide for attainment of the 2010 primary SO2 NAAQS, provided it is shown to be comparably stringent to a 1-hour critical emission value that is demonstrated through modeling to attain the NAAQS. Essentially, to achieve such comparable stringency, rather than simply convert an attaining 1-hour emission rate to a longer term limit at the same level, it is expected that an adjustment would be needed to lower the emission rate as the averaging time is increased. It is first necessary to identify a modeled 1-hour emission value that attains the NAAQS before deriving a comparably stringent longer-term emission limit, i.e., an emission limit that has been appropriately adjusted downward. In evaluating this option, EPA considered in the April 2014 guidance the nature of the standard, conducted detailed analyses of the impact of the use of 30-day average limits on the prospects for attaining the standard, and carefully reviewed how best to achieve an appropriate balance among the various factors that warrant consideration in judging whether a state's nonattainment plan provides for attainment. Id. at pp. 22 to 39. See also id. at appendices B, C, and D.

    As specified in 40 CFR 50.17(b), the 1-hour primary SO2 NAAQS is met at an ambient air quality monitoring site when the 3-year average of the annual 99th percentile of daily maximum 1-hour concentrations is less than or equal to 75 ppb. In a year with 365 days of valid monitoring data, the 99th percentile would be the fourth highest daily maximum 1-hour value. The 2010 SO2 NAAQS, including this form of determining compliance with the standard, was upheld by the U.S. Court of Appeals for the District of Columbia Circuit in Nat'l Envt'l Dev. Ass'n's Clean Air Project v. EPA, 686 F.3d 803 (D.C. Cir. 2012). Because the standard has this form, a single exceedance of the numerical limit of 75 ppb does not constitute a violation of the standard. Instead, at issue is whether a source operating in compliance with a properly set longer-term average could cause exceedances, and if so the resulting frequency and magnitude of such exceedances. In particular, what matters is whether EPA can have reasonable confidence that a properly set longer-term average limit will provide that the 3-year average of annual fourth highest daily maximum values will be at or below 75 ppb. A synopsis of EPA's review of how to judge whether such plans “provide for attainment,” based on modeling of projected allowable emissions and in light of the form for determining attainment of the NAAQS at monitoring sites, follows.

    For SO2 nonattainment plans based on 1-hour emission limits, the standard approach is to conduct modeling using fixed emission rates. The maximum emission rate that would be modeled to result in attainment (i.e., in an “average year” 1 shows fewer than four days with maximum hourly levels exceeding 75 ppb) is labeled the “critical emission value.” The modeling process for identifying this critical emission value inherently considers the numerous variables that affect ambient concentrations of SO2, such as meteorological data, background concentrations, and terrain. In the standard approach, the state would then provide for attainment by setting a continuously applicable 1-hour emission limitation at this critical emission value.

    1 An “average year” is used to mean a year with average air quality. While 40 CFR part 50, appendix T provides for averaging three years of 99th percentile daily maximum values (e.g., the fourth highest maximum daily concentration in a year with 365 days with valid data), this discussion and an example used later in EPA's response to Comment 1 uses a single “average year” in order to simplify the illustration of relevant principles.

    EPA recognizes that some sources may have highly variable emissions, for example due to variations in fuel sulfur content and operating rate, that can make it extremely difficult, even with a well-designed control strategy, to ensure in practice that emissions for any given hour do not exceed the critical emission value. EPA also acknowledges the concern that longer-term emission limits can allow short periods with emissions above the critical emission value, which, if coincident with meteorological conditions conducive to high SO2 concentrations, could create the possibility of a NAAQS exceedance occurring on a day when an exceedance would not have occurred if emissions were continuously controlled at the level corresponding to the 1-hour critical emission value. However, for several reasons, EPA finds that the approach recommended in its April 2014 guidance document suitably addresses this concern, and that in this case, New Hampshire has devised a longer-term limit that is comparably stringent to the 1-hour critical emission value that suitably provides for meeting the NAAQS.

    First, from a practical perspective, EPA expects the actual emission profile of a source subject to an appropriately set longer-term average limit to be similar to the emission profile of a source subject to an analogous 1-hour average limit. EPA expects this similarity because it has recommended that the longer-term average limit be set at a level that is comparably stringent to the otherwise applicable 1-hour limit (reflecting a downward adjustment from the critical emission value) and that takes the source's emissions profile into account. As a general matter, EPA would expect that any emission limit with an averaging time longer than 1 hour would need to reflect a downward adjustment to compensate for the loss of stringency inherent in applying a longer term average limit. This expectation is based on the idea that a limit based on the 30-day average of emissions, for example, at a particular level is likely to be a less stringent limit than a 1-hour limit at the same level, since the control level needed to meet a 1-hour limit every hour is likely to be greater than the control level needed to achieve the same limit on a 30-day average basis. EPA's approach for downward adjustment is to account for the expected variability in emissions over the time period up to 30 days to achieve comparable stringency to the emissions and expected air quality impacts for a 1-hour period. As a result, EPA expects either form of emission limit to yield comparable air quality.

    Second, from a more theoretical perspective, EPA has compared the likely air quality with a source having maximum allowable emissions under an appropriately set longer-term limit, as compared to the likely air quality with the source having maximum allowable emissions under the comparable 1-hour limit. In this comparison, in the 1-hour average limit scenario, the source is presumed at all times to emit at the critical emission value, and in the longer-term average limit scenario, the source is presumed occasionally to emit more than the critical emission value but on average, and presumably at most times, to emit well below the critical emission value. In an “average year,” compliance with the 1-hour limit is expected to result in three exceedance days (i.e., three days with maximum hourly values above 75 ppb) and a fourth day with a maximum hourly value at 75 ppb. By comparison, with the source complying with a longer-term limit, it is possible that additional exceedances would occur that would not occur in the 1-hour limit scenario (if emissions exceed the critical emission value at times when meteorology is conducive to poor air quality). However, this comparison must also factor in the likelihood that exceedances that would be expected in the 1-hour limit scenario would not occur in the longer-term limit scenario. This result arises because the longer-term limit requires lower emissions most of the time (because the limit is set below the critical emission value), so a source complying with an appropriately set longer-term limit is likely to have lower emissions at critical times than would be the case if the source were emitting as allowed with a 1-hour limit.

    As a hypothetical example to illustrate these points, suppose a source that always emits 1,000 pounds of SO2 per hour, which results in air quality exactly at the level of the NAAQS (i.e., results in a design value of 75 ppb). Suppose further that in an “average year,” these emissions cause the five highest maximum daily average 1-hour concentrations to be 100 ppb, 90 ppb, 80 ppb, 75 ppb, and 70 ppb. Then suppose that the source becomes subject to a 30-day average emission limit of 700 pounds per hour, i.e., at a level adjusted downward from 1,000 pounds per hour by 30%. It is theoretically possible for a source meeting this limit to have emissions that occasionally exceed 1,000 pounds per hour, but with a typical emissions profile emissions would much more commonly be between 600 and 800 pounds per hour. In this simplified example, assume a zero background concentration, which allows one to assume a linear relationship between emissions and air quality. (A nonzero background concentration would make the mathematics more difficult but would give similar results.) Air quality will depend on how much emissions occur on which critical hours, but suppose that emissions at the relevant times on these five days are 800 pounds per hour, 1,100 pounds per hour, 500 pounds per hour, 900 pounds per hour, and 1,200 pounds per hour, respectively. (This is a conservative example because the average of these emissions, 900 pounds per hour, is well over the 30-day average emission limit of 700 pounds per hour.) These emissions would result in daily maximum 1-hour concentrations of 80 ppb, 99 ppb, 40 ppb, 67.5 ppb, and 84 ppb. In this example, the fifth day would have an exceedance that would not otherwise have occurred, but the third and fourth days would not have exceedances that otherwise would have occurred. In this example, the fourth highest maximum daily concentration under the 30-day average would be 67.5 ppb.

    This simplified example illustrates the findings of a more complicated statistical analysis that EPA conducted using a range of scenarios using actual plant data. As described in appendix B of EPA's April 2014 guidance, EPA found that the requirement for lower average emissions is highly likely to yield better air quality than is required with a comparably stringent 1-hour limit. Based on analyses described in appendix B, EPA expects that an emission profile with maximum allowable emissions under an appropriately set comparably stringent 30-day average limit is likely to have the net effect of having a lower number of exceedances and better air quality than an emission profile with maximum allowable emissions under a 1-hour emission limit at the critical emission value. This result provides a compelling rationale for allowing the use of a longer averaging period, in appropriate circumstances where the facts indicate that this result can be expected to occur.

    The question then becomes whether this approach—which is likely to produce a lower number of overall exceedances even though it may produce some unexpected exceedances above the 1-hour critical emission value—meets the requirement in sections 110(a) and 172(c) for state implementation plans to “provide for attainment” of the NAAQS. For SO2, as for other pollutants, it is generally impossible to design a nonattainment plan in the present that will guarantee that attainment will occur in the future. A variety of factors can cause a well-designed nonattainment plan to fail and unexpectedly not result in attainment, for example if meteorology occurs that is more conducive to poor air quality than was anticipated in the plan. Therefore, in determining whether a plan meets the requirement to provide for attainment, EPA's task is commonly to judge not whether the plan provides absolute certainty that attainment will in fact occur, but rather whether the plan provides an adequate level of confidence of prospective NAAQS attainment. From this perspective, in evaluating use of a longer-term limit up to 30-days, EPA must weigh the likely net effect on air quality. Such an evaluation must consider the risk that occasions with meteorology conducive to high concentrations will have elevated emissions leading to exceedances that would not otherwise have occurred, and must also weigh the likelihood that the requirement for lower emissions on average will result in days not having exceedances that would have been expected with emissions at the critical emission value. Additional policy considerations, such as in this case the desirability of accommodating real world emissions variability without significant risk of violations, are also appropriate factors for EPA to weigh in judging whether a plan provides a reasonable degree of confidence that the plan will lead to attainment. Based on these considerations, especially given the high likelihood that a continuously enforceable limit, averaged over as long as 30 days, determined in accordance with EPA's April 2014 guidance, will result in attainment, EPA posits as a general matter that such limits, if appropriately determined, can reasonably be considered to provide for attainment of the 2010 SO2 NAAQS. Furthermore, as discussed below, EPA concludes that in this case, New Hampshire has demonstrated that its longer-term limit was appropriately determined and provides for NAAQS attainment.

    As stated by the commenter, the limit included in the State's SIP submittal is for a period of 7 days, or 168 hours. As stated above, EPA posits that limits based on periods of as long as 30 days (720 hours), determined in accordance with our April 2014 guidance, can, in many cases, be reasonably considered to provide for attainment of the 2010 SO2 NAAQS. In EPA's April 2014 guidance, EPA supplied an analysis of the impact of emissions variability on air quality and explained that it may be possible in some specific cases to develop control strategies that account for variability in 1-hour emissions rates through emissions limits with averaging times as long as 30 days and still provide for attainment of the 2010 SO2 NAAQS. Since seven days (168 hours) are well within the period of 30 days (720 hours), EPA has concluded that a limit for Merrimack Station based on a period of 7 days and determined in accordance with EPA's April 2014 guidance can be reasonably considered to provide for attainment.

    EPA's April 2014 guidance offers specific recommendations for determining an appropriate longer-term average limit. The recommended method starts with determination of the 1-hour emission limit that would provide for attainment (i.e., the 1-hour critical emission value), and applies an adjustment factor to determine the (lower) level of the longer term average emission limit that would be estimated to have a stringency comparable to the otherwise necessary 1-hour emission limit. This method uses a database of continuous emission data reflecting the type of control that the source will be using to comply with the SIP emission limits, which (if compliance requires new controls) may require use of a different emission database, e.g., from a different but comparable facility using similar emissions control equipment. The recommended method involves using these data to compute a complete set of emission averages, computed according to the averaging time and averaging procedures of the prospective emission limitation. In this recommended method, the ratio of the 99th percentile among these longer-term averages to the 99th percentile of the 1-hour values represents an adjustment factor that may be multiplied by the candidate 1-hour emission limit (i.e., the critical emission value) to determine a longer-term average emission limit that may be considered comparably stringent.2 The guidance also addresses a variety of related topics, such as the potential utility of setting supplemental emission limits, such as mass-based limits, to reduce the likelihood and/or magnitude of elevated emission levels that might occur under the longer-term emission rate limit.

    2 For example, if the critical emission value is 1,000 pounds of SO2 per hour, and a suitable adjustment factor is determined to be 0.70 (i.e., 70%), the recommended longer term average limit would be 700 pounds per hour.

    Preferred air quality models for use in regulatory applications are described in appendix A of the Guideline (40 CFR part 51, appendix W).3 In 2005, EPA promulgated AERMOD as the Agency's preferred near-field dispersion modeling for a wide range of regulatory applications addressing stationary sources (for example in estimating SO2 concentrations) in all types of terrain based on extensive developmental and performance evaluation. Supplemental guidance on modeling for purposes of demonstrating attainment of the SO2 standard is provided in appendix A to EPA's April 2014 guidance. Appendix A provides extensive guidance on the modeling domain, the source inputs, assorted types of meteorological data, and background concentrations. Consistency with the recommendations in this guidance is generally necessary for the attainment demonstration to offer adequately reliable assurance that the plan provides for attainment.

    3 The most recent version of the Guideline was published on January 17, 2017 (see 82 FR 5182) and became effective on May 22, 2017.

    As stated previously, attainment demonstrations for the 2010 1-hour primary SO2 NAAQS must demonstrate future attainment and maintenance of the NAAQS in the entire area designated as nonattainment (i.e., not just at the violating monitor) by using air quality dispersion modeling (see appendix W to 40 CFR part 51) to show that the mix of sources and enforceable control measures and emission rates in an identified area will not lead to a violation of the SO2 NAAQS. For a short-term (i.e., 1-hour) standard, EPA asserts that dispersion modeling, using allowable emissions and addressing stationary sources in the affected area (and in some cases those sources located outside the nonattainment area which may affect attainment in the area) is technically appropriate, efficient, and effective in demonstrating attainment in nonattainment areas because it takes into consideration combinations of meteorological and emission source operating conditions that may contribute to peak ground-level concentrations of SO2.

    Regarding the commenter's position that only hourly SO2 emissions limits are reasonable, citing the examples supplied in the commenter's submission, EPA agrees that 1-hour limits can be reasonable and protective so long as they are adequately supported by an attainment demonstration establishing those limits as meeting the NAAQS. In this action, EPA is not changing its position regarding the sufficiency in meeting the NAAQS with 1-hour emissions limitations to which other facilities, as cited by the commenter, are subject. The fact that New Hampshire could reasonably have chosen to establish 1-hour limits does not mean that EPA should disapprove limits with comparable stringency using longer averaging times. In this instance, the State's emission limit for Merrimack Station utilizes a 7-day average, and New Hampshire has shown it to be comparably stringent to a 1-hour limit at the critical emission level, which the State demonstrated to suitably provide for attainment of the NAAQS.

    Based on EPA's review of the State's submittal, EPA finds that the 7-day average limit of 0.39 pounds (lb) per million British thermal units (MMBtu) established for Merrimack Station provides for a suitable alternative to establishing a 1-hour average emission limit for this source. New Hampshire used a suitable data profile in an appropriate manner and has thereby applied an appropriate adjustment, yielding emission limits that have comparable stringency to the 1-hour average limit that the State determined would otherwise have been necessary to provide for attainment. While the longer-term averaging limit allows occasions in which emissions may be higher than the level that would be allowed with the 1-hour limit, the State's limits compensate by requiring average emissions to be adequately lower than the level that would otherwise have been required by a 1-hour average limit. The September 28, 2017 notice of proposed rulemaking provided a detailed description of EPA's rationale for the proposed finding that the 7-day average limit for Merrimack Station is adequate to provide for attainment, and the commenter has not raised any concerns about this approach that we have not already addressed.

    Comment 2: The commenter states that the 7-day average approach would mask significant hours in which emissions are above safe levels. The commenter then presents information regarding historic hourly emissions from Merrimack Station after the flue gas desulfurization (FGD) scrubber system was installed. Specifically, using data from EPA's Air Markets Program Data (AMPD), the commenter identified over 224 individual hours on 62 separate days in the period between January 1, 2012, through September 30, 2017, during which emissions were above the 1-hour critical emission rate of 0.54 lb/MMBtu,4 i.e., the maximum hourly emission rate determined to be protective of the NAAQS. The commenter indicated that during the same period, there do not appear to have been any 7-day periods in which average emissions exceeded the 0.39 lb/MMBtu limit in the SIP revision. The commenter asserts that this disparity, i.e., the fact that emissions during over 224 hours on 62 separate days exceeded the 1-hour critical emission rate of 0.54 lb/MMBtu while the 7-day limit was not exceeded during the time period from January 2012 through September 2017, indicates that the downwardly adjusted 0.39 lb/MMBtu 7-day limit is inadequate to protect the NAAQS.

    4 In multiple instances, the Commenter appears to inaccurately assume the critical emission rate is 0.53 lb/MMBtu. The mass-based critical emission value, as calculated by the State's modeling, is 2,544 lb/hour, which is equivalent to the critical emission rate of 0.54 lb/MMBtu at the maximum rated capacity of Merrimack's two coal-fired electric generating units, MK1 and MK2.

    Response 2: The commenter implies that occasions of emissions above the 1-hour critical emission rate, notwithstanding compliance with a 7-day limit, create an unacceptable risk of additional exceedances that would result in violation of the standard. EPA does not agree with this notion, and the commenter has not supplied evidence to support it. Furthermore, in making this claim, the commenter is relying on an emissions dataset that, for the reasons enumerated below, is not appropriate for assessing the prospective likelihood of Merrimack Station emitting more than the critical emission value, which may result in unsafe air quality. First, the dataset includes emissions from periods during which Merrimack Station was not subject to State permit conditions on the operation of its FGD scrubber system, and is therefore not representative of current and expected future emissions. Second, the dataset includes some emission values that are unrealistically high because they are calculated or substitute data used for purposes of determining compliance with EPA's Acid Rain Program rather than measured data used for determining emissions for compliance with the 7-day limit. Third, emission data for Merrimack Station show that the facility has rarely emitted above the critical emission rate of 0.54 lb/MMBtu since September 1, 2016, when the State's permit TP-0189 became applicable and enforceable. Fourth, the State's rate-based emission limit is designed to ensure consistent control at all load levels during operation, so an exceedance of the critical emission rate (in lb/MMBtu) does not necessarily mean that emissions are higher than the critical emission value (in lb/hour). Fifth and finally, if actual measured emissions from Merrimack Station had occurred at the levels indicated by the commenter, the facility would have violated the current 7-day emission limit, had it been in place at the time, and therefore these data are not evidence that compliance with the 7-day limit would result in a higher risk of NAAQS violations. Each of these points is discussed in greater detail below.

    By reviewing the AMPD emissions data using EPA's Field Audit Checklist Tool (FACT) 5 for the period between January 1, 2012, and March 31, 2018, EPA found 227 hours with emissions above 0.54 lb/MMBtu, a number that is consistent with the “over 224 hours” identified by the commenter. In the following discussion, EPA identifies the number of hours of those 227 hours that are not appropriate to use in the analysis of the adequacy of the 7-day emission limit. EPA has included a spreadsheet in the docket of this action which contains the relevant data used in EPA's analysis.

    5 Field Audit Checklist Tool (FACT) version 1.2.0.1, available for download at: www.epa.gov/airmarkets/field-audit-checklist-tool-fact. FACT provides users with metadata, including “method of determination codes” (MODC), beyond the information available using the AMPD website referenced by the Commenter.

    (1) The FGD at Merrimack Station first became operational on September 28, 2011. Under the conditions established in the State's permit TP-0008, Merrimack Station was not permitted to operate MK2, one of its two utility boilers, unless the FGD was in operation. Merrimack Station's other utility boiler, MK1, was permitted to bypass the FGD system for no more than 840 hours per consecutive 12-month period. Both of these permit conditions became applicable and enforceable as of July 1, 2013. (This emission bypass provision is no longer permitted under the September 1, 2016 TP-0189 permit.) Prior to July 1, 2013, the facility was not subject to enforceable permit conditions requiring operation of the FGD. During 2012, Merrimack Station bypassed the FGD for emissions from MK1 on several occasions, the last of which occurred on November 7, 2012. As such, EPA does not view emissions occurring at Merrimack Station prior to July 1, 2013 as being representative of current or expected future emissions because prior to this date the relevant, enforceable permit provisions that required operation of the emission control system at Merrimack Station, as contained in permit number TP-0008, were not effective. Of the 227 hours with emissions above 0.54 lb/MMBtu, there were 188 hours that occurred prior to July 1, 2013, leaving 39 hours for further analysis.

    (2) Merrimack Station is subject to emission monitoring and reporting requirements under the Acid Rain Program (40 CFR part 75). Under the Acid Rain Program, Merrimack Station must hold sufficient emission allowances to account for its SO2 emissions. For hours in which direct, quality-assured measurements from the continuous monitoring systems (CEMS) are not available, EPA's Acid Rain Program regulations require that high emission values are calculated or substituted for the emissions that are not monitored in order to ensure that the source holds sufficient allowances to account conservatively for its emissions. See 40 CFR part 75 subpart D. As described in New Hampshire's response to comments for its nonattainment area plan, the CEMS at Merrimack Station was certified on November 21, 2011 using only the low range of a dual range analyzer to measure from 0 to 300 parts per million (ppm) SO2 of in-stack exhaust gas. When the low range was exceeded, i.e., in-stack exhaust gas exceeded 300 ppm SO2, a calculated value of 200% of the maximum potential or uncontrolled concentration was reported to ensure that under reporting did not occur for purposes of the Acid Rain Program. As part of a periodic reassessment of the appropriate analyzer ranges, Merrimack Station retained a low range configuration and adjusted it to measure from 0 to 150 ppm on January 28, 2013. See section 2.1.1.5 of appendix A to 40 CFR part 75. On February 4, 2015, Merrimack Station began calibrating and quality-assuring the high range of the dual range analyzer from 150 to 2,600 ppm, while the lower range continued to be quality assured to measure between 0 and 150 ppm. In accordance with Acid Rain Program requirements, Merrimack Station was required to report calculated emissions at 200% of the maximum potential or uncontrolled concentration during the period from November 21, 2013 to February 4, 2015 when concentrations exceeded the lower range, i.e., in-stack exhaust gas exceeded 300 ppm. See section 2.1.1.4(f) of Appendix A to 40 CFR part 75. These hours are marked as SO2 Method Of Determination Code (MODC) 19 in the FACT database and were reported as such in the hourly electronic emissions records. Additional CEMS outage hours that used substitute data calculated as the average of the hour before and after, reported as SO2 MODC 06, are not measured emissions data but rather are substitute data hours. EPA concludes from the CEMS data that data points flagged as calculated or substitute data with SO2 MODC 06 or 19 are not appropriate for use in assessing NAAQS compliance in this case because these values do not represent actual measured emissions during those hours.

    Data points flagged as SO2 MODC 06 or 19 account for 32 hours of the remaining 39 emissions data points over 0.54 lb/MMBtu, leaving seven hours for further analysis.

    (3) The emission profile for Merrimack Station, since the issuance of the September 2016 permit containing the 7-day average SO2 emissions limit, shows that exceedances of the critical emission rate, i.e., 0.54 lb/MMBtu, are infrequent. In the period from September 1, 2016, when the State's permit TP-0189 became applicable and enforceable, to March 31, 2018, Merrimack Station has emitted at a level higher than the 0.54 lb/MMBtu on three hours out of 3,109 operating hours with measured emissions data, or less than 0.1%. In addition to the SO2 emission limit, the September 1, 2016 permit TP-0189 included a more stringent limit for the SO2 removal efficiency of the scrubber than was included in the TP-0008 permit. In addition, TP-0189 prohibits the use of the emergency stack to bypass emissions controls except as necessary to prevent severe damage to equipment or potential injury to facility personnel. The infrequency of emissions above 0.54 lb/MMBtu since September 1, 2016 indicates that the multiple SO2 emission control provisions contained in TP-0189, as described above, have been successful in consistently reducing emissions from Merrimack Station. Based on this evidence, EPA expects that future instances of emissions from Merrimack Station above 0.54 lb/MMBtu will continue to be extremely rare.

    (4) While emissions exceeded 0.54 lb/MMBtu during each of the seven hours since July 1, 2013 (of which only three hours exceeded 0.54 lb/MMBtu since September 1, 2016, as described above), for six of these hours the total mass-based emission rate, measured in lb/hour, did not exceed the critical emission value of 2,544 lb/hour. Of those six hours, the highest emission level was 1,386.6 pounds of SO2, well below the critical emission value, and the other emission values range from 1.1 to 843.5 pounds SO2. Based on the State's attainment modeling demonstration, these lower emission values would not be expected to result in exceedances of the NAAQS. That is, New Hampshire's modeling indicates that Merrimack Station could emit constantly at the mass-based emission value for each of those six hours and the area would attain the standard.

    Only one hour had emissions above the critical emission value of 2,544 lb/hour. Specifically, Merrimack emitted 2,578.6 pounds of SO2 on December 1, 2015 during the 7 a.m. hour.

    EPA does not regard the single hour on December 1, 2015 at 7 a.m., during which Merrimack Station had emissions over the critical emission value, by itself as representing a serious risk for causing a violation of the NAAQS. EPA has previously acknowledged that there could possibly be hourly emission levels above the critical emission value from a source complying with a longer-term average emission limit, e.g., a 7-day limit. As stated in the proposal, an hour where emissions are above the critical emission value does not necessarily mean that a NAAQS exceedance is occurring in that hour. Similarly, an individual hour where emissions are above the level of the comparably stringent 7-day limit (0.39 lb/MMBtu in this instance) does not mean that an exceedance of the NAAQS is occurring in that hour, especially if the level of emissions is below the critical emission value. This notion also does not take into account the possible exceedances that would be expected with emissions always at the critical emission value that would otherwise be avoided because emissions are generally required to be lower (in this case, on average 27% lower). Based on this reasoning, EPA concludes that the risk of an exceedance for the one hour with emissions above the critical emission value of 2,544 lb/hour during 4.75 years of emissions from Merrimack Station (from July 1, 2013 to March 31, 2018) does not suggest that a violation of the NAAQS is likely to have occurred.

    (5) Notwithstanding the explanations above regarding the appropriateness of omitting certain data points from considering NAAQS compliance, such emissions data, if they had actually been representative of real emissions, would have caused a violation of the permit conditions for Merrimack Station, if the 7-day permit limit had been in place at the time. EPA has evaluated the Merrimack Station emissions data for the period January 1, 2012 through March 31, 2017 in accordance with the 7-day average emission rate limit, both with and without the omission of data points flagged as calculated or substitute data.

    This evaluation found 27 periods during which the associated 7-day emission average would have violated the terms of the permit conditions, had those terms been in place at the time and assuming that all data points flagged as calculated or substitute data are actual emissions. Of the 27 7-day periods, 26 occurred in 2012, while the facility was still permitted to bypass the FGD system, a practice that is not permitted under the conditions of the September 2016 permit TP-0189. Even by omitting data points flagged as calculated or substitute data, none of the 7-day emission averages associated with these 26 7-day periods in 2012 would have met the 7-day emission limit, had it been in place at the time.

    The one remaining 7-day period ended on December 11, 2014, and the associated 7-day emission average of 0.419 lb/MMBtu would have exceeded the emission limit of 0.39 lb/MMBtu, if data points flagged as calculated or substitute data were treated as actual emissions. By omitting the calculated or substitute data from this time period, the 7-day emission average ending on December 11, 2014 would have been 0.20 lb/MMBtu, which would comply with the 7-day limit of 0.39 lb/MMBtu, had it been in place at the time.

    This finding contradicts the commenter's assertion that the “over 224” individual hours with emissions purportedly higher than the critical emission rate would not have resulted in an exceedance of the 7-day average limit. On the contrary, even if the emissions with reported emissions above the critical emission value did represent actual emissions, which EPA argues in the previous sections is incorrect, Merrimack Station would have been out of compliance with the 7-day limit permit had it been in effect at the time.

    Therefore, based on the reasoning supplied in the sections above, EPA disagrees with the commenter that emissions data from Merrimack Station demonstrate the inadequacy of the 7-day emission limit imposed by the State. Rather, the data most representative of Merrimack Station's current and expected future emissions indicate that the facility, when complying with the applicable permit restrictions, is extremely unlikely to cause a violation of the SO2 NAAQS. The emissions data presented by the commenter are not representative of Merrimack Station's current and expected future emissions, and are therefore not appropriate for use in assessing NAAQS compliance in this case.

    EPA offers the following additional discussion to further respond directly regarding the sufficiency of an appropriately-calculated, longer-term average limit, up to 30-days, with comparable stringency to a 1-hour critical emission value, to provide for attainment of the 1-hour NAAQS. EPA has conducted analyses to evaluate the extent to which longer-term average limits that have been adjusted to have comparable stringency to 1-hour limits at the critical emission value provide for attainment. In brief, while a longer-term average limit as approved in this action will allow occasions when emissions exceed the critical emission value, the use of a lower limit (i.e., as adjusted downward) compensates by requiring most values to be lower than they are required to be with a 1-hour limit at the critical emission value. EPA expects that the net result for this action will be that the comparably stringent limit will provide a sufficient constraint on the frequency and magnitude of occurrences of elevated emissions such that this control strategy based on the comparably stringent limit will reasonably provide for attainment.

    As stated in appendix B of EPA's April 2014 guidance, the Agency acknowledges that even with an adjustment to provide comparable stringency, a source complying with a longer term average emission limit could possibly have hourly emissions which occasionally exceed the critical emission value. It is important to recognize that an hour where emissions are above the critical value does not necessarily mean that a NAAQS exceedance is occurring in that hour. EPA's April 2014 guidance states that “if periods of hourly emissions above the critical emission value are a rare occurrence at a source, these periods would be unlikely to have a significant impact on air quality, insofar as they would be very unlikely to occur repeatedly at the times when the meteorology is conducive for high ambient concentrations of SO2” (p. 24).

    Exceedances of the SO2 NAAQS occur when emissions from relevant sources are sufficiently high on occasions when the meteorology is conducive for those emissions to cause elevated SO2 concentrations. An illustrative example would be a case in which a single source has a dominant impact on area concentrations, and the source only causes an exceedance at a particular location with light southwest winds with limited dispersion. In this example, the likelihood of an exceedance at that location will be a function of the likelihood of elevated emissions occurring during times of light southwest winds with limited dispersion. Stated more generally, the likelihood of an exceedance is a function of the likelihood of emissions being high when the meteorology is conducive for the source to cause an exceedance. By extension, the likelihood of a violation is a function of the likelihood of emissions being high on a sufficient number of times with meteorology conducive to having exceedances to have the average of the 99th percentile daily maximum values exceed the NAAQS. Viewed another way, the occasions when the meteorology is conducive for the source to cause an exceedance at a particular location are likely to be infrequent, and high concentrations are contingent on both emissions being sufficiently high and the meteorology being sufficiently conducive. The NAAQS itself is based on relatively rare occurrences, being based on the 99th percentile of daily maximum concentrations. Nevertheless, the point here is that the occurrence of high emissions will not cause an exceedance if it does not occur when meteorology is conducive to having an exceedance. Furthermore, a source with rare occurrences of high emissions and with much more frequent occurrences of moderate emissions is more likely to have moderate emissions on those occasions with meteorology conducive for exceedances, and the design value for the source may be more prone to reflect the moderate emissions than the high emissions.

    Thus, for a source complying with a limit using an averaging period of up to 30 days reflecting the downward adjustment generally recommended in EPA's April 2014 guidance, at issue is the likelihood that the source would have sufficiently high emissions on a sufficient fraction of the potential exceedance days to cause an SO2 NAAQS violation. Although results will differ according to individual circumstances, EPA has presented illustrative analyses (see appendix B of EPA's April 2014 guidance) that indicate that suitably adjusted longer-term average limits can generally be expected to provide adequate confidence that the attainment plan will provide for attainment.

    Therefore, based on the reasoning presented above, EPA disagrees with the commenter about the over 224 hours with emissions purported to be higher than the critical emission rate, and concludes that the longer-term limit for Merrimack Station is not expected to lead to a greater risk of a future violation of the NAAQS.

    Comment 3: The commenter stated that New Hampshire's approach to develop a longer-term averaging period using an “adjustment ratio” is problematic.6 Specifically, the commenter posits that the period of time selected by the State (i.e., July 4, 2013 through March 30, 2015) is not representative of current or expected future operations at Merrimack Station. The commenter stated that the State did not disclose the nature of data corrections provided by the Merrimack Station's owner at the time PSNH in documentation accompanying the proposed permit for the facility. The commenter indicated that the nondisclosure regarding the nature of the corrections raises concerns about the accuracy of the State's analysis. For future operations, the commenter points to New Hampshire's projection of Merrimack Station's annual emissions for 2018 of 1,907 tons SO2, which is nearly double the annual emissions total of 1,044 tons SO2 for the facility in 2014. The commenter asserts that the time period selected for developing the adjustment factor is arbitrary and not representative of expected future operations, and that therefore the State should have selected a different time period. The commenter identified “significant spikes” in hourly emissions in the months before or after the time period selected by the State that are not included in the State's emissions database. The commenter suggested that these emission “spikes” are inappropriately excluded, and as a result the State's results are likely to be skewed. The commenter provides several alternative adjustment factors based on different time periods that include periods with emission “spikes,” including an adjustment factor for each year from 2012 through 2015; the period of July 4, 2013 through March 30, 2015, used by the State in its analysis; and the 25-month period from March 1, 2013 through March 30, 2015. The alternative adjustment factors for these periods vary from 0.34 to 0.90, which would result in associated 7-day limits of between 0.19 to 0.48 lb/MMBtu. The commenter states that selecting the wrong time period for analysis can result in a more than doubling of the resulting emission rate. The commenter concludes that the methodology New Hampshire used for developing a 7-day emission rate is inadequate because the adjustment factor depends greatly on which temporal series of emissions data is examined.

    6 EPA terms these ratio values “adjustment factors.”

    Response 3: EPA analyzed the commenter's assertion regarding variability in adjustment factors based on the time period selected. An adjustment factor is a value multiplied by the 1-hour critical emission value (i.e., the maximum 1-hour emission value established to be protective of the NAAQS) to determine a downwardly adjusted longer-term average limit for an emission unit at a level that EPA would expect to be comparably stringent to a 1-hour limit set at the critical emission value.

    As stated in EPA's April 2014 guidance, we expect that establishing an appropriate longer-term average limit will involve assessing a downward adjustment in the level of the limit that would provide for comparable stringency. This assessment should generally be conducted using data obtained by CEMS, in order to have sufficient data to obtain a robust and reliable assessment of the anticipated relationship between longer-term average emissions and 1-hour emission values. This is necessary to have a suitable assessment of the warranted degree of adjustment of the longer-term average limit in order to provide comparable stringency to the 1-hour emission rate that is determined to provide for attainment. EPA generally expects that datasets reflecting hourly data for at least 3 to 5 years of stable operation (i.e., without changes that significantly alter emissions variability) would be needed to conduct a suitably reliable analysis.

    For Merrimack Station, at the time that New Hampshire had conducted its analysis, only approximately 21 months of emissions data were available that were consistent with anticipated current and future operations. Specifically, the emissions units at Merrimack Station became subject to certain enforceable conditions contained in permit number TP-0008 beginning on July 1, 2013. Thus, emissions from Merrimack Station prior to July 1, 2013 are not expected to have an emissions profile consistent with the current and anticipated future emissions profile for those units. March 2015 was selected by the State as the end point of the emissions dataset because it was the last month in which data were available through AMPD at the time it conducted the analysis. During the period assessed by the State, the combined emissions from Merrimack Station's units MK1 and MK2 were always controlled by FGD and the dataset includes emissions representative of current and expected future typical operations, including startup and shutdown events. Because the dataset includes only data from Merrimack Station while using the control technology, it is appropriate for use in developing adjustment factors for emission limits at this facility. EPA has concluded that New Hampshire used data from an appropriate time period.

    Prior to deriving the adjustment factor, the State removed several data points from the AMPD dataset based on information provided by the facility. A justification for removal of these data points was included in the State's response to comments document to permit TP-0189 (included in New Hampshire's Finding of Fact document), which was also included in the State's SIP submittal. Specifically, New Hampshire justified the removal of several data points because of quality assurance issues. The State indicated in its response to comments document that substitute data was included within the AMPD dataset for hours with emissions at levels the CEMS had not been appropriately maintained and quality assured to measure. The State indicated and EPA agrees that these substitute emission data are not representative of actual emissions. According to the State's SIP submittal, the SO2 dual span analyzer in the CEMS was adjusted as of February 4, 2015, to better characterize both lower- and higher-end emissions. In its response to comments, the State provided an hour-by-hour listing of the omitted data points, and a detailed discussion of the reasoning for these omissions. The State's Findings of Fact document is included in the docket for this action. As such, EPA notes that New Hampshire sufficiently provided its rationale and approach for removing certain data points from the AMPD dataset in the State's response to comments document. Therefore, EPA concludes that the State has appropriately disclosed the nature of the data corrections in the State's SIP submittal, and that the public has had adequate notice and opportunity to comment on the State's justification for data removal in the current rulemaking process. EPA has placed the raw data that New Hampshire used in the docket for this action, but EPA asserts that the information provided by the State and by EPA in its proposal was adequate to clarify EPA's rationale for concurring with the State's analysis of the data.

    Regarding the omission of calculated or substitute data, the calculated or substitute data points are not reliable indicators of emissions during those hours and are not appropriate for inclusion in the calculation of the adjustment factor. Based on this reasoning, EPA considers the State's omission of these values in the calculation of the adjustment factor to be appropriate.

    The adjustment factor was calculated as the ratio of the 99th percentile of mass emissions for the 7-day average period to the 99th percentile of 1-hour mass emissions. For the rolling 7-day averaging period, the adjustment factor was 0.73. That is, using EPA's recommended approach for determining comparably stringent limits, the 7-day mass emission rate limit would need to be 0.73 times (or 27% lower than) the critical emission value to have stringency comparable to a 1-hour limit at the critical emission value. The State multiplied its adjustment factor of 0.73 to the critical emission rate of 0.54 lb/MMBtu to derive a comparably stringent emission rate of 0.39 lb/MMBtu. EPA has confirmed that the State appropriately implemented the recommended methodology for developing an adjustment factor based on the State's supplied dataset. EPA notes that this emission database does include hours representative of startup and shutdown conditions, as well as hours with elevated emissions or “spikes.”

    There were five individual alternative adjustment factors for Merrimack Station presented by the commenter as evidence that EPA's methodology (including adjustment factors) is not appropriate for developing emissions limitations based on averaging times for periods up to 30 days. Four of the five alternative adjustment factors presented by the commenter are based upon only one year of emissions data for each of the annual periods of 2012 through 2015. One of the periods presented includes emissions over a period of 25 months, specifically for the period from March 2013 through March 2015 resulting in an alternative adjustment factor of 0.47, compared to the State's adjustment factor of 0.73 based on the 21-month time period of July 2013 through March 2015. None of the alternative adjustment factors provided by the commenter were calculated in accordance with the recommendations contained in EPA's April 2014 guidance. Specifically, EPA stated in its April 2014 guidance “that data sets reflecting hourly data for at least 3 to 5 years of stable operation (i.e., without changes that significantly alter emissions variability) would be needed to obtain a suitably reliable analysis” (p. 30). Furthermore, the alternative adjustment factors for March 2013 through March 2015 and the annual periods for 2012 and 2013 as presented by the commenter include periods of time (i.e., those prior to July 1, 2013 when FGD use was not an enforceable State permit condition) during which operations are not representative of current and expected future operations at Merrimack Station, as discussed in greater detail in our response to Comment 2 of the notice. The remaining alternative adjustment factors that do not contain periods of time prior to July 1, 2013, i.e., the annual periods for 2014 and 2015, are 0.90 and 0.70, respectively, which are reasonably consistent with the State's finding based on a larger dataset. However, the commenter's results illustrate a point that EPA considered in formulating its guidance, which is that using insufficient data, e.g., using only one year's data, is prone to yield results that vary unduly by data period and may not be a sufficiently robust basis for determining a reliable adjustment factor. The variability of these annual values demonstrates the insufficiency of the annual time period for use in development of such an adjustment factor, but does not demonstrate the insufficiency of the method contained within EPA's April 2014 guidance had it been appropriately applied, nor does it demonstrate that New Hampshire's adjustment factor is inappropriate.

    EPA recognizes that the State used 21 months in its emissions variability analysis instead of the 3 to 5 years recommended for use in EPA's April 2014 guidance. As such, EPA has evaluated whether the period used by the State results in an appropriate adjustment factor. Specifically, EPA compared the State's adjustment factor to EPA's average 30-day adjustment factor for comparable sources. Merrimack Station's FGD system employs a wet scrubber, and so EPA compared New Hampshire's adjustment factor to the average adjustment factors listed in appendix D of the April 2014 guidance for sources with wet scrubbers (derived from a database of 210 sources). For this set of sources, EPA calculated an average adjustment factor for 30-day average limits of 0.71 and an average adjustment factor for 24-hour limits of 0.89. The comparison of New Hampshire's adjustment factor of 0.73 for a 7-day limit for Merrimack Station suggests that the 21 months of data at Merrimack Station have variability that is quite similar to that of other similar facilities in the United States. Based on this comparison, EPA concludes that the State's adjustment factor is reasonable and will result in an appropriate downward adjustment from the critical emission value.

    Based on the State's SIP submittal, New Hampshire's future projection of SO2 emissions at Merrimack Station to 2018 indicates an increase of nearly 85% compared to 2014 emissions for the facility. Specifically, Tables 5-1B and 5-2B of the State's SIP submittal indicate that Merrimack Station's SO2 emissions were 1,044 tons in 2014 and are projected to be 1,927 tons in 2018. The emission projection for 2018 includes the caveat from the State that it relies on an assumed control efficiency for the FGD of 90%, which is less efficient than the updated control efficiency of 94% for the FGD included in the State's SIP submittal. Nevertheless, this projected increase in annual emissions does not, however, indicate a different emissions profile. That is, based on available information, EPA does not expect an increase in the variability of hourly emissions due to an increase in annual emissions. In fact, the attainment demonstration included in New Hampshire's SIP submittal indicates that annual SO2 emissions at the critical emission value, equivalent to annual emissions of 11,144 tons, is anticipated to be protective of the 2010 SO2 NAAQS. The State's comparably stringent 7-day average limit of 0.39 lb/MMBtu equates to total annual SO2 emissions of 8,047 tons. Both values are above the State's 2018 projected emissions of 1,927 tons. Because New Hampshire's attainment demonstration shows that the critical emission value is protective of the NAAQS, and the State's 7-day limit is comparably stringent to the 1-hour critical emission value, EPA concludes that the State's projected 85% increase in annual SO2 emissions from 2014 to 2018 would not result in a violation of the NAAQS.

    Therefore, based on the reasoning presented above, EPA has concluded that the commenter has not demonstrated that the State developed its adjustment factor for Merrimack Station inappropriately, or that the State's 7-day limit for Merrimack Station derived using the adjustment factor is inadequate.

    Comment 4: The commenter indicates that the polar receptor grid used by the State in its modeling analysis is inadequate because of the small overall number of receptors and lack of coverage over large areas of land. The commenter states that the polar grid ensures that the model will underpredict concentrations due to these “blind spots,” areas where there are no receptors and which the model will overlook when the wind is blowing in their direction across the sources. Because the model is ultimately the basis for the development of the emissions limit for Merrimack Station, the commenter posits that the polar receptor grid with contiguous radial coverage gaps is improper.

    Response 4: EPA agrees with the commenter that simple polar grids alone may not be appropriate for use without refinement in refined modeling analyses, though inclusion of a polar receptor grid does not in and of itself disqualify an attainment demonstration.

    Receptors are points that represent physical locations at which the air dispersion models will predict ambient pollutant concentrations. Groups of Cartesian or polar receptors usually are defined as a receptor grid network or grid. The primary purpose of this network or grid is to locate the maximum impact of concern per pollutant and averaging period. Deciding which type to use is largely a function of the type of modeling being performed (screening or refined), the size and number of emission sources, or the site location (including topography), and should be selected to provide the best “coverage” for the facility being modeled. Two types of receptors are generally employed: (1) A Cartesian receptor grid, which consists of receptors identified by their x (east-west) and y (north-south) coordinates; and (2) a polar receptor grid that consists of receptors identified by their distance and direction (angle) from a user defined origin (e.g., main boiler stack). Discrete receptors are used to identify specific locations of interest (e.g., school, community building). A modeling receptor grid may consist of any combination of discrete, polar, or Cartesian receptors, but must provide sufficient detail and resolution to identify the maximum impact.

    On October 30, 2015, the State submitted preliminary modeling to EPA for the attainment demonstration for the Central New Hampshire Nonattainment Area. EPA responded on January 6, 2016, to the State's preliminary modeling submittal. In EPA's response, the Agency indicated that section 4.2.1.2(b) of the Guideline7 describes the process for performing screening modeling in areas with complex terrain. As stated in our letter, in areas with complex terrain, “even relatively small changes in a receptor's location may substantially affect the predicted concentration.” The Guideline recommended a dense array of receptors in those situations, and suggests two modeling runs: the first with “a moderate number of receptors carefully located over the area of interest,” and a second with “a more dense array of receptors in areas showing potential for high concentrations, as indicated by the results of the first model run.” This process is also consistent with section 7.2.2 (Critical Receptor Sites) of the Guideline, which states that “selection of receptor sites should be a case-by-case determination taking into consideration the topography, the climatology, monitor sites, and the results of the initial screening procedure.” In our letter to New Hampshire, EPA noted that the preliminary modeling results (i.e., those presented to the Agency on October 30, 2015) showed maximum concentrations resulting from Merrimack Station's SO2 emissions in areas of complex terrain between 9 to 13 kilometers from Merrimack Station. EPA stated that the polar receptor grid at those distances from the source were insufficiently dense to properly characterize the extent of the impacts at locations with complex terrain. For example, at 13 kilometers from the source, the lateral distance between receptors is greater than 2 kilometers. EPA also indicated that other locations with similar terrain characteristics in the same general distance (i.e., 9-13 kilometers) from Merrimack Station did not have adequate receptor coverage. To address this issue, EPA suggested in its January 6, 2016 letter, that New Hampshire perform refined modeling consistent with its existing protocol, but with a denser array of receptors in the areas shown in the preliminary modeling to have the potential for high concentrations. Specifically, areas of complex terrain at distances within 15 kilometers of Merrimack Station, and particularly such areas to the northeast, were suggested by EPA to be modeled with high resolution receptor grids. EPA listed these areas and provided a map of these areas to the State. EPA indicated that these terrain features have the potential to be highly impacted by Merrimack Station because of their geographic characteristics and locations, but were not well characterized by the preliminary modeling due to the sparseness of the polar grid at distances beyond around 5 kilometers.

    7 At the time of EPA's January 6, 2016 letter to New Hampshire, the update to the Guideline had not yet been finalized and was not in effect. Therefore, the applicable Guideline was the version published on November 9, 2005 (see 70 FR 68218).

    In response to EPA's January 2016, letter, the State included additional receptors in these areas for its refined modeling conducted in February 2016. Specifically, New Hampshire included 2,308 additional receptors in dense Cartesian arrays with 100-meter spatial resolution over the areas of expected maximum predicted concentrations based on preliminary modeling, including over the areas suggested by EPA within 5-15 kilometers from Merrimack Station. After reviewing the receptor grid included by the State in its refined modeling, EPA concludes that areas of complex terrain within 15 kilometers have adequate coverage to identify potential impacts in those areas. This conclusion is consistent with the statement in section 4 (Models for Carbon Monoxide, Lead, Sulfur Dioxide, Nitrogen Dioxide and Primary Particulate Matter) of the Guideline (specifically section 4.2(a)) that “[i]n most cases, maximum source impacts of inert pollutants will occur within the first 10 to 20 km from the source.” Furthermore, EPA's review of both the preliminary and refined modeling indicate that these areas of complex terrain are likely to include the highest impact area. Therefore, EPA finds that the modeling domain and receptor network are sufficient to identify maximum impacts from Merrimack Station, and are therefore adequate for characterizing the nonattainment area.

    Comment 5: The commenter pointed out an error in Table 3-1 of the State's draft SIP submittal. Specifically, the commenter indicated that Table 3-1 incorrectly showed areas that are undesignated in New Hampshire as being designated Unclassifiable. The commenter indicated that those areas should instead be identified as undesignated.

    Response 5: EPA agrees with the commenter that all areas in New Hampshire other than the Central New Hampshire Nonattainment Area were undesignated as of the date of New Hampshire's submittal (i.e., January 31, 2017). In its response to this identical comment on its proposed SIP submittal, the State indicated that Table 3-1 had been corrected. EPA has verified that the State did indeed correct the table. EPA notes that revised recommendations from New Hampshire other than those listed in Table 3-1 were received by EPA in December 2016, specifically for attainment at the New Hampshire Seacoast area and attainment/unclassifiable for all other previously undesignated areas. Furthermore, on January 9, 2018, EPA published a document of a final rule that designated all areas in New Hampshire other than the Central New Hampshire Nonattainment Area as attainment/unclassifiable (see 83 FR 1098, 1143, to be codified at 40 CFR 81.330). These inconsistencies in Table 3-1 with subsequent occurrences have to do with the timing of the SIP submittal along with the December 2016 update to the State's recommendations and EPA's January 9, 2018 final designations. These inconsistencies do not affect EPA's view of whether New Hampshire has satisfied applicable nonattainment planning requirements.

    Comment 6: The commenter states that the State's SIP submittal incorrectly indicates that an attainment demonstration can be made based on monitor readings alone. This idea is contrary to other statements in the State's SIP submittal, and also to EPA's April 2014 guidance, which states that monitor data alone is insufficient for an attainment demonstration, and that modeling analyses are also required. The commenter asserts that the statement should be removed from the State's SIP submittal.

    Response 6: The State indicated in its response to an identical comment on its draft SIP submittal that it planned to remove the phrase “and thus may be able to demonstrate attainment for the SO2 NAAQS” from Section 3.1.1 on page 9 of its SIP submittal. In doing so, the State would be satisfying the request made by the commenter. However, the erroneous phrase still appeared in the State's January 31, 2017 SIP submittal to EPA. EPA agrees with the commenter that the phrase is incorrect and ought not to be in the plan. EPA communicated with the State to confirm that it had intended to remove the phrase as indicated by the State's response to comments on its draft SIP submittal, and to suggest a clarification. On November 29, 2017, New Hampshire sent EPA a letter indicating that the language had been erroneously included in its January 31, 2017 submittal, and providing a corrected page 9 of the State's SIP submittal. EPA considers this amended version (i.e., the January 31, 2017, submittal as amended by the November 29, 2017, correction on page 9) to be consistent with the State's record, as included in its response to comments.

    Comment 7: The commenter identifies an error in Table 5-1B of the State's draft SIP submittal. Specifically, the commenter indicates that the table erroneously states that the total estimated emissions for the Central New Hampshire Nonattainment Area for 2014 was 22,947 tons of SO2. The commenter further states that the proper total for 2014 emissions should be 1,480 tons of SO2. The commenter indicates that the figure is assumed to be an error that should be corrected.

    Response 7: EPA agrees with the commenter that the total 2014 emissions within the Central New Hampshire Nonattainment Area should be 1,480 tons SO2. The commenter had supplied an identical comment on New Hampshire's draft SIP submittal, and the State's response to comment document included in its final SIP submittal stated that the error would be corrected. As indicated by the State in its response to comments, Table 5-1B shows the corrected value. As such, EPA considers this comment to have been already addressed by the State.

    Comment 8: In the incorporated comments dated July 15, 2016, the commenter states that New Hampshire is long overdue for finalizing a plan to ensure attainment and maintenance of the SO2 NAAQS. The commenter goes on to state that the (then) proposed permit is apparently only a step towards developing such a SIP. The commenter concludes by urging the State to swiftly address the issues identified in its comments on the proposed permit for Merrimack Station.

    Response 8: There are two plausible interpretations of this comment. The first interpretation is procedural. Interpreted in this fashion, the commenter would be requesting that the permitting authority expedite the permitting for Merrimack Station, which would be a critical component of the anticipated attainment plan for the area around Merrimack Station. Interpreted this first way, the comment is addressed through the current action, which is the final step in the procedure for approving an attainment plan for the area. A second interpretation implies technical insufficiency. Interpreted in this fashion, the commenter would be indicating that the proposed permit, when finalized, would be just one of multiple required actions necessary to ensure attainment in the nonattainment area. Interpreted this second way, the comment rests on the previous arguments provided by the commenter suggesting that the State's proposed plan does not ensure attainment of the NAAQS. On these grounds, EPA disagrees with the commenter that the proposed nonattainment area plan may be insufficient to ensure attainment. EPA has provided ample discussion and evidence, in both the current response to comments and the September 28, 2017 proposal, for why the State's nonattainment plan and SO2 attainment demonstration are sufficient.

    III. Final Action

    EPA has determined that New Hampshire's SO2 nonattainment plan meets the applicable requirements of sections 110, 172, 191, and 192 of the CAA. EPA is approving New Hampshire's January 31, 2017 SIP submission, as amended by the State on November 29, 2017, for attaining the 2010 primary 1-hour SO2 NAAQS for the Central New Hampshire Nonattainment Area and for meeting other nonattainment area planning requirements. This SO2 nonattainment plan includes New Hampshire's attainment demonstration for the SO2 nonattainment area. The nonattainment area plan also addresses requirements for RFP, RACT/RACM, enforceable emission limits and control measures, base-year and projection-year emission inventories, and contingency measures.

    In New Hampshire's SIP submittal to EPA, New Hampshire included the applicable monitoring, testing, recordkeeping, and reporting requirements contained in Merrimack Station's permit, TP-0189, to demonstrate how compliance with Merrimack Station's SO2 emission limit will be achieved and determined. EPA is approving into the New Hampshire SIP the provisions of Merrimack Station's permit, TP-0189, that constitute the SO2 operating and emission limits and their associated monitoring, testing, recordkeeping, and reporting requirements. EPA is approving these provisions into the State's SIP through incorporation by reference, as described in section IV., below.

    EPA is not removing the portion of the New Hampshire SIP entitled “EPA-approved State Source specific requirements” as it pertains to Merrimack Station's July 2011 permit, TP-0008, because EPA did not receive a request from the State to do so. See 40 CFR 52.1520(d). However, EPA considers those provisions to be superseded by the conditions of TP-0189, which are more stringent, and which are being incorporated into the SIP in this final action. Specifically, two of the provisions, items 6 and 8 from Table 4, relate to SO2 emissions limits that have been superseded by Merrimack Station's September 2016 permit, TP-0189. Item 10 from Table 4 has also been superseded by Merrimack Station's September 2016 permit, TP-0189, in that the existing SIP provision allowed operation of one of Merrimack Station's two boilers, MK1, for up to 840 hours in any consecutive 12-month period through the emergency bypass stack, i.e., not through the FGD system. Each of the corresponding provisions of Merrimack Station's September 2016 permit, TP-0189, are more stringent than those existing SIP provisions. The limits EPA is approving into New Hampshire's SIP in this action do not exempt any hours from being subject to the limit.

    IV. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of certain federally enforceable provisions of Merrimack Station's permit, TP-0189, effective on September 1, 2016, described in the amendments to 40 CFR part 52 set forth below. Specifically, the following provisions of that permit are incorporated by reference: Items 1, 2, and 3 in Table 4 (“Operating and Emission Limits”); items 1 and 2 in Table 5 (“Monitoring and Testing Requirements”); items 1 and 2 in Table 6 (“Recordkeeping Requirements”); and items 1 and 2 in Table 7 (“Reporting Requirements”). EPA has made, and will continue to make, relevant documents, including the portions of TP-0189 being incorporated by reference, generally available through www.regulations.gov.

    V. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

    Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 6, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Reporting and recordkeeping requirements, Sulfur oxides.

    Dated: May 23, 2018. Alexandra Dunn, Regional Administrator, EPA New England.

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

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart EE—New Hampshire 2. Section 52.1520 is amended: a. In the table in paragraph (d) by: i. Revising the entry for “PSNH Merrimack Station”; and ii. Adding the entry for “PSNH d/b/a Eversource Energy Merrimack Station,” at the end of the table; and b. In the table in paragraph (e), by adding an entry for “Central New Hampshire Nonattainment Area Plan for the 2010 Primary 1-Hour Sulfur Dioxide NAAQS” at the end of the table.

    The revision and additions read as follows:

    § 52.1520 Identification of plan.

    (d) * * *

    EPA-Approved New Hampshire Source Specific Requirements Name of source Permit No. State
  • effective date
  • EPA approval date 2 Additional explanations/§ 52.1535 citation
    *         *         *         *         *         *         * PSNH Merrimack Station TP-0008 7/8/2011 8/22/2012, 77 FR 50602 Flue Gas Desulfurization System. Portions of this permit have been superseded by TP-0189 for PSNH d/b/a Eversource Energy Merrimack Station. *         *         *         *         *         *         * PSNH d/b/a Eversource Energy Merrimack Station TP-0189 9/1/2016 6/5/2018, [Insert Federal Register citation] Items 1, 2, and 3 in Table 4 “Operating and Emission Limits”; items 1 and 2 in Table 5 “Monitoring and Testing Requirements”; items 1 and 2 in Table 6 “Recordkeeping Requirements”; items 1 and 2 in Table 7 “Reporting Requirements”. 2 In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column for the particular provision.

    (e) * * *

    New Hampshire Nonregulatory Name of
  • nonregulatory SIP provision
  • Applicable
  • geographic or nonattainment area
  • State submittal date/effective date EPA approved date  3 Explanations
    *         *         *         *         *         *         * Central New Hampshire Nonattainment Area Plan for the 2010 Primary 1-Hour Sulfur Dioxide NAAQS Central New Hampshire SO2 Nonattainment Area 1/31/2017 6/5/2018 [Insert Federal Register citation] 3 In order to determine the EPA effective date for a specific provision listed in this table, consult the Federal Register notice cited in this column for the particular provision.
    [FR Doc. 2018-11597 Filed 6-4-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 60, 61, and 63 [EPA-R06-OAR-2016-0091; FRL-9978-89-Region 6] New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants; Delegation of Authority to New Mexico AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Withdrawal of direct final rule.

    SUMMARY:

    On April 13, 2018, the Environmental Protection Agency (EPA) published a direct final rule approving the updated delegation of EPA authority for implementation and enforcement of certain New Source Performance Standards (NSPS) and National Emission Standards for Hazardous Air Pollutants (NESHAPs) for all sources (both part 70 and non-part 70 sources) to the New Mexico Environmental Department (NMED). EPA stated in the direct final rule that if EPA received relevant adverse comments by May 14, 2018, EPA would publish a timely withdrawal in the Federal Register. EPA received an adverse comment on May 14, 2018, and accordingly is withdrawing the direct final rule.

    DATES:

    The direct final rule published on April 13, 2018 (83 FR 15964), is withdrawn effective June 5, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Mr. Rick Barrett, (214) 665-7227, [email protected].

    SUPPLEMENTARY INFORMATION:

    On April 13, 2018, EPA published a direct final rule approving the updated delegation of authority for implementation and enforcement of NSPS and NESHAPs for all sources (both part 70 and non-part 70 sources) to the NMED. The direct final rule was published without prior proposal because EPA anticipated no relevant adverse comments. EPA stated in the direct final rule that if relevant adverse comments were received by May 14, 2018, EPA would publish a timely withdrawal in the Federal Register. EPA received an adverse comment on May 14, 2018. Accordingly, EPA is withdrawing the direct final rule. In a separate subsequent final action EPA will address the comment received. The withdrawal is being taken pursuant to sections 111 and112 of the CAA.

    List of Subjects 40 CFR Part 60

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

    40 CFR Part 61

    Environmental protection, Administrative practice and procedure, Air pollution control, Arsenic, Benzene, Beryllium, Hazardous substances, Intergovernmental relations, Mercury, Reporting and recordkeeping requirements, Vinyl chloride.

    40 CFR Part 63

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

    Dated: May 30, 2018. Wren Stenger, Director, Multimedia Division, Region 6. Accordingly, the direct final rule published in the Federal Register on April 13, 2018 (83 FR 15964), amending 40 CFR 60.4, 40 CFR 61.04, and 40 CFR 63.99, which was to become effective on June 12, 2018, is withdrawn.
    [FR Doc. 2018-12013 Filed 6-4-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2017-0666; FRL-9976-39] Ethoxylated Fatty Acid Methyl Esters; Exemption From the Requirement of a Tolerance AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation establishes an exemption from the requirement of a tolerance for residues of poly(oxy-1,2-ethanediyl), α-(1-oxoalkyl)-ω-methoxy-, where the alkyl chain contains a minimum of 6 and a maximum of 18 carbons and the oxyethylene content is 3-13 moles, when used as an inert ingredient (stabilizer and solubilizing agent) in pesticide formulations applied to growing crops or raw agricultural commodities after harvest at a concentration not to exceed 25% by weight in the formulation. This related group of compounds are collectively known as the ethoxylated fatty acid methyl esters (EFAMEs). BASF Corporation submitted a petition to EPA under the Federal Food, Drug, and Cosmetic Act (FFDCA), requesting establishment of an exemption from the requirement of a tolerance. This regulation eliminates the need to establish a maximum permissible level for residues of ethoxylated fatty acid methyl esters when used in accordance with the terms of the exemption.

    DATES:

    This regulation is effective June 5, 2018. Objections and requests for hearings must be received on or before August 6, 2018, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2017-0666, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Michael Goodis, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected].

    SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me?

    You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2017-0666 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before August 6, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2017-0666, by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

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

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

    Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

    II. Petition for Exemption

    In the Federal Register of February 27, 2018 (83 FR 8408) (FRL-9972-17), EPA issued a document pursuant to FFDCA section 408, 21 U.S.C. 346a, announcing the filing of a pesticide petition (PP IN-11023) by BASF Corporation, 100 Park Avenue, Florham Park, NJ 07932. The petition requested that 40 CFR 180.910 be amended by establishing an exemption from the requirement of a tolerance for residues of poly(oxy-1,2-ethanediyl), α-(1-oxoalkyl)-ω-methoxy-, where the alkyl chain contains a minimum of 6 and a maximum of 18 carbons and the oxyethylene content is 3-13 moles (CAS Reg. Nos. 53100-65-5, 194289-64-0, 34398-00-0, 9006-27-3, 32761-35-6, 53467-81-5, 518299-31-5, 34397-99-4) when used as an inert ingredient (stabilizer and solubilizing agent) in pesticide formulations applied to growing crops or raw agricultural commodities after harvest at a concentration not to exceed 25% by weight in the formulation. That document referenced a summary of the petition prepared by BASF Corporation, the petitioner, which is available in the docket, http://www.regulations.gov. No comments were received in response to the notice of filing that are relevant to establishment of this exemption.

    III. Inert Ingredient Definition

    Inert ingredients are all ingredients that are not active ingredients as defined in 40 CFR 153.125 and include, but are not limited to, the following types of ingredients (except when they have a pesticidal efficacy of their own): Solvents such as alcohols and hydrocarbons; surfactants such as polyoxyethylene polymers and fatty acids; carriers such as clay and diatomaceous earth; thickeners such as carrageenan and modified cellulose; wetting, spreading, and dispersing agents; propellants in aerosol dispensers; microencapsulating agents; and emulsifiers. The term “inert” is not intended to imply nontoxicity; the ingredient may or may not be chemically active. Generally, EPA has exempted inert ingredients from the requirement of a tolerance based on the low toxicity of the individual inert ingredients.

    IV. Aggregate Risk Assessment and Determination of Safety

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

    EPA establishes exemptions from the requirement of a tolerance only in those cases where it can be clearly demonstrated that the risks from aggregate exposure to pesticide chemical residues under reasonably foreseeable circumstances will pose no appreciable risks to human health. In order to determine the risks from aggregate exposure to pesticide inert ingredients, the Agency considers the toxicity of the inert in conjunction with possible exposure to residues of the inert ingredient through food, drinking water, and through other exposures that occur as a result of pesticide use in residential settings. If EPA is able to determine that a finite tolerance is not necessary to ensure that there is a reasonable certainty that no harm will result from aggregate exposure to the inert ingredient, an exemption from the requirement of a tolerance may be established.

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

    A. Toxicological Profile

    EPA has evaluated the available toxicity data and considered their validity, completeness, and reliability as well as the relationship of the results of the studies to human risk. EPA has also considered available information concerning the variability of the sensitivities of major identifiable subgroups of consumers, including infants and children. A series of acute toxicology studies have been conducted with representative EFAMEs. The acute toxicity study test substance was C6-10 ethoxylated fatty acid methyl ester (degree of ethoxylation is 10.6 EO). The studies show that the EFAMEs are practically non-toxic when ingested or inhaled via acute exposure. Skin and eye irritation studies indicate that the EFAMEs are slight skin and eye irritants. The skin sensitization potential of the EFAMEs could not be determined based on the ambiguous result in the Buehler assay.

    The genotoxicity studies conducted with representative EFAMEs including bacterial reverse mutation (Ames) test, mouse micronucleus assay and an in vitro mouse lymphoma assay were negative.

    Repeat dose data are not available for the EFAMEs; however, several repeat dose studies have been conducted with fatty acid methyl/alkyl esters and alcohol ethoxylates and these studies can be bridged to the EFAMEs based upon the structural similarities between EFAMEs and alcohol ethoxylates which are both nonionic surfactants in which the surfactant properties of each generally result in similar toxicological effects, at comparable dose levels) and the structural similarities of EFAMEs with fatty acid methyl/alkyl esters (both having terminal methoxy or alkoxy groups bound to a fatty acid or fatty acid derivative). The NOAEL of 50 mg/kg/day from a chronic rat oral feeding study is the lowest NOAEL observed and is equal to the lowest NOAEL seen in the subchronic feeding studies. The lowest LOAEL in the subchronic studies, as well as the LOAEL in the chronic rat oral feeding study was established at 250 mg/kg/day based on reduced food consumption and body weight gain. In a dermal toxicity study no signs of tumors were observed and the dermal NOAEL was reported to be 300 mg/kg/day. Most of the 90-day studies reported NOAELs ranging from 50-200 mg/kg/day.

    The NOAELs for reproductive performance of males and females, as well as offspring toxicity are considered to range from >250 mg/kg/day to 1,000 mg/kg/day. None of the studies reported adverse reproductive, developmental, neurotoxic, or immunotoxic effects at dose levels below the range of >250 mg/kg/day to 1,000 mg/kg/day.

    Specific information on the studies received and the nature of the adverse effects caused by ethoxylated fatty acid methyl esters as well as the no-observed-adverse-effect-level (NOAEL) and the lowest-observed-adverse-effect-level (LOAEL) from the toxicity studies can be found at http://www.regulations.gov in the document Ethoxylated Fatty Acid Methyl Esters (CAS Reg. Nos. 53100-65-5, 194289-64-0, 34398-00-0, 9006-27-3, 32761-35-6, 53467-81-5, 518299-31-5, 34397-99-4); “Human Health Risk Assessment and Ecological Effects Assessment to Support Proposed Exemption from the Requirement of a Tolerance When Used as an Inert Ingredient” in docket ID number EPA-HQ-OPP-2017-0666.

    B. Toxicological Points of Departure/Levels of Concern

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

    An effect attributed to a single dose was not identified in the toxicology database. The point of departure for chronic dietary exposures as well as dermal and inhalation exposures is based on a NOAEL of 50 mg/kg/day from a chronic oral feeding study in rats with the EFAMEs surrogate chemical, alcohol ethoxylate. In this study, the LOAEL was 250 mg/kg/day based upon reduced food consumption and body weight gain and elevated organ-to-body weight ratios. This represents the lowest NOAEL in the most sensitive species in the toxicity database. The standard uncertainty factors were applied to account for interspecies (10X) and intraspecies (10X) variations. The FQPA safety factor was reduced to 1X to account for completeness of the toxicity and exposure database and lack of increased prenatal or postnatal sensitivity as well as a lack of concern for neurotoxicity. A dermal absorption factor of 100% was used and a default value of 100% absorption was used for the inhalation absorption factor. The resultant chronic population adjusted dose (cPAD) is 0.5 mg/kg/day and acceptable MOEs for residential exposures are ≥100.

    C. Exposure Assessment

    1. Dietary exposure from food and feed uses. In evaluating dietary exposure to ethoxylated fatty acid methyl esters, EPA considered exposure under the proposed exemption from the requirement of a tolerance. EPA assessed dietary exposures from ethoxylated fatty acid methyl esters in food as follows.

    Dietary exposure (food and drinking water) to ethoxylated fatty acid methyl esters can occur following ingestion of foods with residues from treated crops. Because no adverse effects attributable to a single exposure of ethoxylated fatty acid methyl esters are seen in the toxicity databases, an acute dietary risk assessment is not necessary. For the chronic dietary risk assessment, EPA used the Dietary Exposure Evaluation Model software with the Food Commodity Intake Database (DEEM-FCIDTM, Version 3.16, and food consumption information from the U.S. Department of Agriculture's (USDA's) 2003-2008 National Health and Nutrition Examination Survey, What We Eat in America (NHANES/WWEIA). As to residue levels in food, no residue data were submitted for ethoxylated fatty acid methyl esters. In the absence of specific residue data, EPA has developed an approach which uses surrogate information to derive upper bound exposure estimates for the subject inert ingredient. Upper bound exposure estimates are based on the highest tolerance for a given commodity from a list of high use insecticides, herbicides, and fungicides. One hundred percent crop treated was assumed, default processing factors, and tolerance-level residues for all foods and use limitations of not more than 25% in pesticide formulations. A complete description of the general approach taken to assess inert ingredient risks in the absence of residue data is contained in the memorandum entitled “Alkyl Amines Polyalkoxylates (Cluster 4): Acute and Chronic Aggregate (Food and Drinking Water) Dietary Exposure and Risk Assessments for the Inerts,” (D361707, S. Piper, 2/25/09) and can be found at http://www.regulations.gov in docket ID number EPA-HQ-OPP-2008-0738.

    2. Dietary exposure from drinking water. For the purpose of the screening level dietary risk assessment to support this request for an exemption from the requirement of a tolerance for ethoxylated fatty acid methyl esters, a conservative drinking water concentration value of 100 ppb based on screening level modeling was used to assess the contribution to drinking water for the chronic dietary risk assessments for parent compound. These values were directly entered into the dietary exposure model.

    3. From non-dietary exposure. The term “residential exposure” is used in this document to refer to non-occupational, non-dietary exposure (e.g., textiles (clothing and diapers), carpets, swimming pools, and hard surface disinfection on walls, floors, tables). Ethoxylated fatty acid methyl esters may be used as inert ingredients in products that are registered for specific uses that may result in residential exposure, such as pesticides used in and around the home. The Agency conducted a conservative assessment of potential residential exposure by assessing ethoxylated fatty acid methyl esters in pesticide formulations (outdoor scenarios) and in disinfectant-type uses (indoor scenarios). The Agency's assessment of adult residential exposure combines high-end dermal and inhalation handler exposure from liquids/trigger sprayer/home garden and indoor hard surface, wiping with a high-end post application dermal exposure from contact with treated lawns. The Agency's assessment of children's residential exposure includes total post-application exposures associated with total exposures associated with contact with treated lawns and surfaces (dermal and hand-to-mouth exposures).

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

    EPA has not found ethoxylated fatty acid methyl esters to share a common mechanism of toxicity with any other substances, and ethoxylated fatty acid methyl esters does not appear to produce a toxic metabolite produced by other substances. For the purposes of this tolerance action, therefore, EPA has assumed that ethoxylated fatty acid methyl esters does not have a common mechanism of toxicity with other substances. For information regarding EPA's efforts to determine which chemicals have a common mechanism of toxicity and to evaluate the cumulative effects of such chemicals, see EPA's website at http://www.epa.gov/pesticides/cumulative.

    D. Safety Factor for Infants and Children

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

    2. Prenatal and postnatal sensitivity. The toxicity database for ethoxylated fatty acid methyl esters contains subchronic and developmental toxicity studies conducted with surrogate chemicals. The NOAELs for reproductive performance of males and females, as well as offspring toxicity are considered to range from >250 mg/kg/day to 1,000 mg/kg/day. None of the studies reported effects on the reproductive system or effects indicative of neurotoxicity.

    The established cRfD will be protective of the observed adverse effect, decreased body weight gain and food consumption, which was observed at dose levels much lower than potential adverse effects to infants or children. In addition, the Agency used conservative exposure estimates, with 100 percent crop treated, tolerance-level residues, conservative drinking water modeling numbers, and a conservative assessment of potential residential exposure for infants and children. Based on the adequacy of the toxicity database, the conservative nature of the exposure assessment, and the lack of concern for prenatal and postnatal sensitivity as well as neurotoxicity, the Agency has concluded that there is reliable data to determine that infants and children will be safe if the FQPA SF of 10X is reduced to 1X.

    E. Aggregate Risks and Determination of Safety

    EPA determines whether acute and chronic pesticide exposures are safe by comparing aggregate exposure estimates to the acute population adjusted dose (aPAD) and chronic population adjusted dose (cPAD). The aPAD and cPAD represent the highest safe exposures, taking into account all appropriate safety factors (SFs). EPA calculates the aPAD and cPAD by dividing the POD (i.e. toxicological endpoint) by all applicable UFs. For linear cancer risks, EPA calculates the probability of additional cancer cases given the estimated aggregate exposure. Short, intermediate, and long term aggregate risks are evaluated by comparing the estimated aggregate food, water, and residential exposure to the POD to ensure that the MOE called for by the product of all applicable UFs is not exceeded.

    Although there are no known current residential uses associated with EFAMEs, a residential exposure assessment was conducted. The level of concern for residential uses (i.e. non-occupational, non-dietary exposure) associated with the EFAMEs is low. The level of MOEs for combined residential exposure is above 100.

    1. Acute risk. An acute aggregate risk assessment takes into account acute exposure estimates from dietary consumption of food and drinking water. No adverse effect resulting from a single oral exposure was identified and no acute dietary endpoint was selected. Therefore, the EFAMEs are not expected to pose an acute risk.

    2. Chronic risk. Using the exposure assumptions described in this unit for chronic exposure, EPA has concluded that chronic exposure to EFAMEs from food and water will utilize 70% of the cPAD for children 1-2 years old, the population group receiving the greatest exposure. Generally, a dietary risk estimate that is less than 100% of the cPAD does not exceed the Agency's risk concerns.

    3. Short- intermediate- and long-term risk. Short- intermediate- and long-term aggregate exposure takes into account short-, intermediate- and long- term residential exposure plus chronic exposure to food and water (considered to be a background exposure level). The Agency has determined that it is appropriate to aggregate chronic exposure through food and water with short-, intermediate- and water with sort-, intermediate- and long-term residential exposures to EFAMEs. Using the exposure assumptions describe in this unit for short-term exposures, EPA has concluded the combined respective short-, intermediate- and long- term food water, and residential exposures resulted in aggregate margin of exposures (MOE) of 335 for adults and 122 for children. Because EPA's level of concern for EFAMEs is a MOE of 100 or below, these MOEs are not of concern.

    4. Aggregate cancer risk for U.S. population. Based on the discussion in Unit IV. A., EFAMEs is not expected to pose a cancer risk.

    5. Determination of safety. Based on these risk assessments, EPA concludes that there is a reasonable certainty that no harm will result to the general population, or to infants and children from aggregate exposure to ethoxylated fatty acid methyl esters residues.

    V. Analytical Enforcement Methodology

    An analytical method is not required for enforcement purposes since the Agency is establishing an exemption from the requirement of a tolerance without any numerical limitation. EPA is establishing limitations on the amount of EFAMEs that may be used in pesticide formulations applied to growing crops. These limitations will be enforced through the pesticide registration process under the Federal Insecticide, Fungicide, and Rodenticide Act (“FIFRA”), 7 U.S.C. 136 et seq. EPA will not register any pesticide formulation for use on growing crops or raw agricultural commodities after harvest for sale or distribution that exceeds 25% by weight of EFAMEs.

    VI. Conclusion

    Therefore, an exemption from the requirement of a tolerance is established under 40 CFR 180.910 for poly(oxy-1,2-ethanediyl), α-(1-oxoalkyl)-ω-methoxy-, where the alkyl chain contains a minimum of 6 and a maximum of 18 carbons and the oxyethylene content is 3-13 moles (CAS Reg. No. 53100-65-5, 194289-64-0, 4398-00-0, 9006-27-3, 32761-35-6, 53467-81-5, 518299-31-5, and 34397-99-4) when used as an inert ingredient (stabilizer and solubilizing agent) in pesticide formulations applied to growing crops or raw agricultural commodities after harvest at a concentration not to exceed 25% by weight in the formulation.

    VII. Statutory and Executive Order Reviews

    This action establishes an exemption from the requirement of a tolerance under FFDCA section 408(d) in response to a petition submitted to the Agency. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001); Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997); or Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” (82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994).

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

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

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

    VIII. Congressional Review Act

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

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: May 11, 2018. Donna Davis, Acting Director, Registration Division, Office of Pesticide Program.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. In § 180.910, add alphabetically the inert ingredient to the table to read as follows:
    § 180.910 Inert ingredients used pre- and post-harvest; exemptions from the requirement of a tolerance. Inert ingredients Limits Uses *         *         *         *         *         *         * Poly(oxy-1,2-ethanediyl), α-(1-oxoalkyl)-ω-methoxy-, where the alkyl chain contains a minimum of 6 and a maximum of 18 carbons and the oxyethylene content is 3-13 moles (CAS Reg. No. 53100-65-5, 194289-64-0, 34398-00-0, 9006-27-3, 32761-35-6, 53467-81-5, 518299-31-5, and 34397-99-4) Not to exceed 25% by weight in pesticide formulation Stabilizer, solubilizing agent. *         *         *         *         *         *         *
    [FR Doc. 2018-12060 Filed 6-4-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 180 [EPA-HQ-OPP-2010-0234; FRL-9976-73] Alpha-cypermethrin; Pesticide Tolerances AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    This regulation amends existing tolerances for residues of alpha-cypermethrin in or on fruit, citrus group 10-10 and hog fat. EPA is modifying these tolerances under the Federal Food, Drug, and Cosmetic Act (FFDCA) to correct an error in a previous rulemaking that established these tolerances at an unintended level.

    DATES:

    This regulation is effective June 5, 2018. Objections and requests for hearings must be received on or before August 6, 2018, and must be filed in accordance with the instructions provided in 40 CFR part 178 (see also Unit I.C. of the SUPPLEMENTARY INFORMATION).

    ADDRESSES:

    The docket for this action, identified by docket identification (ID) number EPA-HQ-OPP-2010-0234, is available at http://www.regulations.gov or at the Office of Pesticide Programs Regulatory Public Docket (OPP Docket) in the Environmental Protection Agency Docket Center (EPA/DC), West William Jefferson Clinton Bldg., Rm. 3334, 1301 Constitution Ave. NW, Washington, DC 20460-0001. The Public Reading Room is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding legal holidays. The telephone number for the Public Reading Room is (202) 566-1744, and the telephone number for the OPP Docket is (703) 305-5805. Please review the visitor instructions and additional information about the docket available at http://www.epa.gov/dockets.

    FOR FURTHER INFORMATION CONTACT:

    Michael L. Goodis, Director, Registration Division (7505P), Office of Pesticide Programs, Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460-0001; main telephone number: (703) 305-7090; email address: [email protected].

    SUPPLEMENTARY INFORMATION: I. General Information A. Does this action apply to me?

    You may be potentially affected by this action if you are an agricultural producer, food manufacturer, or pesticide manufacturer. The following list of North American Industrial Classification System (NAICS) codes is not intended to be exhaustive, but rather provides a guide to help readers determine whether this document applies to them. Potentially affected entities may include:

    • Crop production (NAICS code 111).

    • Animal production (NAICS code 112).

    • Food manufacturing (NAICS code 311).

    • Pesticide manufacturing (NAICS code 32532).

    B. How can I get electronic access to other related information?

    You may access a frequently updated electronic version of EPA's tolerance regulations at 40 CFR part 180 through the Government Printing Office's e-CFR site at http://www.ecfr.gov/cgi-bin/text-idx?&c=ecfr&tpl=/ecfrbrowse/Title40/40tab_02.tpl.

    C. How can I file an objection or hearing request?

    Under FFDCA section 408(g), 21 U.S.C. 346a, any person may file an objection to any aspect of this regulation and may also request a hearing on those objections. You must file your objection or request a hearing on this regulation in accordance with the instructions provided in 40 CFR part 178. To ensure proper receipt by EPA, you must identify docket ID number EPA-HQ-OPP-2010-0234 in the subject line on the first page of your submission. All objections and requests for a hearing must be in writing, and must be received by the Hearing Clerk on or before August 6, 2018. Addresses for mail and hand delivery of objections and hearing requests are provided in 40 CFR 178.25(b).

    In addition to filing an objection or hearing request with the Hearing Clerk as described in 40 CFR part 178, please submit a copy of the filing (excluding any Confidential Business Information (CBI)) for inclusion in the public docket. Information not marked confidential pursuant to 40 CFR part 2 may be disclosed publicly by EPA without prior notice. Submit the non-CBI copy of your objection or hearing request, identified by docket ID number EPA-HQ-OPP-2010-0234, by one of the following methods:

    Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Do not submit electronically any information you consider to be CBI or other information whose disclosure is restricted by statute.

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

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

    Additional instructions on commenting or visiting the docket, along with more information about dockets generally, is available at http://www.epa.gov/dockets.

    II. Proposed Rule

    In the Federal Register of December 26, 2017 (82 FR 60940) (FRL-9969-97), EPA, pursuant to FFDCA section 408(e), 21 U.S.C. 346a(e), proposed revisions to existing tolerances for the insecticide alpha-cypermethrin to reduce the allowable levels of the pesticide in or on fruit, citrus, group 10-10 from 10 parts per million (ppm) to 0.35 ppm and in or on hog, fat from 1.0 ppm to 0.10 ppm. EPA proposed this action in order to correct a typographical error that occurred in the final rule establishing these tolerances on February 1, 2013 (78 FR 7266) (FRL-9376-1). In support of the 2013 final rule, EPA reviewed residue field trial data and determined that the appropriate tolerance levels for fruit, citrus, group 10-10 and hog, fat were 0.35ppm and 0.10 ppm, respectively. Unfortunately, the instruction to the Federal Register contained incorrect tolerance values for these commodities, resulting in incorrect tolerance levels being finalized in that rule. The proposal would correct that error.

    In the proposal, EPA discussed the Agency's assessment of risk and proposed determination of safety for aggregate exposures to alpha-cypermethrin. In summary, the Agency concluded that the proposed tolerances for fruit, citrus, group 10-10 and hog, fat would be safe.

    Two comments were received on the proposal. One simply read “Good” and the other was related to the impact of wind-power facilities on bat populations and is therefore not relevant to this action.

    III. Aggregate Risk Assessment and Determination of Safety

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

    Consistent with FFDCA section 408(b)(2)(D), and the factors specified in FFDCA section 408(b)(2)(D), EPA has reviewed the available scientific data and other relevant information in support of this action. EPA has sufficient data to assess the hazards of and to make a determination on aggregate exposure for alpha-cypermethrin including exposure resulting from the tolerances established by this action. EPA's assessment of exposures and risks associated with alpha-cypermethrin can be found in the proposed rule published December 26, 2017, and EPA is incorporating its findings in that preamble into this final rule. For the reasons stated in the proposal, EPA concludes that there is a reasonable certainty that no harm will result to the general population, including infants and children, from aggregate exposure to alpha-cypermethrin.

    IV. International Trade Considerations A. International Residue Limits

    As noted in the proposal, EPA seeks to harmonize U.S. tolerances with international standards whenever possible, consistent with U.S. food safety standards and agricultural practices. EPA considers the international maximum residue limits (MRLs) established by the Codex Alimentarius Commission (Codex), as required by FFDCA section 408(b)(4).

    There is a Codex MRL established for citrus fruits at 0.3 ppm but not one for hog fat. Because the U.S. use patterns differ from those upon which the Codex MRLs are based, EPA is not harmonizing the U.S. tolerance for citrus fruit.

    B. World Trade Organization Sanitary and Phytosanitary Measures Agreement

    In this Final Rule, EPA is reducing the existing tolerances for commodities in crop group 10-10 from 10 ppm to 0.35 ppm and on hog, fat from 1.0 ppm to 0.1 ppm. The Agency is reducing these tolerances to correct the tolerance levels that EPA intended to establish in a previous rulemaking based on available residue data.

    In accordance with the World Trade Organization's (WTO) Sanitary and Phytosanitary Measures (SPS) Agreement, EPA notified the WTO of its proposed tolerance revision on January 10, 2018. See http://spsims.wto.org/en/Notifications/Search, U.S. Notification (G/SPS/N/USA/2976). EPA also intends to submit another notification to the WTO in order to satisfy its obligation to promptly publish this rule in such a manner as to enable interested WTO members to become acquainted with this rule. In addition, the SPS Agreement requires that Members provide a “reasonable interval” between the publication of a regulation subject to the Agreement and its entry into force to allow time for producers in exporting Member countries to adapt to the new requirement. At this time, EPA is establishing an expiration date for the existing tolerances to allow those tolerances to remain in effect for a period of six months after the effective date of this final rule, in order to address this requirement.

    This reduction in tolerance levels is not discriminatory; the same food safety standard contained in the FFDCA applies equally to domestically produced and imported foods. The new tolerance levels are supported by available residue data.

    V. Conclusion

    Therefore, tolerances are established for residues of alpha-cypermethrin, alpha-cypermethrin, in or on fruit, citrus group 10-10 and hog fat at 0.35 and 0.10 ppm.

    VI. Statutory and Executive Order Reviews

    This action amends existing tolerances under FFDCA section 408(e) in an action taken on the Agency's own initiative. The Office of Management and Budget (OMB) has exempted these types of actions from review under Executive Order 12866, entitled “Regulatory Planning and Review” (58 FR 51735, October 4, 1993). Because this action has been exempted from review under Executive Order 12866 due to its lack of significance, this action is not subject to Executive Order 13211, entitled “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), nor is it subject to Executive Order 13771, entitled “Reducing Regulations and Controlling Regulatory Costs” ((82 FR 9339, February 3, 2017). This action does not contain any information collections subject to OMB approval under the Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.), or impose any enforceable duty or contain any unfunded mandate as described under Title II of the Unfunded Mandates Reform Act (UMRA) (2 U.S.C. 1501 et seq.). Nor does it require any special considerations under Executive Order 12898, entitled “Federal Actions to Address Environmental Justice in Minority Populations and Low-Income Populations” (59 FR 7629, February 16, 1994); or OMB review or any Agency action under Executive Order 13045, entitled “Protection of Children from Environmental Health Risks and Safety Risks” (62 FR 19885, April 23, 1997). This action does not involve any technical standards that would require Agency consideration of voluntary consensus standards pursuant to section 12(d) of the National Technology Transfer and Advancement Act (NTTAA) (15 U.S.C. 272 note). Pursuant to the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), the Agency previously assessed whether establishment of tolerances, exemptions from tolerances, raising of tolerance levels, expansion of exemptions, or revocations might significantly impact a substantial number of small entities and concluded that, as a general matter, these actions do not impose a significant economic impact on a substantial number of small entities. These analyses for tolerance establishments and modifications, and for tolerance revocations were published in the Federal Register of May 4, 1981 (46 FR 24950) and December 17, 1997 (62 FR 66020) (FRL-5753-1), respectively, and were provided to the Chief Counsel for Advocacy of the Small Business Administration. In a memorandum dated May 25, 2001, EPA determined that eight conditions must all be satisfied in order for an import tolerance or tolerance exemption revocation to adversely affect a significant number of small entity importers, and that there is a negligible joint probability of all eight conditions holding simultaneously with respect to any particular revocation. Furthermore, for alpha-cypermethrin, the Agency knows of no extraordinary circumstances that exist as to the present rule that would change EPA's previous analysis. Taking into account this analysis, and available information concerning the pesticides listed in this rule, EPA hereby certifies that this rule will not have a significant negative economic impact on a substantial number of small entities. In addition, the Agency has determined that this action will not have a substantial direct effect on States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132, entitled “Federalism” (64 FR 43255, August 10, 1999). Executive Order 13132 requires EPA to develop an accountable process to ensure “meaningful and timely input by State and local officials in the development of regulatory policies that have federalism implications.” “Policies that have federalism implications” is defined in the Executive order to include regulations that 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.” This action directly regulates growers, food processors, food handlers, and food retailers, not States. This action does not alter the relationships or distribution of power and responsibilities established by Congress in the preemption provisions of FFDCA section 408(n)(4). For these same reasons, the Agency has determined that this action does not have any “tribal implications” as described in Executive Order 13175, entitled “Consultation and Coordination with Indian Tribal Governments” (65 FR 67249, November 9, 2000). Executive Order 13175, requires EPA to develop an accountable process to ensure “meaningful and timely input by tribal officials in the development of regulatory policies that have tribal implications.” “Policies that have tribal implications” is defined in the Executive order to include regulations that have “substantial direct effects on one or more Indian tribes, on the relationship between the Federal Government and the Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes.” This action will not have substantial direct effects on tribal governments, on the relationship between the Federal Government and Indian tribes, or on the distribution of power and responsibilities between the Federal Government and Indian tribes, as specified in Executive Order 13175. Thus, Executive Order 13175 does not apply to this action.

    VII. Congressional Review Act

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

    List of Subjects in 40 CFR Part 180

    Environmental protection, Administrative practice and procedure, Agricultural commodities, Pesticides and pests, Reporting and recordkeeping requirements.

    Dated: April 30, 2018. Richard P. Keigwin, Jr., Director, Office of Pesticide Programs.

    Therefore, 40 CFR chapter I is amended as follows:

    PART 180—[AMENDED] 1. The authority citation for part 180 continues to read as follows: Authority:

    21 U.S.C. 321(q), 346a and 371.

    2. In § 180.418, in the table in paragraph (a)(3): i. Amend the existing entries for “Fruit, citrus, group 10-10”; and “Hog, fat” by adding footnote references and add footnote 1 to the end of the table; and ii. Add alphabetically new entries for “Fruit, citrus, group 10-10”; and “Hog, fat”.

    The additions to the table in paragraph (a)(3) read as follows:

    § 180.418 Cypermethrin and isomers alpha-cypermethrin and zeta-cypermethrin; tolerances for residues.

    (a)(3) * * *

    Commodity Parts per million *    *    *    *    * Fruit, citrus, group 10-10 1 10 Fruit, citrus, group 10-10 0.35 *    *    *    *    * Hog, fat 1 1.0 Hog, fat 0.10 *    *    *    *    * 1 This tolerance expires on December 5, 2018.
    [FR Doc. 2018-12066 Filed 6-4-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES 42 CFR Part 10 RIN 0906-AB18 340B Drug Pricing Program Ceiling Price and Manufacturer Civil Monetary Penalties Regulation AGENCY:

    Health Resources and Services Administration, HHS.

    ACTION:

    Final rule; further delay of effective date.

    SUMMARY:

    The Health Resources and Services Administration (HRSA) administers section 340B of the Public Health Service Act (PHSA), known as the “340B Drug Pricing Program” or the “340B Program.” HRSA published a final rule on January 5, 2017, that set forth the calculation of the ceiling price and application of civil monetary penalties. The final rule applied to all drug manufacturers that are required to make their drugs available to covered entities under the 340B Program. On May 7, 2018, HHS solicited comments on further delaying the effective date of the January 5, 2017, final rule to July 1, 2019. HHS proposed this action to allow a more deliberate process of considering alternative and supplemental regulatory provisions and to allow for sufficient time for any additional rulemaking. After consideration of the comments received on the proposed rule, HHS is delaying the effective date of the January 5, 2017, final rule, to July 1, 2019.

    DATES:

    As of July 1, 2018, the effective date of the final rule published in the Federal Register on January 5, 2017 at 82 FR 1210, delayed March 6, 2017 at 82 FR 12508, March 20, 2017 at 82 FR 14332, May 19, 2017 at 82 FR 22893, and September 29, 2017 at 82 FR 45511, is further delayed until July 1, 2019.

    FOR FURTHER INFORMATION CONTACT:

    CAPT Krista Pedley, Director, Office of Pharmacy Affairs, Healthcare Systems Bureau, HRSA, 5600 Fishers Lane, Mail Stop 08W05A, Rockville, MD 20857, or by telephone at 301-594-4353.

    SUPPLEMENTARY INFORMATION: I. Background

    HHS published a notice of proposed rulemaking (NPRM) on June 17, 2015, to implement civil monetary penalties (CMPs) for manufacturers that knowingly and intentionally charge a covered entity more than the ceiling price for a covered outpatient drug; to provide clarity regarding the requirement that manufacturers calculate the 340B ceiling price on a quarterly basis; and to establish the requirement that a manufacturer charge $0.01 (penny pricing) for each unit of a drug when the ceiling price calculation equals zero (80 FR 34583, June 17, 2015). After review of the comments, HHS reopened the comment period (81 FR 22960, April 19, 2016) to invite additional comments on the following areas of the NPRM: 340B ceiling price calculations that result in a ceiling price that equals zero (penny pricing); the methodology that manufacturers use when estimating the ceiling price for a new covered outpatient drug; and the definition of the “knowing and intentional” standard to be applied when assessing a CMP for manufacturers that overcharge a covered entity.

    On January 5, 2017, HHS published a final rule in the Federal Register (82 FR 1210, January 5, 2017); comments from both the original comment period established in the NPRM and the reopened comment period announced in the April 19, 2016, notice were considered in the development of the final rule. The provisions of that final rule were to be effective March 6, 2017; however, HHS issued a subsequent final rule (82 FR 12508, March 6, 2017) delaying the effective date to March 21, 2017, in accordance with a January 20, 2017, memorandum from the Assistant to the President and Chief of Staff, titled “Regulatory Freeze Pending Review.” 1

    1 See: https://www.whitehouse.gov/the-press-office/2017/01/20/memorandum-heads-executive-departments-and-agencies.

    To provide affected parties sufficient time to make needed changes to facilitate compliance, and because questions were raised, HHS issued an interim final rule (82 FR 14332, March 20, 2017) to delay the effective date of the final rule to May 22, 2017. HHS solicited additional comments on whether that date should be further extended to October 1, 2017. After careful consideration of the comments received, HHS delayed the effective date of the January 5, 2017, final rule to October 1, 2017 (82 FR 22893, May 19, 2017). HHS later solicited comments on delaying the effective date to July 1, 2018 (82 FR 39553, August 21, 2017) and subsequently delayed the January 5, 2017, final rule to July 1, 2018 (82 FR 45511, September 29, 2017).

    HHS issued a proposed rule and solicited additional comments to further delay the effective date to July 1, 2019, and received a number of comments both supporting and opposing the delay (83 FR 20008, May 7, 2018). After consideration of the comments received, HHS has decided to delay the effective date of the January 5, 2017, final rule to July 1, 2019. As HHS changed the effective date of the final rule to July 1, 2019, enforcement will be delayed to July 1, 2019. HHS continues to believe that the delay of the effective date will provide regulated entities with needed time to implement the requirements of the rule, as well as allowing a more deliberate process of considering alternative and supplemental regulatory provisions, and to allow for sufficient time for any additional rulemaking. HHS intends to engage in additional or alternative rulemaking on these issues, and believes it would be counterproductive to effectuate the final rule prior to issuance of additional or alternative rulemaking on these issues. HHS is developing new comprehensive policies to address the rising costs of prescription drugs. These policies will address drug pricing in government programs, such as Medicare Parts B & D, Medicaid, and the 340B Program. Due to the development of these comprehensive policies, we are delaying the effective date of the January 5, 2017, final rule to July 1, 2019.

    HHS does not believe this delay will adversely affect any of the stakeholders in a meaningful way.

    Section 553(d) of the Administrative Procedure Act (APA) (5 U.S.C. 551 et seq.) requires that Federal agencies provide at least 30 days after publication of a final rule in the Federal Register before making it effective, unless good cause can be found not to do so or for rules that grant or recognize an exemption or relieve a restriction. HHS finds good cause for making this final rule effective less than 30 days after publication in the Federal Register given that failure to do so would result in the final rule published on January 5, 2017, going into effect on July 1, 2018, several weeks before the final rule delaying the effective date until July 1, 2019, would go into effect. To preclude this uncertainty in the marketplace and to ease the burdens of stakeholders, HHS believes that a clear effective date is an important goal and one that becomes particularly important when it is paired with potential civil monetary penalties. The additional time provided to the public before the rule takes effect will assist stakeholders to prepare for compliance with these new program requirements.

    II. Analysis and Responses to Public Comments

    In the proposed rule, HHS solicited comments regarding the impact of delaying the effective date of the final rule, published January 5, 2017, to July 1, 2019, while a more deliberate rulemaking process is undertaken. HHS received 29 comments containing a number of issues from covered entities, manufacturers, and groups representing these stakeholders. In this final rule, we will only respond to comments related to whether HHS should delay the January 5, 2017, final rule to July 1, 2019. We did not consider and do not address comments that raised issues beyond the narrow scope of the proposed rule, including comments related to broader policy matters. However, HHS is considering further rulemaking on issues covered in the January 5, 2017, final rule. We have summarized the relevant comments received and provided our responses below.

    Comment: Commenters disagree with HHS that delaying implementation of the rule has no adverse effect given that other more significant remedies are available to entities who believe that they have been overcharged by manufacturers. Commenters request that HHS explain what these “significant remedies” are, as they believe that remedies do not exist. Commenters state they cannot audit manufacturers or sue companies in court. In addition, manufacturers can decide not to participate in the 340B program's current voluntary dispute resolution process, and a proposal to make the process mandatory has been withdrawn. Currently, covered entities cannot check if they are being charged the right price. Any further postponement would prevent Congress' intent that HHS has meaningful oversight and enforcement authority.

    Response: HRSA's website describes how it carefully reviews pricing discrepancies brought to its attention. In cases in which the 340B Program's ceiling price appears to have been violated, covered entities are provided the details necessary to settle any discrepancy with the manufacturer directly. It is in the manufacturer's best interest to ensure that they are appropriately reporting AMP and URA to CMS, as well as providing the 340B Program ceiling price to 340B Program covered entities. Inaccuracies in any of this pricing information will negatively impact other drug pricing programs, such as Medicaid or Veterans Affairs programs. Further, misreporting pricing data to CMS could lead to State and Federal False Claims Act liability, which has the potential to carry triple damages and other significant monetary penalties.

    Comment: Some commenters stated that HHS alleges in the proposed rule that the delay will not adversely affect stakeholders, which ignores the extent of overcharges as documented in OIG reports. HHS also stated that “a small number of manufacturers have informed HHS over the last several years that they charge more than $0.01 for a drug with a ceiling price below $0.01” and that it “believes” a majority of manufacturers follow the “long-standing HHS policy” on penny pricing. HHS's statement that it merely “believes” most manufacturers are following the policy demonstrates that HHS has not attempted to investigate the extent of noncompliance. The penny pricing policy serves as a disincentive for manufacturers to raise drug prices much quicker than the rate of inflation and the rule should be implemented immediately in order to meet the Administration's goal of lowering drug prices. Until penny pricing is codified in a regulation, there is less incentive for manufacturers to comply and the final rule should be effective immediately.

    Response: HHS has consistently stated that “A small number of manufacturers have informed HRSA over the last several years that they charge more than $0.01 for a drug with a ceiling price below $0.01. However, this is a long-standing HRSA policy and HRSA believes the majority of manufacturers currently follow the practice of charging a $0.01. Therefore, this portion of the regulation will not result in a significant impact.” (e.g., 80 FR 34586, June 17, 2015; 82 FR 1227, January 5, 2017). The commenter does not provide evidence that a majority of manufacturers are not following the practice of charging $0.01 for a drug with a ceiling price below $0.01. HRSA's website describes how it carefully reviews pricing discrepancies brought to its attention. Through these and other mechanisms, HRSA monitors the program for noncompliance and maintains its belief that a majority of manufacturers follow the long-standing practice of charging $0.01 for a drug with a ceiling price below $0.01.

    Comment: Many commenters oppose delaying the effective date to July 1, 2019. Commenters express concern that until the January 5, 2017, final rule is implemented, covered entities remain unprotected from overcharges that can further exacerbate the negative effects of high-cost drugs. They contend that all accountability in the Program is placed on covered entities, and manufacturers are not being held accountable. They contend that the January 5, 2017, final regulation would have provided covered entities with access to a secure database to confirm ceiling prices. These commenters explain that without access to ceiling price information, covered entities have to rely on HRSA to confirm any instances in which the covered entity suspects that it was overcharged by a manufacturer, thereby hampering any meaningful enforcement against manufacturers. They conclude that continued delay of the final rule inhibits the ability of covered entities to verify whether or not manufacturers' calculations of ceiling prices are correct. The commenters request that HHS should implement the January 5, 2017, rule immediately.

    Response: HHS does not agree that that we should enforce the final rule immediately. We are delaying the effective date of the January 5, 2017, final rule to July 1, 2019, because the delay will allow HHS to consider additional rulemaking. The final rule does not represent the only method for HHS to address manufacturer overcharges. In addition to the final rule, HHS performs audits of manufacturers, investigates all allegations of overcharging, and participates in settlements that have returned millions of dollars to covered entities. HHS believes that it would be disruptive to require stakeholders to make potentially costly changes to pricing systems and business procedures to comply with a rule that is under further consideration and for which substantive questions have been raised.

    While stakeholders had the opportunity to provide comments on the final rule, the 340B Program is a complex program that is affected by changes in other areas of health care. HHS has determined that this complexity and changing environment warrants further review of the final rule and delaying the final rule affords HHS the opportunity to consider alternative and supplemental regulatory provisions and to allow for sufficient time for any additional rulemaking.

    Comment: The commenters also disagreed that “a more deliberative process is needed” as HHS has already spent 8 years considering and responding to multiple delays and stakeholders were given various opportunities to comment. HHS has not complied with the statutory deadline to promulgate the regulation and any further delay is unreasonable and violates the Administrative Procedure Act. Rather than implement the CMP Rule, HHS would reward those manufacturers that are flouting ceiling price requirements. Comments assert that the final rule would give HHS an effective penalty to impose on manufacturers that overcharge covered entities and to deter other manufacturers from doing so. In addition, commenters contend that HHS does not have authority to replace Congress' judgment with its own and ignore the requirements of the law. They urge HHS to immediately implement the January 5, 2017, final rule.

    Response: HHS believes it would be counterproductive to effectuate the final rule prior to consideration of additional or alternative rulemaking as HHS is in the process of developing new comprehensive policies to address the rising costs of prescription drugs not limited to the 340B Program. As such, HHS is delaying the effective date of the January 5, 2017, final rule until July 1, 2019. In addition, HHS believes this delay will not adversely impact covered entities and will instead save the healthcare sector compliance costs, as discussed in the January 5, 2017, final rule. Therefore, the rule is being delayed to July 1, 2019.

    Comment: Some commenters supported HHS's proposed delay of the effective date of the final rule until not only July 1, 2019, but until HHS fulfills its commitment to engage in additional rulemaking that cures the substantive legal and practical concerns with the final rule. These commenters recommend that HRSA tie the further delay of the effective date of the final rule to the completion of such rulemaking, as opposed to a certain date.

    Response: HHS decided to delay the effective date to July 1, 2019, to provide affected parties sufficient time to make needed changes to facilitate compliance and because HHS continues to examine important substantive issues arising from the January 5, 2017, final rule. After reviewing the comments received from stakeholders regarding objections on the timing of the effective date and challenges associated with complying with the final rule, HHS has determined that delaying the effective date to July 1, 2019, is necessary to consider some of the issues raised. HHS believes that delaying the effective date to July 1, 2019, provides sufficient time to address these issues in junction with HHS's stated intention to consider undertaking additional or alternative rulemaking on these issues.

    Comment: Some commenters stated that the January 5, 2017, final rule contains several policies that are inconsistent with the 340B statute and imposes unnecessary costs and needless administrative burdens on manufacturers. They believe that manufacturers should not be required to make updates to their systems, policies, and business practices to comply with the January 5, 2017, final rule if further changes or additional rulemaking will be forthcoming. These commenters urge HHS to delay the effective date to July 1, 2019, and use the additional time to reconsider the policies included in the final rule.

    Responses: HHS intends to engage in further rulemaking and believes that this delay will provide HHS with time to consider the public comments received. Requiring manufacturers to make targeted and potentially costly changes to pricing systems and business procedures to comply with a rule that is under further consideration would be disruptive. Therefore, HHS is delaying the January 5, 2017, final rule to July 1, 2019.

    Comment: Several commenters explained that a delay in the effective date of the final rule is also necessary to align with the Administration's priorities of analyzing final, but not yet effective regulations, and removing or minimizing unwarranted economic and regulatory burdens related to the Affordable Care Act, the law that added the provisions of the 340B statute that are the subject of the final rule.

    Response: HHS agrees with the commenters. Executive Order 13765 instructs agencies to use discretion to delay the implementation of certain provisions of the Patient Protection and Affordable Care Act. As previously mentioned, HHS based the January 5, 2017, final rule on changes made to the 340B Program by the Patient Protection and Affordable Care Act. As such, HHS is complying with Executive Order 13765 to delay implementation on provisions of the law that “. . . impose a fiscal burden on any State or a cost, fee, tax, penalty, or regulatory burden on individuals, families, healthcare providers, health insurers, patients, recipients of healthcare services, purchasers of health insurance, or makers of medical devices, products, or medications.” The policies finalized in the January 5, 2017, final rule will require targeted and potentially costly changes to pricing systems and business procedures for manufacturers affected by the rule. Thus, HHS is delaying the effective date to July 1, 2019.

    Comment: Some commenters recommend that HHS delay the effective date of the final rule until HHS concurrently addresses 340B covered entity compliance obligations and penalties under the 340B statute, which is necessary to strengthen the integrity of the 340B Program.

    Response: HHS plans to issue separate policy documents related to drug pricing in government programs, including the 340B Program, and disagrees with the commenters advising HHS to address these issues concurrently.

    Comment: Many commenters supported further delaying the effective date to July 1, 2019, at a minimum, and urged HHS to take the opportunity to refocus the 340B Program on its mission, and issue new reforms and new ceiling price and CMP rule as expeditiously as possible.

    Response: HHS agrees with the commenters and will delay the effective date of the January 5, 2017, final rule to July 1, 2019.

    III. Regulatory Impact Analysis

    HHS examined the effects of this final rule as required by Executive Order 12866 on Regulatory Planning and Review (September 30, 1993), Executive Order 13563 on Improving Regulation and Regulatory Review (January 8, 2011), the Regulatory Flexibility Act (Pub. L. 96-354, September 19, 1980), the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999), the Congressional Review Act, and Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs (January 30, 2017).

    Executive Orders 12866, 13563 and 13771

    Executive Orders 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). Executive Order 13563 is supplemental to and reaffirms the principles, structures, and definitions governing regulatory review as established in Executive Order 12866, emphasizing the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Section 3(f) of Executive Order 12866 defines a “significant regulatory action” as an action that is likely to result in a rule: (1) Having an annual effect on the economy of $100 million or more in any 1 year, or adversely and materially affecting a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or Tribal governments or communities (also referred to as “economically significant”); (2) creating a serious inconsistency or otherwise interfering with an action taken or planned by another agency; (3) materially altering the budgetary impacts of entitlement grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) raising novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in the Executive Order. A regulatory impact analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year), and a “significant” regulatory action is subject to review by the Office of Management and Budget (OMB).

    This final rule will not have economic impacts of $100 million or more in any 1 year, and, therefore, has not been designated an “economically significant” rule under section 3(f)(1) of Executive Order 12866. The 340B Program as a whole creates significant savings for entities purchasing drugs through the program; however, this final rule would not have an economically significant impact on the Program.

    When the 2017 Rule was finalized, it was described as not economically significant. Therefore, delay of the effective date of the 2017 Rule is also not likely to have an economically significant impact.

    Specifically, the RIA for the 2017 Rule stated that, “[. . .] manufacturers are required to ensure they do not overcharge covered entities, and a civil monetary penalty could result from overcharging if it met the standards in this final rule. HHS envisions using these penalties in rare situations. Since the Program's inception, issues related to overcharges have been resolved between a manufacturer and a covered entity and any issues have generally been due to technical errors in the calculation. For the penalties to be used as defined in the statute and in this [2017] rule, the manufacturer overcharge would have to be the result of a knowing and intentional act. Based on anecdotal information received from covered entities, HHS anticipates that this would occur very rarely if at all.” Since the civil penalties envisioned in the 2017 Rule were expected to be rare, delay of these civil penalties is unlikely to have an economically significant impact.

    Additionally, the 2017 Rule codified the practice of manufacturers charging $0.01 for drugs with a ceiling price below $0.01, which the 2017 Rule RIA described as “[. . .] a long-standing HRSA policy, and HRSA believes the majority of manufacturers currently follow the practice of charging $0.01.” Delay of this rule will delay the codification of this practice, but since it is already a longstanding policy and widespread practice, the impact of delay is not likely to be economically significant.

    Executive Order 13771, titled “Reducing Regulation and Controlling Regulatory Costs,” was issued on January 30, 2017. This rule is not subject to the requirements of E.O. 13771 because this rule results in no more than de minimis costs.

    The Regulatory Flexibility Act (RFA)

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) (RFA) and the Small Business Regulatory Enforcement and Fairness Act of 1996, which amended the RFA, require HHS to analyze options for regulatory relief of small businesses. If a rule has a significant economic effect on a substantial number of small entities, the Secretary must specifically consider the economic effect of the rule on small entities and analyze regulatory options that could lessen the impact of the rule. HHS will use an RFA threshold of at least a 3 percent impact on at least 5 percent of small entities.

    For purposes of the RFA, HHS considers all health care providers to be small entities either by meeting the Small Business Administration (SBA) size standard for a small business, or by being a nonprofit organization that is not dominant in its market. The current SBA size standard for health care providers ranges from annual receipts of $7 million to $35.5 million. As of January 1, 2018, over 12,800 covered entities participate in the 340B Program, which represent safety-net health care providers across the country.

    In addition, the rule would affect drug manufacturers (North American Industry Classification System code 325412: Pharmaceutical Preparation Manufacturing). The small business size standard for drug manufacturers is 750 employees. Approximately 600 drug manufacturers participate in the 340B Program. While it is possible to estimate the impact of the rule on the industry as a whole, the data necessary to project changes for specific or groups of manufacturers is not available, as HRSA does not collect the information necessary to assess the size of an individual manufacturer that participates in the 340B Program. HHS has determined, and the Secretary certifies that this final rule will not have a significant impact on the operations of a substantial number of small manufacturers; therefore, we are not preparing an analysis of impact for this RFA. HHS estimates that the economic impact on small entities and small manufacturers will be minimal.

    Unfunded Mandates Reform Act

    Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires that agencies prepare a written statement, which includes an assessment of anticipated costs and benefits, before proposing “any rule that includes any Federal mandate that may result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year.” In 2017, that threshold is approximately $148 million. HHS does not expect this rule to exceed the threshold.

    Executive Order 13132—Federalism

    HHS has reviewed this final rule in accordance with Executive Order 13132 regarding federalism, and has determined that it does not have “federalism implications.” This final rule would not “have substantial direct effects on the States, or on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government.”

    Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that OMB approve all collections of information by a federal agency from the public before they can be implemented. This final rule is projected to have no impact on current reporting and recordkeeping burden for manufacturers under the 340B Program. This final rule would result in no new reporting burdens.

    Dated: May 30, 2018. George Sigounas Administrator, Health Resources and Services Administration. Approved: May 31, 2018. Alex M. Azar II Secretary, Department of Health and Human Services.
    [FR Doc. 2018-12103 Filed 6-1-18; 11:15 am] BILLING CODE 4165-15-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Part 414 [CMS-6080-N] Medicare Program; Update to the Required Prior Authorization List of Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) Items That Require Prior Authorization as a Condition of Payment AGENCY:

    Centers for Medicare & Medicaid Services (CMS), HHS.

    ACTION:

    Update to list.

    SUMMARY:

    This document announces the addition of 31 Healthcare Common Procedure Coding System (HCPCS) codes to the Required Prior Authorization List of Durable Medical Equipment, Prosthetics, Orthotics, and Supplies (DMEPOS) Items that require prior authorization as a condition of payment. Prior authorization for these codes will be implemented nationwide.

    DATES:

    Implementation is effective on September 1, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Emily Calvert, (410) 786-4277.

    Andre Damonze, (410) 786-1795.

    SUPPLEMENTARY INFORMATION: I. Background

    Sections 1832, 1834, and 1861 of the Social Security Act (the Act) establish that the provision of durable medical equipment, prosthetic, orthotics, and supplies (DMEPOS) is a covered benefit under Part B of the Medicare program.

    Section 1834(a)(15) of the Act authorizes the Secretary to develop and periodically update a list of DMEPOS items that the Secretary determines, on the basis of prior payment experience, are frequently subject to unnecessary utilization and to develop a prior authorization process for these items.

    In the December 30, 2015 final rule (80 FR 81674) titled “Medicare Program; Prior Authorization Process for Certain Durable Medical Equipment, Prosthetics, Orthotics, and Supplies,” we implemented section 1834(a)(15) of the Act by establishing an initial Master List (called the Master List of Items Frequently Subject to Unnecessary Utilization) of certain DMEPOS that the Secretary determined, on the basis of prior payment experience, are frequently subject to unnecessary utilization and by establishing a prior authorization process for these items. In the same final rule, we also stated that we would inform the public of those DMEPOS items on the Required Prior Authorization List in the Federal Register with 60-day notice before implementation. The Required Prior Authorization List specified in § 414.234(c)(1) is selected from the Master List of Items Frequently Subject to Unnecessary Utilization (as described in § 414.234(b)(1)), and items on the Required Prior Authorization List require prior authorization as a condition of payment.

    In addition to the prior authorization process for certain DMEPOS items that we established under section 1834(a)(15) of the Act, on September 1, 2012, we implemented the Medicare Prior Authorization for Power Mobility Devices (PMDs) Demonstration that would operate for a period of 3 years (September 1, 2012 through August 31, 2015). This demonstration was established under section 402(a)(1)(J) of the Social Security Amendments of 1967 (42 U.S.C. 1395b-1(a)(1)(J)), which authorizes the Secretary to conduct demonstrations designed to develop or demonstrate improved methods for the investigation and prosecution of fraud in the provision of care or services provided under the Medicare program. The demonstration was initially implemented in California, Florida, Illinois, Michigan, New York, North Carolina, and Texas. These states were selected for the demonstration based upon their history of having high levels of improper payments and incidents of fraud related to PMDs. On October 1, 2014, we expanded the demonstration to 12 additional states (Pennsylvania, Ohio, Louisiana, Missouri, Washington, New Jersey, Maryland, Indiana, Kentucky, Georgia, Tennessee, and Arizona) that have high expenditures and improper payments for PMDs based on 2012 billing data. On July 15, 2015, we announced we were extending the demonstration for 3 years, through August 31, 2018.

    II. Provisions of the Document

    The purpose of this document is to inform the public that we are updating the Required Prior Authorization List of DMEPOS items that require prior authorization as a condition of payment to include all of the power mobility devices that are part of the PMD demonstration, which are also included on the Master List of Items Frequently Subject to Unnecessary Utilization. To assist stakeholders in preparing for implementation of the prior authorization program, CMS is providing 90 days' notice.

    The following 31 DMEPOS items are being added to the Required Prior Authorization List:

    HCPCS code Description K0813 Power wheelchair, group 1 standard, portable, sling/solid seat and back, patient weight capacity up to and including 300 pounds K0814 Power wheelchair, group 1 standard, portable, captains chair, patient weight capacity up to and including 300 pounds K0815 Power wheelchair, group 1 standard, sling/solid seat and back, patient weight capacity up to and including 300 pounds K0816 Power wheelchair, group 1 standard, captains chair, patient weight capacity up to and including 300 pounds K0820 Power wheelchair, group 2 standard, portable, sling/solid seat/back, patient weight capacity up to and including 300 pounds K0821 Power wheelchair, group 2 standard, portable, captains chair, patient weight capacity up to and including 300 pounds K0822 Power wheelchair, group 2 standard, sling/solid seat/back, patient weight capacity up to and including 300 pounds K0823 Power wheelchair, group 2 standard, captains chair, patient weight capacity up to and including 300 pounds K0824 Power wheelchair, group 2 heavy duty, sling/solid seat/back, patient weight capacity 301 to 450 pounds K0825 Power wheelchair, group 2 heavy duty, captains chair, patient weight capacity 301 to 450 pounds K0826 Power wheelchair, group 2 very heavy duty, sling/solid seat/back, patient weight capacity 451 to 600 pounds K0827 Power wheelchair, group 2 very heavy duty, captains chair, patient weight capacity 451 to 600 pounds K0828 Power wheelchair, group 2 extra heavy duty, sling/solid seat/back, patient weight capacity 601 pounds or more K0829 Power wheelchair, group 2 extra heavy duty, captains chair, patient weight 601 pounds or more K0835 Power wheelchair, group 2 standard, single power option, sling/solid seat/back, patient weight capacity up to and including 300 pounds K0836 Power wheelchair, group 2 standard, single power option, captains chair, patient weight capacity up to and including 300 pounds K0837 Power wheelchair, group 2 heavy duty, single power option, sling/solid seat/back, patient weight capacity 301 to 450 pounds K0838 Power wheelchair, group 2 heavy duty, single power option, captains chair, patient weight capacity 301 to 450 pounds K0839 Power wheelchair, group 2 very heavy duty, single power option, sling/solid seat/back, patient weight capacity 451 to 600 pounds K0840 Power wheelchair, group 2 extra heavy duty, single power option, sling/solid seat/back, patient weight capacity 601 pounds or more K0841 Power wheelchair, group 2 standard, multiple power option, sling/solid seat/back, patient weight capacity up to and including 300 pounds K0842 Power wheelchair, group 2 standard, multiple power option, captains chair, patient weight capacity up to and including 300 pounds K0843 Power wheelchair, group 2 heavy duty, multiple power option, sling/solid seat/back, patient weight capacity 301 to 450 pounds K0848 Power wheelchair, group 3 standard, sling/solid seat/back, patient weight capacity up to and including 300 pounds K0849 Power wheelchair, group 3 standard, captains chair, patient weight capacity up to and including 300 pounds K0850 Power wheelchair, group 3 heavy duty, sling/solid seat/back, patient weight capacity 301 to 450 pounds K0851 Power wheelchair, group 3 heavy duty, captains chair, patient weight capacity 301 to 450 pounds K0852 Power wheelchair, group 3 very heavy duty, sling/solid seat/back, patient weight capacity 451 to 600 pounds K0853 Power wheelchair, group 3 very heavy duty, captains chair, patient weight capacity 451 to 600 pounds K0854 Power wheelchair, group 3 extra heavy duty, sling/solid seat/back, patient weight capacity 601 pounds or more K0855 Power wheelchair, group 3 extra heavy duty, captains chair, patient weight capacity 601 pounds or more

    These codes will be subject to the requirements of the prior authorization program for certain DMEPOS items as outlined in § 414.234. We believe continued prior authorization of these codes will help further our program integrity goals of reducing fraud, waste, and abuse, while protecting access to care. We will implement a prior authorization program for these codes nationwide, for dates of service beginning September 1, 2018. This approach will allow continuity for those suppliers in the 19 states familiar with prior authorization of PMDs under the demonstration, and allows sufficient time for education and outreach to suppliers in the remaining states. HCPCS codes K0856 and K0861, which we placed on the Required Prior Authorization List in a December 21, 2016 notice (81 FR 93636), will continue to be subject to the requirements of prior authorization as well.

    Although the PMD demonstration's prior authorization process is similar to the process used for those items on the Required Prior Authorization List, some differences do exist. In particular, items on the Required Prior Authorization List require prior authorization as a condition of payment. As such, lack of a provisionally affirmed prior authorization request will result in a claim denial. Under the PMD demonstration, requesting prior authorization is optional, and claims submitted for payment without an associated prior authorization decision are subject to prepayment review and assessed a 25-percent reduction in Medicare payment if found payable. Additionally, under the PMD demonstration, physicians/treating practitioners may submit prior authorization requests and are eligible to bill HCPCS code G9156 for an incentive payment. This process is not available for items on the Required Prior Authorization List.

    Prior to furnishing the item to the beneficiary and prior to submitting the claim for processing, a requester must submit a prior authorization request that includes evidence that the item complies with all applicable Medicare coverage, coding, and payment rules. Consistent with § 414.234(d), such evidence must include the order, relevant information from the beneficiary's medical record, and relevant supplier-produced documentation. After receipt of all applicable required Medicare documentation, CMS or one of its review contractors will conduct a medical review and communicate a decision that provisionally affirms or non-affirms the request.

    We will issue specific prior authorization guidance in subregulatory communications, including final timelines, which are customized for the DMEPOS items subject to prior authorization, for communicating a provisionally affirmed or non-affirmed decision to the requester. In the December 30, 2015 final rule, to allow us to safeguard beneficiary access to care, we stated that this approach to final timelines provides the flexibility to develop a process that involves fewer days, as may be appropriate. If at any time we become aware that the prior authorization process is creating barriers to care, we can suspend the program.

    The updated Required Prior Authorization list is available in the download section of the following CMS website: https://www.cms.gov/Research-Statistics-Data-and-Systems/Monitoring-Programs/Medicare-FFS-Compliance-Programs/DMEPOS/Prior-Authorization-Process-for-Certain-Durable-Medical-Equipment-Prosthetic-Orthotics-Supplies-Items.html. We will post additional educational resources to the website.

    III. Collection of Information Requirements

    This notice announces the addition of DMEPOS items on the Required Prior Authorization List and does not impose any new information collection burden under the Paperwork Reduction Act of 1995. However, there is an information collection burden associated with this program that is currently approved under OMB control number 0938-1293 which expires February 28, 2019.

    Dated: May 14, 2018. Seema Verma, Administrator, Centers for Medicare & Medicaid Services.
    [FR Doc. 2018-11953 Filed 6-1-18; 4:15 pm] BILLING CODE 4120-01-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Part 73 [MB Docket No. 13-249; FCC 18-64] Revitalization of the AM Radio Service AGENCY:

    Federal Communications Commission.

    ACTION:

    Denial of petition for reconsideration; dismissal of petition for emergency partial stay and processing freeze pending review of petition for reconsideration and motion for extension of time.

    SUMMARY:

    This document denies the Petition for Reconsideration of the Second Report and Order in this proceeding, filed by Prometheus Radio Project (Prometheus) on April 10, 2017. This document dismisses as moot the Petition for Emergency Partial Stay and Processing Freeze Pending Review of Petition for Reconsideration filed by Prometheus April 3, 2017, and the Motion for Extension of Time filed by Prometheus May 11, 2017.

    DATES:

    June 5, 2018.

    ADDRESSES:

    Federal Communications Commission, 445 12th Street SW, Washington, DC 20554.

    FOR FURTHER INFORMATION CONTACT:

    Albert Shuldiner, Chief, Media Bureau, Audio Division, (202) 418-2700 or [email protected]; Thomas Nessinger, Senior Counsel, Media Bureau, Audio Division, (202) 418-2700 or [email protected]

    SUPPLEMENTARY INFORMATION:

    This is a summary of the Commission's Order on Reconsideration, MB Docket No. 13-249, FCC 18-64, adopted on May 21, 2018, and released on May 22, 2018. The full text of this document is available for public inspection and copying during regular business hours in the FCC Reference Center, Federal Communications Commission, 445 12th Street SW, Washington, DC 20554. This document will also be available via ECFS at https://www.fcc.gov/ecfs/. Documents will be available electronically in ASCII, Microsoft Word, and/or Adobe Acrobat. Copies of the materials can be obtained from the FCC's Reference Information Center at (202) 418-0270. Alternative formats are available for people with disabilities (Braille, large print, electronic files, audio format), by sending an email to [email protected] or calling the Commission's Consumer and Governmental Affairs Bureau at (202) 418-0530 (voice), (202) 418-0432 (TTY). This document is not subject to the Congressional Review Act. The Commission is, therefore, not required to submit a copy of this Order on Reconsideration to the General Accounting Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A), because the Petition for Reconsideration was denied and the Petition for Emergency Stay and Motion for Extension of Time were dismissed as moot.

    The Commission rejected Prometheus's contentions that the Commission's decision not to adopt a proposed distance limit for siting cross-service FM translator stations (translators re-broadcasting AM station signals) was not a logical outgrowth of the proposed rule and was arbitrary and capricious. It found that the decision not to adopt the proposed 40-mile limit was reasonably foreseeable, especially given that commenters had proposed omitting the 40-mile limit and that Prometheus had access to those comments. The Commission further found that its actions were not arbitrary and capricious, finding that Prometheus's contentions do not raise legitimate concerns and are at best speculative. Prometheus did not provide evidence that omission of a distance limit encourages translators to “box in” incumbent low-power FM (LPFM) stations, restricting their ability to change sites. Additionally, the Commission rejected Prometheus's argument that its final rule violated the Local Community Radio Act of 2010 (LCRA), in part because the LCRA does not mandate that the Commission prefer LPFM stations over FM translators. To the extent the LCRA obliges the Commission to consider local community needs, the Commission has stated that FM translators and LPFM stations both serve community needs in different ways, and that giving AM stations more flexibility in siting fill-in cross-service translators, without a set distance limit, was in the public interest, as it allows an AM station to improve its program service to listeners in the local communities within its primary service contour. The Commission finally rejected Prometheus's argument that the Commission falsely equated the LPFM service with local commercial AM broadcasters, because the amended rule benefits both commercial and noncommercial AM stations.

    Federal Communications Commission. Marlene Dortch, Secretary.
    [FR Doc. 2018-11965 Filed 6-4-18; 8:45 am] BILLING CODE 6712-01-P
    83 108 Tuesday, June 5, 2018 Proposed Rules DEPARTMENT OF HOMELAND SECURITY U.S. Immigration and Customs Enforcement 8 CFR Part 103 [DHS Docket No. ICEB-2017-0001] RIN 1653-AA67 Procedures and Standards for Declining Surety Immigration Bonds and Administrative Appeal Requirement for Breaches AGENCY:

    U.S. Immigration and Customs Enforcement, Department of Homeland Security.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    The U.S. Department of Homeland Security (DHS) proposes two changes that would apply to surety companies certified by the Department of the Treasury (Treasury) to underwrite bonds on behalf of the Federal Government. First, the proposed rule would require Treasury-certified sureties seeking to overturn a surety immigration bond breach determination to exhaust administrative remedies by filing an administrative appeal raising all legal and factual defenses. This requirement to exhaust administrative remedies and present all issues to the administrative tribunal would allow Federal district courts to review a written decision addressing all of the surety's defenses, thereby streamlining litigation over the breach determination's validity. Second, this proposed rule would set forth “for cause” standards and due process protections so that U.S. Immigration and Customs Enforcement (ICE), a component of DHS, may decline bonds from companies that do not cure their deficient performance. Treasury administers the Federal corporate surety program and, in its current regulations, allows agencies to prescribe in their regulations for cause standards and procedures for declining to accept bonds from a Treasury-certified surety company. DHS proposes the for cause standards contained in this rule because certain surety companies have failed to pay amounts due on administratively final bond breach determinations or have had in the past unacceptably high breach rates.

    DATES:

    Comments must be submitted electronically or postmarked no later than August 6, 2018.

    ADDRESSES:

    You may submit comments, identified by the DHS docket number to this rulemaking, Docket No. ICEB-2017-0001, to the Federal Docket Management System (FDMS), a government-wide, electronic docket management system, by one of the following methods:

    Electronically: Submit comments to the Federal eRulemaking Portal at http://www.regulations.gov. Follow the instructions for submitting comments.

    Mail: Address your written comments to the individual in the FOR FURTHER INFORMATION CONTACT section below. DHS docket staff, which maintains and processes ICE's official regulatory dockets, will scan the submission and post it to FDMS.

    See the Public Participation portion of the SUPPLEMENTARY INFORMATION section below for instructions on submitting comments.

    FOR FURTHER INFORMATION CONTACT:

    Melinda A. Jones, Management and Program Analyst, MS 5207, Enforcement and Removal Operations, U.S. Immigration and Customs Enforcement, 500 12th Street SW, Washington, DC 20536; telephone (202) 732-5919; email [email protected].

    SUPPLEMENTARY INFORMATION: Table of Contents I. Public Participation A. Submitting Comments B. Viewing Comments and Documents C. Privacy Act D. Public Meeting II. Abbreviations III. Background A. Immigration Bonds Generally B. Need for Exhaustion Requirement C. Need for Ability To Decline Bonds From Non-Performing Surety Companies D. Treasury Regulation Allows Federal Agencies To Decline Bonds From Certified Sureties for Cause IV. Discussion of Proposed Rule A. Exhaustion of Administrative Remedies B. Issue Exhaustion C. Standards and Process for Declining Bonds From a Treasury-Certified Surety D. Technical Changes V. Statutory and Regulatory Requirements A. Executive Orders 12866 and 13563: Regulatory Planning and Review B. Initial Regulatory Flexibility Analysis C. Unfunded Mandates Reform Act D. Small Business Regulatory Enforcement Fairness Act of 1996 E. Collection of Information F. Federalism G. Civil Justice Reform H. Energy Effects I. Environment The Proposed Amendments I. Public Participation

    We encourage you to participate in this rulemaking by submitting comments and related materials. Comments received will be posted, without change, to http://www.regulations.gov as part of the public record and will include any personal information you have provided. Should you wish your personally identifiable information redacted prior to filing in the docket, please so state. We also invite comments relating to the economic, environmental, energy, or federalism impacts that might result from this rulemaking action. See ADDRESSES, above, for methods to submit comments. Mailed submissions may be paper or CD-ROM.

    A. Submitting Comments

    If you submit comments, 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. You may submit your comments and materials online or by mail, but please use only one of these means. ICE will file all comments sent to our docket address, as well as items sent to the address or email under FOR FURTHER INFORMATION CONTACT, in the public docket, except for comments containing confidential information. If you submit a comment, it will be considered received by ICE when it is received at the Docket Management Facility.

    To submit your comments online, go to http://www.regulations.gov, and insert the complete Docket number starting with “ICEB” in the “Search” box. Click on the “Comment Now!” box and input your comment in the text box provided. Click the “Continue” box, and if you are satisfied with your comment, follow the prompts to submit it. If you submit your comments by mail, submit them in an unbound format, no larger than 81/2 by 11 inches, suitable for copying and electronic filing. If you would like us to acknowledge receipt of comments submitted by mail, include with your comments a self-addressed, stamped postcard or envelope on which the docket number appears. We will stamp the date on the postcard and mail it to you.

    We will consider all comments and materials submitted during the comment period and may change this rule based on your comments. The docket is available for public inspection before and after the comment closing date.

    B. Viewing Comments and Documents

    To view comments, as well as documents mentioned in this preamble as being available in the docket, go to http://www.regulations.gov and insert the complete Docket number starting with “ICEB” in the “Search” box. Click on the “Open Docket Folder,” and you can click on “View Comment” or “View All” under the “Comments” section of the page. Individuals without internet access can make alternate arrangements for viewing comments and documents related to this rulemaking by contacting ICE through the FOR FURTHER INFORMATION CONTACT section above.

    C. Privacy Act

    Anyone can search the electronic form of comments received into any of our dockets by the name of the individual submitting the comment (or signing the comment, if submitted on behalf of an association, business, labor union, etc.). Commenters may wish to read the Privacy and Security Notice that is available via a link on the homepage of http://www.regulations.gov.

    D. Public Meeting

    We do not now plan to hold a public meeting, but you may submit a request for one using one of the methods specified under ADDRESSES above. In your request, explain why you believe a public meeting would be beneficial. If we determine that one would aid this rulemaking, we will hold one at a time and place announced by a later notice in the Federal Register.

    II. Abbreviations AAO Administrative Appeals Office APA Administrative Procedure Act BFS Bureau of the Fiscal Service, Department of the Treasury CFR Code of Federal Regulations DHS Department of Homeland Security DOJ Department of Justice FY Fiscal Year ICE U.S. Immigration and Customs Enforcement INA Immigration and Nationality Act INS Immigration and Naturalization Service OMB Office of Management and Budget USCIS U.S. Citizenship and Immigration Services III. Background A. Immigration Bonds Generally

    ICE may release certain aliens from detention during removal proceedings after a custody determination has been made pursuant to 8 CFR 236.1(c). ICE may require an alien to post an immigration bond as a condition of his or her release from custody. See Immigration and Nationality Act (INA) sec. 236(a)(2)(A), 8 U.S.C. 1226(a)(2)(A); 8 CFR 236.1(c)(10). A delivery bond is posted to guarantee the appearance of the bonded alien for removal, an interview, or at immigration court hearings. Immigration bonds also may be posted to, for instance, secure the timely voluntary departure of an alien from the United States, 8 CFR 1240.26(b)(3)(i), (c)(3)(1), or to secure compliance with an order of supervision, 8 CFR 241.5(b). See also INA sec. 103(a)(3), 8 U.S.C. 1103(a)(3) (authorizing Secretary of Homeland Security to “prescribe such forms of bond” as the Secretary deems necessary to carry out his immigration authorities).

    Immigration bonds may be secured by a cash deposit (“cash bonds”) or may be underwritten by a surety company certified by Treasury pursuant to 31 U.S.C. 9304-9308 to issue bonds on behalf of the Federal government (“surety bonds”). 8 CFR 103.6(b). Treasury publishes the list of certified sureties in Department Circular 570, available at http://www.fiscal.treasury.gov/fsreports/ref/suretyBnd/c570_a-z.htm. For cash bonds, ICE requires a deposit for the face amount of the bond and, if the bond is breached, ICE transfers that deposit into the Breached Bond/Detention Fund as compensation for the breach of the bond agreement. 8 U.S.C. 1356(r); 8 CFR 103.6(b), (e). In contrast, when a surety bond is breached, ICE must issue an invoice to collect the amount due from the surety company or its agent. ICE Form I-352 (Rev. 03/08). This proposed rule would apply only to surety bonds.

    Pursuant to the terms of the bond, surety companies and their agents serve as co-obligors on the bond and are jointly and severally liable for payment of the face amount of the bond when ICE issues an administratively final breach determination. In this proposed rule, the singular term “bond obligor” refers to either the surety company or the bonding agent. The plural term “bond obligors” refers to both entities.

    ICE officials may declare a bond breached when there has been a “substantial violation of the stipulated conditions.” 8 CFR 103.6(e). Bond breach determinations are issued on ICE Form I-323, Notice—Immigration Bond Breached. ICE makes such a determination when a bond obligor fails to deliver the alien into ICE custody when requested, when an obligor fails to ensure that the alien timely voluntarily departs the United States, or when an obligor fails to ensure that the alien complies with an order of supervision, as required by the terms of the bond.

    Bond obligors have a right to appeal the breach determination by completing Form I-290B, Notice of Appeal or Motion, and submitting the form together with the appropriate filing fee and a brief written statement setting forth the reasons and evidence supporting the appeal within 30 days of the date of the determination. 8 CFR 103.3. If a bond obligor does not timely appeal the breach determination to the U.S. Citizenship and Immigration Services (USCIS) Administrative Appeals Office (AAO), or if the appeal is denied, the breach determination becomes an administratively final agency action. See 8 CFR 103.6(e); see generally United States v. Gonzales & Gonzales Bonds & Ins. Agency, Inc., 728 F. Supp. 2d 1077, 1086-91 (N.D. Cal. 2010); Safety Nat'l Cas. Corp. v. DHS, 711 F. Supp. 2d 697, 703-04 (S.D. Tex. 2008).1

    1 Courts have also held that certain AAO decisions are final agency actions when the AAO issues opinions on non-bond appeals within its jurisdiction in other contexts. See, e.g. , Herrera v. U.S. Citizenship & Imm. Servs., 571 F.3d 881, 885 (9th Cir. 2009).

    For surety bonds, if a bond obligor does not timely appeal to the AAO or if the appeal is dismissed, ICE will issue a demand for payment on an administratively final breach determination in the form of an invoice to the bond obligors. 31 CFR 901.2(a). The bond obligors have 30 days to pay the invoice or submit a written dispute; otherwise, the debt is past due. 31 CFR 901.2(b)(3). During this 30-day period, the bond obligors may seek agency review of the debt. See 6 CFR 11.1(a); 31 CFR 901.2. If the bond obligors ask to review documents related to the debt, ICE will provide documents supporting the existence of the debt. If the bond obligors dispute the debt, ICE will review the breach determination and issue a written response to any issues raised by the bond obligors. Under the terms set forth in ICE's invoice, if a debtor, such as a bond obligor, does not pay the invoice within 30 days of issuance of the written response to the dispute, the invoice is past due. See 31 CFR 901.2(b)(3).

    B. Need for Exhaustion Requirement

    Treasury-certified surety companies that receive a breach determination need to know when that decision is final to plan their next steps. When a decision is final, the bond obligor can seek further review of the decision in the Federal courts. 5 U.S.C. 704. An initial agency action, such as a bond breach determination is considered final and subject to judicial review unless exhaustion of administrative remedies is required, i.e., unless (1) a statute expressly requires an appeal to a higher agency authority, or (2) the agency's regulations require (a) an appeal to a higher agency authority as a prerequisite to judicial review, and (b) the administrative action is made inoperative during such appeal. Darby v. Cisneros, 509 U.S. 137, 154 (1993).2 An agency may also by regulation require issue exhaustion. Sims v. Apfel, 530 U.S. 103, 108 (2000). Issue exhaustion means that a litigant cannot raise an issue in federal court without first raising the issue in the litigant's administrative appeal.

    2See also Air Espana v. Brien, 165 F.3d 148, 151 (2d Cir. 1999) (noting that the Immigration and Nationality Act does not impose an exhaustion requirement); DSE, Inc. v. United States, 169 F.3d 21, 26-27 (D.C. Cir. 1999) (filing of appeal did not make agency decision inoperative); Young v. Reno, 114 F.3d 879, 881-82 (9th Cir. 1997) (by regulation, appeal was not required).

    In this rule, DHS proposes to require Darby exhaustion by revising DHS regulations such that before a surety can sue on DHS's bond breach determination in federal court, the surety must appeal such determination to the AAO. Consistent with Darby, the rule would also provide that the agency's breach determination remains inoperative during the pendency of such appeal. In addition, DHS proposes to require issue exhaustion by requiring sureties to raise all factual and legal issues in an administrative appeal or waive those issues in federal court.

    The need for exhaustion of administrative remedies and issue exhaustion requirements for bond breach determinations is evidenced by two cases where district court judges required ICE to issue written decisions addressing defenses raised by surety companies and their agents for the first time in federal district court litigation. In these cases filed by the United States in federal district court to collect amounts due from surety companies and their agents for breached bonds, the courts issued remand orders requiring ICE to prepare written decisions addressing whether over 100 breach determinations were valid after evaluating the defenses raised by the bond obligors. United States v. Int'l Fidelity Ins. Co., No. 2:11-cv-396-FSH-PS, ECF No. 86 at 8 (D.N.J. July 30, 2012); United States v. Gonzales & Gonzales Bonds & Ins. Agency, Inc., 2012 WL 4462915, at *9 (N.D. Cal. Sept. 25, 2012).

    Requiring exhaustion of administrative remedies and issue exhaustion would streamline this type of litigation and conserve judicial resources because the bond obligors would be required to raise all factual and legal issues in an administrative appeal, and the AAO would issue a written decision addressing all defenses. The administrative appeal process would allow errors to be corrected without resort to federal court litigation and would avoid the delay associated with remanding breach determinations to the agency to issue written administrative decisions addressing defenses. As noted by a district court judge, appropriate review of an agency determination under the APA would be simplified if DHS amended its current regulations to require exhaustion of administrative remedies. See Int'l Fidelity Ins. Co., ECF No. 86, at 9. This proposed regulation would promote judicial economy by allowing federal courts to review breach determinations under the APA's arbitrary and capricious standard of review since remanding breach determinations to ICE would no longer be necessary.

    C. Need for Ability To Decline Bonds From Non-Performing Surety Companies

    For decades, certain surety companies and their agents have failed to pay invoices for breached bonds timely (within 30 days) or to present specific reasons to the agency why, in their view, the breach determinations are invalid. This non-performance has compelled litigation in federal court to resolve thousands of unpaid breached-bond debts valued in the millions of dollars and has also resulted in ICE filing claims in state receivership proceedings when sureties cannot pay past-due invoices. ICE needs to be able to decline new bonds from non-performing surety companies, after providing the due process specified in the proposed rule, to give them an incentive to take appropriate action when a bond is breached.

    The need for the ability to decline bonds derives from the lack of an effective existing mechanism to address non-performing surety companies. Specifically, certain surety companies' failure to pay amounts due on breached bonds has been ongoing for years, and the agency has considered different approaches to recovering payments. In 1982, Regional Counsel for the former Immigration and Naturalization Service (INS) recommended that the INS amend 8 CFR 103.6 to implement a procedure, similar to that established by the U.S. Customs Service in July 1981, to stop accepting bonds from surety companies with poor payment records until their payment performance improved, but this proposal was never implemented.

    In 2005, ICE notified a surety with substantial delinquent debt that it would no longer accept immigration bonds underwritten by that company and separately asked Treasury to revoke the surety's certification to post bonds on behalf of the United States. A district court enjoined ICE's action not to accept additional bonds, ruling that ICE could not decline immigration bonds from this surety without first affording the company procedural due process rights. Safety Nat'l Cas. Corp. v. DHS, No. 4:05-cv-2159, slip op. at 8 (S.D. Tex. Dec. 9, 2005).

    Treasury, after conducting an informal hearing, issued a determination concluding that the surety company exhibited a course and pattern of doing business that was incompatible with its authority to underwrite bonds on behalf of the United States and directed the surety to make full payment of all amounts due and owing on over 900 breached bonds (over $7 million at the time). See “Notice to Safety National Casualty Corp. from FMS Commissioner” (Jan. 23, 2007) (withdrawn and vacated, with prejudice, on July 19, 2013). The surety then filed suit in Federal district court on February 21, 2007, seeking to enjoin Treasury from enforcing its final decision and to vacate Treasury's ruling that the surety should be decertified. Safety Nat'l Cas. Corp. v. U.S. Dep't of the Treasury, No. 4:07-cv-00643 (S.D. Tex. Feb. 21, 2007), ECF No. 1. On August 27, 2008, the court stayed the case pending the resolution of 1,421 bond disputes, id. (Minute Entry), raised in an earlier case filed by Safety National Casualty Corp. and its agent against DHS, Safety Nat'l Cas. Corp. v. DHS, No. 4:05-cv-2159 (S.D. Tex. filed June 23, 2005), ECF No. 1. On July 30, 2013, the Treasury case was dismissed based on a settlement agreement reached by the parties in the earlier case involving the 1,421 bond disputes. No. 4:07-cv-00643, ECF. No. 67. This example illustrates the difficulty ICE has encountered in precluding surety companies that have not paid invoices issued on administratively final breach determinations from issuing new immigration bonds.

    The repeated failures of certain surety companies to respond appropriately to breached-bond invoices, either by disputing the validity of the breach determination or paying the invoice, shows the need for this proposed rule that would allow ICE to decline bonds from non-performing surety companies.

    D. Treasury Regulation Allows Federal Agencies To Decline Bonds From Certified Sureties for Cause

    Treasury's Bureau of the Fiscal Service (BFS) is responsible for administering the corporate Federal surety bond program pursuant to 31 U.S.C. 9304-9308 and 31 CFR part 223. Treasury evaluates the qualifications of sureties to underwrite Federal bonds and issues certificates of authority to those sureties that meet the specified corporate and financial standards. Under 31 U.S.C. 9305(b)(3), a surety must “carry out its contracts” to comply with statutory requirements. To “carry out its contracts” and be in compliance with section 9305, a surety must, on a continuing basis, make prompt payment on invoices issued to collect amounts arising from administratively final determinations.

    On October 16, 2014, Treasury published a final rule entitled, “Surety Companies Doing Business with the United States.” 79 FR 61992. The rule became effective on December 15, 2014. This Treasury regulation clarifies that: (1) Treasury certification does not insulate a surety from the requirement to satisfy administratively final bond obligations; and (2) an agency bond-approving official has the discretion to decline to accept additional bonds on behalf of his or her agency that would be underwritten by a Treasury-certified surety for cause provided that certain due process standards are satisfied.

    Through this proposed rule, DHS proposes to specify the circumstances under which ICE would decline to accept new immigration bonds from Treasury-certified sureties. This proposed rule would also set forth the procedures that ICE would follow before it declines bonds from a surety. This proposed rule would facilitate the prompt resolution of bond obligation disputes between ICE and sureties and would minimize the number of situations where the surety routinely fails to pay administratively final bond obligations or fails to promptly seek administrative review of bond breach determinations.

    IV. Discussion of Proposed Rule A. Exhaustion of Administrative Remedies

    Exhaustion of administrative remedies serves many purposes. Bastek v. Fed. Crop Ins. Corp., 145 F.3d 90, 93 (2d Cir. 1998). First, exhausting administrative remedies ensures that persons do not flout established administrative processes by ignoring agency procedures. See McKart v. United States, 395 U.S. 185, 195 (1969); Pub. Citizen Health Research Group v. Comm'r, Food & Drug Admin., 740 F.2d 21, 29 (D.C. Cir. 1984). Second, it protects the autonomy of agency decision making by allowing the agency the opportunity to apply its expertise in the first instance, exercise discretion it may have been granted, and correct its own errors. Woodford v. Ngo, 548 U.S. 81, 89 (2006). Third, the doctrine aids judicial review by permitting the full factual development of issues relevant to the dispute. James v. HHS, 824 F.2d 1132, 1137-38 (D.C. Cir. 1987). Finally, the doctrine of exhaustion promotes judicial and administrative economy by resolving some claims without judicial intervention. Woodford, 548 U.S. at 89. For all of these reasons, DHS considers it to be both necessary and appropriate to mandate the exhaustion of administrative remedies for bond breach determinations on bonds issued by Treasury-certified surety companies.

    DHS proposes, therefore, that a Treasury-certified surety or its agent that receives a breach notification from ICE must seek administrative review of that breach determination by filing an appeal with the AAO before the agency's action becomes final and subject to judicial review. The initial breach determination would not be enforced while any administrative appeal is pending. ICE would not issue an invoice to collect the amount due from the bond obligors on a breached bond until the agency action becomes final. If the bond obligor failed to file an administrative appeal during the filing period (currently 30 days) or filed an appeal that is summarily dismissed or rejected due to failure to comply with the agency's deadlines or other procedural rules, then the bond obligor would have waived all issues and would not be able to seek review of the breach determination in Federal court.3 ICE would then issue an invoice to collect the amount due.4

    3See, e.g., Woodford, 548 U.S. at 90 (“Proper exhaustion demands compliance with an agency's deadlines and other critical procedural rules”); Silverton Snowmobile Club v. U.S. Forest Serv., 433 F.3d 772, 787 (10th Cir. 2006) (upholding district court's dismissal of complaint due to failure to exhaust administrative remedies); Galvez Pineda v. Gonzales, 427 F.3d 833, 838 (10th Cir. 2005) (“[U]ntimely filings with administrative agencies do not constitute exhaustion of administrative remedies.”); Glisson v. U.S. Forest Serv., 55 F.3d 1325 (7th Cir. 1995) (suit barred for failure to appeal from the decision of the supervisor of a national forest to authorize the sale of timber).

    4 Because a motion to reconsider or reopen a bond breach determination does not stay the final decision, a bond obligor's failure to file such a motion would not constitute failure to exhaust administrative remedies.

    B. Issue Exhaustion

    The proposed regulation would also require Treasury-certified surety companies and their agents to raise all defenses or other objections to a bond breach determination in their appeal to the AAO; otherwise, these defenses and objections would be deemed waived. The Supreme Court has observed that administrative issue exhaustion requirements may be created by agency regulations:

    [I]t is common for an agency's regulations to require issue exhaustion in administrative appeals. See, e.g., 20 CFR 802.211(a) (1999) (petition for review to Benefits Review Board must “lis[t] the specific issues to be considered on appeal”). And when regulations do so, courts reviewing agency action regularly ensure against the bypassing of that requirement by refusing to consider unexhausted issues.

    Sims v. Apfel, 530 U.S. 103, 107-08 (2000).

    DHS believes that issue exhaustion is appropriate and necessary when a Treasury-certified surety company or its agent appeals a breach determination to the AAO. Some of these companies have engaged in protracted litigation over the validity of bond breach determinations; some of this litigation could have been streamlined if the bond obligors had been required to present all of their issues and disputes to the agency for adjudication on appeal before suit was filed in Federal court instead of raising new issues for the first time in federal court. Under this proposed rule, DHS would consider issue exhaustion to be mandatory in that a commercial surety or its agent would be required to raise all issues before the AAO and would waive and forfeit any issues not presented.

    C. Standards and Process for Declining Bonds From a Treasury-Certified Surety

    As required by the Treasury regulation, DHS, through this proposed rule, would establish the standards ICE would use to decline surety immigration bonds for cause (the “for cause” standards) and the procedures that ICE would follow before declining bonds from a Treasury-certified surety. The standards proposed by ICE are informed by the important function that surety immigration bonds serve in the orderly administration of the immigration laws. Because insufficient resources exist to hold in custody all of the individuals whose statuses are being determined through removal proceedings, delivery bonds perform the vital function of allowing eligible individuals to be released from custody while the bond obligors accept the responsibility for ensuring their future appearance when required. If the bond obligor fails to satisfy its obligations under the terms of the bond, a claim is created in favor of the United States for the face amount of the bond. 8 CFR 103.6(e); Immigration Bond, ICE Form I-352, G.1 (Rev. 03/08). Enforcing collection of a breached immigration bond is important to motivate bond obligors to comply with the obligations they agreed to when they executed the bond and upon which ICE relied in permitting the alien to remain at liberty while removal proceedings are pending. When an alien does not appear as required, agency resources must be expended to locate the alien and take him or her back into custody.

    In short, the standards DHS proposes for ICE to exercise its discretion to decline bonds from sureties arise from the need to maintain the integrity of the bond program. The bond program does not operate as intended when sureties (1) fail to timely pay invoices based on administratively final breach determinations, or (2) have unacceptably high breach rates. The incentive to deliver aliens in response to demand notices is reduced when sureties do not timely forfeit the amount of the bond as a consequence of their failure to perform. Moreover, if sureties do not submit payment for the Government's claim created as a result of the breach, they may receive an undeserved windfall if they retain any premiums or collateral paid by the person who contracted with them to obtain the bond on behalf of the alien (the indemnitor).

    1. For Cause Standards

    The rule proposes three circumstances, or for cause standards, when ICE may notify a surety of its intention to decline any new bonds underwritten by the surety.5 ICE's decision about whether to decline new bonds would be discretionary; ICE would not be required to stop accepting new bonds every time one of the for cause standards has been violated, and ICE would retain discretion to work with surety companies on an individual basis to ensure compliance.

    5 Treasury's regulation permitting agencies to promulgate “for cause” standards to decline administratively bond obligations is “prospective and is not intended to require a principal to obtain replacement bonds that have already been accepted.” 79 FR 61992, 61995. Accordingly, DHS does not anticipate that ICE's notification would have any effect on a surety's open bonds.

    First For Cause Standard: Ten or More Past Due Invoices

    Under the first for cause standard, ICE would be authorized to issue a notice of its intention to decline new bonds when the surety has ten or more past due invoices issued after the final rule's effective date. The terms “invoice,” “administratively final,” and “past due” are each terms of art which require further explanation.

    In this context, an “invoice” is a demand notice that ICE sends to a surety company seeking payment on an administratively final breach determination. A breach determination is “administratively final” either when the time to file an appeal with the AAO has expired without an appeal having been filed or when the appeal is denied. See 8 CFR 103.6(e); see also Gonzales & Gonzales Bonds, 728 F. Supp. 2d at 1086, 1091; Safety Nat'l Cas. Corp., 711 F. Supp. 2d at 703-04.

    Finally, an invoice is “past due” when the bond obligor does not pay the invoice within 30 days of ICE's issuance of the invoice. 31 CFR 901.2(b)(3). This 30-day period can be tolled if the obligor disputes the debt during the 30-day period.6 If the obligor disputes the debt, ICE will review the underlying breach determination and issue a written response to any issues raised by the surety or bonding agent. If ICE, in its written response to the obligor's dispute, concludes that the debt is invalid, ICE will cancel the invoice. If, however, ICE concludes that the debt is valid, the obligor has 30 days from issuance of the written decision to pay the debt. If a disputed invoice is valid, or if the obligor has declined to timely dispute the invoice at all, such an invoice, when it becomes past due, would be included as one of the ten past due invoices that may trigger the issuance of a notice that ICE intends to decline new bonds underwritten by the surety.7

    6 Treasury has issued guidance to federal agencies instructing them to “develop clear policies and procedures on how to respond to a debtor's request for copies of records related to the debt, consideration for a voluntary repayment agreement, or a review or hearing on the debt.” Department of the Treasury, Managing Federal Receivables, at 6-16 (Mar. 2015). When it issues an invoice, ICE includes information about its collection policies, including a statement that: “If a timely written request disputing the debt is received, the debt will be reviewed and collection will cease on the debt or disputed portion until verification or correction of the debt is made and a written summary of the review is provided.” ICE Form Invoice, “Important Information Regarding This Invoice,” maintained by ICE's Financial Service Center Burlington.

    7 There is no further administrative review of ICE's determination that a disputed invoice is valid. This is because the administratively final breach determination underlying each invoice has already been subject to appellate review. In other words, because ICE does not issue an invoice until after the related breach has become administratively final, ICE's issuance of an invoice, and its review of a disputed invoice, would not occur until after the AAO had already resolved the obligor's appeal, if any, of the underlying breach determination.

    Again, the first for cause standard would be triggered when at least 10 invoices issued after the final rule's effective date are past due. DHS proposes this standard because, when a surety company has 10 past-due invoices, such a company is not fulfilling its obligation to diligently and promptly act on demands for payment. DHS considered using a smaller number of past due invoices as the trigger for this standard, but concluded that some leeway should be given for missed payments. However, DHS believes that a reasonably attentive surety company should be able to avoid having 10 past due invoices at the same time. For example, in FY 2015, the only surety companies that exceeded 10 unpaid invoices were four companies that either were in liquidation or exhibited a practice of repeatedly not paying invoices. In other words, nonpayment of 10 invoices did not occur through mistake or inadvertence. During this same period, multiple surety companies had timely paid all of their invoices or were late in submitting payments on fewer than ten. DHS requests comment on this proposed standard, including whether the number of past due invoices should be higher or lower, and if so, on what basis.

    Second For Cause Standard: Cumulative Debt of $50,000 or More on Past Due Invoices

    Under the second for cause standard, ICE would be authorized to issue a notice of its intention to decline new bonds when the surety owes a cumulative total of $50,000 or more on past due invoices issued after the effective date of the final rule, including interest and other fees assessed by law on delinquent debt. This proposed rule includes a for cause standard based on cumulative debt because bond amounts differ based on custody determinations and a surety could have a fairly large cumulative debt (over $50,000) when fewer than 10 invoices are unpaid. As of September 27, 2016, the lowest surety bond value was $500 and the highest surety bond value was $340,000, the average value of the over 23,000 open surety bonds (those that have not yet been breached or canceled) was about $10,200, the median value was $8,000, and almost 11,000 of the open surety bonds had a face value of $10,000 or more.8 As of September 27, 2016, seven surety companies (some of which, of their own volition, no longer post new bonds) owed past due invoices. Five of the sureties owed cumulative debts above $50,000, and the median amount of cumulative debt owed by these companies was substantial—$450,500. Two companies that regularly pay invoices promptly had less than $50,000 of past due debts and six other sureties' payments were current.

    8 Immigration Bond Statistics maintained by ICE's Financial Service Center Burlington.

    Likewise, data from FY 2015 confirm that surety companies that regularly pay invoices on time do not generally exceed a cumulative total of $50,000 in past due debt. In FY 2015, there were four companies that generally paid their debts in a timely manner but had late payments. One of those companies accumulated a total amount of $22,000 in past due debt during FY 2015. Two other companies had no past due debts during FY 2015. In comparison, five non-performing sureties accumulated past due debts greater than $50,000 during FY 2015, and the median amount of past due debt accumulated among those companies was $194,000.

    These numbers suggest that the $50,000 threshold represents a reasonable trigger because, based on an average bond amount of $10,200, a surety can quickly accumulate a substantial debt if it is not committed to fulfilling its obligations by paying invoices timely. Continuing to accept bonds from such an entity places an unacceptable risk on the agency. If a surety company is approaching $50,000 in unpaid obligations and cannot pay such obligations, it should stop attempting to post new bonds.

    This standard also gives ICE the flexibility to take action when a surety's non-performance is problematic even though fewer than ten invoices may be past due. Because almost half of the open surety bonds are in the amount of $10,000 or more, a surety could incur a cumulative debt of $50,000 or more with relatively few unpaid invoices. This second for cause standard recognizes that possibility and gives ICE the option of taking action when the surety has failed to timely pay invoices, while still giving the surety some latitude in making late payments. Having separate standards based either on a designated number of unpaid invoices or the dollar value of past due debt would allow ICE to take appropriate action when a surety company is not current on payments of administratively final breach determinations. DHS requests comment on this proposed standard, including whether the cumulative total debt should be higher or lower, and if so, on what basis.

    Third For Cause Standard: Bond Breach Rate of 35 Percent or Greater

    Finally, under the third for cause standard, ICE would be authorized to issue a notice of its intention to decline new bonds when the surety's breach rate for bonds is 35 percent or greater during a fiscal year. The breach rate is important because it measures the surety's compliance with its obligations under the terms of the immigration bond. The breach rate is calculated by dividing the number of administratively final breach determinations during a fiscal year for a surety company by the sum of the number of bonds breached and the number of bonds cancelled for that surety company during the same fiscal year. For example, if 50 bonds posted by a surety company were declared breached from October 1 to September 30, and 50 bonds posted by that same surety were cancelled during the same fiscal year (for a total of 100 bond dispositions), that surety would have a breach rate of 50 percent for that fiscal year.

    ICE issues notices of breach determinations on Form I-323, Notice—Immigration Bond Breached. As noted above, if the surety does not appeal ICE's breach determination to the AAO, ICE's breach determination becomes administratively final after the appeal period has expired and would be used in the breach rate calculation. If the surety files an appeal with AAO, only those breach determinations upheld by the AAO would be included in the breach rate calculation. In addition, for immigration delivery bonds, ICE would include in the breach rate calculation instances when ICE's mitigation policy applies because these bonds have been breached. As set forth in prior ICE policy statements and as recognized by courts, see Gonzales & Gonzales Bonds, 103 F. Supp. 3d at 1150, the mitigation policy applies to delivery bond breaches when the surety company or its agent has delivered the alien within 90 days of the surrender date set forth on the Form I-340, Notice to Obligor to Deliver Alien (demand notice). Currently, the amount forfeited is reduced when the surety or its agent surrenders the alien within 90 days of the surrender date. The mitigation policy does not apply when the alien appears on his or her own at an ICE office or when the alien appears with the indemnitor. Gonzales & Gonzales Bonds, 103 F. Supp. 3d at 1150. Because breaches to which the mitigation policy applies are still breached bonds, ICE would include these breach determinations in its calculation of a surety's breach rate.

    This rule proposes to calculate breach rates on a Federal fiscal year basis (October 1-September 30) to generate a meaningful sample size for each company. ICE will perform the breach rate calculation in the month of January after the end of the relevant fiscal year so that ICE can work with “closed out” data. The breach rate calculations used in the standard would be calculated for the first full fiscal year beginning after the effective date of any final rule, and each fiscal year thereafter. If an appeal filed with the AAO is still pending while the breach rate calculation is being performed, ICE will not include that breach in its calculations until the AAO has issued a decision dismissing the appeal. This proposed rule uses 35 percent as the trigger because past performance shows that sureties can meet this standard by exercising reasonable diligence. Higher breach rates signal that obligors are not taking adequate actions to fulfill their responsibility to surrender aliens. During FY 2016, all surety companies currently posting immigration bonds had a breach rate, calculated using this approach, that was less than 35 percent. Surety companies have demonstrated their ability to comply with a 35 percent breach rate; a higher breach rate would demonstrate a departure from their own and their peers' past performance. Moreover, as set forth in the bond agreement's terms and conditions, bonds are automatically cancelled when certain events occur before the bond has been breached, such as the death of the alien or the alien's departure from the United States. These types of bond cancellations would assist the surety companies in maintaining a relatively low breach rate. Using 35 percent as a threshold for taking action is reasonable because surety companies would be given some latitude when they are, on occasion, unable to produce the alien, but they would still be accountable for surrendering aliens for almost two-thirds of the demands issued. DHS requests comment on this proposed standard, including whether the breach rate should be higher or lower, and if so, on what basis.

    2. Procedures

    Under the proposed rule, ICE would implement the following procedures to afford the surety company procedural due process protections consistent with 31 CFR 223.17: (1) Provide advance written notice to the surety stating the agency's intention to decline future bonds underwritten by the surety; (2) set forth the reasons for the proposed non-acceptance of such bonds; (3) provide an opportunity for the surety to rebut the stated reasons for non-acceptance of the bonds; and (4) provide an opportunity to cure the stated reasons, i.e., deficiencies, causing ICE's proposed non-acceptance of the bonds. ICE will consider any written submission presented by the surety in response to the agency's notice provided that the response is received by ICE on or before the 30th calendar day following the date ICE issued the notice. ICE may decline bonds underwritten by the surety only after issuing a written determination that the bonds should be declined when at least one of the for cause standards set forth in this rule has been triggered.

    D. Technical Changes

    The proposed rule also includes technical changes. DHS proposes to update the reference to Treasury's authority to certify surety companies to underwrite bonds on behalf of the Federal Government in 8 CFR 103.6(b) from “6 U.S.C. 6-13” to “31 U.S.C. 9304-9308” to reflect Public Law 97-258 (96 Stat. 877, Sept. 13, 1982), an Act that codified without substantive change certain laws related to money and finance as title 31, United States Code, “Money and Finance.”

    V. Statutory and Regulatory Requirements

    DHS developed this proposed rule after considering numerous statutes and executive orders related to rulemaking. The following sections summarize our analyses based on a number of these statutes or executive orders.

    A. Executive Orders 12866 and 13563: Regulatory Planning and Review

    Executive Orders 12866 (“Regulatory Planning and Review”) and 13563 (“Improving Regulation and Regulatory Review”) 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). Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. Executive Order 13771 (“Reducing Regulation and Controlling Regulatory Costs”) directs agencies to reduce regulation and control regulatory costs and provides that “for every one new regulation issued, at least two prior regulations be identified for elimination, and that the cost of planned regulations be prudently managed and controlled through a budgeting process.”

    The Office of Management and Budget (OMB) has not designated this rule a “significant regulatory action” under section 3(f) of Executive Order 12866. Accordingly, OMB has not reviewed it. As this rule is not a significant regulatory action, this rule is exempt from the requirements of Executive Order 13771. See OMB's Memorandum “Guidance Implementing Executive Order 13771, Titled `Reducing Regulation and Controlling Regulatory Costs'” (April 5, 2017). An initial regulatory assessment follows.

    This proposed rule would require Treasury-certified sureties seeking to overturn an ICE breach determination to file an administrative appeal raising all legal and factual defenses in their appeal. DHS anticipates that more appeals would be filed with the AAO as a result of this proposed requirement. The costs to sureties to comply with this proposed requirement include the transactional costs associated with filing an appeal with the AAO. Sureties that do not appeal a breach determination could incur the cost of foregoing the opportunity to obtain judicial review of a breach determination. Surety companies would also incur familiarization costs in learning about the proposed requirements.

    The proposed rule would also establish ICE standards for declining surety immigration bonds for cause and the procedures that ICE would follow before making a determination that it will no longer accept new bonds from a Treasury-certified surety. If a surety fulfills its obligations and is not subject to these for cause standards, this proposed provision would impose no additional costs on that surety. Surety companies that fail to fulfill their obligations and are subject to the for cause standards may incur minimal costs in responding to ICE's notification. If they fail to cure any deficiencies in their performance, they may also lose business when ICE declines to accept new bonds submitted by the surety.

    DHS estimates the most likely total 10-year discounted cost of the proposed rule to be approximately $1.1 million at a seven percent discount rate and approximately $1.3 million at a three percent discount rate. The benefits of the proposed rule include improved efficiency and lower costs in litigating unresolved breach determinations. In addition, the rule would increase incentives for surety companies to timely perform obligations, provide ICE with a mechanism to stop accepting new bonds from non-performing sureties after due process has been provided, and reduce adverse consequences both of sureties' failures to pay invoices timely on administratively final breach determinations and unacceptably high breach rates. When a surety fails to perform its obligation to deliver an alien and the bond is breached, ICE's resources are expended in locating aliens who have not been surrendered in response to ICE's demands. Finally, the proposed rule would allow ICE to resolve or avoid certain disputes, thereby decreasing the debt referred to Treasury for further collection efforts or the cases referred to DOJ for litigation.

    1. Exhaustion of Administrative Remedies i. Costs

    To comply with the exhaustion of administrative remedies requirement, sureties would be required to appeal a breach determination to the AAO and to raise all issues or defenses during the appeal or waive them in future court proceedings. Currently, if a surety company decides to appeal a breach determination, the surety company can choose to appeal the breach determination to the AAO or undergo a federal district court review. The current and proposed appeal processes, beginning at the stage of an ICE bond breach determination, are represented in Figure 1.

    EP05JN18.020

    Anticipated costs for sureties to comply with this proposed requirement are costs associated with filing an appeal with the AAO. Sureties filing an appeal must complete Form I-290B, Notice of Appeal or Motion, and submit the form together with the $675 filing fee set by USCIS 9 along with a brief written statement setting forth the reasons and evidence supporting the appeal. If a surety or its agent decides not to timely challenge a breach determination, this proposed requirement would impose no additional costs.

    9 USCIS I-290B, Notice of Appeal or Motion, Filing Fee $675, https://www.uscis.gov/i-290b.

    In the recent past, sureties have filed few administrative appeals of bond breach determinations. From fiscal year (FY) 2013 through FY 2015, on average 466 surety bonds were breached annually, and only 23 bond breaches for both cash bonds and surety bonds were appealed annually.10 In other words, less than five percent of all surety bond breaches were appealed annually during FY 2013 through FY 2015.

    10 USCIS AAO Appeals Adjudications. All cash and surety breached bond appeals for Immigration Bond Form I-352 are presented for FY 2011 through FY 2015. https://www.uscis.gov/sites/default/files/USCIS/About%20Us/Directorates%20and%20Program%20Offices/AAO/AAO_Appeal_Adjudications_FY11-FY15.pdf.

    DHS believes that the proposed exhaustion of administrative remedies requirement would likely increase the number of appeals of breach determinations by sureties because they would waive their right to federal district court review if they did not file an administrative appeal.

    To estimate the number of appeals under this proposed rule, DHS assumes that invoices that were paid promptly can serve as a proxy for breaches that are not subject to disputes and are thus not likely to be appealed. In FY 2013, ICE issued invoices for 401 breached surety bonds. Sixty-five percent of the invoices (259 invoices) were timely paid.11 Because these bond breach determinations were not disputed and the invoices were paid timely, DHS presumes that it is unlikely that surety companies would file appeals with the AAO to contest these breaches. The remaining 35 percent of the FY 2013 surety bond invoices (142 invoices) that were not timely paid could be considered “disputed” and potential candidates for AAO appeals if the proposed exhaustion of administrative remedies requirement were in effect. In FY 2014, 119 out of 382 or 31 percent of invoices were not timely paid. In FY 2015, 313 out of 616 or 51 percent of invoices were not timely paid. Based upon this information, DHS estimates that approximately 41 percent of the surety bond breaches from FY 2013-FY 2015 might have been appealed if an exhaustion requirement had been in place compared to the current average annual appeal rate of less than five percent.12 DHS calculates that the total expected number of AAO appeals for surety bonds that might be filed each year is approximately 190.13 DHS requests comment on all aspects of this analysis and the assumptions underlying the analysis.

    11 “Timely” as used in this context means that the payments were processed within 45 days of issuance of the invoice or were made in accordance with a payment agreement.

    12 ICE's Financial Service Center Burlington.

    13 Three-year average (FY 2013-FY 2015) of invoices not timely paid. 142 + 119 + 313 = 574. 574 ÷ 3 = 191.33.

    Sureties that appeal would incur an opportunity cost for time spent filing an appeal with the AAO. USCIS estimates the average burden for filing Form I-290B is 90 minutes.14 The person preparing the appeal could either be an attorney or a non-attorney in the immigration bond business. DHS does not have information on whether all surety companies have an in-house attorney, so we considered a range of scenarios depending on the opportunity cost of the person who would prepare the appeal. DHS assumes the closest approximation to the cost of a non-attorney in the immigration bond business is an insurance agent. DHS requests comment on these assumptions. The average hourly loaded wage rate of an insurance agent is $44.31.15 The average hourly loaded wage rate of an attorney is $96.06.16 To determine the full opportunity costs if a surety company hired outside counsel, we multiplied the fully loaded average wage rate for an in-house attorney ($96.06) by 2.5 for a total of $240.14 to roughly approximate an hourly billing rate for outside counsel.17 For purposes of this analysis, DHS assumes the minimum opportunity cost scenario is one where a non-attorney, or insurance agent (or equivalent), prepares the appeal. The opportunity cost per appeal in this scenario would be approximately $66.47 ($44.31 × 1.5 hours). DHS assumes that an in-house attorney or an insurance agent (or equivalent) is equally likely to prepare a surety's appeal. Thus, the primary estimate for the cost to prepare the appeal is $105.27—the average of the wage rates for an in-house attorney and an insurance agent multiplied by the estimated time to prepare the appeal ($70.19 18 × 1.5 hours). DHS estimates a maximum cost scenario in which a surety would hire outside counsel to prepare the appeal, resulting in a cost of $360.21 ($240.14 × 1.5 hours). Sureties would also incur a $675 filing fee per appeal. When the filing fee is added to the cost of preparing the appeal, the total cost per appeal would range from $741 ($675 + $66.47) to $1,035 ($675 + $360.21), with a primary estimate of $780 ($675 + $105.27). This results in a total annual cost between $140,790 and $196,650, with a primary estimate of $148,200 ($780 × 190 breached bonds).

    14 Form I-290B, 2016 Information Collection Request Supporting Statement, Question 12, https://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201609-1615-002.

    15 Bureau of Labor Statistics, Occupational Employment Statistics May 2015, Standard Occupational Code 41-3021 Insurance Sales Agents, Mean hourly wage $31.15, http://www.bls.gov/oes/2015/may/oes413021.htm. The fully loaded wage rate is calculated using the percentage of wages to total compensation, found in the Bureau of Labor Statistics, Employer Costs for Employee Compensation June 2015, Table 1: Employer costs per hour worked for employee compensation and costs as a percent of total compensation: Civilian workers, by major occupational and industry group, Sales and Office Occupational Group, http://www.bls.gov/news.release/archives/ecec_09092015.pdf. Wages are 70.3 percent of total compensation. $44.31 = $31.15/0.703.

    16 Bureau of Labor Statistics, Occupational Employment Statistics May 2015, Standard Occupational Code 23-1011 Lawyers, Mean hourly wage $65.51, http://www.bls.gov/oes/2015/may/oes231011.htm. The fully loaded wage rate is calculated using the percentage of wages to total compensation, found in the Bureau of Labor Statistics, Employer Costs for Employee Compensation June 2015, Table 1: Employer costs per hour worked for employee compensation and costs as a percent of total compensation: Civilian workers, by major occupational and industry group, Management, Professional, and related group, http://www.bls.gov/news.release/archives/ecec_09092015.pdf. Wages are 68.2 percent of total compensation. $96.06 = $65.51/0.682.

    17 DHS has previously calculated the hourly cost of outside counsel using this methodology of multiplying the fully loaded average wage rate for an in-house attorney by 2.5. See the Final Small Entity Impact Analysis of the Supplemental Proposed Rule “Safe-Harbor Procedures for Employers Who Receive a No-Match Letter,” page G-4, at http://www.regulations.gov/#!documentDetail;D=ICEB-2006-0004-0922.

    18 $70.19 = ($44.31 + $96.06)/2.

    DHS expects minimal costs to the Federal government associated with the proposed regulation. When a surety files an appeal with the AAO seeking review of a breach determination, an ICE Enforcement and Removal Operations (ERO) Bond Control Specialist at the ERO field office that issued the breach determination submits to the AAO a Record of Proceedings (ROP) containing documents relevant to the breach determination. Each ROP takes approximately 90 minutes to compile, for a total of 285 hours annually (1.5 hours × 190 appeals). The fully loaded average hourly wage rate, including locality pay, for an ERO Bond Control Specialist is $30.40.19 The total annual cost to ICE to compile the ROPs is approximately $8,664. The costs to USCIS for conducting an administrative review of the appeals are covered by the $675 fee charged for each appeal, as well as by funds otherwise available to USCIS.

    19 ICE Office of Human Capital.

    ii. Benefits

    The proposed rule would assist both DOJ's and ICE's efforts in litigating unpaid invoices to collect on breached surety bonds. For example, the proposed rule would eliminate the need for the type of remand decisions required by two federal courts in litigation to collect unpaid breached bond invoices because the AAO would already have had an opportunity to issue a written decision addressing all of the surety company's defenses raised as part of the required administrative appeal. As with any requirement for exhaustion of administrative remedies, the proposed rule would promote judicial and administrative efficiency by resolving many claims without the need for litigation. Furthermore, with an exhaustion requirement, any court would review the AAO decision under the APA's arbitrary and capricious standard of review. Review confined to a defined administrative record would eliminate the time-consuming discovery process.

    2. Process for Declining Bonds i. Costs

    The proposed rule would establish for cause standards that ICE would use to decline new immigration bonds from a surety company. If the surety does not meet these standards, ICE would be authorized to notify the surety that it has fallen below the required performance levels and, if the surety fails to cure its deficient performance, ICE will stop accepting new bonds from the company. The anticipated costs of a surety's response to ICE's notification would derive from the due process requirements set by Treasury for all agencies that issue rules to decline new bonds from Treasury-certified sureties. The proposed rule would provide an opportunity for the surety to rebut the stated reasons for non-acceptance of new bonds and would provide an opportunity to cure the stated deficiencies. In addition to costs in responding to ICE's notifications, sureties may lose future revenue if ICE makes a final determination to decline new bonds underwritten by the surety.

    The proposed rule would only apply prospectively. However, for purposes of this economic analysis, DHS uses a snapshot of sureties' past financial performance to estimate the possible impacts of the proposed rule on future performance. DHS examined the impacts to surety companies that actively posted bonds with ICE in FY 2015. In FY 2015, nine sureties posted immigration bonds with ICE and would have been subject to the requirements of this rule had it been in place. Of those nine sureties, three would have met at least one of the proposed for cause standards as of the end of FY 2015. Moreover, two of those three surety companies would have met two of the three for cause standards as of the end of FY 2015. These two sureties together had more than 1,500 invoices that were on average more than 1,000 days past due. In addition, they had a total outstanding balance of over $13.4 million, although DOJ has filed cases or is negotiating settlements on debts referred to it for litigation to resolve these past due balances. The third surety company would have exceeded one for cause standard with an aggregate of more than $50,000 past due. DHS proposes the for cause standards to deter deficient performance. DHS believes that less stringent standards would allow historical, deficient business practices to continue. DHS also believes that more stringent standards could result in unnecessarily sanctioning sureties when they are making good-faith efforts to comply with their obligations.

    Currently, sureties have ample opportunities to evaluate and challenge breach determinations. When ICE issues a breach determination, sureties have 30 days to file an appeal with the AAO. If obligors do not appeal in a timely manner, or if the appeal is dismissed, then the breach determination becomes an administratively final agency action. When ICE issues a demand for payment on administratively final breach determinations, the surety is given 30 days to pay the invoice, during which time the surety may dispute the amount as well as the validity of the breach determination. The surety may also ask to review documents supporting the debt. If the surety disputes the debt, ICE will review and provide a written response to any issues raised by the surety. These opportunities are available each time a bond is breached and invoiced.

    Under the proposed rule, if a surety has 10 or more invoices past due at one time, owes a cumulative total of $50,000 or more on past due invoices, or has a breach rate of 35 percent or greater in a fiscal year, ICE would be authorized to notify the surety that it has fallen below the required performance levels. The surety would have the opportunity to review ICE's written notice identifying the for cause reasons for declining new bonds, rebut the agency's reasons for non-acceptance of new bonds, and cure its performance deficiencies. Before any surety would receive a notification from ICE of its intention to decline any new bonds underwritten by the surety, the surety would have had ample opportunities to evaluate and rebut each administratively final breach determination. Furthermore, the for cause standards for declining new bonds would be triggered only when the surety has failed to pay amounts due on administratively final breach determinations or has an unacceptably high breach rate. If a surety fulfills its obligations and is not subject to these for cause standards, this proposed rule would impose no additional costs on that surety.

    Surety companies may incur a new opportunity cost when responding to the agency's notification of its intention to decline any new bonds underwritten by the surety. DHS estimates that personnel at a surety company may spend three hours to complete a response to the ICE notification. DHS assumes that an insurance agent (or equivalent) of the surety company, an in-house attorney, or outside counsel is equally likely to respond to the notification. The opportunity cost estimate per response would be $381 ($127 × 3 hours).20 DHS requests comment on all aspects of this analysis and the assumptions underlying the analysis.

    20 $127 represents the rounded, average loaded wage rate of an insurance agent, an in-house attorney and outside counsel hired by the surety. $127 = ($44.31 + $96.06 + $240.14)/3.

    Because a surety would have had ample opportunities to evaluate and challenge administratively final breach determinations, DHS anticipates that it will rarely need to send a notification of its intent to decline new bonds because sureties will use good faith efforts to avoid triggering the proposed for cause standards. However, for the purposes of this cost analysis, DHS assumes that it would send one to three notifications during a 10-year period.21 To calculate the cost of responding to three notifications over 10 years (the likely maximum number of notifications), the likelihood of issuing a notification during any given year is multiplied by the opportunity cost per response. This equals about $114 (30 percent × $381). The cost of responding to one notification over 10 years (the likely minimum number of notifications) would be approximately $38 (10 percent × $381). Thus, the range of response costs per year would be $38 to $114, with a primary, or most likely, estimate of $76 (20 percent × $381).

    21 As discussed previously, one or more of the proposed for cause standards would have applied to three companies as of the end of FY 2015. DHS assumes that, at most, the for cause standards would be triggered for the same number of companies over the course of 10 years. DHS assumes that it is possible and somewhat likely that at a minimum, one company's failure to perform will trigger the proposed for cause standards over 10 year timeframe.

    Sureties that receive, after being afforded due process, a written determination that future bonds will be declined pursuant to the for cause standards set forth in this rule would also incur future losses from the inability to submit to ICE future bonds underwritten by the surety. Because DHS does not have access to information about the surety companies' profit margins per bond, DHS is unable to estimate any future loss in revenue to these companies. However, DHS notes that, although it would no longer accept immigration bonds underwritten by these sureties, the proposed rule would not prohibit these sureties from underwriting bonds for other agencies in the Federal Government.

    ii. Benefits

    This rule would address problems that ICE has had with certain surety companies failing to pay amounts due on administratively final bond breach determinations or having unacceptably high breach rates. For example, certain companies have realized an undeserved windfall when they have refused to timely pay invoices, yet have foreclosed on collateral securing the bonds because the bonds have been breached. The proposed rule would provide greater incentive for surety companies to timely pay their administratively final bond breach determinations and help ensure that sureties comply with the requirements imposed by the terms of a bond. In turn, this would minimize the number of situations where the surety routinely fails to pay and reduce the number of times agency resources are expended in locating aliens when the alien is not surrendered in response to demands issued pursuant to bonds. In addition, the proposed rule would allow ICE to resolve or avoid certain disputes, thereby decreasing the debt referred to Treasury for further collection efforts or the cases referred to DOJ for litigation.

    3. Regulatory Familiarization Costs

    During the first year that this rule is in effect, sureties would need to learn about the new rule and its requirements. DHS assumes that each Treasury-certified surety company currently issuing immigration bonds would conduct a regulatory review. DHS assumes that this task is equally likely to be performed by either an in-house attorney or by a non-attorney at each surety company. DHS estimates that it would take eight hours for the regulatory review by either an in-house attorney or a non-attorney, such as an insurance agent (or equivalent), at each surety. No data were identified from which to estimate the amount of time required to review the regulation. DHS requests that commenters provide data if possible.

    To calculate the familiarization costs, DHS multiplies its estimated review time of eight hours by the average hourly loaded wage rate of an attorney and an insurance agent, $70.19. DHS calculates that the familiarization cost per surety company is $562 (8 hours × $70.19). DHS calculates the total estimated regulatory familiarization cost for all sureties currently issuing immigration bonds as $5,054 ($70.19 × 8 hours × 9 sureties).

    4. Alternatives

    OMB Circular A-4 directs agencies to consider regulatory alternatives to the provisions of the proposed rule.22 This section addresses two alternative regulatory approaches and the rationales for rejecting these alternatives in favor of the proposed rule.

    22 OMB Circular A-4, https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A4/a-4.pdf.

    The first alternative would be to include different for cause standards for surety companies that fall in different ranges of underwriting limitations.23 For example, surety companies with higher underwriting limitations could be held to more stringent for cause standards than companies with lower underwriting limitations. The difference of underwriting limitations is great for some Treasury-certified sureties: the lowest underwriting limitation of all of the Treasury-certified sureties is $251,000 per bond and the highest is $9.7 billion per bond. This distinction might be supported by the assumptions that companies with higher underwriting limitations would issue more bonds and possibly bonds of higher values and thus their actions should be monitored more closely, and larger companies have greater resources to ensure compliance with the for cause standards.

    23 The underwriting limitations set forth in the Treasury's Listing of Certified Companies are on a per bond basis. Department of the Treasury's Listing of Certified Companies Notes, (b) (updated July 1, 2017), https://www.fiscal.treasury.gov/fsreports/ref/suretybnd/notes.htm.

    This alternative was rejected because the amount of a non-performing surety company's underwriting limitation should have no bearing on whether DHS can stop accepting bonds from that surety company. The underwriting limitation is an indication of the surety company's financial resources. A surety company can comply with its immigration bond responsibilities regardless of its underwriting limitation. In addition, because the average amount of a surety bond is about $10,200,24 and the lowest underwriting limitation per bond set by Treasury greatly exceeds this average bond amount, it would serve no purpose to make a distinction among surety companies based on their underwriting limitations. Thus, the agency rejected this alternative.

    24 Immigration Bond Statistics maintained by ICE's Financial Service Center Burlington.

    The second regulatory alternative DHS considered would be to apply the requirements of the proposed rule to cash bond obligors as well as to surety companies to further the goal of treating all bond obligors similarly. DHS has rejected this alternative for several reasons. First, by definition, cash bond obligors cannot be delinquent in paying invoices on administratively final breach determinations. Cash bond obligors deposit with ICE the full face amount of the bond before the bond is issued. Thus, when a bond is breached, no invoice is issued because the Federal Government already has the funds on deposit. Second, because cash bond obligors generally will post only one immigration bond, the same concerns about repeated violations of applicable standards do not apply to them. The majority of cash bond obligors are not institutions, but friends or family members of the alien who has been detained. From FY 2011—FY 2015, at least 65 percent of cash bonds were posted by an obligor who only posted one bond.25 Finally, the volume of disputes regarding surety bonds, as opposed to cash bonds, necessitates administrative and issue exhaustion requirements for claims based on surety bonds. The number of claims in federal court involving breached surety bonds in litigation has far exceeded the number of claims involving breached cash bonds. One surety bond case alone presented more than 1,400 breached bond claims for adjudication.26 In contrast, the number of cash bond cases litigated in federal courts has averaged less than two per year for the past five years.27

    25 ICE's Financial Service Center Burlington.

    26AAA Bonding Agency Inc., v. DHS, 447 F. App'x 603, 606 (5th Cir. 2011).

    27 ICE's Financial Service Center Burlington.

    DHS requests public comment on the alternatives considered, as well as any additional alternatives that DHS does not include here but should consider in the future.

    5. Conclusion

    The proposed rule would require Treasury-certified sureties or their bonding agents seeking to overturn a breach determination to file an administrative appeal raising all legal and factual defenses in this appeal, and would allow ICE to decline new bonds from surety companies that fail to meet for cause standards. DHS has provided an estimate of the transactional costs, the opportunity costs, and the familiarization costs associated with this proposed rule, as well as the proposed rule's benefits. DHS requests public comment on all aspects of its analysis, including assumptions and alternatives considered. Table 1 summarizes the costs and benefits of the proposed rule.

    Table 1—Summary of Costs and Benefits of the Proposed Rule [2015$] Category Discount rate
  • (%)
  • Minimum
  • estimate
  • ($)
  • Primary
  • estimate
  • ($)
  • Maximum
  • estimate
  • ($)
  • Annualized Monetized Costs: Exhaustion of administrative remedies 7
  • 3
  • 140,790
  • 140,790
  • 148,200
  • 148,200
  • 196,650
  • 196,650
  • For Cause Standards 7
  • 3
  • 38
  • 38
  • 76
  • 76
  • 114
  • 114
  • Familiarization * 7
  • 3
  • 673
  • 575
  • 673
  • 575
  • 673
  • 575
  • Government Costs to prepare record of proceedings 7
  • 3
  • 8,664
  • 8,664
  • 8,664
  • 8,664
  • 8,664
  • 8,664
  • Total Annualized Cost 7
  • 3
  • 150,165
  • 150,067
  • 157,613
  • 157,515
  • 206,101
  • 206,004
  • Total 10-Year Undiscounted Cost 1,499,975 1,574,456 2,059,337 Total 10-Year Discounted Cost 7
  • 3
  • 1,054,693
  • 1,280,104
  • 1,107,005
  • 1,343,638
  • 1,447,566
  • 1,757,252
  • Unquantified Costs • Surety companies may lose revenue if ICE declines new immigration bonds. Unquantifiable Benefits • The proposed rule would assist DOJ's efforts in preparing cases for litigation and eliminate the need for remand decisions. • The proposed rule would decrease the debt referred to Treasury for further collection efforts, and streamline the litigation of any breached bond claims referred to DOJ. • The proposed rule would increase compliance with a surety company's duty to surrender aliens and reduce the number of times agency resources are expended in locating aliens when the alien is not surrendered. Net Benefits NA NA NA * Familiarization cost is the cost to businesses to familiarize themselves with the proposed rule. It is a one-time cost expected to be incurred within the first year of the rule's effective date. The cost is estimated to be $562 per surety company.
    B. Initial Regulatory Flexibility Analysis

    The Regulatory Flexibility Act (RFA) at 5 U.S.C. 603 requires agencies to consider the economic impact its rules will have on small entities. In accordance with the RFA, DHS has prepared an Initial Regulatory Flexibility Analysis (IRFA) that examines the impacts of the proposed rule on small entities (5 U.S.C 601 et seq.). 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 fewer than 50,000.

    DHS requests information and data from the public that would assist with better understanding the impact of this proposed rule on small entities. DHS also seeks alternatives that will accomplish the objectives of this rulemaking and minimize the proposed rule's economic impact on small entities.

    1. A Description of the Reasons Why the Action by the Agency is Being Considered

    DHS proposes procedural and substantive standards under which it may decline new immigration bonds from a Treasury-certified surety and an exhaustion of administrative remedies requirement. If finalized, this rule would facilitate the resolution of disputes between ICE and sureties that arise after the effective date of any final rule.

    The proposed rule would promote judicial and administrative efficiency by allowing Federal courts to review the AAO's written evaluation of the validity of a breach determination under the APA without first remanding breach decisions to DHS to prepare written decisions based on defenses raised for the first time in federal court. In addition, the discovery process would be unnecessary in cases solely involving the review of a written AAO decision on a defined administrative record.

    By establishing the for cause standards, surety companies would have a greater incentive to surrender aliens in response to demand notices, thereby reducing agency resources expended in locating aliens. They also would have a greater incentive to either pay amounts due on invoices for breached bonds or appeal the breach determination, thereby reducing the number of delinquent debts referred to Treasury for further collection efforts and claims referred to DOJ for litigation.

    2. A Succinct Statement of the Objectives of, and Legal Basis for, the Proposed Rule

    DHS's objective in requiring exhaustion of administrative remedies and issue exhaustion for disputed surety bond breaches is to allow the agency to correct any mistakes it may have made before claims are filed in federal court, and to allow for more efficient judicial review of breach determinations under the APA. Currently, sureties are not required to file administrative appeals, and one case involving breached bond claims took over 10 years to litigate and another took over seven years. The legal bases for requiring exhaustion of administrative remedies and issue exhaustion are well-established. See Darby v. Cisneros, 509 U.S. 137, 154 (1993); Sims v. Apfel, 530 U.S. 103, 107-108 (2000).

    DHS's objective in adopting the for cause standards for declining bonds is to provide an incentive for sureties to comply with their obligations to surrender aliens in response to demand notices and to timely pay the amounts due on invoices for breached bonds or appeal the breach determinations.

    3. A Description—and, Where Feasible, an Estimate of the Number—of Small Entities To Which the Proposed Rule Will Apply

    For FY 2015 nine of the 273 Treasury-certified sureties 28 would have been subject to the requirements of this proposed rule had it been in place because these nine sureties are the only ones that posted new immigration bonds with ICE during FY 2015. However, any of the Treasury-certified sureties could potentially post new immigration bonds with ICE and would then be subject to the requirements of this proposed rule. Most surety companies are subsidiaries or divisions of insurance companies,29 where bail bonds are a small part of their portfolios. Other lines of surety bonds include contract, commercial, customs, construction, notary, and fidelity bonds.30

    28 The list of Treasury-certified sureties can be found here: https://www.fiscal.treasury.gov/fsreports/ref/suretyBnd/CertifiedCompanies.pdf. There are 266 sureties as of July 1, 2017.

    29 National Association of Surety Bond Producers and Surety and Fidelity Association of America, “Frequently-Asked Questions,” 2016, http://suretyinfo.org/?page_id=84#surety.

    30 International Credit Insurance & Surety Association, “What kind of surety bonds does a surety insurance company issue?”, 2016, http://www.icisa.org/surety/1548/mercury.asp?page_id=1899.

    DHS used multiple data sources such as Hoover's and ReferenceUSA 31 to determine that four of these sureties are small entities as that term is defined in 5 U.S.C. 601(6). This determination is based on the number of employees or revenue being less than their respective Small Business Administration (SBA) size standard.32 These four sureties issued approximately 85 percent of the total number of surety bonds to ICE in FY 2015. The following table provides the industry descriptions of the small entities that would be impacted by the proposed rule.

    31 These databases offer information of location, number of employees, and estimated sales revenue for millions of U.S. businesses. The Hoover's website is www.hoovers.com. The Reference USA website is http://www.referenceusa.com. ICE collected data from these sources in April 2016.

    32 U.S. Small Business Administration, Table of Small Business Size Standards Matched to North American Industry Classification System (NAICS) Codes, February 26, 2016. https://www.sba.gov/sites/default/files/files/Size_Standards_Table.pdf.

    None of the nine entities that posted bonds with ICE in FY2015 were small governmental organizations or small organizations not dominant in their field.

    Table 2—Small Entities to which the Proposed Rule Would Apply NAICS Code NAICS Description Count of
  • entities
  • impacted by
  • proposed rule
  • SBA size standard
  • (in sales receipts or number of
  • employees)
  • 523930 Investment Advice 1 $38,500,000. 524126 Direct Property and Casualty Insurance Carriers 3 1,500 employees. Total 4
    4. 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 Necessary for Preparation of the Report or Record

    The proposed rule would require that a surety company, or its bonding agent, that receives a breach determination notification must seek administrative review of that breach determination by filing an appeal with the AAO before seeking judicial review. The proposed rule would also require a surety company to respond to any notification that it violated a for cause standard. Other than responding to such a notification, the proposed rule would impose no recordkeeping or reporting requirement.

    Estimated Cost and Impact as a Percentage of Revenue

    To estimate the impact on small entities, DHS has calculated the cost of this proposed rule as a percentage of the revenue of those entities. During the first year that this rule would be in effect, sureties of all sizes would need to learn about the new rule and its requirements. DHS assumes that this task would be equally likely to be performed by either an attorney or by a non-attorney in the immigration bond business. DHS uses the average compensation of an attorney and an insurance agent (the closest approximation to the cost of a non-attorney in the immigration bond business), $70.19,33 to estimate the familiarization cost. DHS estimates that it will take eight hours for the regulatory review. No data were identified from which to estimate the amount of time required to review the regulation. DHS requests that commenters provide data if possible.

    33 Bureau of Labor Statistics, supra notes 12 and 13. The average of the described wages is $70.19 = ($96.06 + $44.31)/2.

    To calculate the familiarization costs, DHS multiplies its estimated review time of eight hours by the average of an attorney and an insurance agent's hourly loaded wage rate, $70.19. DHS calculates that the familiarization cost per surety is $562 (8 hours × $70.19).

    Another cost that sureties may incur is the fee for filing an appeal with the AAO. One possibility that DHS cannot account for in its analysis is that a surety company's agent may pay the filing fee instead of the surety company. DHS has no information about the contractual arrangements between a surety company and its agent, but either party can file an appeal with the AAO and pay the required fee. For purposes of its analysis, DHS assumes that the surety company pays for all the appeals filed. DHS requests comment on this assumption.

    As discussed previously, sureties that chooses to appeal complete Form I-290B, Notice of Appeal, and submit the form with a $675 filing fee and a brief written statement setting forth the reasons and evidence supporting the appeal. From FY 2013 through FY 2015, 466 bonds were breached on average annually. Of these 466 breached bonds, only 23 bond breaches for all types of bonds (cash bonds and surety bonds) were appealed each year on average. DHS believes that the proposed exhaustion of administrative remedies requirement would likely increase the number of appeals filed by sureties because otherwise they would waive their right to judicial review.

    To estimate the number of appeals under this proposed rule, DHS assumes that invoices that were paid promptly can serve as a proxy for breaches that are not subject to disputes and are thus not likely to be appealed. In FY 2013, ICE issued invoices for 401 breached surety bonds. Sixty-five percent of the invoices (259 invoices) were timely paid. Because these bond breach determinations were not disputed and the invoices were paid timely, DHS presumes that it is unlikely that surety companies would file appeals with the AAO to contest these breaches. The remaining 35 percent of the FY 2013 surety bond invoices (142 invoices) that were not timely paid could be considered “disputed” and potential candidates for AAO appeals if the proposed exhaustion of administrative remedies requirement were in effect. In FY 2014, 119 out of 382 or 31 percent of invoices were not timely paid. In FY 2015, 313 out of 616 invoices or 51 percent of invoices were not timely paid. Based upon this information, DHS estimates that approximately 41 percent of the surety bond breaches from FY 2013—FY 2015 might have been appealed if an exhaustion requirement had been in place. DHS calculates that the total expected number of AAO appeals for surety bonds that might be filed each year is approximately 190.

    For the purposes of this analysis, DHS assumes that the 190 appeals are divided among the sureties at the same ratio at which the sureties posted bonds in FY 2015. DHS multiplies the percent of bonds posted in FY 2015 that may be appealed, or 4.8 percent, by the number of bonds posted in FY 2015 for each of four small business sureties to estimate the annual number of breached bonds that the companies might appeal. Applying this methodology to the number of bonds posted by the four small businesses during FY 2015, DHS estimates that each of the four sureties would file between 29 and 68 appeals.

    Sureties that appeal will incur an opportunity cost for time spent filing an appeal with the AAO. USCIS has estimated that the average burden for filing Form I-290B is 90 minutes.34 The person preparing the appeal could either be an attorney or a non-attorney in the immigration bond business. The closest approximation to the cost of a non-attorney in the immigration bond business is an insurance agent. For purposes of this analysis, DHS uses as its primary estimate the average of the hourly loaded wage rate of an in-house attorney and insurance agent, $70.19, to reflect that an in-house attorney or an insurance agent (or equivalent) is equally likely to prepare the appeal. Thus, an approximation of the cost to prepare the appeal would be $105 per appeal ($70.19 × 1.5 hours). The total cost per appeal is $780 for fees and opportunity costs ($105 opportunity cost + $675 fee).

    34 Form I-290B, 2013 Information Collection Request Supporting Statement, Question 12, http://www.reginfo.gov/public/do/PRAViewDocument?ref_nbr=201309-1615-002.

    DHS multiplies the total cost per appeal ($780) by the estimated annual number of breached bonds that a surety company might appeal to determine the annual cost per surety for additional appeals filed because of the exhaustion requirement. DHS adds the familiarization costs per surety to the first year of costs incurred by the surety. For the four small businesses analyzed, the company with the lowest first year costs would incur costs of $23,182 ($780 cost per appeal × 29 appeals + $562 familiarization cost) and the company with the highest first year costs would incur costs of $53,602 ($780 cost per appeal × 68 appeals + $562 familiarization cost).

    The four surety companies that are small entities would not have to change any of their current business practices if they do not violate any of the for cause standards set forth in the proposed rule. If one of the entities were to receive notification from ICE that it violated a for cause standard, the entity would then have the opportunity to submit a written response either explaining why the company is not in violation or how the company intends to cure any deficiency. These due process protections benefit the small entity and would entail no additional recordkeeping or reporting other than preparing a response to ICE's notification. Surety companies would, however, incur a new opportunity cost when responding to ICE's notification of its intent to decline new bonds underwritten by the surety. DHS estimates that personnel at a surety company may spend three hours to complete a response to ICE's notification. The opportunity cost estimate per response would be $381 ($127 35 × 3 hours). Because a surety would have had ample opportunities to evaluate and challenge administratively final breach determinations, DHS anticipates that it will rarely need to send a notification of its intent to decline new bonds. However, for the purposes of this opportunity cost estimate, DHS assumes that it may send about two notifications during a 10-year period to the small sureties. To calculate the cost of responding to two notifications over 10 years, the likelihood of issuing a notification during any given year is multiplied by the opportunity cost per response. This equals about $76 (20 percent × $381).

    35 $127 represents the rounded, average loaded wage rate of an insurance agent, an in-house attorney and an outside counsel hired by the surety. $111 = ($44.31 + $96.06 + $240.14)/3.

    DHS estimates the proposed rule's annual impact to each small surety company by calculating its total costs as a percentage of its annual revenue. The costs are the cost of filing appeals for each small surety company, the opportunity cost to respond to a notification that ICE intends to decline future bonds posted by the company, plus the familiarization costs.

    The annual revenue for these four sureties, according to the 2015 sales revenue reported by Hoover's, ranges from approximately $3 million to $26 million. The annual impact of the proposed rule is estimated to be less than two percent of each company's annual revenue. The following tables summarize the quantified impacts of the proposed rule on the four small surety companies for the first year which includes the one-time familiarization costs and for the subsequent years, not including the familiarization costs.

    Table 3—Quantified First Year Impact to Small Entities for Exhaustion of Administrative Remedies and Responding to a Notification of ICE's Intent To Decline New Bonds, Including Regulatory Familiarization Costs Revenue impact range Number
  • of small
  • entities
  • Percent
  • of small
  • entities
  • 0% < Impact ≤ 1% 3 75 1% < Impact ≤ 2% 1 25 Total 4 100
    Table 4—Quantified Annual Impact to Small Entities for Exhaustion of Administrative Remedies and Responding to a Notification of ICE's Intent To Decline New Bonds Revenue impact range Number
  • of small
  • entities
  • Percent
  • of small
  • entities
  • 0% < Impact ≤ 1% 3 75 1% < Impact ≤ 2% 1 25 Total 4 100

    The above estimated impacts reflect the quantified direct costs to comply with the rule. Surety companies may be impacted in other ways that DHS is unable to quantify. This rule may result in some surety companies changing behavior to pay breached bonds when they otherwise may not have, thereby impacting revenue. For surety companies that fail to fulfill their obligations and cure deficiencies in their performance, this rule may result in business losses when ICE declines to accept new bonds submitted by the surety. DHS is not able to predict which surety companies may choose non-compliance and is not able to factor in the loss of surety companies' revenue.

    5. An Identification, to the Extent Practicable, of All Relevant Federal Rules That May Duplicate, Overlap, or Conflict With the Proposed Rule

    DHS is unaware of any Federal rules applying to sureties that may duplicate, overlap, or conflict with the proposed rule.

    6. A Description of Any Significant Alternatives to the Proposed Rule Which Accomplish the Stated Objectives of Applicable Statutes and Which Minimize Any Significant Economic Impact of the Proposed Rule on Small Entities

    DHS examined two regulatory alternatives that could potentially reduce the burden of this proposed rule on small entities. The alternatives to the proposed rule were: (1) Different for cause standards for surety companies with different underwriting limitations; and (2) application of the proposed rule to cash bond obligors as well as surety bond obligors. The first alternative would include different for cause standards for surety companies that fall in different ranges of underwriting limitations.36 For example, surety companies with higher underwriting limitations could be held to more stringent for cause standards than companies with lower underwriting limitations. The difference of underwriting limitations is great for some Treasury-certified sureties: The lowest underwriting limitation of the Treasury-certified sureties is $251,000 per bond and the highest is $9.7 billion per bond. This distinction might be supported by the assumptions that companies with higher underwriting limitations are larger companies that might issue more bonds and possibly bonds of higher values, and smaller companies might have fewer resources to ensure compliance with the for cause standards. Based on these differences, an argument could be made that larger companies' actions should be monitored more closely than smaller companies' actions.

    36 Department of the Treasury's Listing of Certified Companies, https://www.fiscal.treasury.gov/fsreports/ref/suretyBnd/c570_a-z.htm.

    This alternative was rejected because the amount of a non-performing surety company's underwriting limitation should have no bearing on whether DHS can stop accepting bonds from that surety company. The underwriting limitation is an indication of the surety company's financial resources. A surety company can comply with its immigration bond responsibilities regardless of its underwriting limitation. In addition, because the average amount of a surety bond is about $10,200,37 and the lowest underwriting limitation per bond set by Treasury greatly exceeds this average bond amount, it would serve no purpose to make a distinction among surety companies based on their underwriting limitations. Thus, the agency rejected this alternative.

    37 Immigration Bond Statistics maintained by ICE's Financial Service Center Burlington.

    DHS rejected the second alternative because many of the for cause standards would not be applicable to cash bond obligors. For cash bond obligors, the Federal government already has collected the face value of the bond as collateral and thus does not need to issue invoices to collect amounts due on breached bonds. The majority of cash bond obligors are not in the business of issuing bonds for profit and thus do not raise concerns about manipulating the bond management process for institutional gain. DHS, however, requests comment on all aspects of this analysis, including any alternatives that would minimize the impact to small entities.

    C. Unfunded Mandates Reform Act

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

    D. Small Business Regulatory Enforcement Fairness Act of 1996

    Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996, Public Law 104-121, we want to assist small entities in understanding this proposed rule so that they can better evaluate its effects on them and participate in the rulemaking. If the proposed rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance; please consult ICE using the contact information provided in the FOR FURTHER INFORMATION section above.

    E. Collection of Information

    Agencies are required to submit to OMB for review and approval any reporting or recordkeeping requirements inherent in a rule under the Paperwork Reduction Act of 1995, Public Law 104-13, 109 Stat. 163 (1995), 44 U.S.C. 3501-3520. This proposed rule would not require a collection of information.

    As protection provided by the Paperwork Reduction Act, as amended, an agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number.

    F. Federalism

    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 does not have implications for federalism.

    G. Civil Justice Reform

    This proposed rule meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

    H. Energy Effects

    We have analyzed this proposed rule under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use. We have determined that it is not a “significant energy action” under that order because it is not a “significant regulatory action” under Executive Order 12866 and is not likely to have a significant adverse effect on the supply, distribution, or use of energy.

    I. Environment

    DHS Management Directive (MD) 023-01, Rev. 01 establishes procedures that DHS and its Components use to comply with the National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4375, and the Council on Environmental Quality (CEQ) regulations for implementing NEPA, 40 CFR parts 1500-1508. CEQ regulations allow federal agencies to establish categories of actions, which do not individually or cumulatively have a significant effect on the human environment and, therefore, do not require an Environmental Assessment or Environmental Impact Statement. 40 CFR 1508.4. MD 023-01 lists the Categorical Exclusions for categories of actions that DHS has found to have no such effect. MD 023-01, app. A, tbl. 1.

    For an action to be categorically excluded, MD 023-01 requires the action to satisfy each of the following three conditions:

    (1) The entire action clearly fits within one or more of the Categorical Exclusions;

    (2) The action is not a piece of a larger action; and

    (3) No extraordinary circumstances exist that create the potential for a significant environmental effect. MD 023-01, app. A, § V.B(2). Where it may be unclear whether the action meets these conditions, MD 023-01 requires the administrative record to reflect consideration of these conditions. MD 023-01, app. A, § V.B.

    The proposed rule would require Treasury-certified sureties seeking to overturn a breach determination to file an administrative appeal raising all legal and factual defenses in this appeal. The proposed rule would also allow ICE to decline additional immigration bonds from Treasury-certified surety companies for cause after certain procedures have been followed. The procedures would require ICE to provide written notice before declining additional bonds to allow sureties the opportunity to challenge ICE's proposed action and to cure any deficiencies in their performance.

    DHS has analyzed this proposed rule under MD 023-01. DHS has made a preliminary determination that this action is one of a category of actions, which do not individually or cumulatively have a significant effect on the human environment. This proposed rule clearly fits within the Categorical Exclusion found in MD 023-01, Appendix A, Table 1, number A3(d): “Promulgation of rules . . . that interpret or amend an existing regulation without changing its environmental effect.” This proposed rule is not part of a larger action. This proposed rule presents no extraordinary circumstances creating the potential for significant environmental effects. Therefore, this proposed rule is categorically excluded from further NEPA review.

    DHS seeks any comments or information that may lead to the discovery of any significant environmental effects from this proposed rule.

    List of Subjects in 8 CFR Part 103

    Administrative practice and procedure, Surety bonds.

    The Proposed Amendments

    Accordingly, by the authority vested in me as the Acting Deputy Secretary of Homeland Security, and for the reasons set forth in the preamble, chapter I of title 8 of the Code of Federal Regulations is proposed to be amended as follows:

    Subchapter B—Immigration Regulations PART 103—IMMIGRATION BENEFITS; BIOMETRIC REQUIREMENTS; AVAILABILITY OF RECORDS 1. The authority citation for part 103 is revised to read as follows: Authority:

    5 U.S.C. 301, 552, 552a; 8 U.S.C. 1101, 1103, 1304, 1356, 1365b; 31 U.S.C. 9701; Public Law 107-296, 116 Stat. 2135 (6 U.S.C. 1 et seq.); E.O. 12356, 47 FR 14874, 15557; 3 CFR, 1982 Comp., p. 166; 8 CFR part 2; Pub. L. 112-54; 31 CFR part 223.

    2. Section 103.6 is amended by revising the section heading and paragraph (b), and adding paragraph (f) to read as follows:
    § 103.6 Immigration bonds.

    (b) Acceptable sureties. (1) Immigration bonds may be posted by a company holding a certificate from the Secretary of the Treasury under 31 U.S.C. 9304-9308 as an acceptable surety on Federal bonds (a Treasury-certified surety). They may also be posted by an entity or individual who deposits cash or cash equivalents, such as postal money orders, certified checks, or cashier's checks, in the face amount of the bond.

    (2) In its discretion, ICE may decline to accept an immigration bond underwritten by a Treasury-certified surety when—

    (i) Ten or more invoices issued to the surety on administratively final breach determinations are past due at the same time;

    (ii) The surety owes a cumulative total of $50,000 or more on past due invoices issued to the surety on administratively final breach determinations, including interest and other fees assessed by law on delinquent debt; or

    (iii) The surety has a breach rate of 35 percent or greater in any Federal fiscal year after [DATE 30 DAYS AFTER PUBLICATION OF FINAL RULE]. The surety's breach rate will be calculated in the month of January following each Federal fiscal year after the effective date of this rule by dividing the sum of administratively final breach determinations for that surety during the fiscal year by the total of such sum and bond cancellations for that surety during that same year. For example, if 50 bonds posted by a surety company were declared breached from October 1 to September 30, and 50 bonds posted by that same surety were cancelled during the same fiscal year (for a total of 100 bond dispositions), that surety would have a breach rate of 50 percent for that fiscal year.

    (3) Definitions: For purposes of paragraphs (b)(2)(i) and (ii) of this section—

    (i) A breach determination is administratively final when the time to file an appeal with the Administrative Appeals Office (AAO) has expired or when the appeal is dismissed or rejected.

    (ii) An invoice is past due if it is delinquent, meaning either that it has not been paid or disputed in writing within 30 days of issuance of the invoice; or, if it is a debt upon which the surety has submitted a written dispute within 30 days of issuance of the invoice, ICE has issued a written explanation to the surety of the agency's determination that the debt is valid, and the debt has not been paid within 30 days of issuance of such written explanation that the debt is valid.

    (4) When one or more of the for cause standards provided in paragraph (b)(2) of this section applies to a Treasury-certified surety, ICE may, in its discretion, initiate the process to notify the surety that it will decline future bonds. To initiate this process, ICE will issue written notice to the surety stating ICE's intention to decline bonds underwritten by the surety and the reasons for the proposed non-acceptance of the bonds. This notice will inform the surety of its opportunity to rebut the stated reasons set forth in the notice, and its opportunity to cure the stated reasons, i.e., deficient performance.

    (5) The Treasury-certified surety must send any response to ICE's notice in writing to the office that sent the notice. The surety's response must be received by the designated office on or before the 30th calendar day following the date the notice was issued. If the surety or agent fails to submit a timely response, the surety will have waived the right to respond, and ICE will decline any future bonds submitted for approval that are underwritten by the surety.

    (6) After considering any timely response submitted by the Treasury-certified surety to the written notice issued by ICE, ICE will issue a written determination stating whether future bonds issued by the surety will be accepted or declined. This written determination constitutes final agency action. If the written determination concludes that future bonds will be declined from the surety, ICE will decline any future bonds submitted for approval that are underwritten by the surety.

    (f) Appeals of breached bonds issued by Treasury-certified sureties. (1) Consistent with section 10(c) of the Administrative Procedure Act, 5 U.S.C. 704, the AAO's decision on appeal of a breach determination constitutes final agency action. The initial breach determination remains inoperative during the administrative appeal period and while an administrative appeal is pending. Dismissal of an appeal is effective upon the date of the AAO decision. Only the granting of a motion to reopen or reconsider makes the decision no longer final.

    (2) The failure by a Treasury-certified surety or its bonding agent to exhaust administrative appellate review before the AAO, or the lapse of time to file an appeal to the AAO without filing an appeal to the AAO, constitutes waiver and forfeiture of all claims, defenses, and arguments involving the bond breach determination. A Treasury-certified surety's or its agent's failure to move to reconsider or to reopen a breach decision does not constitute failure to exhaust administrative remedies.

    (3) A Treasury-certified surety or its bonding agent must raise all issues and present all facts relied upon in the appeal to the AAO. A Treasury-certified surety's or its agent's failure to timely raise any claim, defense, or argument before the AAO in support of reversal or remand of a breach decision waives and forfeits that claim, defense, or argument.

    (4) If a Treasury-certified surety or its bonding agent does not timely file an appeal with the AAO upon receipt of a breach notice, a claim in favor of ICE is created on the bond breach determination, and ICE may seek to collect the amount due on the breached bond.

    Claire M. Grady, Acting Deputy Secretary.
    [FR Doc. 2018-11940 Filed 6-4-18; 8:45 am] BILLING CODE 9111-28-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0322; Airspace Docket No. 18-AEA-12] RIN 2120-AA66 Proposed Amendment of Class D Airspace and Class E Airspace; Williamsport, PA AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to amend Class D airspace, Class E surface airspace, Class E airspace designated as an extension to a Class D surface area, and Class E airspace area extending upward from 700 feet or more above the surface at Williamsport Regional Airport (formerly Williamsport-Lycoming County Airport), Williamsport, PA. Airspace reconfiguration is necessary due to the decommissioning of Picture Rocks non-directional radio beacon (NDB), and cancellation of the NDB approaches. This action also removes the Notice to Airmen (NOTAM) part-time language from the legal description of the Class E airspace area designated as an extension at this airport. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at this airport. This action also would recognize the airport's name change and update the geographic coordinates of the airport and Williamsport Hospital, and would replace the outdated term Airport/Facility Directory with the term Chart Supplement in the legal descriptions of associated Class D and E airspace.

    DATES:

    Comments must be received on or before July 20, 2018.

    ADDRESSES:

    Send comments on this proposal to: U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590; Telephone: (800) 647-5527, or (202) 366-9826. You must identify the Docket No. FAA-2018-0322; Airspace Docket No. 18-AEA-12, at the beginning of your comments. You may also submit comments through the internet at http://www.regulations.gov.

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

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

    FOR FURTHER INFORMATION CONTACT:

    John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Av, College Park, GA 30337; telephone (404) 305-6364.

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class D and Class E airspace at Williamsport Regional Airport, Williamsport, PA, to support standard instrument approach procedures for IFR operations at this airport.

    Comments Invited

    Interested persons are invited to comment on 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 (Docket No. FAA-2018-0322 and Airspace Docket No. 18-AEA-12) and be submitted in triplicate to DOT Docket Operations (see ADDRESSES section for the address and phone number.) You may also submit comments through the internet at http://www.regulations.gov.

    Persons 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-2018-0322; Airspace Docket No. 18-AEA-12.” The postcard will be date/time stamped and returned to the commenter.

    All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this document may be changed in light of the 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.

    Availability of NPRMs

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

    You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see the ADDRESSES section for 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 between 8:00 a.m. and 4:30 p.m., Monday through Friday, except federal holidays at the office of the Eastern Service Center, Federal Aviation Administration, room 350, 1701 Columbia Avenue, College Park, GA 30337.

    Availability and Summary of Documents for Incorporation by Reference

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

    The Proposal

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

    Amending Class D airspace and Class E surface area airspace at Williamsport, PA, by recognizing the airport name change from Williamsport-Lycoming County Airport to Williamsport Regional Airport, and adjusting the geographic coordinates of the airport to be in concert with the FAA's aeronautical database. Also, this action would make an editorial change to the legal descriptions of the airspace areas above replacing “Airport/Facility Directory” with “Chart Supplement”;

    Amending Class E airspace extending upward from the surface at Williamsport Regional Airport by removing the NOTAM part-time language from the legal description, and adjusting the geographic coordinates and noting the airport name change;

    Amending Class E airspace extending upward from 700 feet or more above the surface at Williamsport Regional Airport to within a 12.6-mile radius of the airport, due to the decommissioning of the Picture Rocks NDB, and cancellation of the NDB approach. Also, the geographic coordinates of the airport (as well as the airport name change) and the Williamsport Hospital point in space coordinates would be adjusted to be in concert with the FAA's aeronautical database.

    Class D and Class E airspace designations are published in Paragraphs 5000, 6002, 6004, and 6005, respectively, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

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

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 5000. Class D Airspace. AEA PA D Williamsport, PA [Amended] Williamsport Regional Airport, PA (Lat. 41°14′30″ N, long. 76°55′19″ W)

    That airspace extending upward from the surface to and including 3,000 feet MSL within a 4.2-mile radius of Williamsport Regional Airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    Paragraph 6002. Class E Surface Area Airspace. AEA PA E2 Williamsport, PA [Amended] Williamsport Regional Airport, PA (Lat. 41°14′30″ N, long. 76°55′19″ W)

    That airspace extending upward from the surface within a 4.2-mile radius of Williamsport Regional Airport. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    Paragraph 6004. Class E Airspace Designated as an Extension to a Class D Surface Area. AEA PA E4 Williamsport, PA [Amended] Williamsport Regional Airport, PA (Lat. 41°14′30″ N, long. 76°55′19″ W)

    That airspace extending upward from the surface from the 4.2-mile radius of Williamsport Regional Airport to a 7-mile radius of the airport extending clockwise from the 270° bearing to the 312° bearing from the airport and within an 11.3-mile radius of the airport, extending clockwise from the 312° bearing to the 350° bearing from the airport and within an 11.3-mile radius of the airport extending clockwise from the 004° bearing to the 099° bearing from the airport and within 3.5 miles south of the airport east localizer course extending from the 4.2-mile radius of the airport east to the 099° bearing from the airport.

    Paragraph 6005. Class E Airspace Areas Extending Upward from 700 feet or More Above the Surface of the Earth. AEA PA E5 Williamsport, PA [Amended] Williamsport Regional Airport, PA (Lat. 41°14′30″ N, long. 76°55′19″ W) Williamsport Hospital, Point In Space Coordinates (Lat. 41°14′51″ N, long. 77°00′55″ W)

    That airspace extending upward from 700 feet above the surface within a 12.6-mile radius of Williamsport Regional Airport, and that airspace within a 6-mile radius of the point in space (Lat. 41°14′51″ N, long. 77°00′55″ W) serving Williamsport Hospital.

    Issued in College Park, Georgia, on May 24, 2018. Ryan W. Almasy, Manager, Operations Support Group, Eastern Service Center, Air Traffic Organization.
    [FR Doc. 2018-11862 Filed 6-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0236; Airspace Docket No. 18-AGL-8] RIN 2120-AA66 Proposed Amendment of Class D and E Airspace; Eau Claire, WI AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to amend Class D airspace, Class E airspace designated as a surface area, and Class E airspace extending upward from 700 feet above the surface at Chippewa Valley Regional Airport, Eau Claire, WI. The FAA is proposing this action as a result of an airspace review caused by the decommissioning of the Eau Claire nondirectional radio beacon (NDB)/outer compass locator (LOM). The name and geographic coordinates of the Chippewa Valley Regional Airport and the name of the May Clinic Health System-Eau Claire Heliport would also be updated to coincide with the FAA's aeronautical database.

    DATES:

    Comments must be received on or before July 20, 2018.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 366-9826, or (800) 647-5527. You must identify FAA Docket No. FAA-2018-0236; Airspace Docket No. 18-AGL-8, at the beginning of your comments. You may also submit comments through the internet at http://www.regulations.gov. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays.

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

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

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend amend Class D airspace, Class E airspace designated as a surface area, and Class E airspace extending upward from 700 feet above the surface at Chippewa Valley Regional Airport, Eau Claire, WI, to support instrument flight rule operations at this airport.

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2018-0236; Airspace Docket No. 18-AGL-8.” The postcard will be date/time stamped and returned to the commenter.

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

    Availability of NPRMs

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

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

    Availability and Summary of Documents for Incorporation by Reference

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

    The Proposal

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

    Amending the Class D airspace at Chippewa Valley Regional Airport, Eau Claire, WI, by adding an extension 1.0 mile each side of the 215° bearing from the airport from the 4.3-mile radius to 4.5 miles south of the airport; adding an extension 1.0 mile each side of the 224° bearing from the Chippewa Valley RGNL: RWY 22 LOC from the 4.3-mile radius to 4.5 miles south of the airport; removing the name of the city associated with the airport in the airspace legal description to comply with a change to FAA Order 7400.2L, Procedures for Handling Airspace Matters; and amending the part-time language from “The effective date and time will thereafter be continuously published in advance by Notice to Airmen.” to “The effective date and time will thereafter be continuously published in the Chart Supplement.” in compliance with FAA Order 7400.2L;

    Amending the Class E airspace designated as a surface area to within a 4.3-mile radius (reduced from a 4.4-mile radius) of the Chippewa Valley Regional Airport (formerly Eau Claire County Airport); removing the Eau Claire County Airport Localizer and the associated extension from the airspace legal description; adding an extension 1.0 mile each side of the 215° bearing from the airport from the 4.3-mile radius to 4.5 miles south of the airport; adding an extension 1.0 mile each side of the 224° bearing from the Chippewa Valley RGNL: RWY 22 LOC from the 4.3-mile radius to 4.5 miles south of the airport; adding part-time language to the airspace legal description; and updating the name and geographic coordinates of the airport to coincide with the FAA's aeronautical database; and

    Amending the Class E airspace extending upward from 700 feet above the surface to within a 6.8-mile radius (increased from a 6.7-mile radius) at Chippewa Valley Regional Airport; removing the extension to the southwest of the airport associated with the localizer; amending the extension north of the airport to within 4.0 miles (increased from 3.1 miles) each side of the Eau Claire VORTAC 004° radial from the 6.8-mile radius to 7.0 miles north of the airport;, and updating the geographic coordinates of Chippewa Valley Regional Airport and the name of Mayo Clinic Health System-Eau Claire Heliport (formerly Luther Hospital) to coincide with the FAA's aeronautical database.

    This action is necessary due to an airspace review caused by the decommissioning of the Eau Claire NDB/LOM.

    Class D and E airspace designations are published in paragraph 5000, 6002, and 6005, respectively, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

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

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 5000. Class D Airspace. AGL WI D Eau Claire, WI [Amended] Chippewa Valley Regional Airport, WI (Lat. 44°51′57″ N, long. 91°29′03″ W) Chippewa Valley RGNL: RWY 22 LOC (Lat. 44°51′31″ N, long. 91°29′37″ W)

    That airspace extending upward from the surface to and including 3,500 feet MSL within a 4.3-mile radius of Chippewa Valley Regional Airport, and within 1.0 mile each side of the 215° bearing from the airport from the 4.3-mile radius to 4.5 miles south of the airport, and within 1.0 mile each side of the 224° bearing from the Chippewa Valley RGNL: RWY 22 LOC from the 4.3-mile radius to 4.5 miles south of the airport. This Class D airspace area is effective during the specific dates and times established in advance by Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    Paragraph 6002. Class E Airspace Areas Designated as Surface Areas. AGL WI E2 Eau Claire, WI [Amended] Chippewa Valley Regional Airport, WI (Lat. 44°51′57″ N, long. 91°29′03″ W) Chippewa Valley RGNL: RWY 22 LOC (Lat. 44°51′31″ N, long. 91°29′37″ W)

    That airspace extending upward from the surface to and including 3,500 feet MSL within a 4.3-mile radius of the Chippewa Valley Regional Airport, and within 1.0 mile each side of the 215° bearing from the airport from the 4.3-mile radius to 4.5 miles south of the airport, and within 1.0 mile each side of the 224° bearing from the Chippewa Valley RGNL: RWY 22 LOC from the 4.3-mile radius to 4.5 miles south of the airport. This Class E airspace area is effective during the specific dates and times established in advance by Notice to Airmen. The effective date and time will thereafter be continuously published in the Chart Supplement.

    Paragraph 6005. Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. AGL WI E5 Eau Claire, WI [Amended] Chippewa Valley Regional Airport, WI (Lat. 44°51′57″ N, long. 091°29′03″ W) Eau Claire VORTAC (Lat. 44°53′52″ N, long. 091°28′43″ W) Mayo Clinic Health System-Eau Claire Heliport, WI, Point In Space Coordinates (Lat. 44°48′24″ N, long. 091°31′51″ W)

    That airspace extending upward from 700 feet above the surface within a 6.8-mile radius of Chippewa Valley Regional Airport, and within 4.0 miles each side of the Eau Claire VORTAC 004° radial extending from the 6.8-mile radius to 7.0 miles north of the airport, and within a 6.0-mile radius of the point in space serving the Mayo Clinic Health System-Eau Claire Heliport.

    Issued in Fort Worth, Texas, on May 24, 2018. Christopher L. Southerland, Acting Manager, Operations Support Group, ATO Central Service Center.
    [FR Doc. 2018-11852 Filed 6-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0138; Airspace Docket No. 18-ASW-5] RIN 2120-AA66 Proposed Amendment of Class D and E Airspace; Austin, TX; and Establishment of Class E Airspace; Georgetown, TX, and Austin, TX AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to amend Class D airspace at San Marcos Regional Airport, Austin, TX; establish Class E airspace designated as a surface area at Georgetown Municipal Airport, Georgetown, TX, and San Marcos Regional Airport; and amend Class E airspace extending upward from 700 feet above the surface at San Marco Regional Airport and Lockhart Municipal Airport, Lockhart, TX. The FAA is proposing this action at the request of Austin Air Traffic Control Tower (ATCT)/Terminal Radar Approach Control (TRACON) to establish part-time Class E airspace designated as a surface area at Georgetown Municipal Airport and San Marcos Regional Airport and to review the associated airspace for the safety and management of instrument flight rule (IFR) operations at these airports. The name of San Marcos Regional Airport would be updated to coincide with the FAA's aeronautical database, and the outdated term “Airport/Facility Directory” would be replaced with the term “Chart Supplement”.

    DATES:

    Comments must be received on or before July 20, 2018.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590; telephone (202) 366-9826, or (800) 647-5527. You must identify FAA Docket No. FAA-2018-0138; Airspace Docket No. 18-ASW-5, at the beginning of your comments. You may also submit comments through the internet at http://www.regulations.gov. You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays.

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

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

    FOR FURTHER INFORMATION CONTACT:

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

    SUPPLEMENTARY INFORMATION: Authority for This Rulemaking

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

    Comments Invited

    Interested parties are invited to participate in this proposed rulemaking by submitting such written data, views, or arguments, as they may desire. Comments that provide the factual basis supporting the views and suggestions presented are particularly helpful in developing reasoned regulatory decisions on the proposal. Comments are specifically invited on the overall regulatory, aeronautical, economic, environmental, and energy-related aspects of the proposal. Communications should identify both docket numbers and be submitted in triplicate to the address listed above. Commenters wishing the FAA to acknowledge receipt of their comments on this notice must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to Docket No. FAA-2018-0138; Airspace Docket No. 18-ASW-5.” The postcard will be date/time stamped and returned to the commenter.

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

    Availability of NPRMs

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

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

    Availability and Summary of Documents for Incorporation by Reference

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

    The Proposal

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

    Amending the airspace designation location in the airspace legal description of the Class D airspace from San Marcos, TX, to Austin, TX, to coincide with the FAA's aeronautical database; amending the radius to within a 4.3-mile radius (increased from a 4.2-mile radius) of San Marcos Regional Airport (formerly San Marcos Municipal Airport), Austin, TX; adding an extension 1.0 mile each side of the 306° bearing from the San Marcos Regional: RWY 13-LOC extending from the 4.3-mile radius to 4.6 miles northwest of the airport; updating the name of the airport to coincide with the FAA's aeronautical database; and replacing the outdated term “Airport/Facility Directory” with “Chart Supplement”;

    Establishing Class E airspace designated as a surface area within a 4.3-mile radius of San Marcos Regional Airport, Austin, TX, with an extension 1.0 mile each side of the 306° bearing from the San Marcos Regional: RWY 13-LOC from the 4.3-mile radius to 4.6 miles northwest of the airport; and with an extension 1.0 mile each side of the 313° bearing from the airport from the 4.3-mile radius to 5.0 miles northwest of the airport; and with an extension 1.0 mile each side of the 268° bearing from the airport from the 4.3-mile radius to 4.4 miles west of the airport; and with an extension 1.0 mile each side of the 358° bearing from the airport from the 4.3-mile radius to 4.4 miles north of the airport;

    Establishing Class E airspace designated as a surface area within a 4.1-mile radius of Georgetown Municipal Airport, Georgetown, TX; and

    Amending the airspace designation location in the airspace legal description of the Class E airspace extending upward from 700 feet above the surface from San Marcos, TX, to Austin, TX, to coincide with the FAA's aeronautical database; amending the radius to within a 6.8-mile radius (increased from a 6.7-mile radius) of San Marcos Regional Airport (formerly San Marcos Municipal Airport), Austin, TX; amending the extension to the northwest of the airport to 12.0 miles (increased from 11.1 miles); amending the extension to the east of the airport to 10.5 miles (increased from 10.4 miles); amending the extension to the southeast of the airport to 9.7 miles (increased from 9.6 miles); amending the extension to the south of the airport to 10.5 miles (increased from 10.4 miles); and amending the radius to within 6.4-miles (increased from a 6.3-mile radius) of Lockhart Municipal Airport, Lockhart, TX, included in the Austin, TX, airspace legal description.

    This action is being proposed at the request of Austin ATCT/TRACON to establish part-time Class E airspace designated as an extension of Class D and E surface areas at Georgetown Municipal Airport and San Marcos Regional Airport and to review the associated airspace for the safety and management of IFR operations at these airports.

    Class D and E airspace designations are published in paragraph 5000, 6002, and 6005, respectively, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

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

    List of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 5000. Class D Airspace. ASW TX D Austin, TX [Amended] San Marcos Regional Airport, TX (Lat. 29°53′34″ N, long. 97°51′47″ W) San Marcos Regional: RWY 13-LOC (Lat. 29°53′03″ N, long. 97°51′15″ W)

    That airspace extending upward from the surface to and including 3,100 feet MSL within a 4.3-mile radius of San Marcos Regional Airport, and within 1.0 mile each side of the San Marcos Regional: RWY13-LOC extending from the 4.3-mile radius to 4.6 miles northwest of the airport, and within 1.0 mile each side of the 313° bearing from the airport extending from the 4.3-mile radius to 5.0 miles northwest of the airport, and within 1.0 mile each side of the 268° bearing from the airport extending from the 4.3-mile radius to 4.4 miles west of the airport, and within 1.0 mile each side of the 358° bearing from the airport extending from the 4.3-mile radius to 4.4 miles north of the airport. This Class D airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective dates and times will thereafter be continually published in the Chart Supplement.

    Paragraph 6002. Class E Airspace Areas Designated as Surface Areas. ASW TX E2 Austin, TX [New] San Marcos Regional Airport, TX (Lat. 29°53′34″ N, long. 97°51′47″ W) San Marcos Regional: RWY 13-LOC (Lat. 29°53′03″ N, long. 97°51′15″ W)

    That airspace extending upward from the surface to and including 3,100 feet MSL within a 4.3-mile radius of San Marcos Regional Airport, and within 1.0 mile each side of the San Marcos Regional: RWY13-LOC extending from the 4.3-mile radius to 4.6 miles northwest of the airport, and within 1.0 mile each side of the 313° bearing from the airport extending from the 4.3-mile radius to 5 miles northwest of the airport, and within 1.0 mile each side of the 268° bearing from the airport extending from the 4.3-mile radius to 4.4 miles west of the airport, and within 1.0 mile each side of the 358° bearing from the airport extending from the 4.3-mile radius to 4.4 miles north of the airport. This Class E airspace area is effective during the specific dates and times established in advance by a Notice to Airmen. The effective dates and times will thereafter be continually published in the Chart Supplement.

    ASW TX E2 Georgetown, TX [New] Georgetown Municipal Airport, TX (Lat. 30°40′44″ N, long. 97°40′46″ W)

    That airspace extending upward from the surface to and including 3,300 feet MSL within a 4.1-mile radius of Georgetown Municipal Airport. This Class E airspace is effective during the specific dates and times established in advance by a Notice to Airmen. The effective dates and times will thereafter be continuously published in the Chart Supplement.

    Paragraph 6005. Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ASW TX E5 Austin, TX [Amended] San Marcos Regional Airport, TX (Lat. 29°53′34″ N, long. 97°51′47″ W) Lockhart Municipal Airport, TX (Lat. 29°51′01″ N, long. 97°40′21″ W)

    That airspace extending upward from 700 feet above the surface within a 6.8-mile radius of San Marcos Regional Airport, and within 2 miles each side of the 268° bearing from the airport extending from the 6.8-mile radius to 13.1 miles west of the airport, and within 2 miles each side of the 313° bearing from the airport extending from the 6.8-mile radius to 12.0 miles northwest of the airport, and within 2 miles each side of the 088° bearing from the airport extending from the 6.8-mile radius to 10.5 miles east of the airport, and within 2 miles each side of the 133° bearing from the airport extending from the 6.8-mile radius to 9.7 miles southeast of the airport, and within 2 miles each side of the 178° bearing from the airport extending from the 6.8-mile radius to 10.5 miles south of the airport, and within a 6.4-mile radius of Lockhart Municipal Airport.

    Issued in Fort Worth, Texas, on May 24, 2018. Christopher L. Southerland, Acting Manager, Operations Support Group, ATO Central Service Center.
    [FR Doc. 2018-11859 Filed 6-4-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0328; Airspace Docket No. 18-ASO-7] RIN 2120-AA66 Proposed Amendment of Class D Airspace and Class E Airspace, and Revocation of Class E Airspace: New Smyrna Beach, FL AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to amend Class D airspace and Class E airspace extending upward from 700 feet or more above the surface, and remove Class E airspace designated as an extension to a Class D surface area at New Smyrna Beach Municipal Airport, New Smyrna Beach, FL. This action would accommodate airspace reconfiguration due to the decommissioning of New Smyrna Beach non-directional beacon radio (NDB), and cancellation of the NDB approaches. Controlled airspace is necessary for the safety and management of instrument flight rules (IFR) operations at this airport. This action also would update the geographic coordinates of the airport, and Massey Ranch Airpark, and would replace the outdated term Airport/Facility Directory with the term Chart Supplement in the legal description of Class D airspace.

    DATES:

    Comments must be received on or before July 20, 2018.

    ADDRESSES:

    Send comments on this proposal to: U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590; Telephone: (800) 647-5527, or (202) 366-9826. You must identify the Docket No. FAA-2018-0328; Airspace Docket No. 18-ASO-7, at the beginning of your comments. You may also submit comments through the internet at http://www.regulations.gov.

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

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

    FOR FURTHER INFORMATION CONTACT:

    John Fornito, Operations Support Group, Eastern Service Center, Federal Aviation Administration, 1701 Columbia Av, College Park, GA 30337; telephone (404) 305-6364.

    SUPPLEMENTARY INFORMATION:

    Authority for This Rulemaking

    The FAA's authority to issue rules regarding aviation safety is found in Title 49 of the United States Code. Subtitle I, Section 106 describes the authority of the FAA Administrator. Subtitle VII, Aviation Programs, describes in more detail the scope of the agency's authority. This rulemaking is promulgated under the authority described in Subtitle VII, Part A, Subpart I, Section 40103. Under that section, the FAA is charged with prescribing regulations to assign the use of airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would amend Class D and Class E airspace, and remove Class E airspace at New Smyrna Beach Municipal Airport, New Smyrna Beach, FL, to support standard instrument approach procedures for IFR operations at the airport.

    Comments Invited

    Interested persons are invited to comment on 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 (Docket No. FAA-2018-0328 and Airspace Docket No. 18-ASO-7) and be submitted in triplicate to DOT Docket Operations (see ADDRESSES section for the address and phone number.) You may also submit comments through the internet at http://www.regulations.gov.

    Persons 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-2018-0328; Airspace Docket No. 18-ASO-7.” The postcard will be date/time stamped and returned to the commenter.

    All communications received before the specified closing date for comments will be considered before taking action on the proposed rule. The proposal contained in this document may be changed in light of the 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.

    Availability of NPRMs

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

    You may review the public docket containing the proposal, any comments received, and any final disposition in person in the Dockets Office (see the ADDRESSES section for 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 between 8:00 a.m. and 4:30 p.m., Monday through Friday, except federal holidays at the office of the Eastern Service Center, Federal Aviation Administration, Room 350, 1701 Columbia Avenue, College Park, GA 30337.

    Availability and Summary of Documents for Incorporation by Reference

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

    The Proposal

    The FAA is considering an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 by amending Class D airspace and Class E airspace extending upward from 700 feet or more above the surface at New Smyrna Beach Municipal Airport, New Smyrna Beach, FL, as the New Smyrna Beach NDB has been decommissioned and the NDB approach cancelled. Also, the southeast extension would be removed due to the cancellation of the NDB approach. This action also would update the geographic coordinates of the airport and Massey Ranch Airpark to be in concert with the FAA's aeronautical database.

    Additionally, this action would make an editorial change to the Class D airspace legal description replacing “Airport Facility Directory” with “Chart Supplement”. These changes would enhance the safety and management of IFR operations at the airport.

    Class D and Class E airspace designations are published in Paragraphs 5000, 6004, and 6005, respectively, of FAA Order 7400.11B, dated August 3, 2017, and effective September 15, 2017, which is incorporated by reference in 14 CFR 71.1. The Class D and E airspace designations listed in this document will be published subsequently in the Order.

    Regulatory Notices and Analyses

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

    Environmental Review

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

    Lists of Subjects in 14 CFR Part 71

    Airspace, Incorporation by reference, Navigation (air).

    The Proposed Amendment

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

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

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

    § 71.1 [Amended]
    2. The incorporation by reference in 14 CFR 71.1 of Federal Aviation Administration Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 5000. Class D Airspace. ASO FL D New Smyrna Beach, FL [Amended] New Smyrna Beach Municipal Airport, FL (Lat. 29°03′21″ N, long. 80°56′56″ W)

    That airspace extending upward from the surface to but not including 1,200 feet MSL, within a 3.2-mile radius of New Smyrna Beach Municipal Airport. This Class D airspace area is effective during the specific days and times established in advance by a Notice to Airmen. The effective days and times will thereafter be continuously published in the Chart Supplement.

    Paragraph 6004 Class E Airspace Designated as an Extension to a Class D Surface Area. ASO FL E4 New Smyrna Beach, FL [Removed] Paragraph 6005 Class E Airspace Areas Extending Upward From 700 Feet or More Above the Surface of the Earth. ASO FL E5 New Smyrna Beach, FL [Amended] New Smyrna Beach Municipal Airport, FL (Lat. 29°03′21″ N, long. 80°56′56″ W) Massey Ranch Airpark, FL (Lat. 28°58′44″ N, long. 80°55′29″ W)

    That airspace extending upward from 700 feet above the surface within a 6.8-mile radius of New Smyrna Beach Municipal Airport, and within a 6.5-mile radius of Massey Ranch Airpark.

    Issued in College Park, Georgia, on May 24, 2018. Ryan W. Almasy, Manager, Operations Support Group, Eastern Service Center, Air Traffic Organization.
    [FR Doc. 2018-11848 Filed 6-4-18; 8:45 am] BILLING CODE 4910-13-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2018-0188; FRL-9978-79—Region 7] Approval of Nebraska Air Quality Implementation Plan; Particulate Emissions; Limitations and Standards AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve revisions to the State Implementation Plan (SIP) submitted on July 14, 2014, by the State of Nebraska. This proposed action will amend the SIP to include revisions to title 129 of the Nebraska Administrative Code, chapter 20 “Particulate Emissions; Limitations and Standards”. The revisions make clear that the emission rates in the rule apply to applicable sources except when a more stringent Federal rule or limit in a construction permit exists. Other minor administrative revisions are also being made. Approval of these revisions will not impact air quality, ensures consistency between the State and Federally approved rules, and ensures Federal enforceability of the State's rules.

    DATES:

    Comments must be received on or before July 5, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R07-OAR-2018-0188 to https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Greg Crable, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7391, or by email at [email protected].

    SUPPLEMENTARY INFORMATION:

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

    I. What is being addressed in this document? II. Have the requirements for approval of a SIP revision been met? III. What action is EPA taking? IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. What is being addressed in this document?

    EPA is proposing to amend Nebraska's SIP to include revisions to title 129 of the Nebraska Administrative Code, chapter 20, “Particulate Emissions; Limitations and Standards”. The revisions being addressed in this action on chapter 20 were submitted with other title 129 chapters as part of the July 14, 2014 SIP submittal. EPA took final action on two title 129 chapters, chapter 1 “Definitions”, and chapter 15 “Operating Permit Modifications; Reopening for Cause”. In that action, EPA stated it would take action separately on chapter 20. See 83 FR 14762. EPA is now proposing action on chapter 20. The revisions to chapter 20 are described below.

    Nebraska revised a clause under the chapter title from “(EXCEPTIONS DUE TO BREAKDOWNS OR SCHEDULED MAINTENANCE: SEE CHAPTER 35)” to “For exceptions due to breakdowns or scheduled maintenance: see Chapter 35—COMPLIANCE; EXCEPTIONS DUE TO STARTUP, SHUTDOWN, OR MALFUNCTION”, and added a space to distinguish between the title and the clause. In addition, the state removed a footnote to table 20-2 and made it a stand-alone section numbered 007 which explains how the values in table 20-2 were determined. And finally, the revision added section 008 which clarifies that the emission rates apply to all applicable sources unless a more stringent particulate matter emissions rate is specified in the underlying requirements of an applicable Federal rule or is specified within a construction permit issued pursuant to title 129.

    II. Have the requirements for approval of a SIP revision been met?

    The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The revised chapter 20 was placed on public notice, along with other title 129 chapter revisions on January 6, 2014, and a public hearing was held by NDEQ on February 6, 2014. No comments regarding chapter 20 were received. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above, the revision meets the substantive SIP requirements of the Clean Air Act (CAA), including section 110 and implementing regulations.

    III. What action is EPA taking?

    EPA is proposing to approve the title 129, chapter 20, SIP revision submitted by NDEQ on July 14, 2014. We are processing this as a proposed action because we are soliciting comments on this proposed action. Final rulemaking will occur after consideration of any comments.

    IV. Incorporation by Reference

    In this action, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference the Nebraska Regulations described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

    V. Statutory and Executive Order Reviews

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

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

    • 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).

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

    List of Subjects in 40 CFR Part 52

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

    Dated: May 21, 2018. Karen A. Flournoy, Acting Regional Administrator, Region 7.

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

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart CC—Nebraska 2. Amend § 52.1420 paragraph (c) by revising the entry for “129-20” in the Table titled “EPA-Approved Nebraska Regulations” to read as follows:
    § 52.1420 Identification of plan.

    (c) * * *

    EPA-Approved Nebraska Regulations Nebraska
  • citation
  • Title State
  • effective
  • date
  • EPA approval date Explanation
    STATE OF NEBRASKA Department of Environmental Quality Title 129—Nebraska Air Quality Regulations *         *         *         *         *         *         * 129-20 Particulate Emissions; Limitations and Standards 5/13/2014 [date of final publication in the Federal Register] [final Federal Register citation] *         *         *         *         *         *         *
    [FR Doc. 2018-11579 Filed 6-4-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2018-0307; FRL-9979-13—Region 7] Air Plan Approval; Nebraska; Revisions to Title 115 of the Nebraska Administrative Code; Rules of Practice and Procedure AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve revisions to the State Implementation Plan (SIP) submitted by the State of Nebraska on August 28, 2014. This proposed action will amend the SIP to revise title 115 of the Nebraska Administrative Code “Nebraska Rules of Practice and Procedure.” The proposed revisions to title 115 update the Nebraska Department of Environmental Quality's (NDEQ) rules of practice and procedure to incorporate legislative changes that have been made to the State's Administrative Procedure Act and the public record laws.

    DATES:

    Comments must be received on or before July 5, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R07-OAR-2018-0307 to https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Greg Crable, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7391, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

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

    I. What is being addressed in this document?

    II. Have the requirements for approval of a SIP revision been met?

    III. What action is EPA taking?

    IV. Incorporation by Reference

    V. Statutory and Executive Order Reviews

    I. What is being addressed in this document?

    EPA is proposing to amend Nebraska's SIP to include revisions to title 115 of the Nebraska Administrative Code. The last revision to title 115—Rules of Practice and Procedure was approved into the Nebraska SIP in 1994 (60 FR 372). Since that time, the legislature has amended the Administrative Procedure Act and the public record laws which impose additional requirements on NDEQ. NDEQ has adopted the revisions to title 115 and has requested EPA amend the SIP.

    This action proposes to revise chapter 1, Definitions of Terms; chapter 2, Filings and Correspondence; chapter 3, Public Records Availability; chapter 4, Public Records Confidentiality; chapter 5, Public Hearings; chapter 7, Contested Cases; chapter 8, Emergency Proceeding Hearings; chapter 9, Declaratory Rulings; and chapter 10, Rulemaking. This action proposes to revise the chapter titles for chapters 2, 4, 8, 9 and 10. No revisions are being made to chapter 6, Voluntary Compliance. Chapter 11, Variances, is being deleted. The proposed revisions to title 115 are numerous and can be found in the August 28, 2014 State submission which is part of the docket.

    Specifically, the changes to chapters 1, 2, 7, 8, 9 and 10 conform regulatory language to the Attorney General's model rules. Revisions to chapters 3 and 5 better describe the procedures already in place by practice for obtaining public records and public hearings on permit decisions or fact-finding hearings that are required by law. Revisions to chapter 4 clarify the procedures for asserting a claim of confidentiality trade secrets. Finally, chapter 11 is being deleted from title 115 because it is duplicative and found in chapter 33 of title 129.

    EPA is proposing approval of these revisions as they are not fundamentally different from a procedural standpoint from existing rules. These revisions do not impact air quality. The revisions do not revise emission limits or procedures, nor do they impact the state's ability to attain or maintain the National Ambient Air Quality Standards.

    II. Have the requirements for approval of a SIP revision been met?

    The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The revised title 115 chapters were placed on public notice on January 30, 2004, and a public hearing was held by the NDEQ on March 5, 2004. During the public hearing NDEQ received three comments. NDEQ addressed each of the comments and made no change to the rule based on comments received. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above, and as demonstrated in the documents in the docket, the revisions meet the substantive SIP requirements of the Clean Air Act (CAA), including section 110 and implementing regulations.

    III. What action is EPA taking?

    EPA is proposing to approve the title 115 SIP revision submitted by the State of Nebraska on August 28, 2014. We are processing this as a proposed action because we are soliciting comments on this proposed action. Final rulemaking will occur after consideration of any comments.

    IV. Incorporation by Reference

    In this action, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference the Nebraska Regulations described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

    V. Statutory and Executive Order Reviews

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

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

    • 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).

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

    List of Subjects in 40 CFR Part 52

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

    Dated: May 25, 2018. James B. Gulliford, Regional Administrator, Region 7.

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

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart CC Nebraska 2. Amend § 52.1420(c) by: a. Revising the entries for 115-1; 115-2; 115-3; 115-4; 115-5; 115-7; 115-8; 115-9; and 115-10; and b. Removing the entry for 115-11.

    The revisions read as follows:

    § 52.1420 Identification of plan.

    (c) * * *

    EPA-Approved Nebraska Regulations Nebraska
  • citation
  • Title State
  • effective
  • date
  • EPA approval date Explanation
    STATE OF NEBRASKA Department of Environmental Quality *         *         *         *         *         *         * Title 115—Rules of Practice and Procedure 115-1 Definitions of Terms 6/8/2004 [date of final publication in the Federal Register] [final Federal Register citation] 115-2 Petition for Declaratory Order 6/8/2004 [date of final publication in the Federal Register] [final Federal Register citation] 115-3 Public Records Availability 6/8/2004 [date of final publication in the Federal Register] [final Federal Register citation] 115-4 Confidentiality for Trade Secrets 6/8/2004 [date of final publication in the Federal Register] [final Federal Register citation] 115-5 Public Hearings 6/8/2004 [date of final publication in the Federal Register] [final Federal Register citation] *         *         *         *         *         *         * 115-7 Contested Cases 6/8/2004 [date of final publication in the Federal Register] [final Federal Register citation] 115-8 Intervention in a Contested Case 6/8/2004 [date of final publication in the Federal Register] [final Federal Register citation] 115-9 Ex Parte Communications Prohibited 6/8/2004 [date of final publication in the Federal Register] [final Federal Register citation] 115-10 Petition for Rulemaking 6/8/2004 [date of final publication in the Federal Register] [final Federal Register citation]
    [FR Doc. 2018-12072 Filed 6-4-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2018-0261; FRL-9978-78—Region 7] Approval of Missouri Air Quality Implementation Plans; Infrastructure SIP Requirements for the 2012 Annual Fine Particulate Matter (PM2.5) National Ambient Air Quality Standard Interstate Transport AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve elements of a State Implementation Plan (SIP) submission from the State of Missouri for the 2012 Annual Fine Particulate Matter (PM2.5) National Ambient Air Quality Standard (NAAQS). States are required to have a SIP that provides for the implementation, maintenance, and enforcement of the NAAQS. Whenever EPA promulgates a new or revised NAAQS, states are required to make a SIP submission to establish that they have, or to add, the provisions necessary to address various requirements to address the new or revised NAAQS. These SIPs are commonly referred to as “infrastructure” SIPs. The infrastructure requirements are designed to ensure that the structural components of each state's air quality management program are adequate to meet the state's responsibilities under the CAA. In this action EPA is proposing to approve the interstate transportion obligations of the State's 2012 PM2.5 NAAQS infrastructure SIP submittal.

    DATES:

    Comments must be received on or before July 5, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R07-OAR-2018-0261, to https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Tracey Casburn, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7016, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

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

    I. What is being addressed in this document? II. Have the requirements for approval of a SIP submission been met? III. What action is EPA taking? IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. What is being addressed in this document?

    EPA is proposing to approve the submittal as meeting the submittal requirement of section 110(a)(1). EPA is proposing to approve certain elements of the infrastructure SIP submission from the State of Missouri received on October 14, 2015. Specifically, EPA is proposing to approve the following elements of section 110(a)(2)(D)(i)(I)—significant contribution to nonattainment (prong 1), and interfering with maintenance of the NAAQs (prong 2). EPA has already addressed elements of 110(a)(2) including: (A) Through (C), (D)(i)(II)—prevention of significant deterioration of air quality (prong 3), (D)(ii), and (E) through (M) in separate rulemaking (see docket EPA-R07-OAR-2017-0513). EPA intends to act on section 110(a)(2)(D)(i)(II)—protection of visibility (prong 4) in a subsequent rulemaking.

    A Technical Support Document (TSD) is included as part of this docket to discuss the details of this action, including analysis of how the SIP meets the applicable 110 requirements for infrastructure SIPs.

    II. Have the requirements for approval of a SIP submission been met?

    The state's submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The state held a public comment period from July 27, 2015, to September 3, 2015. The state received no comments during the public comment period. A public hearing was held on August 27, 2015. The submission satisfied the completeness criteria of 40 CFR part 51, appendix V. As explained in more detail in the TSD, which is part of this docket, the submittal meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

    III. What action is EPA taking?

    EPA is proposing to approve the following elements of October 14, 2015, infrastructure SIP submission from the State of Missouri: Section 110(a)(2)(D)(i)(I)—significant contribution to nonattainment (prong 1), and interfering with maintenance of the NAAQs (prong 2) as applicable to the 2012 Annual PM2.5 NAAQS.

    IV. Incorporation by Reference

    In this action, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference the Missouri Regulations described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these materials generally available through https://www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

    V. Statutory and Executive Order Reviews

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

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

    • 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 the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; and

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

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

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Nitrogen dioxide, Particulate matter, Reporting and recordkeeping requirements, Sulfur dioxides.

    Dated: May 21, 2018. Karen A. Flournoy, Acting Regional Administrator, Region 7.

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

    PART 52—APPROVAL AND PROMULGATION OF IMPLEMENTATION PLANS 1. The authority citation for part 52 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart AA—Missouri 2. In § 52.1320, the table in paragraph (e) is amended by adding the entry “(74)” in numerical order to read as follows:
    § 52.1320 Identification of plan.

    (e) * * *

    EPA—Approved Missouri Nonregulatory SIP Provisions Name of nonregulatory SIP provision Applicable geographic or nonattainment area State
  • submittal
  • date
  • EPA
  • approval
  • date
  • Explanation
    *         *         *         *         *         *         * (74) Section 110(a)(2)(D)(i)(I)—significant contribution to nonattainment (prong 1), and interfering with maintenance of the NAAQs (prong 2) (Interstate Transport) Infrastructure Requirements for the 2012 Annual Fine Particulate Matter (PM2.5) NAAQS Statewide 10/14/2015 6/5/2018, [insert Federal Register citation] This action approves the following CAA elements: 110(a)(1) and 110(a)(2)(D)(i)(I)—prongs 1 and 2 [EPA-R07-OAR-2018-0261; FRL-9978-78-Region 7].
    [FR Doc. 2018-11580 Filed 6-4-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R01-OAR-2018-0098; FRL-9978-71—Region 1] Air Plan Approval; Rhode Island; Control of Volatile Organic Compound Emissions, Control of Nitrogen Oxide Emissions, and Sulfur Content of Fuels AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of Rhode Island. This revision updates Rhode Island Air Pollution Control Regulations (APCRs) for volatile organic compound (VOC) emissions, nitrogen oxide (NOx) emissions, sulfur content in fuel requirements and associated general definitions. The intended effect of this action is to propose approval of the revised regulations. This action is being taken under the Clean Air Act.

    DATES:

    Written comments must be received on or before July 5, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R01-OAR-2018-0098 at www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, the EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the “For Further Information Contact” section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit www.epa.gov/dockets/commenting-epa-dockets. Publicly available docket materials are available at www.regulations.gov or at the U.S. Environmental Protection Agency, EPA New England Regional Office, Office of Ecosystem Protection, Air Quality Planning Unit, 5 Post Office Square—Suite 100, Boston, MA. EPA requests that if at all possible, you contact the contact listed in the FOR FURTHER INFORMATION CONTACT section to schedule your inspection. The Regional Office's official hours of business are Monday through Friday, 8:30 a.m. to 4:30 p.m., excluding legal holidays.

    FOR FURTHER INFORMATION CONTACT:

    David L. Mackintosh, Air Quality Planning Unit, U.S. Environmental Protection Agency, EPA New England Regional Office, 5 Post Office Square—Suite 100, (Mail code OEP05-2), Boston, MA 02109-3912, tel. 617-918-1584, email [email protected]

    SUPPLEMENTARY INFORMATION:

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

    Table of Contents I. Background and Purpose II. EPA's Evaluation of the Submittal III. Proposed Action IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. Background and Purpose

    On February 10, 2017, the Rhode Island Department of Environmental Management (DEM) submitted to EPA a State Implementation Plan (SIP) revision containing six revised Air Pollution Control Regulations (APCRs): No. 8, “Sulfur Content of Fuels;” No. 19, “Control of Volatile Organic Compounds from Surface Coating Operations;” No. 27, “Control of Nitrogen Oxide Emissions;” No. 35, “Control of Volatile Organic Compounds and Volatile Hazardous Air Pollutants from Wood Products Manufacturing Operations;” No. 36, “Control of Emission from Organic Solvent Cleaning;” and General Definitions. The amended APCRs became effective in Rhode Island on January 9, 2017.

    EPA has previously approved these Rhode Island APCRs into the Rhode Island SIP. APCR No. 8, “Sulfur Content of Fuels,” was last approved on October 7, 2015 (80 FR 60541), APCR No. 19, “Control of Volatile Organic Compounds from Surface Coating Operations,” on July 22, 2016 (81 FR 47708), APCR No. 27, “Control of Nitrogen Oxide Emissions,” and APCR No. 35. “Control of Volatile Organic Compounds and Volatile Hazardous Air Pollutants from Wood Products Manufacturing Operations,” on July 22, 2016 (81 FR 47708), APCR No. 36, “Control of Emission from Organic Solvent Cleaning,” on March 13, 2012 (77 FR 14691), and APCR General Definitions on March 13, 2012 (77 FR 14691).

    II. EPA's Evaluation of the Submittal

    Rhode Island's submittal states that RI DEM has revised APCR No. 8, “Sulfur Content of Fuels,” to correct a mistake made when it revised the regulation in 2014. The purpose of the 2014 revision was to limit the sulfur content of certain fuel oils, which the regulation divided into two categories—“Distillate Oil, Biodiesel, or Alternative Fuel” and “Residual Oil”—establishing lower limits for the first category than for the second. The submittal states that the placement of alternative fuel in the same category as distillate oil and biodiesel in the 2014 revision was in error and that it should have been included with residual oil. Sometime after the 2014 revision was incorporated into the SIP, the mistake was brought to RI DEM's attention along with documentation that showed it is not possible to achieve equally low-sulfur limits for waste oils 1 and distillate fuel oils, because waste oils are generally comprised of used residual oil, which has an inherently higher sulfur content than distillate oil. The different sulfur levels stem from the distillation of crude oil during refinement and are inherent to the various fractions of crude oil. Therefore, the agency agrees that compliance with the current version of APCR No. 8, “Sulfur Content of Fuels,” is not technically feasible and that placing alternative fuel in the lower sulfur level grouping was incorrect. This proposed action corrects the mistake, moving alternative fuel from the first category (with distillate oil and biodiesel) into the second (with residual oil), effectively allowing a higher sulfur content for alternative fuel.

    1 Pursuant to state regulations, “waste oil” is a type of “alternative fuel.” APCR No. 8.1.1; see also APCR No. 20.1.1.

    EPA proposes to replace the previously approved version of APCR No. 8 with the version submitted by Rhode Island on February 10, 2017. EPA proposes to approve APCR No. 8 into the SIP, with the exception of Sections 8.7, “Fuel Supply Shortages,” and 8.8.3, “Application,” which were not submitted by the state. Although Section 8.8.3 had been previously approved into the SIP, EPA requested that the state strike this section when submitted as a SIP revision for the reasons indicated in the response to comments document included with the state's submittal, a copy of which is included in the docket for today's proposal. Therefore, this action will remove Section 8.8.3 from the SIP.

    RI DEM has updated APCR No. 19, “Control of Volatile Organic Compounds from Surface Coating Operations,” to acknowledge that the emission limitations in this regulation do not apply if the source is controlled by the emission limit requirements in APCR No. 44, “Control of Volatile Organic Compounds from Adhesives and Sealants.” This change is consistent with the EPA Control Technique Guidelines (CTGs) for coating operations and industrial adhesives (EPA-453/R-08-005, September 2008), which consider a VOC source to be subject to the requirements of only one CTG with respect to VOC Reasonably Available Control Technology (RACT). Additionally, RI DEM revised the registration requirements in APCR No. 19 to be consistent with the requirements in APCR No. 14, “Record Keeping and Reporting,” requiring emission statements to be submitted by April 15th of each year instead of “within 45 days of the end of the calendar year.” EPA proposes to approve APCR No. 19 into the SIP, excluding Section 19.2.2, which was not submitted by the state.

    RI DEM has revised APCR No. 27, “Control of Nitrogen Oxides Emissions,” to reduce the frequency of compliance testing required under the regulation from annually to once every five years, reduce the frequency of tune-ups required for industrial-commercial-institutional boilers from annually to biennially, allow the tune-up procedure for boilers specified in federal regulations (40 CFR 63, Subpart JJJJJJ) as an acceptable substitute procedure for the procedure specified in Appendix A of the regulation, and revise the method for determining compliance with the emission limits to allow compliance to be demonstrated based upon the average results of three one-hour test runs (rather than demonstrating compliance with each individual test run) to be consistent with federal requirements. EPA proposes to approve APCR No. 27 into the SIP, excluding Section 27.7.3, which was not submitted by the state.

    RI DEM has revised APCR No. 35, “Control of Volatile Organic Compounds and Volatile Hazardous Air Pollutants (HAP) from Wood Products Manufacturing Operations,” so the HAP applicability threshold applies to major source of HAP from wood products manufacturing operations, as opposed to all operations at the facility. EPA proposes to approve APCR No. 35 into the SIP, excluding Sections 35.2.3 and 35.9.3, which were not submitted by the state.

    RI DEM has revised APCR No. 36, “Control of Emissions from Organic Solvent Cleaning,” to provide an exemption from most requirements for small cold cleaners (internal volume of 1 liter or less), provide an alternative means of compliance for spray gun cleaning operations, clarify the performance standard when an air pollution control system is used as an alternative to low vapor pressure solvents, and revise recordkeeping requirements to allow users of certain machines additional time to compile monthly records to be consistent with the requirements in other Rhode Island APCR regulations and permits. EPA is proposing to approve APCR No. 36 into the SIP, with the exception of Sections 36.2.2 and 36.14.2, “Application,” which Rhode Island did not submit to EPA. Although Section 36.14.2 was previously approved into the SIP, today's proposal would remove it from the SIP for similar reasons discussed earlier with respect to Section 8.8.3.

    Finally, RI DEM has revised APCR General Definitions to amend the definition of “volatile organic compound” to be consistent with the EPA definition at 40 CFR 51.100(s). EPA is proposing to approve the revised definition of “volatile organic compound” into the SIP.

    The above revisions satisfy section 110(l) of the CAA, which prohibits EPA from approving a SIP revision “if the revision would interfere with any applicable requirement concerning attainment and reasonable further progress . . . or any other applicable requirement of [the Clean Air Act].” In particular, many of the revisions to APCR Nos. 19, 27, and 36, including changes to reporting dates, tune-up procedures and frequency, and compliance methods and testing frequency, do not impact emission control requirements and will not affect emissions or ambient concentrations of a pollutant or its precursors. With respect to the revision to APCR No. 8, as noted earlier, the current standard for alternative fuel, was not obtainable, meaning that the revision will not affect actual sulfur content or emissions. Furthermore, Rhode Island is currently designated as attainment for all criteria pollutants, and levels of sulfur dioxide, PM2.5, and PM10, which can be affected by the sulfur content of fuel in general, are well below those standards. This regulatory change will therefore not interfere with maintenance of the standards. The revision to APCR No. 35 changes the applicability threshold regarding HAP emissions but retains the appropriate VOC thresholds for the source category. The other revision to APCR No. 36 exempts de minimis sources (solvent cleaners with internal volume of 1 liter or less) consistent with EPA's approval of other state rules controlling VOC emissions from industrial cleaning solvent sources. See, e.g., 79 FR 32873 (June 9, 2014). Any increase in emissions resulting from these revisions to APCR Nos. 35 and 36 are not expected to be significant, and the two rules otherwise generally retain the same VOC emission control requirements as the previous SIP-approved version of these rules. Moreover, as indicated above, Rhode Island is designated as attainment for ozone. Thus, the SIP revisions satisfy the requirements of Section 110(l) of the CAA because they will not interfere with any applicable requirement concerning attainment and reasonable further progress or any other applicable requirement of the CAA. Accordingly, we are proposing to approve Rhode Island's revised regulations into the Rhode Island SIP.

    EPA is proposing to approve the Rhode Island SIP revision for these six APCR revisions (excluding those provisions indicated above that were not submitted by the state), which was submitted on February 10, 2017. EPA is soliciting public comments on the issues discussed in this notice or on other relevant matters. These comments will be considered before taking final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments to this proposed rule by following the instructions listed in the ADDRESSES section of this Federal Register.

    III. Proposed Action

    EPA is proposing to approve the February 10, 2017 RI DEM SIP submittal consisting of the six revised APCRs: No. 8, “Sulfur Content of Fuels” (with the exception of sections 8.7 and 8.8.3); No. 19, “Control of Volatile Organic Compounds from Surface Coating Operations” (with the exception of section 19.2.2); No. 27, “Control of Nitrogen Oxide Emissions” (with the exception of section 27.7.3); No. 35, “Control of Volatile Organic Compounds and Volatile Hazardous Air Pollutants from Wood Products Manufacturing Operations” (with the exception of sections 35.2.3 and 35.9.3); No. 36, “Control of Emission from Organic Solvent Cleaning” (with the exception of sections 36.2.2 and 36.14.2); and the definition of “volatile organic compound” in General Definitions.

    IV. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference Rhode Island APCRs No. 8 “Sulfur Content of Fuels,” No. 19 “Control of Volatile Organic Compounds from Surface Coating Operations,” No. 27 “Control of Nitrogen Oxide Emissions,” No. 35 “Control of Volatile Organic Compounds and Volatile Hazardous Air Pollutants from Wood Products Manufacturing Operations,” No. 36 “Control of Emission from Organic Solvent Cleaning,” and General Definitions. The EPA has made, and will continue to make, these documents generally available through www.regulations.gov.

    V. Statutory and Executive Order Reviews

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

    • Is not a significant regulatory action subject to review by the Office of Management and Budget under Executive Orders12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011);

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

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

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

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

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

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

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

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

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

    List of Subjects in 40 CFR Part 52

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

    Dated: May 25, 2018. Alexandra Dunn, Regional Administrator, EPA Region 1.
    [FR Doc. 2018-12020 Filed 6-4-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 62 [EPA-R04-OAR-2018-0183; FRL-9978-91-Region 4] Approval of AL Plan for Control of Emissions From Commercial and Industrial Solid Waste Incineration Units AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a state plan submitted by the State of Alabama, through the Alabama Department of Environmental Management (ADEM) on May 19, 2017, and supplemented on October 24, 2017, for implementing and enforcing the Emissions Guidelines (EG) applicable to existing Commercial and Industrial Solid Waste Incineration (CISWI) units. The state plan provides for implementation and enforcement of the EG, as finalized by EPA on June 23, 2016, applicable to existing CISWI units for which construction commenced on or before June 4, 2010, or for which modification or reconstruction commenced after June 4, 2010, but no later than August 7, 2013. The state plan establishes emission limits, monitoring, operating, recordkeeping, and reporting requirements for affected CISWI units.

    DATES:

    Comments must be received on or before July 5, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. [EPA-R04-OAR-2018-0183] at https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Mark Bloeth, South Air Enforcement and Toxics Section, Air Enforcement and Toxics Branch, Air, Pesticides and Toxics Management Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303. Mr. Bloeth can be reached via telephone at 404-562-9013 and via email at [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    Section 129 of the Clean Air Act (CAA or the Act) directs the Administrator to develop regulations under section 111(d) of the Act limiting emissions of nine air pollutants (particulate matter, carbon monoxide, dioxins/furans, sulfur dioxide, nitrogen oxides, hydrogen chloride, lead, mercury, and cadmium) from four categories of solid waste incineration units: Municipal solid waste; hospital, medical, and infectious solid waste; commercial and industrial solid waste; and other solid waste.

    On December 1, 2000, EPA promulgated new source performance standards (NSPS) and EG to reduce air pollution from CISWI units, which are codified at 40 CFR part 60, subparts CCCC and DDDD, respectively. See 65 FR 75338. EPA revised the NSPS and EG for CISWI units on March 21, 2011. See 76 FR 15704. Following promulgation of the 2011 CISWI rule, EPA received petitions for reconsideration requesting that EPA reconsider numerous provisions in the rule. EPA granted reconsideration on certain issues and promulgated a CISWI reconsideration rule on February 7, 2013. See 78 FR 9112. Subsequently, EPA received petitions to further reconsider certain provisions of the 2013 NSPS and EG for CISWI units. On January 21, 2015, EPA granted reconsideration on four specific issues and finalized reconsideration of the CISWI NSPS and EG on June 23, 2016. See 81 FR 40956.

    Section 129(b)(2) of the CAA requires states to submit to EPA for approval state plans and revisions that implement and enforce the EG—in this case, 40 CFR part 60, subpart DDDD. State plans and revisions must be at least as protective as the EG, and become federally enforceable upon approval by EPA. The procedures for adoption and submittal of state plans and revisions are codified in 40 CFR part 60, subpart B.

    II. Review of Alabama's CISWI State Plan Submittal

    Alabama submitted a state plan to implement and enforce the EG for existing CISWI units in the state 1 on March 14, 2014. On May 19, 2017, Alabama submitted a revised plan, which was supplemented on October 24, 2017. EPA has reviewed the revised plan for existing CISWI units in the context of the requirements of 40 CFR part 60, subparts B and DDDD. State plans must include the following nine essential elements: Identification of legal authority; identification of mechanism for implementation; inventory of affected facilities; emissions inventory; emission limits; compliance schedules; testing, monitoring, recordkeeping, and reporting; public hearing records; and, annual state progress reports on plan enforcement.

    1 The submitted state plan does not apply in Indian country located in the state.

    A. Identification of Legal Authority

    Under 40 CFR 60.26 and 60.2515(a)(9), an approvable state plan must demonstrate that the State has legal authority to adopt and implement the EG's emission standards and compliance schedule. In its submittals, Alabama cites the following State law provisions for its authority to implement and enforce the plan: Code of Alabama Section 22-28-11 (adopt emission requirements); Code of Alabama 22-28-14 (adopt regulations to prescribe emissions standards and adopt compliance schedules); Code of Alabama Section 22-22A-5(10) (authority to issue orders, citations, notices of violation, licenses, certifications, and permits); Code of Alabama Section 22-22A-5(20) (authority to perform any other necessary duty); Code of Alabama Section 22-28-18 (authority to require use of pollution control equipment); Code of Alabama Section 22-28-19A (authority to conduct inspections and sample air contaminants); Code of Alabama Section 22-28-20 (authority to require recordkeeping); and Code of Alabama Section 22-28-22 (proceedings upon violation; penalties; subpoenas; injunctions). In addition to the foregoing statutory provisions, Alabama also notes that it has adopted rules into the Alabama Administrative Code to implement and enforce its air quality program. EPA has reviewed the cited authorities and has preliminarily concluded that the State has adequately demonstrated legal authority to implement and enforce the CISWI state plan in Alabama.

    B. Identification of Enforceable State Mechanisms for Implementing the Plan

    Under 40 CFR 60.24(a), a state plan must include emission standards, defined at 40 CFR 60.21(f) as “a legally enforceable regulation setting forth an allowable rate of emissions into the atmosphere, or prescribing equipment specifications for control of air pollution emissions.” See also 40 CFR 60.2515(a)(8). Alabama has adopted enforceable emission standards for affected CISWI units at Rule 335-3-3.05(6). EPA has preliminarily concluded that the rule meets the emission standard requirement under 40 CFR 60.24(a).

    C. Inventory of Affected Units

    Under 40 CFR 60.25(a) and 60.2515(a)(1), a state plan must include a complete source inventory of all CISWI units. Alabama has identified affected units at four facilities: National Cement, Argos, Holcim, and CEMEX. Omission from this inventory of CISWI units does not exempt an affected facility from the applicable section 111(d)/129 requirements. EPA has preliminarily concluded that Alabama has met the affected unit inventory requirements under 40 CFR 60.25(a) and 60.2515(a)(1).

    D. Inventory of Emissions From Affected CISWI Units

    Under 40 CFR 60.25(a) and 60.2515(a)(2), a state plan must include an emissions inventory of the pollutants regulated by the EG. Emissions from CISWI units may contain cadmium, carbon monoxide, dioxins/furans, hydrogen chloride, lead, mercury, nitrogen oxides, particulate matter, and sulfur dioxide. Alabama submitted an emissions inventory for CISWI units as part of its state plan. This emissions inventory contains CISWI unit emissions rates for each regulated pollutant. EPA has preliminarily concluded that Alabama has met the emissions inventory requirements of 40 CFR 60.25(a) and 60.2515(a)(2).

    E. Emission Limitations, Operator Training and Qualification, Waste Management Plan, and Operating Limits for CISWI Units

    Under 40 CFR 60.24(c) and 60.2515(a)(4), the state plan must include emission standards that are no less stringent than the EG. Alabama has incorporated the emission standards from the EG by reference into its regulations at Rule 335-3-3-.05, with one exception: For units in the waste-burning kiln subcategory, Alabama's state plan provides an equivalent production-based mercury emission limit of 58 pounds of mercury per million tons of clinker, rather than the concentration-based standard of 0.011 milligrams per dry standard cubic meter contained in 40 CFR 60, Subpart DDDD, Table 8. See Alabama Rule 335-3-3-.05, Table 7.

    Under 40 CFR 60.2515(b), EPA has the authority to approve plan requirements that deviate from the content of the EG, so long as the state demonstrates that the requirements are at least as protective. In the February 7, 2013 rule adopting the EG for existing CISWI units, EPA discussed its methodology for developing emission limits for the subcategories of sources subject to the rule. See 78 FR 9112 (February 7, 2013). Though we noted that the Agency was retaining an “emissions concentration basis for the standards,” we also expressed the standard for waste-burning kiln emission limits on a production basis. See id. at 9122-23. For those kilns, we noted that an equivalent production-based standard for mercury would be 58 pounds of mercury per million tons of clinker. See id. at 9122.

    In other words, EPA has previously explained that the equivalent production-based emission limit of 58 pounds of mercury per million tons of clinker for waste-burning kilns is at least as protective as the standard contained in the EG. Because Alabama's state plan imposes either this equivalent standard or the applicable EG on waste-burning kilns—and imposes the applicable EG on all other affected CISWI units—we have preliminarily concluded that Alabama's CISWI plan satisfies the emission limitations requirements of 40 CFR 60.24(c).

    40 CFR 60.2515(a)(4) also requires a state plan to include operator training and qualification requirements, a waste management plan, and operating limits that are at least as protective as the EG. Alabama's state plan submittal includes: Operator training and qualification requirements at Rule 335-3-3-.05(5); a waste management plan at Rule 335-3-3-.05(4); and, operating limits that are at least as protective as the EG at Rule 335-3-3-.05(6)(b) and Rule 335-3-3-.05, Table 2. Thus, we have preliminarily concluded that Alabama's state plan satisfies the requirements of 40 CFR 60.24(c) and 60.2515(a)(4).

    F. Compliance Schedules

    Under 40 CFR 60.24(a), (c), and (e) and 40 CFR 60.2515(a)(3), each state plan must include a compliance schedule, which requires affected CISWI units to expeditiously comply with the state plan requirements. EPA has the authority to approve compliance schedule requirements that deviate from those imposed under the EG, so long as those requirements are at least as protective as the EG. See 40 CFR 60.2515(b).

    In the state plan at Rule 335-3-3-.05(8), Alabama generally requires that affected sources comply with the EG initial compliance requirements for CISWI units, which EPA has codified at 40 CFR 60.2700 through 40 CFR 60.2706. However, for waste-burning kilns complying with the production-based emission limit, Alabama's state plan requires compliance with the requirements applicable to Portland Cement Manufacturing Kilns, which are codified at 40 CFR part 63, subpart LLL. See Alabama Rule 335-3-3-.05(8)(g).

    As noted above, EPA has authority to approve requirements that are at least as stringent as the EG. Here, we have preliminarily concluded that the state plan's compliance requirements for waste-burning kilns contain all relevant elements of the EG, and also impose additional recordkeeping requirements that are necessary for the effective implementation and enforcement of the equivalent limit. For these reasons, we have preliminarily concluded that Alabama's state plan satisfies the requirements of 40 CFR 60.24(a), (c), and (e) and 40 CFR 60.2515(a)(3).

    G. Testing, Monitoring, Recordkeeping, and Reporting Requirements

    Under 40 CFR 60.24(b)(2), 60.25(b), and 60.2515(a)(5), an approvable state plan must require that sources conduct testing, monitoring, recordkeeping, and reporting. Alabama's state plan incorporates the model rule provisions of the EG: For testing at Rule 335-3-3-.05(7); for monitoring at Rule 335-3-3-.05(10); and, for recordkeeping and reporting at Rule 335-3-3-.05(11). In addition to these requirements, Alabama imposes further monitoring, recordkeeping, and reporting requirements for waste-burning kilns operating under a production-based mercury emission limit. EPA has thus preliminarily concluded that Alabama's state plan satisfies the requirements of 40 CFR 60.24(b)(2), 60.25(b), and 60.2515(a)(5).

    H. A Record of Public Hearing on the State Plan Revision

    40 CFR 60.23 sets forth the public participation requirements for each state plan. The State must conduct a public hearing; make all relevant plan materials available to the public prior to the hearing; and provide notice of such hearing to the public, the Administrator of EPA, each local air pollution control agency, and, in the case of an interstate region, each state within the region. 40 CFR 60.2515(a)(6) requires each state plan include certification that the hearing was held, a list of witnesses and their organizational affiliations, if any, appearing at the hearing, and a brief written summary of each presentation or written submission.

    In its submittal, Alabama submitted records, including transcripts, of two public hearings. First, a hearing was held on March 8, 2017, for the May 19, 2017 state plan submittal. Alabama held a second hearing on September 6, 2017, for the October 24, 2017, supplement. Alabama provided notice and made all relevant plan materials available prior to each hearing. Additionally, Alabama certifies in its state plan submittal that a hearing was held, and that the State received no written or oral comments on the plan. Thus, EPA has preliminarily concluded that Alabama's CISWI plan satisfies the requirements of 40 CFR 60.23 and 60.2515(a)(6).

    I. Annual State Progress Reports to EPA

    Under 40 CFR 60.25(e) and (f) and 40 CFR 60.2515(a)(7), the State must provide in its state plan for annual reports to EPA on progress in enforcement of the plan. Accordingly, Alabama provides in its plan that it will submit reports on progress in plan enforcement to EPA on an annual (calendar year) basis, commencing with the first full reporting period after plan revision approval. EPA has preliminarily concluded that Alabama's CISWI plan satisfies the requirements of 40 CFR 60.25(e) and (f) and 40 CFR 60.2515(a)(7).

    III. Proposed Action

    Pursuant to CAA section 111(d), CAA section 129, and 40 CFR part 60, subparts B and DDDD, EPA is proposing to approve Alabama's state plan for regulation of CISWI units as submitted on May 19, 2017 and supplemented on October 24, 2017. In addition, EPA is proposing to amend 40 CFR part 62, subpart B to reflect this action.

    IV. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a 111(d)/129 plan submission that complies with the provisions of the CAA and applicable Federal regulations. In reviewing 111(d)/129 plan submissions, EPA's role is to approve state choices, provided they meet the criteria and objectives of the CAA and EPA's implementing regulations. 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 proposed action:

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

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

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

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

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

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

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

    In addition, this rule 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. It also 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). And it does not have Tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because EPA is not proposing to approve the submitted plan to apply in Indian country located in the state, and because the submitted plan will not impose substantial direct costs on Tribal governments or preempt Tribal law.

    List of Subjects in 40 CFR Part 62

    Administrative practice and procedure, Air pollution control, Aluminum, Fertilizers, Fluoride, Intergovernmental relations, Manufacturing, Phosphate, Reporting and recordkeeping requirements, Sulfur oxides, Waste treatment and disposal.

    Authority:

    42 U.S.C. 7411.

    Dated: May 15, 2018. Onis “Trey” Glenn, III Regional Administrator, Region 4.
    [FR Doc. 2018-12064 Filed 6-4-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 271 and 272 [EPA-R08-RCRA-2018-0084; FRL-9974-26-Region 8] North Dakota: Proposed Authorization of State Hazardous Waste Management Program Revisions and Incorporation by Reference AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The state of North Dakota has applied to the EPA for final authorization of the changes to its hazardous waste program under the Resource Conservation and Recovery Act (RCRA). The EPA has reviewed North Dakota's application and has determined that these changes satisfy all requirements needed to qualify for final authorization and is proposing to authorize the state's changes. The EPA uses the regulations entitled, “Approved State Hazardous Waste Management Programs” to provide notice of the authorization status of state programs and to incorporate by reference those provisions of state statutes and regulations that will be subject to the EPA's inspection and enforcement. This action also proposes to codify in the regulations the authorized provisions of North Dakota's hazardous waste management program and to incorporate by reference authorized provisions of the state's regulations. Finally, today's rule corrects errors made in the state authorization citations published in the February 14, 2008 Federal Register authorization document for North Dakota.

    DATES:

    Comments on this proposed rule must be received by July 5, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R08-RCRA-2018-0084 by one of the following methods:

    1. Federal eRulemaking Portal: http://www.regulations.gov. Follow the on-line instructions for submitting comments.

    2. Email: [email protected]

    3. Fax: (303) 312-6341 (prior to faxing, please notify the EPA contact listed below).

    4. Mail, Hand Delivery or Courier: Moye Lin, Resource Conservation and Recovery Program, EPA Region 8, Mailcode 8P-R, 1595 Wynkoop Street, Denver, Colorado 80202-1129. Courier or hand deliveries are only accepted during the Regional Office's normal hours of operation. The public is advised to call in advance to verify business hours. Special arrangements should be made for deliveries of boxed information.

    Instructions: Direct your comments to Docket ID No. EPA-R08-RCRA-2018-0084. The EPA's policy is that all comments received will be included in the public docket without change and may be available online at http://www.regulations.gov, including any personal information provided, unless the comment includes information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Do not submit information that you consider to be CBI or otherwise protected through http://www.regulations.gov, or email. The federal http://www.regulations.gov website is an “anonymous access” system, which means the EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to the EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, the EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If the EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, the EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in hard copy form. Publicly available docket materials are available either electronically through http://www.regulations.gov or in hard copy at: EPA Region 8, from 8:00 a.m. to 4:00 p.m., 1595 Wynkoop Street, Denver, Colorado 80202-1129, contact: Moye Lin, phone number (303) 312-6667, or the North Dakota Department of Health (NDDH) from 9:00 a.m. to 4:00 p.m., 918 East Divide Avenue, 3rd Floor, Bismarck, North Dakota 58501-1947, phone number (701) 328-5166. The public is advised to call in advance to verify business hours.

    FOR FURTHER INFORMATION CONTACT:

    Moye Lin, Resource Conservation and Recovery Program, EPA Region 8, 1595 Wynkoop Street, Denver, Colorado 80202-1129; phone number (303) 312-6667; Email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Authorization of Revisions to North Dakota's Hazardous Waste Program A. Why are revisions to state programs necessary?

    States which have received final authorization from the EPA under RCRA section 3006(b), 42 U.S.C. 6926(b), must maintain a hazardous waste program that is equivalent to, consistent with, and no less stringent than the federal program. As the federal program changes, states must change their programs and ask the EPA to authorize the changes. Changes to state programs may be necessary when federal or state statutory or regulatory authority is modified or when certain other changes occur. Most commonly, states must change their programs because of changes to the EPA's regulations in 40 Code of Federal Regulations (CFR) parts 124, 260 through 268, 270, 273 and 279. When states make other changes to their regulations, it is often appropriate for the states to seek authorization for the changes.

    B. What decisions have we made in this rule?

    We conclude that North Dakota's application to revise its authorized program meets all of the statutory and regulatory requirements established by RCRA. Therefore, we propose to grant North Dakota final authorization to operate its hazardous waste program with the changes described in the authorization application. North Dakota will continue to have responsibility for permitting Treatment, Storage, and Disposal Facilities (TSDFs) within its borders (except in Indian country), and for carrying out the aspects of the RCRA program described in its revised program application, subject to the limitations of the Hazardous and Solid Waste Amendments of 1984 (HSWA). New federal requirements and prohibitions imposed by federal regulations that the EPA promulgates under the authority of HSWA take effect in authorized states before they are authorized for the requirements. Thus, the EPA will implement those requirements and prohibitions in North Dakota, including issuing permits, until North Dakota is authorized to do so.

    C. What is the effect of this proposed authorization decision?

    If North Dakota is authorized for these changes, a facility in North Dakota subject to RCRA will have to comply with the authorized state requirements instead of the equivalent federal requirements in order to comply with RCRA. Additionally, such facilities will have to comply with any applicable federal requirements such as, HSWA regulations issued by the EPA for which the state has not received authorization. North Dakota continues to have enforcement responsibilities under its state hazardous waste program for violations of such program, but EPA retains its authority under RCRA sections 3007, 3008, 3013, and 7003, which include, among others, authority to:

    • Conduct inspections and require monitoring, tests, analyses, or reports;

    • Enforce RCRA requirements; suspend or revoke permits; and,

    • Take enforcement actions regardless of whether North Dakota has taken its own actions.

    This action to approve these provisions would not impose additional requirements on the regulated community because the regulations for which North Dakota is requesting authorization are already effective under state law and are not changed by the act of authorization.

    D. What happens if the EPA receives comments on this action?

    If the EPA receives comments on this proposed action, we will address those comments in our final action. You may not have another opportunity to comment, therefore, if you want to comment on this proposed authorization, you must do so at this time.

    E. For what has North Dakota previously been authorized?

    North Dakota initially received final authorization on October 5, 1984, effective October 19, 1984 (49 FR 39328) to implement the RCRA hazardous waste management program. We granted authorization for changes to their program on: June 25, 1990, effective August 24, 1990 (55 FR 25836); May 4, 1992, effective July 6, 1992 (57 FR 19087); April 7, 1994, effective June 6, 1994 (59 FR 16566); January 19, 2000, effective March 20, 2000 (65 FR 02897); September 26, 2005, effective November 25, 2000 (70 FR 56132), and February 14, 2008, effective April 14, 2008 (73 FR 8610).

    F. What changes are we proposing to authorize with this action?

    North Dakota submitted a final complete program revision application on September 20, 2016, and March 24, 2017, seeking authorization of their changes in accordance with 40 CFR 271.21. In its program revision application, the state of North Dakota also requested authorization for the Revisions to the Definition of Solid Waste (DSW) Rule, 80 FR 1694 (Jan. 13, 2015). However, due to the Court of Appeals for the District of Columbia Circuit's decisions, Am. Petroleum Inst. v. EPA, 862 F.3d 50 (DC Cir. 2017) and Am. Petroleum Inst. v. EPA, No. 09-1038 (DC Cir. Mar. 6, 2018) (vacating both the Factor 4 Legitimacy Test and the Verified Recycler Exclusion aspects of the 2015 DSW Rule), the EPA is not granting authorization to the state for: (1) One criterion in the determination of whether recycling is legitimate (on Revision Checklist 233B at 40 CFR 260.43(a)(4)); (2) one criterion in the variance determination for exceptions to the classification of hazardous secondary materials as a solid waste (on Revision Checklist 233D2 at 40 CFR 260.31(d)(6)); and (3) the verified recycler exclusion, which allowed generators to send their hazardous secondary materials to certain reclaimers (on Revision Checklist 233D2 at 40 CFR 261.4(a)(24)). We have determined that North Dakota's hazardous waste program revision satisfies all of the requirements necessary to qualify for Final authorization. Therefore, we propose to grant North Dakota final authorization for the following program changes:

    1. Program Revision Changes for Federal Rules

    North Dakota seeks authority to administer the federal requirements that are listed below (the federal citation is followed by the analogs from the North Dakota Administrative Code (NDAC), Article 33-24, as revised January 1, 2016): NESHAP: Surface Coating of Automobiles and Light-Duty Trucks (69 FR 22601, 04/26/2004) (Checklist 205)/33-24-05-420.7, 33-24-06-16.5; Nonwastewaters from Dyes and Pigments (70 FR 9138, 02/24/2005 and 70 FR 35032, 06/16/2005) (Checklists 206 and 206.1)/33-24-02-04.2.o., 33-24-02-17, 33-24-02/Appendices IV and V, 33-24-05-266, 33-24-05-280/Table; Uniform Hazardous Waste Manifest Rule (70 FR 10776, 03/04/2005 and 70 FR 35034, 06/16/2005) (Checklists 207 and 207.1)/33-24-01-04.30, 33-24-01-04.90, 33-24-01-04.91, 33-24-02-07.3.b.(2) and (3), 33-24-03-04.1 introductory paragraph and .1.a, 33-24-03-05, 33-24-03-07.6, 33-24-03-10.2, 33-24-03-11, 33-24-03-12.10, 33-24-03-21.3 and .5, 33-24-03-30.3 through .5, 33-24-03/Appendix I, 33-24-04-04.1.a through .c, 33-24-04-04.7.a through .d, 33-24-04-05.2 and .3, 33-24-05-37, 33-24-05-38.1.a through .c, 33-24-05-38.2.d, 33-24-05-38.5, 33-24-05-39.1 through .5, 33-24-05-39.6 except .6(h), 33-24-05-39.7, 33-24-05-43, 33-24-06-16.5; Methods Innovation Rule and SW-846 Final Update IIIB (70 FR 34538, 06/14/2005 and 70 FR 44150, 08/01/2005)/33-24-01-05.1 through .2.j, .3 through .6.a, .7 introductory paragraph and .a, 33-24-01-07.4, 33-24-01-08.4.a(1), 33-24-02-03.1.b.(5), 33-24-02-11.1.a, 33-24-02-12.1, 33-24-02-19.2.b.(3)(a) and (b), 33-24-02/Appendices I—III, 33-24-05-103.1, 33-24-05-183.2, 33-24-05-280.2 and Table, 33-24-05-288/Table UTS, 33-24-05-404.3.a.(2), .3.a.(4), .4.a(3), and .6, 33-24-05-433.4.b, 33-24-05-525.4.a.(2) and.7.b, 33-24-05-527.2.a, 33-24-05-531.1, 33-24-05-537.2.a and .2.b.(1), 33-24-05-610.2.a.(2), 33-24-05-644.3, 33-24-05-653.3, 33-24-05-663.3, 33-24-05/Appendices V, XII, and XXIV, 33-24-06-16.5, 33-24-06-17.2.w.(3)(a)[3] and [4], 33-24-06-17.2.ff.(1)(b)(2)[b], 33-24-06-19.2.b.(2)(a)[3] and [4], 33-24-06-19.4.c.(2)(a) and (b); Universal Waste Rule: Specific Provisions for Mercury Containing Equipment (70 FR 45508, 08/05/2005) (Checklist 209)/33-24-01-04.92, 33-24-01-04.153 introductory paragraph and .c, 33-24-02-06.5.c, 33-24-05-01.6.j.(3), 33-24-05-250.6.c, 33-24-05-701.1.c, 33-24-05-704, 33-24-05-709.1, .3, and .4, 33-24-05-713.3, 33-24-05-714.4, 33-24-05-732.2.d and .e, 33-24-05-733.3, 33-24-05-734.4, 33-24-06-01.2.b.(8)(c), 33-24-06-16.5; Standardized Permit for RCRA Hazardous Waste Management Facilities (70 FR 53420, 09/08/2005) (Checklist 210)/33-24-01-04.48, .107 and .131, 33-24-01-05.3.a, .3.c.(27), and .4.a, 33-24-02-07.1, 33-24-05-950.3, 33-24-05-951, 33-24-05-960, 33-24-05-961, 33-24-05-963 through 968, 33-24-05-980 through 986, 33-24-05-990 through 998, 33-24-05-1010 through 1016, 33-24-05-1020, 33-24-05-1031, 33-24-05-1040 through 1047, 33-24-05-1060 through 1063, 33-24-05-1067, 33-24-05-1068, 33-24-05-1071, 33-24-05-1080 through 1087, 33-24-05-1100 through 1114, 33-24-05-1130 through 1138, 33-24-06-01.1 and .9, 33-24-06-02.4, 33-24-06-11.2, 33-24-06-12 introductory paragraph and .2.c, 33-24-06-16.5, 33-24-06-19.6, 33-24-06-45, 33-24-06-48, 33-24-06-52, 33-24-06-56, 33-24-06-57, 33-24-06-62, 33-24-06-65, 33-24-06-70, 33-24-06-73, 33-24-06-76, 33-24-06-80, 33-24-06-85, 33-24-07-01, 33-24-07-03 introductory paragraph and .3.a, 33-24-07-25.1 through .3, 33-24-07-26.1, 33-24-07-40 through 54; Revision of Wastewater Treatment Exemptions for Hazardous Waste Mixtures (“Headworks exemptions”) (70 FR 57769, 10/04/2005) (Checklist 211)/33-24-02-03.1.b.(4)(a) and (b), 33-24-02-03.1.b.(4)(d), (f), and (g); NESHAP: Final Standards for Hazardous Waste Combustors (Phase I Final Replacement Standards and Phase II) (70 FR 59402, 10/12/2005) (Checklist 212)/33-24-01-05.1, .3 introductory paragraph, and .3.a, 33-24-05-144.2.a, 33-24-05-525.2.a, .c and .d, 33-24-06-01.12, 33-24-06-05.2.c, 33-24-06-14.10.a through .c, 33-24-06-14.11, 33-24-06-14/Appendix I, 33-24-06-16.5, 33-24-06-17.2.w.(5), .ff, .cc.(4)(c), and .dd.(5)(c), 33-24-06-19.2 and .4, 33-24-06-100; Burden Reduction Initiative (71 FR 16862, 04/04/2006) (Checklist 213)/33-24-01-10.2.b through .g, 33-24-02-04.1.i.(3)(e) and .6.i, 33-24-05-06.2.d, 33-24-05-07.1.d, 33-24-05-27.2, 33-24-05-31.9, 33-24-05-40.2 introductory paragraph, .a, .b, .f, .h, .j, .r, and .s, 33-24-05-55.4, .7.b, and .7.c, 33-24-05-56.6 and .7, 33-24-05-57.7, 33-24-05-64, 33-24-05-69, 33-24-05-77.9, 33-24-05-79.5, 33-24-05-93, 33-24-05-104.1 and .2.e.(2), 33-24-05-105.1 introductory paragraph and .2 introductory paragraph, 33-24-05-106.1.a, .1.b, and .9.b, 33-24-05-108.2 through .7, 33-24-05-109.6, 33-24-05-131.3, 33-24-05-167.2, 33-24-05-183.1 through .5, 33-24-05-147.1.b, 33-24-05-150.4, 33-24-05-256.1.a, .1.b, and .2.f, 33-24-05-258.1 and .4, 33-24-05-431.2.a and .b, 33-24-05-432.1, 33-24-05-475, 33-24-05-476.3.b and .d, 33-24-05-502.1 through .3, 33-24-05-504.1.d.(2) and .7, 33-24-05-505.1, 33-24-05-527.5.j, 33-24-05-528.4 and .11, 33-24-06-14/Appendix I, 33-24-06-16.5, 33-24-06-17.2 introductory paragraph, .t.(1), and .ee.(3)(o); Corrections to Errors in the Code of Federal Regulations (71 FR 40254, 07/14/2006) (Checklist 214)/33-24-01-04.69, .102, .109, .114, .153, and .158, 33-24-01-08.1.a and .4.a.(2), 33-24-01-13, 33-24-01-14, 33-24-02-02.3.a.(1), 33-24-02-03.1.b.(1), 33-24-02-04.1.t.(5), .2.f.(1)(b), .2.f.(2) introductory paragraph, .2.f.(2)(a), .2.i, .5.b.(6), and .5.c.(1), 33-24-02-06.1.b and .3.b, 33-24-02-11.1.c and .d, 33-24-02-11.Notes 1 through 4, 33-24-02-14.2, 33-24-02-16.1/Table, 33-24-02-17/Table entries “K107” and “K069”, 33-24-02-18.5, .5/Comment, and .5/Table, 33-24-02-18.6, .6/Comment, and .6/Table, 33-24-02/Appendices IV and V, 33-24-03-12.1.a.(4), 33-24-03-20.2, 33-24-03-23.2, 33-24-03-25.1.a, 33-24-03-40, 33-24-03-51.12, 33-24-03-53.2.a.(1) and .b.(1), 33-24-03-54.5, 33-24-03-57.1 introductory paragraph and .e, 33-24-05-01.6.b, 33-24-05-04.2.g.(3)(b), 33-24-05-08.2, 33-24-05-09.1, 33-24-05-54.1.a and .9.e, 33-24-05-55.1.b and .7.d.(1), 33-24-05-56.8.b, 33-24-05-58.4, 33-24-05-60.3, 33-24-05-64, 33-24-05-65, 33-24-05-67.3, 33-24-05-68.2.a.(2), 33-24-05-76.2.b.(2), 33-24-05-77.1.c.(1), .2.g, .2.h, .4.f, .5.e, and .6.j, 33-24-05-79.8.a, 33-24-05-81.2, .6, .7, .8.a and .b, .9, .10/Item(2)(d), and .11 through .14, 33-24-05-94.2.a, 33-24-05-106.3 through .5, and .7, 33-24-05-119.3.a.(1)(b), .3.b.(2), .5.a, .5.b.(1)(b), and.5.b.(1)(c), 33-24-05-120.1.b, 33-24-05-127.2.a, 33-24-05-131.1.b.(1)(a), 33-24-05-136.2, 33-24-05-137.1 and .2, 33-24-05-148.2, 33-24-05-167.3.g and .4, 33-24-05-170.1, 33-24-05-177.3.b and .5.b.(1)(b), 33-24-05-183.5.b, 33-24-05-186.1, 33-24-05-187.1 and .2, 33-24-05-188.2.a, 33-24-05-230.1, 33-24-05-235.1/Table, 33-24-05-251.1, 33-24-05-253.1.c, 33-24-05-255.3.e, 33-24-05-256.1.a, .1.c.(2), .1.d/Table (entry 8), .2.c.(2)/Table (entry 5), .2.d.(2), .3.b, .4 introductory paragraph through .c, 33-24-05-265.2 and .3, 33-24-05-280.7 and Table, 33-24-05-282/Table 1, 33-24-05-284.3, 33-24-05-285/Table 1, 33-24-05-288/Table UTS, 33-24-05-289.4, 33-24-05-290.3 and .7, 33-24-05-300, 33-24-05-301.1, .2.k, and .3.d, 33-24-05-400.3, 33-24-05-403.6.b.(7)(b), 33-24-05-404.2.b, 33-24-05-405.3.d.(1) and (2), 33-24-05-420.6, 33-24-05-428.3.a, 33-24-05-434.3.c, 33-24-05-450.1 and .3, 33-24-05-460.3, 33-24-05-476.2.c.(3), .3.c introductory paragraph, .3.c.(1), and .4, 33-24-05-477.1, 33-24-05-504.1.a, .1.d(1), .1.e, .2, .13.b, and .13.c, 33-24-05-525.2.b.(4), .4.c.(1)(a), and .7, 33-24-05-527.1.b.(6), .5.c.(1)(e), .5.e.(1)(c), .5.f.(2)(b)[2], and .5.h.(3), 33-24-05-528.1.d.(7), .2.b.(5)(b)[2], .2.e.(2)(a), .2.f.(8)(a), .3.a.(1), .3.a.(2)(a)[2], .3.a.(9) introductory paragraph and (a), .3.d.(4)(c)[1], and .7.a.(1), 33-24-05-531.4.a, 33-24-05-534.1.b.(2) and .2, 33-24-05-552.5.d.(3), .5.d.(4)(f), and .5.f.(3)(e), 33-24-05-553.5, 33-24-05-554.1, 33-24-05-555.5.f, 33-24-05-600.8, 33-24-05-610.2.b, 33-24-05-611 and 611/Table 1, 33-24-05-643.3.c.(1) and .3.e, 33-24-05-644.1 and .3.b, 33-24-05-645.1, 33-24-05-652.1, .2 introductory paragraph, .2.a.(2), .2.f.(2), and .2.f.(3), 33-24-05-655.1 and .2.b.(1)(b), 33-24-05-656.1.b, 33-24-05-657.1.b.(2), 33-24-05-659, 33-24-05-663.2.c, 33-24-05-664.5, 33-24-05-670.2.a, 33-24-05-713.2, 33-24-05-714.1, 33-24-05-734.1, 33-24-05-1067.6.b.(1)(a), 33-24-05/Appendix I Table 1 and Table 2 Section 6, Appendices XIII, XVIII through XXI, XXIII, XXIV, and XXVIII, 33-24-06-01.1, .2.b.(9)(a), and .10.a, 33-24-06-02, 33-24-06-03.4.a and .b, 33-24-06-07.2, 33-24-06-12.3, 33-24-06-14.4.b.(1), 33-24-06-14/Appendix I, 33-24-06-16.5, 33-24-06-17.1.e.(8), .2 introductory paragraph, .2.q.(3), .2.u.(6), .2.v.(2) and (7), .2.x.(9)(b), .2.aa, and .2.ee.(3)(o); Cathode Ray Tubes Rule (71 FR 42928, 07/28/2006) (Checklist 215)/33-24-01-04.13, .14, .16, and .17, 33-24-02-04.1.v, 33-24-02-23, 33-24-02-25 through 33-24-05-27; NESHAP: Final Standards for Hazardous Waste Combustors (Phase I Final Replacement Standards and Phase II) Amendments (73 FR 18970, 04/08/2008) (Checklist 217)/33-24-05-144.2.a and .c, 33-24-05-525.2.c.(2); F019 Exemption for Wastewater Treatment Sludges from Auto Manufacturing Zinc Phosphating Processes (73 FR 31756, 06/04/2008) (Checklist 218)/33-24-02-16.1/Table and .2.d; Revisions to the Definition of Solid Waste (73 FR 64668, 10/30/2008) (Checklist 219)/33-24-01-04.48, .59, .60, .77, .81, and .141, 33-24-01-09 introductory paragraph, .2, .4, and .5, 33-24-01-12 introductory paragraph, .1, and .3, 33-24-01-17 through 33-24-01-19, 33-24-02-01.3.d, 33-24-02-02.1 and .3.c, 33-24-02-04.1.x and .y, 33-24-02-33 through 33-24-02-42, 33-24-06-14/Appendix I; Academic Laboratories Generator Standards (73 FR 72912, 12/01/2008) (Checklist 220)/33-24-02-05.3.f and .g, 33-24-03-01.9, 33-24-03-60 through 33-24-03-77; Hazardous Waste Technical Corrections and Clarifications (75 FR 12989, 03/18/2010) (Checklist 223)/33-24-01-04.98, 33-24-01/Appendix I, 33-24-02-01.3.k, 33-24-02-02.3/Table 1, 33-24-02-04.1.q.(6), 33-24-02-05.2, .5, .6 introductory paragraph, .6.b, .7 introductory paragraph, and .7.b, 33-24-02-06.1.b introductory paragraph., .1.b.(2), .1.c, .3.a, and .4, 33-24-02-07.1 through .3, and .5, 33-24-02-13.1.h, 33-24-02-15.3 and .4, 33-24-02-16.1, 33-24-02-17.1/Table, 33-24-02-18.6, 33-24-02/Appendix IV (removal of entries K064, K065, K066, K090, K091), 33-24-03-01.5, 33-24-03-02.4, 33-24-03-07.7, 33-24-03-12.1.d, .2, .3, .4.d, .6, and .9, 33-24-03-14.2, 33-24-03-15.1, .2 introductory paragraph, and .4, 33-24-03-30.2, 33-24-04-03, 33-24-05-27.2, 33-24-05-31.4.b, 33-24-05-39.5.f, .6.a, .6.g, and .6.h, 33-24-05-183.4, 33-24-05-185.2, 33-24-05-201.2, 33-24-05-203, 33-24-05-230.4, 33-24-05-235.2, 33-24-05-526.3.a and .b, 33-24-05-280/Table (entries F025, K031, K156, K157, K158), 33-24-05-288/Table UTS, 33-24-05-552.1.c.(2) through (4), and .5.d.(4)(f), 33-24-06-10.1.a and .b, 33-24-06-16.5; Academic Laboratories Generator Standards Technical Corrections (75 FR 79304, 12/20/2010) (Checklist 226)/33-24-03-61.1, 33-24-03-67.2.c.(1), 33-24-03-73.5.a, 33-24-03-75.1.a and .2.a; Revision of the Land Disposal Treatment Standards for Carbamate Wastes (76 FR 34147, 06/13/2011) (Checklist 227)/33-24-05-280/Table, 33-24-05-288/Table UTS; Hazardous Waste Technical Corrections and Clarifications Rule (77 FR 22229, 04/13/2012) (Checklist 228)/33-24-02-17.1 (entry K107), 33-24-05-201.2; Conditional Exclusions for Solvent Contaminated Wipes (78 FR 46448, 07/31/2013) (Checklist 229)/33-24-01-04.100, .128, and .164, 33-24-02-04.1.w and .2.p; Conditional Exclusion for Carbon Dioxide (CO2) Streams in Geologic Sequestration Activities (79 FR 350, 01/03/2014) (Checklist 230)/33-24-01-04.11, 33-24-02-04.9; Hazardous Waste Electronic Manifest Rule (79 FR 7518, 02/07/2014) (Checklist 231)/33-24-01-04.38, .39, .90, and .151; 33-24-03-04.1.b, 33-24-03-07.8 and .9, 33-24-04-04.1 and .9, 33-24-05-38.1 introductory paragraph, .1.b, and .6 through .11, 33-24-06-16.5; Revisions to the Export Provisions of the Cathode Ray Tube (CRT) Rule (79 FR 36220, 06/26/2014) (Checklist 232)/33-24-01-04.15, 33-24-02-25.1.e.(1)(f), .1.e.(10), and .1.e.(11), 33-24-02-27; Revisions to the Definition of Solid Waste (80 FR 1694, 01/13/2015) (Checklist 233A)/33-24-01-10.3, 33-24-01-12.3 through .5, 33-24-01-18; Revisions to the Definition of Solid Waste (80 FR 1694, 01/13/2015) (Checklist 233B)/33-24-01-04.24 and .59, 33-24-01-19.1.a through .c, 33-24-02-02.2.c and .d, 33-24-02-02.7; Revisions to the Definition of Solid Waste (80 FR 1694, 01/13/2015) (Checklist 233C)/33-24-02-01.3.h; Revisions to the Definition of Solid Waste (80 FR 1694, 01/13/2015) (Checklist 233D2)/33-24-01-09.6, 33-24-01-10.4, except .4.f, 33-24-01-17.2 introductory paragraph and .2.d, 33-24-01-17.3.e, 33-24-02-01.3.d, 33-24-02-02.3.c, and .3.d/Table 1, 33-24-02-04.1.x, 33-24-02-33 through 33-24-02-42, 33-24-02-120 through 33-24-02-129, 33-24-06-14/Appendix I; Revisions to the Definition of Solid Waste (80 FR 1694, 01/13/2015) (Checklist 233E)/33-24-01-04.116, 33-24-02-02.3.c and .d/Table 1, 33-24-02-04.1.z, 33-24-02-50 through 33-24-02-70, 33-24-02-170 through 33-24-02-173.1.a, 33-24-02-174, 33-24-02-175, 33-24-02-200 through 33-24-02-203.2, 33-24-02-204, 33-24-02-206, 33-24-02-207 through 33-24-02-209.2; Response to Vacatur of the Comparable Fuels Rule and the Gasification Rule (80 FR 18777, 04/08/2015) (Checklist 234)/33-24-02-04.1.l.(1) and .1.p, 33-24-02-22; Disposal of Coal Combustion Residuals from Electric Utilities (80 FR 21302, 04/17/2015) (Checklist 235)/33-24-02-04.2.d.

    2. State-Initiated Changes

    North Dakota has made amendments to its regulations that are not directly related to any of the federal rules addressed in Item F.1 above. These state-initiated changes are either for the purpose of clarifying existing authorized provisions, or of adopting provisions to render the state's regulations both clearer and internally consistent. The state's regulations, as amended by these provisions, provide authority which remains equivalent to and no less stringent than the federal laws and regulations. These state-initiated changes are submitted under the requirements of 40 CFR 271.21(a) and include the following provisions from the North Dakota Administrative Code (NDAC), Article 33-24, as revised January 1, 2016: 33-24-01-04.21, .29, .84, and .126; 33-24-02-04.1.i.(3)(d); 33-24-02-06.5 introductory paragraph; 33-24-02-07.3.a through .b.1, .4, and .5.a through .c; 33-24-02-18.3; 33-24-03-13.2; 33-24-03-14.3; 33-24-03-17; 33-24-05-07.4.b; 33-24-05-38.2.b, .2.c, and .3; 33-24-05-47.1 through .4; 33-24-05-61.4.c; 33-24-05-75.5; 33-24-05-76.2.a introductory paragraph and .2.b introductory paragraph; 33-24-05-79.6.c.(1); 33-24-05-81.1 and .8.a; 33-24-05-103 introductory paragraph; 33-24-05-106.8; 33-24-05-132.1, .2.b, and .2.c; 33-24-05-180.2 introductory paragraph; 33-24-05-250.3.a; 33-24-05-252.1; 33-24-05-253.1.b.(1) and (2); 33-24-05-256.1.d; 33-24-05-271.2 and .3; 33-24-05-278; 33-24-05-289.1 through .3 introductory paragraph; 33-24-05-290.1 introductory paragraph and .1.a; 33-24-05-403.14; 33-24-05-421; 33-24-05-456.3.c and .3.d introductory paragraph; 33-24-05-459.6.a; 33-24-05-501; 33-24-05-504.1.c and .9; 33-24-05-536; 33-24-05-645.8; 33-24-05-654.7; 33-24-05-664.7; 33-24-05-718.2; 33-24-05-821.3; 33-24-05-822.4; 33-24-05/Appendix II; 33-24-06-01.2 introductory paragraph and .2.c; 33-24-06-05.1 introductory paragraph through 2.b, and .3 through .5; 33-24-06-17.2.hh and .3.d.2; 33-24-06-30.1.c; 33-24-07-14.

    The state-initiated changes also include conforming changes to internal references to the incorporation by reference of 40 CFR part 265 which was renumbered from 33-24-06-16(1) to 33-24-06-16(5) at the following citations: 33-24-02-04.1.i(3)(d); 33-24-05-254.8.b.(5); 33-24-05-290.1.a; 33-24-05-403.14.a(2); 33-24-05-528.1.f (3) and .12; 33-24-05-536.2.b, .4.b, and .5; 33-24-05-552.1.2; 33-24-05-622.1 introductory paragraph; 33-24-05-664.1; and 33-24-06-17.2.hh(7).

    Since receiving authorization of the base program, North Dakota has removed certain provisions from the authorized program regulations, which resulted in the clarification of the state's program. These provisions have been reviewed and we have determined that it is appropriate for the state to remove them, and that their removal has no impact on the equivalency or consistency with the federal program. The provisions removed were NDAC sections: 33-24-06-06.3; 33-24-06-16.1 through .4 as found in the January 1, 2016 version of the regulations; 33-24-05-56.11 as found in the December 1, 2003 version of the regulations; 33-24-05-132.2.b as found in the December 1, 1988 version of the regulations; and 33-24-05-132.4 as found in the January 1, 1984 version of the regulations.

    G. Where are the revised state rules different from the Federal rules?

    We consider the following state requirements to be more stringent than the federal requirements: 33-24-02-22, 33-24-02-25, 33-24-02-27, 33-24-02-30.5 33-24-03-20.2, and 33-24-03-23.2, because North Dakota requires documentation, such as manifests, to be submitted to the state in addition to the federal U.S. EPA; 33-24-02-36.4.a because North Dakota has additional state-specific insurance requirements; and 33-24-05-968 because North Dakota has more stringent location standards that restrict the location of permitted facilities within certain geographical areas.

    There are no requirements that are broader-in-scope than the federal program in these revisions.

    North Dakota's rules, promulgated pursuant to this application, contain an error which may create confusion within the regulated community. The EPA has determined that the error does not pose implementation or enforcement problems; therefore, the EPA will approve this application with the understanding that the state will correct this item during its next rulemaking. The error is at 33-24-05/Appendix II within the North Dakota Administrative Code (NDAC), revised January 1, 2016.

    H. Who handles permits after the final authorization takes effect?

    North Dakota will continue to issue permits for all the provisions for which it is authorized and will administer the permits it issues. The EPA will continue to administer any RCRA hazardous waste permits or portions of permits which were issued prior to the effective date of this authorization.

    I. How does this action affect Indian country (18 U.S.C. 1151) in North Dakota?

    North Dakota is not authorized to carry out its hazardous waste program in Indian country, as defined in 18 U.S.C. 1151. This includes, but is not limited to:

    1. Lands within the exterior boundaries of the following Indian Reservations located within or abutting the State of North Dakota:

    a. Fort Totten Indian Reservation b. Fort Berthold Indian Reservation c. Standing Rock Indian Reservation d. Turtle Mountain Indian Reservation

    2. Any land held in trust by the U.S. for an Indian tribe, and

    3. Any other land, whether on or off a reservation that qualifies as Indian country within the meaning of 18 U.S.C. 1151.

    Therefore, this program revision does not extend to Indian country where the EPA will continue to implement and administer the RCRA program.

    II. Corrections

    Corrections to February 14, 2008 (73 FR 8610) Authorization document: The following two citations: 33-24-05-256.1.c.1 and 33-24-05-256.1.c.2 were not included in the authorization of Checklist 137 that was published February 14, 2008. We have reviewed these citations and determined that it is appropriate to include them as technical corrections as part of this codification.

    III. Incorporation by Reference A. What is codification?

    Codification is the process of including the statutes and regulations that comprise the state's authorized hazardous waste management program into the CFR. Section 3006(b) of RCRA, as amended, allows the EPA to authorize state hazardous waste management programs. The state regulations authorized by the EPA supplant the federal regulations concerning the same matter with the result that after authorization, the EPA enforces the authorized regulations. Infrequently, state statutory language which acts to regulate a matter is also authorized by the EPA with the consequence that the EPA enforces the authorized statutory provision. The EPA does not authorize state enforcement authorities and does not authorize state procedural requirements. The EPA codifies the authorized state program in 40 CFR part 272 and incorporates by reference state statutes and regulations that make up the approved program which is federally enforceable in accordance with Sections 3007, 3008, 3013, and 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934 and 6973, and any other applicable statutory and regulatory provisions.

    B. What is the history of the codification of North Dakota's hazardous waste management program?

    The EPA incorporated by reference North Dakota's then authorized hazardous waste program effective April 14, 2008 (73 FR 8610). In this action, the EPA is proposing to revise Subpart JJ of 40 CFR part 272 to include the authorization revision actions described in this preamble.

    C. What decisions have we proposed in this rule?

    In this action, the EPA is proposing to finalize regulatory text that includes those incorporated by reference. In accordance with the requirements of 1 CFR 51.5, the EPA is proposing to finalize the incorporation by reference of the North Dakota rules described in the amendments to 40 CFR part 272 set forth below. The EPA has made, and will continue to make, these documents available electronically through http://www.regulations.gov and in hard copy at the appropriate EPA office (see the ADDRESSES section of this preamble for more information).

    This action proposes to codify the EPA's authorization of North Dakota's base hazardous waste management program and its revisions to that program. The proposed codification reflects the state program that will be in effect at the time the EPA's authorized revisions to the North Dakota hazardous waste management program addressed in this proposed rule become final. This proposed action does not reopen any decision the EPA previously made concerning the authorization of the state's hazardous waste management program. The EPA is not requesting comments on its prior decisions published in the Federal Register actions referenced in Section I.E of this preamble.

    The EPA is proposing to incorporate by reference the EPA's approval of North Dakota's hazardous waste management program by amending Subpart JJ to 40 CFR part 272. The proposed action amends section 272.1751 and incorporates by reference North Dakota's authorized hazardous waste regulations, as amended effective January 1, 2016. Section 272.1751 also references the demonstration of adequate enforcement authority, including procedural and enforcement provisions, which provide the legal basis for the state's implementation of the hazardous waste management program. In addition, section 272.1751 references the Memorandum of Agreement, the Attorney General's Statements, and the Program Description, which are evaluated as part of the approval process of the hazardous waste management program in accordance with Subtitle C of RCRA.

    D. What is the effect of North Dakota's codification on enforcement?

    The EPA retains the authority under federal statutory provisions, including but not limited to, RCRA sections 3007, 3008, 3013 and 7003, and other applicable statutory and regulatory provisions to undertake inspections and enforcement actions and to issue orders in all authorized states. With respect to enforcement actions, the EPA will rely on federal sanctions, federal inspection authorities, and federal procedures rather than the state analogs to these provisions. Therefore, the EPA is not proposing to incorporate by reference North Dakota's inspection and enforcement authorities, nor are those authorities part of North Dakota's approved state program which operates in lieu of the federal program. 40 CFR 272.1751(c)(2) lists these authorities for informational purposes, and because the EPA also considered them in determining the adequacy of North Dakota's procedural and enforcement authorities. North Dakota's authority to inspect and enforce the state's hazardous waste management program requirements continues to operate independently under state law.

    E. What state provisions are not proposed as part of the codification?

    The public is reminded that some provisions of North Dakota's hazardous waste management program are not part of the federally-authorized state program. These non-authorized provisions include:

    1. Provisions that are not part of the RCRA subtitle C program because they are “broader in scope” than RCRA subtitle C (see 40 CFR 271.1(i));

    2. Federal rules for which North Dakota is not authorized, but which have been incorporated into the state regulations because of the way the state adopted federal regulations by reference;

    3. State procedural and enforcement authorities which are necessary to establish the ability of the state's program to enforce compliance, but which do not supplant the federal statutory enforcement and procedural authorities.

    4. Federal rules which North Dakota adopted, but which were vacated by the U.S. Court of Appeals for the District of Columbia Circuit (DC Cir. No. 09-1038, rulings dated July 7, 2017, and March 6, 2018).

    State provisions that are “broader in scope” than the federal program are not incorporated by reference in 40 CFR part 272. For reference and clarity, the EPA proposes to list in 40 CFR 272.1751(c)(3) the North Dakota statutory provisions that are “broader in scope” than the federal program, and which are not part of the authorized program being incorporated by reference. While “broader in scope” provisions are not part of the authorized program and cannot be enforced by the EPA, the state may enforce such provisions under state law.

    North Dakota has adopted, but is not authorized for, the federal rules published in the Federal Register on April 12, 1996 (61 FR 16290); October 22, 1998 (63 FR 56710), and January 8, 2010 (75 FR 1235). Therefore, these federal amendments included in North Dakota's adoption by reference at section 33-24-06-16.5 of the North Dakota Administrative Code, are not part of the state's authorized program and are not part of the proposed incorporation by reference addressed by this Federal Register document.

    F. What will be the effect of the proposed codification on Federal HSWA requirements?

    With respect to any requirement(s) pursuant to HSWA for which the state has not yet been authorized, and which the EPA has identified as taking effect immediately in states with authorized hazardous waste management programs, the EPA will enforce those federal HSWA standards until the state is authorized for those provisions.

    The proposed codification does not affect federal HSWA requirements for which the state is not authorized. The EPA has authority to implement HSWA requirements in all states, including states with authorized hazardous waste management programs, until the states become authorized for such requirements or prohibitions, unless the EPA has identified the HSWA requirement(s) as an optional or as a less stringent requirement of the federal program. A HSWA requirement or prohibition, unless identified by the EPA as optional or as less stringent, supersedes any less stringent or inconsistent state provision which may have been previously authorized by the EPA (50 FR 28702, July 15, 1985).

    Some existing state requirements may be similar to the HSWA requirements implemented by the EPA. However, until the EPA authorizes those state requirements, the EPA enforces the HSWA requirements and not the state analogs.

    IV. Administrative Requirements

    The Office of Management and Budget (OMB) has exempted this action from the requirements of Executive Orders 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 3821, January 21, 2011). This action proposes to authorize state requirements for the purpose of RCRA section 3006 and imposes no additional requirements beyond those imposed by state law. Therefore, this action is not subject to review by OMB. This action is not an Executive Order 13771 (82 FR 9339, February 3, 2017) regulatory action because actions such as today's proposed authorization of North Dakota's revised hazardous waste program under RCRA are exempted under Executive Order 12866. Accordingly, I certify that this action will not have a significant economic impact on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). Because this action proposes to authorize pre-existing requirements under state law and does not impose any additional enforceable duty beyond that required by state law, it does not contain any unfunded mandate or significantly or uniquely affect small governments, as described in the Unfunded Mandates Reform Act of 1995 (2 U.S.C. 1531-1538). For the same reason, this proposed action also does not significantly or uniquely affect the communities of tribal governments, as specified by Executive Order 13175 (65 FR 67249, November 9, 2000). This action will not have substantial direct effects on the states, on the relationship between the national government and the states, or on the distribution of power and responsibilities among the various levels of government, as specified in Executive Order 13132 (64 FR 43255, August 10, 1999), because it merely proposes to authorize and codify state requirements as part of the state RCRA hazardous waste program without altering the relationship or the distribution of power and responsibilities established by RCRA.

    This proposed action also is not subject to Executive Order 13045 (62 FR 19885, April 23, 1997), because it is not economically significant and it does not make decisions based on environmental health or safety risks. This proposed action is not subject to Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use” (66 FR 28355, May 22, 2001), because it is not a significant regulatory action under Executive Order 12866.

    Under RCRA 3006(b), the EPA grants a state's application for authorization as long as the state meets the criteria required by RCRA. It would thus be inconsistent with applicable law for the EPA, when it reviews a state authorization application, to require the use of any particular voluntary consensus standard in place of another standard that otherwise satisfies the requirements of RCRA. Thus, the requirements of section 12(d) of the National Technology Transfer and Advancement Act of 1995 (15 U.S.C. 272 note) do not apply. As required by section 3 of Executive Order 12988 (61 FR 4729, February 7, 1996), in issuing this proposed action, the EPA has taken the necessary steps to eliminate drafting errors and ambiguity, minimize potential litigation, and provide a clear legal standard for affected conduct. The EPA has complied with Executive Order 12630 (53 FR 8859, March 15, 1988) by examining the takings implications of the action in accordance with the “Attorney General's Supplemental Guidelines for the Evaluation of Risk and Avoidance of Unanticipated Takings” issued under the executive order. This proposed action does not impose an information collection burden under the provisions of the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.). “Burden” is defined at 5 CFR 1320.3(b).

    Executive Order 12898 (59 FR 7629, February 16, 1994) establishes federal executive policy on environmental justice. Its main provision directs federal agencies, to the greatest extent practicable and permitted by law, to make environmental justice part of their mission by identifying and addressing, as appropriate, disproportionately high and adverse human health or environmental effects of their programs, policies, and activities on minority populations and low-income populations in the United States. Because this rule proposes to authorize pre-existing state rules which are at least equivalent to, and no less stringent than existing federal requirements, and imposes no additional requirements beyond those imposed by state law, and there are no anticipated significant adverse human health or environmental effects, the rule is not subject to Executive Order 12898.

    List of Subjects 40 CFR Part 271

    Environmental protection, Administrative practice and procedure, Confidential business information, Hazardous waste, Hazardous waste transportation, Indian lands, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements.

    40 CFR Part 272

    Environmental protection, Hazardous materials transportation, Hazardous waste, Incorporation by reference, Intergovernmental relations, Water pollution control, Water supply.

    Authority:

    This rule is issued under the authority of Sections 2002(a), 3006 and 7004(b) of the Solid Waste Disposal Act as amended, 42 U.S.C. 6912(a), 6926, 6974(b).

    Dated:May 25, 2018. Douglas Benevento, Regional Administrator, Region 8.

    For the reasons set forth in the preamble, 40 CFR parts 271 and 272 are amended as follows:

    PART 271—REQUIREMENTS FOR AUTHORIZATION OF STATE HAZARDOUS WASTE PROGRAMS

    EPA is proposing to grant final authorization under part 271 to the State of North Dakota for revisions to its hazardous waste program under the Resource Conservation and Recovery Act.

    PART 272—APPROVED STATE HAZARDOUS WASTE MANAGEMENT PROGRAMS 1. The authority citation for part 272 continues to read as follows: Authority:

    Secs. 2002(a), 3006, and 7004(b) of the Solid Waste Disposal Act, as amended by the Resource Conservation and Recovery Act of 1976, as amended, 42 U.S.C. 6912(a), 6926, and 6974(b).

    2. Revise § 272.1751 to read as follows:
    § 272.1751 North Dakota State-Administered Program: Final Authorization.

    (a) History of the State of North Dakota authorization. Pursuant to section 3006(b) of RCRA, 42 U.S.C. 6926(b), North Dakota has final authorization for the following elements as submitted to the EPA in North Dakota's base program application for final authorization which was approved by the EPA effective on October 19, 1984. Subsequent program revision applications were approved effective on August 24, 1990, July 6, 1992, June 6, 1994, March 20, 2000, November 25, 2005, April 14, 2008, and [EFFECTIVE DATE OF FINAL RULE].

    (b) Enforcement authority. The state of North Dakota has primary responsibility for enforcing its hazardous waste management program. However, the EPA retains the authority to exercise its inspection and enforcement authorities in accordance with sections 3007, 3008, 3013, 7003 of RCRA, 42 U.S.C. 6927, 6928, 6934, 6973, and any other applicable statutory and regulatory provisions, regardless of whether the state has taken its own actions, as well as in accordance with other statutory and regulatory provisions.

    (c) State Statutes and Regulations.

    (1) Incorporation by reference. The North Dakota statutes and regulations cited in paragraph (c)(1)(i) of this section are incorporated by reference as part of the hazardous waste management program under Subtitle C of RCRA, 42 U.S.C. 6921 et seq. This incorporation by reference is approved by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain copies of the North Dakota regulations that are incorporated by reference in this paragraph from North Dakota Legislative Council, Second Floor, State Capitol, 600 E. Boulevard Avenue, Bismarck, North Dakota 58505, phone (701) 328-2916. You may inspect a copy at EPA Region 8, 1595 Wynkoop Street, Denver, Colorado, phone number (303) 312-6231, or at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call (202) 741-6030, or go to: http://www.archives.gov/federal-register/cfr/ibr-locations.html.

    (i) The Binder entitled “EPA-Approved North Dakota Statutory and Regulatory Requirements Applicable to the Hazardous Waste Management Program,” dated April 2018.

    (ii) [Reserved]

    (2) Legal basis. The EPA considered the following statutes and regulations in evaluating the state program but is not incorporating them herein for enforcement purposes:

    (i) North Dakota Century Code (NDCC), Volume 13A, 2012 Replacement, North Dakota Constitution, Article XI: Sections 5 and 6.

    (ii) North Dakota Century Code, Volume 4A, 2012 Replacement. Chapter 23-01 “State Department of Health”, Section 23-01-04.1; Chapter 23-20.3 “Hazardous Waste Management”, Sections 23-20.3-01, 23-20.3-02 introductory paragraph, (2), (3) through (8), (10), (13) through (16), and (18); 23-20.3-03; 23-20.3-04; 23-20.3-05(3), (5), (6), and (8); 23-20.3-06 through 23-20.3-10; and Chapter 23-29 “Solid Waste Management and Land Protection”, Section 23-29-04.

    (iii) North Dakota Century Code, Volume 4A, 2015 Pocket Supplement. Chapter 23-01 “State Department of Health”, Section 23-01-36

    (iv) North Dakota Century Code, Volume 5, 2012 Replacement. Chapter 28-32 “Administrative Agencies Practice Act”, Section 28-32-21.1 “Actions against administrative agencies—Attorney's fees and costs”.

    (v) North Dakota Century Code, Volume 6, 2012 Replacement. Chapter 32-40 “Environmental Law Enforcement”, Sections 32-40-03 through 32-40-11.

    (vi) North Dakota Century Code, Volume 9A, 2012 Replacement, as amended by the 2015 Pocket Supplement. Chapter 44-04 “Duties, records and meetings”, Sections 44-04-18 through 19.1.

    (vii) North Dakota Administrative Code (NDAC), Article 33—24, Hazardous Waste Management, as amended through January 1, 2016. Sections 33-24-01-15; 33-24-01-16; 33-24-06-05, except .2.c; 33-24-06-06.2; 33-24-06-09; 33-24-06-15.1.6 through .3.b; 33-24-07-03.4; 33-24-07-04 through 33-24-07-14; 33-24-07-25 through 33-24-07-27; and 33-24-07-40 through 33-24-07-54.

    (3) Related legal provisions. The following statutory and regulatory provisions are broader in scope than the federal program, are not part of the authorized program, are not incorporated by reference, and are not federally enforceable:

    (i) North Dakota Century Code, 2012 Replacement, Volume 4A, Chapter 23-01 “State Department of Health”, Section 23-01-04.1(6).

    (ii) North Dakota Century Code, Volume 4A, 2012 Replacement. Chapter 23-20.3 “Hazardous Waste Management”, Sections 23-20.3-02(1); 23-20.3-05.1; 23-20.3-05.2; and 23-20.3-05.3.

    (iii) North Dakota Administrative Code, Article 33-24, “Hazardous Waste Management”, as amended through January 1, 2016, Sections 33-24-03-03.4; 33-24-04-02.3; 33-24-05-02 second sentence; 33-24-06-14.3.a(4); and 33-24-06-21.

    (iv) North Dakota's hazardous waste regulations set forth additional transporter requirements including permit requirements at 33-24-04-02. The transporter permit requirements are broader in scope than the federal program.

    (4) Unauthorized state amendments and provisions.

    (i) North Dakota has partially or fully adopted, but is not authorized to implement, the federal rule published in the Federal Register on October 22, 1998 (63 FR 56710) Post-Closure Requirements and Closure Process (HSWA/non-HSWA) (Checklist 174). The EPA will continue to implement the federal HSWA requirements for which North Dakota is not authorized until the state receives specific authorization for those requirements.

    (ii) The federal rules listed in the following table are not delegable to states. North Dakota has adopted these provisions and left the authority to the EPA for implementation and enforcement.

    Federal requirement Federal
  • Register
  • reference
  • Publication date
    Imports and Exports of Hazardous Waste: Implementation of OECD Council Decision (HSWA) (Checklist 152) 61 FR 16290 April 12, 1996. OECD Requirements; Export Shipments of Spent Lead-Acid Batteries (Non-HSWA) (Checklist 222) 75 FR 1236 January 8, 2010.

    (iii) North Dakota has adopted the following federal provisions from the Revisions to the Definition of Solid Waste Rule, 80 FR 1694 (Jan. 13, 2015) which have since been vacated by the U.S. Court of Appeals for the District of Columbia Circuit in Am. Petroleum Inst. v. EPA, 862 F.3d 50 (DC Cir. 2017) and Am. Petroleum Inst. v. EPA, No. 09-1038 (DC Cir. Mar. 6, 2018) (vacating both the Factor 4 Legitimacy Test and the Verified Recycler Exclusion aspects of the 2015 DSW Rule): (1) One criterion in the determination of whether recycling is legitimate at 40 CFR 260.43(a)(4); (2) one criterion in the variance determination for exceptions to the classification of hazardous secondary materials as a solid waste (at 40 CFR 260.31(d)(6)); and (3) the verified recycler exclusion, which allowed generators to send their hazardous secondary materials to certain reclaimers at 40 CFR 261.4(a)(24).

    (5) Memorandum of Agreement. The Memorandum of Agreement between the EPA Region 8 and the state of North Dakota, signed by the Environmental Health Section of the North Dakota Department of Health on July 18, 2016, although not incorporated by reference, is referenced as part of the authorized hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq.

    (6) Statement of Legal Authority. “Attorney General's Statement: Hazardous Waste Management Program” signed by the Attorney General of North Dakota on June 8, 1984, and revisions, supplements, and addenda to that Statement dated February 22, 1989, February 11, 1984, October 13, 1999, April 23, 2004, August 19, 2004 and December 5, 2016, although not incorporated by reference, are referenced as part of the authorized hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq.

    (7) Program Description. The Program Description and any other materials submitted as supplements thereto, although not incorporated by reference, are referenced as part of the authorized hazardous waste management program under subtitle C of RCRA, 42 U.S.C. 6921 et seq.

    3. Appendix A to part 272 is amended by revising the listing for “North Dakota” to read as follows: Appendix A to Part 272—State Requirements North Dakota

    (a) The statutory provisions include: North Dakota Century Code (NDCC), Volume 4A, 2012 Replacement. Chapter 23-20.3 “Hazardous Waste Management”, Sections 23-20.3-05(1), (2), (4), (7), and (9). Copies of the North Dakota statutes that are incorporated by reference are available from Matthew Bender & Company Inc., 701 E. Water Street Charlottesville, VA 22902-5389, phone number: (800) 833-9844.

    (b) The regulatory provisions include: North Dakota Administrative Code (NDAC), Article 33-24, as revised January 1, 2016, except reserved provisions.

    Chapter 33-24-01—General provisions: Sections 33-24-01-01 through 33-24-01-04, 33-24-01-05, except .2.k and .7.a; 33-24-01-06 through 33-24-01-09; 33-24-01-10, except .4.f; 33-24-01-11 through 33-24-01-14; 33-24-01-17; 33-24-01-18; and 33-24-01-19, except .1.d.

    Chapter 33-24-02—Identification and Listing of Hazardous Waste: Sections 33-24-02-01 through 33-24-02-03; 33-24-02-04, except .1.y; 33-24-02-05; 33-24-02-06, except .1.e; 33-24-02-07 through 33-24-02-10; 33-24-02-11, except the phrase “or a miniflash continuously closed cup tester, using the test method specified in American Society for Testing and Material D6450-99 (incorporated by reference in section 33-24-01-05)” in paragraph .1.a; 33-24-02-12 through 33-24-02-19; 33-24-02-25 through 33-24-02-27; 33-24-02-33 through 33-24-02-42; 33-24-02-50 through 33-24-02-70; 33-24-02-120 through 33-24-02-129; 33-24-02-170 through 33-24-02-175; 33-24-02-180 through 33-24-02-194; 33-24-02-200 through 33-24-02-209; and Appendices I, IV, and V.

    Chapter 33-24-03—Standards for Generators: Sections 33-24-03-01, except .4; 33-24-03-02; 33-24-03-03.1 and .2; 33-24-03-03.3 except the phrase “and a transporter permit”; 33-24-03-04 through 33-24-03-24; 33-24-03-30; 33-24-03-40; 33-24-03-60 through 33-24-03-77; and Appendix I.

    Chapter 33-24-04—Standards for Transporters: Sections 33-24-04-01, except .4 and Note following paragraph .3.b; 33-24-04-02.1, except the phrase “, a transporter permit, and a registration certificate”; 33-24-04-02.2, except the phrases “and a registration certificate, or a transporter permit,” in the first sentence, and “and issue a registration certificate” in the second sentence; and 33-24-04-03 through 33-24-04-08.

    Chapter 33-24-05—Standards for Treatment, Storage, and Disposal Facilities and for the Management of Specific Hazardous Waste and Specific Types of Hazardous Waste Management Facilities: Sections 33-24-05-01; 33-24-05-02, except the second sentence; 33-24-05-03, except 33-24-05-03.1; 33-24-05-04 through 33-24-05-10; 33-24-05-15 through 33-24-05-20; 33-24-05-26 through 33-24-05-31; 33-24-05-37; 33-24-05-38, except .1.c and .4; 33-24-05-39 through 33-24-05-44; 33-24-05-47 through 33-24-05-69; 33-24-05-74 through 33-24-05-81; 33-24-05-89 through 33-24-05-98; 33-24-05-103 through 33-24-05-115; 33-24-05-118 through 33-24-05-128; 33-24-05-130 through 33-24-05-138; 33-24-05-144 through 33-24-05-151; 33-24-05-160 through 33-24-05-170; 33-24-05-176 through 33-24-05-188; 33-24-05-201 through 33-24-05-204; 33-24-05-230, except .2.c; 33-24-05-235, except .1/Table entries (6) and (7); 33-24-05-250 through 33-24-05-253; 33-24-05-256; 33-24-05-258; 33-24-05-265; 33-24-05-266; 33-24-05-270 through 33-24-05-281; 33-24-05-282, except .2; 33-24-05-283; 33-24-05-284.8 through .13; 33-24-05-285; 33-24-05-286; 33-24-05-288 through 33-24-05-290; 33-24-05-300 through 33-24-05-303; 33-24-05-400 through 33-24-05-406; 33-24-05-420 through 33-24-05-435; 33-24-05-450 through 33-24-05-460; 33-24-05-475 through 33-24-05-477; 33-24-05-501 through 33-24-05-506; 33-24-05-525 through 33-24-05-537; 33-24-05-550 through 33-24-05-555; 33-24-05-600; 33-24-05-610 through 33-24-05-612; 33-24-05-620 through 33-24-05-624; 33-24-05-630 through 33-24-05-632; 33-24-05-640 through 33-24-05-647; 33-24-05-650 through 33-24-05-667; 33-24-05-670 through 33-24-05-675; 33-24-05-680; 33-24-05-681; 33-24-05-701 through 33-24-05-705; 33-24-05-708 through 33-24-05-720; 33-24-05-730 through 33-24-05-740; 33-24-05-750 through 33-24-05-756; 33-24-05-760 through 33-24-05-762; 33-24-05-770, except .4; 33-24-05-780; 33-24-05-781; 33-24-05-800 through 33-24-05-802; 33-24-05-820 through 33-24-05-826; 33-24-05-850; 33-24-05-855 through 33-24-05-857; 33-24-05-860; 33-24-05-865; 33-24-05-866; 33-24-05-870; 33-24-05-875; 33-24-05-880; 33-24-05-885; 33-24-05-890; 33-24-05-895 through 33-24-05-900; 33-24-05-905; 33-24-05-910; 33-24-05-915; 33-24-05-916; 33-24-05-950; 33-24-05-951; 33-24-05-960; 33-24-05-961; 33-24-05-963 through 33-24-05-968; 33-24-05-980 through 33-24-05-986; 33-24-05-990 through 33-24-05-998; 33-24-05-1010 through 33-24-05-1016; 33-24-05-1020; 33-24-05-1031; 33-24-05-1040 through 33-24-05-1043; 33-24-05-1045 through 33-24-05-1047; 33-24-05-1060 through 33-24-05-1063; 33-24-05-1067; 33-24-05-1068; 33-24-05-1071; 33-24-05-1080 through 33-24-05-1087; 33-24-05-1100 through 33-24-05-1114; 33-24-05-1130 through 33-24-05-1138; and Appendices I through VIII, X through XIII, XV through XXIV, and XXVI through XXIX.

    Chapter 33-24-06—Permits: Sections 33-24-06-01; 33-24-06-02, 33-24-06-03, except Note following paragraph .1.a.(2); 33-24-06-04; 33-24-06-05.2.c; 33-24-06-06.1; 33-24-06-07; 33-24-06-08; 33-24-06-10 through 33-24-06-13; 33-24-06-14, except .3.a.(4); 33-24-06-15 introductory paragraph through .1.a; 33-24-06-16.5 through .7; 33-24-06-17 through 33-24-06-20; 33-24-06-30 through 33-24-06-35; 33-24-06-45; 33-24-06-48; 33-24-06-52; 33-24-06-56; 33-24-06-57; 33-24-06-62; 33-24-06-65; 33-24-06-70; 33-24-06-73; 33-24-06-76; 33-24-06-80; 33-24-06-85; 33-24-06-100; and Appendix I to Section 33-24-06-14.

    Chapter 33-24-07—Permitting Procedures: Sections 33-24-07-01; 33-24-07-02; and 33-24-07-03, except .4.

    Copies of the North Dakota regulations that are incorporated by reference are available from North Dakota Legislative Counsel, Second Floor, State Capitol, 600 East Boulevard, Bismarck, North Dakota 58505, phone number: (701) 328-2916.

    [FR Doc. 2018-11842 Filed 6-4-18; 8:45 am] BILLING CODE 6560-50-P
    83 108 Tuesday, June 5, 2018 Notices DEPARTMENT OF AGRICULTURE Forest Service Sabine-Angelina Resource Advisory Committee AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of meeting.

    SUMMARY:

    The Sabine-Angelina Resource Advisory Committee (RAC) will meet in Hemphill, Texas. The committee is authorized under the Secure Rural Schools and Community Self-Determination Act (the Act) and operates in compliance with the Federal Advisory Committee Act. The purpose of the committee is to improve collaborative relationships and to provide advice and recommendations to the Forest Service concerning projects and funding consistent with Title II of the Act. RAC information can be found at the following website: http://cloudapps-usda-gov.force.com/FSSRS/RAC_Page?id=001t0000002JcvCAAS.

    DATES:

    The meeting will be held on Tuesday, June 19, 2018, at 3:00 p.m.

    All RAC meetings are subject to cancellation. For status of the meeting prior to attendance, please contact the person listed under For Further Information Contact.

    ADDRESSES:

    The meeting will be held at the Sabine Ranger District, 5050 State Highway 21 East, Hemphill, Texas.

    Written comments may be submitted as described under Supplementary Information. All comments, including names and addresses when provided, are placed in the record and are available for public inspection and copying. The public may inspect comments received at the Sabine Ranger District. Please call ahead at 409-625-1940 to facilitate entry into the building.

    FOR FURTHER INFORMATION CONTACT:

    Becky Nix, RAC Coordinator, by phone at 409-625-1940 or via email at [email protected]

    Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Information Relay Service (FIRS) at 1-800-877-8339 between 8:00 a.m. and 8:00 p.m., Eastern Standard Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION:

    The purpose of the meeting is to:

    1. Approve minutes from November 3, 2016 meeting;

    2. Approve resignation from Felix Holmes;

    3. Discuss, recommend, and approve new Title II projects;

    4. Provide opportunity for review and discussion of RAC Title III funds planned uses by counties;

    5. Discuss next 2-3 Stewardship Proposals that Angelina/Sabine will be developing and gain collaborative input from RAC; and

    6. Discuss next 3-4 vegetation management areas that Angelina/Sabine hopes to initiate over the next 4-5 years and gain collaborative input from the committee on the projects/activities that we'd hope to do in those areas.

    The meeting is open to the public. The agenda will include time for people to make oral statements of three minutes or less. Individuals wishing to make an oral statement should request in writing by Friday, June 8, 2018, to be scheduled on the agenda. Anyone who would like to bring related matters to the attention of the committee may file written statements with the committee staff before or after the meeting. Written comments and requests for time for oral comments must be sent to Becky Nix, RAC Coordinator, 5050 State Highway 21 East, Hemphill, Texas 75948; by email to [email protected], or via facsimile to 409-625-1953.

    Meeting Accommodations: If you are a person requiring reasonable accommodation, please make requests in advance for sign language interpreting, assistive listening devices, or other reasonable accommodation. For access to the facility or proceedings, please contact the person listed in the section titled For Further Information Contact. All reasonable accommodation requests are managed on a case by case basis.

    Dated: May 23, 2018. Christopher French, Associate Deputy Chief, National Forest System.
    [FR Doc. 2018-12069 Filed 6-4-18; 8:45 am] BILLING CODE 3411-15-P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Oregon Advisory Committee AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Announcement of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act (FACA) that a meeting of the Oregon Advisory Committee (Committee) to the Commission will be held at 1:00 p.m. (Pacific Time) Thursday, June 14, 2018. The purpose of the meeting is for the Committee to debrief testimony received at four public meetings (April 3, 2018; April 17, 2018; May 1, 2018; and May 2, 2018) on human trafficking in Oregon.

    DATES:

    The meeting will be held on Thursday, June 14, 2018, at 1:00 p.m. PT.

    Public Call Information:

    Dial: 800-839-7875.

    Conference ID: 9708817.

    FOR FURTHER INFORMATION CONTACT:

    Ana Victoria Fortes (DFO) at [email protected] or (213) 894-3437.

    SUPPLEMENTARY INFORMATION:

    This meeting is available to the public through the above toll-free call-in number. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.

    Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments may be mailed to the Western Regional Office, U.S. Commission on Civil Rights, 300 North Los Angeles Street, Suite 2010, Los Angeles, CA 90012. They may be faxed to the Commission at (213) 894-0508, or emailed Ana Victoria Fortes at [email protected] Persons who desire additional information may contact the Regional Programs Unit at (213) 894-3437.

    Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at https://facadatabase.gov/committee/meetings.aspx?cid=270.

    Please click on the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Regional Programs Unit, as they become available, both before and after the meeting. Persons interested in the work of this Committee are directed to the Commission's website, https://www.usccr.gov, or may contact the Regional Programs Unit at the above email or street address.

    Agenda I. Welcome II. Debrief III. Review Report Outline IV. Public comment V. Next Steps VI. Adjournment

    Exceptional Circumstance: Pursuant to 41 CFR 102-3.150, the notice for this meeting is given less than 15 calendar days prior to the meeting because of the exceptional circumstance of this Committee preparing for its report on human trafficking that will be issued before the end of the fiscal year.

    Dated: May 30, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-11975 Filed 6-4-18; 8:45 am] BILLING CODE P
    COMMISSION ON CIVIL RIGHTS Notice of Public Meeting of the Alaska Advisory Committee AGENCY:

    U.S. Commission on Civil Rights.

    ACTION:

    Announcement of meeting.

    SUMMARY:

    Notice is hereby given, pursuant to the provisions of the rules and regulations of the U.S. Commission on Civil Rights (Commission) and the Federal Advisory Committee Act (FACA) that a meeting of the Alaska Advisory Committee (Committee) to the Commission will be held at 1:00 p.m. (Alaska Time) Tuesday, June 19, 2018. The purpose of the meeting is for the Committee to receive testimony from a mail-in voting expert to supplement their report on Alaska Native Voting Rights.

    DATES:

    The meeting will be held on Tuesday, June 19, 2018, at 1:00 p.m. AKT.

    Public Call Information:

    Dial: 877-856-1955,

    Conference ID: 8098730.

    Web Access Information: (visual only) The online portion of the meeting may be accessed through the following link: https://cc.readytalk.com/r/iohnfma2757d&eom.

    FOR FURTHER INFORMATION CONTACT:

    Ana Victoria Fortes (DFO) at [email protected] or (213) 894-3437

    SUPPLEMENTARY INFORMATION:

    This meeting is available to the public through the following toll-free call-in number: 877-856-1955, conference ID number: 8098730. Any interested member of the public may call this number and listen to the meeting. Callers can expect to incur charges for calls they initiate over wireless lines, and the Commission will not refund any incurred charges. Callers will incur no charge for calls they initiate over land-line connections to the toll-free telephone number. Persons with hearing impairments may also follow the proceedings by first calling the Federal Relay Service at 1-800-877-8339 and providing the Service with the conference call number and conference ID number.

    Members of the public are entitled to make comments during the open period at the end of the meeting. Members of the public may also submit written comments; the comments must be received in the Regional Programs Unit within 30 days following the meeting. Written comments may be mailed to the Western Regional Office, U.S. Commission on Civil Rights, 300 North Los Angeles Street, Suite 2010, Los Angeles, CA 90012. They may be faxed to the Commission at (213) 894-0508, or emailed Ana Victoria Fortes at [email protected] Persons who desire additional information may contact the Regional Programs Unit at (213) 894-3437.

    Records and documents discussed during the meeting will be available for public viewing prior to and after the meeting at https://facadatabase.gov/committee/meetings.aspx?cid=234. Please click on the “Meeting Details” and “Documents” links. Records generated from this meeting may also be inspected and reproduced at the Regional Programs Unit, as they become available, both before and after the meeting. Persons interested in the work of this Committee are directed to the Commission's website, https://www.usccr.gov, or may contact the Regional Programs Unit at the above email or street address.

    Agenda I. Welcome II. Approve Minutes from May 10, 2018 Meeting III. Presentation by Dr. Joseph Dietrich, Claremont Graduate University IV. Public Comment V. Next Steps VI. Adjournment Dated: May 30, 2018. David Mussatt, Supervisory Chief, Regional Programs Unit.
    [FR Doc. 2018-11974 Filed 6-4-18; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE Submission for OMB Review; Comment Request: Request for the Appointment of a Technical Advisory Committee

    The Department of Commerce will submit to the Office of Management and Budget (OMB) for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act (44 U.S.C. Chapter 35).

    Agency: Bureau of Industry and Security.

    Title: Request for the Appointment of a Technical Advisory Committee.

    Form Number(s): N/A.

    OMB Control Number: 0694-0100.

    Type of Review: Regular submission.

    Estimated Total Annual Burden Hours: 5.

    Estimated Number of Respondents: 1.

    Estimated Time per Response: 5 hours.

    Needs and Uses: This collection of information is required by the Export Administration Regulations and the Federal Advisory Committee Act. The Technical Advisory Committees (TACs) were established to advise and assist the U.S. Government on export control matters such as proposed revisions to export control lists, licensing procedures, assessments of the foreign availability of controlled products, and export control regulations. Under this collection, interested parties may submit a request to BIS to establish a new TAC. The Bureau of Industry and Security provides administrative support for these Committees.

    Affected Public: Business or other for-profit organizations.

    Frequency: On Occasion.

    Respondent's Obligation: Voluntary.

    This information collection request may be viewed at reginfo.gov, http://www.reginfo.gov/public/. Follow the instructions to view Department of Commerce collections currently under review by OMB.

    Written comments and recommendations for the proposed information collection should be sent within 30 days of publication of this notice to [email protected].

    Sheleen Dumas, Departmental Lead PRA Officer, Office of the Chief Information Officer.
    [FR Doc. 2018-12056 Filed 6-4-18; 8:45 am] BILLING CODE 3510-33-P
    DEPARTMENT OF COMMERCE Bureau of Industry and Security Proposed Information Collection; Comment Request; Licensing Responsibilities and Enforcement AGENCY:

    Bureau of Industry and Security, Department of Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    Written comments must be submitted on or before August 6, 2018.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 1401 Constitution Avenue NW, Washington, DC 20230 (or via the internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to Mark Crace, BIS ICB Liaison, (202) 482-8093, [email protected].

    SUPPLEMENTARY INFORMATION: I. Abstract

    This information collection supports the various collections, notifications, reports, and information exchanges that are needed by the Office of Export Enforcement and Customs to enforce the Export Administration Regulations and maintain the national security of the United States.

    II. Method of Collection

    Submitted electronically or on paper.

    III. Data

    OMB Control Number: 0694-0122.

    Form Number(s): N/A.

    Type of Review: Regular submission.

    Affected Public: Business or other for-profit organizations.

    Estimated Number of Respondents: 1,821,891.

    Estimated Time per Response: 5 seconds to 2 hours per response.

    Estimated Total Annual Burden Hours: 78,576 hours.

    Estimated Total Annual Cost to Public: $0.

    Respondent's Obligation: Voluntary.

    Legal Authority: Section 758 of the Export Administration Regulations.

    IV. Request for Comments

    Comments are invited on: (a) Whether the proposed collection of information is necessary for the proper performance of the functions of the agency, including whether the information shall have practical utility; (b) the accuracy of the agency's estimate of the burden (including hours and cost) of the proposed collection of information; (c) ways to enhance the quality, utility, and clarity of the information to be collected; and (d) ways to minimize the burden of the collection of information on respondents, including through the use of automated collection techniques or other forms of information technology.

    Comments submitted in response to this notice will be summarized and/or included in the request for OMB approval of this information collection; they also will become a matter of public record.

    Sheleen Dumas, Departmental Lead PRA Officer, Office of the Chief Information Officer.
    [FR Doc. 2018-12057 Filed 6-4-18; 8:45 am] BILLING CODE 3510-07-P
    DEPARTMENT OF COMMERCE International Trade Administration U.S. Department of Commerce Trade Finance Advisory Council AGENCY:

    International Trade Administration, U.S. Department of Commerce.

    ACTION:

    Notice of an open meeting.

    SUMMARY:

    The U.S. Department of Commerce Trade Finance Advisory Council (TFAC or Council) will hold a meeting on Thursday, June 21, 2018, at the U.S. Department of Commerce, in Washington, DC. The meeting is open to the public with registration instructions provided below.

    DATES:

    Thursday, June 21, 2018, from approximately 1:30 p.m. to 3:30 p.m. Eastern Standard Time (EST). The deadline for members of the public to register, including requests to make comments during the meeting and for auxiliary aids, or to submit written comments for dissemination prior to the meeting, is 5:00 p.m. EST on June 14, 2018. Members of the public are encouraged to submit registration requests and written comments via email to ensure timely receipt.

    ADDRESSES:

    U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.

    FOR FURTHER INFORMATION CONTACT:

    Ericka Ukrow, Designated Federal Officer, Office of Finance and Insurance Industries (OFII), International Trade Administration, U.S. Department of Commerce at (202) 482-0405; email: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    On July 25, 2016, the Secretary of Commerce established the TFAC pursuant to discretionary authority and in accordance with the Federal Advisory Committee Act, as amended, 5 U.S.C. App. The TFAC advises the Secretary of Commerce in identifying effective ways to expand access to finance for U.S. exporters, especially small- and medium-sized enterprises (SMEs) and their foreign buyers. The TFAC also provides a forum to facilitate the discussion between a diverse group of stakeholders such as banks, non-bank financial institutions, other trade finance related organizations, and exporters, to gain a better understanding regarding current challenges facing U.S. exporters in accessing finance.

    On June 21, 2018, the TFAC will hold the fifth and last meeting of its current charter term. During this meeting, members are expected to discuss possible recommendations on policies and programs that can increase awareness of, and expand access to, private export financing resources for U.S. exporters. They will also hear from officials from the Department of Commerce and other agencies on issues impacting the scope of their work and mission.

    Public Participation

    The meeting will be open to the public and will be accessible to people with disabilities.

    All guests are required to register in advance by the deadline identified under the DATE caption. Requests to register (including to speak or for auxiliary aids) and any written comments should be submitted by either of the following methods: (a) Electronic Submission: Submit statements electronically to Ericka Ukrow, U.S. Department of Commerce Trade Finance Advisory Council Designated Federal Officer, via email to [email protected]; or (b) Paper Submissions: Send paper statements to Ericka Ukrow, U.S. Department of Commerce Trade Finance Advisory Council Designated Federal Officer, Room 18002, 1401 Constitution Avenue NW, Washington, DC 20230. Last minute requests will be accepted, but may be impossible to fill.

    There will be fifteen (15) minutes allotted for oral comments from members of the public joining the meeting. To accommodate as many speakers as possible, the time for public comments may be limited to three (3) minutes per person. Individuals wishing to reserve speaking time during the meeting must submit a request at the time of registration, as well as the name and address of the proposed speaker. If the number of registrants requesting to make statements is greater than can be reasonably accommodated during the meeting, the International Trade Administration may conduct a lottery to determine the speakers.

    Speakers are requested to submit a written copy of their prepared remarks by 5:00 p.m. EDT on June 14, 2018, for inclusion in the meeting records and for circulation to the members of the Council. In addition, any member of the public may submit pertinent written comments concerning matters relevant to the TFAC's responsibilities at any time before or after the meeting. Comments may be submitted to Ericka Ukrow, at the contact information indicated above. To be considered during the meeting, comments must be received no later than 5 p.m. EDT on June 14, 2018, to ensure transmission to the Council members prior to the meeting. Comments received after that date and time will be distributed to the members but may not be considered during the meeting. Comments and statements will be posted on the U.S. Department of Commerce Trade Finance Advisory Council website (http://trade.gov/TFAC) without change, including any business or personal information provided such as names, addresses, email addresses, or telephone numbers.

    All comments and statements received, including attachments and other supporting materials, are part of the public record and subject to public disclosure. You should submit only information that you are prepared to have made publicly available.

    II. Meeting Minutes

    Copies of TFAC meeting minutes will be available within 90 days of the meeting.

    Dated: May 30, 2018. Michael Fuchs, Trade and Project Finance Team Lead, Office of Finance and Insurance Industries.
    [FR Doc. 2018-12062 Filed 6-4-18; 8:45 am] BILLING CODE P
    DEPARTMENT OF COMMERCE International Trade Administration [A-549-833] Citric Acid and Certain Citrate Salts From Thailand: Affirmative Final Determination of Sales at Less Than Fair Value and Final Affirmative Determination of Critical Circumstances in Part AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) determines that citric acid and certain citrate salts (citric acid) from Thailand are being, or are likely to be, sold in the United States at less than fair value (LTFV) during the period of investigation (POI) April 1, 2016, through March 31, 2017. In addition, we determine that critical circumstances exist with respect to certain imports of the subject merchandise.

    DATES:

    Applicable June 5, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Joy Zhang (COFCO), George McMahon (Niran), or Cindy Robinson (Sunshine), AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-1168, (202) 482-1167, or (202) 482-3797, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    Commerce published the Preliminary Determination of sales at LTFV of citric acid from Thailand on January 8, 2018, in which we also postponed the final determination until May 26, 2018.1 We invited interested parties to comment on the Preliminary Determination. Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018. The revised deadline for the final determination of this investigation is now May 29, 2018.2

    1See Citric Acid and Certain Citrate Salts from Thailand: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Preliminary Affirmative Critical Circumstances Determination, in Part, and Postponement of Final Determination and Extension of Provisional Measures, 83 FR 784 (January 8, 2018) (Preliminary Determination), and accompanying Preliminary Decision Memorandum.

    2See Memorandum for The Record from Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance, “Deadlines Affected by the Shutdown of the Federal Government” (Tolling Memorandum), dated January 23, 2018. All deadlines in this segment of the proceeding have been extended by 3 days.

    A summary of the events that occurred since Commerce published the Preliminary Determination, as well as a full discussion of the issues raised by parties for this final determination, may be found in the Issues and Decision Memorandum, which is adopted by this notice.3

    3See Memorandum, “Issues and Decision Memorandum for the Final Affirmative Determination in the Less-Than- Fair-Value Investigation of Citric Acid and Certain Citrate Salts from Thailand,” dated concurrently with, and hereby adopted by, this notice (Issues and Decision Memorandum).

    Scope of the Investigation

    The product covered by this investigation is citric acid from Thailand. For a full description of the scope of this investigation, see the “Scope of the Investigation” in Appendix I of this notice.

    Scope Comments

    Prior to the Preliminary Determination, we issued a Preliminary Scope Decision Memorandum.4 We subsequently invited parties to submit additional scope comments in their case briefs, but received none. Therefore, for the final determination, we continue to find that the scope of the investigation as defined in the Initiation Notice  5 and the Preliminary Determination  6 remains applicable. See Appendix I.

    4See Memorandum “Scope Comments Decision Memorandum for the Preliminary Determinations,” dated December 1, 2017 (Preliminary Scope Decision Memorandum).

    5See Citric Acid and Certain Citrate Salts from Belgium, Colombia, and Thailand: Initiation of Less-Than-Fair-Value Investigations, 82 FR 29828 (June 30, 2017) (Initiation Notice) and accompanying Initiation Checklist.

    6See Preliminary Determination, 83 FR at 786.

    Verification

    As provided in section 782(i) of the Tariff Act of 1930, as amended (the Act), from January through March 2018, we conducted verification of the sales and cost information submitted by respondents, COFCO Biochemical (Thailand) Co., Ltd. (COFCO), Niran (Thailand) Co., Ltd. (Niran), and Sunshine Biotech International Co., Ltd. (Sunshine) for use in our final determination. We used standard verification procedures, including an examination of relevant accounting and production records, and original source documents provided by COFCO, Niran, and Sunshine.

    Analysis of Comments Received

    All issues raised in the case and rebuttal briefs submitted by the interested parties are addressed in the Issues and Decision Memorandum accompanying this notice, which is hereby adopted by this notice. A list of the issues addressed in the Issues and Decision Memorandum is attached to this notice at Appendix II. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov, and it is available to all parties in the Central Records Unit, Room B-8024 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/index.html. The signed and electronic versions of the Issues and Decision Memorandum are identical in content.

    Changes Since the Preliminary Determination

    In accordance with sections 776(a)(1) and 776(a)(2)(A)-(D) of the Act, we have applied partial adverse facts available (AFA) to Sunshine with respect to the cost of a product which Sunshine sold during the POI but did not produce during the POI because Sunshine failed, prior to the cost verification, to fully disclose the fact that additional materials and equipment were necessary to produce this product compared to other products that were produced and sold during the POI. In addition, we made certain changes to the margin calculations for COFCO, Niran, and Sunshine. These changes are discussed in the “Changes Since the Preliminary Determination” section of the Issues and Decision Memorandum.

    Final Affirmative Determination of Critical Circumstances, in Part

    In accordance with section 733(e)(1) of the Act and 19 CFR 351.206, we preliminarily found that critical circumstances exist with respect to imports of citric acid from one of the mandatory respondents, Niran, and do not exist with respect to COFCO, Sunshine and the companies covered by the “all others” rate.7 Commerce received no comments regarding this issue after the Preliminary Determination. Therefore, based on our analysis, for the final determination we continue to find that, in accordance with section 735(a)(3) of the Act, and 19 CFR 351.206, critical circumstances exist with respect to subject merchandise produced or exported by Niran, but do not exist with respect to COFCO, Sunshine and the companies covered by the “all others” rate.

    7See Preliminary Decision Memorandum, at 8-13.

    All-Others Rate

    Section 735(c)(5)(A) of the Act provides that, in the final determination, Commerce shall determine an estimated weighted-average dumping margin for all-other exporters and producers not individually examined. This rate shall be an amount equal to the weighted-average of the estimated weighted-average dumping margins established for exporters or producers individually examined, excluding rates that are zero, de minimis or determined entirely under section 776 of the Act.

    Commerce calculated the all-others rate based on a weighted average of the estimated weighted-average dumping margins calculated for the three mandatory respondents: COFCO, Niran, and Sunshine, none of which are zero, de minimis, or based entirely on facts otherwise available. Commerce calculated the all-others' rate using a weighted-average of the estimated weighted-average dumping margins calculated for the examined respondents using each company's business proprietary data for the merchandise under consideration.8

    8 For a complete analysis of the data, please see the All-Others Rate Calculation Memorandum dated concurrently with this notice.

    Final Determination

    The final estimated weighted-average dumping margins are as follows:

    Exporter/Producer Estimated
  • weighted-
  • average
  • dumping
  • margin
  • (percent)
  • COFCO Biochemical (Thailand) Co., Ltd. (COFCO) 15.71 Niran (Thailand) Co., Ltd. (Niran) 13.00 Sunshine Biotech International Co., Ltd. (Sunshine) 6.47 All-Others 11.25
    Disclosure

    We will disclose to interested parties the calculations performed in this final determination within five days of any public announcement in accordance with 19 CFR 351.224(b).

    Continuation of Suspension of Liquidation

    In accordance with section 735(c)(1)(B) of the Act, for this final determination, we will direct U.S. Customs and Border Protection (CBP) to continue to suspend liquidation of all entries of citric acid from Thailand, as described in Appendix I of this notice, which are entered, or withdrawn from warehouse, for consumption on or after January 8, 2018, the date of publication in the Federal Register of the affirmative Preliminary Determination.

    For entries made by Niran, in accordance with section 735(c)(4)(A) of the Act, because we continue to find that critical circumstances exist, we will instruct CBP to continue to suspend liquidation of all appropriate entries of citric acid from Thailand which were entered, or withdrawn from warehouse, for consumption on or after October 10, 2017, which is 90 days prior to the date of publication of the Preliminary Determination. Additionally, for entries made by companies covered by the “all others” rate, in accordance with section 735(c)(4)(B) of the Act, because we continue to find that critical circumstances do not exist with regard to imports from all other producers and exporters of citric acid from Thailand, we will instruct CBP to continue to suspend liquidation of all appropriate entries of citric acid from Thailand which were entered, or withdrawn from warehouse, for consumption on or after January 8, 2018, which is the date of publication of the Preliminary Determination.

    Pursuant to section 735(c)(1)(B)(ii) of the Act and 19 CFR 351.10(d), Commerce will instruct CBP to require a cash deposit for such entries of merchandise equal to the estimated weighted-average dumping margins or the estimate all-others rate, as follows: (1) The cash deposit rate for the respondents listed above will be equal to the respondent-specific estimated weighted-average dumping margin determined in this final determination; (2) if the exporter is not a respondent identified above but the producer is, then the cash deposit rate will be equal to the respondent-specific estimated weighted average dumping margin established for the producer of the subject merchandise; and (3) the cash deposit rate for all other producers and exporters will equal to the all-others estimated weighted-average dumping margin. These suspension of liquidation instructions will remain in effect until further notice.

    Commerce normally adjusts cash deposits for estimated antidumping duties by the amount of export subsidies countervailed in a companion countervailing duty (CVD) proceeding, when CVD provisional measures are in effect. Accordingly, where Commerce makes an affirmative determination for countervailable export subsidies, Commerce offsets the estimated weighted-average dumping margin by the appropriate CVD rate. However, in the companion CVD final determination, Commerce has determined that no countervailable export subsidies are being provided to the production or exportation of subject merchandise. Accordingly, we made no adjustment for the export subsidy offset to the estimated weighted-average dumping margin. These suspension of liquidation instructions will remain in effect until further notice.

    International Trade Commission Notification

    In accordance with section 735(d) of the Act, we will notify the International Trade Commission (ITC) of the final affirmative determination of sales at LTFV. Because Commerce's final determination is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports, or sales (or the likelihood of sales) for importation of citric acid from Thailand no later than 45 days after this final determination. If the ITC determines that such injury does not exist, this proceeding will be terminated and all cash deposits posted will be refunded or canceled. If the ITC determines that such injury does exist, Commerce will issue an antidumping duty order directing CBP to assess, upon further instruction by Commerce, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation, as discussed above in the “Continuation of Suspension of Liquidation” section.

    Notification Regarding Administrative Protective Orders

    This notice serves as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the disposition of propriety information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.

    Notification to Interested Parties

    This determination is issued and published in accordance with sections 735(d) and 777(i)(1) of the Act and 19 CFR 351.210(c).

    Dated: May 29, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix I Scope of the Investigation

    The merchandise covered by this investigation includes all grades and granulation sizes of citric acid, sodium citrate, and potassium citrate in their unblended forms, whether dry or in solution, and regardless of packaging type. The scope also includes blends of citric acid, sodium citrate, and potassium citrate; as well as blends with other ingredients, such as sugar, where the unblended form(s) of citric acid, sodium citrate, and potassium citrate constitute 40 percent or more, by weight, of the blend.

    The scope also includes all forms of crude calcium citrate, including dicalcium citrate monohydrate, and tricalcium citrate tetrahydrate, which are intermediate products in the production of citric acid, sodium citrate, and potassium citrate.

    The scope includes the hydrous and anhydrous forms of citric acid, the dihydrate and anhydrous forms of sodium citrate, otherwise known as citric acid sodium salt, and the monohydrate and monopotassium forms of potassium citrate. Sodium citrate also includes both trisodium citrate and monosodium citrate which are also known as citric acid trisodium salt and citric acid monosodium salt, respectively.

    The scope does not include calcium citrate that satisfies the standards set forth in the United States Pharmacopeia and has been mixed with a functional excipient, such as dextrose or starch, where the excipient constitutes at least 2 percent, by weight, of the product.

    Citric acid and sodium citrate are classifiable under 2918.14.0000 and 2918.15.1000 of the Harmonized Tariff Schedule of the United States (HTSUS), respectively. Potassium citrate and crude calcium citrate are classifiable under 2918.15.5000 and, if included in a mixture or blend, 3824.99.9295 of the HTSUS. Blends that include citric acid, sodium citrate, and potassium citrate are classifiable under 3824.99.9295 of the HTSUS. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.

    Appendix II List of Topics Discussed in the Issues and Decision Memorandum I. Summary II. Background III. Scope of the Investigation IV. Changes Since the Preliminary Determination V. Use of Partial Facts Available VI. Final Affirmative Determination of Critical Circumstances, in Part VII. Discussion of the Issues

    COFCO

    Comment 1: The Levels of Trade that Exist in the U.S. and Home Market (HM) Comment 2: Whether to Modify COFCO's General and Administrative (G&A) Expense Rate for Certain Offsetting Income Comment 3: Whether to Modify COFCO's G&A Expense Rate for Allowance for Doubtful Accounts Comment 4: Imputed Interest Expense from Affiliated Party Loans Niran Comment 5: Whether to Include Minor Corrections from the Sales and Cost Verifications Sunshine Comment 6: Whether to Base Sunshine's Cost of Production for Trisodium Citrate (TSC) on Partial Adverse Facts Available Comment 7: Whether to Increase Sunshine's Raw Material Costs to Account for Excluded Cassava Costs Comment 8: Whether to Exclude Sunshine's Waived Interest Expenses VIII. Recommendation
    [FR Doc. 2018-12009 Filed 6-4-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-423-813] Citric Acid and Certain Citrate Salts From Belgium: Affirmative Final Determination of Sales at Less Than Fair Value AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) determines that citric acid and certain citrate salts (citric acid) from Belgium are being, or are likely to be, sold in the United States at less than fair value (LTFV) during the period of investigation (POI) April 1, 2016, through March 31, 2017.

    DATES:

    Applicable June 5, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Paul Stolz, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4474.

    SUPPLEMENTARY INFORMATION:

    Background

    Commerce published the Preliminary Determination of sales at LTFV of citric acid from Belgium on January 8, 2018, in which we also postponed the final determination until May 26, 2018.1 We invited interested parties to comment on the Preliminary Determination. Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018. If the new deadline falls on a non-business day, in accordance with Commerce's practice, the deadline will become the next business day. The revised deadline for the final determination of this investigation is now May 29, 2018.2

    1See Citric Acid and Certain Citrate Salts from Belgium: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Extension of Provisional Measures, 83 FR 787 (January 8, 2018) (Preliminary Determination), and accompanying memorandum, “Decision Memorandum for the Preliminary Determination in the Less-Than-Fair-Value Investigation of Citric Acid and Certain Citrate Salts from Belgium” (Preliminary Decision Memorandum).

    2See Memorandum, “Deadlines Affected by the Shutdown of the Federal Government” (Tolling Memorandum), dated January 23, 2018. All deadlines in this segment of the proceeding have been extended by 3 days. If the new deadline falls on a non-business day, in accordance with Commerce's practice, the deadline will become the next business day. See Notice of Clarification: Application of “Next Business Day” Rule for Administrative Determination Deadlines Pursuant to the Tariff Act of 1930, as Amended, 70 FR 24533 (May 10, 2005).

    A summary of the events that occurred since Commerce published the Preliminary Determination, as well as a full discussion of the issues raised by parties for this final determination, may be found in the Issues and Decision Memorandum,3 which is adopted by this notice.

    3See Memorandum, “Issues and Decision Memorandum for Final Affirmative Antidumping Determination in the Less-Than- Fair-Value Investigation of Citric Acid and Certain Citrate Salts from Belgium,” dated concurrently with this determination, and hereby adopted by this notice (Issues and Decision Memorandum).

    Scope of the Investigation

    The product covered by this investigation is citric acid from Belgium. For a full description of the scope of this investigation, see the “Scope of the Investigation” in Appendix I of this notice.

    Scope Comments

    Prior to the Preliminary Determination, we issued a Preliminary Scope Decision Memorandum.4 We subsequently invited parties to submit additional scope comment in their case briefs, but received none. Therefore, for the final determination, we continue to find that the scope of the investigation as defined in the Initiation Notice  5 and the Preliminary Determination  6 remains applicable. See Appendix I.

    4See Memorandum, “Scope Comments Decision Memorandum for the Preliminary Determinations,” dated December 1, 2017 (Preliminary Scope Decision Memorandum).

    5See Citric Acid and Certain Citrate Salts from Belgium, Colombia, and Thailand: Initiation of Less-Than-Fair-Value Investigations, 82 FR 29828 (June 30, 2017) (Initiation Notice) and accompanying Initiation Checklist.

    6See Preliminary Determination, 83 FR at 789.

    Verification

    As provided in section 782(i) of the Tariff Act of 1930, as amended (the Act), Commerce verified the sales and cost data reported by S.A, Citrique Belge N.V. (Citrique Belge), for use in our final determination. We used standard verification procedures, including an examination of relevant accounting and production records, and original source documents provided by Citrique Belge.

    Analysis of Comments Received

    All issues raised in the case and rebuttal briefs submitted by interested parties in this proceeding are discussed in the Issues and Decision Memorandum. A list of the issues raised by parties and responded to by Commerce in the Issues and Decision Memorandum is attached to this notice at Appendix II.

    The Issues and Decision Memorandum is a public document and is available electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). Access is available to registered users at https://access.trade.gov and to all parties in the Central Records Unit, Room B-8024 of Commerce's main building. In addition, a complete version of the Issues and Decision Memorandum can be accessed at http://enforcement.trade.gov/frn/. The signed Issues and Decision Memorandum and electronic version are identical in content.

    Changes Since the Preliminary Determination

    Based on our analysis of the comments received and our findings at verification, we made certain changes to the margin calculations for Citrique Belge. These changes are discussed in the “Changes Since the Preliminary Determination” section of the Issues and Decision Memorandum.

    All-Others Rate

    Section 735(c)(5)(A) of the Act provides that, in the final determination, Commerce shall determine an estimated weighted-average dumping margin for all-other exporters and producers not individually examined. This rate shall be an amount equal to the weighted-average of the estimated weighted-average dumping margins established for exporters or producers individually examined, excluding rates that are zero, de minimis or determined entirely under section 776 of the Act.

    Commerce calculated an individual estimate weighted-average dumping margin for Citrique Belge, the only individually examined exporter/producer in this investigation. Because the only individually calculated dumping margin is not zero, de minimis, or based entirely under section 776 of the Act, the estimated weighted-average dumping margin calculated for Citrique Belge is the margin assigned to all-other producers and exporters, pursuant to 735(c)(5)(A) of the Act.

    Final Determination

    The final estimated weighted-average dumping margins are as follows:

    Exporter/producer Estimated weighted-
  • averages
  • dumping
  • margins
  • (percent)
  • S.A. Citrique Belge N.V 19.30 All-Others 19.30
    Disclosure

    Commerce intends to disclose to interested parties the calculations performed in this final determination within five days of any public announcement in accordance with 19 CFR 351.224(b).

    Continuation of Suspension of Liquidation

    In accordance with section 735(c)(1)(B) of the Act, for this final determination, we will instruct U.S. Customs and Border Protection (CBP) to continue the suspension of liquidation of all appropriate entries of citric acid from Belgium, as described in Appendix I of this notice, which were entered, or withdrawn from warehouse, for consumption on or after January 8, 2018, the date of publication in the Federal Register of the affirmative Preliminary Determination.

    Pursuant to section 735(c)(1)(B)(ii) of the Act and 19 CFR 351.10(d), Commerce will instruct CBP to require a cash deposit for such entries of merchandise equal to the estimated weighted-average dumping margin or the estimate all-others rate, as follows: (1) The cash deposit rate for the respondents listed above will be equal to the respondent-specific estimated weighted-average dumping margin determined in this final determination; (2) if the exporter is not a respondent identified above but the producer is, then the cash deposit rate will be equal to the respondent-specific estimated weighted average dumping margin established for the producer of the subject merchandise; and (3) the cash deposit rate for all other producers and exporters will equal to the all-others estimated weighted-average dumping margin. These suspension of liquidation instructions will remain in effect until further notice.

    International Trade Commission Notification

    In accordance with section 735(d) of the Act, we will notify the International Trade Commission (ITC) of the final affirmative determination of sales at LTFV. Because Commerce's final determination in this proceeding is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports, or sales (or the likelihood of sales) for importation of citric acid from Belgium no later than 45 days after this final determination. If the ITC determines that such injury does not exist, this proceeding will be terminated and all cash deposits posted will be refunded or canceled. If the ITC determines that such injury does exist, Commerce will issue an antidumping duty order directing CBP to assess, upon further instruction by Commerce, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation, as discussed above in the “Continuation of Suspension of Liquidation” section.

    Notification Regarding Administrative Protective Orders

    This notice serves as the only reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the disposition of propriety information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.

    Notification to Interested Parties

    This determination is issued and published in accordance with sections 735(d) and 777(i)(1) of the Act and 19 CFR 351.210(c).

    Dated: May 29, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix I Scope of the Investigation

    The merchandise covered by this investigation includes all grades and granulation sizes of citric acid, sodium citrate, and potassium citrate in their unblended forms, whether dry or in solution, and regardless of packaging type. The scope also includes blends of citric acid, sodium citrate, and potassium citrate; as well as blends with other ingredients, such as sugar, where the unblended form(s) of citric acid, sodium citrate, and potassium citrate constitute 40 percent or more, by weight, of the blend.

    The scope also includes all forms of crude calcium citrate, including dicalcium citrate monohydrate, and tricalcium citrate tetrahydrate, which are intermediate products in the production of citric acid, sodium citrate, and potassium citrate.

    The scope includes the hydrous and anhydrous forms of citric acid, the dihydrate and anhydrous forms of sodium citrate, otherwise known as citric acid sodium salt, and the monohydrate and monopotassium forms of potassium citrate. Sodium citrate also includes both trisodium citrate and monosodium citrate which are also known as citric acid trisodium salt and citric acid monosodium salt, respectively.

    The scope does not include calcium citrate that satisfies the standards set forth in the United States Pharmacopeia and has been mixed with a functional excipient, such as dextrose or starch, where the excipient constitutes at least 2 percent, by weight, of the product.

    Citric acid and sodium citrate are classifiable under 2918.14.0000 and 2918.15.1000 of the Harmonized Tariff Schedule of the United States (HTSUS), respectively. Potassium citrate and crude calcium citrate are classifiable under 2918.15.5000 and, if included in a mixture or blend, 3824.99.9295 of the HTSUS. Blends that include citric acid, sodium citrate, and potassium citrate are classifiable under 3824.99.9295 of the HTSUS. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.

    Appendix II List of Topics Discussed in the Issues and Decision Memorandum I. Summary II. Background III. Scope of the Investigation IV. Changes Since the Preliminary Determination V. Discussion of Issues Comment 1: Whether a Certain Home Market Sale Should Be Considered Outside the Normal Course of Trade Comment 2: Correction of Misclassification of Indirect Selling and Inventory Carrying Expense as Movement Expenses Comment 3: Short Term Interest Income Offset to Interest Expenses Comment 4: Minor Correction Revising Indirect Selling Expense, General and Administrative, and Financial Expense Ratios VI. Recommendation
    [FR Doc. 2018-12012 Filed 6-4-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-301-803] Citric Acid and Certain Citrate Salts From Colombia: Affirmative Final Determination of Sales at Less Than Fair Value and Final Negative Determination of Critical Circumstances AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) determines that citric acid and certain citrate salts (citric acid) from Colombia are being, or are likely to be, sold in the United States at less than fair value (LTFV) during the period of investigation (POI) April 1, 2016, through March 31, 2017. In addition, we determine that critical circumstances do not exist with respect to imports of the subject merchandise.

    DATES:

    Applicable June 5, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Stephanie Moore, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-3692.

    SUPPLEMENTARY INFORMATION:

    Background

    Commerce published the Preliminary Determination of sales at LTFV of citric acid from Colombia on January 8, 2018, in which we also postponed the final determination until May 26, 2018.1 We invited interested parties to comment on the Preliminary Determination. Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018. The revised deadline for the final determination of this investigation is now May 29, 2018.2

    1See Citric Acid and Certain Citrate Salts from Colombia: Preliminary Affirmative Determination of Sales at Less Than Fair Value, Preliminary Negative Critical Circumstances Determination, and Postponement of Final Determination and Extension of Provisional Measures, 83 FR 791 (January 8, 2018) (Preliminary Determination), and accompanying Preliminary Decision Memorandum.

    2See Memorandum for The Record from Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance, “Deadlines Affected by the Shutdown of the Federal Government” (Tolling Memorandum), dated January 23, 2018. All deadlines in this segment of the proceeding have been extended by 3 days.

    A summary of the events that occurred since Commerce published the Preliminary Determination, as well as a full discussion of the issues raised by parties for this final determination, may be found in the Issues and Decision Memorandum, which is adopted by this notice.3

    3See Memorandum, “Issues and Decision Memorandum for the Final Affirmative Determination in the Less-Than- Fair-Value Investigation of Citric Acid and Certain Citrate Salts from Colombia,” dated concurrently with, and hereby adopted by, this notice (Issues and Decision Memorandum).

    Scope of the Investigation

    The product covered by this investigation is citric acid from Colombia. For a full description of the scope of this investigation, see the “Scope of the Investigation” in Appendix I of this notice.

    Scope Comments

    Prior to the Preliminary Determination, we issued a Preliminary Scope Decision Memorandum.4 We subsequently invited parties to submit additional scope comments in their case briefs, but received none. Therefore, for the final determination, we continue to find that the scope of the investigation as defined in the Initiation Notice5 and the Preliminary Determination6 remains applicable. See Appendix I.

    4See Memorandum “Scope Comments Decision Memorandum for the Preliminary Determinations,” dated December 1, 2017 (Preliminary Scope Decision Memorandum).

    5See Citric Acid and Certain Citrate Salts from Belgium, Colombia, and Thailand: Initiation of Less-Than-Fair-Value Investigations, 82 FR 29828 (June 30, 2017) (Initiation Notice) and accompanying Initiation Checklist.

    6See Preliminary Determination, 83 FR at 793.

    Verification

    As provided in section 782(i) of the Tariff Act of 1930, as amended (the Act), in January and February 2018, we conducted verification of the sales and cost information submitted by Sucroal S.A. (Sucroal) for use in our final determination. We used standard verification procedures, including an examination of relevant accounting and production records, and original source documents provided by Sucroal.

    Analysis of Comments Received

    All issues raised in the case and rebuttal briefs submitted by the interested parties are addressed in the Issues and Decision Memorandum. A list of the issues addressed in the Issues and Decision Memorandum is attached to this notice at Appendix II. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov, and it is available to all parties in the Central Records Unit, Room B-8024 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/index.html. The signed and electronic versions of the Issues and Decision Memorandum are identical in content.

    Changes Since the Preliminary Determination

    Based on our analysis of the comments received and our findings at verification, we made certain changes to the margin calculations for Sucroal. These changes are discussed in the “Changes Since the Preliminary Determination” section of the Issues and Decision Memorandum.

    Final Negative Determination of Critical Circumstances

    In accordance with section 733(e)(1) of the Act and 19 CFR 351.206, we preliminarily found that critical circumstances do not exist for the mandatory respondent, Sucroal or for exporters and producers not individually examined (i.e., “all-others”).7 Commerce received no comments regarding this issue after the Preliminary Determination. Therefore, for the final determination, our determination remains unchanged and we continue to find, in accordance with section 735(a)(3) of the Act and 19 CFR 351.206(e), that critical circumstances do not exist for Sucroal or the companies covered by the “all others” rate.

    7See Preliminary Determination, 83 FR at 791; Preliminary Decision Memorandum, at 6-10.

    All-Others Rate

    Section 735(c)(5)(A) of the Act provides that, in the final determination, Commerce shall determine an estimated weighted-average dumping margin for all-other exporters and producers not individually examined. This rate shall be an amount equal to the weighted-average of the estimated weighted-average dumping margins established for exporters or producers individually examined, excluding rates that are zero, de minimis or determined entirely under section 776 of the Act.

    Commerce calculated an individual estimated weighted-average dumping margin for Sucroal, the only individually examined exporter/producer in this investigation. Because the only individually calculated dumping margin is not zero, de minimis, or based entirely under section 776 of the Act, the estimated weighted-average dumping margin calculated for Sucroal is the margin assigned to all-other producers and exporters, pursuant to section 735(c)(5)(A) of the Act.

    Final Determination

    The final estimated weighted-average dumping margins are as follows:

    Exporter/Producer Estimated
  • weighted-
  • average
  • dumping
  • margin
  • (percent)
  • Sucroal S.A 28.48 All-Others 28.48
    Disclosure

    Commerce intends to disclose to interested parties its calculations and analysis performed in this final determination within five days of any public announcement in accordance with 19 CFR 351.224(b).

    Continuation of Suspension of Liquidation

    In accordance with section 735(c)(1)(B) of the Act, for this final determination, we will direct U.S. Customs and Border Protection (CBP) to continue to suspend liquidation of all entries of citric acid from Colombia, as described in Appendix I of this notice, which are entered, or withdrawn from warehouse, for consumption on or after January 8, 2018, the date of publication in the Federal Register of the affirmative Preliminary Determination.

    Pursuant to section 735(c)(1)(B)(ii) of the Act and 19 CFR 351.10(d), Commerce will instruct CBP to require a cash deposit for such entries of merchandise equal to the estimated weighted-average dumping margin or the estimate all-others rate, as follows: (1) The cash deposit rate for the respondents listed above will be equal to the respondent-specific estimated weighted-average dumping margin determined in this final determination; (2) if the exporter is not a respondent identified above but the producer is, then the cash deposit rate will be equal to the respondent-specific estimated weighted average dumping margin established for the producer of the subject merchandise; and (3) the cash deposit rate for all other producers and exporters will equal to the all-others estimated weighted-average dumping margin. These suspension of liquidation instructions will remain in effect until further notice.

    International Trade Commission Notification

    In accordance with section 735(d) of the Act, we will notify the International Trade Commission (ITC) of the final affirmative determination of sales at LTFV. Because Commerce's final determination in this investigation is affirmative, in accordance with section 735(b)(2) of the Act, the ITC will make its final determination as to whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports, or sales (or the likelihood of sales) for importation of citric acid from Colombia no later than 45 days after this final determination. If the ITC determines that such injury does not exist, this proceeding will be terminated and all cash deposits posted will be refunded or canceled. If the ITC determines that such injury does exist, Commerce will issue an antidumping duty order directing CBP to assess, upon further instruction by Commerce, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation, as discussed above in the “Continuation of Suspension of Liquidation” section.

    Notification Regarding Administrative Protective Orders

    This notice will serve as a reminder to parties subject to an administrative protective order (APO) of their responsibility concerning the disposition of propriety information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Timely written notification of return or destruction of APO materials, or conversion to judicial protective order, is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.

    Notification to Interested Parties

    This determination is issued and published in accordance with sections 735(d) and 777(i)(1) of the Act and 19 CFR 351.210(c).

    Dated: May 29, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix I Scope of the Investigation

    The merchandise covered by this investigation includes all grades and granulation sizes of citric acid, sodium citrate, and potassium citrate in their unblended forms, whether dry or in solution, and regardless of packaging type. The scope also includes blends of citric acid, sodium citrate, and potassium citrate; as well as blends with other ingredients, such as sugar, where the unblended form(s) of citric acid, sodium citrate, and potassium citrate constitute 40 percent or more, by weight, of the blend.

    The scope also includes all forms of crude calcium citrate, including dicalcium citrate monohydrate, and tricalcium citrate tetrahydrate, which are intermediate products in the production of citric acid, sodium citrate, and potassium citrate.

    The scope includes the hydrous and anhydrous forms of citric acid, the dihydrate and anhydrous forms of sodium citrate, otherwise known as citric acid sodium salt, and the monohydrate and monopotassium forms of potassium citrate. Sodium citrate also includes both trisodium citrate and monosodium citrate which are also known as citric acid trisodium salt and citric acid monosodium salt, respectively.

    The scope does not include calcium citrate that satisfies the standards set forth in the United States Pharmacopeia and has been mixed with a functional excipient, such as dextrose or starch, where the excipient constitutes at least 2 percent, by weight, of the product.

    Citric acid and sodium citrate are classifiable under 2918.14.0000 and 2918.15.1000 of the Harmonized Tariff Schedule of the United States (HTSUS), respectively. Potassium citrate and crude calcium citrate are classifiable under 2918.15.5000 and, if included in a mixture or blend, 3824.99.9295 of the HTSUS. Blends that include citric acid, sodium citrate, and potassium citrate are classifiable under 3824.99.9295 of the HTSUS. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.

    Appendix II List of Topics Discussed in the Issues and Decision Memorandum I. Summary II. Background III. Scope of the Investigation IV. Changes Since the Preliminary Determination V. Final Negative Determination of Critical Circumstances VI. Discussion of the Issues Comment 1: Date of Sale Comment 2: Whether to Include Minor Corrections from the Sales Verification VII. Recommendation
    [FR Doc. 2018-12008 Filed 6-4-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-549-834] Citric Acid and Certain Citrate Salts From Thailand: Final Negative Countervailing Duty Determination, and Final Negative Critical Circumstances Determination AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    The Department of Commerce (Commerce) determines that countervailable subsidies are not being provided to producers and exporters of citric acid and certain citrate salts (citric acid) from Thailand. The period of investigation is January 1, 2016, through December 31, 2016. In addition, we determine that critical circumstances do not exist with respect to imports of the subject merchandise.

    DATES:

    Applicable June 5, 2018.

    FOR FURTHER INFORMATION CONTACT:

    John Conniff or Jolanta Lawska, AD/CVD Operations, Office III, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: 202-482-1009 or 202-482-8362, respectively.

    SUPPLEMENTARY INFORMATION:

    Background

    Commerce published the Preliminary Determination on November 3, 2017.1 We invited interested parties to comment on the Preliminary Determination. Commerce exercised its discretion to toll all deadlines affected by the closure of the Federal Government from January 20 through 22, 2018. The revised deadline for the final determination of this investigation is now May 29, 2018.2 On February 23, 2018, Commerce issued a Post- Preliminary Results Decision Memorandum with respect to New Subsidy Allegations.3

    1See Citric Acid and Certain Citrate Salts from Thailand: Preliminary Negative Countervailing Duty Determination, Preliminary Negative Critical Circumstances Determination and Alignment of Final Determination With Final Antidumping Duty Determination, 82 FR 51216 (November 3, 2017) (Preliminary Determination), and accompanying Preliminary Decision Memorandum.

    2See Memorandum for The Record from Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance, “Deadlines Affected by the Shutdown of the Federal Government” (Tolling Memorandum), dated January 23, 2018. All deadlines in this segment of the proceeding have been extended by 3 days.

    3See Commerce Post-Preliminary Results Decision Memorandum Regarding New Subsidy Allegations dated February 23, 2018.

    A summary of the events that occurred since Commerce published the Preliminary Determination, as well as a full discussion of the issues raised by parties for this final determination, may be found in the Issues and Decision Memorandum, which is hereby adopted by this notice.4

    4See Memorandum from Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations to Christian Marsh, Deputy Assistant Secretary for Enforcement and Compliance, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance “Decision Memorandum for the Final Negative Countervailing Duty Determination and Final Negative Critical Circumstances Determination of Citric Acid and Certain Citrate Salts from Thailand,” dated concurrently with this notice (Issues and Decision Memorandum).

    Scope of the Investigation

    The product covered by this investigation is citric acid from Thailand. For a full description of the scope of this investigation, see the “Scope of the Investigation” in Appendix I of this notice.

    Scope Comments

    Prior to the Preliminary Determination, we issued a Preliminary Scope Decision Memorandum.5 We subsequently invited parties to submit additional scope comments in their case briefs, but received none. Therefore, for the final determination, we continue to find that the scope of the investigation as defined in the Initiation Notice6 and the Preliminary Determination  7 remains applicable. See Appendix I.

    5See Memorandum “Scope Comments Decision Memorandum for the Preliminary Determinations,” dated December 1, 2017 (Preliminary Scope Decision Memorandum).

    6See Citric Acid and Certain Citrate Salts from Belgium, Colombia, and Thailand: Initiation of Less-Than-Fair-Value Investigations, 82 FR 29828 (June 30, 2017) (Initiation Notice) and accompanying Initiation Checklist.

    7See Preliminary Determination, 82 FR at 51216.

    Verification

    As provided in section 782(i) of the Tariff Act of 1930, as amended (the Act), in November and December 2017, we conducted verification of the information submitted by the Royal Thai Government (RTG); COFCO Biochemical (Thailand) Co., Ltd. (COFCO); Niran (Thailand) Co., Ltd. (Niran); and Sunshine Biotech International Co., Ltd. (Sunshine) for use in our final determination. We used standard verification procedures, including an examination of relevant accounting and production records, and original source documents provided by the RTG, COFCO, Niran, and Sunshine.

    Analysis of Subsidy Programs and Comments Received

    All issues raised in the case and rebuttal briefs submitted by the interested parties are addressed in the Issues and Decision Memorandum accompanying this notice, which is hereby adopted by this notice. A list of the issues addressed in the Issues and Decision Memorandum is attached to this notice at Appendix II. The Issues and Decision Memorandum is a public document and is on file electronically via Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS). ACCESS is available to registered users at https://access.trade.gov, and it is available to all parties in the Central Records Unit, Room B-8024 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/index.html. The signed and electronic versions of the Issues and Decision Memorandum are identical in content.

    Changes Since the Preliminary Determination

    Based on our analysis of the comments received and our findings at verification, we made certain changes to the respondents' subsidy rate calculations. For a discussion of these changes, see the Issues and Decision Memorandum.

    Final Negative Determination of Critical Circumstances

    In the Preliminary Determination, Commerce explained that a finding of critical circumstances is only relevant if, due to an affirmative preliminary or affirmative final determination, there is a suspension of liquidation.8 However, Commerce preliminarily determined that the mandatory respondents received de minimis net subsidy rates. Thus, Commerce issued a negative Preliminary Determination, did not suspend liquidation, and preliminarily found that critical circumstances did not exist.9

    8See Preliminary Decision Memorandum at 5.

    9Id. at 5; see also Preliminary Determination, 82 FR at 51217.

    We continue to find that the mandatory respondents received de minimis net subsidy rates and, thus, we have issued a negative final determination. Accordingly, we also continue to find that critical circumstances do not exist.

    Final Determination

    In accordance with section 705(c)(1)(B)(i)(I) of the Act, we have calculated individual rates for the three producers/exporters of subject merchandise that are under investigation. We determine that the total net countervailable subsidy rates are as follows:

    Company Ad Valorem Rate
  • (% de minimis)
  • COFCO Biochemical (Thailand) Co., Ltd. (COFCO) 0.00 Niran (Thailand) Co., Ltd. (Niran) 0.00 Sunshine Biotech International Co., Ltd. (Sunshine) 0.21

    The Department has not calculated an all-others rate because it has not reached an affirmative final determination. In the Preliminary Determination, the total net countervailable subsidy rates for the three companies were de minimis and, therefore, we did not suspend liquidation. Because the rates for the three companies remain de minimis, we are not directing U.S. Customs and Border Protection to suspend liquidation of entries of citric acid from Thailand.

    Disclosure

    Commerce intends to disclose to interested parties its calculations and analysis performed in this final determination within five days of any public announcement in accordance with 19 CFR 351.224(b).

    International Trade Commission Notification

    In accordance with section 705(d) of the Act, we will notify the ITC of our determination. As our final determination is negative, this proceeding is terminated.

    Notification Regarding Administrative Protective Orders (APOs)

    This notice serves as the only reminder to parties subject to Administrative Protective Order (APO) of their responsibility concerning the return or destruction of proprietary information disclosed under APO in accordance with 19 CFR 351.305(a)(3). Failure to comply is a violation of the APO.

    Notification to Interested Parties

    This determination is issued and published pursuant to sections 705(d) and 777(i) of the Act.

    Dated: May 29, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix I Scope of the Investigation

    The merchandise covered by this investigation includes all grades and granulation sizes of citric acid, sodium citrate, and potassium citrate in their unblended forms, whether dry or in solution, and regardless of packaging type. The scope also includes blends of citric acid, sodium citrate, and potassium citrate; as well as blends with other ingredients, such as sugar, where the unblended form(s) of citric acid, sodium citrate, and potassium citrate constitute 40 percent or more, by weight, of the blend.

    The scope also includes all forms of crude calcium citrate, including dicalcium citrate monohydrate, and tricalcium citrate tetrahydrate, which are intermediate products in the production of citric acid, sodium citrate, and potassium citrate.

    The scope includes the hydrous and anhydrous forms of citric acid, the dihydrate and anhydrous forms of sodium citrate, otherwise known as citric acid sodium salt, and the monohydrate and monopotassium forms of potassium citrate. Sodium citrate also includes both trisodium citrate and monosodium citrate which are also known as citric acid trisodium salt and citric acid monosodium salt, respectively.

    The scope does not include calcium citrate that satisfies the standards set forth in the United States Pharmacopeia and has been mixed with a functional excipient, such as dextrose or starch, where the excipient constitutes at least 2 percent, by weight, of the product.

    Citric acid and sodium citrate are classifiable under 2918.14.0000 and 2918.15.1000 of the Harmonized Tariff Schedule of the United States (HTSUS), respectively. Potassium citrate and crude calcium citrate are classifiable under 2918.15.5000 and, if included in a mixture or blend, 3824.99.9295 of the HTSUS. Blends that include citric acid, sodium citrate, and potassium citrate are classifiable under 3824.99.9295 of the HTSUS. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the merchandise is dispositive.

    Appendix II List of Topics Discussed in the Final Decision Memorandum I. Summary II. Background III. Scope of the Investigation IV. New Subsidy Allegation V. Subsidies Valuation VI. Benchmark and Discount Rates VII. Analysis of Programs VIII. Discussion of the Issues Comment 1: Whether Commerce Should Include Respondents' Imports of Chinese-Origin Machinery and Equipment Made Pursuant to the Association of Southeast Asian Nations (ASEAN)-China Free Trade Area (FTA) in the Benefit Calculation of the IPA Section 28 Program Comment 2: Whether Subsidies Received by COFCO Biochemical (Thailand) Co., Ltd.'s (COFCO) Predecessor, World Best Biochemical (Thailand) Co., Ltd., (World Best), Are Countervailable Comment 3: Whether Commerce Should Find Duty Exemptions on Imports of Raw Materials Under the Section 36 IPA Program to be Countervailable IX. Recommendation
    [FR Doc. 2018-12011 Filed 6-4-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE International Trade Administration [C-570-065] Stainless Steel Flanges From the People's Republic of China: Countervailing Duty Order AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    Based on affirmative final determinations by the Department of Commerce (Commerce) and the International Trade Commission (ITC), Commerce is issuing the countervailing duty (CVD) order stainless steel flanges from the People's Republic of China (China).

    DATES:

    Applicable June 5, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Jerry Huang at (202) 482-4047 or Justin Neuman at (202) 482-0486, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.

    SUPPLEMENTARY INFORMATION:

    Background

    In accordance with sections 705(a), 705(d), and 777(i) of the Tariff Act of 1930, as amended (Act), and 19 CFR 351.210(c), on April 12, 2018, Commerce published its affirmative final determinations that countervailable subsidies are being provided to producers and exporters of stainless steel flanges from China.1

    1See Countervailing Duty Investigation of Stainless Steel Flanges from the People's Republic of China: Final Affirmative Determination, 83 FR 15790 (April 12, 2018) (Final Determination) and the accompanying Issues and Decision Memorandum.

    On May 29, 2018, the ITC notified Commerce of its affirmative determination that an industry in the United States is materially injured within the meaning of section 705(b)(1)(A)(i) of the Act, by reason of subsidized imports of subject merchandise from China.2

    2See Letters to Gary Taverman, Acting Assistant Secretary of Commerce for Enforcement and Compliance, from Rhonda K. Schmidtlein, Chairman of the U.S. International Trade Commission, regarding stainless steel flanges from China (May 29, 2018) (ITC Letter).

    Scope of the Order

    The scope of this order covers stainless steel flanges from China. For a complete description of the scope, see the Appendix to this notice.

    Countervailing Duty Order

    On May 29, 2018, in accordance with sections 705(b)(1)(A)(i) and 705(d) of the Act, the ITC notified Commerce of its final determination in this investigation, in which it found that an industry in the United States is materially injured by reason of imports of stainless steel flanges from China.3 Therefore, in accordance with section 705(c)(2) of the Act, Commerce is issuing this countervailing duty order. Because the ITC determined that imports of stainless steel flanges from China are materially injuring a U.S. industry, unliquidated entries of such merchandise from China, entered or withdrawn from warehouse for consumption, are subject to the assessment of countervailing duties.

    3See ITC Letter.

    Therefore, in accordance with section 706(a) of the Act, Commerce will direct U.S. Customs and Border Protection (CBP) to assess, upon further instruction by Commerce, countervailing duties for all relevant entries of stainless steel flanges from China. Countervailing duties will be assessed on unliquidated entries of stainless steel flanges from China entered, or withdrawn from warehouse, for consumption on or after January 23, 2018, the date of publication of the Preliminary Determinations. 4

    4See Countervailing Duty Investigation of Stainless Steel Flanges from the People's Republic of China: Preliminary Affirmative Determination, 83 FR 3124 (January 23, 2018) (Preliminary Determination) and the accompanying Preliminary Issues and Decision Memorandum. However, as described further below, countervailing duties will not be assessed on merchandise entered, or withdrawn for consumption, during the period of time between the expiration of provisional measures and the publication of the ITC's final injury determination in the Federal Register.

    Continuation of Suspension of Liquidation

    In accordance with section 706 of the Act, we will instruct CBP to suspend liquidation on all relevant entries of stainless steel flanges from China, as further described below. These instructions suspending liquidation will remain in effect until further notice. Commerce will also instruct CBP to require cash deposits equal to the amounts as indicated below. Accordingly, effective on the date of publication of the ITC's final affirmative injury determinations, CBP will require, at the same time as importers would normally deposit estimated duties on this subject merchandise, a cash deposit equal to the subsidy rates listed below.5 The all-others rate applies to all producers or exporters not specifically listed below.

    5See section 706(a)(3) of the Act.

    Company Subsidy rate
  • (percent)
  • Bothwell (Jiangyan) Steel Fittings Co., Ltd 174.73 Hydro-Fluids Controls Limited 174.73 Jiangyin Shengda Brite Line Kasugai Flange Co., Ltd 174.73 Qingdao I-Flow Co., Ltd 174.73 All-Others 174.73
    Provisional Measures

    Section 703(d) of the Act states that instructions issued pursuant to an affirmative preliminary determination may not remain in effect for more than four months. In the underlying investigations, Commerce published the Preliminary Determination on January 23, 2018. As such, the four-month period beginning on the date of the publication of the Preliminary Determinations ended on May 23, 2018. Furthermore, section 707(b) of the Act states that definitive duties are to begin on the date of publication of the ITC's final injury determination.

    Therefore, in accordance with section 703(d) of the Act and our practice, we instructed CBP to terminate the suspension of liquidation and to liquidate, without regard to countervailing duties, unliquidated entries of stainless steel flanges from China entered, or withdrawn from warehouse, for consumption, on or after May 23, 2018, the date the provisional measures expired, until and through the day preceding the date of publication of the ITC's final injury determination in the Federal Register. Suspension of liquidation will resume on the date of publication of the ITC's final determination in the Federal Register.

    Notifications to Interested Parties

    This notice constitutes the countervailing duty order with respect to stainless steel flanges from China pursuant to section 706(a) of the Act. Interested parties can find a list of countervailing duty orders currently in effect at http://enforcement.trade.gov/stats/iastats1.html.

    This order is issued and published in accordance with section 706(a) of the Act and 19 CFR 351.211(b).

    Dated: May 29, 2018. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. Appendix Scope of the Order

    The products covered by this order are certain forged stainless steel flanges, whether unfinished, semi-finished, or finished (certain forged stainless steel flanges). Certain forged stainless steel flanges are generally manufactured to, but not limited to, the material specification of ASTM/ASMEA/SA182 or comparable domestic or foreign specifications. Certain forged stainless steel flanges are made in various grades such as, but not limited to, 304, 304L, 316, and 316L (or combinations thereof). The term “stainless steel” used in this scope refers to an alloy steel containing, by actual weight, 1.2 percent or less of carbon and 10.5 percent or more of chromium, with or without other elements.

    Unfinished stainless steel flanges possess the approximate shape of finished stainless steel flanges and have not yet been machined to final specification after the initial forging or like operations. These machining processes may include, but are not limited to, boring, facing, spot facing, drilling, tapering, threading, beveling, heating, or compressing. Semi-finished stainless steel flanges are unfinished stainless steel flanges that have undergone some machining processes.

    The scope includes six general types of flanges. They are: (1) Weld neck, generally used in butt-weld line connection; (2) threaded, generally used for threaded line connections; (3) slip-on, generally used to slide over pipe; (4) lap joint, generally used with stub-ends/butt-weld line connections; (5) socket weld, generally used to fit pipe into a machine recession; and (6) blind, generally used to seal off a line. The sizes and descriptions of the flanges within the scope include all pressure classes of ASME B16.5 and range from one-half inch to twenty-four inches nominal pipe size. Specifically excluded from the scope of this order are cast stainless steel flanges. Cast stainless steel flanges generally are manufactured to specification ASTM A351.

    The country of origin for certain forged stainless steel flanges, whether unfinished, semi-finished, or finished is the country where the flange was forged. Subject merchandise includes stainless steel flanges as defined above that have been further processed in a third country. The processing includes, but is not limited to, boring, facing, spot facing, drilling, tapering, threading, beveling, heating, or compressing, and/or any other processing that would not otherwise remove the merchandise from the scope of the orders if performed in the country of manufacture of the stainless steel flanges.

    Merchandise subject to the order is typically imported under headings 7307.21.1000 and 7307.21.5000 of the Harmonized Tariff Schedule of the United States (HTSUS). While HTSUS subheadings and ASTM specifications are provided for convenience and customs purposes, the written description of the scope is dispositive.

    [FR Doc. 2018-11908 Filed 6-4-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Institute of Standards and Technology Open Meeting of the Information Security and Privacy Advisory Board AGENCY:

    National Institute of Standards and Technology, Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Information Security and Privacy Advisory Board (ISPAB) will meet Thursday, June 21, 2018 from 9:00 a.m. until 5:00 p.m., Eastern Time, and Friday, June 22, 2018 from 9:00 a.m. until 4:30 p.m. Eastern Time. All sessions will be open to the public.

    DATES:

    The meeting will be held on Thursday, June 21, 2018, from 9:00 a.m. until 5:00 p.m., Eastern Time, and Friday, June 22, 2018, from 9:00 a.m. until 4:30 p.m. Eastern Time.

    ADDRESSES:

    The meeting will be held at the American Institute of Architects, 1735 New York Avenue NW, Washington, DC, 20006.

    FOR FURTHER INFORMATION CONTACT:

    Matthew Scholl, Information Technology Laboratory, NIST, 100 Bureau Drive, Stop 8930, Gaithersburg, MD 20899-8930, Telephone: (301) 975-2941, Email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Pursuant to the Federal Advisory Committee Act, as amended, 5 U.S.C. App., notice is hereby given that the ISPAB will meet Thursday, June 21, 2018, from 9:00 a.m. until 5:00 p.m., Eastern Time, and Friday, June 22, 2018 from 9:00 a.m. until 4:30 p.m. Eastern Time. All sessions will be open to the public. The ISPAB is authorized by 15 U.S.C. 278g-4, as amended, and advises the National Institute of Standards and Technology (NIST), the Secretary of Homeland Security, and the Director of the Office of Management and Budget (OMB) on information security and privacy issues pertaining to Federal government information systems, including thorough review of proposed standards and guidelines developed by NIST. Details regarding the ISPAB's activities are available at http://csrc.nist.gov/groups/SMA/ispab/index.html.

    The agenda is expected to include the following items:

    —Deliberations and recommendations by the Board on security and privacy issues, —Presentation and discussion on NIST cybersecurity standards and guidelines, —Briefings on reports specified in Executive Order 13800, —Presentation and discussion on supply chain risk management programs, —Briefing on small businesses use of the Cybersecurity Framework, —Presentation and discussion on uses for blockchains, —Presentation and opportunity for questions on cybersecurity workforce initiatives, —Discussion on pending cybersecurity legislation, and —Updates on NIST Information Technology Laboratory cybersecurity work.

    Note that agenda items may change without notice. The final agenda will be posted on the website indicated above. Seating will be available for the public and media. Pre-registration is not required to attend this meeting.

    Public Participation: The ISPAB agenda will include a period, not to exceed thirty minutes, for oral comments from the public (Thursday, June 21, 2018, between 4:30 p.m. and 5:00 p.m.). Speakers will be selected on a first-come, first-served basis. Each speaker will be limited to five minutes. Questions from the public will not be considered during this period. Members of the public who are interested in speaking are requested to contact Matthew Scholl at the contact information indicated in the FOR FURTHER INFORMATION CONTACT section of this notice.

    Speakers who wish to expand upon their oral statements, those who had wished to speak but could not be accommodated on the agenda, and those who were unable to attend in person are invited to submit written statements. In addition, written statements are invited and may be submitted to the ISPAB at any time. All written statements should be directed to the ISPAB Secretariat, Information Technology Laboratory, 100 Bureau Drive, Stop 8930, National Institute of Standards and Technology, Gaithersburg, MD 20899-8930.

    Kevin A. Kimball, Chief of Staff.
    [FR Doc. 2018-12006 Filed 6-4-18; 8:45 am] BILLING CODE 3510-13-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Proposed Information Collection; Comment Request; Certification Requirements for Distributors of NOAA Electronic Navigational Charts/NOAA Hydrographic Products AGENCY:

    National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Notice.

    SUMMARY:

    The Department of Commerce, as part of its continuing effort to reduce paperwork and respondent burden, invites the general public and other Federal agencies to take this opportunity to comment on proposed and/or continuing information collections, as required by the Paperwork Reduction Act of 1995.

    DATES:

    Written comments must be submitted on or before August 6, 2018.

    ADDRESSES:

    Direct all written comments to Jennifer Jessup, Departmental Paperwork Clearance Officer, Department of Commerce, Room 6616, 14th and Constitution Avenue NW, Washington, DC 20230 (or via the internet at [email protected]).

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument and instructions should be directed to John Nyberg, National Ocean Service/Office of Coast Survey at (301) 847-8003 or [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Abstract

    This request is for extension of a currently approved information collection.

    NOS Office of Coast Survey manage