Federal Register Vol. 83, No.111,

Federal Register Volume 83, Issue 111 (June 8, 2018)

Page Range26547-26831
FR Document

83_FR_111
Current View
Page and SubjectPDF
83 FR 26662 - Federal Need Analysis Methodology for the 2019-20 Award Year-Federal Pell Grant, Federal Work-Study, Federal Supplemental Educational Opportunity Grant, William D. Ford Federal Direct Loan, Iraq and Afghanistan Service Grant, and TEACH Grant ProgramsPDF
83 FR 26714 - Sunshine Act MeetingsPDF
83 FR 26654 - Crystalline Silicon Photovoltaic Products From the People's Republic of China: Notice of Court Decision Not in Harmony With Final Determination of the Less Than Fair Value InvestigationPDF
83 FR 26682 - Response to Clean Air Act Section 126(b) Petitions From Delaware and MarylandPDF
83 FR 26643 - Sunshine Act Meeting NoticePDF
83 FR 26623 - Endangered and Threatened Wildlife and Plants; Removing Oenothera coloradensis (Colorado Butterfly Plant) From the Federal List of Endangered and Threatened PlantsPDF
83 FR 26580 - Partnership Transactions Involving Equity Interests of a PartnerPDF
83 FR 26746 - Proposed Collection; Comment Request for Regulation ProjectPDF
83 FR 26746 - Proposed Collection; Comment Request for Form 1127PDF
83 FR 26704 - 30-Day Notice of Proposed Information Collection: Consolidated Plan, Annual Action Plan & Annual Performance ReportPDF
83 FR 26700 - National Center for Advancing Translational Sciences; Notice of Closed MeetingPDF
83 FR 26701 - Center for Scientific Review; Notice of Closed MeetingsPDF
83 FR 26702 - National Cancer Institute; Notice of Closed MeetingsPDF
83 FR 26701 - National Institute on Alcohol Abuse and Alcoholism; Notice of Closed MeetingPDF
83 FR 26703 - National Institute on Alcohol Abuse and Alcoholism; Notice of Closed MeetingPDF
83 FR 26702 - National Institute of Neurological Disorders and Stroke; Notice of Closed MeetingsPDF
83 FR 26702 - National Institute of Neurological Disorders and Stroke; Notice of Closed MeetingPDF
83 FR 26736 - Agency Information Collection Activities: Proposed Request and Comment RequestPDF
83 FR 26693 - Agency Information Collection Activities: Proposed Collection; Comment RequestPDF
83 FR 26691 - Agency Information Collection Activities: Submission for OMB Review; Comment RequestPDF
83 FR 26684 - Agency Information Collection Activities: Final Collection; Comment RequestPDF
83 FR 26732 - Agency Information Collection Activities: Proposed Request and Comment RequestPDF
83 FR 26665 - Extension of Comment Period for Proposed Issuance of NPDES General Permit for Hydroelectric Facilities Within the State of Idaho (IDG360000)PDF
83 FR 26598 - Adequacy Determination for the St. Louis Area 2008 8-Hour Ozone Redesignation Request and Maintenance State Implementation Plan, Motor Vehicle Emissions Budgets for Transportation Conformity Purposes; State of MissouriPDF
83 FR 26658 - Procurement List; AdditionPDF
83 FR 26657 - Procurement List; DeletionsPDF
83 FR 26657 - Procurement List; Proposed AdditionsPDF
83 FR 26713 - New Postal ProductsPDF
83 FR 26661 - Proposed Collection; Comment RequestPDF
83 FR 26706 - Public Land Order No. 7868; Withdrawal of Public Lands To Protect the Johnny Behind the Rocks Recreation Zone; WyomingPDF
83 FR 26604 - Medicare Program; Changes to the Comprehensive Care for Joint Replacement Payment Model (CJR): Extreme and Uncontrollable Circumstances Policy for the CJR ModelPDF
83 FR 26661 - Submission for OMB Review; Comment RequestPDF
83 FR 26664 - Proposed Information Collection Request; Comment Request; Air Stationary Source Compliance and Enforcement Information Reporting (Renewal)PDF
83 FR 26666 - Response to Clean Air Act Section 126(b) Petitions From Delaware and MarylandPDF
83 FR 26687 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
83 FR 26688 - Proposed Data Collection Submitted for Public Comment and RecommendationsPDF
83 FR 26690 - Agency Forms Undergoing Paperwork Reduction Act ReviewPDF
83 FR 26697 - Draft Concept Paper: Illicit Trade in Tobacco Products After Implementation of a Food and Drug Administration Product Standard; Extension of Comment PeriodPDF
83 FR 26618 - Regulation of Flavors in Tobacco Products; Extension of Comment PeriodPDF
83 FR 26619 - Tobacco Product Standard for Nicotine Level of Combusted Cigarettes; Extension of Comment PeriodPDF
83 FR 26617 - Regulation of Premium Cigars; Extension of Comment PeriodPDF
83 FR 26643 - Proposed Information Collection; Comment Request; 2020 CensusPDF
83 FR 26685 - Request for the Technical Review of 3 Draft Immediately Dangerous to Life or Health (IDLH) Value ProfilesPDF
83 FR 26685 - Agency Information Collection Activities: Proposed Collection; National Advisory Council for Healthcare Research and Quality: Request for Nominations for Public MembersPDF
83 FR 26684 - Regular Meeting; Farm Credit System Insurance Corporation BoardPDF
83 FR 26659 - Submission for OMB Review; Comment RequestPDF
83 FR 26653 - Annual Business SurveyPDF
83 FR 26742 - Hours of Service (HOS) of Drivers; American Pyrotechnics Assn. (APA); Request To Add New Members to Current APA Exemption; Request for CommentsPDF
83 FR 26742 - Medical Review Board (MRB) Meeting: Public MeetingPDF
83 FR 26641 - Submission for OMB Review; Comment RequestPDF
83 FR 26611 - Clarification of Export Reporting Requirements for Nuclear Facilities, Equipment, and Non-Nuclear MaterialsPDF
83 FR 26708 - Kennecott Uranium Corporation; Sweetwater Uranium ProjectPDF
83 FR 26740 - 2017 Tax Information for Use in the Revenue Shortfall Allocation MethodPDF
83 FR 26683 - Cross-Media Electronic Reporting: Authorized Program Revision Approval, State of Rhode IslandPDF
83 FR 26745 - Agency Information Collection Activities: Information Collection Renewal; Submission for OMB Review; Bank Appeals Follow-Up QuestionnairePDF
83 FR 26705 - Endangered and Threatened Species; Receipt of Recovery Permit ApplicationsPDF
83 FR 26655 - Submission for OMB Review; Comment RequestPDF
83 FR 26656 - Submission for OMB Review; Comment RequestPDF
83 FR 26706 - Indian Gaming; Approval of a Tribal-State Class III Gaming Compact in the State of OklahomaPDF
83 FR 26741 - Notice of Final Federal Agency Actions on Sterling Highway Milepost 45 to 60 Project in AlaskaPDF
83 FR 26696 - Development of Inhaled Antibacterial Drugs for Cystic Fibrosis and Non-Cystic Fibrosis Bronchiectasis; Public Workshop; Request for CommentsPDF
83 FR 26699 - Agency Information Collection Activities; Proposed Collection; Comment Request; Interstate Shellfish Dealer's CertificatePDF
83 FR 26577 - Medical Devices; Orthopedic Devices; Classification of the In Vivo Cured Intramedullary Fixation RodPDF
83 FR 26698 - Agency Information Collection Activities; Announcement of Office of Management and Budget ApprovalsPDF
83 FR 26703 - Certificate of Alternative Compliance for the Ferry RODANTHEPDF
83 FR 26694 - Agency Information Collection Activities; Submission for Office of Management and Budget Review; Comment Request; Voluntary Malfunction Summary Reporting Program for ManufacturersPDF
83 FR 26575 - Medical Devices; General and Plastic Surgery Devices; Classification of the Microneedling Device for Aesthetic UsePDF
83 FR 26665 - Environmental Impact Statements; Notice of AvailabilityPDF
83 FR 26740 - 60-Day Notice of Proposed Information Collection: JADE Act QuestionnairePDF
83 FR 26747 - Agency Information Collection Activity: Appointment of Veterans Service Organization as Claimant's Representative and Appointment of Individual as Claimant's RepresentativePDF
83 FR 26747 - Agency Information Collection Activity Under OMB Review: Dependents' Application for VA Education BenefitsPDF
83 FR 26748 - Agency Information Collection Activity Under OMB Review: Application Request To Add and/or Remove DependentsPDF
83 FR 26748 - Agency Information Collection Activity: Claim for Disability Insurance Benefits, Government Life InsurancePDF
83 FR 26709 - Tennessee Valley Authority; Watts Bar Nuclear Plant, Units 1 and 2PDF
83 FR 26660 - Notice of Availability of an Environmental Assessment Addressing Construction and Operation of a Fiscal Year 2019 General Purpose Warehouse at Defense Logistics Agency Distribution Red River, TexasPDF
83 FR 26659 - Notice of Availability for Finding of No Significant Impact for the Environmental Assessment Addressing Construction and Operation of a Disposition Services Complex at DLA Disposition Services Red River, TexasPDF
83 FR 26594 - Technical and Clarifying Edits; Criminal Violations NPS Units NationwidePDF
83 FR 26731 - Self-Regulatory Organizations; ICE Clear Europe Limited; Notice of Filing and Immediate Effectiveness of a Proposed Rule Change Relating to Amendments to the ICE Clear Europe Delivery ProceduresPDF
83 FR 26724 - Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend and Reorganize Chapter V of the ISE Schedule of FeesPDF
83 FR 26726 - Self-Regulatory Organizations; Nasdaq GEMX, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend and Reorganize Chapter IV of the GEMX Schedule of FeesPDF
83 FR 26715 - Self-Regulatory Organizations; Nasdaq MRX, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend and Reorganize Specific Chapters in the Schedule of FeesPDF
83 FR 26719 - Self-Regulatory Organizations; BOX Options Exchange LLC; Notice of Filing of Proposed Rule Change To Adopt Rules Governing the Trading of Complex Qualified Contingent Cross and Complex Customer Cross OrdersPDF
83 FR 26717 - Self-Regulatory Organizations; Nasdaq MRX, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Memorialize Order and Execution Information Into MRX Rule 718PDF
83 FR 26728 - Self-Regulatory Organizations; Nasdaq GEMX, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Memorialize Order and Execution Information Into GEMX Rule 718PDF
83 FR 26707 - Request for Feedback on BOEM's Proposed Path Forward for Future Offshore Renewable Energy Leasing on the Atlantic Outer Continental ShelfPDF
83 FR 26739 - Privacy Act of 1974; Matching ProgramPDF
83 FR 26642 - Bend-Fort Rock Ranger District; Deschutes National Forest; Deschutes County Oregon; Twin Vegetation Management and Restoration ProjectPDF
83 FR 26685 - Agency Information Collection Activities: Proposed Collection; Comment Request; CorrectionPDF
83 FR 26641 - Information Collection; Wild Food Collecting in Atlanta's Browns Mill CommunityPDF
83 FR 26593 - Drawbridge Operation Regulation; Charles River, Boston, MAPDF
83 FR 26708 - Planetary Science Advisory Committee; MeetingPDF
83 FR 26656 - Mid-Atlantic Fishery Management Council (MAFMC); Public MeetingPDF
83 FR 26655 - Mid-Atlantic Fishery Management Council (MAFMC); Public MeetingPDF
83 FR 26568 - Amendment of Class B Airspace; San Francisco, CAPDF
83 FR 26597 - Adequacy Status of Motor Vehicle Emissions Budgets for the New York Portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT, 2008 8-Hour Ozone Nonattainment AreaPDF
83 FR 26596 - Air Plan Approval; Douglas, Arizona; Second 10-Year Sulfur Dioxide Maintenance PlanPDF
83 FR 26566 - Establishment of Class E Airspace; Pago Pago, American SamoaPDF
83 FR 26612 - Proposed Establishment and Modification of Area Navigation Routes, Florida Metroplex Project; Southeastern United StatesPDF
83 FR 26556 - Airworthiness Directives; the Boeing Company AirplanesPDF
83 FR 26564 - Airworthiness Directives; The Boeing Company AirplanesPDF
83 FR 26559 - Airworthiness Directives; Airbus AirplanesPDF
83 FR 26547 - Milk in California; Federal Milk Marketing Order PromulgationPDF
83 FR 26599 - State of Iowa; Approval and Promulgation of the State Implementation Plan, the 111(d) Plan and the Operating Permits ProgramPDF
83 FR 26640 - Pacific Fisheries Management Council; Notice of Intent To Withdraw an Environmental Impact Statement for Gear Rule Changes for the Pacific Coast Groundfish Fishery Trawl Catch Share ProgramPDF
83 FR 26752 - Review of the Primary National Ambient Air Quality Standards for Sulfur OxidesPDF
83 FR 26788 - Covered Investment Fund Research ReportsPDF
83 FR 26620 - Minimum Internal Control StandardsPDF

Issue

83 111 Friday, June 8, 2018 Contents Agency Health Agency for Healthcare Research and Quality NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 26685 2018-12312 Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Advisory Council for Healthcare Research and Quality; Request for Nominations for Public Members, 26685 2018-12361 Agricultural Marketing Agricultural Marketing Service RULES Marketing Orders: Milk in California, 26547-26556 2018-12245 Agriculture Agriculture Department See

Agricultural Marketing Service

See

Forest Service

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 26641 2018-12353
Census Bureau Census Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: 2020 Census, 26643-26653 2018-12365 Determinations: Annual Business Survey, 26653-26654 2018-12356 Centers Disease Centers for Disease Control and Prevention NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 26687-26691 2018-12371 2018-12372 2018-12373 Requests for Comments: Technical Review of 3 Draft Immediately Dangerous to Life or Health Value Profiles, 26685-26686 2018-12364 Centers Medicare Centers for Medicare & Medicaid Services RULES Medicare Program: Changes to the Comprehensive Care for Joint Replacement Payment Model: Extreme and Uncontrollable Circumstances Policy for the Model, 26604-26610 2018-12379 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 26691-26694 2018-12393 2018-12394 Civil Rights Civil Rights Commission NOTICES Meetings; Sunshine Act, 26643 2018-12428 Coast Guard Coast Guard RULES Drawbridge Operations: Charles River, Boston, MA, 26593 2018-12310 NOTICES Certificates of Alternative Compliance: RODANTHE, 26703-26704 2018-12337 Commerce Commerce Department See

Census Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Committee for Purchase Committee for Purchase From People Who Are Blind or Severely Disabled NOTICES Procurement List; Additions and Deletions, 26657-26659 2018-12385 2018-12386 2018-12387 Comptroller Comptroller of the Currency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Bank Appeals Follow-Up Questionnaire, 26745 2018-12347 Defense Acquisition Defense Acquisition Regulations System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals; Correction, 26659 2018-12357 Defense Department Defense Department See

Defense Acquisition Regulations System

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 26661-26662 2018-12378 2018-12383 Environmental Assessments; Availability, etc.: Construction and Operation of a Fiscal Year 2019 General Purpose Warehouse at Defense Logistics Agency Distribution Red River, TX, 26660-26661 2018-12326 Disposition Services Complex at DLA Disposition Services Red River, TX, 26659-26660 2018-12325
Education Department Education Department NOTICES Federal Need Analysis Methodology for the 2019-20 Award Year: Federal Pell Grant, Federal Work-Study, Federal Supplemental Educational Opportunity Grant, William D. Ford Federal Direct Loan, Iraq and Afghanistan Service Grant, and TEACH Grant Programs, 26662-26664 C1--2018--10586 Environmental Protection Environmental Protection Agency RULES Adequacy Determinations: Missouri; St. Louis Area 2008 8-Hour Ozone Redesignation Request and Maintenance State Implementation Plan, Motor Vehicle Emissions Budgets for Transportation Conformity Purposes, 26598-26599 2018-12388 Motor Vehicle Emissions Budgets for the New York Portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT, 2008 8-hour Ozone Nonattainment Area, 26597-26598 2018-12303 Air Quality State Implementation Plans; Approvals and Promulgations: Arizona; Douglas, AZ, Second 10-Year Sulfur Dioxide Maintenance Plan, 26596-26597 2018-12300 Iowa; Approval and Promulgation of the State Implementation Plan, the 111(d) Plan and the Operating Permits Program, 26599-26604 2018-12166 PROPOSED RULES Review of the Primary National Ambient Air Quality Standards for Sulfur Oxides, 26752-26785 2018-12061 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Air Stationary Source Compliance and Enforcement Information Reporting (Renewal), 26664-26665 2018-12375 Clean Air Act Petitions: Delaware and Maryland, 26666-26682 2018-12374 Cross-Media Electronic Reporting: Authorized Program Revision Approval, Rhode Island, 26683-26684 2018-12348 Environmental Impact Statements; Availability, etc.: Weekly Receipts, 26665-26666 2018-12334 General Permit Renewals: NPDES General Permit for Hydroelectric Facilities Within the State of Idaho, 26665 2018-12389 Public Hearings: Response to Clean Air Act Section 126(b) Petitions From Delaware and Maryland, 26682-26683 2018-12453 Export Import Export-Import Bank NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 26684 2018-12392 Farm Credit System Insurance Farm Credit System Insurance Corporation NOTICES Meetings: Board, 26684 2018-12360 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: Airbus Airplanes, 26559-26564 2018-12268 The Boeing Company Airplanes, 26556-26559, 26564-26566 2018-12270 2018-12279 Amendment of Class B Airspace: San Francisco, CA, 26568-26575 2018-12304 Establishment of Class E Airspace: Pago Pago, American Samoa, 26566-26568 2018-12295 PROPOSED RULES Establishment and Modification of Area Navigation Routes: Florida Metroplex Project; Southeastern United States, 26612-26617 2018-12293 Federal Highway Federal Highway Administration NOTICES Federal Agency Actions: Sterling Highway Milepost 45 to 60 Project in Alaska, 26741-26742 2018-12342 Federal Motor Federal Motor Carrier Safety Administration NOTICES Hours of Service of Drivers; Exemption Applications: American Pyrotechnics Assn., 26742-26744 2018-12355 Meetings: Medical Review Board, 26742 2018-12354 Fish Fish and Wildlife Service PROPOSED RULES Endangered and Threatened Species: Removing Oenothera coloradensis (Colorado Butterfly Plant) From the Federal List of Endangered and Threatened Plants, 26623-26640 2018-12409 NOTICES Endangered and Threatened Species: Recovery Permit Applications, 26705-26706 2018-12346 Food and Drug Food and Drug Administration RULES Medical Devices: General and Plastic Surgery Devices; Classification of the Microneedling Device for Aesthetic Use, 26575-26577 2018-12335 Orthopedic Devices; Classification of the In Vivo Cured Intramedullary Fixation Rod, 26577-26580 2018-12339 PROPOSED RULES Regulation of Flavors in Tobacco Products; Extension of Comment Period, 26618-26619 2018-12369 Regulation of Premium Cigars; Extension of Comment Period, 26617-26618 2018-12367 Tobacco Product Standard for Nicotine Level of Combusted Cigarettes; Extension of Comment Period, 26619-26620 2018-12368 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 26698-26699 2018-12338 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Interstate Shellfish Dealer's Certificate, 26699-26700 2018-12340 Voluntary Malfunction Summary Reporting Program for Manufacturers, 26694-26696 2018-12336 Draft Concept Paper: Illicit Trade in Tobacco Products After Implementation of a Food and Drug Administration Product Standard; Extension of Comment Period, 26697-26698 2018-12370 Meetings: Development of Inhaled Antibacterial Drugs for Cystic Fibrosis and Non-Cystic Fibrosis Bronchiectasis; Public Workshop, 26696-26697 2018-12341 Forest Forest Service NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Wild Food Collecting in Atlanta's Browns Mill Community, 26641-26642 2018-12311 Environmental Impact Statements; Availability, etc.: Bend-Fort Rock Ranger District; Deschutes National Forest; Deschutes County, OR; Twin Vegetation Management and Restoration Project, 26642-26643 2018-12313 Health and Human Health and Human Services Department See

Agency for Healthcare Research and Quality

See

Centers for Disease Control and Prevention

See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

National Institutes of Health

Homeland Homeland Security Department See

Coast Guard

Housing Housing and Urban Development Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Consolidated Plan, Annual Action Plan and Annual Performance Report, 26704-26705 2018-12403 Indian Affairs Indian Affairs Bureau NOTICES Indian Gaming: Tribal-State Class III Gaming Compact in the State of Oklahoma, 26706 2018-12343 Interior Interior Department See

Fish and Wildlife Service

See

Indian Affairs Bureau

See

Land Management Bureau

See

National Indian Gaming Commission

See

National Park Service

See

Ocean Energy Management Bureau

Internal Revenue Internal Revenue Service RULES Partnership Transactions Involving Equity Interests of a Partner, 26580-26593 2018-12407 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 26746-26747 2018-12405 2018-12406 International Trade Adm International Trade Administration NOTICES Determinations of Sales at Less Than Fair Value: Crystalline Silicon Photovoltaic Products From the People's Republic of China, 26654-26655 2018-12481 Land Land Management Bureau NOTICES Public Land Orders: Withdrawal of Public Lands To Protect the Johnny Behind the Rocks Recreation Zone; WY, 26706-26707 2018-12381 NASA National Aeronautics and Space Administration NOTICES Meetings: Planetary Science Advisory Committee, 26708 2018-12307 National Indian National Indian Gaming Commission PROPOSED RULES Minimum Internal Control Standards, 26620-26623 2018-10365 National Institute National Institutes of Health NOTICES Meetings: Center for Scientific Review, 26701 2018-12401 National Cancer Institute, 26702-26703 2018-12400 National Center for Advancing Translational Sciences, 26700-26701 2018-12402 National Institute of Neurological Disorders and Stroke, 26702 2018-12396 2018-12397 National Institute on Alcohol Abuse and Alcoholism, 26701-26703 2018-12398 2018-12399 National Oceanic National Oceanic and Atmospheric Administration PROPOSED RULES Pacific Coast Groundfish Fishery Trawl Catch Share Program: Environmental Impact Statements; Availability; Intent To Withdraw, 26640 2018-12165 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 26655-26656 2018-12344 2018-12345 Meetings: Mid-Atlantic Fishery Management Council, 26655-26657 2018-12305 2018-12306 National Park National Park Service RULES Technical and Clarifying Edits; Criminal Violations NPS Units Nationwide, 26594-26596 2018-12324 Nuclear Regulatory Nuclear Regulatory Commission PROPOSED RULES Clarification of Export Reporting Requirements for Nuclear Facilities, Equipment, and Non-Nuclear Materials, 26611-26612 2018-12351 NOTICES Environmental Assessments; Availability, etc.: Kennecott Uranium Corp.; Sweetwater Uranium Project, 26708-26709 2018-12350 License Amendments; Applications: Tennessee Valley Authority; Watts Bar Nuclear Plant, Units 1 and 2, 26709-26713 2018-12327 Ocean Energy Management Ocean Energy Management Bureau NOTICES Request for Comments: Proposed Path Forward for Future Offshore Renewable Energy Leasing on the Atlantic Outer Continental Shelf, 26707 2018-12316 Postal Regulatory Postal Regulatory Commission NOTICES New Postal Products, 26713-26714 2018-12384 Securities Securities and Exchange Commission PROPOSED RULES Covered Investment Fund Research Reports, 26788-26831 2018-11497 NOTICES Meetings; Sunshine Act, 26714 2018-12540 2018-12541 Self-Regulatory Organizations; Proposed Rule Changes: BOX Options Exchange LLC, 26719-26724 2018-12319 ICE Clear Europe, Ltd., 26731-26732 2018-12323 Nasdaq GEMX, LLC, 26726-26731 2018-12317 2018-12321 Nasdaq ISE, LLC, 26724-26726 2018-12322 Nasdaq MRX, LLC, 26715-26719 2018-12318 2018-12320 Social Social Security Administration NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 26732-26739 2018-12391 2018-12395 Privacy Act; Matching Program, 26739 2018-12314 State Department State Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: JADE Act Questionnaire, 26740 2018-12333 Surface Transportation Surface Transportation Board NOTICES 2017 Tax Information for Use in the Revenue Shortfall Allocation Method, 26740-26741 2018-12349 Transportation Department Transportation Department See

Federal Aviation Administration

See

Federal Highway Administration

See

Federal Motor Carrier Safety Administration

Treasury Treasury Department See

Comptroller of the Currency

See

Internal Revenue Service

Veteran Affairs Veterans Affairs Department NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Application Request To Add and/or Remove Dependents, 26748-26749 2018-12329 Appointment of Veterans Service Organization as Claimant's Representative and Appointment of Individual as Claimant's Representative, 26747 2018-12331 Claim for Disability Insurance Benefits, Government Life Insurance, 26748 2018-12328 Dependents' Application for VA Education Benefits, 26747-26748 2018-12330 Separate Parts In This Issue Part II Environmental Protection Agency, 26752-26785 2018-12061 Part III Securities and Exchange Commission, 26788-26831 2018-11497 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.

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83 111 Friday, June 8, 2018 Rules and Regulations DEPARTMENT OF AGRICULTURE Agricultural Marketing Service 7 CFR Part 1051 [Doc. No. AO-15-0071; AMS-DA-14-0095] Milk in California; Federal Milk Marketing Order Promulgation AGENCY:

Agricultural Marketing Service, USDA.

ACTION:

Final rule.

SUMMARY:

This final rule establishes a Federal Milk Marketing Order (FMMO) regulating the handling of milk in California. This final rule issues a marketing order incorporating the entire state of California and adopts the same dairy product classification and pricing provisions used throughout the current FMMO system. The California FMMO provides for the recognition of producer quota as administered by the California Department of Food and Agriculture. More than the required number of producers for the California marketing area have approved the issuance of the order. This final rule also announces AMS's intention to merge the information collection forms used to conduct the producer referendum with the reporting forms used in the other dairy marketing orders.

DATES:

Effective Date: This rule is effective October 17, 2018.

Applicability Date: All provisions of this rule apply to affected parties as of November 1, 2018.

FOR FURTHER INFORMATION CONTACT:

Erin C. Taylor, Order Formulation and Enforcement Division, USDA/AMS/Dairy Program, STOP 0231-Room 2963, 1400 Independence Ave. SW, Washington, DC 20250-0231, (202) 720-7183, email address: [email protected].

SUPPLEMENTARY INFORMATION:

This rule, in accordance with 7 CFR 900.14(c), is the Secretary's final rule in this proceeding and issues a marketing order as defined in 7 CFR 900.2(j).

Accordingly, this final rule adopts amendments detailed in the proposed rule (83 FR 14110), with one minor technical correction to paragraph numbering in § 1051.73(c)(2). The proposed rule designated two consecutive paragraphs in that section as paragraph (c)(2)(vii). This final rule corrects the proposed rule by redesignating the second paragraph as paragraph (c)(2)(viii).

This rule is effective with publication of the Announcement of Advanced Prices and Pricing Factors on October 17, 2018 (see § 1051.53). Affected parties must comply with all provisions of this rule beginning November 1, 2018.

This administrative action is governed by the provisions of Sections 556 and 557 of Title 5 of the United States Code and is therefore excluded from the requirements of Executive Order 12866.

This final rule is not considered an Executive Order 13771 regulatory action because it does not meet the definition of a “regulation” or “rule” under Executive Order 12866.

The amendments adopted in this final rule have been reviewed under Executive Order 12988, Civil Justice Reform. This rule is not intended to have retroactive effect and will not preempt any state or local law, regulations, or policies, unless they present an irreconcilable conflict with this rule.

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

The Agricultural Marketing Agreement Act of 1937 (AMAA), as amended (7 U.S.C. 601-674 and 7253), provides that administrative proceedings must be exhausted before parties may file suit in court. Under section 608c(15)(A) of the AMAA, any handler subject to a marketing order may request modification or exemption from such order by filing with the U.S. Department of Agriculture (USDA) a petition stating that the order, any provision of the order, or any obligation imposed in connection with the order is not in accordance with law. A handler is afforded the opportunity for a hearing on the petition. After a hearing, USDA would rule on the petition. The AMAA provides that the district court of the United States in any district in which the handler is an inhabitant, or has its principal place of business, has jurisdiction in equity to review USDA's ruling on the petition, provided a bill in equity is filed not later than 20 days after the date of the entry of the ruling.

Regulatory Flexibility Act and Paperwork Reduction Act

Pursuant to the requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601-612), the Agricultural Marketing Service (AMS) considered the economic impact of this action on small entities. Accordingly, AMS prepared this final regulatory flexibility analysis.

The purpose of the RFA is to fit regulatory actions to the scale of businesses subject to such actions so that small businesses will not be unduly or disproportionately burdened. Small dairy farm businesses have been defined by the Small Business Administration (SBA) (13 CFR 121.601) as those businesses having annual gross receipts of less than $750,000. The SBA's definition of small agricultural service firms, which includes handlers that will be regulated under this marketing order, varies depending on the product manufactured. Small fluid milk and ice cream manufacturers are defined as having 1,000 or fewer employees. Small butter and dry or condensed dairy product manufacturers are defined as having 750 or fewer employees. Small cheese manufacturers are defined as having 1,250 or fewer employees.

For the purpose of determining which California dairy farms are “small businesses,” the $750,000 per year criterion was used to establish a production guideline that equates to approximately 315,000 pounds of milk per month. Although this guideline does not factor in additional monies that may be received by dairy farmers, it is a standard encompassing most small dairy farms. For the purpose of determining a handler's size, if the plant is part of a larger company operating multiple plants that collectively exceed the employee limit for that type of manufacturing, the plant is considered a large business even if the local plant has fewer than the defined number of employees.

Interested persons were invited to present evidence at the hearing on the probable regulatory and informational impact of the California FMMO on small businesses. Specific evidence on the number of large and small dairy farms in California (above and below the threshold of $750,000 in annual sales) was not presented at the hearing. However, data compiled by CDFA1 suggests that between 5 and 15 percent of California dairy farms would be considered small business entities. No comparable data for dairy product manufacturers was available.

1 Official Notice is taken of: CDFA, California Dairy Review, Volume 19, Issue 9, September 2015. https://www.cdfa.ca.gov/dairy/pdf/CDR/2015/CDR_SEPT_15.pdf.

Record evidence indicates that implementing the California FMMO would not impose a disproportionate burden on small businesses. Currently, the California dairy industry is regulated by a California State Order (CSO) that is administered and enforced by CDFA. While the CSO and FMMOs have differences, they both maintain similar classified pricing and marketwide pooling functions. Therefore, it is not expected that the regulatory change will have a significant impact on California small businesses.

The record evidence indicates that while the program is likely to impose some costs on the regulated parties, those costs would be outweighed by the benefits expected to accrue to the California dairy industry. In conjunction with the publication of the final decision (83 FR 14110), AMS released a Regulatory Economic Impact Analysis (REIA) to study the possible impacts of the California FMMO. The analysis reflects the provisions of this FMMO and may be viewed at www.ams.usda.gov/caorder.

In accordance with the Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35), this final rule also announces AMS's intention to merge the OMB Report Forms under a California Federal Milk Marketing Order (from Milk Handlers and Milk Marketing Cooperatives, 0581-0298), and the forms used to conduct the producer referendum (Referendum Ballots, 0581-0300) with the reporting forms used in the rest of the dairy marketing orders (Report Forms Under the Federal Milk Marketing Order Program, 0581-0032). Any additional information collection and recordkeeping requirements that may be imposed under the order would be submitted to OMB for public comment and approval.

Prior Documents in This Proceeding

Notice of Hearing: Issued July 27, 2015; published August 6, 2015 (80 FR 47210);

Notice to Reconvene Hearing: Issued September 25, 2015; published September 30, 2015 (80 FR 58636);

Recommended Decision and Opportunity To File Written Exceptions: Issued February 6, 2017; published February 14, 2017 (82 FR 10634);

Documents for Official Notice: Issued August 8, 2017; published August 14, 2017 (82 FR 37827);

Information Collection—Producer Ballots: Issued September 27, 2017; published October 2, 2017 (82 FR 45795);

Delay of Rulemaking: Issued February 1, 2018; published February 6, 2018 (83 FR 5215);

Ratification of Record: Issued March 14, 2018; published March 19, 2018 (83 FR 11903); and

Final Decision: Issued March 23, 2018; published April 2, 2018 (83 FR 14110).

Findings and Determinations

The findings and determinations hereinafter set forth are hereby ratified and confirmed, except where they may conflict with those set forth herein.

(1) Findings upon the basis of the hearing record.

The promulgation of the marketing agreement and order is based on the record of a public hearing held September 22 through November 18, 2015 in Clovis, California. The hearing was held to receive evidence on four proposals submitted by dairy farmers, handlers, and other interested parties. Notice of this hearing was published in the Federal Register on August 6, 2015 (80 FR 47210), pursuant to the provisions of the Agricultural Marketing Agreement Act of 1937, as amended (7 U.S.C. 601-674), and the applicable rules of practice and procedure (7 CFR part 900).

Upon the basis of the evidence introduced at the public hearing and its record, it is found that:

(a) The order as hereby promulgated, and all of the terms and conditions thereof, will tend to effectuate the declared policy of the AMAA;

(b) The parity prices of milk, as determined pursuant to section 2 of the AMAA, are not reasonable in view of the price of feeds, available supplies of feeds, and other economic conditions that affect market supply and demand for milk in California. The minimum prices specified in the tentative marketing agreement and order, as hereby established, are prices that will reflect the aforesaid factors, ensure a sufficient quantity of pure and wholesome milk, and be in the public interest; and

(c) The tentative marketing agreement and order, as hereby established, will regulate the handling of milk in the same manner as, and applies only to, persons in the respective classes of industrial and commercial activity specified in, marketing agreements upon which a hearing has been held.

(2) Determinations.

It is hereby determined that:

(a) The refusal or failure of handlers (excluding cooperative associations specified in section 8c(9) of the AMAA) of more than 50 percent of the milk marketed within the specified marketing areas to sign a proposed marketing agreement, tends to prevent the effectuation of the declared policy of the AMAA;

(b) The issuance of this order establishing the California order is the only practical means pursuant to the declared policy of the AMAA of advancing the interests of producers as defined in the order as hereby promulgated; and

(c) The issuance of this order establishing the California order is favored by at least two-thirds of the producers who were engaged in the production of milk for sale in the respective marketing areas.

List of Subjects in 7 CFR Part 1051

Milk marketing orders.

Order Establishing the Order Regulating the Handling of Milk in the California Marketing Area

It is therefore ordered, that on and after the effective date hereof, the handling of milk in the California marketing area shall be in conformity to and in compliance with the terms and conditions of the order.

For the reasons stated in the preamble, the Agricultural Marketing Service adds 7 CFR part 1051 to read as follows: PART 1051—MILK IN THE CALIFORNIA MILK MARKETING AREA Subpart A—Order Regulating Handling General Provisions Sec. 1051.1 General provisions. Definitions 1051.2 California marketing area. 1051.3 Route disposition. 1051.4 Plant. 1051.5 Distributing plant. 1051.6 Supply plant. 1051.7 Pool plant. 1051.8 Nonpool plant. 1051.9 Handler. 1051.10 Producer-handler. 1051.11 California quota program. 1051.12 Producer. 1051.13 Producer milk. 1051.14 Other source milk. 1051.15 Fluid milk product. 1051.16 Fluid cream product. 1051.17 [Reserved]. 1051.18 Cooperative association. 1051.19 Commercial food processing establishment. Market Administrator, Continuing Obligations, and Handler Responsibilities 1051.25 Market administrator. 1051.26 Continuity and separability of provisions. 1051.27 Handler responsibility for records and facilities. 1051.28 Termination of obligations. Handler Reports 1051.30 Reports of receipts and utilization. 1051.31 Payroll reports. 1051.32 Other reports. Subpart B—Milk Pricing Classification of Milk 1051.40 Classes of utilization. 1051.41 [Reserved]. 1051.42 Classification of transfers and diversions. 1051.43 General classification rules. 1051.44 Classification of producer milk. 1051.45 Market administrator's reports and announcements concerning classification. Class Prices 1051.50 Class prices, component prices, and advanced pricing factors. 1051.51 Class I differential and price. 1051.52 Adjusted Class I differentials. 1051.53 Announcement of class prices, component prices, and advanced pricing factors. 1051.54 Equivalent price. Producer Price Differential 1051.60 Handler's value of milk. 1051.61 Computation of producer price differential. 1051.62 Announcement of producer prices. Subpart C—Payments for Milk Producer Payments 1051.70 Producer-settlement fund. 1051.71 Payments to the producer-settlement fund. 1051.72 Payments from the producer-settlement fund. 1051.73 Payments to producers and to cooperative associations. 1051.74 [Reserved]. 1051.75 Plant location adjustments for producer milk and nonpool milk. 1051.76 Payments by a handler operating a partially regulated distributing plant. 1051.77 Adjustment of accounts. 1051.78 Charges on overdue accounts. Administrative Assessment and Marketing Service Deduction 1051.85 Assessment for order administration. 1051.86 Deduction for marketing services. Subpart D—Miscellaneous Provisions 1051.90 Dates. Authority:

7 U.S.C. 601-674, and 7253.

Subpart A—Order Regulating Handling General Provisions
§ 1051.1 General provisions.

The terms, definitions, and provisions in part 1000 of this chapter apply to this part unless otherwise specified. In this part, all references to sections in part 1000 refer to part 1000 of this chapter.

Definitions
§ 1051.2 California marketing area.

The marketing area means all territory within the bounds of the following states and political subdivisions, including all piers, docks, and wharves connected therewith and all craft moored thereat, and all territory occupied by government (municipal, State, or Federal) reservations, installations, institutions, or other similar establishments if any part thereof is within any of the listed states or political subdivisions:

California

All of the State of California.

§ 1051.3 Route disposition.

See § 1000.3.

§ 1051.4 Plant.

See § 1000.4.

§ 1051.5 Distributing plant.

See § 1000.5.

§ 1051.6 Supply plant.

See § 1000.6.

§ 1051.7 Pool plant.

Pool plant means a plant, unit of plants, or system of plants as specified in paragraphs (a) through (f) of this section, but excluding a plant specified in paragraph (h) of this section. The pooling standards described in paragraphs (c) and (f) of this section are subject to modification pursuant to paragraph (g) of this section:

(a) A distributing plant, other than a plant qualified as a pool plant pursuant to paragraph (b) of this section or § _____.7(b) of any other Federal milk order, from which during the month 25 percent or more of the total quantity of fluid milk products physically received at the plant (excluding concentrated milk received from another plant by agreement for other than Class I use) are disposed of as route disposition or are transferred in the form of packaged fluid milk products to other distributing plants. At least 25 percent of such route disposition and transfers must be to outlets in the marketing area.

(b) Any distributing plant located in the marketing area which during the month processed at least 25 percent of the total quantity of fluid milk products physically received at the plant (excluding concentrated milk received from another plant by agreement for other than Class I use) into ultra-pasteurized or aseptically-processed fluid milk products.

(c) A supply plant from which the quantity of bulk fluid milk products shipped to (and physically unloaded into) plants described in paragraph (c)(1) of this section is not less than 10 percent of the Grade A milk received from dairy farmers (except dairy farmers described in § 1051.12(b)) and handlers described in § 1000.9(c), including milk diverted pursuant to § 1051.13, subject to the following conditions:

(1) Qualifying shipments may be made to plants described in paragraphs (c)(1)(i) through (iv) of this section, except that whenever shipping requirements are increased pursuant to paragraph (g) of this section, only shipments to pool plants described in paragraphs (a), (b), and (d) of this section shall count as qualifying shipments for the purpose of meeting the increased shipments:

(i) Pool plants described in paragraphs (a), (b), and (d) of this section;

(ii) Plants of producer-handlers;

(iii) Partially regulated distributing plants, except that credit for such shipments shall be limited to the amount of such milk classified as Class I at the transferee plant; and

(iv) Distributing plants fully regulated under other Federal orders, except that credit for shipments to such plants shall be limited to the quantity shipped to (and physically unloaded into) pool distributing plants during the month and credits for shipments to other order plants shall not include any such shipments made on the basis of agreed-upon Class II, Class III, or Class IV utilization.

(2) Concentrated milk transferred from the supply plant to a distributing plant for an agreed-upon use other than Class I shall be excluded from the supply plant's shipments in computing the supply plant's shipping percentage.

(d) Two or more plants operated by the same handler and located in the marketing area may qualify for pool status as a unit by meeting the total and in-area route disposition requirements of a pool distributing plant specified in paragraph (a) of this section and subject to the following additional requirements:

(1) At least one of the plants in the unit must qualify as a pool plant pursuant to paragraph (a) of this section;

(2) Other plants in the unit must process Class I or Class II products, using 50 percent or more of the total Grade A fluid milk products received in bulk form at such plant or diverted therefrom by the plant operator in Class I or Class II products; and

(3) The operator of the unit has filed a written request with the market administrator prior to the first day of the month for which such status is desired to be effective. The unit shall continue from month-to-month thereafter without further notification. The handler shall notify the market administrator in writing prior to the first day of any month for which termination or any change of the unit is desired.

(e) A system of two or more supply plants operated by one or more handlers may qualify for pooling by meeting the shipping requirements of paragraph (c) of this section in the same manner as a single plant subject to the following additional requirements:

(1) Each plant in the system is located within the marketing area. Cooperative associations or other handlers may not use shipments pursuant to § 1000.9(c) to qualify supply plants located outside the marketing area;

(2) The handler(s) establishing the system submits a written request to the market administrator on or before July 15 requesting that such plants qualify as a system for the period of August through July of the following year. Such request will contain a list of the plants participating in the system in the order, beginning with the last plant, in which the plants will be dropped from the system if the system fails to qualify. Each plant that qualifies as a pool plant within a system shall continue each month as a plant in the system through the following July unless the handler(s) establishing the system submits a written request to the market administrator that the plant be deleted from the system or that the system be discontinued. Any plant that has been so deleted from a system, or that has failed to qualify in any month, will not be part of any system for the remaining months through July. The handler(s) that have established a system may add a plant operated by such handler(s) to a system if such plant has been a pool plant each of the 6 prior months and would otherwise be eligible to be in a system, upon written request to the market administrator no later than the 15th day of the prior month. In the event of an ownership change or the business failure of a handler who is a participant in a system, the system may be reorganized to reflect such changes if a written request to file a new marketing agreement is submitted to the market administrator; and

(3) If a system fails to qualify under the requirements of this paragraph (e), the handler responsible for qualifying the system shall notify the market administrator which plant or plants will be deleted from the system so that the remaining plants may be pooled as a system. If the handler fails to do so, the market administrator shall exclude one or more plants, beginning at the bottom of the list of plants in the system and continuing up the list as necessary until the deliveries are sufficient to qualify the remaining plants in the system.

(f) Any distributing plant, located within the marketing area as described in § 1051.2:

(1) From which there is route disposition and/or transfers of packaged fluid milk products in any non-federally regulated marketing area(s) located within one or more States that require handlers to pay minimum prices for raw milk, provided that 25 percent or more of the total quantity of fluid milk products physically received at such plant (excluding concentrated milk received from another plant by agreement for other than Class I use) is disposed of as route disposition and/or is transferred in the form of packaged fluid milk products to other plants. At least 25 percent of such route disposition and/or transfers, in aggregate, are in any non-federally regulated marketing area(s) located within one or more States that require handlers to pay minimum prices for raw milk. Subject to the following exclusions:

(i) The plant is described in paragraph (a), (b), or (e) of this section;

(ii) The plant is subject to the pricing provisions of a State-operated milk pricing plan which provides for the payment of minimum class prices for raw milk;

(iii) The plant is described in § 1000.8(a) or (e); or

(iv) A producer-handler described in § 1051.10 with less than three million pounds during the month of route disposition and/or transfers of packaged fluid milk products to other plants.

(2) [Reserved]

(g) The applicable shipping percentages of paragraphs (c) and (e) of this section and § 1051.13(d)(2) and (3) may be increased or decreased, for all or part of the marketing area, by the market administrator if the market administrator finds that such adjustment is necessary to encourage needed shipments or to prevent uneconomic shipments. Before making such a finding, the market administrator shall investigate the need for adjustment either on the market administrator's own initiative or at the request of interested parties if the request is made in writing at least 15 days prior to the month for which the requested revision is desired effective. If the investigation shows that an adjustment of the shipping percentages might be appropriate, the market administrator shall issue a notice stating that an adjustment is being considered and invite data, views, and arguments. Any decision to revise an applicable shipping or diversion percentage must be issued in writing at least one day before the effective date.

(h) The term pool plant shall not apply to the following plants:

(1) A producer-handler as defined under any Federal order;

(2) An exempt plant as defined in § 1000.8(e);

(3) A plant located within the marketing area and qualified pursuant to paragraph (a) of this section which meets the pooling requirements of another Federal order, and from which more than 50 percent of its route disposition has been in the other Federal order marketing area for 3 consecutive months;

(4) A plant located outside any Federal order marketing area and qualified pursuant to paragraph (a) of this section that meets the pooling requirements of another Federal order and has had greater route disposition in such other Federal order's marketing area for 3 consecutive months;

(5) A plant located in another Federal order marketing area and qualified pursuant to paragraph (a) of this section that meets the pooling requirements of such other Federal order and does not have a majority of its route disposition in this marketing area for 3 consecutive months, or if the plant is required to be regulated under such other Federal order without regard to its route disposition in any other Federal order marketing area;

(6) A plant qualified pursuant to paragraph (c) of this section which also meets the pooling requirements of another Federal order and from which greater qualifying shipments are made to plants regulated under the other Federal order than are made to plants regulated under the order in this part, or the plant has automatic pooling status under the other Federal order; and

(7) That portion of a regulated plant designated as a nonpool plant that is physically separate and operated separately from the pool portion of such plant. The designation of a portion of a regulated plant as a nonpool plant must be requested in advance and in writing by the handler and must be approved by the market administrator.

(i) Any plant that qualifies as a pool plant in each of the immediately preceding 3 months pursuant to paragraph (a) of this section or the shipping percentages in paragraph (c) of this section that is unable to meet such performance standards for the current month because of unavoidable circumstances determined by the market administrator to be beyond the control of the handler operating the plant, such as a natural disaster (ice storm, wind storm, flood, fire, earthquake, breakdown of equipment, or work stoppage, shall be considered to have met the minimum performance standards during the period of such unavoidable circumstances, but such relief shall not be granted for more than 2 consecutive months.

§ 1051.8 Nonpool plant.

See § 1000.8.

§ 1051.9 Handler.

See § 1000.9.

§ 1051.10 Producer-handler.

Producer-handler means a person who operates a dairy farm and a distributing plant from which there is route disposition in the marketing area, from which total route disposition and packaged sales of fluid milk products to other plants during the month does not exceed 3 million pounds, and who the market administrator has designated a producer-handler after determining that all of the requirements of this section have been met.

(a) Requirements for designation. Designation of any person as a producer-handler by the market administrator shall be contingent upon meeting the conditions set forth in paragraphs (a)(1) through (5) of this section. Following the cancellation of a previous producer-handler designation, a person seeking to have their producer-handler designation reinstated must demonstrate that these conditions have been met for the preceding month:

(1) The care and management of the dairy animals and the other resources and facilities designated in paragraph (b)(1) of this section necessary to produce all Class I milk handled (excluding receipts from handlers fully regulated under any Federal order) are under the complete and exclusive control, ownership, and management of the producer-handler and are operated as the producer-handler's own enterprise and at its sole risk.

(2) The plant operation designated in paragraph (b)(2) of this section at which the producer-handler processes and packages, and from which it distributes, its own milk production is under the complete and exclusive control, ownership, and management of the producer-handler and is operated as the producer-handler's own enterprise and at its sole risk.

(3) The producer-handler neither receives at its designated milk production resources and facilities nor receives, handles, processes, or distributes at or through any of its designated milk handling, processing, or distributing resources and facilities other source milk products for reconstitution into fluid milk products or fluid milk products derived from any source other than:

(i) Its designated milk production resources and facilities (own farm production);

(ii) Pool handlers and plants regulated under any Federal order within the limitation specified in paragraph (c)(2) of this section; or

(iii) Nonfat milk solids which are used to fortify fluid milk products.

(4) The producer-handler is neither directly nor indirectly associated with the business control or management of, nor has a financial interest in, another handler's operation; nor is any other handler so associated with the producer-handler's operation.

(5) No milk produced by the herd(s) or on the farm(s) that supplies milk to the producer-handler's plant operation is:

(i) Subject to inclusion and participation in a marketwide equalization pool under a milk classification and pricing program under the authority of a State government maintaining marketwide pooling of returns; or

(ii) Marketed in any part as Class I milk to the non-pool distributing plant of any other handler.

(b) Designation of resources and facilities. Designation of a person as a producer-handler shall include the determination of what shall constitute milk production, handling, processing, and distribution resources and facilities, all of which shall be considered an integrated operation, under the sole and exclusive ownership of the producer-handler.

(1) Milk production resources and facilities shall include all resources and facilities (milking herd(s), buildings housing such herd(s), and the land on which such buildings are located) used for the production of milk which are solely owned, operated, and which the producer-handler has designated as a source of milk supply for the producer-handler's plant operation. However, for purposes of this paragraph (b)(1), any such milk production resources and facilities which do not constitute an actual or potential source of milk supply for the producer-handler's operation shall not be considered a part of the producer-handler's milk production resources and facilities.

(2) Milk handling, processing, and distribution resources and facilities shall include all resources and facilities (including store outlets) used for handling, processing, and distributing fluid milk products which are solely owned by, and directly operated or controlled by the producer-handler or in which the producer-handler in any way has an interest, including any contractual arrangement, or over which the producer-handler directly or indirectly exercises any degree of management control.

(3) All designations shall remain in effect until canceled pursuant to paragraph (c) of this section.

(c) Cancellation. The designation as a producer-handler shall be canceled upon determination by the market administrator that any of the requirements of paragraphs (a)(1) through (5) of this section are not continuing to be met, or under any of the conditions described in paragraph (c)(1), (2), or (3) of this section. Cancellation of a producer-handler's status pursuant to this paragraph (c) shall be effective on the first day of the month following the month in which the requirements were not met or the conditions for cancellation occurred.

(1) Milk from the milk production resources and facilities of the producer-handler, designated in paragraph (b)(1) of this section, is delivered in the name of another person as producer milk to another handler.

(2) The producer-handler handles fluid milk products derived from sources other than the milk production facilities and resources designated in paragraph (b)(1) of this section, except that it may receive at its plant, or acquire for route disposition, fluid milk products from fully regulated plants and handlers under any Federal order if such receipts do not exceed 150,000 pounds monthly. This limitation shall not apply if the producer-handler's own-farm production is less than 150,000 pounds during the month.

(3) Milk from the milk production resources and facilities of the producer-handler is subject to inclusion and participation in a marketwide equalization pool under a milk classification and pricing plan operating under the authority of a State government.

(d) Public announcement. The market administrator shall publicly announce:

(1) The name, plant location(s), and farm location(s) of persons designated as producer-handlers;

(2) The names of those persons whose designations have been cancelled; and

(3) The effective dates of producer-handler status or loss of producer-handler status for each. Such announcements shall be controlling with respect to the accounting at plants of other handlers for fluid milk products received from any producer-handler.

(e) Burden of establishing and maintaining producer-handler status. The burden rests upon the handler who is designated as a producer-handler to establish through records required pursuant to § 1000.27 that the requirements set forth in paragraph (a) of this section have been and are continuing to be met, and that the conditions set forth in paragraph (c) of this section for cancellation of the designation do not exist.

(f) Payments subject to Order 1131. Any producer-handler with Class I route dispositions and/or transfers of packaged fluid milk products in the marketing area described in § 1131.2 of this chapter shall be subject to payments into the Order 1131 producer settlement fund on such dispositions pursuant to § 1000.76(a) and payments into the Order 1131 administrative fund, provided such dispositions are less than three million pounds in the current month and such producer-handler had total Class I route dispositions and/or transfers of packaged fluid milk products from own farm production of three million pounds or more the previous month. If the producer-handler has Class I route dispositions and/or transfers of packaged fluid milk products into the marketing area described in § 1131.2 of this chapter of three million pounds or more during the current month, such producer-handler shall be subject to the provisions described in § 1131.7 of this chapter or § 1000.76(a).

§ 1051.11 California quota program.

California Quota Program means the applicable provisions of the California Food and Agriculture Code, and related provisions of the pooling plan administered by the California Department of Food and Agriculture (CDFA).

§ 1051.12 Producer.

(a) Except as provided in paragraph (b) of this section, producer means any person who produces milk approved by a duly constituted regulatory agency for fluid consumption as Grade A milk and whose milk is:

(1) Received at a pool plant directly from the producer or diverted by the plant operator in accordance with § 1051.13; or

(2) Received by a handler described in § 1000.9(c).

(b) Producer shall not include:

(1) A producer-handler as defined in any Federal order;

(2) A dairy farmer whose milk is received at an exempt plant, excluding producer milk diverted to the exempt plant pursuant to § 1051.13(d);

(3) A dairy farmer whose milk is received by diversion at a pool plant from a handler regulated under another Federal order if the other Federal order designates the dairy farmer as a producer under that order and that milk is allocated by request to a utilization other than Class I; and

(4) A dairy farmer whose milk is reported as diverted to a plant fully regulated under another Federal order with respect to that portion of the milk so diverted that is assigned to Class I under the provisions of such other order.

§ 1051.13 Producer milk.

Except as provided for in paragraph (e) of this section, producer milk means the skim milk (or the skim equivalent of components of skim milk), including nonfat components, and butterfat in milk of a producer that is:

(a) Received by the operator of a pool plant directly from a producer or a handler described in § 1000.9(c). All milk received pursuant to this paragraph (a) shall be priced at the location of the plant where it is first physically received;

(b) Received by a handler described in § 1000.9(c) in excess of the quantity delivered to pool plants;

(c) Diverted by a pool plant operator to another pool plant. Milk so diverted shall be priced at the location of the plant to which diverted; or

(d) Diverted by the operator of a pool plant or a cooperative association described in § 1000.9(c) to a nonpool plant located in the States of California, Arizona, Nevada, or Oregon, subject to the following conditions:

(1) Milk of a dairy farmer shall not be eligible for diversion unless at least one day's production of such dairy farmer is physically received as producer milk at a pool plant during the first month the dairy farmer is a producer. If a dairy farmer loses producer status under the order in this part (except as a result of a temporary loss of Grade A approval or as a result of the handler of the dairy farmer's milk failing to pool the milk under any order), the dairy farmer's milk shall not be eligible for diversion unless at least one day's production of the dairy farmer has been physically received as producer milk at a pool plant during the first month the dairy farmer is re-associated with the market;

(2) The quantity of milk diverted by a handler described in § 1000.9(c) may not exceed 90 percent of the producer milk receipts reported by the handler pursuant to § 1051.30(c) provided that not less than 10 percent of such receipts are delivered to plants described in § 1051.7(c)(1)(i) through (iii). These percentages are subject to any adjustments that may be made pursuant to § 1051.7(g); and

(3) The quantity of milk diverted to nonpool plants by the operator of a pool plant described in § 1051.7(a), (b) or (d) may not exceed 90 percent of the Grade A milk received from dairy farmers (except dairy farmers described in § 1051.12(b)) including milk diverted pursuant to this section. These percentages are subject to any adjustments that may be made pursuant to § 1051.7(g).

(4) Diverted milk shall be priced at the location of the plant to which diverted.

(e) Producer milk shall not include milk of a producer that is subject to inclusion and participation in a marketwide equalization pool under a milk classification and pricing program imposed under the authority of a State government maintaining marketwide pooling of returns.

(f) The quantity of milk reported by a handler pursuant to either § 1051.30(a)(1) or (c)(1) for April through February may not exceed 125 percent, and for March may not exceed 135 percent, of the producer milk receipts pooled by the handler during the prior month. Milk diverted to nonpool plants reported in excess of this limit shall be removed from the pool. Milk in excess of this limit received at pool plants, other than pool distributing plants, shall be classified pursuant to § 1000.44(a)(3)(v) and (b). The handler must designate, by producer pick-up, which milk is to be removed from the pool. If the handler fails to provide this information, the market administrator will make the determination. The following provisions apply:

(1) Milk shipped to and physically received at pool distributing plants in excess of the previous month's pooled volume shall not be subject to the 125 or 135 percent limitation;

(2) Producer milk qualified pursuant to § _____.13 of any other Federal Order and continuously pooled in any Federal Order for the previous six months shall not be included in the computation of the 125 or 135 percent limitation;

(3) The market administrator may waive the 125 or 135 percent limitation:

(i) For a new handler on the order, subject to the provisions of paragraph (f)(4) of this section; or

(ii) For an existing handler with significantly changed milk supply conditions due to unusual circumstances; and

(4) A bloc of milk may be considered ineligible for pooling if the market administrator determines that handlers altered the reporting of such milk for the purpose of evading the provisions of this paragraph (f).

§ 1051.14 Other source milk.

See § 1000.14.

§ 1051.15 Fluid milk product.

See § 1000.15.

§ 1051.16 Fluid cream product.

See § 1000.16.

§ 1051.17 [Reserved]
§ 1051.18 Cooperative association.

See § 1000.18.

§ 1051.19 Commercial food processing establishment.

See § 1000.19.

Market Administrator, Continuing Obligations, and Handler Responsibilities
§ 1051.25 Market administrator.

See § 1000.25.

§ 1051.26 Continuity and separability of provisions.

See § 1000.26.

§ 1051.27 Handler responsibility for records and facilities.

See § 1000.27.

§ 1051.28 Termination of obligations.

See § 1000.28.

Handler Reports
§ 1051.30 Reports of receipts and utilization.

Each handler shall report monthly so that the market administrator's office receives the report on or before the 9th day after the end of the month, in the detail and on the prescribed forms, as follows:

(a) Each handler that operates a pool plant shall report for each of its operations the following information:

(1) Product pounds, pounds of butterfat, pounds of protein, and pounds of solids-not-fat other than protein (other solids) contained in or represented by:

(i) Receipts of producer milk, including producer milk diverted by the reporting handler, from sources other than handlers described in § 1000.9(c); and

(ii) Receipts of milk from handlers described in § 1000.9(c);

(2) Product pounds and pounds of butterfat contained in:

(i) Receipts of fluid milk products and bulk fluid cream products from other pool plants;

(ii) Receipts of other source milk; and

(iii) Inventories at the beginning and end of the month of fluid milk products and bulk fluid cream products;

(3) The utilization or disposition of all milk and milk products required to be reported pursuant to this paragraph (a); and

(4) Such other information with respect to the receipts and utilization of skim milk, butterfat, milk protein, and other nonfat solids as the market administrator may prescribe.

(b) Each handler operating a partially regulated distributing plant shall report with respect to such plant in the same manner as prescribed for reports required by paragraph (a) of this section. Receipts of milk that would have been producer milk if the plant had been fully regulated shall be reported in lieu of producer milk. The report shall show also the quantity of any reconstituted skim milk in route disposition in the marketing area.

(c) Each handler described in § 1000.9(c) shall report:

(1) The product pounds, pounds of butterfat, pounds of protein, pounds of solids-not-fat other than protein (other solids) contained in receipts of milk from producers; and

(2) The utilization or disposition of such receipts.

(d) Each handler not specified in paragraphs (a) through (c) of this section shall report with respect to its receipts and utilization of milk and milk products in such manner as the market administrator may prescribe.

§ 1051.31 Payroll reports.

(a) On or before the 20th day after the end of each month, each handler that operates a pool plant pursuant to § 1051.7 and each handler described in § 1000.9(c) shall report to the market administrator its producer payroll for the month, in the detail prescribed by the market administrator, showing for each producer the information described in § 1051.73(f).

(b) Each handler operating a partially regulated distributing plant who elects to make payment pursuant to § 1000.76(b) shall report for each dairy farmer who would have been a producer if the plant had been fully regulated in the same manner as prescribed for reports required by paragraph (a) of this section.

§ 1051.32 Other reports.

In addition to the reports required pursuant to §§ 1051.30 and 1051.31, each handler shall report any information the market administrator deems necessary to verify or establish each handler's obligation under the order.

Subpart B—Milk Pricing Classification of Milk
§ 1051.40 Classes of utilization.

See § 1000.40.

§ 1051.41 [Reserved]
§ 1051.42 Classification of transfers and diversions.

See § 1000.42.

§ 1051.43 General classification rules.

See § 1000.43.

§ 1051.44 Classification of producer milk.

See § 1000.44.

§ 1051.45 Market administrator's reports and announcements concerning classification.

See § 1000.45.

Class Prices
§ 1051.50 Class prices, component prices, and advanced pricing factors.

See § 1000.50.

§ 1051.51 Class I differential and price.

The Class I differential shall be the differential established for Los Angeles County, California, which is reported in § 1000.52. The Class I price shall be the price computed pursuant to § 1000.50(a) for Los Angeles County, California.

§ 1051.52 Adjusted Class I differentials.

See § 1000.52.

§ 1051.53 Announcement of class prices, component prices, and advanced pricing factors.

See § 1000.53.

§ 1051.54 Equivalent price.

See § 1000.54.

Producer Price Differential
§ 1051.60 Handler's value of milk.

For the purpose of computing a handler's obligation for producer milk, the market administrator shall determine for each month the value of milk of each handler with respect to each of the handler's pool plants and of each handler described in § 1000.9(c) with respect to milk that was not received at a pool plant by adding the amounts computed in paragraphs (a) through (h) of this section and subtracting from that total amount the values computed in paragraphs (i) and (j) of this section. Unless otherwise specified, the skim milk, butterfat, and the combined pounds of skim milk and butterfat referred to in this section shall result from the steps set forth in § 1000.44(a), (b), and (c), respectively, and the nonfat components of producer milk in each class shall be based upon the proportion of such components in producer skim milk. Receipts of nonfluid milk products that are distributed as labeled reconstituted milk for which payments are made to the producer-settlement fund of another Federal order under § 1000.76(a)(4) or (d) shall be excluded from pricing under this section.

(a) Class I value. (1) Multiply the hundredweight of skim milk in Class I by the Class I skim milk price; and

(2) Add an amount obtained by multiplying the pounds of butterfat in Class I by the Class I butterfat price; and

(b) Class II value. (1) Multiply the pounds of nonfat solids in Class II skim milk by the Class II nonfat solids price; and

(2) Add an amount obtained by multiplying the pounds of butterfat in Class II times the Class II butterfat price.

(c) Class III value. (1) Multiply the pounds of protein in Class III skim milk by the protein price;

(2) Add an amount obtained by multiplying the pounds of other solids in Class III skim milk by the other solids price; and

(3) Add an amount obtained by multiplying the pounds of butterfat in Class III by the butterfat price.

(d) Class IV value. (1) Multiply the pounds of nonfat solids in Class IV skim milk by the nonfat solids price; and

(2) Add an amount obtained by multiplying the pounds of butterfat in Class IV by the butterfat price.

(e) Classification of overage. Multiply the pounds of skim milk and butterfat overage assigned to each class pursuant to § 1000.44(a)(11) and the corresponding step of § 1000.44(b) by the skim milk prices and butterfat prices applicable to each class.

(f) Reclassification of inventory. Multiply the difference between the current month's Class I, II, or III price, as the case may be, and the Class IV price for the preceding month and by the hundredweight of skim milk and butterfat subtracted from Class I, II, or III, respectively, pursuant to § 1000.44(a)(7) and the corresponding step of § 1000.44(b).

(g) Class I calculation applicable to unregulated milk. Multiply the difference between the Class I price applicable at the location of the pool plant and the Class IV price by the hundredweight of skim milk and butterfat assigned to Class I pursuant to § 1000.43(d) and the hundredweight of skim milk and butterfat subtracted from Class I pursuant to § 1000.44(a)(3)(i) through (vi) and the corresponding step of § 1000.44(b), excluding receipts of bulk fluid cream products from plants regulated under other Federal orders and bulk concentrated fluid milk products from pool plants, plants regulated under other Federal orders, and unregulated supply plants.

(h) Class I calculation applicable to unregulated supply plant milk. Multiply the difference between the Class I price applicable at the location of the nearest unregulated supply plants from which an equivalent volume was received and the Class III price by the pounds of skim milk and butterfat in receipts of concentrated fluid milk products assigned to Class I pursuant to §§ 1000.43(d) and 1000.44(a)(3)(i) and the corresponding step of § 1000.44(b) and the pounds of skim milk and butterfat subtracted from Class I pursuant to § 1000.44(a)(8) and the corresponding step of § 1000.44(b), excluding such skim milk and butterfat in receipts of fluid milk products from an unregulated supply plant to the extent that an equivalent amount of skim milk or butterfat disposed of to such plant by handlers fully regulated under any Federal milk order is classified and priced as Class I milk and is not used as an offset for any other payment obligation under any order.

(i) Calculation of nonfluid milk receipts for reconstitution. For reconstituted milk made from receipts of nonfluid milk products, multiply $1.00 (but not more than the difference between the Class I price applicable at the location of the pool plant and the Class IV price) by the hundredweight of skim milk and butterfat contained in receipts of nonfluid milk products that are allocated to Class I use pursuant to § 1000.43(d).

§ 1051.61 Computation of producer price differential.

For each month the market administrator shall compute a producer price differential per hundredweight. The report of any handler who has not made payments required pursuant to § 1051.71 for the preceding month shall not be included in the computation of the producer price differential, and such handler's report shall not be included in the computation for succeeding months until the handler has made full payment of outstanding monthly obligations. Subject to the conditions of this introductory text, the market administrator shall compute the producer price differential in the following manner:

(a) Combine into one total the values computed pursuant to § 1051.60 for all handlers required to file reports prescribed in § 1051.30;

(b) Subtract the total values obtained by multiplying each handler's total pounds of protein, other solids, and butterfat contained in the milk for which an obligation was computed pursuant to § 1051.60 by the protein price, other solids price, and the butterfat price, respectively;

(c) Add an amount equal to the minus location adjustments and subtract an amount equal to the plus location adjustments computed pursuant to § 1051.75;

(d) Add an amount equal to not less than one-half of the unobligated balance in the producer-settlement fund;

(e) Divide the resulting amount by the sum of the following for all handlers included in these computations:

(1) The total hundredweight of producer milk; and

(2) The total hundredweight for which a value is computed pursuant to § 1051.60(i); and

(f) Subtract not less than 4 cents nor more than 5 cents from the price computed pursuant to paragraph (e) of this section. The result shall be known as the producer price differential for the month.

§ 1051.62 Announcement of producer prices.

On or before the 14th day after the end of each month, the market administrator shall announce publicly the following prices and information:

(a) The producer price differential;

(b) The protein price;

(c) The nonfat solids price;

(d) The other solids price;

(e) The butterfat price;

(f) The average butterfat, nonfat solids, protein and other solids content of producer milk; and

(g) The statistical uniform price for milk containing 3.5 percent butterfat, computed by combining the Class III price and the producer price differential.

Subpart C—Payments for Milk Producer Payments
§ 1051.70 Producer-settlement fund.

See § 1000.70.

§ 1051.71 Payments to the producer-settlement fund.

Each handler shall make payment to the producer-settlement fund in a manner that provides receipt of the funds by the market administrator no later than the 16th day after the end of the month (except as provided in § 1000.90). Payment shall be the amount, if any, by which the amount specified in paragraph (a) of this section exceeds the amount specified in paragraph (b) of this section:

(a) The total value of milk to the handler for the month as determined pursuant to § 1051.60.

(b) The sum of:

(1) An amount obtained by multiplying the total hundredweight of producer milk as determined pursuant to § 1000.44(c) by the producer price differential as adjusted pursuant to § 1051.75;

(2) An amount obtained by multiplying the total pounds of protein, other solids, and butterfat contained in producer milk by the protein, other solids, and butterfat prices respectively; and

(3) An amount obtained by multiplying the pounds of skim milk and butterfat for which a value was computed pursuant to § 1051.60(i) by the producer price differential as adjusted pursuant to § 1051.75 for the location of the plant from which received.

§ 1051.72 Payments from the producer-settlement fund.

No later than the 18th day after the end of each month (except as provided in § 1000.90), the market administrator shall pay to each handler the amount, if any, by which the amount computed pursuant to § 1051.71(b) exceeds the amount computed pursuant to § 1051.71(a). If, at such time, the balance in the producer-settlement fund is insufficient to make all payments pursuant to this section, the market administrator shall reduce uniformly such payments and shall complete the payments as soon as the funds are available.

§ 1051.73 Payments to producers and to cooperative associations.

(a) Handler payment responsibility. Each handler shall pay each producer for producer milk for which payment is not made to a cooperative association pursuant to paragraph (b) of this section, as follows:

(1) Partial payment. For each producer who has not discontinued shipments as of the date of this partial payment, payment shall be made so that it is received by each producer on or before the last day of the month (except as provided in § 1000.90) for milk received during the first 15 days of the month from the producer at not less than the lowest announced class price for the preceding month, less proper deductions authorized in writing by the producer.

(2) Final payment. For milk received during the month, payment shall be made so that it is received by each producer no later than the 19th day after the end of the month (except as provided in § 1000.90) in an amount not less than the sum of:

(i) The hundredweight of producer milk received times the producer price differential for the month as adjusted pursuant to § 1051.75;

(ii) The pounds of butterfat received times the butterfat price for the month;

(iii) The pounds of protein received times the protein price for the month;

(iv) The pounds of other solids received times the other solids price for the month;

(v) Less any payment made pursuant to paragraph (a)(1) of this section;

(vi) Less proper deductions authorized in writing by such producer, and plus or minus adjustments for errors in previous payments to such producer subject to approval by the market administrator;

(vii) Less deductions for marketing services pursuant to § 1000.86; and

(viii) Less deductions authorized by CDFA for the California Quota Program pursuant to § 1051.11.

(b) Payments for milk received from cooperative association members. On or before the day prior to the dates specified in paragraphs (a)(1) and (2) of this section (except as provided in § 1000.90), each handler shall pay to a cooperative association for milk from producers who market their milk through the cooperative association and who have authorized the cooperative to collect such payments on their behalf an amount equal to the sum of the individual payments otherwise payable for such producer milk pursuant to paragraphs (a)(1) and (2) of this section.

(c) Payment for milk received from cooperative association pool plants or from cooperatives as handlers pursuant to § 1000.9(c). On or before the day prior to the dates specified in paragraphs (a)(1) and (2) of this section (except as provided in § 1000.90), each handler who receives fluid milk products at its plant from a cooperative association in its capacity as the operator of a pool plant or who receives milk from a cooperative association in its capacity as a handler pursuant to § 1000.9(c), including the milk of producers who are not members of such association and who the market administrator determines have authorized the cooperative association to collect payment for their milk, shall pay the cooperative for such milk as follows:

(1) For bulk fluid milk products and bulk fluid cream products received from a cooperative association in its capacity as the operator of a pool plant and for milk received from a cooperative association in its capacity as a handler pursuant to § 1000.9(c) during the first 15 days of the month, at not less than the lowest announced class prices per hundredweight for the preceding month;

(2) For the total quantity of bulk fluid milk products and bulk fluid cream products received from a cooperative association in its capacity as the operator of a pool plant, at not less than the total value of such products received from the association's pool plants, as determined by multiplying the respective quantities assigned to each class under § 1000.44, as follows:

(i) The hundredweight of Class I skim milk times the Class I skim milk price for the month plus the pounds of Class I butterfat times the Class I butterfat price for the month. The Class I price to be used shall be that price effective at the location of the receiving plant;

(ii) The pounds of nonfat solids in Class II skim milk by the Class II nonfat solids price;

(iii) The pounds of butterfat in Class II times the Class II butterfat price;

(iv) The pounds of nonfat solids in Class IV times the nonfat solids price;

(v) The pounds of butterfat in Class III and Class IV milk times the butterfat price;

(vi) The pounds of protein in Class III milk times the protein price;

(vii) The pounds of other solids in Class III milk times the other solids price; and

(viii) Add together the amounts computed in paragraphs (c)(2)(i) through (vii) of this section and from that sum deduct any payment made pursuant to paragraph (c)(1) of this section; and

(3) For the total quantity of milk received during the month from a cooperative association in its capacity as a handler under § 1000.9(c) as follows:

(i) The hundredweight of producer milk received times the producer price differential as adjusted pursuant to § 1051.75;

(ii) The pounds of butterfat received times the butterfat price for the month;

(iii) The pounds of protein received times the protein price for the month;

(iv) The pounds of other solids received times the other solids price for the month; and

(v) Add together the amounts computed in paragraphs (c)(3)(i) through (v) of this section and from that sum deduct any payment made pursuant to paragraph (c)(1) of this section.

(d) Handler underpayment proration. If a handler has not received full payment from the market administrator pursuant to § 1051.72 by the payment date specified in paragraph (a), (b), or (c) of this section, the handler may reduce pro rata its payments to producers or to the cooperative association (with respect to receipts described in paragraph (b) of this section, prorating the underpayment to the volume of milk received from the cooperative association in proportion to the total milk received from producers by the handler), but not by more than the amount of the underpayment. The payments shall be completed on the next scheduled payment date after receipt of the balance due from the market administrator.

(e) Payments to missing or deceased producers. If a handler claims that a required payment to a producer cannot be made because the producer is deceased or cannot be located, or because the cooperative association or its lawful successor or assignee is no longer in existence, the payment shall be made to the producer-settlement fund, and in the event that the handler subsequently locates and pays the producer or a lawful claimant, or in the event that the handler no longer exists and a lawful claim is later established, the market administrator shall make the required payment from the producer-settlement fund to the handler or to the lawful claimant, as the case may be.

(f) Producer payment record. In making payments to producers pursuant to this section, each handler shall furnish each producer, except a producer whose milk was received from a cooperative association handler described in § 1000.9(a) or (c), a supporting statement in a form that may be retained by the recipient which shall show:

(1) The name, address, Grade A identifier assigned by a duly constituted regulatory agency, and payroll number of the producer;

(2) The daily and total pounds, and the month and dates such milk was received from that producer;

(3) The total pounds of butterfat, protein, and other solids contained in the producer's milk;

(4) The minimum rate or rates at which payment to the producer is required pursuant to the order in this part;

(5) The rate used in making payment if the rate is other than the applicable minimum rate;

(6) The amount, or rate per hundredweight, or rate per pound of component, and the nature of each deduction claimed by the handler; and

(7) The net amount of payment to the producer or cooperative association.

§ 1051.74 [Reserved]
§ 1051.75 Plant location adjustments for producer milk and nonpool milk.

For purposes of making payments for producer milk and nonpool milk, a plant location adjustment shall be determined by subtracting the Class I price specified in § 1051.51 from the Class I price at the plant's location. The difference, plus or minus as the case may be, shall be used to adjust the payments required pursuant to §§ 1051.73 and 1000.76.

§ 1051.76 Payments by a handler operating a partially regulated distributing plant.

See § 1000.76.

§ 1051.77 Adjustment of accounts.

See § 1000.77.

§ 1051.78 Charges on overdue accounts.

See § 1000.78.

Administrative Assessment and Marketing Service Deduction
§ 1051.85 Assessment for order administration.

On or before the payment receipt date specified under § 1051.71, each handler shall pay to the market administrator its pro rata share of the expense of administration of the order at a rate specified by the market administrator that is no more than 8 cents per hundredweight with respect to:

(a) Receipts of producer milk (including the handler's own production) other than such receipts by a handler described in § 1000.9(c) that were delivered to pool plants of other handlers;

(b) Receipts from a handler described in § 1000.9(c);

(c) Receipts of concentrated fluid milk products from unregulated supply plants and receipts of nonfluid milk products assigned to Class I use pursuant to § 1000.43(d) and other source milk allocated to Class I pursuant to § 1000.44(a)(3) and (8) and the corresponding steps of § 1000.44(b), except other source milk that is excluded from the computations pursuant to § 1051.60(h) and (i); and

(d) Route disposition in the marketing area from a partially regulated distributing plant that exceeds the skim milk and butterfat subtracted pursuant to § 1000.76(a)(1)(i) and (ii).

§ 1051.86 Deduction for marketing services.

See § 1000.86.

Subpart D—Miscellaneous Provisions
§ 1051.90 Dates.

See § 1000.90.

Dated: June 4, 2018. Bruce Summers, Administrator, Agricultural Marketing Service.
[FR Doc. 2018-12245 Filed 6-7-18; 8:45 am] BILLING CODE 3410-02-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0074; Product Identifier 2017-NM-148-AD; Amendment 39-19309; AD 2018-12-05] 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 all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. This AD was prompted by reports of cracks found in the rear spar web and lower chord on the left and right wings. This AD requires repetitive detailed inspections for cracking of the rear spar web and lower chord, and applicable on-condition actions. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective July 13, 2018.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of July 13, 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-2018-0074.

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-2018-0074; 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:

Payman Soltani, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5313; fax: 562-627-5210; email: [email protected].

SUPPLEMENTARY INFORMATION: Discussion

We issued a notice of proposed rulemaking (NPRM) to amend 14 CFR part 39 by adding an AD that would apply to all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes. The NPRM published in the Federal Register on February 9, 2018 (83 FR 5743). The NPRM was prompted by reports of cracks found in the rear spar web and lower chord on the left and right wings. The NPRM proposed to require repetitive detailed inspections for cracking of the rear spar web and lower chord, and applicable on-condition actions.

We are issuing this AD to address cracks in the rear spar of the left and right wing between wing buttock line (WBL) 91 and WBL 155, which could lead to the inability of a principal structural element to sustain required flight loads and 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.

Support for the NPRM

The Boeing Company stated its support for the NPRM.

Request To Require the Same Grace Period Regardless of Inspection Method

Southwest Airlines (Southwest), requested that we revise paragraph (h) of the proposed AD, which refers to the “Compliance” section of Boeing Alert Requirements Bulletin 737-57A1337 RB, dated September 14, 2017, regarding the different compliance times for the two inspection methods given in Table 1 of the “Compliance” section for Group 2 airplanes. Southwest stated that the planned inspection method should have no bearing on the timing of the inspection, and therefore the compliance times should be the same for both options. They did not specify which of the two compliance times they would favor.

We acknowledge the commenter's request. While the compliance times for inspections are not normally dependent on the planned inspection method, in this case, the initial compliance times were adjusted to account for differences in the probability of detection using a visual inspection versus an eddy current inspection. Because an eddy current inspection is more capable of detecting smaller cracks than a visual inspection, the initial compliance time was shortened for those airplanes that are inspected using the visual inspection option. We have not changed this AD in this regard.

Effect of Winglets on Accomplishment of the Proposed Actions

Aviation Partners Boeing stated that the installation of winglets using Supplemental Type Certificate (STC) ST01219SE does not affect the actions specified in the NPRM.

We agree 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 ST01219SE does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01219SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

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 737-57A1337 RB, dated September 14, 2017. This service information describes procedures for repetitive detailed or surface High Frequency Eddy Current (HFEC) inspections for cracking of the rear spar web and lower chord, and applicable on-condition actions. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Costs of Compliance

We estimate that this AD affects 160 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 Inspections Up to 22 work-hours × $85 per hour = up to $1,870 per inspection cycle $0 Up to $1,870 per inspection cycle Up to $299,200 per inspection cycle.

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): 2018-12-05 The Boeing Company: Amendment 39-19309; Docket No. FAA-2018-0074; Product Identifier 2017-NM-148-AD. (a) Effective Date

This AD is effective July 13, 2018.

(b) Affected ADs

None.

(c) Applicability

(1) This AD applies to all The Boeing Company Model 737-100, -200, -200C, -300, -400, and -500 series airplanes, certificated in any category.

(2) Installation of Supplemental Type Certificate (STC) ST01219SE (http://rgl.faa.gov/Regulatory_and_Guidance_Library/rgstc.nsf/0/ebd1cec7b301293e86257cb30045557a/$FILE/ST01219SE.pdf) does not affect the ability to accomplish the actions required by this AD. Therefore, for airplanes on which STC ST01219SE is installed, a “change in product” alternative method of compliance (AMOC) approval request is not necessary to comply with the requirements of 14 CFR 39.17.

(d) Subject

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

(e) Unsafe Condition

This AD was prompted by reports of cracks found in the rear spar web and lower chord on the left and right wings. We are issuing this AD to detect and correct cracks in the rear spar of the left and right wing between wing buttock line (WBL) 91 and WBL 155, which could lead to the inability of a principal structural element to sustain required flight loads and 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 for Group 1 Airplanes

For airplanes identified as Group 1 in Boeing Alert Requirements Bulletin 737-57A1337 RB, dated September 14, 2017: Within 120 days after the effective date of this AD, inspect the airplane and do all applicable corrective actions using a method approved in accordance with the procedures specified in paragraph (j) of this AD.

(h) Required Actions for Group 2 Airplanes

For airplanes identified as Group 2 in Boeing Alert Requirements Bulletin 737-57A1337 RB, dated September 14, 2017: Except as required by paragraph (i) of this AD, at the applicable times specified in the “Compliance” section of Boeing Alert Requirements Bulletin 737-57A1337 RB, dated September 14, 2017, do all applicable actions identified in, and in accordance with, the Accomplishment Instructions of Boeing Alert Requirements Bulletin 737-57A1337 RB, dated September 14, 2017.

Note 1 to paragraph (h) of this AD:

Guidance for accomplishing the actions required by this AD is included in Boeing Alert Service Bulletin 737-57A1337, dated September 14, 2017, which is referred to in Boeing Alert Requirements Bulletin 737-57A1337 RB, dated September 14, 2017.

(i) Exceptions to Service Information Specifications

(1) For purposes of determining compliance with the requirements of this AD: Where Boeing Alert Requirements Bulletin 737-57A1337 RB, dated September 14, 2017, uses the phrase “the original issue date of Requirements Bulletin 737-57A1337 RB,” this AD requires using “the effective date of this AD.”

(2) Where Boeing Alert Requirements Bulletin 737-57A1337 RB, dated September 14, 2017, specifies contacting Boeing, this AD requires repair using a method approved in accordance with the procedures specified in paragraph (j) of this AD.

(j) Alternative Methods of Compliance (AMOCs)

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

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

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

(k) Related Information

(1) For more information about this AD, contact Payman Soltani, Aerospace Engineer, Airframe Section, FAA, Los Angeles ACO Branch, 3960 Paramount Boulevard, Lakewood, CA 90712-4137; phone: 562-627-5313; fax: 562-627-5210; email: [email protected].

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

(l) 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 737-57A1337 RB, dated September 14, 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 31, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
[FR Doc. 2018-12279 Filed 6-7-18; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2017-1020; Product Identifier 2017-NM-114-AD; Amendment 39-19306; AD 2018-12-02] RIN 2120-AA64 Airworthiness Directives; Airbus Airplanes AGENCY:

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

ACTION:

Final rule.

SUMMARY:

We are adopting a new airworthiness directive (AD) for all Airbus Model A318-111 and -112 airplanes; Model A319-111, -112, -113, -114, and -115 airplanes; Model A320-211, -212, -214, and -216 airplanes; and Model A321-111, -112, -211, -212, and -213 airplanes. This AD was prompted by a review of maintenance instructions for a blend repair of the snout diameter of the main beam assembly of the forward engine mount that would create an excessive gap between the bearing mono-ball and the snout. This AD requires modifying the main beam assembly of the forward engine mount. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective July 13, 2018.

The Director of the Federal Register approved the incorporation by reference of certain publications listed in this AD as of July 13, 2018.

ADDRESSES:

For Airbus service information identified in this final rule, contact Airbus, Airworthiness Office-EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 44 51; email: [email protected]; internet: http://www.airbus.com. For Goodrich service information identified in this final rule, contact Goodrich Corporation, Aerostructures, 850 Lagoon Drive, Chula Vista, CA 91910-2098; phone: 619-691-2719; email: [email protected]; internet: http://www.goodrich.com/TechPubs. 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-2017-1020.

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-2017-1020; or in person at the Docket Management Facility between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this AD, the regulatory evaluation, any comments received, and other information. The street address for the Docket Office (telephone 800-647-5527) is Docket Management Facility, U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590.

FOR FURTHER INFORMATION CONTACT:

Sanjay Ralhan, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198-6547; telephone 425-227-1405; fax 425-227-1149.

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 all Airbus Model A318-111 and -112 airplanes; Model A319-111, -112, -113, -114, and -115 airplanes; Model A320-211, -212, -214, and -216 airplanes; and Model A321-111, -112, -211, -212, and -213 airplanes. The NPRM published in the Federal Register on October 24, 2017 (82 FR 49146) (“the NPRM”). The NPRM was prompted by a review of maintenance instructions for a blend repair of the snout diameter of the main beam assembly of the forward engine mount that would create an excessive gap between the bearing mono-ball and the snout. The NPRM proposed to require modifying the main beam assembly of the forward engine mount. We are issuing this AD to prevent in-flight failure of a forward engine mount, and consequent detachment of an engine, which could result in reduced controllability of the airplane.

The European Aviation Safety Agency (EASA), which is the Technical Agent for the Member States of the European Union, has issued EASA AD 2017-0132R1, dated November 22, 2017 (referred to after this as the Mandatory Continuing Airworthiness Information, or “the MCAI”), to correct an unsafe condition for all Airbus Model A318-111 and -112 airplanes; Model A319-111, -112, -113, -114, and -115 airplanes; Model A320-211, -212, -214, and -216 airplanes; and Model A321-111, -112, -211, -212, and -213 airplanes. The MCAI states:

A review of maintenance instructions revealed that the Goodrich Aerospace CFM56-5B, Forward Engine Mount Component Maintenance Manual (CMM) 71-21-08, revision (rev.) 1 up to 46 (inclusive), repair 10 (Blend Repair-Beam Assembly Snout Diameter), provides instructions to blend the wear on the forward engine mount assembly, Part Number (P/N) 642-2000-9, 642-2000-13, or 642-2000-25, creating an excessive gap between the bearing mono-ball and the snout of the forward engine mount main beam assembly, P/N 642-2006-501, or P/N 642-2006-503.

This condition, if not detected and corrected, could lead to in-flight failure of a forward engine mount and consequent detachment of an engine, possibly resulting in reduced control of the aeroplane and injury to persons on the ground.

To address this potential unsafe condition, Airbus issued Service Bulletin (SB) A320-71-1065 and SB A320-71-1066, and Goodrich Aerospace issued SB RA32071-159, providing instructions for an in-shop inspection(s) for the main beam snout and, depending on findings, applicable corrective action(s) and re-identification.

Consequently, EASA issued AD 2017-0132, requiring replacement of the affected forward engine mount main beam assemblies. As the same main beam assemblies are certified for CFM56-5A engine installation, that [EASA] AD also applied to aeroplanes with that engine.

Since that [EASA] AD was issued, it was determined that, for aeroplanes equipped with an affected forward engine mount main beam assembly, installation of an affected assembly can still be allowed until replacement, as required by this [EASA] AD.

For the reason described above, this [EASA] AD is revised accordingly.

Required actions include modifying the main beam assembly of the forward engine mount. The modification includes repairing, replacing, or reworking the main beam assembly. 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-2017-1020.

Comments

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

Support for the NPRM

The Air Line Pilots Association, International (ALPA) and Jake Watson stated their support for the proposed AD. American Airlines (AAL) stated that it has no objection to the intent of the NPRM.

Request To Use Revised Vendor Service Information

AAL stated that the proposed AD should require Goodrich Aerospace Service Bulletin RA32071-159, Rev 1, dated July 25, 2017 (“SB RA32071-159 Rev 1”), which corrects part number references, revises illustrations, and clarifies the procedure. Alternatively, AAL asserted that the proposed AD should allow the use of RA32071-159 Rev 1, or later revisions. AAL stated that Goodrich Aerospace Service Bulletin RA32071-159, dated November 20, 2016, is not useable due to multiple issues.

We do not agree to require RA32071-159 Rev 1. Goodrich Aerospace Service Bulletin RA32071-159 is referenced as an additional source of guidance in Airbus Service Bulletin A320-71-1065, Revision 01, dated July 28, 2017; and Airbus Service Bulletin A320-71-1066, dated December 1, 2016; for inspecting and corrective actions. We acknowledge that RA32071-159 Rev 1 contains several improvements. Therefore, we recommend operators incorporate the latest approved service information. However, in paragraphs (g)(2)(ii) and (h) of this AD, we refer to “Goodrich Aerospace Service Bulletin RA32071-159” and not to any specific revision. Therefore, we have not changed this AD in this regard.

Request To Exclude Certain Actions

AAL stated that Goodrich Aerospace Service Bulletin RA32071-159 requires operators to “fully disassemble the engine mount assembly”, which is not necessary for the dimensional inspection of the snout. AAL noted that, as long as the mount is not installed on the engine, the bearing assembly can be removed to expose the snout, clean, and measure the snout. AAL added that if an operator is forced to fully disassemble the mount, it will drive the mount to an overhaul, which is time consuming and costly.

We infer that the commenter is asking that we exclude full disassembly of the engine mount assembly from the inspection specified in paragraph (h) of the proposed AD. We do not agree. Neither Airbus nor the state of design authority, EASA, has informed the FAA that the snout diameter can be conclusively measured without full disassembly of the engine mount assembly. AAL did not provide any justification supported by approval from EASA; or Airbus's EASA Design Organization Approval (DOA) to allow deviation from the required for compliance section of the service information. However, under the provisions of paragraph (n) of this AD, we will consider requests for approval of an alternative method of compliance if sufficient data are submitted to substantiate that a deviation would provide an acceptable level of safety. We have made no change to this AD in this regard.

Request To Compel Goodrich Aerospace To Use “Required for Compliance (RC)” Language in Goodrich Aerospace Service Bulletin RA32071-159

AAL also asked that the FAA compel Goodrich Aerospace to incorporate FAA Advisory Circular 20-176A, dated June 16, 2014, into Goodrich Aerospace Service Bulletin RA32071-159 for the purpose of “. . . distinguishing which steps in an SB will have a direct effect on detecting, preventing, resolving, or eliminating the unsafe condition identified in an AD.” AAL asserted that Goodrich Aerospace has had 7 years to evaluate and incorporate the best practices for drafting service bulletins related to ADs.

We disagree with the commenter's request. FAA Advisory Circular 20-176A, dated June 16, 2014, provides best practices for drafting service bulletins related to ADs. Although we recommend that the original equipment manufacturer (OEM) specify “RC” steps in service information, the FAA advisory circular is not mandatory, only a recommendation as best practices. We have not changed this AD in this regard.

Request To Remove Revision Level for Vendor Service Information

Delta Airlines (Delta) asked that the proposed AD not specify a revision level for Goodrich Aerospace Service Bulletin RA32071-159. Delta added that, if one must be specified, all revisions published prior to the effective date of the AD should be acceptable methods of compliance.

We agree with the commenter's request that the revision level of Goodrich Aerospace Service Bulletin RA32071-159 not be specified. As previously explained, this AD does not specify a revision level for Goodrich Aerospace Service Bulletin RA32071-159. Therefore, no change to this AD is necessary in this regard.

Request To Specify Confirmation That a Certain Discrepant Repair Has Never Been Installed

Delta requested that paragraph (g)(1) of the proposed AD be revised to specify that maintenance records must confirm that Repair 10 of Component Maintenance Manual (CMM) 71-21-08, Revisions 1 through 46, has never been performed. Delta stated that, based on the NPRM and service information, it is clear that the discrepant repair is Repair 10 of CMM 71-21-08, Revisions 1 through 46. Delta added that paragraph (g)(1) of the proposed AD does not specify that maintenance records must show only that forward mount main beams have not been repaired per the discrepant Repair 10 of CMM 71-21-08, Revisions 1 through 46, which would classify them as affected main beams.

We disagree with the commenter's request; however, we provide the following clarification. The intent of paragraph (g)(1) of this AD is that if no maintenance record exists then there is a possibility that the main beam has been repaired using Repair 10 of CMM 71-21-08 Revisions 1 through 46, and, therefore, qualifies as an “affected main beam.” We have not changed this AD in this regard.

Request To Apply Exceptions to Parts Without Maintenance Records of Repair History

Delta asked that the exceptions in paragraphs (g)(2)(i) through (g)(2)(iii) of the proposed AD also apply to parts for which maintenance records are not available to confirm repair history. Delta stated that this will account for mounts that are not installed on-wing and future spare purchases. Delta added that paragraph (g)(2) of the proposed AD does not permit parts with unknown repair history to be excluded if the criteria in paragraphs (g)(2)(i) through (g)(2)(iii) of the proposed AD are met. Delta noted that paragraph (g)(1) of the proposed AD, parts with unknown repair history, are considered “affected main beams” and have the same compliance requirements as parts that have been repaired per discrepant Repair 10 of CMM 71-21-08, Revisions 1 through 46.

We do not agree with the commenter's request. Exceptions in paragraphs (g)(2)(i) through (g)(2)(iii) of this AD are based on the fact that maintenance records exist. Therefore, these exceptions do not apply to parts with unknown repair history in paragraph (g)(1) of this AD. We have not changed this AD in this regard.

Requests To Use Later Revisions of CMM Repairs

Delta and Lufthansa Technik (Lufthansa) asked that we allow use of later revisions of the CMM repairs in paragraphs (g)(2)(ii) and (h) of the proposed AD. Delta noted that paragraph (g)(2)(ii) doesn't specify that a repair per the corrected Repair 10 of CMM 71-21-08, Revision 47 (and later), or Repair 21 of CMM 71-21-06, Revision 59 (and later), excludes forward mount main beams from the effectivity. Delta added that the dimensional requirements of corrected Repair 10 and Repair 21 are equivalent to the requirements of Goodrich Aerospace Service Bulletin RA32071-159, and ensure that any main beams repaired will meet the intent of the proposed AD.

Delta stated that paragraph (h) of the proposed AD doesn't specify that a qualifying inspection can be done as specified in the instructions of the later revisions of CMMs 71-21-08 and 71-21-06 that introduced the corrected Repair 10 and Repair 21. Delta explained that CMM 71-21-08, Revision 48 (and later), and CMM 71-21-06, Revision 60 (and later), contain the correct snout diameters as specified in Repair 10 of CMM 71-21-08, Revision 47, and Repair 21 of CMM 71-21-06, Revision 59. Delta further noted that EASA AD 2017-0132R1, dated November 22, 2017, permits the use of later revisions of the CMMs with corrected Repairs 10 and 21.

We disagree with the commenters' requests. We cannot use the phrase, “or later approved revisions,” in an AD when referring to the service document because doing so violates Office of the Federal Register (OFR) regulations for approval of materials “incorporated by reference” in rules. In general terms, we are required by these OFR regulations to either publish the service document contents as part of the actual AD language; or submit the service document to the OFR for approval as “referenced” material, in which case we may only refer to such material in the text of an AD. The AD may refer to the service document only if the OFR approved it for “incorporation by reference.” To allow operators to use later revisions of the referenced document (issued after publication of the AD), either we must revise the AD to reference specific later revisions, or operators must request approval to use later revisions as an alternative method of compliance (AMOC) with this AD under the provisions of paragraph (n) of this AD. We have not changed this AD in this regard.

Request To Define Airplane Group

Delta asked that paragraph (i) of the proposed AD clarify that airplanes on which the main beams have never been replaced are considered Group 2 airplanes. Delta stated that paragraph (i) of the proposed AD doesn't specify that airplanes on which the main beams have never been replaced (and thus never repaired) since aircraft delivery should be considered Group 2 airplanes. Delta added that an airplane on which the forward mounts have never been replaced since aircraft delivery will not have the discrepant Repair 10 of CMM 71-21-08, Revisions 1 through 46.

We do not agree to revise paragraph (i) of this AD; however, we have clarified the airplane group as follows. Paragraph (i) of this AD specifies Group 2 airplanes are airplanes on which an affected main beam has not been installed as of the effective date of this AD. Therefore, airplanes with main beams that have never been replaced since aircraft delivery might be considered Group 2 airplanes, if the original main beam is not an affected main beam as defined in paragraph (g) of this AD. However, if for example, an airplane with main beams that have never been replaced does not have maintenance records to conclusively confirm the part has never been repaired, as specified in paragraph (g)(1) of this AD, then it is a Group 1 airplane. We have not changed this AD in this regard.

Request To Change “Modify” to “Inspect and Disposition”

Delta asked that the proposed AD use the language “inspect and disposition” instead of “modify” to describe the action required by paragraph (j) of the proposed AD. Additionally, Delta asked that the proposed AD specify that replacement of a forward mount assembly containing an affected main beam with a forward mount assembly that contains an AD-compliant main beam is an acceptable means of compliance. Delta stated that paragraph (j) of the proposed AD uses the term “modify” to describe compliance with the requirements of the inspection and repair of the mounts. Delta added that, based on the instructions in the service information, the intent of the work instructions is to inspect affected main beams and disposition based on inspection findings; the dispositions range from scrapping the main beam to blending, based on measured snout diameter. Delta noted that the replacement of a forward mount assembly that contains an affected main beam with a forward mount assembly with an AD-compliant main beam meets the intent of the proposed AD to remove affected main beams from service.

We partially agree. We do not agree to replace “modify” with “inspect and disposition,” because corrective action cannot be defined by the term “disposition,” which is open to interpretation. Operators must follow the instructions in the Airbus service information referenced in paragraph (j) of this AD for the applicable method of compliance. However, we acknowledge that, while the Accomplishment Instructions of Airbus Service Bulletin A320-71-1066, dated December 1, 2016, specify to do a “Modification of the FWD Engine Mount Assembly on Engine 1 and Engine 2,” the Accomplishment Instructions of Airbus Service Bulletin A320-71-1065, Revision 01, dated July 28, 2017, specify to do inspections and applicable corrective actions. Therefore, we have changed paragraph (j) of this AD to replace “modify” with “modify, including doing all applicable inspections and corrective actions.”

Request To Include Goodrich Aerospace Service Bulletin for the Required Modification

Lufthansa requested that we include Goodrich Aerospace Service Bulletin RA32071-159 in paragraph (j) of the proposed AD to “make it more clear.”

We do not agree. The commenter provided no explanation of what is unclear in paragraph (j) or how adding the Goodrich Aerospace service bulletin will clarify the requirements of paragraph (j). Therefore, we have not changed this AD in this regard.

Requests To Provide Credit for Previous Actions Done Using Other Service Information

Delta and Lufthansa asked that the proposed AD include credit for doing previous actions by accomplishing Goodrich Aerospace Service Bulletin RA32071-159; Repair 10 of CMM 71-21-08, Revision 47 (and later); or Repair 21 of CMM 71-21-06, Revision 59 (and later). Delta stated that paragraph (l) of the proposed AD includes credit for previous actions only for compliance with Airbus Service Bulletin A320-71-1065, Revision 01, dated July 28, 2017. Delta asserted that the intent of the proposed AD is met by the accomplishment of Goodrich Aerospace Service Bulletin RA32071-159; Repair 10 of CMM 71-21-08, Revision 47 (and later); or Repair 21 of CMM 71-21-06, Revision 59 (and later); due to the correction of the inspection and repair requirements.

We do not agree with the commenter's request. Goodrich Aerospace Service Bulletin RA32071-159 is referenced in the airplane level Airbus service information as a secondary document; therefore, it is not an alternate for the instructions in the airplane level service information. All of the steps in paragraph 3.C. of Airbus Service Bulletin A320-71-1065, Revision 01, dated July 28, 2017, are required for compliance and must be done to comply with this AD. If not done before the effective date of this AD, paragraph (f) of this AD states that you must comply with the actions in the AD, “unless already done.”

Regarding future revisions of CMM repairs, we may not refer to any document that does not yet exist. To allow operators to use later revisions of a required document (issued after publication of the AD), either we must revise the AD to reference specific later revisions, or operators must request approval to use later revisions as an alternative method of compliance with the requirements of an AD under the provisions of the AMOC paragraph of the AD. However, as explained previously, the identified CMM repairs are not required for accomplishment of any action in this AD; therefore, no change to this AD is necessary in this regard.

Request To Change Parts Installation Prohibition

Delta asked that paragraph (m) of the proposed AD, “Parts Installation Prohibition,” be changed to permit the same allowance to install an affected main beam onto an aircraft equipped with an affected forward engine mount assembly within the compliance windows defined in paragraph (j) of the proposed AD. Delta stated that paragraph (m) of the proposed AD prohibits the installation of an affected main beam on any airplane after the effective date of the AD. Delta further points out that the parallel EASA AD 2017-0132R1, dated November 22, 2017, permits the installation of an affected main beam onto an aircraft equipped with an affected forward engine mount assembly within the compliance times defined in paragraph (j) of the proposed AD.

We agree with the commenter's request. After the NPRM was issued, EASA issued AD 2017-0132R1, dated November 22, 2017, which revised its parts installation requirement. We have revised paragraph (m) of this AD to match the EASA AD. In addition, we have revised this AD to refer to EASA AD 2017-0132R1, dated November 22, 2017.

Conclusion

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

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

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

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

Related Service Information Under 1 CFR Part 51

Airbus has issued Service Bulletin A320-71-1065, Revision 01, dated July 28, 2017. This service information describes procedures for modifying the main beam assembly of the forward engine mount. The modification includes, among other things, repair or replacement of the main beam assembly.

Airbus has also issued Service Bulletin A320-71-1066, dated December 1, 2016. This service information describes procedures for modifying the main beam assembly of the forward engine mount. The modification includes, among other things, rework of the main beam assembly.

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 500 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 Modification Up to 76 work-hours × $85 per hour = $6,460 $778 Up to $7,238 Up to $3,619,000. 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): 2018-12-02 Airbus: Amendment 39-19306; Docket No. FAA-2017-1020; Product Identifier 2017-NM-114-AD. (a) Effective Date

This AD is effective July 13, 2018.

(b) Affected ADs

None.

(c) Applicability

This AD applies to all Airbus Model A318-111 and -112 airplanes; Model A319-111, -112, -113, -114, and -115 airplanes; Model A320-211, -212, -214, and -216 airplanes; and Model A321-111, -112, -211, -212, and -213 airplanes; certificated in any category.

(d) Subject

Air Transport Association (ATA) of America Code 71, Powerplant.

(e) Reason

This AD was prompted by a review of maintenance instructions for a blend repair of the diameter of the snout of the main beam assembly of the forward engine mount that would create an excessive gap between the bearing mono-ball and the snout. We are issuing this AD to prevent in-flight failure of a forward engine mount, and consequent detachment of an engine, which could result in reduced controllability of the airplane.

(f) Compliance

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

(g) Definition of Affected Parts

For the purposes of this AD: An “affected main beam” is any main beam assembly of the forward engine mount, part number (P/N) 642-2006-501 or P/N 642-2006-503, identified in paragraph (g)(1) or (g)(2) of this AD.

(1) Any part for which no maintenance records are available to confirm the part has never been repaired.

(2) Any part that was repaired as specified in Repair 10, of Goodrich Aerospace Component Maintenance Manual (CMM) 71-21-08, Revisions 1 through 46, except for parts identified in paragraphs (g)(2)(i), (g)(2)(ii), and (g)(2)(iii) of this AD.

(i) Any part on which a qualifying inspection identified in paragraph (h) of this AD has been done and there were no findings (the inspection was passed).

(ii) Any part on which a qualifying inspection identified in paragraph (h) of this AD has been done and that part has been repaired as specified in Goodrich Aerospace Service Bulletin RA32071-159.

(iii) Any part that has been repaired in accordance with other instructions 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).

(h) Definition of Qualifying Inspection

For the purposes of this AD: “A qualifying inspection” is an inspection done as specified in Goodrich Aerospace Service Bulletin RA32071-159; or for CFM56-5B engines, an inspection done as specified in Repair 10 of Goodrich Aerospace CMM 71-21-08, Revision 47; or for CFM56-5A engines, an inspection done as specified in Repair 21 of Goodrich Aerospace CMM 71-21-06, Revision 59.

(i) Definition of Airplane Groups

For the purposes of this AD: “Group 1 airplanes” are airplanes on which an affected main beam has been installed as of the effective date of this AD. “Group 2 airplanes” are airplanes on which an affected main beam has not been installed as of the effective date of this AD; this includes airplanes with an original certificate of airworthiness or original export certificate of airworthiness that was issued after the effective date of this AD.

(j) Modification of Affected Main Beam Assemblies

For Group 1 airplanes as identified in paragraph (i) of this AD: At the earliest of the compliance times specified in paragraphs (j)(1), (j)(2), and (j)(3) of this AD, modify, including doing all applicable inspections and corrective actions, for each affected main beam identified in paragraph (g) of this AD, in accordance with the Accomplishment Instructions of Airbus Service Bulletin A320-71-1065, Revision 01, dated July 28, 2017; or Airbus Service Bulletin A320-71-1066, dated December 1, 2016; as applicable; except as required by paragraph (k) of this AD.

(1) Within 48 months after the effective date of this AD.

(2) Within 10,000 flight cycles after the effective date of this AD.

(3) Within 15,000 flight hours after the effective date of this AD.

(k) Exception to Service Information

Where Airbus Service Bulletin A320-71-1065, Revision 01, dated July 28, 2017, specifies to contact a manufacturer for appropriate action, and specifies that action as “RC” (Required for Compliance): Before further flight, accomplish corrective actions in accordance with the procedures specified in paragraph (n)(2) of this AD.

(l) Credit for Previous Actions

This paragraph provides credit for the actions required by paragraph (j) of this AD involving Airbus Service Bulletin A320-71-1065, Revision 01, dated July 28, 2017, if those actions were performed before the effective date of this AD using Airbus Service Bulletin A320-71-1065, dated December 1, 2016.

(m) Parts Installation Prohibition

Do not install on any airplane an affected main beam or a forward engine mount assembly equipped with an affected main beam, as specified in paragraph (m)(1) or (m)(2) of this AD, as applicable.

(1) For Group 1 airplanes: After modification of the airplane as required by paragraph (j) of this AD.

(2) For Group 2 airplanes: As of the effective date of this AD.

(n) 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 manager of the International Section, send it to the attention of the person identified in paragraph (o)(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 EASA DOA. If approved by the DOA, the approval must include the DOA-authorized signature.

(3) Required for Compliance (RC): Except as required by paragraph (k) of this AD: 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.

(o) Related Information

(1) Refer to Mandatory Continuing Airworthiness Information (MCAI) EASA AD 2017-0132R1, dated November 22, 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-2017-1020.

(2) For more information about this AD, contact Sanjay Ralhan, Aerospace Engineer, International Section, Transport Standards Branch, FAA, 2200 South 216th St., Des Moines, WA 98198-6547; telephone 425-227-1405; fax 425-227-1149.

(3) Airbus service information identified in this AD that is not incorporated by reference is available at the addresses specified in paragraphs (p)(4) and (p)(5) of this AD.

(4) Goodrich service information identified in this AD that is not incorporated by reference is available at Goodrich Corporation, Aerostructures, 850 Lagoon Drive, Chula Vista, CA 91910-2098; phone: 619-691-2719; email: [email protected]; internet: http://www.goodrich.com/TechPubs.

(p) 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 A320-71-1065, Revision 01, dated July 28, 2017.

(ii) Airbus Service Bulletin A320-71-1066, dated December 1, 2016.

(3) For Airbus service information identified in this AD, contact Airbus, Airworthiness Office-EIAS, 1 Rond Point Maurice Bellonte, 31707 Blagnac Cedex, France; telephone: +33 5 61 93 36 96; fax: +33 5 61 93 44 51; email: [email protected]; internet: http://www.airbus.com.

(4) For Goodrich service information identified in this final rule, contact Goodrich Corporation, Aerostructures, 850 Lagoon Drive, Chula Vista, CA 91910-2098; phone: 619-691-2719; email: [email protected]; internet: http://www.goodrich.com/TechPubs.

(5) 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.

(6) 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 29, 2018. Jeffrey E. Duven, Director, System Oversight Division, Aircraft Certification Service.
[FR Doc. 2018-12268 Filed 6-7-18; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0507; Product Identifier 2018-NM-027-AD; Amendment 39-19308; AD 2018-12-04] RIN 2120-AA64 Airworthiness Directives; The Boeing Company Airplanes AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule; request for comments.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain The Boeing Company Model 777-300ER series airplanes. This AD requires replacing the water filter assembly in certain steam ovens. This AD was prompted by a report that water can enter the steam oven cavity and become heated and then released when the oven door is opened. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective June 25, 2018.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of June 25, 2018.

We must receive comments on this AD by July 23, 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: Deliver to Mail address above between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

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-2018-0507.

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-2018-0507; 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 street address for Docket Operations (phone: 800-647-5527) is in the ADDRESSES section. Comments will be available in the AD docket shortly after receipt.

FOR FURTHER INFORMATION CONTACT:

Stanley Chen, Aerospace Engineer, Cabin Safety and Environmental Systems Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3565; email: [email protected]

SUPPLEMENTARY INFORMATION: Discussion

We have received a report that members of the cabincrew on a Model 787 airplane were injured when hot water escaped during the opening of the steam oven door. The incident occurred with Jamco steam ovens, part number (P/N) ASN2001-1 and P/N ASN2001-12. Investigation revealed that the current water filter configuration allows foreign objects to enter the water system, which can prevent the solenoid valve from moving to a fully closed position and subsequently allow water to enter the steam oven cavity. Water in the steam oven cavity can become heated and then released when the door is opened. A new water filter assembly has been developed, which includes a larger screen to prevent foreign object debris from moving downstream to block the solenoid valve from moving to a fully closed position. This condition, if not addressed, could result in water becoming heated as it collects in the bottom of the oven during the cooking cycle, resulting in hot water escaping when the oven door is opened, and subsequent injury to the cabincrew.

The Jamco steam ovens installed on Model 777-300ER series airplanes have the same part numbers as those installed on the affected Model 787 airplane; therefore, Model 777-300ER series airplanes are subject to the same unsafe condition revealed on the Model 787 airplane. The unsafe condition on Model 787 airplanes has been addressed.

Related Service Information Under 1 CFR Part 51

We reviewed Boeing Service Bulletin 777-25-0617, dated June 6, 2014. The service information describes procedures for replacing the water filter assembly in Jamco steam ovens, P/N ASN2001-1 and P/N ASN2001-12. 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

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

AD Requirements

This AD requires accomplishing the actions specified in the service information described previously.

FAA's Justification and Determination of the Effective Date

There are currently no domestic operators of this product. Therefore, we find that notice and opportunity for prior public comment are unnecessary and that good cause exists for making this amendment effective in less than 30 days.

Comments Invited

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2018-0507 and Product Identifier 2018-NM-027-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this final rule. We will consider all comments received by the closing date and may amend this final rule because of those comments.

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

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 Action Labor cost Parts cost Cost per product Replacement 1 work-hour × $85 per hour = $85 per steam oven $0 $85 per steam oven.

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 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): 2018-12-04 The Boeing Company: Amendment 39-19308 ; Docket No. FAA-2018-0507; Product Identifier 2018-NM-027-AD. (a) Effective Date

This AD is effective June 25, 2018.

(b) Affected ADs

None.

(c) Applicability

This AD applies to The Boeing Company Model 777-300ER series airplanes, certificated in any category, as identified in Boeing Service Bulletin 777-25-0617, dated June 6, 2014.

(d) Subject

Air Transport Association (ATA) of America Code 25, Equipment/furnishings.

(e) Unsafe Condition

This AD was prompted by a report that water can enter the steam oven cavity and become heated and then released when the oven door is opened. This condition, if not addressed, could result in injury to the cabincrew.

(f) Compliance

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

(g) Replacement of Water Filter Assembly

Within 375 days after the effective date of this AD: Replace the water filter assembly for Jamco steam ovens, part number (P/N) ASN2001-1 and P/N ASN2001-12, at the locations identified in, and in accordance with the Accomplishment Instructions of Boeing Service Bulletin 777-25-0617, dated June 6, 2014.

Note 1 to paragraph (g) of this AD:

Boeing Service Bulletin 777-25-0617, dated June 6, 2014, refers to Jamco Service Bulletin ASN2001-25-3118, Revision 1, dated June 5, 2014, as an additional source of information for replacement of the water filter assembly.

(h) Parts Installation Prohibition

As of the effective date of this AD, no person may install on any airplane, a Jamco steam oven having P/N ASN2001-1 or P/N ASN2001-12, unless the modification required by paragraph (g) of this AD is accomplished for that steam oven.

(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 Stanley Chen, Aerospace Engineer, Cabin Safety and Environmental Systems Section, FAA, Seattle ACO Branch, 2200 South 216th St., Des Moines, WA 98198; phone and fax: 206-231-3565; 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 Service Bulletin 777-25-0617, dated June 6, 2014.

(ii) Reserved.

(3) For Boeing 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 29, 2018. Michael Kaszycki, Acting Director, System Oversight Division, Aircraft Certification Service.
[FR Doc. 2018-12270 Filed 6-7-18; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0082; Airspace Docket No. 16-AWP-22] RIN 2120-AA66 Establishment of Class E Airspace; Pago Pago, American Samoa AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This action establishes Class E airspace extending upward from 700 feet above the surface at Pago Pago International Airport, Pago Pago, American Samoa (AS), to accommodate new area navigation (RNAV) procedures at the airport. This action is necessary for the safety and management of instrument flight rules (IFR) operations within the National Airspace System.

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 this material 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:

Kenneth Ready, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.

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 E airspace extending upward from 700 feet above the earth at Pago Pago International Airport, Pago Pago, American Samoa, to support IFR operations at the airport.

History

The FAA published a notice of proposed rulemaking (NPRM) in the Federal Register for Docket No. FAA-2018-0082 (83 FR 12289; March 21, 2018). The NPRM proposed to establish Class E airspace extending upward from 700 feet above the surface at Pago Pago International Airport, Pago Pago, American Samoa. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal to the FAA. One comment was received, supporting the proposal.

Class E airspace designations are published in paragraph 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 designation 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

The FAA is amending Title 14 Code of Federal Regulations (14 CFR) part 71 by establishing Class E airspace extending upward from 700 feet above the surface at Pago Pago International Airport, Pago Pago, AS. This airspace is necessary to accommodate the redesign for IFR operations in standard instrument approach and departure procedures at the airport. Class E airspace is established within a 7-mile radius of Pago Pago International Airport and within 4 miles either side of the 071° bearing extending from the 7-mile radius to 10.6 miles northeast, and within 4 miles either side of the 240° bearing extending from the 7-mile radius to 10.4 miles southwest; and that airspace extending upward from 1,200 feet above the surface within a 20-mile radius of Pago Pago International Airport, excluding that airspace extending beyond 12 miles of the shoreline.

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 of establishing Class E airspace extending upward from 700 feet above the surface at Pago Pago International Airport, Pago Pago, American Samoa (AS) to accommodate new area navigation (RNAV) procedures at the airport qualifies for categorical exclusion under the National Environmental Policy Act and its implementing regulations at 40 CFR part 1500, and in accordance with FAA Order 1050.1F, Environmental Impacts: Policies and Procedures, Paragraph 5-6.5a, which categorically excludes from further environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points (see 14 CFR part 71, Designation of Class A, B, C, D, and E Airspace Areas; Air Traffic Service Routes; and Reporting Points). As such, this action is not expected to cause any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, the FAA has reviewed this action for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis. The FAA has determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment or environmental impact study.

Lists of Subjects in 14 CFR Part 71

Airspace, Incorporation by reference, Navigation (air).

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. AWP AS E5 Pago Pago, AS [New] Pago Pago International Airport, American Samoa (Lat. 14°19′54″ N, Long. 170°42′41″ W)

That airspace extending upward from 700 feet above the surface within a 7-mile radius of Pago Pago International Airport, and within 4 miles either side of the 071° bearing of the Pago Pago International Airport extending from the 7-mile radius to 10.6 miles northeast of the airport, and within 4 miles either side of the 240° bearing of the airport, and extending from 7-miles radius to 10.4 miles southwest of the Pago Pago International Airport; and that airspace extending upward from 1,200 feet above the surface within a 20-mile radius of Pago Pago International Airport, excluding that airspace extending beyond 12 miles of the shoreline.

Issued in Washington, DC, on May 30, 2018. Rodger A. Dean Jr., Manager, Airspace Policy Group.
[FR Doc. 2018-12295 Filed 6-7-18; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2017-0653; Airspace Docket No. 17-AWA-2] RIN 2120-AA66 Amendment of Class B Airspace; San Francisco, CA AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule.

SUMMARY:

This action modifies the San Francisco, CA, Class B airspace area to contain aircraft conducting instrument flight rules (IFR) instrument approach procedures to San Francisco International Airport (SFO), San Francisco, CA. The FAA is taking this action to improve the flow of air traffic, enhance safety, and reduce the potential for midair collision in the SFO Class B airspace area while accommodating the concerns of airspace users. Further, this effort supports the FAA's national airspace redesign goal of optimizing terminal and enroute airspace to reduce aircraft delays and improve system capacity.

DATES:

Effective date 0901 UTC, August 16, 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:

Kenneth Ready, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.

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 the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it modifies the San Francisco, CA, Class B airspace area to improve the flow of air traffic and enhance safety within the National Airspace System (NAS).

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.

History

The FAA published a notice of proposed rulemaking (NPRM) in the Federal Register for Docket No. FAA-2017-0653 (83 FR 2747; January 19, 2018). The NPRM proposed to modify the San Francisco, CA, Class B airspace area. Interested parties were invited to participate in this rulemaking effort by submitting written comments on the proposal. Ten written comments were received in response to the NPRM. All comments received were considered before making a determination on the final rule.

Class B airspace designations are published in paragraph 3000 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 B airspace designations listed in this document will be subsequently published in the Order.

Discussion of Comments

In the response to the NPRM, several individuals and three aviation groups: Airline Pilots Association, International (ALPA), Aircraft Owners and Pilot Association (AOPA), and Experimental Aircraft Association (EAA) submitted comments expressing support for the proposed design of the San Francisco Class B and provided substantive comments and recommendations to further the design. The comments were grouped in the following:

• Glider Operations • Areas C and D • Area B • Area F • Ceiling of class B at 10,000 feet • ADS-B requirement

Having considered the issues and recommendations provided by the commenters, the FAA offers the following responses.

Glider Operations

One individual commenter stated glider operations are just outside of the current lateral limits of the airspace and expanding the airspace may cause issues for the operations that exist in those locations.

Prior to publishing the NPRM, the FAA formed an ad-hoc committee and held informal airspace meetings to present a pre-rulemaking outline of the revised Class B airspace. At that time, representatives from the glider community expressed concern that the changes to the airspace would have a negative impact on glider activity near Mount Diablo. Based on this input, the proposal put forth in the NPRM reflected changes to the Class B airspace over Mt. Diablo by eliminating some of the Class B airspace previously suggested during the pre-rulemaking phase and raising the floor in other areas to 7000 feet. The FAA is retaining these changes in the final rule to accommodate glider operations in the Mount Diablo area. In addition, the airspace over Pacifica was raised in the design proposal, accepted during the ad-hoc and thereby accommodating hang gliders.

Areas C and D

Four comments were received regarding the shape and altitudes associated with Area C and Area D. One commenter expressed concern that the boundaries of Areas C and D are very close to one another and stated that general aviation pilots risk unintentionally violating lateral or vertical limits as they try to transition around the airspace. The commenter suggested that the cutouts exist due to the poor design of three departure procedures and recommended amending the departure procedures to allow for higher floors to the airspace and will enable the incorporation of Area C into Area D.

Areas C and D were not designed to capture the Area Navigation (RNAV) departure procedures (DPs). These areas were designed to contain the instrument approaches to Runway (RWY) 10. Track data shows that the SNTNA DP, GNNRR DP and WESLA DPs do not enter Area C or D. All of these DPs have an initial climb gradient of at least 500 feet per nautical mile and standard aircraft performance places them above the C and D areas. The DPs were designed in compliance with the current RNAV DP design criteria in concert with industry and air traffic control standards. They were flown in simulators under varied wind conditions and have been utilized without incident since March 2015.

Three other comments were concerned that lowering the floor of Areas C and D would impede VFR transiting along the coast.

Area C is an arrival extension to Area A and was built to contain RNAV approaches to RWY10. Area D provides a longer arrival extension from the west and also contains the RWY10 arrival approaches and neither can be raised. The RNAV approach to RWY10L crosses NORMM (intermediate fix) which is located just outside of Area D at or above 3,500 feet descending on a 3-degree glide path to cross XATTU (final approach fix) at or above 1,800 feet descending. XATTU is located on the border of Area C and Area A. Area D is needed to contain this descent path. The RNAV approaches to RWY10R cross DOTNE (intermediate fix) at 3,500 feet descending on a 3-degree glide path to cross JULOS (final approach fix) at 1,900 feet descending. DOTNE is just outside of Area D and JULOS is in the center of Area C. Area D is needed to contain this decent path. Area C is needed to capture the descent through 1,900 feet to 1,600 on the approach.

Area B

Two individual commenters stated lowering Area B from 1500 to 1400 feet will almost certainly lead to inadvertent Class B violations from pilots making a right crosswind departure from KSQL RWY30. Additionally, they indicate that it will put a general aviation pilot at a disadvantage if flying over water.

The FAA concurs and raised the floor of Area B to 1,500 feet.

Area F

Two aviation groups (AOPA and EAA) stated lowering the floor of Area F would reduce the airspace available for aircraft to transit the VFR flyway simultaneously in both directions from San Carlos Airport (SQL) and Palo Alto (PAO) airport. AOPA also indicated the FAA must justify the reduction of the Class B floor, as it does not appear to be aligned with any final approach course. AOPA and EAA both raised concerns for the potential of a mid-air collision due to compression and congestion. One aviation group (ALPA) concurs with the NPRM design, which was suggested by the ad hoc committee.

The FAA policy for airspace design directs that Class B airspace designers have the flexibility to use the configuration that best meets the purposes of reducing mid-air collision potential, assures containment of instrument approaches, and enhances the efficient use of airspace. The floor of the Area F airspace takes into account the visual approaches to the runway, which enhances the efficiency of the airspace.

Published procedures, separation minimum, track data, and local experience were used to determine the required airspace floor in this area. Additionally, SFO arrivals to RWY28 have two charted visual approaches that are highly used, thereby increasing efficiency to the airport. San Francisco's air traffic control tower and Northern California TRACON (NCT) advertise and issue side-by-side visual approaches approximately 86% of the time. Visual approaches are a critical component of the efficiency of the San Francisco Airport. The arrival rate during visual meteorological conditions (VMC) when using side-by-side visual approaches is 54 arrivals and during instrument meteorological conditions (IMC) it is 36 arrivals. The higher efficiency rate is only possible through the use of visual approaches. While operating at the higher rate the FAA has a requirement to maintain vertical separation between the two visual approach aircraft until visual separation is applied. Aircraft altitudes are stepped down when using visual approaches. Aircraft arriving RWY28L are kept lower than aircraft on RWY28R. This allows the FAA to safely transition to simultaneous ILS approaches quickly if a weather front comes in, which is a common occurrence in the San Francisco Bay area. Additionally, a special flyway was developed to facilitate PAO and SQL airports traffic. The highest minimum vectoring altitude (MVA) on RWY28L final is 2100 feet. NCT uses the airspace to 2100 feet in Area F; however, due to the mid-air collision concerns raised by the aviation group commenters, the floor is being raised to 2300 feet in this final rule.

The floor inside of Area F will be raised to 2,300 feet and VFR aircraft will have adequate maneuvering altitude with this design.

Ceiling of Class B at 10,000 Feet

AOPA and EAA requested justification for the establishment of a 10,000-foot ceiling to the Class B airspace. AOPA noted that the 10,000-foot ceiling will require general aviation pilots seeking to transit the Class B airspace to fly at a low altitude (less than 1,600 feet MSL) or a high altitude (over 10,000 feet MSL). AOPA states that the FAA should improve the opportunity for general aviation aircraft to overfly the coast at cruise altitudes more normally utilized, such as 7,500 and 8,500 feet MSL. AOPA recommended that the Class B areas west of the U.S. coast have a ceiling of 7,000 feet MSL to facilitate general aviation overflight without the requirement to obtain a clearance. One aviation group (ALPA) concurred with the NPRM design stating departure and arrival procedures enter and exit the Class B at higher altitudes.

Generally, the standard design for Class B airspace is from the surface to 10,000 feet MSL. Class B airspace surrounds the nation's busiest airports in terms of airport operations or passenger enplanements. The configuration of each Class B airspace area is individually tailored and is designed to contain all published instrument procedures. The current Class B airspace between 8,000 and 10,000 feet at San Francisco International Airport is used to do much of the vectoring of aircraft to facilitate sequencing and provide for separation on final. The airspace around the Bay Area is very congested and the only airspace available for vectoring that facilitates the sequencing of arrivals and prevents conflict with other arrivals and departures is offshore. Fifty percent of the aircraft on the SERFR from the south are vectored. Aircraft from the east cannot be vectored without conflicting with multiple other arrival and departure routes. There are a significant number of arrivals from the west, northwest, and southwest offshore. The FAA is being asked by the public to perform more vectoring offshore to mitigate aircraft noise. Additionally, new arrival procedures are being developed originating from offshore that will also utilize this airspace. For these reasons, AOPA's recommendation to establish a ceiling of 7,000 feet MSL west of the U.S. coast is not feasible, as it will deteriorate the arrival rate of the SFO airport.

ADSB Requirement

One individual commenter stated, because the lateral boundaries of Class B airspace are being expanded, the Mode C veil will be extended as well. The commenter noted that this change will cause financial loss due to the equipment requirements (Mode C transponder/ADS-B Out) associated with this airspace expansion. Additionally, one individual commenter contends the expansion of the Class B airspace will have a negative financial burden to aircraft owners due to Automatic Dependent Surveillance-Broadcast (ADS-B) requirement in 14 CFR 91.225(d)(3)”; stating privately owned aircraft will have to move their aircraft further away from the Class B airspace if they do not equip for ADS-B.

The FAA does not agree with the commenter who states the Mode C Veil will expand with the expansion of the Class B airspace. The Mode C veil was established by an independent 14 Code of Federal Regulation (CFR) rulemaking action under part 91.215 “ATC transponder and altitude reporting equipment and use.” Although the Class B airspace extends beyond 30 miles in certain areas around SFO, the Mode C veil does not extend with the Class B airspace and remains a 30-mile ring around SFO.

The FAA does not agree with the individual commenters that stated expansion beyond 30 miles for the Class B will expand the forthcoming ADS-B equipment mandate. The ADS-B requirement in 14 CFR 91.225 states ADS-B equipment is required in 1) Class B, 2) within 30 miles and up to 10,000 feet MSL of a Class B, 3) above the ceiling and within the lateral boundaries of a Class B upward to 10,000 feet MSL. In the three locations where SFO's Class B extends beyond 30 miles all altitudes for those areas are 8,000 feet to 10,000 feet MSL. Considering these areas are Class B (from 8,000 to 10,000 feet MSL) they require ADS-B equipment. There is no provision stating you must equip with ADS-B below the floor and within the boundaries of a Class B outside the 30-mile ring. Hence, aircraft that choose not to equip with the ADS-B mandate in the year 2020, will not have to extend beyond 30 miles to other airports because the SFO Class B expanded beyond 30 miles at higher altitudes.

Differences From the NPRM

In the NPRM, the FAA proposed lower floor altitudes for Areas B and F but have raised these altitudes in response to comments received to the NPRM. Initially, Area B was proposed at 1,400 feet MSL and has been changed to 1,500 feet MSL. Area F was proposed at 2,100 feet MSL and has been changed to 2,300 feet MSL.

Additionally, a charting error is being corrected to Area C. The initial geographic lat/long coordinate (lat. 37°41′25″ N, long. 122°30′23″ W) in Area C was duplicated at the end of the description in the NPRM. The FAA is removing the unnecessary secondary geographic lat/long coordinate to correct the charting error.

The Rule

The FAA is amending Title 14 of the Code of Federal Regulations (14 CFR) part 71 to modify the SFO Class B airspace area. This action (depicted on the attached graphic) moves away from the three concentric circle (upside down wedding cake) design configuration and is redrawn based on arrival and departure routes into and out of SFO. Using this design approach allows the FAA to minimize the Class B airspace necessary to contain instrument procedures within Class B airspace for aircraft arriving and departing SFO and to re-designate current Class B airspace as Class E or Class G to make it available for aircraft circumnavigating the Class B airspace area. Additionally, the proposed modifications would better segregate IFR aircraft arriving/departing SFO and VFR aircraft operating in the vicinity of the SFO Class B airspace area. The modifications to the SFO Class B airspace area are discussed below.

Area A. Area A is amended as proposed by moving the southern boundary northward to accommodate local hang glide operations and incorporating minor modifications to the northeast boundary by using geographic coordinates to define the surface area. Area A extends upward from the surface, to and including 10,000 feet MSL.

Area B. Area B is amended by incorporating portions of existing Area B and Area F and establishing a floor at 1,500 feet MSL. The existing Area B southern boundary is moved northward and eastern boundary is moved westward, and a small portion of existing Area F is added. The floor of the existing Area F portion is lowered from 2,100 feet MSL to 1,500 feet MSL. Area B extends upward from 1,500 feet MSL, to and including 10,000 feet MSL.

Area C. A new Area C is established, as proposed in the NPRM, west of SFO beyond Area A, by incorporating small portions of existing Area F and Area I and establishing a floor at 1,600 feet MSL. The floor of the existing Area F portion is lowered from 2,100 feet MSL to 1,600 feet MSL and the floor of the existing Area I portion is raised from 1,500 feet MSL to 1,600 feet MSL. Area C extends upward from 1,600 feet MSL, to and including 10,000 feet MSL.

Area D. A new Area D is established, as proposed in the NPRM, west of SFO beyond the new Area C, by incorporating small portions of existing Area F, Area G, and Area I. The floor of the existing Area F portion is retained at 2,100 feet MSL, the floor of the existing Area G portion is lowered from 3,000 feet MSL to 2,100 feet MSL, and the floor of the existing Area I portion is raised from 1,500 feet MSL to 2,100 feet MSL. Area D extends upward from 2,100 feet MSL, to and including 10,000 feet MSL.

Area E. A new Area E is established, as proposed in the NPRM, northwest of SFO extending clockwise to the east of SFO beyond Area A, by incorporating a sliver of existing Area A and small portions of existing Area F and Area G. The floor of the existing Area A portion is raised from the surface to 2,100 feet MSL, the floor of the existing Area F portion is retained at 2,100 feet MSL, and the floor of the existing Area G portion is lowered from 3,000 feet MSL to 2,100 feet MSL. Area E extends upward from 2,100 feet MSL, to and including 10,000 feet MSL.

Area F. A new Area F is established, located southeast of SFO beyond the new Area B, by incorporating small portions of existing Area B, Area C, Area F, and Area G. The floor of the existing Area B portion is raised from 1,500 feet MSL to 2,300 feet MSL, the floor of the existing Area C portion is lowered from 2,500 feet MSL to 2,300 feet MSL and the existing Area G portion is lowered from 3,000 feet MSL to 2,300 feet MSL, and the floor of the existing Area F portion is retained at 2,300 feet MSL. Area F extends upward from 2,300 feet MSL, to and including 10,000 feet MSL.

Area G. A new Area G is established, as proposed in the NPRM, northwest of SFO beyond the new Area D and Area E, by incorporating small portions of existing Area A, Area F, Area G, Area H, and Area I. The floor of the existing Area A portion is raised from the surface to 3,000 feet MSL, the existing Area F portion is raised from 2,100 feet MSL to 3,000 feet MSL, and the existing Area I portion is raised from 1,500 feet MSL to 3,000 feet MSL; the floor of the existing Area G portion is retained at 3,000 feet MSL; and the floor of the existing Area H portion is lowered from 4,000 feet MSL to 3,000 feet MSL. Additionally, a sliver of Class B airspace is established beyond the existing Area H external SFO Class B airspace boundary with a floor of 3,000 feet MSL. Area G extends upward from 3,000 feet MSL, to and including 10,000 feet MSL.

Area H. A new Area H is established, as proposed in the NPRM, southeast of SFO beyond the new Area E and Area F, by incorporating small portions of existing Area A, Area B, Area C, Area D, Area F, and Area G. The floor of the existing Area A portion is raised from the surface to 3,000 feet MSL, the existing Area B portion is raised from 1,500 feet MSL to 3,000 feet MSL, the existing Area C portion is raised from 2,500 feet MSL to 3,000 feet MSL, and the existing Area F portion is raised from 2,100 feet MSL to 3,000 feet MSL; the floor of the existing Area G portion is retained at 3,000 feet MSL; and the floor of the existing Area D portion is lowered from 4,000 feet MSL to 3,000 feet MSL. Area H extends upward from 3,000 feet MSL, to and including 10,000 feet MSL.

Area I. A new Area I is established, as proposed in the NPRM, north of SFO extending clockwise to the west of SFO beyond the new Area E, Area G, and Area H, by incorporating small portions of the existing Area A, Area C, Area D, Area E, Area F, Area G, Area H, Area I, and Area K. The floor of the existing Area A portion is raised from the surface to 4,000 feet MSL, the existing Area C portion is raised from 2,500 feet MSL to 4,000 feet MSL, the existing Area F portion is raised from 2,100 feet MSL to 4,000 feet MSL, the existing Area G portion is raised from 3,000 feet MSL to 4,000 feet MSL, and the existing Area I portion is raised from 1,500 feet MSL to 4,000 feet MSL; the floor of the existing Area D and Area H portions are retained at 4,000 feet MSL; and the floor of the existing Area E portions are lowered from 6,000 feet MSL to 4,000 feet MSL and the existing Area K portion is lowered from 5,000 feet MSL to 4,000 feet MSL. Additionally, a small portion of Class B airspace is established beyond the existing Area E and Area H external SFO Class B airspace boundaries with a floor of 4,000 feet MSL. Area I extends upward from 4,000 feet MSL, to and including 10,000 feet MSL.

Area J. A new Area J is established, as proposed in the NPRM, north of SFO beyond the new Area G and Area I, by incorporating small portions of the existing Area D, Area E, Area G, and Area H. The floor of the existing Area G portion is raised from 3,000 feet MSL to 5,000 feet MSL and the existing Area D and Area H portions are raised from 4,000 feet MSL to 5,000 feet MSL, and the floor of the existing Area E portion is lowered from 6,000 feet MSL to 5,000 feet MSL. Additionally, a small portion of Class B airspace is established beyond the existing Area D, Area E, and Area G external SFO Class B airspace boundaries with a floor of 5,000 feet MSL. Area J extends upward from 5,000 feet MSL, to and including 10,000 feet MSL.

Area K. A new Area K is established, as proposed in the NPRM, north of SFO beyond the new Area I and Area L (described below), by incorporating small portions of the existing Area D and Area E. The floor of the existing Area D portion is raised from 4,000 feet MSL to 5,000 feet MSL and the floor of the existing Area E portion is retained at 6,000 feet MSL. Additionally, a sliver of Class B airspace is established beyond the existing Area E external SFO Class B boundary with a floor of 6,000 feet MSL. Area K extends upward from 6,000 feet MSL, to and including 10,000 feet MSL.

Area L. A new area is established, as proposed in the NPRM, northeast of SFO beyond the new Area I, by incorporating small portions of the existing Area D and Area E. The floor of the existing Area D portion is raised from 4,000 feet MSL to 5,000 feet MSL and the floor of the existing Area E portion is lowered from 6,000 feet MSL to 5,000 feet MSL. Area L extends upward from 5,000 feet MSL, to and including 10,000 feet MSL.

Area M. A new area is established, as proposed in the NPRM, south of SFO beyond the new Area I, by incorporating portions of the existing Area D, Area E, Area G, Area J, and Area K. The floor of the existing Area D portion is raised from 4,000 feet MSL to 6,000 feet MSL, the existing Area G portion is raised from 3,000 feet MSL to 6,000 feet MSL, and the existing Area K portion is raised from 5,000 feet MSL to 6,000 feet MSL; the floor of the existing Area E portion is retained at 6,000 feet MSL; and the floor of the existing Area J is lowered from 8,000 feet MSL to 6,000 feet MSL. Additionally, a portion of Class B airspace is established beyond the existing Area E and Area J external SFO Class B boundaries with a floor of 6,000 feet MSL. Area M extends upward from 6,000 feet MSL, to and including 10,000 feet MSL.

Area N. A new area is established, as proposed in the NPRM, south-southeast of SFO beyond the new Area M, by incorporating small portions of the existing Area E and Area J. The floor of the existing Area E portion is raised from 6,000 feet MSL to 8,000 feet MSL and the floor of the existing Area J portion is retained at 8,000 feet MSL. Additionally, a portion of Class B airspace is established beyond the existing Area J external SFO Class B boundary with a floor of 8,000 feet MSL. Area N extends upward from 8,000 feet MSL, to and including 10,000 feet MSL, to accommodate VFR aircraft operating in higher terrain below the Class B airspace.

Area O. A new area is established, as proposed in the NPRM, northeast of SFO beyond the new Area L, within a portion of the existing Area E. The floor of the existing Area E portion is raised from 6,000 feet MSL to 7,000 feet MSL. Additionally, a sliver of Class B airspace is established beyond the current Area E external SFO Class B boundary with a floor of 7,000 feet MSL. Area O extends upward from 7,000 feet MSL, to and including 10,000 feet MSL, to accommodate frequent use by VFR traffic operating in higher terrain (Mount Diablo) below the Class B airspace.

Area P. A new area is established, as proposed in the NPRM, east-southeast of SFO beyond the new Area M, within a portion of the existing Area J. The floor of the existing Area J portion is lowered from 8,000 feet MSL to 7,000 feet MSL. Additionally, a small portion of Class B airspace is established beyond the existing Area J external SFO Class B boundary with a floor of 7,000 feet MSL. Area P extends upward from 7,000 feet MSL, to and including 10,000 feet MSL.

Area Q. A new area is established, as proposed in the NPRM, east of SFO beyond the new Area I and Area P, within a portion of the existing Area E and Area J. The floor of the existing Area E portion is raised from 6,000 feet MSL to 8,000 feet MSL and the floor of the existing Area J portion is retained at 8,000 feet MSL. Additionally, a portion of Class B airspace is established beyond the existing Area E and Area J external SFO Class B boundaries with a floor of 8,000 feet MSL. Area Q extends upward from 8,000 feet MSL, to and including 10,000 feet MSL, to capture delay vectoring for runway 10 and 19 IFR arrival aircraft.

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. It, therefore: (1) Is not a “significant regulatory action” under Executive Order 12866; (2) is not a “significant rule” under Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that 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 of redesigning Class B airspace associated with the KSFO for the purpose of reducing the potential for midair collisions in airspace around airports with high-density air traffic, qualifies for categorical exclusion under the National Environmental Policy Act and its agency-specific implementing regulations in FAA Order 1050.1F, “Environmental Impacts: Policies and Procedures” regarding categorical exclusions for procedural actions at paragraph 5-6.5.a, which categorically excludes from full environmental impact review rulemaking actions that designate or modify classes of airspace areas, airways, routes, and reporting points. This airspace action is an editorial change only and is not expected to result in any potentially significant environmental impacts. In accordance with FAA Order 1050.1F, paragraph 5-2 regarding Extraordinary Circumstances, this action has been reviewed for factors and circumstances in which a normally categorically excluded action may have a significant environmental impact requiring further analysis, and it is determined that no extraordinary circumstances exist that warrant preparation of an environmental assessment.

Paperwork Reduction Act

The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires that the FAA consider the impact of paperwork and other information collection burdens imposed on the public. We have determined that there is no new information collection requirement associated with this rule.

Regulatory Evaluation

Changes to Federal regulations must undergo several economic analyses. First, Executive Order 12866 and Executive Order 13563 direct that each Federal agency shall propose or adopt a regulation only upon a reasoned determination that the benefits of the intended regulation justify its costs. Second, the Regulatory Flexibility Act of 1980 (Pub. L. 96-354) requires agencies to analyze the economic impact of regulatory changes on small entities. Third, the Trade Agreements Act (Pub. L. 96-39) prohibits agencies from setting standards that create unnecessary obstacles to the foreign commerce of the United States. In developing U.S. standards, the Trade Act requires agencies to consider international standards and, where appropriate, that they be the basis of U.S. standards. Fourth, the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires agencies to prepare a written assessment of the costs, benefits, and other effects of proposed or final rules that include a Federal mandate likely to result in the expenditure by State, local, or tribal governments, in the aggregate, or by the private sector, of $100 million or more annually (adjusted for inflation with base year of 1995).

Department of Transportation Order DOT 2100.5 prescribes policies and procedures for simplification, analysis, and review of regulations. If the expected cost impact is so minimal that a proposed or final rule does not warrant a full evaluation, this order permits that a statement to that effect and the basis for it to be included in the preamble if a full regulatory evaluation of the cost and benefits is not prepared. Such a determination has been made for this final rule. The reasoning for this determination follows.

It is appropriate to redesign SFO Class B airspace for reasons described earlier including the availability of new procedures such as the use of “Optimized Profile Descents,” advances in technology; migration to GPS from ground based navigation facilities and updated charting criteria.

This regulation will modify the San Francisco, CA, (SFO) Class B airspace area to improve the flow of air traffic, enhance safety and reduce the potential for midair collision in the SFO Class B airspace area while accommodating the concerns of airspace users. This effort supports the FAA's national airspace redesign goal of optimizing terminal and enroute airspace to reduce aircraft delays and improve system capacity.

The Class B airspace redesign may enhance opportunities for more fuel-efficient descent profiles.

Further, the SFO Class B airspace redesign will enhance safety by containing IFR traffic arriving and departing SFO within the confines of Class B airspace and will better segregate IFR and VFR aircraft.

Finally, the regulation will return current Class B airspace that is not being used for SFO airport arrivals or departures to the NAS. Because it will modify SFO Class B airspace to take advantage of more fuel efficient approaches and optimize terminal and enroute airspace to reduce delays and improve system capacity, the rule is expected to be a minimal cost rule with the potential to result in minor cost savings.

FAA has, therefore, determined that this final rule is not a “significant regulatory action” as defined in section 3(f) of Executive Order 12866, and is not “significant” as defined in DOT's Regulatory Policies and Procedures.

Regulatory Flexibility Determination

The Regulatory Flexibility Act of 1980 (Pub. L. 96-354) (RFA) establishes “as a principle of regulatory issuance that agencies shall endeavor, consistent with the objectives of the rule and of applicable statutes, to fit regulatory and informational requirements to the scale of the businesses, organizations, and governmental jurisdictions subject to regulation.” To achieve this principle, agencies are required to solicit and consider flexible regulatory proposals and to explain the rationale for their actions to assure that such proposals are given serious consideration. The RFA covers a wide-range of small entities, including small businesses, not-for profit organizations, and small governmental jurisdictions. Agencies must perform a review to determine whether a rule will have a significant economic impact on a substantial number of small entities. If the agency determines that it will, the agency must prepare a regulatory flexibility analysis as described in the RFA. However, if an agency determines that a rule is not expected to have a significant economic impact on a substantial number of small entities, section 605(b) of the RFA provides that the head of the agency may so certify and a regulatory flexibility analysis is not required. The certification must include a statement providing the factual basis for this determination, and the reasoning should be clear.

The redesign of the SFO Class B airspace will not affect a substantial number of small entities because the redesign does not alter or amend any existing flight path at SFO. Any change to an existing flight path will be achieved through a separate action. Therefore, the expected outcome, if any, will be a minimal economic impact on small entities affected by this rulemaking action.

If an agency determines that a rulemaking will not result in a significant economic impact on a substantial number of small entities, the head of the agency may so certify under section 605(b) of the RFA. Therefore, as provided in section 605(b), the head of the FAA certifies that this rulemaking will not result in a significant economic impact on a substantial number of small entities.

International Trade Impact Assessment

The Trade Agreements Act of 1979 (Pub. L. 96-39), as amended by the Uruguay Round Agreements Act (Pub. L. 103-465), prohibits Federal agencies from establishing standards or engaging in related activities that create unnecessary obstacles to the foreign commerce of the United States.

Pursuant to these Acts, the establishment of standards is not considered an unnecessary obstacle to the foreign commerce of the United States, so long as the standard has a legitimate domestic objective, such as the protection of safety, and does not operate in a manner that excludes imports that meet this objective. The statute also requires consideration of international standards and, where appropriate, that they be the basis for U.S. standards. The FAA has assessed the potential effect of this final rule and determined that it will improve safety and is consistent with the Trade Agreements Act.

Unfunded Mandates Assessment

Title II of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) requires each Federal agency to prepare a written statement assessing the effects of any Federal mandate in a proposed or final agency rule that may result in an expenditure of $100 million or more (in 1995 dollars) in any one year by State, local, and tribal governments, in the aggregate, or by the private sector; such a mandate is deemed to be a “significant regulatory action.” The FAA currently uses an inflation-adjusted value of $155 million in lieu of $100 million. This final rule does not contain such a mandate; therefore, the requirements of Title II of the Act do not apply.

List of Subjects in 14 CFR Part 71

Airspace, Incorporation by reference, Navigation (air).

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 the FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 3000 Subpart B—Class B Airspace. AWP CA B San Francisco, CA San Francisco International Airport (Primary Airport) (Lat. 37°37′08″ N, long. 122°22′32″ W) Boundaries.

Area A. That airspace extending upward from the surface to and including 10,000 feet MSL within the area bounded by a line beginning at lat. 37°41′40″ N, long. 122°29′11″ W; to lat. 37°42′32″ N, long. 122°28′07″ W; to lat. 37°43′08″ N, long. 122°27′05″ W; to lat. 37°43′31″ N, long. 122°26′10″ W; to lat. 37°43′52″ N, long. 122°25′04″ W; to lat. 37°44′04″ N, long. 122°24′05″ W; to lat. 37°44′10″ N, long. 122°23′03″ W; to lat. 37°44′10″ N, long. 122°21′53″ W; to lat. 37°44′03″ N, long. 122°20′43″ W; to lat. 37°43′52″ N, long. 122°19′49″ W; to lat. 37°43′37″ N, long. 122°18′59″ W; to lat. 37°42′40″ N, long. 122°16′43″ W; to lat. 37°40′21″ N, long. 122°14′12″ W; to lat. 37°35′32″ N, long. 122°14′06″ W; to lat. 37°33′53″ N, long. 122°14′49″ W; to lat. 37°33′00″ N, long. 122°15′24″ W; to lat. 37°33′39″ N, long. 122°16′55″ W; to lat. 37°33′38″ N, long. 122°17′48″ W; to lat. 37°32′57″ N, long. 122°20′25″ W; to lat. 37°32′54″ N, long. 122°22′20″ W; to lat. 37°33′08″ N, long. 122°22′36″ W; to lat. 37°33′36″ N, long. 122°22′58″ W; to lat. 37°33′56″ N, long. 122°23′19″ W; to lat. 37°34′01″ N, long. 122°23′34″ W; to lat. 37°34′17″ N, long. 122°23′50″ W; to lat. 37°34′29″ N, long. 122°24′01″ W; to lat. 37°35′00″ N, long. 122°24′17″ W; to lat. 37°36′09″ N, long. 122°25′36″ W; to lat. 37°36′22″ N, long. 122°25′42″ W; to lat. 37°36′42″ N, long. 122°25′34″ W; to lat. 37°38′26″ N, long. 122°29′41″ W; to lat. 37°39′25″ N, long. 122°29′41″ W; to lat. 37°40′32″ N, long. 122°29′44″ W; to lat. 37°41′08″ N, long. 122°29′46″ W, thence to the point of beginning.

Area B. That airspace extending upward from 1,500 feet MSL to and including 10,000 feet MSL within the area bounded by a line beginning at lat. 37°35′32″ N, long. 122°14′06″ W; to lat. 37°35′11″ N, long. 122°11′13″ W; to lat. 37°32′49″ N, long. 122°12′15″ W; to lat. 37°31′29″ N, long. 122°13′08″ W; to lat. 37°33′00″ N, long. 122°15′24″ W; to lat. 37°33′53″ N, long. 122°14′49″ W, thence to the point of beginning.

Area C. That airspace extending upward from 1,600 feet MSL to and including 10,000 feet MSL within the area bounded by a line beginning at lat. 37°41′25″ N, long. 122°30′23″ W; to lat. 37°41′08″ N, long. 122°29′46″ W; to lat. 37°40′32″ N, long. 122°29′44″ W; to lat. 37°39′25″ N, long. 122°29′41″ W; to lat. 37°40′04″ N, long. 122°31′15″ W, thence to the point of beginning.

Area D. That airspace extending upward from 2,100 feet MSL to and including 10,000 feet MSL within the area bounded by a line beginning at lat. 37°44′35″ N, long. 122°35′53″ W; to lat. 37°41′40″ N, long. 122°29′11″ W; to lat. 37°41′08″ N, long. 122°29′46″ W; to lat. 37°40′32″ N, long. 122°29′44″ W; to lat. 37°39′25″ N, long. 122°29′41″ W; to lat. 37°38′42″ N, long. 122°29′41″ W; to lat. 37°38′26″ N, long. 122°29′41″ W; to lat. 37°39′19″ N, long. 122°31′44″ W; to lat. 37°41′47″ N, long. 122°37′40″ W, thence to the point of beginning.

Area E. That airspace extending upward from 2,100 feet MSL to and including 10,000 feet MSL within the area bounded by a line beginning at lat. 37°44′15″ N, long. 122°28′11″ W; to lat. 37°47′12″ N, long. 122°18′31″ W; to lat. 37°45′33″ N, long. 122°14′38″ W; to lat. 37°44′42″ N, long. 122°15′13″ W; to lat. 37°42′17″ N, long. 122°11′39″ W; to lat. 37°39′53″ N, long. 122°11′31″ W; to lat. 37°35′11″ N, long. 122°11′13″ W; to lat. 37°35′32″ N, long. 122°14′06″ W; to lat. 37°40′21″ N, long. 122°14′12″ W; to lat. 37°42′40″ N, long. 122°16′43″ W; to lat. 37°43′37″ N, long. 122°18′59″ W; to lat. 37°43′52″ N, long. 122°19′49″ W; to lat. 37°44′03″ N, long. 122°20′43″ W; to lat. 37°44′10″ N, long. 122°21′53″ W; to lat. 37°44′10″ N, long. 122°23′03″ W; to lat. 37°44′04″ N, long. 122°24′05″ W; to lat. 37°43′52″ N, long. 122°25′04″ W; to lat. 37°43′31″ N, long. 122°26′10″ W; to lat. 37°43′08″ N, long. 122°27′05″ W; to lat. 37°42′32″ N, long. 122°28′07″ W, thence to the point of beginning.

Area F. That airspace extending upward from 2,300 feet MSL to and including 10,000 feet MSL within the area bounded by a line beginning at lat. 37°35′11″ N, long. 122°11′13″ W; to lat. 37°34′12″ N, long. 122°08′08″ W; to lat. 37°32′01″ N, long. 122°09′06″ W; to lat. 37°29′30″ N, long. 122°08′21″ W; to lat. 37°29′02″ N, long. 122°11′17″ W; to lat. 37°30′53″ N, long. 122°14′38″ W; to lat. 37°33′38″ N, long. 122°17′48″ W; to lat. 37°33′39″ N, long. 122°16′55″ W; to lat. 37°33′00″ N, long. 122°15′24″ W; to lat. 37°31′29″ N, long. 122°13′08″ W; to lat. 37°32′49″ N, long. 122°12′15″ W, thence to the point of beginning.

Area G. That airspace extending upward from 3,000 feet MSL to and including 10,000 feet MSL within the area bounded by a line beginning at lat. 37°50′22″ N, long. 122°41′07″ W; to lat. 37°47′11″ N, long. 122°36′40″ W; to lat. 37°51′35″ N, long. 122°29′32″ W; to lat. 37°51′03″ N, long. 122°20′24″ W; to lat. 37°47′58″ N, long. 122°13′04″ W; to lat. 37°45′33″ N, long. 122°14′38″ W; to lat. 37°47′12″ N, long. 122°18′31″ W; to lat. 37°44′15″ N, long. 122°28′11″ W; to lat. 37°42′32″ N, long. 122°28′07″ W; to lat. 37°41′40″ N, long. 122°29′11″ W; to lat. 37°44′35″ N, long. 122°35′53″ W; to lat. 37°41′47″ N, long. 122°37′40″ W; to lat. 37°39′19″ N, long. 122°31′44″ W; to lat. 37°38′26″ N, long. 122°29′41″ W; to lat. 37°36′42″ N, long. 122°25′34″ W; to lat. 37°36′22″ N, long. 122°25′42″ W; to lat. 37°36′09″ N, long. 122°25′36″ W; to lat. 37°35′00″ N, long. 122°24′17″ W; to lat. 37°34′29″ N, long. 122°24′01″ W; to lat. 37°34′17″ N, long. 122°23′50″ W; to lat. 37°40′37″ N, long. 122°39′05″ W; to lat. 37°46′40″ N, long. 122°47′13″ W, thence to the point of beginning.

Area H. That airspace extending upward from 3,000 feet MSL to and including 10,000 feet MSL within the area bounded by a line beginning at lat. 37°39′53″ N, long. 122°11′31″ W; to lat. 37°34′50″ N, long. 122°03′58″ W; to lat. 37°30′24″ N, long. 122°05′54″ W; to lat. 37°27′10″ N, long. 122°07′39″ W; to lat. 37°26′26″ N, long. 122°10′38″ W; to lat. 37°28′39″ N, long. 122°13′10″ W; to lat. 37°32′19″ N, long. 122°21′54″ W; to lat. 37°32′54″ N, long. 122°22′20″ W; to lat. 37°32′57″ N, long. 122°20′25″ W; to lat. 37°33′38″ N, long. 122°17′48″ W; to lat. 37°30′53″ N, long. 122°14′38″ W; to lat. 37°29′02″ N, long. 122°11′17″ W; to lat. 37°29′30″ N, long. 122°08′21″ W; to lat. 37°32′01″ N, long. 122°09′06″ W; to lat. 37°34′12″ N, long. 122°08′08″ W; to lat. 37°35′11″ N, long. 122°11′13″ W, thence to the point of beginning.

Area I. That airspace extending upward from 4,000 feet MSL to and including 10,000 feet MSL within the area bounded by a line beginning at lat. 37°55′31″ N, long. 122°23′04″ W; to lat. 37°53′11″ N, long. 122°09′28″ W; to lat. 37°41′50″ N, long. 121°57′39″ W; to lat. 37°32′33″ N, long. 121°55′58″ W; to lat. 37°28′19″ N, long. 121°57′49″ W; to lat. 37°22′19″ N, long. 122°05′04″ W; to lat. 37°20′04″ N, long. 122°07′47″ W; to lat. 37°22′58″ N, long. 122°19′36″ W; to lat. 37°29′37″ N, long. 122°27′17″ W; to lat. 37°39′32″ N, long. 122°51′17″ W; to lat. 37°44′03″ N, long. 122°51′30″ W; to lat. 37°46′40″ N, long. 122°47′13″ W; to lat. 37°40′37″ N, long. 122°39′05″ W; to lat. 37°34′17″ N, long. 122°23′50″ W; to lat. 37°34′01″ N, long. 122°23′34″ W; to lat. 37°33′56″ N, long. 122°23′19″ W; to lat. 37°33′36″ N, long. 122°22′58″ W; to lat. 37°33′08″ N, long. 122°22′36″ W; to lat. 37°32′54″ N, long. 122°22′20″ W; to lat. 37°32′19″ N, long. 122°21′54″ W; to lat. 37°28′39″ N, long. 122°13′10″ W; to lat. 37°26′26″ N, long. 122°10′38″ W; to lat. 37°27′10″ N, long. 122°07′39″ W; to lat. 37°30′24″ N, long. 122°05′54″ W; to lat. 37°34′50″ N, long. 122°03′58″ W; to lat. 37°39′53″ N, long. 122°11′31″ W; to lat. 37°42′17″ N, long. 122°11′39″ W; to lat. 37°44′42″ N, long. 122°15′13″ W; to lat. 37°45′33″ N, long. 122°14′38″ W; to lat. 37°47′58″ N, long. 122°13′04″ W; to lat. 37°51′03″ N, long. 122°20′24″ W; to lat. 37°51′35″ N, long. 122°29′32″ W, thence to the point of beginning.

Area J. That airspace extending upward from 5,000 feet MSL to and including 10,000 feet MSL within the area bounded by a line beginning at lat. 38°00′00″ N, long. 122°25′00″ W; to lat. 37°58′50″ N, long. 122°05′45″ W; to lat. 37°53′11″ N, long. 122°09′28″ W; to lat. 37°55′31″ N, long. 122°23′04″ W; to lat. 37°51′35″ N, long. 122°29′32″ W; to lat. 37°47′11″ N, long. 122°36′40″ W; to lat. 37°50′22″ N, long. 122°41′07″ W, thence to the point of beginning.

Area K. That airspace extending upward from 6,000 feet MSL to and including 10,000 feet MSL within the area bounded by a line beginning at lat. 37°58′50″ N, long. 122°05′45″ W; to lat. 37°54′06″ N, long. 121°59′12″ W; to lat. 37°51′17″ N, long. 121°58′51″ W; to lat. 37°53′11″ N, long. 122°09′28″ W; thence to the point of beginning.

Area L. That airspace extending upward from 5,000 feet MSL to and including 10,000 feet MSL within the area bounded by a line beginning at lat. 37°53′11″ N, long. 122°09′28″ W; to lat. 37°51′17″ N, long. 121°58′51″ W; to lat. 37°41′50″ N, long. 121°57′39″ W; thence to the point of beginning.

Area M. That airspace extending upward from 6,000 feet MSL to and including 10,000 feet MSL within the area bounded by a line beginning at lat. 37°39′32″ N, long. 122°51′17″ W; to lat. 37°29′37″ N, long. 122°27′17″ W; to lat. 37°22′58″ N, long. 122°19′36″ W; to lat. 37°20′04″ N, long. 122°07′47″ W; to lat. 37°22′19″ N, long. 122°05′04″ W; to lat. 37°28′19″ N, long. 121°57′49″ W; to lat. 37°32′33″ N, long. 121°55′58″ W; to lat. 37°32′27″ N, long. 121°53′05″ W; to lat. 37°32′54″ N, long. 121°51′09″ W; to lat. 37°28′25″ N, long. 121°49′25″ W; to lat. 37°24′12″ N, long. 121°55′56″ W; to lat. 37°19′04″ N, long. 122°03′49″ W; to lat. 37°10′36″ N, long. 122°00′30″ W; to lat. 37°15′08″ N, long. 122°24′54″ W; to lat. 37°15′04″ N, long. 122°24′55″ W; to lat. 37°15′03″ N, long. 122°25′01″ W; to lat. 37°14′54″ N, long. 122°25′07″ W; to lat. 37°14′39″ N, long. 122°25′00″ W; to lat. 37°14′29″ N, long. 122°25′03″ W; to lat. 37°14′01″ N, long. 122°24′53″ W; to lat. 37°13′34″ N, long. 122°24′30″ W; to lat. 37°13′18″ N, long. 122°24′26″ W; to lat. 37°13′02″ N, long. 122°24′31″ W; to lat. 37°12′01″ N, long. 122°24′30″ W; to lat. 37°11′24″ N, long. 122°23′57″ W; to lat. 37°11′10″ N, long. 122°23′54″ W; to lat. 37°11′01″ N, long. 122°23′38″ W; to lat. 37°11′03″ N, long. 122°23′27″ W; to lat. 37°10′59″ N, long. 122°22′55″ W; to lat. 37°10′45″ N, long. 122°22′39″ W; to lat. 37°10′34″ N, long. 122°22′20″ W; to lat. 37°10′25″ N, long. 122°22′09″ W; to lat. 37°10′11″ N, long. 122°21′57″ W; to lat. 37°15′22″ N, long. 122°50′17″ W, thence to the point of beginning.

Area N. That airspace extending upward from 8,000 feet MSL to and including 10,000 feet MSL within the area bounded by a line beginning at lat. 37°10′36″ N, long. 122°00′30″ W; to lat. 37°15′08″ N, long. 122°24′54″ W; to lat. 37°15′04″ N, long. 122°24′55″ W; to lat. 37°15′03″ N, long. 122°25′01″ W; to lat. 37°14′54″ N, long. 122°25′07″ W; to lat. 37°14′39″ N, long. 122°25′00″ W; to lat. 37°14′29″ N, long. 122°25′03″ W; to lat. 37°14′01″ N, long. 122°24′53″ W; to lat. 37°13′34″ N, long. 122°24′30″ W; to lat. 37°13′18″ N, long. 122°24′26″ W; to lat. 37°13′02″ N, long. 122°24′31″ W; to lat. 37°12′01″ N, long. 122°24′30″ W; to lat. 37°11′24″ N, long. 122°23′57″ W; to lat. 37°11′10″ N, long. 122°23′54″ W; to lat. 37°11′01″ N, long. 122°23′38″ W; to lat. 37°11′03″ N, long. 122°23′27″ W; to lat. 37°10′59″ N, long. 122°22′55″ W; to lat. 37°10′45″ N, long. 122°22′39″ W; to lat. 37°10′34″ N, long. 122°22′20″ W; to lat. 37°10′25″ N, long. 122°22′09″ W; to lat. 37°10′11″ N, long. 122°21′57″ W; to lat. 37°05′50″ N, long. 121°58′38″ W, thence to the point of beginning.

Area O. That airspace extending upward from 7,000 feet MSL to and including 10,000 feet MSL within the area bounded by a line beginning at lat. 37°54′06″ N, long. 121°59′12″ W; to lat. 37°51′25″ N, long. 121°55′58″ W; to lat. 37°42′02″ N, long. 121°51′17″ W; to lat. 37°41′50″ N, long. 121°57′39″ W; to lat. 37°51′17″ N, long. 121°58′51″ W, thence to the point of beginning.

Area P. That airspace extending upward from 7,000 feet MSL to and including 10,000 feet MSL within the area bounded by a line beginning at lat. 37°32′54″ N, long. 121°51′09″ W; to lat. 37°33′53″ N, long. 121°46′49″ W; to lat. 37°29′10″ N, long. 121°45′04″ W; to lat. 37°26′32″ N, long. 121°45′50″ W; to lat. 37°22′31″ N, long. 121°52′05″ W; to lat. 37°24′12″ N, long. 121°55′56″ W; to lat. 37°28′25″ N, long. 121°49′25″ W, thence to the point of beginning.

Area Q. That airspace extending upward from 8,000 feet MSL to and including 10,000 feet MSL within the area bounded by a line beginning at lat. 37°41′50″ N, long. 121°57′39″ W; to lat. 37°42′02″ N, long. 121°51′17″ W; to lat. 37°35′02″ N, long. 121°37′45″ W; to lat. 37°31′02″ N, long. 121°37′11″ W; to lat. 37°23′32″ N, long. 121°42′43″ W; to lat. 37°22′31″ N, long. 121°52′05″ W; to lat. 37°26′32″ N, long. 121°45′50″ W; to lat. 37°29′10″ N, long. 121°45′04″ W; to lat. 37°33′53″ N, long. 121°46′49″ W; to lat. 37°32′27″ N, long. 121°53′05″ W; to lat. 37°32′33″ N, long. 121°55′58″ W, thence to the point of beginning.

Issued in Washington, DC, on May 30, 2018. Rodger A. Dean Jr., Manager, Airspace Policy Group. BILLING CODE 4910-13-P ER08JN18.006
[FR Doc. 2018-12304 Filed 6-7-18; 8:45 am] BILLING CODE 4910-13-C
DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 878 [Docket No. FDA-2018-N-1900] Medical Devices; General and Plastic Surgery Devices; Classification of the Microneedling Device for Aesthetic Use AGENCY:

Food and Drug Administration, HHS.

ACTION:

Final order.

SUMMARY:

The Food and Drug Administration (FDA or we) is classifying the microneedling device for aesthetic use into class II (special controls). The special controls that apply to the device type are identified in this order and will be part of the codified language for the microneedling device for aesthetic use's classification. We are taking this action because we have determined that classifying the device into class II (special controls) will provide a reasonable assurance of safety and effectiveness of the device. We believe this action will also enhance patients' access to beneficial innovative devices, in part by reducing regulatory burdens.

DATES:

This order is effective June 8, 2018. The classification was applicable on March 1, 2018.

FOR FURTHER INFORMATION CONTACT:

Kimberly Ferlin, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. G449, Silver Spring, MD, 20993-0002, 240-402-1834, [email protected]

SUPPLEMENTARY INFORMATION:

I. Background

Upon request, FDA has classified the microneedling device for aesthetic use as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens by placing the device into a lower device class than the automatic class III assignment.

The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).

FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).

FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act. Section 207 of the Food and Drug Administration Modernization Act of 1997 established the first procedure for De Novo classification (Pub. L. 105-115). Section 607 of the Food and Drug Administration Safety and Innovation Act modified the De Novo application process by adding a second procedure (Pub. L. 112-144). A device sponsor may utilize either procedure for De Novo classification.

Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).

Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.

Under either procedure for De Novo classification, FDA shall classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.

We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see 21 U.S.C. 360c(f)(2)(B)(i)). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application in order to market a substantially equivalent device (see 21 U.S.C. 360c(i), defining “substantial equivalence”). Instead, sponsors can use the less burdensome 510(k) process, when necessary, to market their device.

II. De Novo Classification

On July 5, 2016, Bellus Medical, LLC, submitted a request for De Novo classification of the SkinPen Precision System. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.

We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.

Therefore, on March 1, 2018, FDA issued an order to the requester classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 878.4430. We have named the generic type of device microneedling device for aesthetic use, and it is identified as a device using one or more needles to mechanically puncture and injure skin tissue for aesthetic use. This classification does not include devices intended for transdermal delivery of topical products such as cosmetics, drugs, or biologics.

FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.

Table 1—Microneedling Device for Aesthetic Use Risks and Mitigation Measures Identified risks Mitigation measures Adverse tissue reaction Biocompatibility evaluation and Labeling. Cross-contamination and infection Sterilization validation, Reprocessing validation, Non-clinical performance testing, Shelf life testing, and Labeling. Electrical shock or electromagnetic interference with other devices Electromagnetic compatibility testing, Electrical safety testing, and Labeling. Damage to underlying tissue including nerves and blood vessels, scarring, and hyper/hypopigmentation due to:
  • • Exceeding safe penetration depth
  • • Mechanical failure
  • • Software malfunction
  • Non-clinical performance testing, Technological characteristics, Shelf life testing, Labeling, and Software verification, validation, and hazard analysis.

    FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k) of the FD&C Act.

    III. Analysis of Environmental Impact

    The Agency has determined under 21 CFR 25.34(b) 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.

    IV. Paperwork Reduction Act of 1995

    This final order establishes special controls that refer 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 the guidance document “De Novo Classification Process (Evaluation of Automatic Class III Designation)” have been approved under OMB control number 0910-0844; the collections of information in 21 CFR part 814, subparts A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; 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 part 801, regarding labeling, have been approved under OMB control number 0910-0485.

    List of Subjects in 21 CFR Part 878

    Medical devices.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 878 is amended as follows:

    PART 878—GENERAL AND PLASTIC SURGERY DEVICES 1. The authority citation for part 878 continues to read as follows: Authority:

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

    2. Add § 878.4430 to subpart E to read as follows:
    § 878.4430 Microneedling device for aesthetic use.

    (a) Identification. A microneedling device for aesthetic use is a device using one or more needles to mechanically puncture and injure skin tissue for aesthetic use. This classification does not include devices intended for transdermal delivery of topical products such as cosmetics, drugs, or biologics.

    (b) Classification. Class II (special controls). The special controls for this device are:

    (1) The technical specifications and needle characteristics must be identified, including needle length, geometry, maximum penetration depth, and puncture rate.

    (2) Non-clinical performance data must demonstrate that the device performs as intended under anticipated conditions of use. The following performance characteristics must be tested:

    (i) Accuracy of needle penetration depth and puncture rate;

    (ii) Safety features built into the device to protect against cross-contamination, including fluid ingress protection; and

    (iii) Identification of the maximum safe needle penetration depth for the device for the labeled indications for use.

    (3) Performance data must demonstrate the sterility of the patient-contacting components of the device.

    (4) Performance data must support the shelf life of the device by demonstrating continued sterility, package integrity, and device functionality over the intended shelf life.

    (5) Performance data must demonstrate the electrical safety and electromagnetic compatibility (EMC) of all electrical components of the device.

    (6) Software verification, validation, and hazard analysis must be performed for all software components of the device.

    (7) The patient-contacting components of the device must be demonstrated to be biocompatible.

    (8) Performance data must validate the cleaning and disinfection instructions for reusable components of the device.

    (9) Labeling must include the following:

    (i) Information on how to operate the device and its components and the typical course of treatment;

    (ii) A summary of the device technical parameters, including needle length, needle geometry, maximum penetration depth, and puncture rate;

    (iii) Validated methods and instructions for reprocessing of any reusable components;

    (iv) Disposal instructions; and

    (v) A shelf life.

    (10) Patient labeling must be provided and must include:

    (i) Information on how the device operates and the typical course of treatment;

    (ii) The probable risks and benefits associated with use of the device; and

    (iii) Postoperative care instructions.

    Dated: June 4, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-12335 Filed 6-7-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 888 [Docket No. FDA-2018-N-1863] Medical Devices; Orthopedic Devices; Classification of the In Vivo Cured Intramedullary Fixation Rod AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Final order.

    SUMMARY:

    The Food and Drug Administration (FDA or we) is classifying the in vivo cured intramedullary fixation rod into class II (special controls). The special controls that apply to the device type are identified in this order and will be part of the codified language for the in vivo cured intramedullary fixation rod's classification. We are taking this action because we have determined that classifying the device into class II (special controls) will provide a reasonable assurance of safety and effectiveness of the device. We believe this action will also enhance patients' access to beneficial innovative devices, in part by reducing regulatory burdens.

    DATES:

    This order is effective June 8, 2018. The classification was applicable on December 19, 2017.

    FOR FURTHER INFORMATION CONTACT:

    Peter Allen, Center for Devices and Radiological Health, Food and Drug Administration, 10903 New Hampshire Ave., Bldg. 66, Rm. 1512, Silver Spring, MD 20993-0002, 301-796-6402, [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    Upon request, FDA has classified the in vivo cured intramedullary fixation rod as class II (special controls), which we have determined will provide a reasonable assurance of safety and effectiveness. In addition, we believe this action will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens by placing the device into a lower device class than the automatic class III assignment.

    The automatic assignment of class III occurs by operation of law and without any action by FDA, regardless of the level of risk posed by the new device. Any device that was not in commercial distribution before May 28, 1976, is automatically classified as, and remains within, class III and requires premarket approval unless and until FDA takes an action to classify or reclassify the device (see 21 U.S.C. 360c(f)(1)). We refer to these devices as “postamendments devices” because they were not in commercial distribution prior to the date of enactment of the Medical Device Amendments of 1976, which amended the Federal Food, Drug, and Cosmetic Act (FD&C Act).

    FDA may take a variety of actions in appropriate circumstances to classify or reclassify a device into class I or II. We may issue an order finding a new device to be substantially equivalent under section 513(i) of the FD&C Act (21 U.S.C. 360c(i)) to a predicate device that does not require premarket approval. We determine whether a new device is substantially equivalent to a predicate by means of the procedures for premarket notification under section 510(k) of the FD&C Act (21 U.S.C. 360(k)) and part 807 (21 CFR part 807).

    FDA may also classify a device through “De Novo” classification, a common name for the process authorized under section 513(f)(2) of the FD&C Act. Section 207 of the Food and Drug Administration Modernization Act of 1997 established the first procedure for De Novo classification (Pub. L. 105-115). Section 607 of the Food and Drug Administration Safety and Innovation Act modified the De Novo application process by adding a second procedure (Pub. L. 112-144). A device sponsor may utilize either procedure for De Novo classification.

    Under the first procedure, the person submits a 510(k) for a device that has not previously been classified. After receiving an order from FDA classifying the device into class III under section 513(f)(1) of the FD&C Act, the person then requests a classification under section 513(f)(2).

    Under the second procedure, rather than first submitting a 510(k) and then a request for classification, if the person determines that there is no legally marketed device upon which to base a determination of substantial equivalence, that person requests a classification under section 513(f)(2) of the FD&C Act.

    Under either procedure for De Novo classification, FDA shall classify the device by written order within 120 days. The classification will be according to the criteria under section 513(a)(1) of the FD&C Act. Although the device was automatically placed within class III, the De Novo classification is considered to be the initial classification of the device.

    We believe this De Novo classification will enhance patients' access to beneficial innovation, in part by reducing regulatory burdens. When FDA classifies a device into class I or II via the De Novo process, the device can serve as a predicate for future devices of that type, including for 510(k)s (see 21 U.S.C. 360c(f)(2)(B)(i)). As a result, other device sponsors do not have to submit a De Novo request or premarket approval application in order to market a substantially equivalent device (see 21 U.S.C. 360c(i), defining “substantial equivalence”). Instead, sponsors can use the less burdensome 510(k) process, when necessary, to market their device.

    II. De Novo Classification

    On December 28, 2016, IlluminOss Medical, Inc. submitted a request for De Novo classification of the IlluminOss Photodynamic Bone Stabilization System. FDA reviewed the request in order to classify the device under the criteria for classification set forth in section 513(a)(1) of the FD&C Act.

    We classify devices into class II if general controls by themselves are insufficient to provide reasonable assurance of safety and effectiveness, but there is sufficient information to establish special controls that, in combination with the general controls, provide reasonable assurance of the safety and effectiveness of the device for its intended use (see 21 U.S.C. 360c(a)(1)(B)). After review of the information submitted in the request, we determined that the device can be classified into class II with the establishment of special controls. FDA has determined that these special controls, in addition to the general controls, will provide reasonable assurance of the safety and effectiveness of the device.

    Therefore, on December 19, 2017, FDA issued an order to the requester classifying the device into class II. FDA is codifying the classification of the device by adding 21 CFR 888.3023. We have named the generic type of device in vivo cured intramedullary fixation rod, and it is identified as a prescription implanted device consisting of a balloon that is inserted into the medullary canal of long bones for the fixation of fractures. The balloon is infused with, and completely encapsulates, a liquid monomer that is exposed to a curing agent that polymerizes the monomer within the balloon creating a hardened rigid structure.

    FDA has identified the following risks to health associated specifically with this type of device and the measures required to mitigate these risks in table 1.

    Table 1—In Vivo Cured Intramedullary Fixation Rod Risks and Mitigation Measures Identified risks Mitigation measures Adverse tissue reaction resulting from: Biocompatibility evaluation and Labeling. • Balloon leakage • Device materials Infection, including wound complications Sterilization validation, Reprocessing validation, Shelf life testing, Pyrogenicity testing, and Labeling. Bone fracture resulting from: Non-clinical performance testing and Labeling. • Device bending, cracking, or fracture • Device migration or instability, including initial inadequate fixation • Inability to properly deploy or remove device Soft tissue damage including transection or laceration of neural, vascular, or muscular structures Non-clinical performance testing and Labeling. Pain and/or loss of function resulting from: Non-clinical performance testing and Labeling. • Balloon leakage • Device bending, cracking, or fracture • Device migration or instability, including initial inadequate fixation • Inability to properly deploy or remove device Revision Non-clinical performance testing and Labeling. Electric shock or interference with other electrical devices Electrical safety testing, Electromagnetic compatibility testing, and Labeling. Exothermic reaction leading to tissue injury Non-clinical performance testing.

    FDA has determined that special controls, in combination with the general controls, address these risks to health and provide reasonable assurance of safety and effectiveness. For a device to fall within this classification, and thus avoid automatic classification in class III, it would have to comply with the special controls named in this final order. The necessary special controls appear in the regulation codified by this order. This device is subject to premarket notification requirements under section 510(k) of the FD&C Act.

    At the time of classification, in vivo cured intramedullary fixation rods are for prescription use only. Prescription devices are exempt from the requirement for adequate directions for use for the layperson under section 502(f)(1) of the FD&C Act (21 U.S.C. 352(f)(1)) and 21 CFR 801.5, as long as the conditions of 21 CFR 801.109 are met (referring to 21 U.S.C. 352(f)(1)).

    III. Analysis of Environmental Impact

    The Agency has determined under 21 CFR 25.34(b) 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.

    IV. Paperwork Reduction Act of 1995

    This final order establishes special controls that refer 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 the guidance document “De Novo Classification Process (Evaluation of Automatic Class III Designation)” have been approved under OMB control number 0910-0844; the collections of information in 21 CFR part 814, subparts A through E, regarding premarket approval, have been approved under OMB control number 0910-0231; 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 part 801, regarding labeling, have been approved under OMB control number 0910-0485.

    List of Subjects in 21 CFR Part 888

    Medical devices.

    Therefore, under the Federal Food, Drug, and Cosmetic Act and under authority delegated to the Commissioner of Food and Drugs, 21 CFR part 888 is amended as follows:

    PART 888—ORTHOPEDIC DEVICES 1. The authority citation for part 888 is revised to read as follows: Authority:

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

    2. Add § 888.3023 to subpart D to read as follows:
    § 888.3023 In vivo cured intramedullary fixation rod.

    (a) Identification. An in vivo cured intramedullary fixation rod is a prescription implanted device consisting of a balloon that is inserted into the medullary canal of long bones for the fixation of fractures. The balloon is infused with, and completely encapsulates, a liquid monomer that is exposed to a curing agent which polymerizes the monomer within the balloon creating a hardened rigid structure.

    (b) Classification. Class II (special controls). The special controls for this device are:

    (1) Non-clinical performance testing must demonstrate that the device performs as intended under anticipated conditions of use. The following performance characteristics must be tested:

    (i) Mechanical testing must be conducted on the final device to assess burst, abrasion, bending, and torsion in static and dynamic conditions.

    (ii) Mechanical testing must demonstrate the integrity of the balloon including testing for leaks, ruptures, and release of cured/uncured material.

    (iii) Performance testing must demonstrate that the device can be inserted and removed.

    (iv) Performance testing must demonstrate the ability, in the event of a leak, to remove the uncured material from its in vivo location.

    (v) Performance testing must demonstrate the reliability and accuracy of the curing method used.

    (vi) Thermal safety testing must be conducted to evaluate the temperature rise during curing.

    (2) Electrical safety, electromagnetic compatibility (EMC) testing, and electromagnetic interference (EMI) testing must be conducted for all electrical components.

    (3) All patient-contacting components must be demonstrated to be biocompatible.

    (4) Performance data must demonstrate the sterility and pyrogenicity of patient contacting components of the device that are provided sterile.

    (5) Performance data must validate the reprocessing instructions for any reusable components or instruments.

    (6) Performance data must support the shelf life of the system by demonstrating continued sterility, package integrity, and system functionality over the established shelf life.

    (7) Technological characterization of the device must include materials, curing agents, and a description of the operating principles of the device, including the delivery system and devices which initiate the curing process.

    (8) Labeling must include the following:

    (i) A detailed summary of the device technical parameters.

    (ii) Information describing all materials of the device.

    (iii) Information describing how to perform the procedure and use the device, including the delivery system and devices which initiate the curing process, as well as how to remove the device and any uncured materials.

    (iv) A shelf life.

    (v) Validated methods and instructions for reprocessing any reusable components or instruments.

    Dated: June 4, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-12339 Filed 6-7-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF THE TREASURY Internal Revenue Service 26 CFR Part 1 [TD 9833] RIN 1545-BO43 Partnership Transactions Involving Equity Interests of a Partner AGENCY:

    Internal Revenue Service (IRS), Treasury.

    ACTION:

    Final rule.

    SUMMARY:

    This document contains final regulations that prevent a corporate partner from avoiding corporate-level gain through transactions with a partnership involving equity interests of the partner or certain related entities. This document also contains final regulations that allow consolidated group members that are partners in the same partnership to aggregate their bases in stock distributed by the partnership for the purpose of limiting the application of rules that might otherwise cause basis reduction or gain recognition. This document also contains final regulations that may also require certain corporations that engage in gain elimination transactions to reduce the basis of corporate assets or to recognize gain. These final regulations affect partnerships and their partners.

    DATES:

    Effective Date: These final regulations are effective on June 8, 2018.

    Applicability Date: These final regulations are applicable on or after June 12, 2015.

    FOR FURTHER INFORMATION CONTACT:

    Concerning the final regulations, Kevin I. Babitz, (202) 317-6852.

    SUPPLEMENTARY INFORMATION:

    Background 1. Overview

    On June 12, 2015, the Department of the Treasury (and the IRS published final and temporary regulations (TD 9722) under section 337(d) of the Internal Revenue Code (Code) in the Federal Register (80 FR 33402). On July 8, 2015, corrections to TD 9722 were published in the Federal Register (80 FR 38940-38941) (together with TD 9722, the temporary regulations). The temporary regulations expire on June 11, 2018.

    A notice of proposed rulemaking (REG-149518-03) withdrawing proposed regulations under section 337(d) published in 1992, and proposing new proposed regulations by cross-reference to the temporary regulations, was published in the Federal Register (80 FR 33451) on the same date as TD 9722. Additionally, on June 12, 2015, the Treasury Department and the IRS published proposed regulations (REG-138759-14) under section 732(f) in the Federal Register (80 FR 33452) (together with the 2015 proposed regulations under section 337(d), the 2015 regulations).

    The Treasury Department and the IRS received one comment letter in response to the 2015 regulations. Except as described below, the commenter largely supported the 2015 regulations while recommending some minor modifications and clarifications to the 2015 regulations under both section 337(d) and section 732(f). The comment letter is discussed in detail in the Explanation of Provisions section of this preamble.

    After considering this comment letter, this Treasury decision adopts as final regulations the rules set forth in the 2015 regulations under section 337(d) (with only minor, nonsubstantive clarifications in response to the commenter's request for additional certainty regarding certain collateral effects) and section 732(f) (without any change). However, the Treasury Department and the IRS are considering publishing a new notice of proposed rulemaking to propose more substantive amendments to the final regulations under section 337(d) and to allow for additional public comment with respect to these more substantive proposals in response to the comment letter, further reflection by the Treasury Department and the IRS, and concerns raised by practitioners.

    2. Regulations Under Section 337(d) A. Background

    In General Utilities & Operating Co. v. Helvering, 296 U.S. 200 (1935), the Supreme Court held that corporations generally could distribute appreciated property to their shareholders without the recognition of any corporate level gain (the General Utilities doctrine). Beginning with legislation in 1969 and culminating in the Tax Reform Act of 1986, Public Law 99-514 (100 Stat. 2085) (the Act), Congress repealed the General Utilities doctrine by enacting section 336(a) to apply gain and loss recognition to liquidating distributions.

    Under current law, sections 311(b) and 336(a) require a corporation that distributes appreciated property to its shareholders to recognize gain determined as if the property were sold to the shareholders for its fair market value. Additionally, section 631 of the Act added section 337(d) to permit the Secretary to prescribe regulations that are necessary or appropriate to carry out the purposes of the General Utilities repeal, “including regulations to ensure that [the repeal of the General Utilities doctrine] may not be circumvented through the use of any provision of law or regulations.”

    After the enactment of sections 311(b) and 337(d), the Treasury Department and the IRS became aware of transactions in which taxpayers used a partnership to postpone or avoid completely gain generally required to be recognized under section 311(b). In one example of this transaction, a corporation entered into a partnership and contributed appreciated property. The partnership then acquired stock of that corporate partner, and later made a liquidating distribution of this stock to the corporate partner. Under section 731(a), the corporate partner did not recognize gain on the partnership's distribution of its stock. By means of this transaction, the corporation had disposed of the appreciated property it formerly held and had acquired its own stock, permanently avoiding its gain in the appreciated property. If the corporation had directly exchanged the appreciated property for its own stock, section 311(b) would have required the corporation to recognize gain upon the exchange.

    In response to these types of abusive transactions, the Treasury Department and the IRS issued Notice 89-37, 1989-1 CB 679, on March 9, 1989. Notice 89-37 announced that future regulations under section 337(d) would address the use of partnerships to avoid the repeal of the General Utilities doctrine.

    On December 15, 1992, the Treasury Department and the IRS published a notice of proposed rulemaking under section 337(d) (PS-91-90, REG-208989-90, 1993-1 CB 919) in the Federal Register (57 FR 59324) addressing abusive partnership transactions involving stock of a corporate partner (the 1992 proposed regulations). The 1992 proposed regulations set forth a deemed redemption rule and a separate distribution rule to prevent a corporate partner from avoiding corporate-level gain through transactions with a partnership involving stock of the corporate partner, stock of the partner's affiliate, and other equity interests in the corporate partner or affiliate. The 1992 proposed regulations treated a corporation as an affiliate of a partner at the time of a deemed redemption or distribution by the partnership if, immediately thereafter, the partner and corporation were members of an affiliated group as defined in section 1504(a) without regard to section 1504(b) (section 337(d) affiliation). On January 19, 1993, the Treasury Department and the IRS issued Notice 93-2, 1993-1 CB 292, which stated that the 1992 proposed regulations would be amended to limit the application of the regulations to transactions in which section 337(d) affiliation existed immediately before the deemed redemption or distribution. The Treasury Department and the IRS received comments on the 1992 proposed regulations, and adopted a number of these comments in the 2015 regulations.

    B. The 2015 Regulations

    The 2015 regulations under section 337(d) set forth a rule (the deemed redemption rule) that was aimed at protecting the repeal of the General Utilities doctrine. The 2015 regulations provided that certain transactions create the economic effect of an exchange of appreciated property for Stock of the Corporate Partner and, to tax such exchange appropriately, the deemed redemption rule provided that a Corporate Partner recognizes gain at the time of, and to the extent that, any transaction (or series of transactions) has the economic effect of an exchange by the partner of its interest in appreciated property for an interest in Stock of the Corporate Partner owned, acquired, or distributed by the partnership. (The terms Corporate Partner and Stock of the Corporate Partner are defined in section 1.B.i. of the Explanation of Provisions.)

    The 2015 regulations did not adopt the separate distribution rule set forth in the 1992 proposed regulations. Instead, the 2015 regulations applied the deemed redemption rule to partnership distributions of Stock of the Corporate Partner to the Corporate Partner as though the partnership amended its agreement, immediately before the distribution, to allocate 100 percent of the distributed stock to the Corporate Partner. The 2015 regulations also set forth de minimis and inadvertence exceptions to the deemed redemption rule.

    3. Regulations Under Section 732(f) A. Section 732(f)

    Section 538 of the Ticket to Work and Work Incentives Improvement Act of 1999, Public Law 106-170 (113 Stat. 1860) (December 17, 1999), added section 732(f) generally effective for distributions of made after July 14, 1999. Section 732(f) provides that if (1) a corporate partner receives a distribution from a partnership of stock in another corporation (distributed corporation); (2) the corporate partner has control of the distributed corporation, defined as ownership of stock meeting the requirements of section 1504(a)(2), immediately after the distribution or at any time thereafter (control requirement); and (3) the partnership's basis in the stock immediately before the distribution exceeded the corporate partner's basis in the stock immediately after the distribution, then the basis of the distributed corporation's property must be reduced by this excess. The amount of this reduction is limited to the amount by which the sum of the aggregate adjusted basis of property and the amount of money of the distributed corporation exceeds the corporate partner's adjusted basis in the stock of the distributed corporation. The corporate partner must recognize gain to the extent that the basis of the distributed corporation's property cannot be reduced.

    Congress enacted section 732(f) due to concerns that a corporate partner could otherwise negate the effects of a basis step-down to distributed property required under section 732(b) by applying the step-down against the basis of the stock of the distributed corporation.

    For example, assume a corporate partner has a partnership interest with zero basis and receives a partnership distribution of high-basis stock in a corporation. The corporate partner's basis in the distributed corporation's stock is reduced to zero under section 732(a) or section 732(b). If the partnership has elected under section 754, then the basis of other partnership property is increased by an equal amount under section 734(b). The section 732 basis decrease and the section 734(b) basis increase generally offset each other. However, if the corporate partner owned stock in the distributed corporation that satisfied the control requirement, the corporate partner could liquidate the distributed corporation under section 332, and section 334(b) would generally provide for a carryover basis in the distributed corporation's property received by the corporate partner in the liquidation. Taken together, these rules could permit the partnership to increase the basis of its retained property without an equivalent basis reduction following the liquidation of the distributed corporation. Section 732(f) generally precludes this result by requiring that either the distributed corporation must reduce the basis of its property or the corporate partner must recognize gain (to the extent the distributed corporation is unable to reduce the basis of its property). Thus, section 732(f) generally ensures that any basis increase under section 734(b) is offset.

    Section 732(f)(8) grants the Secretary authority to prescribe regulations that may be necessary to carry out the purposes of this subsection, including regulations to avoid double counting and to prevent the abuse of such purposes.

    B. The 2015 Regulations

    In the preamble to the 2015 regulations under section 732(f), the Treasury Department and the IRS stated that the application of section 732(f) was too broad in some circumstances and too narrow in others. Specifically, the application was overbroad because section 732(f) could require basis reduction or gain recognition even though that basis reduction or gain recognition did not further the purposes of section 732(f). Alternatively, the application was too narrow because corporate partners could inappropriately avoid the purposes of section 732(f) by engaging in transactions that allow corporate partners to receive property held by a distributed corporation without reducing the basis of that property to account for basis reductions under section 732(b) made when the partnership distributed stock of the distributed corporation to the corporate partner.

    To address these concerns, the 2015 regulations set forth specific rules governing the application of section 732(f) in two specific sets of circumstances. The first rule would permit consolidated group members to aggregate the bases of their respective interests in the same partnership, in certain circumstances, for section 732(f) purposes. The second rule would restrict corporate partners from entering into certain transactions or a series of transactions (gain elimination transactions), such as a distribution followed by a reorganization under section 368(a), that might eliminate gain in the stock of a distributed corporation while avoiding the effects of a basis step-down under section 732(f) because the control requirement would not be immediately satisfied.

    In addition, the 2015 regulations under section 732(f) required taxpayers to apply those rules to tiered partnerships in a manner consistent with the purpose of section 732(f).

    Explanation of Provisions 1. Final Regulations Under Section 337(d) A. Generally

    The final regulations under section 337(d) provide that the purpose of the regulations is to prevent corporate taxpayers from using a partnership to circumvent gain required to be recognized under section 311(b) or section 336(a). These final regulations, including the rules governing the amount, timing, and character of recognized gain, must be applied in a manner consistent with, and which reasonably carries out, this purpose.

    These final regulations apply when a partnership, either directly or indirectly, owns, acquires, or distributes Stock of the Corporate Partner (as defined in § 1.337(d)-3(c)(2) of these final regulations). Under these final regulations, a Corporate Partner (as defined at § 1.337(d)-3(c)(1) of these final regulations) may recognize gain when it is treated as acquiring or increasing its interest in Stock of the Corporate Partner held by a partnership in exchange for appreciated property in a manner that avoids gain recognition under section 311(b) or section 336(a). These final regulations also provide exceptions under which a Corporate Partner is not required to recognize gain.

    B. Scope and Definitions i. Corporate Partner and Stock of the Corporate Partner

    The 2015 regulations defined a Corporate Partner as a person that holds or acquires an interest in a partnership and that is classified as a corporation for federal income tax purposes. The 2015 regulations defined Stock of the Corporate Partner expansively to include the Corporate Partner's stock, or other equity interests, including options, warrants, and similar interests, in the Corporate Partner, or in a corporation that controls the Corporate Partner within the meaning of section 304(c), except that section 318(a)(1) and (3) shall not apply (referred to in this Explanation of Provisions as a Controlling Corporation). Stock of the Corporate Partner also included interests in any entity to the extent that the value of the interest is attributable to Stock of the Corporate Partner.

    The commenter asked whether an equity interest issued by a third party on a Corporate Partner's stock, such as an option issued by a bank on the Corporate Partner's stock, was considered Stock of the Corporate Partner. The Treasury Department and the IRS confirm that all options, warrants, and other similar interests issued by third parties on a Corporate Partner's stock, a Controlling Corporation's stock, or any interests in any entity to the extent that the value of the interest is attributable to Stock of the Corporate Partner, are Stock of the Corporate Partner under both the temporary regulations and these final regulations. No inference is intended regarding whether options, warrants, and other similar interests are subject to section 1032 where they create an equity interest in the Stock of the Corporate Partner.

    ii. Stock of the Corporate Partner: Controlling Corporations

    The 2015 regulations provided that Stock of the Corporate Partner includes the stock (or other equity interests) in a Controlling Corporation. The commenter asked whether stock in a Controlling Corporation wholly constitutes Stock of the Corporate Partner or only constitutes Stock of the Corporate Partner to the extent the value of the Controlling Corporation's stock is attributable to that corporation's interest in the Corporate Partner. These final regulations clarify that it is intended that stock (or any other equity interest) in a Controlling Corporation will wholly constitute Stock of the Corporate Partner irrespective of the ratio of the Controlling Corporation's interest in the Corporate Partner to the Controlling Corporation's total assets. In response to this comment, the final regulations also include a new example to clearly illustrate this point. See Example 2 of § 1.337(d)-3(h) in these final regulations.

    With respect to the rule that Stock of the Corporate Partner includes an interest in an entity to the extent that the value of the interest is attributable to the Stock of the Corporate Partner (Value Rule), the commenter asked that, in cases in which the entity is not controlled by the Corporate Partner and which is not a Controlling Corporation, that a limitation be added that the interest in the entity would not be treated as Stock of the Corporate Partner if less than 20 percent of the assets of the entity consisted of Stock of the Corporate Partner. The Treasury Department and the IRS agree with the commenter that the Value Rule in the 2015 regulations could be overbroad in certain situations but decline to adopt the commenter's specific suggestion in these final regulations because such a rule would be too generous and could permit taxpayers to structure transactions that would contravene the purpose of section 337(d) and these regulations. However, the Treasury Department and the IRS are considering publishing new proposed regulations to limit the application of the Value Rule to entities that are not Controlling Corporations but which own, directly or indirectly, 5 percent or more of the stock, by vote or value, of the Corporate Partner and clarifying how taxpayers would determine what portion of the value of the interest in the entity is attributable to Stock of the Corporate Partner.

    iii. Stock of the Corporate Partner: Attribution

    The 2015 regulations defined Stock of the Corporate Partner to include stock in a Controlling Corporation. The 2015 regulations employed the section 304(c) definition of control, which generally requires the ownership of stock with either 50 percent of the voting power in the corporation or 50 percent of the value of the corporation. While section 304(c) incorporates the constructive ownership rules of section 318(a) with some modifications, the 2015 regulations excluded the application of sections 318(a)(1) and (3) from its definition of control.

    The commenter agreed with excluding section 318(a)(3) attribution from the application of section 304(c) under the 2015 regulations, but noted that it may be inappropriate to exclude section 318(a)(1) family attribution. The commenter suggested that families could invoke this exclusion to structure partnerships in such a way to avoid these regulations but which would be transactions that should otherwise be subject to these final regulations. The Treasury Department and the IRS agree that excluding family attribution under section 318(a)(1) could produce inappropriate results. Additionally, the Treasury Department and the IRS have also determined that taxpayers could structure transactions designed to take advantage of the lack of section 318(a)(3) attribution. Therefore, the Treasury Department and the IRS are considering publishing new proposed regulations to further modify the definition of Stock of the Corporate Partner so that it would no longer exclude attribution under sections 318(a)(1) and (3) when determining whether an interest in an entity is Stock of the Corporate Partners under section 304(c), but which would limit the proposed expanded scope of section 304(c) control to entities that own, directly or indirectly, an interest in the Corporate Partner.

    iv. Stock of the Corporate Partner: Related-Party Partnerships

    The 2015 regulations provided an exception from the definition of Stock of the Corporate Partner in the case of certain related-party partnerships. Under this exception, Stock of the Corporate Partner did not include any stock or other equity interests held or acquired by a partnership if all interests in the partnership's capital and profits are held by members of an affiliated group defined in section 1504(a) that includes the Corporate Partner (Affiliated Group Exception).

    The commenter suggested that the final regulations extend the Affiliated Group Exception to partnerships in which a high percentage, but not all, of its interests are owned by affiliated group members. The commenter asserted that, under these facts, there would be no reason to require gain recognition. The commenter also recommended that the final regulations extend the affiliated group exception to lower-tier partnerships owned by one or more upper-tier partnerships, if the upper-tier partnerships are entirely owned by members of an affiliated group that includes the Corporate Partner.

    After further study of this issue, and in light of the other exceptions to the deemed redemption rule, the Treasury Department and the IRS decline to adopt these comments because even without such extensions the Affiliated Group Exception could permit inappropriate elimination of corporate level built-in gain. For example—

    Assume that P, a corporation, owns all of the stock of S1, and S1 owns all of the stock of CP. P, S1, and CP are members of an affiliated group. P and CP form a 50-50 partnership, where CP contributes an appreciated asset to the partnership, and P contributes S1 stock with a basis equal to fair market value. After seven years, the partnership liquidates and distributes the S1 stock to CP and the appreciated asset to P. At that time, the asset may be sold outside of the group with an artificially increased basis. While the built-in gain that was in the asset now is preserved in the S1 stock held by CP, the group may permanently eliminate the gain without tax by causing CP to liquidate. CP would receive nonrecognition treatment on distribution of the S1 stock to S1 under section 332, and S1 would receive nonrecognition treatment on the receipt of its own stock under section 1032. Thus, the liquidation of CP permanently eliminates the built-in gain on the appreciated asset that attached to the hook stock CP held in S1 after the liquidation of the partnership.

    Although these final regulations retain the Affiliated Group Exception, the Treasury Department and the IRS are considering publishing new proposed regulations to remove the Affiliated Group Exception because this exception can permit corporations to engage in transactions with partnerships to eliminate permanently the built-in gain on appreciated assets or otherwise to avoid the purposes of General Utilities repeal and these regulations.

    v. Section 337(d) Transactions

    The 2015 regulations provided that, for partnerships that hold Stock of the Corporate Partner, the 2015 regulations apply to a transaction (or a series of transactions) that is a “Section 337(d) Transaction.” The 2015 regulations defined a Section 337(d) Transaction as a transaction (or series of transactions) that has the effect of an exchange by a Corporate Partner of its interest in appreciated property for an interest in Stock of the Corporate Partner owned, acquired, or distributed by a partnership. For example, a Section 337(d) Transaction may occur if: (i) A Corporate Partner contributes appreciated property to a partnership that owns Stock of the Corporate Partner; (ii) a partnership acquires Stock of the Corporate Partner; (iii) a partnership that owns Stock of the Corporate Partner distributes appreciated property to a partner other than the Corporate Partner; (iv) a partnership distributes Stock of the Corporate Partner to the Corporate Partner; or (v) a partnership agreement is amended in a manner that increases a Corporate Partner's interest in the Stock of the Corporate Partner (including in connection with a contribution to, or distribution from, a partnership).

    In certain circumstances, a partnership's acquisition of Stock of the Corporate Partner does not have the effect of an exchange of appreciated property for that stock. For example, if a partnership with an operating business uses the cash generated in that business to purchase Stock of the Corporate Partner, the deemed redemption rule does not apply to the stock purchase because the Corporate Partner's share in appreciated property has not been reduced, and thus no exchange has occurred. The Treasury Department and the IRS acknowledge that such stock acquisitions would not trigger the deemed redemption rule. The Treasury Department and the IRS note, however, that because of the administrative difficulties in tracing the source of cash used to acquire Corporate Partner stock, taxpayers wishing to invoke this exception must maintain appropriate records or other documentation to affirmatively demonstrate that the consideration used in the exchange to acquire the Stock of the Corporate Partner at issue came from operating cashflow.

    The commenter asked whether the 2015 regulations encompassed other types of acquisitions of Stock of the Corporate Partner for cash, and requested that the final regulations include examples of transactions that do not have the effect of an exchange of appreciated property for Stock of the Corporate Partner. The Treasury Department and the IRS considered this comment, but decline to add additional examples because those examples would go beyond the scope of these final regulations which is to prevent the exchange of appreciated property for Stock of the Corporate Partner.

    C. Deemed Redemption Rule i. Generally

    The 2015 regulations provided that if a transaction is a Section 337(d) Transaction, a Corporate Partner must recognize gain under the deemed redemption rule. To determine the amount of gain, the Corporate Partner must first determine the amount of appreciated property (other than Stock of the Corporate Partner) effectively exchanged for Stock of the Corporate Partner (by value) and then calculate the amount of taxable gain recognized.

    The deemed redemption rule applies only to the extent that the transaction has the effect of an exchange by the Corporate Partner of its interest in appreciated property for Stock of the Corporate Partner. Thus, this rule does not apply to the extent a transaction has the effect of an exchange by a Corporate Partner of non-appreciated property for Stock of the Corporate Partner or has the effect of an exchange by a Corporate Partner of appreciated property for property other than Stock of the Corporate Partner.

    The 2015 regulations set forth general principles that apply in determining the amount of appreciated property effectively exchanged for Stock of the Corporate Partner. These general principles require that the Corporate Partner's economic interest with respect to both Stock of the Corporate Partner and all other appreciated property of the partnership be determined based on all facts and circumstances, including the allocation and distribution rights set forth in the partnership agreement.

    A Corporate Partner must recognize gain under the 2015 regulations even if the Section 337(d) Transaction would not otherwise change the Corporate Partner's allocable share of gain under section 704(c). For example, if a Corporate Partner contributes appreciated property to a newly-formed partnership and an individual contributes cash that the partnership subsequently uses to purchase Stock of the Corporate Partner, then the purchase of the stock is a Section 337(d) Transaction even though the Corporate Partner's allocable share of gain in the appreciated property under section 704(c) is the same before and after the purchase. See Example 4 of § 1.337(d)-3(h) in these final regulations.

    The Treasury Department and the IRS did not receive comments on this general deemed redemption rule. Therefore, these final regulations adopt the rule set forth in the 2015 regulations.

    ii. Subsequent Transactions

    Under the 2015 regulations, the deemed redemption rule did not apply to transactions involving stock that does not meet the definition of Stock of the Corporate Partner. The commenter asked whether, in cases in which the deemed redemption rule does not apply to an initial transaction because the definition of Stock of the Corporate Partner is not satisfied, if certain subsequent transactions would trigger gain recognition by treating those transactions as Section 337(d) Transactions. The Treasury Department and the IRS intend for certain subsequent transactions to trigger gain recognition as Section 337(d) Transactions. Therefore, in response to this comment, the Treasury Department and the IRS clarify that these final regulations apply to certain transactions involving related parties in which a first transaction does not constitute a Section 337(d) Transaction because the partnership does not own stock in either a Corporate Partner or in a Controlling Corporation, but the Corporate Partner in a later, separate transaction transfers its partnership interest to a related corporation whose stock the partnership owns. In these transactions, the deemed redemption rule will trigger gain as if the first transaction was a Section 337(d) Transaction with the result that the transferee corporation who is now itself a Corporate Partner will “step into the shoes” of the first Corporate Partner and will be subject to the deemed redemption rule to the extent of the first Corporate Partner's remaining built-in gain in the appreciated asset immediately prior to the transfer.

    iii. Prior Transactions

    The 2015 regulations provided that, if the Corporate Partner has an existing interest in the partnership's Stock of the Corporate Partner prior to the Section 337(d) Transaction, the deemed redemption rule applies only with respect to the Corporate Partner's incremental increase in the Stock of the Corporate Partner. For example, changing allocations to increase a Corporate Partner's interest in the Stock of the Corporate Partner from 50 percent to 80 percent and to decrease the Corporate Partner's interest in other appreciated property from 80 percent to 50 percent would have the effect of an exchange by the Corporate Partner of the 30-percent incremental decrease in its interest in the appreciated property for the 30-percent incremental increase in the Stock of the Corporate Partner. The Treasury Department and the IRS did not receive comments on this rule, and therefore, these final regulations adopt the rule set forth in the 2015 regulations.

    iv. Special Rule for Determination of Corporate Partner's Interest

    For purposes of recognizing gain under the deemed redemption rule, the 2015 regulations provided that a Corporate Partner's interest in an identified share of Stock of the Corporate Partner will never be less than the Corporate Partner's largest interest (by value) in that share of Stock of the Corporate Partner that was taken into account when the partnership previously determined whether there had been a Section 337(d) Transaction (regardless of whether the Corporate Partner recognized gain in the earlier transaction). See Example 7 of § 1.337(d)-3(h) in these final regulations. This rule ensures that alternating increases and decreases in a Corporate Partner's interest in Stock of the Corporate Partner do not cause duplicate gain recognition.

    This limitation does not apply if any reduction in the Corporate Partner's interest in the identified share of Stock of the Corporate Partner occurred as part of a plan or arrangement to circumvent the purpose of these final regulations. See Example 8 of § 1.337(d)-3(h) in these final regulations.

    The commenter raised a question regarding the numbers used in this Example 8 (which was numbered as Example 7 in the 2015 regulations under section 337(d)). The commenter pointed out that under the example's facts, the two partners make initial contributions to the partnership in a 99 to 1 ratio, and make subsequent contributions in a 50 to 50 ratio. The commenter questioned why the example stated that the two partners are “equal partners” in all respects after the subsequent contributions. In response to this comment, the Treasury Department and the IRS clarify the example to provide that the subsequent contributions resulted in the partners' total contributions as being in a 50 to 50 ratio, so that, after the partners make these subsequent contributions, the partners have equal interests in the partnership in all respects. The aim of the example is to illustrate the rule that partners cannot utilize this special rule for determining a Corporate Partner's interest to circumvent the purpose of these final regulations. The Treasury Department and the IRS did not receive any other comments on this rule, and therefore, these final regulations adopt the rule set forth in the 2015 regulations.

    v. Amount and Character of Gain

    The 2015 regulations provided that, if a transaction is a Section 337(d) Transaction, the deemed redemption rule requires the Corporate Partner to recognize a percentage of the total gain in partnership appreciated property that is subject to the exchange equal to a fraction, the numerator of which is the Corporate Partner's interest (by value) in appreciated property effectively exchanged for Stock of the Corporate Partner under the deemed redemption rule, and the denominator of which is the Corporate Partner's interest (by value) in appreciated property immediately before the Section 337(d) Transaction. The 2015 regulations define this fraction as the Gain Percentage. The Corporate Partner's gain under the deemed redemption rule equals the product of (i) the Corporate Partner's Gain Percentage and (ii) the gain from the appreciated property that is the subject of the exchange that the Corporate Partner would recognize if, immediately before the Section 337(d) Transaction, all assets of the partnership and any assets contributed to the partnership in the Section 337(d) Transaction were sold in a fully taxable transaction for cash in an amount equal to the fair market value of such property (taking into account section 7701(g)), reduced, but not below zero, by any gain the Corporate Partner is required to recognize with respect to the appreciated property in the Section 337(d) Transaction under any other section of the Code.

    The gain from the hypothetical sale used to compute gain under the deemed redemption rule is determined by applying the principles of section 704(c), which generally requires the partnership to take into account variations between the adjusted tax basis and fair market value of partnership property at the time it is contributed to the partnership and upon certain other events that allow or require the value of partnership property to be redetermined under § 1.704-1(b)(2)(iv)(f). See Examples 4 and 6 of § 1.337(d)-3(h) in these final regulations. A partner's share of gain under section 704(c) for this purpose includes any remedial allocations under § 1.704-3(d) for a partnership that has elected under section 704(c) to report notional items of offsetting tax gain and loss to its partners to eliminate distortions that may arise when the partnership's total tax gain or loss on the sale of partnership property is less than all partners' aggregate share of gain or loss from the property. The Treasury Department and the IRS did not receive comments on this general rule governing the amount of gain from a Section 337(d) Transaction. These final regulations therefore adopt the rule set forth in the 2015 regulations. However, the commenter asked whether section 743(b) basis adjustments are taken into account when determining a Corporate Partner's gain in a Section 337(d) Transaction. The Treasury Department and the IRS confirm that basis adjustments, including adjustments made pursuant to section 743(b), are taken into account when calculating this gain, so that the Corporate Partner would not be subject to a duplication of tax liability.

    The commenter also noted that the 2015 regulations do not specify the character of the gain that a Corporate Partner recognizes in a Section 337(d) Transaction. In response to this comment, the final regulations clarify that the character of the gain that the Corporate Partner recognizes in a Section 337(d) Transaction is the same character of the gain that the Corporate Partner would have recognized if, immediately before the Section 337(d) Transaction, the Corporate Partner had disposed of the appreciated property in a fully taxable transaction for cash in an amount equal to the fair market value of such property (taking into account section 7701(g)).

    vi. Basis Rules

    The 2015 regulations contained two rules related to the effect of the deemed redemption rule on partner and partnership basis. First, the 2015 regulations require the Corporate Partner to increase its basis in its partnership interest by an amount equal to the gain that the Corporate Partner recognizes in a Section 337(d) Transaction. This basis increase is necessary to prevent the Corporate Partner from recognizing gain a second time when the partnership liquidates (or, if property is distributed to the Corporate Partner, when that property is sold). Under the 2015 regulations, this basis increase applies regardless of whether the partnership has a Section 754 election in effect. The commenter suggested that the final regulations clarify how a basis increase is treated for basis-recovery purposes. The final regulations provide this clarification by specifying that this increase is treated as property that is placed in service by the partnership in the taxable year of the Section 337(d) Transaction.

    Second, the 2015 regulations require the partnership to increase its adjusted tax basis in the appreciated property that is treated as the subject of a Section 337(d) Transaction by the amount of gain that the Corporate Partner recognized with respect to that property as a result of the Section 337(d) Transaction. The Treasury Department and the IRS did not receive comments on this basis increase rule and, accordingly, these final regulations adopt the rule set forth in the 2015 regulations.

    D. Partnership Distributions of Stock of the Corporate Partner i. General Rule Governing Distributions

    The 2015 regulations extended the deemed redemption rule to certain distributions to the Corporate Partner of Stock of the Corporate Partner. These rules governing distributions applied only if the distributed stock had previously been the subject of a Section 337(d) Transaction or became the subject of a Section 337(d) Transaction as a result of the distribution (a section 337(d) distribution). The 2015 regulations did not apply to a distribution to the Corporate Partner of the Stock of the Corporate Partner to which section 732(f) applied at the time of the distribution.

    If the deemed redemption rule applied to a distribution, the 2015 regulations deem the partnership to amend its agreement immediately before the distribution to allocate a 100 percent interest in that portion of the stock to the Corporate Partner that is distributed and to allocate an appropriately reduced interest in other partnership property away from the Corporate Partner. The 2015 regulations employ this deemed allocation solely for purposes of recognizing gain, and no inference is intended with regard to the treatment of such allocations generally.

    The Treasury Department and the IRS did not receive comments on this general rule governing partnership distributions and, accordingly, these final regulations adopt the rule set forth in the 2015 regulations.

    ii. Gain Recognition Rule

    The 2015 regulations provided that if a distribution is a section 337(d) distribution, then in addition to any gain recognized under the deemed redemption rule upon the distribution of Stock of the Corporate Partner to the Corporate Partner, the 2015 regulations also would require the Corporate Partner to recognize gain to the extent that the partnership's basis in the distributed Stock of the Corporate Partner exceeds the Corporate Partner's basis in its partnership interest (as reduced by any cash distributed in the transaction) immediately before the distribution.

    The commenter noted that the language used in this provision differs from the gain recognition provision of section 732(f)(1)(C), which evaluates whether the partnership's adjusted basis in the distributed stock immediately before the distribution exceeded the Corporate Partner's adjusted basis in that stock immediately after the distribution. The commenter asked whether these differences were intentional and, if so, for the explanation of the differences. The differences were not intentional and the Treasury Department and the IRS have determined that the provisions should be the same. Accordingly, the language of the gain recognition rule in these final regulations is modified to conform to the language used in the section 732(f) gain recognition provision.

    iii. Basis Rules

    The 2015 regulations set forth two rules under sections 337(d) and 732 to coordinate the effects of the rule requiring gain recognition when the basis of the Stock of the Corporate Partner is stepped down on a section 337(d) distribution with existing rules for determining the basis of property upon partnership distributions.

    The first rule applied for purposes of: (1) Determining the basis of property distributed to the Corporate Partner (other than the basis of the Corporate Partner in its own stock); (2) determining the basis of the Corporate Partner's remaining partnership interest; (3) determining the partnership's basis in undistributed Stock of the Corporate Partner; and (4) computing gain on the distribution. For these purposes, the basis of Stock of the Corporate Partner distributed to the Corporate Partner equals the greater of (i) the partnership's basis of that distributed Stock of the Corporate Partner immediately before the distribution, or (ii) the fair market value of that distributed Stock of the Corporate Partner immediately before the distribution, less the Corporate Partner's allocable share of gain from all of the Stock of the Corporate Partner, if the partnership sold all of its assets in a fully taxable transaction for cash in an amount equal to the fair market value of such property (taking into account section 7701(g)) immediately before the distribution. See Examples 3 and 4 of § 1.337(d)-3(h) in these final regulations. This special rule is necessary to prevent basis from shifting away from distributed Stock of the Corporate Partner to other property. This basis shift could occur, for example, upon a distribution of less than all of the partnership's Stock of the Corporate Partner to the Corporate Partner.

    The commenter asked whether this basis rule applies solely to the Corporate Partner or whether it applies for all purposes and recommended expanding Example 4 of § 1.337(d)-3(h) in these final regulations (which was numbered as Example 3 in the 2015 regulations under section 337(d)) to address the basis consequences to the partnership and to the non-corporate partner. The Treasury Department and the IRS confirm that this basis rule applies for all purposes, and these final regulations expand Example 4 of § 1.337(d)-3(h) to discuss the basis that AX partnership and partner A have in the X stock that is distributed to A.

    The second rule applied when a Corporate Partner receives both Stock of the Corporate Partner and other property in a section 337(d) distribution. Under this rule, the basis to be allocated to the properties distributed under section 732(a) or (b) is allocated first to the Stock of the Corporate Partner before taking into account the distribution of any other property (other than cash). Therefore, before taking into account the distribution of other property, the Corporate Partner will reduce its basis in its partnership interest by the Corporate Partner's basis in the distributed Stock of the Corporate Partner (but not below zero). The Corporate Partner will determine its basis in other distributed partnership property and in its remaining partnership interest after giving effect to this reduction. The 2015 regulations set forth this rule to ensure that the purposes of the repeal of the General Utilities doctrine are not circumvented through the use of any provision of law or regulations.

    When a Corporate Partner receives a partnership distribution of its own stock, it is unclear under existing law whether the Corporate Partner has basis in that stock. (See, for example, Rev. Rul. 2006-2, 2006-1 CB 261.) The resolution of this question is beyond the scope of these final regulations. However, because the distribution to a Corporate Partner of its own stock affects the Corporate Partner's basis in other distributed property and any retained partnership interest, these final regulations make clear that the partnership and the Corporate Partner must determine the basis of other distributed property and any retained partnership interest by reference to the partnership's basis in the distributed Stock of the Corporate Partner. That is, the Corporate Partner determines its basis in other distributed property and in any retained partnership interest as though the distributed stock was stock other than Stock of the Corporate Partner. Similarly, the 2015 regulations computed any gain recognition on the distribution by comparing the Corporate Partner's basis in its partnership interest to the basis of that Stock of the Corporate Partner in the hands of the partnership (without regard to whether the Corporate Partner can have basis in the distributed stock). No inference is intended with respect to the question of whether a corporation does or does not have basis in its own stock.

    The commenter noted that duplication of gain under sections 337(d) and 732(f) may occur under the 2015 regulations. The commenter provided an example in which a Corporate Partner could potentially recognize gain first under section 337(d) from a partnership distribution to which section 732(f) does not apply, because its control requirement is not satisfied at the time of the distribution, but then later be subject to the 732(f) basis reduction if the control requirement is subsequently satisfied. The Treasury Department and the IRS agree with the commenter and therefore, these final regulations set forth a basis rule providing that, for purposes of determining the amount of the decrease to the basis of property held by a distributed corporation pursuant to section 732(f), the amount of this decrease is reduced by the amount of gain that a Corporate Partner has recognized under this section in a Section 337(d) Transaction, both in cases where section 732(f) applies at the time of the Section 337(d) Transaction and in cases where section 732(f) is subsequently triggered. This rule prevents the Corporate Partner from recognizing the same gain twice.

    E. Exceptions i. De Minimis Exception

    The 2015 regulations set forth a de minimis rule providing that the 2015 regulations do not apply to a Corporate Partner if three conditions are satisfied. These conditions are tested upon the occurrence of a Section 337(d) Transaction and upon any subsequent revaluation event described in § 1.704-1(b)(2)(iv)(f).

    The first condition requires that both the Corporate Partner and any persons related to the Corporate Partner under section 267(b) or section 707(b) own, in the aggregate, less than 5 percent of the partnership. The second condition requires that the partnership hold Stock of the Corporate Partner worth less than 2 percent of the value of the partnership's gross assets, including Stock of the Corporate Partner. The third condition requires that the partnership has never, at any point in time, held more than $1,000,000 in Stock of the Corporate Partner or more than 2 percent of any particular class of Stock of the Corporate Partner.`

    The 2015 regulations provided a special rule that applies if the conditions of the de minimis rule are satisfied at the time of a Section 337(d) Transaction, but are not satisfied at the time of a subsequent Section 337(d) Transaction or revaluation event described in § 1.704-1(b)(2)(iv)(f). This rule provided that, solely for purposes of the deemed redemption rule, a Corporate Partner may determine its gain on the subsequent acquisition or revaluation event as if it had already recognized gain at the previous event. Accordingly, the Corporate Partner would only recognize gain with respect to appreciation arising between the earlier acquisition or revaluation event and the subsequent event. Neither the Corporate Partner nor the partnership increases its basis by the gain the Corporate Partner would have recognized if the de minimis rule did not apply to the prior acquisition or revaluation event.

    The Treasury Department and the IRS are concerned that taxpayers could intentionally plan to combine entities, each meeting the de minimis limits, to avoid the purposes of these final regulations. To address this concern, in these final regulations, the Treasury Department and the IRS add a clarifying provision to the de minimis exception stating that the exception does not apply to Stock of the Corporate Partner that is acquired as part of a plan to circumvent the purpose of these final regulations.

    ii. Exception for Certain Dispositions of Stock

    The 2015 regulations set forth another exception titled the “inadvertence rule.” This exception provided that the 2015 regulations do not apply to Section 337(d) Transactions in which the partnership satisfies two requirements. First, the partnership must dispose of, by sale or distribution, the Stock of the Corporate Partner before the due date (including extensions) of its federal income tax return for the taxable year in which the partnership acquired the stock (or in which the Corporate Partner joined the partnership, if applicable). Second, the partnership must not have distributed the Stock of the Corporate Partner to the Corporate Partner or a person possessing section 304(c) control of the Corporate Partner.

    The commenter asked, whether, notwithstanding the exception's title, the dispositions needed to be inadvertent to qualify for the exception. In order to avoid any ambiguity or any assumption that these dispositions must be inadvertent, these final regulations rename the exception to state that the exception simply applies to “certain dispositions of stock” that qualify for the exception and that inadvertence is not a requirement.

    The Treasury Department and the IRS also note that this exception requires that the stock at issue is not distributed to the Corporate Partner or a Controlling Corporation. As discussed in (1)(B) of this Explanation of Provisions with respect to the general definition of Stock of the Corporate Partner, the Treasury Department and the IRS are considering publishing new proposed regulations to modify the definition of Stock of the Corporate Partner to remove the exception for attribution under section 318(a)(1) and (3) from the scope of section 304(c) control.

    F. Other Comments

    The commenter requested that these final regulations provide examples on how to measure a Corporate Partner's partnership interest in more complex partnership agreements, such as situations in which the agreement contains a distribution waterfall. Similarly, the commenter requested that these final regulations provide more detailed examples relating to tiered partnership structures. The Treasury Department and the IRS believe that the purpose of these final regulations is to set forth rules of general applicability to prevent a corporate partner from avoiding corporate level gain through transactions with a partnership. The Treasury Department and the IRS therefore believe that providing such detailed examples is beyond the scope of these final regulations.

    2. Final Regulations Under Section 732(f)

    These final regulations adopt the rules set forth in the 2015 regulations under section 732(f) without any change to conform the application of section 732(f) with Congress' identified purposes for enacting sections 337(d), 732(f), and 1502 in certain situations.

    A. Aggregation of Section 732(b) Basis Adjustments

    As discussed in the Background, section 732(f) generally applies on a partner-by-partner basis. However, the Treasury Department and the IRS determined that, in certain circumstances, it is appropriate to aggregate the bases of consolidated group members in a partnership for purposes of applying section 732(f).

    The 2015 regulations provided that corporate partners that are members of the same consolidated group (as defined in § 1.1502-1(h)) could aggregate their bases in interests in the same partnership for purposes of section 732(f) when two conditions are met. First, two or more of the corporate partners receive a distribution of stock in a distributed corporation from the partnership. Second, the distributed corporation is or becomes a member of the distributee partners' consolidated group following the distribution.

    Under this rule, section 732(f) only applies to the extent that the partnership's adjusted basis in the distributed stock immediately before the distribution exceeds the aggregate basis of the distributed stock in the hands of all members of the distributee corporate partners' consolidated group immediately after the distribution. The 2015 regulations included the requirement that the distributed corporation be a member of the consolidated group in order to avoid unintended consequences that could result if that corporation were a controlled foreign corporation.

    The commenter recommended that the final regulations extend this basis-aggregation rule to include a distributed corporation (including a controlled foreign corporation) that is owned by members of the distributee partners' consolidated group following the distribution. The commenter stated that the distributed corporation need not be a member of the distributee partners' consolidated group, and that the rule should apply to corporations like a controlled foreign corporation that cannot be a member of a consolidated group. The Treasury Department and the IRS decline to adopt the comment because there could be unanticipated consequences if the distributed corporation were a controlled foreign corporation.

    B. Gain Elimination Transactions

    The 2015 regulations also provided rules that restrict corporate partners from entering into transactions or a series of transactions (gain elimination transactions), such as a distribution followed by a reorganization under section 368(a), that might eliminate gain in the stock of a distributed corporation while avoiding the effects of a basis step-down in transactions, because the section 732(f) control requirement is not immediately satisfied.

    Accordingly, the 2015 regulations provided that, in the event of a gain elimination transaction, section 732(f) shall apply as though the corporate partner acquired control (as defined in section 732(f)(5)) of the distributed corporation immediately before the gain elimination transaction.

    The Treasury Department and the IRS did not receive comments on the proposed rule governing gain elimination transactions. These final regulations adopt the rules set forth in the 2015 regulations.

    C. Tiered Partnerships

    The 2015 regulations required taxpayers to apply its rules to tiered partnerships in a manner consistent with the purpose of section 732(f). These final regulations maintain this requirement. The commenter requested that these final regulations provide examples illustrating their application to tiered partnerships. The Treasury Department and the IRS decline to adopt this comment, because such examples are beyond the scope of these final regulations, which is to set forth rules of general applicability governing the application of section 732(f) to two specific sets of circumstances.

    Applicability Date

    These final regulations apply to transactions occurring on or after June 12, 2015.

    Special Analyses

    This regulation is not subject to review under section 6(b) of Executive Order 12866 pursuant to the Memorandum of Agreement (April 11, 2018) between the Department of the Treasury and the Office of Management and Budget regarding review of tax regulations.

    Further, pursuant to the Regulatory Flexibility Act (5 U.S.C. chapter 6), it is hereby certified that these final regulations would not have a significant economic impact on a substantial number of small entities. This certification is based on the fact that these final regulations would primarily affect sophisticated ownership structures involving corporations that own partnerships owning stock or other equity interests in corporate partners. Additionally, these final regulations contain a number of de minimis and other exceptions that render the final regulations inapplicable to most small businesses, and do not impose a collection of information on small entities.

    Pursuant to section 7805(f), these final regulations have been submitted to the Chief Counsel for Advocacy of the Small Business Administration for comment on its impact on small business, and no comments were received.

    Statement of Availability of IRS Documents

    Notice 89-37 cited in this document is published in the Internal Revenue Bulletin (or Cumulative Bulletin) and is available from the Superintendent of Documents, U.S. Government Publishing Office, Washington, DC 20402, or by visiting the IRS website at http://www.irs.gov.

    Drafting Information

    The principal author of these final regulations is Kevin I. Babitz, Office of the Associate Chief Counsel (Passthroughs and Special Industries). However, other personnel from the Treasury Department and the IRS participated in their development.

    List of Subjects in 26 CFR Part 1

    Income taxes, Reporting and recordkeeping requirements.

    Amendments to the Regulations

    Accordingly, 26 CFR part 1 is amended as follows:

    PART I—INCOME TAXES Paragraph 1. The authority citation for part 1 is amended by removing the sectional authority for § 1.337(d)-3T, adding a sectional authority for § 1.337(d)(3) in numerical order, and revising the sectional authority for § 1.732-3 to read as follows: Authority:

    26 U.S.C. 7805 * * *

    Section 1.337(d)-3 also issued under 26 U.S.C. 337(d).

    Section 1.732-3 also issued under 26 U.S.C. 337(d), 732(f)(8), and 1502.

    Par. 2. Section 1.337(d)-3 is added to read as follows:
    § 1.337(d)-3 Gain recognition upon certain partnership transactions involving a partner's stock.

    (a) Purpose. The purpose of this section is to prevent corporate taxpayers from using a partnership to circumvent gain required to be recognized under section 311(b) or section 336(a). The rules of this section, including the determination of the amount of gain, must be applied in a manner that is consistent with and reasonably carries out this purpose.

    (b) In general. This section applies when a partnership, either directly or indirectly, owns, acquires, or distributes Stock of the Corporate Partner (within the meaning of paragraph (c)(2) of this section). Under paragraphs (d) or (e) of this section, a Corporate Partner (within the meaning of paragraph (c)(1) of this section) is required to recognize gain when a transaction has the effect of the Corporate Partner acquiring or increasing an interest in its own stock in exchange for appreciated property in a manner that contravenes the purpose of this section as set forth in paragraph (a) of this section. Paragraph (f) of this section sets forth exceptions under which a Corporate Partner does not recognize gain.

    (c) Definitions. The following definitions apply for purposes of this section:

    (1) Corporate Partner. A Corporate Partner is a person that is classified as a corporation for federal income tax purposes and holds or acquires an interest in a partnership.

    (2) Stock of the Corporate Partner—(i) In general. With respect to a Corporate Partner, Stock of the Corporate Partner includes the Corporate Partner's stock, or other equity interests, including options, warrants, and similar interests, in the Corporate Partner or a corporation that controls the Corporate Partner within the meaning of section 304(c) (except that section 318(a)(1) and (3) shall not apply). Stock of the Corporate Partner also includes interests in any entity to the extent that the value of the interest is attributable to Stock of the Corporate Partner.

    (ii) Affiliated partner exception. Stock of the Corporate Partner does not include any stock or other equity interests held or acquired by a partnership if all interests in the partnership's capital and profits are held by members of an affiliated group as defined in section 1504(a) that includes the Corporate Partner.

    (3) Section 337(d) Transaction. A Section 337(d) Transaction is a transaction (or series of transactions) that has the effect of an exchange by a Corporate Partner of its interest in appreciated property for an interest in Stock of the Corporate Partner owned, acquired, or distributed by a partnership. For example, a Section 337(d) Transaction may occur when —

    (i) A Corporate Partner contributes appreciated property to a partnership that owns Stock of the Corporate Partner;

    (ii) A partnership acquires Stock of the Corporate Partner;

    (iii) A partnership that owns Stock of the Corporate Partner distributes appreciated property to a partner other than a Corporate Partner;

    (iv) A partnership distributes Stock of the Corporate Partner to the Corporate Partner; or

    (v) A partnership agreement is amended in a manner that increases a Corporate Partner's interest in Stock of the Corporate Partner (including in connection with a contribution to, or distribution from, a partnership).

    (4) Gain Percentage. A Corporate Partner's Gain Percentage equals a fraction, the numerator of which is the Corporate Partner's interest (by value) in appreciated property effectively exchanged for Stock of the Corporate Partner under the test described in paragraphs (d)(1) and (2) of this section, and the denominator of which is the Corporate Partner's interest (by value) in that appreciated property immediately before the Section 337(d) Transaction. Paragraph (d) of this section requires a partnership to multiply the Gain Percentage by the Corporate Partner's aggregate gain in appreciated property to determine gain recognized under this section.

    (d) Deemed redemption rule—(1) In general. A Corporate Partner in a partnership that engages in a Section 337(d) Transaction recognizes gain at the time, and to the extent, that the Corporate Partner's interest in appreciated property (other than Stock of the Corporate Partner) is reduced in exchange for an increased interest in Stock of the Corporate Partner, as determined under paragraph (d)(2) of this section. This section does not apply to the extent a transaction has the effect of an exchange by a Corporate Partner of non-appreciated property for Stock of the Corporate Partner, or has the effect of an exchange by a Corporate Partner for property other than Stock of the Corporate Partner.

    (2) Corporate Partner's interest in partnership property. The Corporate Partner's interest with respect to both Stock of the Corporate Partner and the appreciated property that is the subject of the exchange is determined based on all facts and circumstances, including the allocation and distribution rights set forth in the partnership agreement. The Corporate Partner's interest in an identified share of Stock of the Corporate Partner will never be less than the Corporate Partner's largest interest (by value) in that share of Stock of the Corporate Partner that was taken into account when the partnership previously determined whether there had been a Section 337(d) Transaction with respect to such share (regardless of whether the Corporate Partner recognized gain in the earlier transaction). See Example 7 of paragraph (h) of this section. However, this limitation will not apply if any reduction in the Corporate Partner's interest in the identified share of Stock of the Corporate Partner occurred as part of a plan or arrangement to circumvent the purpose of this section. See Example 8 of paragraph (h) of this section.

    (3) Amount and character of gain recognized on the exchange—(i) Amount of gain. The amount of gain the Corporate Partner recognizes under paragraph (d)(1) of this section equals the product of the Corporate Partner's Gain Percentage and the gain from the appreciated property that is the subject of the exchange that the Corporate Partner would recognize if, immediately before the Section 337(d) Transaction, all assets of the partnership and any assets contributed to the partnership in the Section 337(d) Transaction were sold in a fully taxable transaction for cash in an amount equal to the fair market value of such property (taking into account section 7701(g)), reduced, but not below zero, by any gain the Corporate Partner is required to recognize with respect to the appreciated property in the Section 337(d) Transaction under any other provision of this chapter. This gain is computed taking into account allocations of tax items applying the principles of section 704(c), including any remedial allocations under § 1.704-3(d), and also taking into account any basis adjustments including adjustments made pursuant to section 743(b).

    (ii) Character of gain. The character of the gain that the Corporate Partner recognizes under paragraph (d)(1) of this section from the appreciated property that is the subject of the exchange shall be the character of the gain that the Corporate Partner would recognize if, immediately before the Section 337(d) Transaction, the Corporate Partner had disposed of the appreciated property that is the subject of the exchange in a fully taxable transaction for cash in an amount equal to the fair market value of such property (taking into account section 7701(g)).

    (4) Basis adjustments—(i) Corporate Partner's basis in the partnership interest. The basis of the Corporate Partner's interest in the partnership is increased by the amount of gain that the Corporate Partner recognizes under this paragraph (d).

    (ii) Partnership's basis in partnership property. The partnership's adjusted tax basis in the appreciated property that is treated as the subject of the exchange under this paragraph (d) is increased by the amount of gain recognized with respect to that property by the Corporate Partner as a result of that exchange, regardless of whether the partnership has an election in effect under section 754. For basis recovery purposes, this basis increase is treated as property that is placed in service by the partnership in the taxable year of the Section 337(d) Transaction.

    (e) Distribution of Stock of the Corporate Partner—(1) In general. This paragraph (e) applies to distributions to the Corporate Partner of Stock of the Corporate Partner to which section 732(f) does not apply and that have previously been the subject of a Section 337(d) Transaction or become the subject of a Section 337(d) Transaction as a result of the distribution. Upon the distribution of Stock of the Corporate Partner to the Corporate Partner, paragraph (d) of this section will apply as though immediately before the distribution the partners amended the partnership agreement to allocate to the Corporate Partner a 100 percent interest in that portion of the Stock of the Corporate Partner that is distributed, and to allocate an appropriately reduced interest in other partnership property away from the Corporate Partner.

    (2) Basis rules—(i) Basis allocation on distributions of stock and other property. If, as part of the same transaction, a partnership distributes Stock of the Corporate Partner and other property (other than cash) to the Corporate Partner, see § 1.732-1(c)(1)(iii) for a rule allocating basis first to the Stock of the Corporate Partner before the distribution of the other property.

    (ii) Computation of basis. For purposes of determining the basis of property distributed to a partner in a transaction that includes the distribution of Stock of the Corporate Partner (other than the basis of the Corporate Partner in its own stock), the basis of the partner's remaining partnership interest, and the partnership's basis in undistributed Stock of the Corporate Partner, and for purposes of computing gain under paragraph (e)(3) of this section, the partnership's basis of Stock of the Corporate Partner distributed to the partner equals the greater of—

    (A) The partnership's basis of that distributed Stock of the Corporate Partner immediately before the distribution; or

    (B) The fair market value of that distributed Stock of the Corporate Partner immediately before the distribution less the partner's allocable share of gain from all of the Stock of the Corporate Partner if the partnership sold all of its assets in a fully taxable transaction for cash in an amount equal to the fair market value of such property (taking into account section 7701(g)) immediately before the distribution.

    (iii) Section 732(f) basis reduction. For purposes of determining the amount of the decrease to the basis of property held by a distributed corporation pursuant to section 732(f), the amount of this decrease shall be reduced by the amount of gain that a Corporate Partner has recognized under this section in the same Section 337(d) Transaction or in a prior Section 337(d) Transaction involving the property.

    (3) Gain recognition. The Corporate Partner will recognize gain on a distribution of Stock of the Corporate Partner to the Corporate Partner to the extent that the partnership's adjusted basis in the distributed Stock of the Corporate Partner (as determined under paragraph (e)(2)(ii) of this section) immediately before the distribution exceeds the Corporate Partner's adjusted basis in its partnership interest immediately after the distribution.

    (f) Exceptions—(1) De minimis rule—(i) In general. Unless Stock of the Corporate Partner is acquired as part of a plan to circumvent the purpose of this section, this section does not apply to a Corporate Partner if at the time that the partnership acquires Stock of the Corporate Partner or at the time of a revaluation event as described in § 1.704-1(b)(2)(iv)(f) (without regard to whether or not the partnership revalues its assets)—

    (A) The Corporate Partner and any persons related to the Corporate Partner under section 267(b) or section 707(b) own in the aggregate less than 5 percent of the partnership;

    (B) The partnership holds Stock of the Corporate Partner with a value of less than 2 percent of the partnership's gross assets (including the Stock of the Corporate Partner); and

    (C) The partnership has never, at any point in time, held in the aggregate—

    (1) Stock of the Corporate Partner with a fair market value greater than $1,000,000; or

    (2) More than 2 percent of any particular class of Stock of the Corporate Partner.

    (ii) De minimis rule ceases to apply. If a partnership satisfies the conditions of the de minimis rule of paragraph (f)(1) of this section upon an acquisition of Stock of the Corporate Partner or revaluation event as described in § 1.704-1(b)(2)(iv)(f), but later fails to satisfy the conditions of the de minimis rule upon a subsequent acquisition or revaluation event, then solely for purposes of paragraph (d) of this section, the Corporate Partner may compute its gain on the subsequent acquisition or revaluation event as if it had already recognized gain at the previous event. Neither the Corporate Partner nor the partnership increases its basis by the gain the Corporate Partner would have recognized if the de minimis rule of paragraph (f)(1) of this section did not apply to the prior acquisition or revaluation event.

    (2) Certain dispositions of stock. Unless acquired as part of a plan to circumvent the purpose of this section, this section does not apply to Stock of the Corporate Partner that—

    (i) Is disposed of (by sale or distribution) by the partnership before the due date (including extensions) of its federal income tax return for the taxable year during which the Stock of the Corporate Partner is acquired (or for the taxable year in which the Corporate Partner becomes a partner, whichever is applicable); and

    (ii) Is not distributed to the Corporate Partner or a corporation that controls the Corporate Partner within the meaning of section 304(c), except that section 318(a)(1) and (3) shall not apply.

    (g) Tiered partnerships. The rules of this section shall apply to tiered partnerships in a manner that is consistent with the purpose set forth in paragraph (a) of this section.

    (h) Examples. The following examples illustrate the principles of this section. All amounts in the following examples are reported in millions of dollars:

    Example 1.

    Deemed redemption rule—contribution of Stock of the Corporate Partner. (i) In Year 1, X, a corporation, and A, an individual, form partnership AX as equal partners in all respects. X contributes Asset 1 with a fair market value of $100 and a basis of $20. A contributes X stock, which is Stock of the Corporate Partner, with a basis and fair market value of $100.

    (ii) Because A and X are equal partners in AX in all respects, the partnership formation causes X's interest in X stock to increase from $0 to $50 and its interest in Asset 1 to decrease from $100 to $50. Thus, the partnership formation is a Section 337(d) Transaction because the formation has the effect of an exchange by X of $50 of Asset 1 for $50 of X stock.

    (iii) X must recognize gain under paragraph (d) of this section with respect to Asset 1 to prevent the circumvention of section 311(b) principles. X's gain equals the product of X's Gain Percentage and the gain from Asset 1 that X would recognize (decreased, but not below zero, by any gain that X recognized with respect to Asset 1 in the Section 337(d) Transaction under any other provision of this chapter) if, immediately before the Section 337(d) Transaction, all assets were sold in a fully taxable transaction for cash in an amount equal to the fair market value of such property. If Asset 1 had been sold in a fully taxable transaction immediately before the formation of partnership AX, X's allocable share of gain would have been $80. X's Gain Percentage is 50 percent (equal to a fraction, the numerator of which is X's $50 interest in Asset 1 effectively exchanged for X stock, and the denominator of which is X's $100 interest in Asset 1 immediately before the Section 337(d) Transaction). Thus, X recognizes $40 of gain ($80 multiplied by 50 percent) under the deemed redemption rule in paragraph (d) of this section. Under paragraph (d)(4)(i) of this section, X's basis in its AX partnership interest increases from $20 to $60. Under paragraph (d)(4)(ii) of this section, AX's basis in Asset 1 increases from $20 to $60 because Asset 1 is the appreciated property treated as the subject of the exchange.

    Example 2.

    Deemed redemption rule—contribution of stock in a corporation that controls the Corporate Partner. (i) In Year 1, X, a corporation, and A, an individual, form partnership AX as equal partners in all respects. X contributes Asset 1 with a fair market value of $100 and a basis of $20. A contributes stock in P, with a basis and fair market value of $100. P is the sole owner of X. P's interest in X constitutes 10 percent of P's total assets.

    (ii) Because P controls X within the meaning of section 304(c), stock in P is Stock of the Corporate Partner under paragraph (c)(2)(i) of this section.

    (iii) Because A and X are equal partners in AX in all respects, the partnership formation causes X's interest in Stock of the Corporate Partner stock to increase from $0 to $50 and its interest in Asset 1 to decrease from $100 to $50. Thus, the partnership formation is a Section 337(d) Transaction because the formation has the effect of an exchange by X of $50 of Asset 1 for $50 of Stock of the Corporate Partner.

    (iv) X must recognize gain under paragraph (d) of this section with respect to Asset 1 to prevent the circumvention of section 311(b) principles. X's gain equals the product of X's Gain Percentage and the gain from Asset 1 that X would recognize (decreased, but not below zero, by any gain that X recognized with respect to Asset 1 in the Section 337(d) Transaction under any other provision of this chapter) if, immediately before the Section 337(d) Transaction, all assets were sold in a fully taxable transaction for cash in an amount equal to the fair market value of such property. If Asset 1 had been sold in a fully taxable transaction immediately before the formation of partnership AX, X's allocable share of gain would have been $80. X's Gain Percentage is 50 percent (equal to a fraction, the numerator of which is X's $50 interest in Asset 1 effectively exchanged for Stock of the Corporate Partner, and the denominator of which is X's $100 interest in Asset 1 immediately before the Section 337(d) Transaction). Thus, X recognizes $40 of gain ($80 multiplied by 50 percent) under the deemed redemption rule in paragraph (d) of this section. Under paragraph (d)(4)(i) of this section, X's basis in its AX partnership interest increases from $20 to $60. Under paragraph (d)(4)(ii) of this section, AX's basis in Asset 1 increases from $20 to $60 because Asset 1 is the appreciated property treated as the subject of the exchange.

    Example 3.

    Distribution of Stock of the Corporate Partner—pro rata distribution. (i) The facts are the same as in Example 1(i) of this paragraph (h). AX liquidates in Year 9, when Asset 1 and the X stock each have a fair market value of $200. X and A each receive 50 percent of Asset 1 and 50 percent of the X stock in the liquidation. At the time AX liquidates, X's basis in its AX partnership interest is $60 and A's basis in its AX partnership interest is $100.

    (ii) When AX liquidates, X's interests in its stock and in Asset 1 do not change. Thus, the liquidation is not a Section 337(d) Transaction because it does not have the effect of an exchange by X of appreciated property for Stock of the Corporate Partner.

    (iii) Paragraph (e) of this section applies because the distributed X stock was the subject of a previous Section 337(d) Transaction and because section 732(f) does not apply. Under § 1.732-1(c)(1)(iii), the distribution to X of X stock is deemed to immediately precede the distribution of 50 percent of Asset 1 to X for purposes of determining X's basis in the distributed property. For purposes of determining X's basis in Asset 1 and X's gain on distribution, the basis of the distributed X stock is treated as $50, the greater of $50 (50 percent of the stock's $100 basis in the hands of the partnership), or $50, the fair market value of that distributed X stock ($100) less X's allocable share of gain from the distributed X stock if AX had sold all of its assets in a fully taxable transaction for cash in an amount equal to the fair market value of such property immediately before the distribution ($50). Thus, X reduces its basis in its partnership interest by $50 prior to the distribution of Asset 1. Accordingly, X's basis in the distributed portion of Asset 1 is $10. Because AX's basis in the distributed X stock immediately before the distribution ($50) does not exceed X's basis in its AX partnership interest immediately before the distribution ($60), X recognizes no gain under paragraph (e)(3) of this section.

    Example 4.

    Distribution of Stock of the Corporate Partner—non pro rata distribution. (i) The facts are the same as Example 3(i) of this paragraph (h), except that when AX liquidates, X receives 75 percent of the X stock and 25 percent of Asset 1 and A receives 25 percent of the X stock and 75 percent of Asset 1.

    (ii) The liquidation of AX causes X's interest in X stock to increase from $100 to $150 and its interest in Asset 1 to decrease from $100 to $50. Thus, AX's liquidating distributions of X stock and Asset 1 to X are a Section 337(d) Transaction because the distributions have the effect of an exchange by X of $50 of Asset 1 for $50 of X stock.

    (iii)(A) X must recognize gain with respect to Asset 1 to prevent the circumvention of section 311(b) principles. Under paragraph (e)(1) of this section, paragraph (d) of this section is applied as if X and A amended the AX partnership agreement to allocate to X a 100 percent interest in the distributed portion of the X stock. X must recognize gain equal to the product of X's Gain Percentage and the gain from Asset 1 that X would have recognized (decreased, but not below zero, by any gain X recognized with respect to Asset 1 in the Section 337(d) Transaction under any other provision of this chapter) if, immediately before the Section 337(d) Transaction, AX had sold all of its assets in a fully taxable transaction for cash in an amount equal to the fair market value of such property.

    (B) If Asset 1 had been sold in a fully taxable transaction immediately before the amendment of the AX partnership agreement, X's allocable share of gain would have been $90, or the sum of X's $40 remaining gain under section 704(c) and $50 of the $100 post-contribution appreciation. X's Gain Percentage is 50 percent (equal to a fraction, the numerator of which is X's $50 interest in Asset 1 effectively exchanged for X stock, and the denominator of which is X's $100 interest in Asset 1 immediately before the Section 337(d) Transaction). Thus, X recognizes $45 of gain ($90 multiplied by 50 percent) under the deemed redemption rule in paragraph (d) of this section. Under paragraph (d)(4)(i) of this section, X's basis in its AX partnership interest increases from $60 to $105. Under paragraph (d)(4)(ii) of this section, AX's basis in Asset 1 increases from $60 to $105 because Asset 1 is the appreciated property treated as the subject of the exchange.

    (iv)(A) Paragraph (e) of this section applies because the distributed X stock was the subject of a previous Section 337(d) Transaction and because section 732(f) does not apply. Under § 1.732-1(c)(1)(iii), AX is treated as first distributing the X stock to X before the distribution of 25 percent of Asset 1. For purposes of determining X's basis in Asset 1 and X's gain on distribution, the basis of the distributed X stock is treated as $100, the greater of $75 (75 percent of the stock's $100 basis in the hands of the partnership) or $100, the fair market value of the distributed X stock ($150) less X's allocable share of gain if the partnership had sold all of the X stock immediately before the distribution for cash in an amount equal to its fair market value ($50). Thus, X will reduce its basis in its partnership interest by $100 prior to the distribution of Asset 1. Accordingly, X's basis in the distributed portion of Asset 1 is $5. Because AX's basis in the distributed X stock immediately before the distribution as computed for purposes of this section ($100) does not exceed X's basis in its AX partnership interest immediately before the distribution ($105), X recognizes no additional gain under paragraph (e)(3) of this section.

    (B) For purposes of determining A's basis in Asset 1 and A's gain on distribution, the basis of the distributed X stock is treated as $25, the greater of $25 (25 percent of the stock's $100 basis in the hands of the partnership) or $0, the fair market value of the distributed X stock ($50) less A's allocable share of gain if the partnership had sold all of the X stock immediately before the distribution for cash in an amount equal to its fair market value ($50). Thus, A will reduce its basis in its partnership interest by $25 prior to the distribution of Asset 1. Accordingly, A's basis in the distributed portion of Asset 1 is $75. Because AX's basis in the distributed X stock immediately before the distribution as computed for purposes of this section ($100) does not exceed A's basis in its AX partnership interest immediately before the distribution ($100), A recognizes no additional gain under paragraph (e)(3) of this section.

    Example 5.

    Deemed redemption rule—subsequent purchase of Stock of the Corporate Partner. The facts are the same as Example 1(i) of this paragraph (h), except that A contributes cash of $100 instead of X stock. In a later year, when the value of Asset 1 has not changed, AX uses the contributed cash to purchase X stock for $100. AX's purchase of X stock has the effect of an exchange by X of appreciated property for X stock, and thus, is a Section 337(d) Transaction. X must recognize gain at the time, and to the extent, that X's share of appreciated property (other than X stock) is reduced in exchange for X stock. Thus, the consequences of the partnership's purchase of X stock are the same as those described in Example 1(ii) and (iii) of this paragraph (h), resulting in X recognizing $40 of gain.

    Example 6.

    Change in allocation ratios—amendment of partnership agreement. (i) The facts are the same as Example 3(i) of this paragraph (h), except that in Year 9, AX does not liquidate, and the AX partnership agreement is amended to allocate to X 80 percent of the income, gain, loss, and deduction from the X stock and to allocate to A 80 percent of the income, gain, loss, and deduction from Asset 1. If AX had sold the partnership assets immediately before the change to the partnership agreement, X would have been allocated $90 of gain from Asset 1 and $50 of gain from the X stock.

    (ii) The amendment to the AX partnership agreement causes X's interest in its stock to increase from $100 (50 percent of the stock value immediately before the amendment of the agreement) to $160 (80 percent of stock value immediately following amendment of agreement) and its interest in Asset 1 to decrease from $100 to $40. Thus, the amendment of the partnership agreement is a Section 337(d) Transaction because the amendment has the effect of an exchange by X of $60 of Asset 1 for $60 of its stock.

    (iii) X must recognize gain equal to the product of X's Gain Percentage and the gain from Asset 1 that X would have recognized (decreased, but not below zero, by any gain X recognized with respect to Asset 1 in the Section 337(d) Transaction under any other provision of this chapter) if, immediately before the Section 337(d) Transaction, AX had sold all of its assets in a fully taxable transaction for cash in an amount equal to the fair market value of such property. If Asset 1 had been sold in a fully taxable transaction immediately before the amendment of the AX partnership agreement, X's allocable share of gain would have been $90, or the sum of X's $40 remaining gain under section 704(c) and 50 percent of the $100 post-contribution appreciation. X's Gain Percentage is 60 percent (equal to a fraction, the numerator of which is X's $60 interest in Asset 1 effectively exchanged for X stock, and the denominator of which is X's $100 interest in Asset 1 immediately before the Section 337(d) Transaction). Thus, X recognizes $54 of gain ($90 multiplied by 60 percent) under the deemed redemption rule in paragraph (d) of this section. Under paragraph (d)(4)(i) of this section, X's basis in its AX partnership interest increases from $60 to $114. Under paragraph (d)(4)(ii) of this section, AX's basis in Asset 1 increases from $60 to $114 because Asset 1 is the appreciated property treated as the subject of the exchange.

    Example 7.

    Change in allocation ratios—admission and exit of a partner. (i) The facts are the same as Example 1(i) of this paragraph (h). In addition, in Year 2, when the values of Asset 1 and the X stock have not changed, B contributes $100 of cash to AX in exchange for a one-third interest in the partnership. Upon the admission of B as a partner, X's interest in Asset 1 decreases from $50 to $33.33, and its interest in B's contributed cash increases. B's admission is not a Section 337(d) Transaction because it does not have the effect of an exchange by X of its interest in Asset 1 for X stock. Accordingly, X does not recognize gain under paragraph (d) of this section.

    (ii) In Year 9, when the values of Asset 1 and the X stock have not changed, the partnership distributes $50 of cash and 50 percent of Asset 1 (valued at $50) to B in liquidation of B's interest. X and A are equal partners in all respects after the distribution. Upon the liquidation of B's interest, X's interest in Asset 1 decreases from $33.33 to $25, and its interest in X stock increases from $33.33 to $50. AX's liquidation of B's interest has the effect of an exchange by X of appreciated property for X stock, and thus, is a Section 337(d) Transaction.

    (iii) Pursuant to paragraph (d)(2) of this section, X's interest in X stock and other appreciated property held by the partnership is determined based on all facts and circumstances, including allocation and distribution rights in the partnership agreement. However, paragraph (d)(2) of this section also requires that X's interest in its stock for purposes of paragraph (d) will never be less than the Corporate Partner's largest interest (by value) in those shares of Stock of the Corporate Partner taken into account when the partnership previously determined whether there had been a Section 337(d) Transaction (regardless of whether the Corporate Partner recognized gain in the earlier transaction). Although X's interest in X stock increases to $50 upon AX's liquidation of B's interest, X's largest interest previously taken into account under paragraph (d)(1) of this section was $50. Thus, X's interest in its stock is not considered to be increased, and X therefore recognizes no gain under paragraph (d) of this section, provided that the transactions did not occur as part of a plan or arrangement to circumvent the purpose of this section.

    Example 8.

    Change in allocation ratios—plan to circumvent purpose of this section. (i) In Year 1, X, a corporation, and A, an individual, contribute $99 and $1, respectively, to newly-formed partnership AX, with X receiving a 99 percent interest in AX and A receiving a 1 percent interest in AX. AX borrows $100,000 from a third-party lender and uses the proceeds to purchase X stock, which is Stock of the Corporate Partner. Later, as part of a plan or arrangement to circumvent the purposes of this section, A contributes $99,999 of cash, which AX uses to repay the loan, and X contributes Asset 1 with a fair market value of $99,901 and basis of $20,000. After these contributions, A and X are equal partners in AX in all respects.

    (ii) Pursuant to paragraph (d)(2) of this section, X's interest in X stock and other appreciated property held by the partnership is determined based on all facts and circumstances, including allocation and distribution rights in the partnership agreement. Generally, pursuant to paragraph (d)(2) of this section, X's interest in X stock for purposes of paragraph (d) of this section will never be less than the Corporate Partner's largest interest (by value) in those shares of Stock of the Corporate Partner taken into account when the partnership previously determined whether there had been a Section 337(d) Transaction (regardless of whether the Corporate Partner recognized gain in the earlier transaction). This limitation does not apply, however, if the reduction in X's interest in X's stock occurred as part of a plan or arrangement to circumvent the purpose of this section. Because the transactions described in this example are part of a plan or arrangement to circumvent the purpose of this section, the limitation in paragraph (d)(2) of this section does not apply. Accordingly, the deemed redemption rule under paragraph (d) of this section applies to the transactions with the consequences described in Example 1(iii) of this paragraph (h), resulting in X recognizing $39,950.50 of gain.

    Example 9.

    Tiered partnership. (i) In Year 1, X, a corporation, and A, an individual, form partnership UTP. X contributes Asset 1 with a fair market value of $80 and a basis of $0 in exchange for an 80 percent interest in UTP. A contributes $20 of cash in exchange for a 20 percent interest in UTP. UTP and B, an individual, form partnership LTP as equal partners. UTP contributes Asset 1 and $20 of cash. B contributes X stock, which is Stock of the Corporate Partner, with a basis and fair market value of $100.

    (ii) Pursuant to paragraph (g) of this section, the rules of this section shall apply to tiered partnerships in a manner that is consistent with the purpose set forth in paragraph (a) of this section. Pursuant to paragraph (d)(1) of this section, if X is in a partnership that engages in a Section 337(d) Transaction, X must recognize gain at the time, and to the extent, that X's share of appreciated property is reduced in exchange for X stock. The formation of LTP causes X's interest in X stock to increase from $0 to $40 and its interest in Asset 1 to decrease from $64 to $32. Thus, LTP's formation is a Section 337(d) Transaction because the formation has the effect of an exchange by X of $32 of Asset 1 for $32 of X stock.

    (iii) X must recognize gain with respect to Asset 1 to prevent the circumvention of section 311(b) principles. X must recognize gain equal to the product of X's Gain Percentage and the gain from Asset 1 (decreased, but not below zero, by any gain X recognized with respect to Asset 1 in the Section 337(d) Transaction under any other provision of this chapter) that X would recognize if, immediately before the Section 337(d) Transaction, all assets were sold in a fully taxable transaction for cash in an amount equal to the fair market value of such property. If Asset 1 had been sold in a fully taxable transaction immediately before LTP's formation, X's allocable share of gain would have been $80 pursuant to section 704(c). X's Gain Percentage is 50 percent (equal to a fraction, the numerator of which is X's $32 interest in Asset 1 effectively exchanged for X stock, and the denominator of which is X's $64 interest in Asset 1 immediately before the Section 337(d) Transaction). Thus, X recognizes $40 of gain ($80 multiplied by 50 percent) under the deemed redemption rule in paragraph (d) of this section. Under paragraphs (d)(4)(i) and (ii) of this section, X's basis in its UTP partnership interest increases from $0 to $40, UTP's basis in its LTP partnership interest increases from $20 to $60, and LTP's basis in Asset 1 increases from $0 to $40 pursuant to paragraph (g) of this section.

    (i) Applicability date. This section applies to transactions occurring on or after June 12, 2015.

    § 1.337(d)-3T [Removed]
    Par. 3. Remove § 1.337(d)-3T. Par. 4. Section 1.732-1 is amended by revising paragraphs (c)(1) and (c)(5)(ii) to read as follows:
    § 1.732-1 Basis of distributed property other than money.

    (c) * * *

    (1) General rule—(i) Unrealized receivables and inventory items. Except as provided in paragraph (c)(1)(iii) of this section, the basis to be allocated to properties distributed to a partner under section 732(a)(2) or (b) is allocated first to any unrealized receivables (as defined in section 751(c)) and inventory items (as defined in section 751(d)(2)) in an amount equal to the adjusted basis of each such property to the partnership immediately before the distribution. If the basis to be allocated is less than the sum of the adjusted bases to the partnership of the distributed unrealized receivables and inventory items, the adjusted basis of the distributed property must be decreased in the manner provided in § 1.732-1(c)(2)(i). See § 1.460-4(k)(2)(iv)(D) for a rule determining the partnership's basis in long-term contract accounted for under a long-term contract method of accounting.

    (ii) Other distributed property. Any basis not allocated to unrealized receivables or inventory items under paragraph (c)(1)(i) of this section or to stock of persons that control the corporate partner or to the corporate partner's stock under paragraph (c)(1)(iii) of this section is allocated to any other property distributed to the partner in the same transaction by assigning to each distributed property an amount equal to the adjusted basis of the property to the partnership immediately before the distribution. However, if the sum of the adjusted bases to the partnership of such other distributed property does not equal the basis to be allocated among the distributed property, any increase or decrease required to make the amounts equal is allocated among the distributed property as provided in § 1.732-1(c)(2).

    (iii) Stock distributed to the corporate partner. If a partnership makes a distribution described in § 1.337(d)-3(e)(1), then for purposes of this section, the basis to be allocated to properties distributed under section 732(a)(2) or (b) is allocated first to the Stock of the Corporate Partner, as defined in § 1.337(d)-3(c)(2), before the distribution of any other property (other than cash). The amount allocated to the Stock of the Corporate Partner is as provided in § 1.337(d)-3(e)(2).

    (5) * * *

    (ii) Exception. Notwithstanding paragraph (c)(5)(i) of this section, the first sentence of each of paragraphs (c)(1)(i) and (ii) of this section, and paragraph (c)(1)(iii) of this section in its entirety, apply to distributions of Stock of the Corporate Partner, as defined in § 1.337(d)-3(c)(2), that occur on or after June 12, 2015.

    § 1.732-1T [Removed]
    Par. 5. Remove § 1.732-1T. Par. 6. Section 1.732-3 is revised to read as follows:
    § 1.732-3 Corresponding adjustment to basis of assets of a distributed corporation controlled by a corporate partner.

    (a) Determination of control. The determination of whether a corporate partner that is a member of a consolidated group has control of a distributed corporation for purposes of section 732(f) shall be made by applying the special aggregate stock ownership rules of § 1.1502-34.

    (b) Aggregation of basis within consolidated group. With respect to distributed stock of a corporation, if the following two conditions are met, then section 732(f) shall apply only to the extent that the partnership's adjusted basis in the distributed stock immediately before the distribution exceeds the aggregate basis of the distributed stock of the corporation in the hands of corporate partners that are members of the same consolidated group (as defined in § 1.1502-1(h)) immediately after the distribution:

    (1) Two or more of the corporate partners receive a distribution of stock in another corporation; and

    (2) The corporation, the stock of which was distributed by the partnership, is or becomes a member of the distributee partners' consolidated group following the distribution.

    (c) Application of section 732(f) to Gain Elimination Transactions—(1) General rule. In the event of a Gain Elimination Transaction, section 732(f) shall apply as though the Corporate Partner acquired control (as defined in section 732(f)(5)) of the Distributed Corporation immediately before the Gain Elimination Transaction.

    (2) Definitions. The following definitions apply for purposes of this paragraph (c):

    (i) Corporate Partner. The term Corporate Partner means a person that is classified as a corporation for federal income tax purposes and that holds or acquires an interest in a partnership.

    (ii) Stock. The term Stock includes other equity interests, including options, warrants, and similar interests.

    (iii) Distributed Stock. The term Distributed Stock means Stock distributed by a partnership to a Corporate Partner, or Stock the basis of which is determined by reference to the basis of such Stock. Distributed Stock also includes Stock owned directly or indirectly by a Distributed Corporation if the basis of such Stock has been reduced pursuant to section 732(f).

    (iv) Distributed Corporation. The term Distributed Corporation means the issuer of Distributed Stock (or, in the case of an option, the issuer of the Stock into which the option is exercisable).

    (v) Gain Elimination Transaction. The term Gain Elimination Transaction means a transaction in which Distributed Stock is disposed of and less than all of the gain is recognized unless—

    (A) The transferor of the Distributed Stock receives in exchange Stock or a partnership interest that is exchanged basis property (as defined in section 7701(a)(44)) with respect to the Distributed Stock; or

    (B) A transferee corporation holds the Distributed Stock as transferred basis property (as defined in section 7701(a)(43)) with respect to the transferor corporation's gain. A Gain Elimination Transaction includes (without limitation) a reorganization under section 368(a) in which the Corporate Partner and the Distributed Corporation combine, and a distribution of the Distributed Stock by the Corporate Partner to which section 355(c)(1) or 361(c)(1) applies.

    (d) Tiered partnerships. The rules of this section shall apply to tiered partnerships in a manner that is consistent with the purposes of section 732(f).

    (e) Applicability date. This section applies to transactions occurring on or after June 8, 2018.

    Kirsten Wielobob, Deputy Commissioner for Services and Enforcement. Approved: May 25, 2018. David J. Kautter, Assistant Secretary of the Treasury (Tax Policy).
    [FR Doc. 2018-12407 Filed 6-7-18; 8:45 am] BILLING CODE 4830-01-P
    DEPARTMENT OF HOMELAND SECURITY Coast Guard 33 CFR Part 117 [Docket No. USCG-2018-0516] Drawbridge Operation Regulation; Charles River, Boston, MA AGENCY:

    Coast Guard, DHS.

    ACTION:

    Notice of deviation from drawbridge regulation.

    SUMMARY:

    The Coast Guard has issued a temporary deviation from the operating schedule that governs the Massachusetts Department of Transportation (Craigie) Bridge across Charles River, mile 1.0, at Boston, Massachusetts. This deviation is necessary to facilitate the Boston Pops Fireworks Spectacular on July 4, 2018, and allows the bridge to remain in the closed position for two hours.

    DATES:

    This deviation is effective from 11 p.m. on July 4, 2018 through 1 a.m. on July 5, 2018.

    ADDRESSES:

    The docket for this deviation, USCG-2018-0516 is available at http://www.regulations.gov. Type the docket number in the “SEARCH” box and click “SEARCH”. Click on Open Docket Folder on the line associated with this deviation.

    FOR FURTHER INFORMATION CONTACT:

    If you have questions on this temporary deviation, call or email Jeffrey Stieb, Bridge Management Specialist, First District Bridge Branch, U.S. Coast Guard; telephone 617-223-8364, email [email protected]

    SUPPLEMENTARY INFORMATION:

    The Massachusetts Department of Transportation (Craigie) Bridge across Charles River, mile 1.0, at Boston, Massachusetts, has a vertical clearance of 12 feet at normal pool in the closed position. The existing drawbridge operating regulations are listed at 33 CFR 117.591(e).

    The Massachusetts Department of Transportation requested a temporary deviation from the normal operating schedule. This temporary deviation will allow the bridge to remain closed from 11 p.m. on July 4, 2018 through 1 a.m. on July 5, 2018 to allow pedestrian traffic to exit the Boston Pops Fireworks Spectacular. The waterway is used extensively by recreational traffic during the fireworks display. A State Police Unit will be on-scene to direct vessel traffic. Vessels that can pass under the bridge in the closed position may do so at any time. The bridge will be able to open for emergencies. There is no alternate route for vessels to pass. The Coast Guard will inform users of the waterway of the change in operating schedule through our Local and Broadcast Notices to Mariners so that vessel operators can arrange their transits to minimize any impact caused by the temporary deviation.

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

    Dated: June 4, 2018. C.J. Bisignano, Supervisory Bridge Management Specialist, First Coast Guard District.
    [FR Doc. 2018-12310 Filed 6-7-18; 8:45 am] BILLING CODE 9110-04-P
    DEPARTMENT OF THE INTERIOR National Park Service 36 CFR Parts 1 and 4 [NPS-WASO-24719; PPWOVPADU0/PPMPRLE1Y.Y00000] RIN 1024-AE43 Technical and Clarifying Edits; Criminal Violations NPS Units Nationwide AGENCY:

    National Park Service, Interior.

    ACTION:

    Final rule.

    SUMMARY:

    This rule removes criminal penalty provisions that are outdated and unnecessary under federal statute. The rule also clarifies—consistent with recent decisions by the U.S. Supreme Court—that, absent exigent circumstances, a search warrant is necessary to require a motor vehicle operator to submit to a blood test (rather than a breath or urine test) to measure blood alcohol and drug content.

    DATES:

    This rule is effective June 8, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Jay Calhoun, NPS Regulations Program Specialist, 1849 C Street NW, Washington, DC 20240, (202) 513-7112, [email protected]

    SUPPLEMENTARY INFORMATION:

    Background Criminal Penalty Provisions

    Paragraph (a) of 36 CFR 1.3 describes the penalties for violating a provision of NPS regulations contained in parts 1 through 7, part 9 subpart B, and parts 12 and 13 of chapter I of title 36. These penalties are payment of a fine as provided by law or imprisonment not exceeding six months, or both, and payment of the costs of all proceedings. The authority to impose these penalties is found in the NPS Organic Act (54 U.S.C. 100751) and 18 U.S.C. 1865. The NPS has the authority to impose these penalties for a violation of any regulation relating to the use and management of the units of the National Park System.

    Paragraphs (b), (c), and (d) of 36 CFR 1.3 describe lesser penalties that apply to violations of NPS regulations that occur within units of the National Park System that originated as military parks or national historic sites. These additional provisions are superfluous because the NPS has the authority to impose greater penalties under the NPS Organic Act for violations of NPS regulations that occur in any unit of the National Park System, including those units referred to in paragraphs (b), (c), and (d). This rule removes these unnecessary provisions to reduce the chance of confusion and clarify that a uniform penalty structure applies to the entire National Park System.

    Blood Test Procedures

    Existing NPS regulations at 36 CFR 4.23(c) state that a driver suspected of operating a motor vehicle while under the influence of alcohol or drugs must submit to a blood test (if requested) for the purpose of determining blood alcohol and drug content. This language could be misleading because it does not explicitly state that—absent exigent circumstances—a search warrant must be present in order to require a blood test. This is the Constitutional requirement under the Fourth Amendment following the U.S. Supreme Court decisions in Missouri v. McNeely (2013) and Birchfield v. North Dakota (2016). This rule revises section 4.23(c) to explicitly state this general requirement for a warrant for blood tests. Law enforcement officers will still have the regulatory authority to require an operator to submit to less intrusive tests such as the extraction of saliva, breath tests, or urine samples without a warrant. In practice, NPS law enforcement officers generally stopped requiring blood tests after the McNeely decision in 2013.

    Consistent with McNeely and Birchfield, this rule deletes the requirement that a suspected operator submit to a blood test under 36 CFR 4.23(c)(1). This rule clarifies that 36 CFR 4.23(c)(2)'s prohibition on refusing tests applies to those tests allowed under (c)(1) (and would thus no longer apply to the refusal of a blood test, since blood tests have been deleted from that paragraph). This rule creates a new 36 CFR 4.23(c)(3) that provides that absent exigent circumstances, an operator cannot ordinarily be required to submit for a blood test unless it occurs through a search warrant. Existing paragraphs (c)(3) and (c)(4) are redesignated as paragraphs (c)(4) and (c)(5) but otherwise do not change.

    Compliance With Other Laws, Executive Orders and Department Policy Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and Regulatory Affairs in the Office of Management and Budget will review all significant rules. The Office of Information and Regulatory Affairs has determined that this rule is not significant.

    Executive Order 13563 reaffirms the principles of Executive Order 12866 while calling for improvements in the nation's regulatory system to promote predictability, to reduce uncertainty, and to use the best, most innovative, and least burdensome tools for achieving regulatory ends. The executive order directs agencies to consider regulatory approaches that reduce burdens and maintain flexibility and freedom of choice for the public where these approaches are relevant, feasible, and consistent with regulatory objectives. Executive Order 13563 emphasizes further that regulations must be based on the best available science and that the rulemaking process must allow for public participation and an open exchange of ideas. The NPS has developed this rule in a manner consistent with these requirements.

    Reducing Regulation and Controlling Regulatory Costs (Executive Order 13771)

    This rule is an E.O. 13771 deregulatory action because, once finalized, it will impose less than zero costs by removing unnecessary criminal penalty provisions and clarifying the current law regarding the valid use of blood tests to measure blood alcohol and drug content.

    Small Business Regulatory Enforcement Fairness Act

    This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

    (a) Does not have an annual effect on the economy of $100 million or more.

    (b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

    (c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of U.S.-based enterprises to compete with foreign-based enterprises.

    Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or tribal governments or the private sector of more than $100 million per year. The rule does not have a significant or unique effect on State, local or tribal governments or the private sector. It addresses public use of national park lands, and imposes no requirements on other agencies or governments. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

    Takings (Executive Order 12630)

    This rule does not effect a taking of private property or otherwise have takings implications under Executive Order 12630. A takings implication assessment is not required.

    Federalism (Executive Order 13132)

    Under the criteria in section 1 of Executive Order 13132, the rule does not have sufficient federalism implications to warrant the preparation of a Federalism summary impact statement. This rule only affects use of federally-administered lands and waters. It has no outside effects on other areas. A Federalism summary impact statement is not required.

    Administrative Procedure Act (Notice of Proposed Rulemaking and Effective Date)

    We recognize that under 5 U.S.C. 553(b) and (c), notice of proposed rules ordinarily must be published in the Federal Register and the agency must give interested parties an opportunity to submit their views and comments. We have determined under 5 U.S.C. 553(b) and 318 DM HB 5.3, however, that notice and public comment for this rule are not required. We find good cause to treat notice and comment as unnecessary. As discussed above, the penalty provisions being removed are superfluous and not used by the NPS. The clarification that the NPS must obtain a warrant to require a blood sample is settled law and comports with NPS practice since 2013. These regulatory changes will not benefit from public comment, and further delaying them is contrary to the public interest.

    We also recognize that rules ordinarily do not become effective until at least 30 days after their publication in the Federal Register. We have determined, however, that good cause exists for this rule to be effective immediately upon publication for the reasons stated above.

    Civil Justice Reform (Executive Order 12988)

    This rule complies with the requirements of Executive Order 12988. This rule:

    (a) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

    (b) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

    Consultation With Indian Tribes (Executive Order 13175 and Department Policy)

    The Department of the Interior strives to strengthen its government-to-government relationship with Indian Tribes through a commitment to consultation with Indian tribes and recognition of their right to self-governance and tribal sovereignty. The NPS has evaluated this rule under the criteria in Executive Order 13175 and under the Department's tribal consultation policy and have determined that tribal consultation is not required because the rule will have no substantial direct effect on federally recognized Indian tribes.

    Paperwork Reduction Act

    This rule does not contain information collection requirements, and a submission to the Office of Management and Budget under the Paperwork Reduction Act is not required. The NPS may not conduct or sponsor and you are not required to respond to a collection of information unless it displays a currently valid OMB control number.

    National Environmental Policy Act

    This rule does not constitute a major Federal action significantly affecting the quality of the human environment. A detailed statement under the National Environmental Policy Act of 1969 (NEPA) is not required because the rule is covered by a categorical exclusion. We have determined the rule is categorically excluded under 43 CFR 46.210(i) because it is administrative, legal, and technical in nature. We also have determined the rule does not involve any of the extraordinary circumstances listed in 43 CFR 46.215 that would require further analysis under NEPA.

    Effects on the Energy Supply (Executive Order 13211)

    This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects in not required.

    List of Subjects 36 CFR Part 1

    National parks, Penalties, Reporting and recordkeeping requirements, Signs and symbols.

    36 CFR Part 4

    National parks, Traffic regulations.

    The National Park Service amends 36 CFR parts 1 and 4 as follows:

    PART 1—GENERAL PROVISIONS 1. The authority citation for part 1 continues to read as follows: Authority:

    54 U.S.C. 100101, 100751, 320102.

    2. Revise § 1.3 to read as follows:
    § 1.3 Penalties.

    (a) A person convicted of violating a provision of the regulations contained in parts 1 through 7, part 9 subpart B, and parts 12 and 13 of this chapter shall be subject to the criminal penalties provided under 18 U.S.C. 1865.

    (b) [Reserved]

    PART 4—VEHICLES AND TRAFFIC SAFETY 3. The authority citation for part 4 continues to read as follows: Authority:

    54 U.S.C. 100101, 100751, 320102.

    4. In § 4.23, revise paragraph (c) to read as follows:
    § 4.23 Operating under the influence of alcohol or drugs.

    (c) Tests. (1) At the request or direction of an authorized person who has probable cause to believe that an operator of a motor vehicle within a park area has violated a provision of paragraph (a) of this section, the operator shall submit to one or more tests of the breath, saliva, or urine for the purpose of determining blood alcohol and drug content.

    (2) Refusal by an operator to submit to a test under paragraph (c)(1) is prohibited and proof of refusal may be admissible in any related judicial proceeding.

    (3) Absent exigent circumstances, an operator cannot ordinarily be required to submit blood samples for the purpose of determining blood alcohol and drug content unless it occurs through a search warrant. An authorized person who has probable cause to believe that an operator of a motor vehicle within a park area has violated a provision of paragraph (a) of this section shall get a search warrant, except when exigent circumstances exist, to obtain any blood samples from the operator for the purpose of determining blood alcohol and drug content.

    (4) Any test or tests for the presence of alcohol and drugs shall be determined by and administered at the direction of an authorized person.

    (5) Any test shall be conducted by using accepted scientific methods and equipment of proven accuracy and reliability operated by personnel certified in its use.

    Susan Combs, Senior Advisor to the Secretary, Exercising the Authority of the Assistant Secretary for Fish and Wildlife and Parks.
    [FR Doc. 2018-12324 Filed 6-7-18; 8:45 am] BILLING CODE 4312-52-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R09-OAR-2017-0537; FRL-9979-18—Region 9] Air Plan Approval; Douglas, Arizona; Second 10-Year Sulfur Dioxide Maintenance Plan AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final rulemaking action to approve, as part of the State Implementation Plan (SIP) for the State of Arizona, the second 10-year maintenance plan for the Douglas maintenance area for the 1971 National Ambient Air Quality Standards (“standards”) for sulfur dioxide (SO2).

    DATES:

    This final rule is effective on July 9, 2018.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R09-OAR-2017-0537. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available through https://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Ashley Graham, EPA Region IX, (415) 972-3877, [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, the words “we,” “us,” or “our” refer to the EPA.

    Table of Contents I. Proposed Action II. Public Comments and EPA Responses III. EPA Action IV. Statutory and Executive Order Reviews I. Proposed Action

    On February 16, 2018 (83 FR 6996), the EPA proposed to approve the second 10-year maintenance plan for the Douglas, Arizona SO2 maintenance area. Submitted by the Arizona Department of Environmental Quality on December 14, 2016, the Douglas second 10-year SO2 maintenance plan (“plan”) demonstrates maintenance of the 1971 SO2 standards through 2030.

    We proposed to approve the plan because we determined that it complied with the relevant Clean Air Act (CAA or “Act”) requirements. Our proposed action contains more information on the plan and our evaluation (83 FR 6996, February 16, 2018).

    II. Public Comments and EPA Responses

    The EPA's proposed action provided for a 30-day public comment period. The EPA received eleven anonymous comment letters in response to the proposed action. All eleven comments concerned issues that are outside the scope of our proposed approval of the Douglas second 10-year SO2 maintenance plan. The issues raised in those comments include, but are not limited to, air quality in China and India, natural gas, mining, electric vehicles, wind farms, and wind turbines.

    III. EPA Action

    The EPA is taking final rulemaking action to approve the Douglas second 10-year SO2 maintenance plan under sections 110 and 175A of the CAA. As authorized in section 110(k)(3) of the Act, the EPA is approving the submitted SIP revision because it fulfills all relevant requirements.

    IV. 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, the EPA's role is to approve state choices, provided that they meet the criteria of the Clean Air Act. Accordingly, this action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this action:

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

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

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

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

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

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

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

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

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

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

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

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

    Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 7, 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 approving the revision to the State of Arizona's SIP 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 dioxide.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: May 25, 2018. Deborah Jordan, Acting Regional Administrator, EPA Region IX.

    Chapter 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 D—Arizona 2. In § 52.120, table 1 in paragraph (e) is amended by adding the entry “Maintenance Plan Renewal, 1971 Sulfur Dioxide National Ambient Air Quality Standards, Douglas Maintenance Area” after the entry “Modeling and Emissions Inventory Supplement for the Douglas Sulfur Dioxide Nonattainment Area State Implementation and Maintenance Plan and Redesignation Request, dated September 2005” to read as follows:
    § 52.120 Identification of plan.

    (e) * * *

    Table 1—EPA-Approved Non-Regulatory and Quasi-Regulatory Measures [Excluding certain resolutions and statutes, which are listed in tables 2 and 3, respectively] 1 Name of SIP provision Applicable
  • geographic or
  • nonattainment area or
  • title/subject
  • State submittal date EPA approval date Explanation
    *         *         *         *         *         *         * Part D Elements and Plans (Other than for the Metropolitan Phoenix or Tucson Areas) *         *         *         *         *         *         * Maintenance Plan Renewal, 1971 Sulfur Dioxide National Ambient Air Quality Standards, Douglas Maintenance Area Douglas Sulfur Dioxide Air Quality Planning Area December 14, 2016 June 8, 2018, [insert Federal Register citation] Adopted by the Arizona Department of Environmental Quality on December 14, 2016. Fulfills requirements for second 10-year maintenance plan. *         *         *         *         *         *         * 1 Table 1 is divided into three parts: Clean Air Act Section 110(a)(2) State Implementation Plan Elements (excluding Part D Elements and Plans), Part D Elements and Plans (other than for the Metropolitan Phoenix or Tucson Areas), and Part D Elements and Plans for the Metropolitan Phoenix and Tucson Areas.
    [FR Doc. 2018-12300 Filed 6-7-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [Docket No. EPA-R02-OAR-2018-0197; FRL-9978-07—Region 2] Adequacy Status of Motor Vehicle Emissions Budgets for the New York Portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT, 2008 8-Hour Ozone Nonattainment Area AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notification of adequacy.

    SUMMARY:

    In this document, the Environmental Protection Agency (“EPA” or “Agency”) is notifying the public that the Agency has found that the 2017 motor vehicle emissions budgets (“budgets”) for volatile organic compounds (“VOCs”) and nitrogen oxides (“NOX”) submitted by the New York State Department of Environmental Conservation for the 2008 national ambient air quality standard (“NAAQS”) for ozone are adequate for transportation conformity purposes for the New York portions of the New York-Northern New Jersey-Long Island, NY-NJ-CT 8-hour ozone nonattainment area. The transportation conformity rule requires that the EPA conduct a public process and make an affirmative decision on the adequacy of these budgets before they can be used by metropolitan planning organizations in conformity determinations. As a result of this finding, upon the effective date of this notification of adequacy, the New York Metropolitan Transportation Council must use these budgets in future transportation conformity determinations. The budgets are contained in New York's November 10, 2017, state implementation plan submittal for the 2008 ozone NAAQS and are associated with the reasonable further progress milestone demonstration.

    DATES:

    This finding is effective June 25, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Hannah Greenberg, Environmental Protection Agency Region 2, Air Programs Branch, 290 Broadway, 25th Floor, New York, New York 10007-1866; (212) 637-3829, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    This document is simply an announcement of a finding that we have already made. EPA Region 2 sent a letter to the New York State Department of Environmental Conservation on April 19, 2018, stating that the 2017 motor vehicle emissions budgets (“budgets”) in the submitted state implementation plan (“SIP”) for the 2008 national ambient air quality standard for ozone for the New York portions of the New York-Northern New Jersey-Long Island 8-hour ozone nonattainment area are adequate for transportation conformity purposes. These budgets are associated with the SIP's reasonable further progress milestone demonstration and must apply to future transportation conformity determinations conducted by the New York Metropolitan Transportation Council (“NYMTC”).

    On November 10, 2017, the New York State Department of Environmental Conservation submitted a SIP revision for the New York portion of the New York-Northern New Jersey-Long Island, NY-NJ-CT, 2008 8-hour ozone nonattainment area. This revision to the SIP included 2017 summer day volatile organic compound (“VOC”) and nitrogen oxides (“NOX”) motor vehicle emissions budgets associated with the SIP's reasonable further progress demonstration. We announced availability of the plan and related budgets on the EPA's transportation conformity website on December 6, 2017, requesting comments by January 5, 2018. We received no comments in response to the adequacy review posting.

    This finding will also be available at the EPA's conformity website: https://www.epa.gov/state-and-local-transportation/conformity-adequacy-review-region-2.

    The motor vehicle emissions budgets are provided in Table 1 below.

    Table 1—2017 Motor Vehicle Emissions Budgets for NYMTC [Tons per year] Year VOC NOX 2017 65.69 117.21

    Transportation conformity is required by Clean Air Act section 176(c). The EPA's conformity rule requires that long-range transportation plans, transportation improvement programs, and transportation projects conform to a state's air quality SIP and establishes the criteria and procedures for determining whether or not they conform. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the NAAQS.

    The criteria the EPA uses to determine whether a SIP's motor vehicle emission budgets are adequate for conformity purposes are outlined in 40 CFR 93.118(e)(4). We have further described our process for determining the adequacy of submitted SIP budgets in 40 CFR 93.118(f), and we followed this rule in making our adequacy determination. Please note that an adequacy review is separate from the EPA's completeness review and should not be used to prejudge the EPA's ultimate action on the SIP. Even if we find a budget adequate, the SIP could later be disapproved.

    Pursuant to 40 CFR 93.104(e), within 2 years of the effective date of this document, NYMTC and the U.S. Department of Transportation will need to demonstrate conformity to the new budgets. For demonstrating conformity to the budgets in this plan, the on-road motor vehicle emissions from implementation of the long-range transportation plan should be projected consistently with the budgets in this plan.

    Authority:

    42 U.S.C. 7401-7671 q.

    Dated: April 30, 2018. Peter D. Lopez, Regional Administrator, Region 2.
    [FR Doc. 2018-12303 Filed 6-7-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R07-OAR-2018-0319; FRL-9979-11—Region 7] Adequacy Determination for the St. Louis Area 2008 8-Hour Ozone Redesignation Request and Maintenance State Implementation Plan, Motor Vehicle Emissions Budgets for Transportation Conformity Purposes; State of Missouri AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notification of adequacy determination.

    SUMMARY:

    In this document, the EPA is notifying the public that the St. Louis area 2008 8-hour ozone redesignation request and maintenance plan motor vehicle emission budgets (MVEBs) for volatile organic compounds (VOCs) and nitrogen oxides (NOX) are adequate for transportation conformity purposes. As a result, these budgets must be used by the State of Missouri for future transportation conformity determinations for the St. Louis area.

    DATES:

    This finding is effective June 22, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Heather Hamilton, at (913) 551-7039, by email at [email protected], or by mail at U.S. Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219.

    SUPPLEMENTARY INFORMATION:

    Throughout this document “we,” “us,” or “our” refer to EPA. The word “budget(s)” refers to the motor vehicle emission budgets (MVEBs) for volatile organic compounds and nitrogen oxides. For the purposes of this document, “SIP” refers to the St. Louis Area 2008 8-Hour Ozone Redesignation Request and Maintenance State Implementation Plan, submitted by Missouri Department of Natural Resources to EPA as a SIP revision on September 12, 2016. The Plan was revised on February 16, 2018.

    This document is an announcement of a finding that EPA has already made. EPA Region 7 sent a letter to Missouri Department of Natural Resources on May 15, 2018, stating that the MVEBs contained in the Redesignation Request and Maintenance Plan are adequate for transportation conformity purposes. As a result of EPA's finding, the State of Missouri must use the MVEBs from the February 16, 2018, Redesignation Request and Maintenance Plan for future transportation conformity determinations for the St. Louis area. The finding is available at EPA's conformity website: https://www.epa.gov/state-and-local-transportation.

    Transportation conformity is required by section 176(c) of the Clean Air Act, as amended in 1990. EPA's conformity rule requires that transportation plans, programs and projects conform to state air quality implementation plans and establishes the criteria and procedure for determining whether or not they do. Conformity to a SIP means that transportation activities will not produce new air quality violations, worsen existing violations, or delay timely attainment of the national ambient air quality standards.

    The criteria by which we determine whether a SIP's motor vehicle emission budgets are adequate for conformity purposes are outlined in 40 CFR 93.118(e)(4). Please note that an adequacy review is separate from EPA's completeness review, and it should not be used to prejudge EPA's ultimate approval of the SIP. EPA plans to take action on the SIP at a later date. We have described our process for determining the adequacy of submitted SIP budgets in 40 CFR 93.118(f), and have followed this rule in making our adequacy determination.

    Authority:

    42 U.S.C. 7401-7671q.

    Dated: May 25, 2018. James B. Gulliford, Regional Administrator, Region 7.
    [FR Doc. 2018-12388 Filed 6-7-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Parts 52, 62, and 70 [EPA-R07-OAR-2017-0470; FRL 9979-10—Region 7] State of Iowa; Approval and Promulgation of the State Implementation Plan, the 111(d) Plan and the Operating Permits Program AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is taking final action to approve revisions to the Iowa State Implementation Plan (SIP), the 111(d) plan, and the Operating Permits Program. These revisions update and clarify rules and make minor revisions and corrections. Approval of these revisions will ensure consistency between the state and federally-approved rules, and ensure Federal enforceability of the state's revised air program rules.

    DATES:

    This final rule is effective on July 9, 2018.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID No. EPA-R07-OAR-2017-0470. All documents in the docket are listed on the https://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 through https://www.regulations.gov or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional information.

    FOR FURTHER INFORMATION CONTACT:

    Heather Hamilton, Environmental Protection Agency, Air Planning and Development Branch, 11201 Renner Boulevard, Lenexa, Kansas 66219 at (913) 551-7039, 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. Background II. What is being addressed in this document? III. Have the requirements for approval of the SIP, 111(d) Plan, and Operating Permit Plan Revisions been met? IV. EPA's Response to Comments V. What action is EPA taking? VI. Incorporation by Reference VII. Statutory and Executive Order Reviews I. Background

    On September 15, 2017, EPA proposed to approve revisions to the Iowa State Implementation Plan (SIP), the 111(d) plan, and the Operating Permits Program. See 82 FR 43315. In conjunction with the September 15, 2017 notice of proposed rulemaking (NPR), EPA issued a direct final rule (DFR) approving revisions to the Iowa SIP, the 111(d) plan, and the Operating Permits Program. See 82 FR 43303. In the DFR, EPA stated that if adverse comments were submitted to EPA by October 16, 2017, the action would be withdrawn and not take effect.

    EPA received three comments prior to the close of the comment period; one in support of the rule revisions and two of which were adverse. EPA withdrew the DFR on November 14, 2017. See 82 FR 52667. This action is a final rule based on the NPR. A detailed discussion of Iowa's SIP revisions, the 111(d) plan revision, and the Operating Permits Program revisions were provided in the DFR and will not be restated here, except to the extent relevant to our response to the public comment we received.

    II. What is being addressed in this document?

    EPA is taking final action to approve revisions to the Iowa SIP, the 111(d) plan, and the Operating Permits Program. These revisions update and clarify rules and make minor revisions and corrections. Approval of these revisions will ensure consistency between the state and federally-approved rules, and ensure Federal enforceability of the state's revised air program rules. Chapters with revisions are as follows:

    • Chapter 20—Scope of Title-Definitions • Chapter 21—Compliance • Chapter 22—Controlling Pollution * • Chapter 23—Emission Standards for Contaminants • Chapter 25—Measurement of Emissions • Chapter 26—Prevention of Emergency Pollution Episodes • Chapter 27—Certificate of Acceptance • Chapter 28—Ambient Air Quality Standards • Chapter 31—Nonattainment Areas • Chapter 33—Special Regulations and Construction Permit Requirements for Major Stationary Sources—Prevention of Significant Deterioration (PSD) of Air Quality

    * Title V Operating Permit Program rules are included in chapter 22 starting at 22.100.

    III. Have the requirements for approval of the SIP, 111(d) Plan, and Operating Permit Plan Revisions been met?

    The state submittal has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submittal also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the TSD which is part of this docket, these revisions meet the substantive SIP requirements of the CAA, including section 110 and implementing regulations. These revisions are also consistent with applicable EPA requirements of the 111(d) plan submission and Title V of the CAA and 40 CFR part 70.

    IV. EPA's Response to Comments

    The public comment period for EPA's proposed rule opened September 15, 2017, the date of its publication in the Federal Register, and closed on October 16, 2017. During this period, EPA received three comments; one in favor of the rule revision, and two with adverse comments.

    Below are adverse comments from the first commenter with EPA's responses:

    First commenter, comment 1: The commenter stated that EPA must disapprove 567 Iowa Administrative Code (IAC) 22.1(2), “Exemptions” as applied to construction permits for existing stationary sources, because existing sources already subject to PSD cannot use a plantwide applicability limit (PAL) to avoid PSD requirements. The commenter also stated that EPA must disapprove this provision because it does not ensure that the minor sources exemptions will not cause or contribute to a violation of a NAAQS or increment.

    EPA's response: Under 40 CFR 52.21(aa)(1), existing major stationary sources may be issued an “actuals PAL”. As stated in the New Source Review (NSR) Reform Final Rule (67 FR 80185), sources subject to an actuals PAL that maintain their emissions below a plantwide actual emissions cap (that is, an actuals PAL), may use the PAL process instead of the major NSR permitting process when modifications are made to the facility or individual emissions units to determine PSD applicability. Iowa's PAL program was approved by EPA on May 4, 2007. See 72 FR 27056.

    While compliance with an actuals PAL may allow a source to avoid PSD applicability, it does not necessarily exempt a source from compliance with a state's minor NSR program. Therefore, a source with an actuals PAL in Iowa may still need obtain a permit when there is a physical change or change in method of operation under Iowa's minor NSR program in 567 IAC 22.1. The exclusion of PAL sources from the list of sources that cannot use the exemptions from 567 IAC 22.1 simply allows those PAL sources to use the same exemptions as other sources in order to avoid the permitting requirements of 567 IAC 22.1(1).

    Furthermore, allowing PAL sources to use the exemptions in 567 IAC 22.1(2) does not require EPA to disapprove the SIP. The state performs technical reviews of construction permit exemptions to insure the minor sources will not cause or contribute to a violation of a NAAQS or increment. For example, on October 25, 2013, EPA approved a construction permit exemption for certain temporary diesel engines used in periodic testing and maintenance of natural gas pipelines in 567 IAC 22.1(2) paragraph “oo”. See 78 FR 63887. As demonstrated in the docket for that action, Iowa conducted an air quality assessment and determined that the exemption was appropriate and included conditions in the exemption that insured that the engine emissions would not exceed the emission limits allowed under the small unit exemption in 567 IAC 22.1(2), paragraph “w”. As an additional safeguard, 567 IAC 22.1(2) specifies that permitting exemptions do not relieve the owner or operator of any source from any obligations to comply with any other applicable requirements, including Title V requirements and PSD requirements.

    First commenter, comment 2: The commenter stated that EPA must disapprove 567 IAC 22.1(3) (as applicable to construction permits for animal feeding operations) because it allows animals feeding operations to be exempt from air pollution permitting, and because it only requires animal feeding operations to obtain a permit under Iowa's chapter 65 regulations that are not approved into the SIP. Finally, the commenter stated that 567 IAC 22.1(3) illegally allows a source category to be exempt from air pollution regulation.

    EPA's response: The modification to 567 IAC 22.1(3) clarifies that a new or modified anaerobic lagoon for an animal feeding operation shall apply for a construction permit as provided in 567 IAC chapter 65. It does not exempt animal feeding operations from air pollution permitting, and solely applies to anaerobic lagoons at animal feeding operations.

    On October 9, 2002, EPA approved modifications to 567 IAC 22.1(3), 567 IAC 22.1(3), paragraph “c”, subparagraph (3), and 567 IAC 22.3(2) to include new air construction permitting requirements for anaerobic lagoons at animal feeding operations. See 67 FR 62889. EPA notes that 567 IAC 22.1(3), paragraph “c”, which is enforceable by the state and EPA as it is approved as part of Iowa's SIP, contains air construction permit requirements that specifically apply to persons constructing anaerobic lagoons at animal feeding operations. 567 IAC 22.3(2), which is also enforceable by the state and EPA as it is approved as part of Iowa's SIP, also contains air construction permitting requirements for anaerobic lagoons at animal feeding operations. In addition, the EPA notes that anaerobic lagoons for animal feeding operations are not exempt from air construction permitting requirements under 567 IAC 22.1(2), which contains exemptions from air construction permitting requirements for certain sources.

    Concerning the comment that Iowa's Chapter 65 regulations are not approved as part of the SIP, the EPA notes that in its October 9, 2002 approval of the modifications to 567 IAC 22.1(3), 567 IAC 22.1(3), paragraph “c”, subparagraph (3), and 567 IAC 22.3(2), the EPA stated that chapter 65 requirements have not been requested by Iowa to be approved into the SIP because chapter 65 includes requirements (for example, odor controls) not pertaining to the requirements of section 110 of the CAA.

    First commenter, comment 3: The commenter stated that EPA should make clear that the current New Source Performance Standards (NSPS) apply to sources in Iowa, even if the NSPS was subject to a legal challenge and even if Iowa has not adopted the current NSPS.

    EPA's response: While the state included revisions to its adoption of the NSPS in the submittal dated April 13, 2017, the state specifically requested that EPA not act on the revisions, and therefore this comment is outside of the scope of this action. The EPA notes that the NSPS is applicable to sources in Iowa regardless of whether Iowa has adopted the NSPS. Iowa adopts the NSPS in order to obtain concurrent enforcement authority of the NSPS with the EPA.

    First commenter, comment 4: The commenter stated that 567 IAC 25.1(9), “Methods and Procedures” should be disapproved as the rule claims that the Department can authorize the use of alternative methodologies for testing and monitoring. The commenter further stated that the state does not have authority to alter stack test and monitoring methodologies for NSPS and NESHAP standards.

    EPA's response: 567 IAC 25.1, paragraph “(a)” was revised in order for the state rules to be consistent with the most current Federal rules. In addition to provisions within each NSPS and NESHAP that preserve EPA's authority to approve certain alternative methodologies for testing and monitoring, EPA also retains this authority in accordance with sections 111(h)(3) and 112(e)(3) of the CAA, 40 CFR 60.8(b)(2) and (3), 61.14, and part 63, subpart E.

    First commenter, comment 5: The commenter stated that EPA must disapprove 567 IAC 26.2(2) because it is missing PM2.5 thresholds for air pollution alerts and air pollution warnings.

    EPA's response: Iowa revised 567 IAC 26.2 in order to be consistent with 40 CFR part 51, appendix L, which addresses example regulations for prevention of air pollution emergency episodes that would cause imminent and substantial endangerment to the health of persons. States are required under 40 CFR part 51, subpart H, to develop emergency contingency plans that are classified as Priority 1 regions where ambient concentrations of a pollutant exceed specific thresholds. In accordance with 40 CFR 51.151, each plan for a Priority 1 region must include a contingency plan that provides for taking action necessary to prevent ambient pollutant concentrations at any such area in the region from reaching a significant harm threshold.

    To date, EPA has not promulgated a significant harm threshold for Priority 1 areas for PM2.5. However, EPA has recommended PM2.5 priority levels through guidance,1 and has recommended that states develop emergency episode contingency plans for any area that has monitored and recorded 24-hour PM2.5 levels greater than 140.4 µm/m3 since 2006. If a state has monitored and recorded PM2.5 levels greater than 140.4 µm/m3, the EPA also recommends that the state develop emergency action levels and a significant harm level for PM2.5 in accordance with EPA guidance and consistent with the requirements of 40 CFR 51.150 through 51.153.

    1See EPA Memorandum entitled “Guidance on Sip Elements Required Under Sections 110(a)(1) and (2) for the 2006 24-Hour Fine Particle (PM 2.5 ) National Ambient Air Quality Standards (NAAQS), William T. Harnett, September 25, 2009.

    Because Iowa has not monitored and recorded 24-hour PM2.5 levels greater than 140.4 µm/m3 since 2006, Iowa is not required to develop an emergency action plan nor establish emergency action levels and a significant harm level for PM2.5.

    First commenter, comment 6: The commenter stated that EPA must disapprove paragraph 27.2(4)“c” as this paragraph implies that local air agencies have authority to grant variances for emission limits and other applicable requirements. In addition, the commenter stated that Iowa Code 455B-133, 134, and 143 must be disapproved due to director's variance provisions.

    EPA's response: The EPA has interpreted this as a comment on EPA's proposed approval of 567 IAC 27.3(4), paragraph “c”. The current local air pollution control agencies in Iowa do not have federally approved variance procedures. See 40 CFR 52.820(c). As such, EPA's approval of 567 IAC 27.3(4), paragraph “c” does not create a federally-approved variance program for the local air pollution control agency. In addition, Iowa Code 455B-133, 134, and 143 are not a part of Iowa's SIP.

    First commenter, comment 7: The commenter stated that Iowa removed the title “Significant Impact Levels (SILs)” of the table in 567 IAC 33.3(20) but left the SILs in place. The commenter stated that removing the title does not fix the problem of SILs not being authorized by the Clean Air Act. The commenter stated that therefore the last sentence of 567 IAC 33.3(20) and the table must be disapproved and expressed further reasons to disapprove the SILs.

    EPA's response: As acknowledged by the commenter, the only change to the table in 567 IAC 33.3(20) was the removal of the table's title. The title was removed by the state to be consistent with the table in 40 CFR 51.165(b)(2), which also does not have a title. Because the state only removed the title of the table, and did not otherwise revise the text or table of 567 IAC 33.3(20), the comments concerning the last sentence of the 567 IAC 33.3(2) and the table are outside the scope of this action. In addition, the referenced sentence and table are consistent with the text and table of 40 CFR 51.165(b)(2).

    First commenter, comment 8: The commenter stated that EPA must disapprove 567 IAC 33.3(22) in its entirety as the Clean Air Act does not allow for the rescission of PSD permits.

    EPA's response: 40 CFR part 52 implements the PSD provisions of the CAA. PSD permits may be rescinded in accordance with 40 CFR 52.21(w).

    Second commenter: A second commenter stated that EPA cannot rescind 567 IAC 21.1(4) unless the Clean Air Interstate Rule (CAIR) is removed from the Iowa SIP.

    EPA's response: 567 IAC 21.1(4) specifies emissions inventory requirements for Iowa's implementation of CAIR. Iowa's CAIR regulations are found in 567 IAC chapter 34 and remain a part of the approved SIP. The Federal CAIR regulations have been phased out and replaced by the Cross-State Air Pollution Rule (CSAPR). (See 76 FR 48208). Because the emissions inventory requirements of 567 IAC 21.1(4) were implemented in Iowa in order to comply with CAIR and are not relied upon for any other provision of Iowa's SIP, and because CAIR has been replaced by the CSAPR, EPA is approving Iowa's request to remove 567 IAC 21.1(4) from Iowa's SIP.

    V. What action is EPA taking?

    EPA is taking final action to approve revisions to the Iowa State Implementation Plan, the 111(d) plan, and the Operating Permits Program. These revisions update and clarify rules and makes minor revisions and corrections. Approval of these revisions will ensure consistency between the state and federally-approved rules, and ensure Federal enforceability of the state's revised air program rules.

    VI. 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 the Iowa Regulations described in the final amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 7 Office (please contact the person identified in the For Further Information Contact section of this preamble for more information).

    Therefore, these materials have been approved by EPA for inclusion in the State implementation plan, have been incorporated by reference by EPA into that plan, are fully federally enforceable under sections 110 and 113 of the CAA as of the effective date of the final rulemaking of EPA's approval, and will be incorporated by reference in the next update to the SIP compilation.2

    2 62 FR 27968 (May 22, 1997).

    VII. 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).

    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 CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 7, 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 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    40 CFR Part 62

    Environmental protection, Air pollution control, Administrative practice and procedure, Reporting and recordkeeping requirements.

    40 CFR Part 70

    Environmental protection, Administrative practice and procedure, Air pollution control, Intergovernmental relations, Operating permits, Reporting and recordkeeping requirements.

    Dated: May 25, 2018. James B. Gulliford, Regional Administrator, Region 7.

    For the reasons stated in the preamble, EPA amends 40 CFR parts 52, 62, and 70 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 Q—Iowa 2. Section 52.820(c) is amended by revising the heading for chapter 20 and the entries for “567-20.1”, “567-20.2”, “567-21.1”, “567-22.1”, “567-23.3”, “567-25.1”, “567-26.2”, “567-27.1”, “567-27.3”, “567-28.1”, “567-31.2”, “567-33.1”, and “567-33.3” to read as follows:
    § 52.820 Identification of plan.

    (c) * * *

    EPA-Approved Iowa Regulations Iowa citation Title State effective date EPA approval date Explanation Iowa Department of Natural Resources Environmental Protection Commission [567] Chapter 20—Scope of Title—Definitions 567-20.1 Scope of Title-Definitions 3/22/17 6/8/2018, [Insert Federal Register citation] This rule is a non-substantive description of the Chapters contained in the Iowa rules. EPA has not approved all the Chapters to which this rule refers. 567-20.2 Definitions 3/22/17 6/8/2018, [Insert Federal Register citation] The definitions for “anaerobic lagoon,” “odor,” “odorous substance,” “odorous substance source” are not SIP approved. *         *         *         *         *         *         * Chapter 21—Compliance 567-21.1 Compliance Schedule 3/22/17 6/8/2018, [Insert Federal Register citation] *         *         *         *         *         *         * Chapter 22—Controlling Pollution 567-22.1 Stationary Sources 3/22/17 6/8/2018, [Insert Federal Register citation] In 22.1(3) the following sentence regarding electronic submission is not SIP approved. The sentence is: “Alternatively, the owner or operator may apply for a construction permit for a new or modified stationary source through the electronic submittal format specified by the department.” *         *         *         *         *         *         * Chapter 23—Emission Standards for Contaminants *         *         *         *         *         *         * 567-23.3 Specific Contaminants 3/22/17 6/8/2018, [Insert Federal Register citation] 567 IAC 23.3(3) “(d)” is not SIP approved. *         *         *         *         *         *         * Chapter 25—Measurement of Emissions 567-25.1 Testing and Sampling of New and Existing Equipment 3/22/17 6/8/2018, [Insert Federal Register citation] Chapter 26—Prevention of Air Pollution Emergency Episodes *         *         *         *         *         *         * 567-26.2 Episode Criteria 3/22/17 6/8/2018, [Insert Federal Register citation] *         *         *         *         *         *         * Chapter 27—Certificate of Acceptance 567-27.1 General 3/22/17 6/8/2018, [Insert Federal Register citation] *         *         *         *         *         *         * 567-27.3 Ordinance or Regulations 3/22/17 6/8/2018, [Insert Federal Register citation] *         *         *         *         *         *         * Chapter 28—Ambient Air Quality Standards 567-28.1 Statewide standards 3/22/17 6/8/2018, [Insert Federal Register citation] *         *         *         *         *         *         * Chapter 31—Nonattainment Areas *         *         *         *         *         *         * 567-31.2 Rescinded 3/22/17 6/8/2018, [Insert Federal Register citation] Rescinded and reserved *         *         *         *         *         *         * Chapter 33—Special Regulations and Construction Permit Requirements for Major Stationary Sources—Prevention of Significant Deterioration (PSD) of Air Quality 567-33.1 Purpose 3/22/17 6/8/2018, [Insert Federal Register citation] 567-33.3 Special Construction Permit Requirements for Major Stationary Sources in Areas Designated Attainment or Unclassified (PSD) 3/22/17 6/8/2018, [Insert Federal Register citation] Provisions of the 2010 PM2.5 PSD—Increments, SILs and SMCs rule (published October 20, 2010) relating to SILs and SMCs that were affected by the January 22, 2013, U.S. Court of Appeals decision are not SIP approved. Iowa's rule incorporating EPA's 2007 revision of the definition of “chemical processing plants” (the “Ethanol Rule,” (published May 1, 2007) or EPA's 2008 “fugitive emissions rule,” (published December 19, 2008) are not SIP-approved. *         *         *         *         *         *         *
    PART 62—APPROVAL AND PROMULGATION OF STATE PLANS FOR DESIGNATED FACILITIES AND POLLUTANTS 3. The authority citation for part 62 continues to read as follows: Authority:

    42 U.S.C. 7401 et seq.

    Subpart Q—Iowa 4. Amend § 62.3913 by revising paragraph (d) and adding paragraph (e) to read as follows:
    § 62.3913 Identification of plan.

    (d) Amended plan, submitted September 19, 2001. Clarifying revisions to the plan with regard to design capacity reports for control of air emissions from municipal solid waste landfills submitted by the Iowa Department of Natural Resources on September 19, 2001. The amended plan was effective February 11, 2002.

    (e) Amended plan, submitted April 13, 2017. Grammatical revision to the plan for the control of air emissions from municipal solid waste landfills submitted by the Iowa Department of Natural Resources, on April 13, 2017. The state effective date of the revision was March 22, 2017. The effective date of the amended plan is August 7, 2018.

    PART 70—STATE OPERATING PERMIT PROGRAMS 5. The authority citation for part 70 continues to read as follows: Authority:

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

    6. Amend appendix A to part 70 by adding paragraph (r) under the heading “Iowa” to read as follows: Appendix A to Part 70—Approval Status of State and Local Operating Permits Programs Iowa

    (r) The Iowa Department of Natural Resources submitted for program approval revisions to rules 567-22.100, 567-22.103, 567-22.105, and 567-22.108. The state effective date was March 22, 2017. This revision is effective August 7, 2018.

    [FR Doc. 2018-12166 Filed 6-7-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Centers for Medicare & Medicaid Services 42 CFR Part 510 [CMS-5524-F2] RIN 0938-AT16 Medicare Program; Changes to the Comprehensive Care for Joint Replacement Payment Model (CJR): Extreme and Uncontrollable Circumstances Policy for the CJR Model AGENCY:

    Centers for Medicare & Medicaid Services (CMS), HHS.

    ACTION:

    Final rule.

    SUMMARY:

    This final rule finalizes a policy that provides flexibility in the determination of episode spending for Comprehensive Care for Joint Replacement Payment Model (CJR) participant hospitals located in areas impacted by extreme and uncontrollable circumstances for performance years 3 through 5.

    DATES:

    Effective July 9, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Heather Holsey, (410) 786-0028. For questions related to the CJR model: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Background

    In the Medicare Program; Cancellation of Advancing Care Coordination Through Episode Payment and Cardiac Rehabilitation Incentive Payment Models; Changes to Comprehensive Care for Joint Replacement Payment Model: Extreme and Uncontrollable Circumstances Policy for the Comprehensive Care for Joint Replacement Payment Model final rule and interim final rule with comment period published on December 1, 2017 (82 FR 57066 through 57104), we issued an interim final rule with comment period in conjunction with the final rule in order to address the need for a policy to provide some flexibility in the determination of episode costs for providers located in areas impacted by extreme and uncontrollable circumstances. Specifically, we finalized an extreme and uncontrollable events policy for the performance years 2 through 5 reconciliation and sought comment on potential refinements we might make to this policy for future performance year reconciliations after performance year 2. The 30-day comment period for that rule closed on January 30, 2018. We received 3 comments on our comment solicitation on potential refinements we might make to the extreme and uncontrollable circumstances policy for future performance year reconciliations after performance year 2. Those 3 comments and our responses are discussed in the following paragraphs. We also received 4 comments that did not relate to the extreme and uncontrollable circumstances policy comment solicitation.

    II. Provisions of the Interim Final Rule With Comment Period and Analysis of and Response to Public Comments A. Overview and Background

    In the interim final rule with comment period published on December 1, 2017, we established an extreme and uncontrollable circumstances policy for CJR performance years 2 through 5 reconciliation to provide some flexibility in determining episode spending for CJR participant hospitals located in areas impacted by extreme and uncontrollable circumstances. While this policy most notably addressed Hurricane Harvey, Hurricane Irma, Hurricane Nate, and the California wildfires of August, September, and October 2017, we noted that this policy could also include other similar events that occur within a given performance year, including performance year 2, if those events meet the requirements we set forth in this policy. While Hurricane Maria, which also occurred in the same timeframe, had and, as of the writing of this final rule, continues to have a significant and crippling effect on Puerto Rico and the U.S. Virgin Islands, Hurricane Maria was not part of the interim final rule with comment period as the CJR model is not in operation in the areas impacted by Hurricane Maria, and, therefore there are no CJR participant hospitals that have been impacted by Hurricane Maria. Hurricane Harvey, Hurricane Irma, Hurricane Nate, and the California wildfires of August, September, and October of 2017 affected large regions of the United States where the CJR model operates, leading to widespread destruction of infrastructure that impacted residents' ability to continue normal functions afterwards.

    As we stated in the interim final rule with comment period, at least 101 CJR participant hospitals are located in the areas affected by Hurricane Irma and Hurricane Harvey, at least 22 CJR participant hospitals are located in areas impacted by the California wildfires and approximately 12 are in the areas affected by Hurricane Nate. Based on a review of news articles focusing on the hurricanes, at least 35 hospitals evacuated for Hurricane Irma 1 and several hospitals evacuated at least partially for Hurricane Harvey.2 In Florida, at least two CJR participant hospitals in Miami, (Anne Bates Leach Eye Hospital and University of Miami Hospital) and one CJR participant hospital in Miami Beach—Mount Sinai Medical Center—had to close because of Hurricane Irma.3 Tampa General Hospital, a CJR participant hospital in Tampa, evacuated all patients except for those too ill to move.4 In response to Hurricane Irma, on September 9, 2017, Tampa Community Hospital, a CJR participant hospital, suspended all services and evacuated all patients to two other CJR participant hospitals, Brandon Regional Hospital and Medical Center of Trinity.5 In Texas, Baptist Beaumont Hospital, a CJR participant hospital in Beaumont, Texas, had to shut down and evacuate on August 31, 2017.6 On the same day, Christus Southeast Texas St. Elizabeth, another CJR participant hospital in Beaumont, Texas, left only the emergency and trauma center of the hospital open in order to ensure it had enough water for the patients still at the hospital.6 Patients seeking care at the Medical Center of Southeast Texas, a CJR participant hospital in Port Arthur, Texas, had to be taken by dump truck through the submerged hospital parking lot to the perimeter of the property, where a boat would take them to the hospital.6 An additional review of news related to California wildfires also shows that the fires caused various hospitals to evacuate patients.7 On November 16, 2017, five counties in Alabama were declared as major disaster areas due to the destruction of structures, piers, roads and bridges caused by Hurricane Nate.6 Although we did not yet have enough data to evaluate these event-specific effects on CJR episodes at the time of the publication of the interim final rule with comment period, we stated that we anticipated that at least some CJR participant hospitals might have experienced episode cost escalation as a result of hurricane or fire damage and subsequent emergency evacuations.

    1 Irma forces at least 35 hospitals to evacuate patients. Here's a rundown. September 9, 2017. https://www.statnews.com/2017/09/09/irma-hospital-evacuations-rundown/. Accessed November 21, 2017.

    2 After Harvey Hit, a Texas Hospital Decided to Evacuate. Here's How Patients Got Out. September 6, 2017. https://www.nytimes.com/2017/09/06/us/texas-hospital-evacuation.html. Accessed November 21, 2017.

    3 Hurricane Irma causes 36 Florida hospitals to close. September 12, 2017. https://www.healthdatamanagement.com/news/hurricane-irma-causes-36-florida-hospitals-to-close. Accessed November 22, 2017.

    4 At Tampa Hospital in Evacuation Zone, 800 Patients and Staff Ride Out Hurricane Irma. September 10, 2017. https://weather.com/storms/hurricane/news/hurricane-irma-tampa-hospital-evacuation-zone. Accessed November 22, 2017.

    5 Tampa Community Hospital has suspended all services and has evacuated patients. September 9, 2017. https://tampacommunityhospital.com/about/newsroom/tampa-community-hospital-has-suspended-all-services-and-has-evacuated-patients. Accessed November 22, 2017.

    6http://www.al.com/news/mobile/index.ssf/2017/11/trump_declares_major_disaster.html.

    7 Tia Powell, Dan Hanfling, and Lawrence O. Gostin. Emergency Preparedness and Public Health: The Lessons of Hurricane Sandy. JAMA. 2012;308(24):2569-2570. doi:10.1001/jama.2012.108940; and Christine S. Cocanour, Steven J. Allen, Janine Mazabob, John W. Sparks, Craig P. Fischer, Juanita Romans, Kevin P. Lally. Lessons Learned From the Evacuation of an Urban Teaching Hospital. Arch Surg. 2002; 137(10):1141-1145. doi:10.1001/archsurg.137.10.1141.

    Under § 510.305(e), as of performance year 2, CJR participant hospitals who have episode costs as calculated under § 510.305(e)(1)(iii) (for example, episode costs that exceed the target price for the performance year) will owe CMS 5 percent of the loss. While the intent of this loss repayment policy is to incentivize providers to manage costs while improving the quality of CJR patient care, we noted in the interim final rule with comment period that in extreme and uncontrollable circumstances, prudent patient care management might involve potentially expensive air ambulance transport or prolonged inpatient stays when other alternatives are not practical due, for example, to state and local mandatory evacuation orders or compromised infrastructure. In addition to the news reports of disaster conditions that impacted several CJR participant hospitals, a number of research studies on natural disasters and rushed evacuations for hospitals supported our assumption that costs can rise during disaster situations.7

    Prior to January 1, 2018, the effective date of the interim final rule with comment period, CJR regulations at § 510.210 did not allow cancellation of episodes for extreme and uncontrollable circumstances. The CJR regulations at § 510.305 also did not permit an adjustment to account for episode spending that may have escalated significantly due to events driven by extreme and uncontrollable circumstances.

    B. Identifying Participant Hospitals Affected by Extreme and Uncontrollable Circumstances

    As discussed in the interim final rule with comment period, for purposes of developing a policy to identify hospitals affected by extreme and uncontrollable circumstances, we consulted section 1135 of the Social Security Act (the Act). That section allows the Secretary to temporarily waive or modify certain Medicare requirements to ensure that sufficient health care items and services are available to meet the needs of individuals enrolled in Social Security Act programs in the emergency area and emergency period. It also allows the Secretary to temporarily waive or modify certain Medicare requirements to ensure that providers who provide such services in good faith can be reimbursed and exempted from sanctions (absent any determination of fraud or abuse). The Secretary has invoked this authority in response to significant natural disasters such as Hurricane Katrina in 2005 and Superstorm Sandy in 2012. Though the section 1135 waiver authority enables us to take actions that give healthcare providers and suppliers greater flexibility, it does not allow for payment adjustment for participant hospitals in the CJR model. However, as we noted in the interim final rule with comment period, the extreme and uncontrollable circumstance policy should only apply when a disaster is widespread and extreme. A section 1135 waiver identifies the “emergency area” and “emergency period,” as defined in section 1135(g) of Act, for which waivers are available. As we stated in the interim final rule with comment period, we believe it is appropriate to establish an extreme and uncontrollable circumstance policy that applies only when and where the magnitude of the event calls for the use of special waiver authority to help providers respond to the emergency and continue providing care.

    In the interim final rule with comment period, we noted that the extreme and uncontrollable circumstance policy also should be tailored to the specific areas experiencing the extreme and uncontrollable circumstance. Section 1135 waivers typically are authorized for a geographic area that may encompass a greater region (that is, an entire state) than is directly and immediately affected by the relevant emergency. In addition, section 1135(g) of the Act defines the emergency area as that area covered by both a Secretarial and a Presidential declaration; consequently, the scope of the emergency area is not entirely in the Secretary's control.8 For purposes of this policy, we stated that a narrower geographic scope, rather than the full emergency area, would ensure that the payment policy adjustment is focused on the specific areas that experienced the greatest adverse effects from the extreme and uncontrollable circumstance and is not applied to areas sustaining little or no adverse effects.

    8 See section 1135(g) of the Act for the definition of “emergency area; emergency period”.

    Therefore, to narrow the scope of this policy to ensure it is applied to those providers most likely to have experienced the greatest adverse effects, we also required that the area be declared as a major disaster area under the Stafford Act. Once an area is declared as a major disaster area under the Stafford Act, the specific counties, municipalities, parishes, territories, and tribunals that are part of the major disaster area are identified and can be located on the Federal Emergency Management Agency (FEMA) website at www.FEMA.gov/disasters.

    For this policy, only major disaster declarations under the Stafford Act in combination with issued section 1135 waivers are used to identify the specific counties, municipalities, parishes, territories, and tribunals where the extreme and uncontrollable circumstance took place. Using the major disaster declaration as a requirement for the extreme and uncontrollable event policy also ensures that the policy will apply only when the event is extreme, meriting the use of special authority, and targeting the specific area affected by the extreme and uncontrollable circumstance. As we noted in the interim final rule with comment period, we are not including emergency declarations under the Stafford Act or national emergency declarations under the National Emergencies Act in this policy, even if such a declaration serves as a basis for the Secretary's invoking the section 1135 waiver authority. This is because we believe it is appropriate for our extreme and uncontrollable circumstance policy to apply only in the narrow circumstance where the circumstance constitutes a major disaster, which are more catastrophic in nature and tend to have significant impacts to infrastructure, rather than the broader grounds for which an emergency could be declared.

    In the policy we established to define extreme and uncontrollable circumstances for the CJR model, an area is identified as having experienced 'extreme and uncontrollable circumstances,' if it is within an “emergency area” and “emergency period” as defined in section 1135(g) of the Act, and also is within a county, parish, U.S. territory or tribal government designated in a major disaster declaration under the Stafford Act.

    As we stated in the interim final rule with comment period, we believe Hurricanes Harvey, Irma, and Nate and the California wildfires in August, September, and October of 2017 triggered the automatic extreme and uncontrollable circumstance policy we adopted in the interim final rule with comment period. For the performance year 2 reconciliation conducted in March 2018, this extreme and uncontrollable circumstance policy applies to those CJR participant hospitals whose CMS Certification Number (CCN) has a primary address located in a state, U.S. territory, or tribal government that is within an “emergency area” and “emergency period,” as those terms are defined in section 1135(g) of the Act, for which the Secretary has issued a waiver under section 1135 of the Act and that is designated in a major disaster declaration under the Stafford Act. The states and territories for which section 1135 waivers were issued in response to Hurricanes Harvey, Irma, Nate, and the California wildfires (during the fall of 2017) are Alabama, California, Florida, Georgia, South Carolina, Texas, Louisiana, and Mississippi. Section 1135 waivers also were issued for Puerto Rico and the Virgin Islands as a result of Hurricane Maria, but, as we noted in the interim final rule with comment period, there are no CJR participant hospitals with CCNs with a primary address in either of these areas. To view the 1135 waiver documents and for additional information on section 1135 waivers see: https://www.cms.gov/About-CMS/Agency-Information/Emergency/. The major disaster declarations are located on FEMA website at https://www.fema.gov/disasters. When locating the counties, municipalities, parishes, tribunals, and territories for the major disaster declaration, FEMA designates these locations as 'designated areas' for that specific state, or tribunal. All counties, municipalities, parishes, tribunals, and territories identified as designated areas on the disaster declaration are included.

    The counties, parishes, and tribal governments that met the criteria for the CJR policy on extreme and uncontrollable circumstances in performance year 2 are as follows: 9

    9 The Secretary issued Mississippi a waiver under section 1135 for Hurricane Nate. However the President did not issue a major disaster declaration (An emergency disaster declaration was issued.), so under this policy Mississippi is not included on this list.

    • The following counties in Alabama: Autauga, Baldwin, Choctaw, Clarke, Dallas, Macon, Mobile, and Washington.10

    10https://www.fema.gov/disaster/4349/designated-areas.

    • The following counties in California: Butte, Lake, Mendocino, Napa, Nevada, Orange, Sonoma, and Yuba.11

    11https://www.fema.gov/disaster/4344/designated-areas.

    • All 67 counties 12 and Big Cypress Indian Reservation, Brighton Indian Reservation, Fort Pierce Indian Reservation, Hollywood Indian Reservation, Immokalee Indian Reservation, and Tampa Reservation in Florida.13

    12https://www.fema.gov/disaster/4337/designated-areas.

    13https://www.fema.gov/disaster/4341/designated-areas.

    • All 159 counties in Georgia.14

    14https://www.fema.gov/disaster/4338/designated-areas.

    • All 46 counties, and the Catawba Indian Reservation in South Carolina.15

    15https://www.fema.gov/disaster/4346/designated-areas.

    • The following counties in Texas: Aransas, Austin, Bastrop, Bee, Bexar, Brazoria, Calhoun, Chambers, Colorado, Dallas, Dewitt, Fayette, Fort Bend, Galveston, Goliad, Gonzales, Hardin, Harris, Jackson, Jasper, Jefferson, Karnes, Kleberg, Lavaca, Lee, Liberty, Matagorda, Montgomery, Newton, Nueces, Orange, Polk, Refugio, Sabine, San Jacinto, San Patricio, Tarrant, Travis, Tyler, Victoria, Walker, Waller, and Wharton.16

    16https://www.fema.gov/disaster/4332/designated-areas.

    • The following parishes in Louisiana: Acadia, Allen, Assumption, Beauregard, Calcasieu, Cameron, De Soto, Iberia, Jefferson Davis, Lafayette, Lafourche, Natchitoches, Plaquemines, Rapides, Red River, Sabine, St. Charles, St. Mary, Vermilion, and Vernon.17

    17https://www.fema.gov/disaster/4345/designated-areas.

    Using these criteria, in the interim final rule with comment period, we stated that we were able to identify at least 101 CJR participant hospitals located in the areas affected by Hurricanes Harvey and Hurricane Irma, approximately 12 CJR participant hospitals in the areas affected by Hurricane Nate, and at least 22 CJR participant hospitals in areas impacted by the California wildfires. As there are no CJR model areas in Puerto Rico or the U.S. Virgin Islands, we again noted that no CJR participant hospitals were impacted by Hurricane Maria. CJR participant hospitals for whom this extreme and uncontrollable circumstances policy applies for performance year 2 (and subsequent performance years if and when the policy is invoked) receive notification via the initial reconciliation reports CMS delivers to providers upon completion of the reconciliation calculations, which under § 510.305(d) are initiated beginning 2 months after the close of the performance year.

    Though the Hurricanes and California wildfires were the driving force for developing the extreme and uncontrollable circumstance policy, in the interim final rule with comment period, we stated that this policy is being implemented for the duration of the CJR model, and that we are amending the CJR regulations accordingly, as further outlined later in this final rule.

    C. Provisions for Adjusting Episode Spending Due to Extreme and Uncontrollable Circumstances

    In the interim final rule with comment period, we noted that without a policy to provide CJR participant hospitals some flexibility in extreme and uncontrollable circumstances, we might inadvertently create an incentive to place cost considerations above patient safety, especially in the later years of the CJR model when the downside risk percentage increases. In considering policy alternatives to help ensure beneficiary protections by mitigating participant hospitals' financial liability for costs resulting from extreme and uncontrollable circumstances, we considered and rejected a blanket cancellation of all episodes occurring during the relevant period. As we stated in the interim final rule with comment period, we do not believe that a blanket cancellation would be in either beneficiaries' or CJR participant hospitals' best interests, as it is possible that hospitals can manage costs and earn a reconciliation payment despite these extreme and uncontrollable circumstances.

    Furthermore, we would not want CJR participant hospitals to limit case management services for beneficiaries in CJR episodes during extreme and uncontrollable circumstances, when prudent care management could potentially involve using significantly more expensive transport or care settings. Therefore, we determined that capping the actual episode spending at the target amounts for those episodes would be the best way to protect beneficiaries from potential care stinting and hospitals from escalating costs. As we stated in the interim final rule with comment period, this will also ensure that those hospitals are still able to earn reconciliation payments on those eligible episodes where the disaster did not have a noticeable impact on cost.

    In determining the start date of episodes to which this extreme and uncontrollable circumstances policy will apply, we determined that a window of 30 days prior to and including the date that the emergency period (as defined in section 1135(g) of the Act) begins should reasonably capture those beneficiaries whose high CJR episode costs could be attributed to extreme and uncontrollable circumstances. As we stated in the interim final rule with comment period, we believe this 30-day window is particularly appropriate due to the 90-day CJR model episode length. Including all episodes that begin within 30 days before the date the emergency period begins should enable us to include the majority of beneficiaries still in institutional settings and who are still within the first third of their episodes when the extreme and uncontrollable circumstance arises. We note that the average length of stay for DRG 469 is between 5 and 6 days and the average length of stay for DRG 470 is between 2 and 3 days (see https://www.cms.gov/Medicare/Medicare-Fee-for-Service-Payment/AcuteInpatientPPS/Downloads/FY2018-CMS-1677-FR-Table-5.zip).

    Under § 510.300(a)(1), we differentiated fracture and non-fracture CJR episodes and pricing, noting that lower extremity joint replacement procedures performed as a result of a hip fracture are typically emergent procedures. Fracture episodes typically occur for beneficiaries with more complex health issues and can involve higher episode spending. As we stated in the interim final rule with comment period, we do not expect a high volume of CJR non-fracture episodes to be initiated once extreme and uncontrollable circumstances arise, given that it is not prudent to conduct non-fracture major joint replacement surgeries, which generally are elective and non-emergent, until conditions stabilize and infrastructure is reasonably restored. Therefore, for non-fracture episodes, the extreme and uncontrollable circumstances policy we established in the interim final rule with comment period only applies to dates of admission to anchor hospitalization that occur between 30 days before and up to the date on which the emergency period (as defined in section 1135(g) of the Act) begins. We believe this policy empowers hospitals to decide whether they can safely and appropriately perform non-fracture THA and TKA procedures after the commencement of the emergency period and whether or not performing these procedures will subject their organization to undue financial risk resulting from increased costs that are beyond the organization's control.

    However, for CJR fracture episodes, the extreme and uncontrollable circumstances policy we established in the interim final rule with comment period applies to dates of admission to the anchor hospitalization that occur within 30 days before, on, or up to 30 days after the date the emergency period (as defined in section 1135(g) of the Act) begins. As we stated in the interim final rule with comment period, we recognize that fracture cases in CJR are often emergent and unplanned, and it may not be prudent to postpone major joint surgical procedures in many of those CJR fracture cases. Therefore, fracture episodes with a date of admission to the anchor hospitalization that is on or within 30 days before or after the date that the emergency period (as defined in section 1135(g) of the Act) begins are subject to this extreme and uncontrollable circumstances policy. As we stated in the interim final rule with comment period, we believe that this 30-day window before and after the emergency period should ensure that hospitals caring for CJR fracture patients during extreme and uncontrollable circumstances are adequately protected from episode costs beyond their control.

    In the interim final rule with comment period, we established that, for performance years 2 through 5, for participant hospitals that are located in an emergency area during an emergency period, as those terms are defined in section 1135(g) of the Act, for which the Secretary has issued a waiver under section 1135 of the Act, and in a county, parish, U.S. territory or tribal government designated in a major disaster declaration under the Stafford Act, the following conditions apply. For a non-fracture episode with a date of admission to the anchor hospitalization that is on or within 30 days before the date that the emergency period (as defined in section 1135(g) of the Act) begins, actual episode payments are capped at the target price determined for that episode under § 510.300. For a fracture episode with a date of admission to the anchor hospitalization that is on or within 30 days before or after the date that the emergency period (as defined in section 1135(g) of the Act) begins, actual episode payments are capped at the target price determined for that episode under § 510.300.

    We codified this new extreme and uncontrollable circumstance policy at § 510.305(k). We sought comment on potential refinements to this policy for future performance year reconciliations after performance year 2.

    Comment: All of the comments we received in response to our comment solicitation expressed support for an extreme and uncontrollable circumstances policy for the CJR model. All commenters supported the application of the policy to episodes with anchor stays beginning on or within 30 days before the date of the emergency period. A commenter supported the policy as established in the interim final rule with comment period and stated that it should apply to future performance years beyond performance year 2. Another commenter, who also supported the policy, noted that due to the substantial disruptions in the post-acute care market from significant infrastructure damage, the policy could be significantly improved if CMS capped payments for both fracture and non-fracture episodes with an anchor hospitalization within 30 days before or after the date that the emergency period begins. A different commenter, who also supported the policy, urged CMS to expand it to include more episodes by developing specific, recovery-focused criteria, such as the number of patients remaining displaced from their homes, the proportion of health care services remaining unavailable and distance to comparable services for rural areas to determine the end date for episodes. This commenter, who noted that extensive damage to infrastructure, housing and post-acute care services in Texas due to Hurricane Harvey continue to be substantial in certain counties, stated that delaying services to Medicare beneficiaries who meet the criteria for LEJR is detrimental to the health and well-being of the beneficiaries. This commenter recommended that the extreme and uncontrollable circumstances policy for all CJR episodes should apply to dates of admission to anchor hospitalization that occur 30 days before the emergency period (as defined in section 1135(g) of the Act) begins and up to 90 days after the date the emergency period ends or when health care services has reached 90 percent of the pre-emergency period level and beneficiary displacement issues have been resolved to ensure CJR participants are protected from episode costs beyond their control.

    Response: We appreciate the support expressed by commenters for our extreme and uncontrollable circumstances policy and agree with commenters that it is appropriate for the policy to cover both fracture and non-fracture episodes with anchor stays occurring on or within 30 days before the date of the emergency period. In response to the commenter who stated that our extreme and uncontrollable circumstances policy should apply to future performance years, we can confirm that it does. While we note that recovery efforts from major disasters can take extensive time and resources, as we stated in the interim final rule with comment period, we continue to believe that it is not prudent to conduct non-fracture major joint replacement surgeries, which generally are elective and non-emergent, until conditions stabilize and infrastructure is reasonably restored. Although we acknowledge that joint replacements can have a substantial impact on quality of life for beneficiaries, we are not persuaded by commenters that it is appropriate to extend the extreme and uncontrollable events policy to non-fracture CJR episodes beginning on or within the 30 days after the onset of an emergency period. If lasting infrastructure damage has severely crippled post-acute care access and limited offerings in a community, we are not convinced that elective surgeries should resume, especially for beneficiaries likely to need institutional post-acute care, until there is some assurance that that care will be available.

    When we originally finalized the CJR target amounts in the November 24, 2015 final rule (80 FR 73273), we distinguished between hip fracture and non-fracture CJR episodes and pricing in response to comments. Commenters on that rule noted that lower extremity joint replacement procedures performed as a result of a hip fracture are typically emergent procedures (80 FR 73301) which can be more clinically complex in nature and more costly to treat due to their emergent nature. Therefore, as we stated in the interim final rule with comment period, given the frequent emergent nature of fractures, we acknowledge that it may not be prudent to postpone major joint surgical procedures in many of those CJR cases. Consequently, we believe it is appropriate, as was established in the interim final rule with comment period, to extend coverage under the extreme and uncontrollable circumstances policy to fracture cases occurring on or within 30 days after the date of the disaster, and we thank the commenters for their support of this policy that covers fracture cases on or within 30 days of the emergency period in the extreme and uncontrollable events policy.

    In considering the commenter's suggestion that we develop on-going specific, recovery-focused criteria, such as the number of patients remaining displaced from their homes, the proportion of health care services remaining unavailable and distance to comparable services for rural areas to determine the end date for episodes we note that it would be extremely difficult to establish general criteria that would apply broadly to all emergency periods that might trigger the extreme and uncontrollable circumstances policy; this type of criteria would likely need to be specific to each individual emergency period and would therefore be more subjective and less predictable for providers in the CJR model. We believe the time-based criteria we established for this policy are more straightforward and create clear guidelines for CJR participant hospitals that may need an advanced, predictable understanding of which episodes will be subject to the extreme and uncontrollable circumstances policy. We established this policy to limit financial liability under the CJR model for participant hospitals caring for CJR fracture patients during extreme and uncontrollable circumstances where costs can escalate beyond their control. While we acknowledge that disaster recovery efforts can be prolonged beyond 30-day periods, we believe that care management planning is even more essential when communities are recovering from major disasters. However, we do not believe that altering the post emergency window from 30 to 90 days, as suggested by a commenter, would be appropriate, as a longer post emergency window might incentivize providers to disengage from the care management the CJR model is focused on improving.

    We note a technical correction to the preamble of the interim final rule with comment period. In several places we described our extreme and uncontrollable circumstances policy as applying when a major disaster declaration served as the condition precedent to an section 1135 waiver. However, this was incorrect, as in several of the events to which our policy applies, an emergency declaration under the Stafford Act was the condition precedent for the Secretary's exercise of the section 1135 waiver authority. For example, the section 1135 waiver for Hurricane Nate was based on an emergency declaration under the Stafford Act, but a major disaster declaration under the Stafford Act subsequently was made. The regulation text at 42 CFR 510.305(k), which we are finalizing without modification, accurately reflects the policy.

    III. Provisions of the Final Regulations

    This final rule incorporates the provisions of the interim final rule with comment period without changes. Therefore, this extreme and uncontrollable circumstances policy, as codified at 42 CFR 510.305(k) will apply to CJR participant hospitals that are both located in an emergency area during an emergency period (as those terms are defined in section 1135(g) of the Act) for which the Secretary has issued a waiver under section 1135; and that are also located in a county, parish, or tribal government designated in a major disaster declaration under the Stafford Act.

    IV. Collection of Information Requirements

    As stated in section 1115A(d)(3) of the Act, Chapter 35 of title 44, United States Code, shall not apply to the testing and evaluation of models under section 1115A of the Act. As a result, the information collection requirements contained in this final rule need not be reviewed by the Office of Management and Budget. However, we have summarized the anticipated cost burden associated with the information collection requirements in section V. (Regulatory Impact Statement) of this final rule.

    V. Regulatory Impact Statement

    We have examined the impact of this 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 18, 2011), the Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), section 1102(b) of the Act, section 202 of the Unfunded Mandates Reform Act of 1995 (March 22, 1995; Pub. L. 104-4), Executive Order 13132 on Federalism (August 4, 1999), the Congressional Review Act (5 U.S.C. 804(2)), and Executive Order 13771 on Reducing Regulation and Controlling Regulatory Costs (January 30, 2017).

    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). A Regulatory Impact Analysis (RIA) must be prepared for major rules with economically significant effects ($100 million or more in any 1 year). This rule does not reach the economic threshold and thus is not considered a major rule.

    The RFA requires agencies to analyze options for regulatory relief of small entities. For purposes of the RFA, small entities include small businesses, nonprofit organizations, and small governmental jurisdictions. Most hospitals and most other providers and suppliers are small entities, either by nonprofit status or by having revenues of less than $7.5 million to $38.5 million in any 1 year. Individuals and states are not included in the definition of a small entity. We are not preparing an analysis for the RFA because we have determined, and the Secretary certifies, that this final rule will not have a significant economic impact on a substantial number of small entities.

    In addition, section 1102(b) of the Act requires us to prepare an RIA if a rule may have a significant impact on the operations of a substantial number of small rural hospitals. This analysis must conform to the provisions of section 604 of the RFA. For purposes of section 1102(b) of the Act, we define a small rural hospital as a hospital that is located outside of a Metropolitan Statistical Area for Medicare payment regulations and has fewer than 100 beds. We are not preparing an analysis for section 1102(b) of the Act because we have determined, and the Secretary certifies, that this final rule will not have a significant impact on the operations of a substantial number of small rural hospitals.

    Section 202 of the Unfunded Mandates Reform Act of 1995 also requires that agencies assess anticipated costs and benefits before issuing any rule whose mandates require spending in any 1 year of $100 million in 1995 dollars, updated annually for inflation. In 2018, that threshold is approximately $150 million. This rule will have no consequential effect on state, local, or tribal governments or on the private sector.

    Executive Order 13132 establishes certain requirements that an agency must meet when it promulgates a proposed rule (and subsequent final rule) that imposes substantial direct requirement costs on state and local governments, preempts state law, or otherwise has Federalism implications. Since this regulation does not impose any costs on state or local governments, the requirements of Executive Order 13132 are not applicable.

    Executive Order 13771, titled Reducing Regulation and Controlling Regulatory Costs, was issued on January 30, 2017. It has been determined that this final rule is not a “significant regulatory action” and thus does not trigger the aforementioned requirements of Executive Order 13771.

    In the December 1, 2017 interim final rule with comment period, we utilized 2016 CJR episode level data to approximate the impact to projected CJR model savings resulting from the extreme and uncontrollable circumstances policy for performance year 2 (82 FR 57096). Specifically, we first identified the CJR participant hospitals located in Alabama, California, Florida, Georgia, South Carolina, Mississippi, Texas, and Louisiana (those states for which 1135 waivers were issued) that were also located in the counties listed in section II.B. of this final rule and listed on www.FEMA.gov/disasters as having a major disaster declaration. To approximate the date of the emergency, we used the date of the disasters as listed on the FEMA website from 2017 (resetting the year to 2016 to align with the claim dates of service) and selected all CJR episodes for these providers that initiated in the month preceding (that is, 30 days prior) the date of the disaster. Date of disaster declaration dates were matched to the CJR participant hospitals based on the hospitals' state addresses.

    For non-fracture episodes, we capped the actual episode payment at the target price determined for that episode if the date of admission to the anchor hospitalization was on or within 30 days before the date that the emergency period (as defined in section 1135(g) of the Act) begins. For fracture episodes, we capped the actual episode payment at the target price determined for that episode if the date of admission to the anchor hospitalization was on or within 30 days before or after the date that the emergency period (as defined in section 1135(g) of the Act) begins. Our analyses indicated that the impact of capping the actual episode payments at the episode target prices based on the 2017 extreme and uncontrollable circumstances policy could result in a decrease to the CJR model estimated savings ranging between $1.5 to $5.0 million for performance year 2, quantifying the dollar impact for that year based on a point estimate of $2 million. We also noted that this performance year 2 projected impact was mitigated by the 5 percent stop-loss/stop-gain levels applicable to performance year 2 and added that if these disasters had occurred in a future performance year with higher stop-loss/stop-gain levels then we would expect the projected impact to increase. The performance year 2 savings estimates did not assume any change in spending or volume due to these extreme and uncontrollable circumstances, neither before nor after the date of the disaster as listed on the FEMA website.

    For purposes of assessing the impact of finalizing this policy for performance years 3 through 5, we note that we are unable to accurately or reasonably model an impact due to our inability to predict future disaster events. It is entirely possible future years could be completely free of major disasters and emergencies that might qualify as triggering events under the extreme and uncontrollable circumstances policy. Likewise, it is entirely possible that future years could have many more significant disaster events that might qualify as triggering events for the extreme and uncontrollable circumstances policy. In the absence of any future knowledge of potential disasters that might qualify as events that would invoke the extreme and uncontrollable circumstances policy, we are assuming that the performance year 2 extreme and uncontrollable circumstances $1.5 to $5 million range estimate, quantified using a 2 million dollar point estimate, can be extrapolated across the remaining 3 performance years of the CJR model since we modeled this using knowledge of actual 2017 events. Extrapolating the $2 million per year across performance years 3 through 5 results in an estimated cost of $6 million which could potentially net against savings predicted for the CJR model. We note that extrapolating the range estimate could make the impact of this policy for the remaining 3 years of the model as low as $4.5 million or as high as $15 million. However, we again reiterate that this assumption may be inaccurate as this $2 million per year figure was based on an estimate of known events in 2017 on modeled payments for performance year 2. Specifically, future years could be disaster free or could experience more frequent and destructive disasters, either of which could render this impact estimate incorrect. However, in absence of future knowledge we believe this extrapolation estimate can be used to approximate an impact for this extreme and uncontrollable circumstances policy for performance years 3 through 5 of the CJR model.

    In accordance with the provisions of Executive Order 12866, this final rule was reviewed by the Office of Management and Budget.

    List of Subjects in 42 CFR Part 510

    Administrative practice and procedure, Health facilities, Health professions, Medicare, Reporting and recordkeeping requirements.

    For the reasons set forth in the preamble, the interim final rule published in the December 1, 2017 Federal Register (82 FR 57066), is adopted as final without change.

    Dated: May 14, 2018. Seema Verma, Administrator, Centers for Medicare & Medicaid Services. Dated: May 16, 2018. Alex M. Azar II, Secretary, Department of Health and Human Services.
    [FR Doc. 2018-12379 Filed 6-7-18; 8:45 am] BILLING CODE 4120-01-P
    83 111 Friday, June 8, 2018 Proposed Rules NUCLEAR REGULATORY COMMISSION 10 CFR Chapter I [NRC-2018-0113] Clarification of Export Reporting Requirements for Nuclear Facilities, Equipment, and Non-Nuclear Materials AGENCY:

    Nuclear Regulatory Commission.

    ACTION:

    Draft regulatory issue summary; request for comment.

    SUMMARY:

    The U.S. Nuclear Regulatory Commission (NRC) is seeking public comment on a draft regulatory issue summary (RIS) to clarify the reporting requirements for certain exports of nuclear facilities, equipment, and non-nuclear materials.

    DATES:

    Submit comments by August 7, 2018. Comments received after this date will be considered if it is practical to do so, but the Commission is able to ensure consideration only for comments received before this date.

    ADDRESSES:

    You may submit comments by any of the following methods:

    Federal Rulemaking website: Go to http://www.regulations.gov and search for Docket ID NRC-2018-0113. Address questions about NRC dockets to Jennifer Borges; telephone: 301-287-9127; email: [email protected] For technical questions, contact the individual listed in the FOR FURTHER INFORMATION CONTACT section of this document.

    Mail comments to: May Ma, Office of Administration, Mail Stop: TWFN-7-A60M, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001.

    For additional direction on obtaining information and submitting comments, see “Obtaining Information and Submitting Comments” in the SUPPLEMENTARY INFORMATION section of this document.

    FOR FURTHER INFORMATION CONTACT:

    Andrea Jones, Office of International Programs, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; telephone: 301-287-9072, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    I. Obtaining Information and Submitting Comments A. Obtaining Information

    Please refer to Docket ID NRC-2018-0113 when contacting the NRC about the availability of information for this action. You may obtain publicly-available information related to this action by any of the following methods:

    Federal Rulemaking website: Go to http://www.regulations.gov and search for Docket ID NRC-2018-0113.

    NRC's Agencywide Documents Access and Management System (ADAMS): You may obtain publicly-available documents online in the ADAMS Public Documents collection at http://www.nrc.gov/reading-rm/adams.html. To begin the search, select “ADAMS Public Documents” and then select “Begin Web-based ADAMS Search.” For problems with ADAMS, please contact the NRC's Public Document Room (PDR) reference staff at 1-800-397-4209, 301-415-4737, or by email to [email protected] The Draft NRC Regulatory Issue Summary (RIS) 2018-XX, “Clarification of Export Reporting Requirements for Nuclear Facilities, Equipment, and Non-Nuclear Materials,” is available in ADAMS under Accession No. ML17338A944.

    NRC's PDR: You may examine and purchase copies of public documents at the NRC's PDR, Room O1-F21, One White Flint North, 11555 Rockville Pike, Rockville, Maryland 20852.

    B. Submitting Comments

    Please include Docket ID NRC-2018-0113 in your comment submission.

    The NRC cautions you not to include identifying or contact information that you do not want to be publicly disclosed in your comment submission. The NRC will post all comment submissions at http://www.regulations.gov as well as enter the comment submissions into ADAMS. The NRC does not routinely edit comment submissions to remove identifying or contact information.

    If you are requesting or aggregating comments from other persons for submission to the NRC, then you should inform those persons not to include identifying or contact information that they do not want to be publicly disclosed in their comment submission. Your request should state that the NRC does not routinely edit comment submissions to remove such information before making the comment submissions available to the public or entering the comment into ADAMS.

    II. Background

    The RIS is intended for all persons that are required to report exports of nuclear materials, equipment, and non-nuclear materials under part 110 of title 10 of the Code of Federal Regulations (10 CFR), “Export and Import of Nuclear Equipment and Material.” Specifically, the RIS is intended to clarify the reporting requirements under 10 CFR 110.54(a)(1). The regulation in 10 CFR 110.54(a)(1) states, in part, that licensees exporting nuclear facilities, equipment, and certain non-nuclear materials under a general or specific license during the previous quarter must submit reports by January 15, April 15, July 15, and October 15 of each year on DOC/NRC Forms AP-M or AP-13, and associated forms. The draft RIS includes information relating to this reporting requirement and clarifies that the quarterly reporting requirement is in addition to, and not obviated by, the separate NRC annual reporting requirement in 10 CFR 110.54(c).

    The NRC issues RISs to communicate with stakeholders on a broad range of matters. This may include communicating and clarifying NRC technical or policy positions on regulatory matters that have not been communicated to, or are not broadly understood by, the nuclear industry. As noted in 83 FR 20858 (May 8, 2018), this document is being published in the Proposed Rules section of the Federal Register to comply with publication requirements under 1 CFR chapter I.

    Proposed Action

    The NRC is requesting public comments on the draft RIS. All comments that are to receive consideration in the final RIS must still be submitted electronically or in writing as indicated in the ADDRESSES section of this document. The NRC staff will make a final determination regarding issuance of the RIS after it considers any public comments received in response to this request.

    Dated at Rockville, Maryland, this 5th day of June 2018.

    For the Nuclear Regulatory Commission.

    Tanya M. Mensah, Senior Project Manager, ROP Support and Generic Communications Branch, Division of Inspection and Regional Support, Office of Nuclear Reactor Regulation.
    [FR Doc. 2018-12351 Filed 6-7-18; 8:45 am] BILLING CODE 7590-01-P
    DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 71 [Docket No. FAA-2018-0437; Airspace Docket No. 18-ASO-5] RIN 2120-AA66 Proposed Establishment and Modification of Area Navigation Routes, Florida Metroplex Project; Southeastern United States AGENCY:

    Federal Aviation Administration (FAA), DOT.

    ACTION:

    Notice of proposed rulemaking (NPRM).

    SUMMARY:

    This action proposes to establish 16 high altitude area navigation (RNAV) routes (Q-routes), and modify 7 existing Q-routes, in support of the Florida Metroplex Project. The proposed routes were developed to improve the efficiency of the National Airspace System (NAS) and reduce dependency on ground-based navigational systems that cause system inefficiencies due to their limitations.

    DATES:

    Comments must be received on or before July 9, 2018.

    ADDRESSES:

    Send comments on this proposal to the U.S. Department of Transportation, Docket Operations, 1200 New Jersey Avenue SE, West Building Ground Floor, Room W12-140, Washington, DC 20590; telephone: 1(800) 647-5527 or (202) 366-9826. You must identify FAA Docket No. FAA-2018-0437; Airspace Docket No. 18-ASO-5 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 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:

    Paul Gallant, Airspace Policy Group, Office of Airspace Services, Federal Aviation Administration, 800 Independence Avenue SW, Washington, DC 20591; telephone: (202) 267-8783.

    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 the airspace necessary to ensure the safety of aircraft and the efficient use of airspace. This regulation is within the scope of that authority as it would expand the availability of area navigation routes in the NAS, increase airspace capacity, and reduce complexity in high air traffic volume areas.

    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 (FAA Docket No. FAA-2018-0437; Airspace Docket No. 18-ASO-5) and be submitted in triplicate to the Docket Management Facility (see ADDRESSES section for address and phone number). You may also submit comments through the internet at http://www.regulations.gov.

    Commenters wishing the FAA to acknowledge receipt of their comments on this action must submit with those comments a self-addressed, stamped postcard on which the following statement is made: “Comments to FAA Docket No. FAA-2018-0437; Airspace Docket No. 18-ASO-5.” The postcard will be date/time stamped and returned to the commenter.

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

    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 accessed through the FAA's web page at http://www.faa.gov/air_traffic/publications/airspace_amendments/.

    You may review the public docket containing the proposal, any comments received and any final disposition in person in the Dockets Office (see ADDRESSES section for address and phone number) between 9:00 a.m. and 5:00 p.m., Monday through Friday, except Federal holidays. An informal docket may also be examined during normal business hours at the office of the Eastern Service Center, Federal Aviation Administration, Room 210, 1701 Columbia Ave., 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 proposed rule. FAA Order 7400.11B lists Class A, B, C, D, and E airspace areas, air traffic service routes, and reporting points.

    Background

    The Florida Metroplex Project developed Performance Based Navigation (PBN) routes involving Jacksonville Air Route Traffic Control Center (ARTCC), Miami ARTCC, and San Juan Center Radar Approach Control (CERAP). The proposed new and amended Q-routes would support the strategy to transition the NAS from a ground-based navigation and radar-based system to a satellite-based PBN system. Additionally, the routes would connect to Caribbean Air Traffic Service routes to provide efficient direct routings to and from Caribbean locations.

    Taking advantage of the capabilities of the advanced flight management systems in modern aircraft, these Q-routes would serve to reduce air traffic control (ATC) sector complexity, increase NAS capacity, reduce pilot-to-air traffic controller communications, and allow aircraft to be cleared to their cruising altitude and flight planned route more expeditiously.

    Comment Period

    This NPRM includes a 30-day public comment period instead of the 45-day period generally provided for area navigation route proposals. The proposed Q-routes would support the FAA's Next Generation Air Transportation System (NextGen) efforts to modernize the NAS. The routes would be a critical part of that effort to improve NAS efficiency by increasing airspace capacity and reducing complexity in high air traffic volume areas. The 30-day comment period would provide the opportunity for public input on the proposal as well as an option for FAA to consider the possibility of synchronizing the implementation of the routes with other scheduled NextGen programs and equipment upgrades.

    The Proposal

    The FAA is proposing an amendment to Title 14, Code of Federal Regulations (14 CFR) part 71 to establish 16 new Q-routes, and amend 7 existing Q-routes, in the southeastern United States in support of the Florida Metroplex Project. The proposed new routes would be designated Q-75, Q-77, Q-79, Q-81, Q-83, Q-85, Q-87, Q-89, Q-93, Q-97, Q-99, Q-109, Q-113, Q-135, Q-172, and Q-409. In addition, amendments are proposed to the descriptions of Q-65, Q-69, Q-103, Q-104, Q-110, Q-116, and Q-118. The proposed new and amended route end points are listed below. Full route descriptions are in “The Proposed Amendment” section of this notice.

    The proposed new Q-routes are as follows:

    Q-75: Q-75 would extend between the ENEME, GA, WP (in southeast GA) and the Greensboro, NC, VORTAC.

    Q-77: Q-77 would extend between the OCTAL, FL, WP (on the southeast FL coast) and the WIGVO, GA, WP (near Union, GA).

    Q-79: Q-79 would extend between the MCLAW, FL, WP (near the Florida Keys) and the Atlanta, GA, VORTAC. This would provide linkage to routes going to the Caribbean area.

    Q-81: Q-81 would extend between the TUNSL, FL, WP (near the FL Keys) and the HONID, GA, WP (in southwest GA).

    Q-83: Q-83 would extend between the JEVED, GA, WP (off the southeast GA coast) and the SLOJO, SC, WP (in northern SC).

    Q-85: Q-85 would extend between the LPERD, FL, WP (off the northeast FL coast) and the SMPRR, NC, WP (in southern NC).

    Q-87: Q-87 would extend between the PEAKY, FL, WP (near Marathon, FL) and the LCAPE, SC, WP (near the SC-NC line).

    Q-89: Q-89 would extend between the MANLE, FL, WP (off the central Florida coast) and the Atlanta, GA, VORTAC.

    Q-93: Q-93 would extend between the MCLAW, FL, WP (near the Florida Keys) and the QUIWE, SC, WP (in southwest SC).

    Q-97: Q-97 would extend between the TOVAR, FL, WP (along the southeast Florida coast) and the ELLDE, NC, WP (in southern NC).

    Q-99: Q-99 would extend between the DOFFY, FL, WP (in northern Florida) and the POLYY, NC, WP (near the SC-NC line).

    Q-109: Q-109 would extend between the DOFFY, FL, WP (in northern Florida) and the LAANA, NC, WP (in southern NC).

    Q-113: Q-113 would extend between the RAYVO, SC, WP (in east central SC) and the SARKY, SC, WP (near the SC-NC line).

    Q-135: Q-135 would extend between the JROSS, SC, WP (north of Beaufort, SC) and the RAPZZ, NC, WP (in southern NC).

    Q-172: Q-172 would extend between the YUTEE, SC, WP (in western SC) and the RAPZZ, NC, WP (in southern NC).

    Q-409: Q-409 would extend between the ENEME, GA, WP (in southeast GA) and the MRPIT, NC, WP (in southern NC).

    The proposed amended Q-routes are as follows:

    Q-65: Q-65 currently extends between the JEFOI, GA, WP and the Rosewood, OH, VORTAC. The route would be extended to approximately 200 nautical miles (NM) south of the JEFOI, GA, WP to the KPASA, FL, WP. The KPASA, FL; DOFFY, FL; FETAL, FL; and ENEME, GA, WPs would be added prior to the JEFOI, GA, WP. The TRASY, GA, WP would be added between the JEFOI, GA, and the CESKI, GA, WPs.

    Q-69: Q-69 currently extends between the BLAAN, SC, WP and the RICCS, WV, WP. The route would be extended approximately 210 NM to the south of the BLAAN, SC, WP to the VIYAP, GA, Fix (located near Brunswick, GA). The extended route segments would consist the of VIYAP, GA, fix; OLBEC, GA, WP; ISUZO, GA, WP; and the GURGE, SC, WP. The EMCET, SC, WP would be inserted between the BLAAN, SC, WP and the RYCKI, NC, WP.

    Q-103: Q-103 currently extends between the Pulaski, VA, VORTAC and the AIRRA, PA, WP. The route would be extended to the south of the Pulaski, VA, VORTAC to the CYNTA, GA, WP (in southeastern GA). The extended segments would consist of the CYNTA, GA, WP; PUPYY, GA, WP; RIELE, SC, WP; EMCET, SC, WP; and the SLOJO, SC, WP.

    Q-104: Q-104 currently extends between the DEFUN, FL, fix, and the Cypress, FL, VOR/DME. The route would be amended by removing the DEFUN, FL, fix; and the Cypress, FL, VOR/DME from the route. The ACORI, AL, WP, and the CABLO, GA, WP, would be added prior to the HEVVN, FL, fix. The ENDEW, FL, WP would be added between the SWABE, FL, fix and the St. Petersburg, FL, VORTAC.

    Q-110: Q-110 currently extends between the BLANS, IL, WP, and the THNDR, FL, Fix. The amended route would be the same as currently charted between the BLANS, IL, WP and the JYROD, AL, WP. Beyond that point, the route would be realigned to terminate at the new OCTAL, FL, WP (on the southeast FL coast). The FEONA, GA; GULFR, FL; BRUTS, FL; KPASA, FL; RVERO, FL; WPs, and the THNDR, FL, fix, would be removed. The DAWWN, GA; JOKKY, FL; AMORY, FL; SMELZ, FL; and SHEEK, FL waypoints would be inserted between the JYROD, AL, WP and the JAYMC, FL, WP. After JAYMC, the route would proceed to the OCTAL, FL, WP.

    Q-116: Q-116 currently extends between the KPASA, FL, WP, and the CEEYA, GA, WP. The current KPASA, FL; BRUTS, FL; GULFR, FL; and CEEYA, GA, waypoints would be removed. The route would be expanded and realigned to extend between the Vulcan, AL, VORTAC and the OCTAL, FL, WP (on the southeast FL coast). The following waypoints would be added between the Vulcan, AL, VORTAC and the OCTAL, FL, WP: DEEDA, GA; JAWJA, FL; MICES, FL; PATOY, FL; SMELZ, FL; SHEEK, FL; and JAYMC, FL.

    Q-118: Q-118 currently extends between the Marion, IN, VOR/DME and the KPASA, FL, WP. The amended route would add the Atlanta, GA, VORTAC between the KAILL, GA, WP and the JOHNN, GA, WP; add the JAMIZ, FL, WP between the JOHNN, GA, and BRUTS, FL, WPs; and add the JINOS, FL, WP between the BRUTS, FL, and the KPASA, FL, WPs. Additionally, the route be extended to the south of the KPASA, FL, WP to the PEAKY, FL, WP (near Marathon in the Florida Keys). The SHEEK, FL, WP; CHRRI, FL, fix; FEMID, FL, WP and BRIES, FL, WP would be added between the KPASA, FL WP and the PEAKY, FL WP. Q-118 would provide linkage to routes from the Caribbean area.

    Note: In the regulatory text, below, some route descriptions include waypoints located over international waters. In those route descriptions, in place of a two-letter state abbreviation, either “OA,” meaning “Offshore Atlantic,” or “OG,” meaning “Offshore Gulf of Mexico,” is used.

    RNAV routes are published in paragraph 2006 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 RNAV routes listed in this document would be subsequently published 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 Department of Transportation (DOT) Regulatory Policies and Procedures (44 FR 11034; February 26, 1979); and (3) does not warrant preparation of a regulatory evaluation as the anticipated impact is so minimal. Since this is a routine matter that will only affect air traffic procedures and air navigation, it is certified that this proposed rule, when promulgated, will not have a significant economic impact on a substantial number of small entities under the criteria of the Regulatory Flexibility Act.

    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

    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 FAA Order 7400.11B, Airspace Designations and Reporting Points, dated August 3, 2017, and effective September 15, 2017, is amended as follows: Paragraph 2006 United States Area Navigation Routes. Q-75 ENEME, GA to Greensboro, NC (GSO) [New] ENEME, GA WP (Lat. 30°42′12.09″ N, long. 082°26′09.31″ W) TEUFL, GA WP (Lat. 31°52′00.46″ N, long. 082°01′04.56″ W) TEEEM, GA WP (Lat. 32°08′41.20″ N, long. 081°54′50.57″ W) SHRIL, GA WP (Lat. 32°54′42.21″ N, long. 081°34′09.78″ W) FISHO, SC WP (Lat. 33°16′46.25″ N, long. 081°24′43.52″ W) ILBEE, SC WP (Lat. 34°18′41.66″ N, long. 081°01′07.88″ W) SLOJO, SC WP (Lat. 34°38′46.31″ N, long. 080°39′25.63″ W) Greensboro, NC (GSO) VORTAC (Lat. 36°02′44.49″ N, long. 079°58′34.95″ W) Q-77 OCTAL, FL to WIGVO, GA [New] OCTAL, FL WP (Lat. 26°09′01.91″ N, long. 080°06′37.51″ W) MATLK, FL WP (Lat. 27°49′36.54″ N, long. 080°57′04.27″ W) STYMY, FL WP (Lat. 28°01′09.65″ N, long. 081°08′41.27″ W) WAKKO, FL WP (Lat. 28°18′00.69″ N, long. 081°24′53.94″ W) WASUL, FL WP (Lat. 28°41′10.59″ N, long. 081°35′14.53″ W) MJAMS, FL WP (Lat. 28°55′37.59″ N, long. 081°36′33.30″ W) ETORE, FL WP (Lat. 29°41′49.00″ N, long. 081°40′47.75″ W) SHRKS, FL WP (Lat. 30°37′23.23″ N, long. 081°45′59.13″ W) TEUFL, GA WP (Lat. 31°52′00.46″ N, long. 082°01′04.56″ W) WIGVO, GA WP (Lat. 32°37′24.00″ N, long. 082°02′18.00 W) Q-79 MCLAW, FL to Atlanta, GA (ATL) [New] MCLAW, FL WP (Lat. 24°33′49.00″ N, long. 081°01′00.00″ W) VAULT, FL WP (Lat. 24°45′54.75″ N, long. 081°00′33.72″ W) FEMID, FL WP (Lat. 26°06′29.59″ N, long. 081°27′23.07″ W) WULFF, FL WP (Lat. 27°04′03.14″ N, long. 081°58′44.99″ W) MOLIE, FL WP (Lat. 28°01′55.53″ N, long. 082°18′25.55″ W) DOFFY, FL WP (Lat. 29°15′22.73″ N, long. 082°31′38.10″ W) YUESS, GA WP (Lat. 31°41′00.00″ N, long. 083°33′31.20″ W) Atlanta, GA (ATL) VORTAC (Lat. 33°37′44.68″ N, long. 084°26′06.23″ W) Q-81 TUNSL, FL to HONID, GA [New] TUNSL, FL WP (Lat. 24°54′02.43″ N, long. 081°31′02.80″ W) KARTR, FL FIX (Lat. 25°29′45.76″ N, long. 081°30′46.24″ W) FIPES, OG WP (Lat. 25°41′30.15″ N, long. 081°37′13.79″ W) THMPR, FL WP (Lat. 26°46′00.21″ N, long. 082°20′23.99″ W) LEEHI, FL WP (Lat. 27°07′21.91″ N, long. 082°34′54.57″ W) FARLU, FL WP (Lat. 27°45′32.56″ N, long. 082°50′43.77″ W) ENDEW, FL WP (Lat. 28°18′01.73″ N, long. 082°55′56.70″ W) BITN, OG WP (Lat. 28°46′11.98″ N, long. 083°07′53.01″ W) NICKI, FL WP (Lat. 29°15′20.19″ N, long. 083°20′31.80″ W) HONID, GA WP (Lat. 31°38′50.31″ N, long. 084°23′42.60″ W) Q-83 JEVED, GA to SLOJO, SC [New] JEVED, GA WP (Lat. 31°15′02.60″ N, long. 081°03′40.14″ W) ROYCO, GA WP (Lat. 31°35′10.38″ N, long. 081°02′22.45″ W) TAALN, GA WP (Lat. 31°59′56.18″ N, long. 081°01′41.91″ W) KONEY, SC WP (Lat. 32°17′01.62″ N, long. 081°01′23.79″ W) WURFL, SC WP (Lat. 32°31′46.59″ N, long. 081°01′08.07″ W) EFFAY, SC WP (Lat. 34°15′30.67″ N, long. 080°30′37.94″ W) SLOJO, SC WP (Lat. 34°38′46.31″ N, long. 080°39′25.63″ W) Q-85 LPERD, FL to SMPRR, NC [New] LPERD, FL WP (Lat. 30°36′09.18″ N, long. 081°16′52.16″ W) GIPPL, GA WP (Lat. 31°22′53.96″ N, long. 081°09′53.70″ W) ROYCO, GA WP (Lat. 31°35′10.38″ N, long. 081°02′22.45″ W) IGARY, SC WP (Lat. 32°34′41.37″ N, long. 080°22′36.01″ W) PELIE, SC WP (Lat. 33°21′23.88″ N, long. 079°44′43.43″ W) BUMMA, SC WP (Lat. 34°01′58.09″ N, long. 079°11′07.50″ W) KAATT, NC WP (Lat. 34°15′35.43″ N, long. 078°59′42.38″ W) SMPRR, NC WP (Lat. 34°26′28.32″ N, long. 078°50′31.80″ W) Q-87 PEAKY, FL to LCAPE, SC [New] PEAKY, FL WP (Lat. 24°35′23.72″ N, long. 081°08′53.91″ W) GOPEY, FL WP (Lat. 25°09′32.92″ N, long. 081°05′17.11″ W) GRIDS, FL WP (Lat. 26°24′54.27″ N, long. 080°57′11.40″ W) TIRCO, FL WP (Lat. 27°19′05.75″ N, long. 080°51′16.67″ W) MATLK, FL WP (Lat. 27°49′36.54″ N, long. 080°57′04.27″ W) ONEWY, FL WP (Lat. 28°21′53.66″ N, long. 081°03′21.04″ W) ZERBO, FL WP (Lat. 28°54′56.68″ N, long. 081°17′40.13″ W) DUCEN, FL WP (Lat. 29°16′33.83″ N, long. 081°19′23.24″ W) FEMON, FL WP (Lat. 30°27′31.57″ N, long. 081°23′36.20″ W) VIYAP, GA FIX (Lat. 31°15′08.15″ N, long. 081°26′08.18″ W) TAALN, GA WP (Lat. 31°59′56.18″ N, long. 081°01′41.91″ W) JROSS, SC WP (Lat. 32°42′40.00″ N, long. 080°37′38.00″ W) RAYVO, SC WP (Lat. 33°38′44.12″ N, long. 080°04′00.84″ W) HINTZ, SC WP (Lat. 34°10′11.02″ N, long. 079°44′48.12″ W) REDFH, SC WP (Lat. 34°22′36.35″ N, long. 079°37′08.34″ W) LCAPE, SC WP (Lat. 34°33′03.47″ N, long. 079°30′39.47″ W) Q-89 MANLE, FL to Atlanta, GA (ATL) [New] MANLE, FL WP (Lat. 28°42′26.16″ N, long. 080°24′23.71″ W) WAKUP, FL WP (Lat. 28°51′47.62″ N, long. 080°40′26.97″ W) PRMUS, FL WP (Lat. 29°49′05.67″ N, long. 081°07′20.74″ W) YANTI, GA WP (Lat. 31°47′22.38″ N, long. 082°51′32.65″ W) Atlanta, GA (ATL) VORTAC (Lat. 33°37′44.68″ N, long. 084°26′06.23″ W) Q-93 MCLAW, FL to QUIWE, SC [New] MCLAW, FL WP (Lat. 24°33′49.00″ N, long. 081°01′00.00″ W) VAULT, FL WP (Lat. 24°45′54.75″ N, long. 081°00′33.72″ W) LINEY, FL WP (Lat. 25°16′44.02″ N, long. 080°53′15.43″ W) FOBIN, FL WP (Lat. 25°47′02.00″ N, long. 080°46′00.89″ W) EBAYY, FL WP (Lat. 27°43′40.20″ N, long. 080°30′03.59″ W) MALET, FL FIX (Lat. 28°41′29.90″ N, long. 080°52′04.30″ W) DEBRL, FL WP (Lat. 29°17′48.73″ N, long. 081°08′02.88″ W) KENLL, FL WP (Lat. 29°34′28.35″ N, long. 081°07′25.26″ W) PRMUS, FL WP (Lat. 29°49′05.67″ N, long. 081°07′20.74″ W) WOPN, OA WP (Lat. 30°37′36.03″ N, long. 081°04′26.44″ W) GIPPL, GA WP (Lat. 31°22′53.96″ N, long. 081°09′53.70″ W) ISUZO, GA WP (Lat. 31°57′47.85″ N, long. 081°14′14.79″ W) FISHO, SC WP (Lat. 33°16′46.25″ N, long. 081°24′43.52″ W) QUIWE, SC WP (Lat. 33°57′05.56″ N, long. 081°30′07.93″ W) Q-97 TOVAR, FL to ELLDE, NC [New] TOVAR, FL WP (Lat. 26°33′05.09″ N, long. 080°02′19.75″ W) EBAYY, FL WP (Lat. 27°43′40.20″ N, long. 080°30′03.59″ W) MALET, FL FIX (Lat. 28°41′29.90″ N, long. 080°52′04.30″ W) DEBRL, FL WP (Lat. 29°17′48.73″ N, long. 081°08′02.88″ W) KENLL, FL WP (Lat. 29°34′28.35″ N, long. 081°07′25.26″ W) PRMUS, FL WP (Lat. 29°49′05.67″ N, long. 081°07′20.74″ W) WOPN, OA WP (Lat. 30°37′36.03″ N, long. 081°04′26.44″ W) JEVED, GA WP (Lat. 31°15′02.60″ N, long. 081°03′40.14″ W) CAKET, SC WP (Lat. 32°31′08.63″ N, long. 080°16′09.21″ W) ELMSZ, SC WP (Lat. 33°40′36.61″ N, long. 079°17′59.56″ W) YURCK, NC WP (Lat. 34°11′14.80″ N, long. 078°52′40.62″ W) ELLDE, NC WP (Lat. 34°24′14.57″ N, long. 078°41′50.60″ W) Q99 DOFFY, FL to POLYY, NC [New] DOFFY, FL WP (Lat. 29°15′22.73″ N, long. 082°31′38.10″ W) CAMJO, FL WP (Lat. 30°30′32.00″ N, long. 082°41′11.00″ W) HEPAR, GA WP (Lat. 31°05′13.00″ N, long. 082°33′46.00″ W) TEEEM, GA WP (Lat. 32°08′41.20″ N, long. 081°54′50.57″ W) BLAAN, SC WP (Lat. 33°51′09.38″ N, long. 080°53′32.78″ W) BWAGS, SC WP (Lat. 34°00′03.77″ N, long. 080°45′12.26″ W) EFFAY, SC WP (Lat. 34°15′30.67″ N, long. 080°30′37.94″ W) WNGUD, SC WP (Lat. 34°41′53.16″ N, long. 080°06′12.12″ W) POLYY, NC WP (Lat. 34°48′37.54″ N, long. 079°59′55.81″ W) Q-109 DOFFY, FL to LAAN, NC [New] DOFFY, FL WP (Lat. 29°15′22.73″ N, long. 082°31′38.10″ W) CAMJO, FL WP (Lat. 30°30′32.00″ N, long. 082°41′11.00″ W) HEPAR, GA WP (Lat. 31°05′13.00″ N, long. 082°33′46.00″ W) TEEEM, GA WP (Lat. 32°08′41.20″ N, long. 081°54′50.57″ W) RIELE, SC WP (Lat. 32°37′27.14″ N, long. 081°23′34.97″ W) PANDY, SC WP (Lat. 33°28′29.39″ N, long. 080°26′55.21″ W) RAYVO, SC WP (Lat. 33°38′44.12″ N, long. 080°04′00.84″ W) SESUE, GA WP (Lat. 33°52′02.58″ N, long. 079°33′51.88″ W) BUMMA, SC WP (Lat. 34°01′58.09″ N, long. 079°11′07.50″ W) YURCK, NC WP (Lat. 34°11′14.80″ N, long. 078°52′40.62″ W) LAANA, NC WP (Lat. 34°19′41.35″ N, long. 078°35′37.16″ W) Q-113 RAYVO, SC to SARKY, SC [New] RAYVO, SC WP (Lat. 33°38′44.12″ N, long. 080°04′00.84″ W) CEELY, SC WP (Lat. 34°12′54.72″ N, long. 079°27′57.01″ W) SARKY, SC WP (Lat. 34°25′41.43″ N, long. 079°14′17.50″ W) Q-135 JROSS, SC to RAPZZ, NC [New] JROSS, SC WP (Lat. 32°42′40.00″ N, long. 080°37′38.00″ W) PELIE, SC WP (Lat. 33°21′23.88″ N, long. 079°44′43.43″ W) ELMSZ, SC WP (Lat. 33°40′36.61″ N, long. 079°17′59.56″ W) RAPZZ, NC WP (Lat. 34°15′03.34″ N, long. 078°29′17.58″ W) Q-172 YUTEE, SC to RAPZZ, NC [New] YUTEE, SC WP (Lat. 33°47′28.54″ N, long. 081°33′19.15″ W) BWAGS, SC WP (Lat. 34°00′03.77″ N, long. 80°45′12.26″ W) HINTZ, SC WP (Lat. 34°10′11.02″ N, long. 079°44′48.12″ W) CEELY, SC WP (Lat. 34°12′54.72″ N, long. 079°27′57.01″ W) OKNEE, SC WP (Lat. 34°15′39.92″ N, long. 079°10′40.68″ W) KAATT, NC WP (Lat. 34°15′35.43″ N, long. 078°59′42.38″ W) RAPZZ, NC WP (Lat. 34°15′03.34″ N, long. 078°29′17.58″ W) Q-409 ENEME, GA to MRPIT, NC [New] ENEME, GA WP (Lat. 30°42′12.09″ N, long. 082°26′09.31″ W) PUPYY, GA WP (Lat. 31°24′35.58″ N, long. 081°49′06.19″ W) ISUZO, GA WP (Lat. 31°57′47.85″ N, long. 081°14′14.79″ W) KONEY, SC WP (Lat. 32°17′01.62″ N, long. 081°01′23.79″ W) JROSS, SC WP (Lat. 32°42′40.00″ N, long. 080°37′38.00″ W) SESUE, GA WP (Lat. 33°52′02.58″ N, long. 079°33′51.88″ W) OKNEE, SC WP (Lat. 34°15′39.92″ N, long. 079°10′40.68″ W) MRPIT, NC WP (Lat. 34°26′05.09″ N, long. 079°01′45.10″ W) Q-65 KPASA, FL to Rosewood, OH (ROD) [Amended] KPASA, FL WP (Lat. 28°10′34.00″ N, long. 081°54′27.00″ W) DOFFY, FL WP (Lat. 29°15′22.73″ N, long. 082°31′38.10″ W) FETAL, FL WP (Lat. 30°11′03.69″ N, long. 082°30′24.76″ W) ENEME, GA WP (Lat. 30°42′12.09″ N, long. 082°26′09.31″ W) JEFOI, GA WP (Lat. 31°35′37.02″ N, long. 082°31′18.38″ W) TRASY, GA WP (Lat. 31°55′25.92″ N, long. 082°35′50.51″ W) CESKI, GA WP (Lat. 32°16′21.27″ N, long. 082°40′38.96″ W) DAREE, GA WP (Lat. 34°37′35.72″ N, long. 083°51′35.03″ W) LORN, TN WP (Lat. 35°21′16.33″ N, long. 084°14′19.35″ W) SOGEE, TN WP (Lat. 36°31′50.64″ N, long. 084°11′35.39″ W) ENGRA, KY WP (Lat. 37°29′02.34″ N, long. 084°15′02.15″ W) OCASE, KY WP (Lat. 38°23′59.05″ N, long. 084°11′05.32″ W) Rosewood, OH (ROD) VORTAC (Lat. 40°17′16.08″ N, long. 084°02′35.15″ W) Q-69 VIYAP, GA to RICCS, WV [Amended] VIYAP, GA FIX (Lat. 31°15′08.15″ N, long. 081°26′08.18″ W) OLBEC, GA WP (Lat. 31°28′32.85″ N, long. 081°26′17.61″ W) ISUZO, GA WP (Lat. 31°57′47.85″ N, long. 081°14′14.79″ W) GURGE, SC WP (Lat. 32°29′02.26″ N, long. 081°12′41.48″ W) BLAAN, SC WP (Lat. 33°51′09.38″ N, long. 080°53′32.78″ W) EMCET, SC WP (Lat. 34°09′41.99″ N, long. 080°50′12.51″ W) RYCKI, NC WP (Lat. 36°24′43.05″ N, long. 080°25′07.50″ W) LUNDD, VA WP (Lat. 36°44′22.38″ N, long. 080°21′07.11″ W) ILLSA, VA WP (Lat. 37°38′55.85″ N, long. 080°13′18.44″ W) EWESS, WV WP (Lat. 38°21′50.31″ N, long. 080°06′52.03″ W) RICCS, WV WP (Lat. 38°55′14.65″ N, long. 080°05′01.68″ W) Q-103 CYNTA, GA to AIRRA, PA [Amended] CYNTA, GA WP (Lat. 30°36′27.06″ N, long. 082°05′35.45″ W) PUPYY, GA WP (Lat. 31°24′35.58″ N, long. 081°49′06.19″ W) RIELE, SC WP (Lat. 32°37′27.14″ N, long. 081°23′34.97″ W) EMCET, SC WP (Lat. 34°09′41.99″ N, long. 080°50′12.51″ W) SLOJO, SC WP (Lat. 34°38′46.31″ N, long. 080°39′25.63″ W) Pulaski, VA (PSK) VORTAC (Lat. 37°05′15.74″ N, long. 080°42′46.44″ W) ASBUR, WV FIX (Lat. 37°49′24.41″ N, long. 080°27′51.44″ W) OAKLE, WV FIX (Lat. 38°07′13.80″ N, long. 080°21′44.84″ W) PERRI, WV FIX (Lat. 38°17′50.49″ N, long. 080°18′05.11″ W) PERKS, WV FIX (Lat. 38°39′40.84″ N, long. 080°10′29.36″ W) RICCS, WV WP (Lat. 38°55′14.65″ N, long. 080°05′01.68″ W) EMNEM, WV WP (Lat. 39°31′27.12″ N, long. 080°04′28.21″ W) AIRRA, PA WP (Lat. 41°06′16.48″ N, long. 080°03′48.73″ W) Q-104 ACORI, AL to St. Petersburg, FL (PIE) [Amended] ACORI, AL WP (Lat. 31°46′23.36″ N, long. 085°51′29.51″ W) CABLO, GA WP (Lat. 30°46′29.00″ N, long. 084°50′24.00″ W) HEVVN, FL FIX (Lat. 29°49′19.11″ N, long. 083°53′42.89″ W) LEGGT, FL FIX (Lat. 29°13′22.56″ N, long. 083°30′38.60″ W) PLYER, FL FIX (Lat. 28°56′51.36″ N, long. 083°20′08.59″ W) SWABE, FL FIX (Lat. 28°35′16.32″ N, long. 083°06′31.16″ W) ENDEW, FL WP (Lat. 28°18′01.73″ N, long. 082°55′56.70″ W) St. Petersburg, FL (PIE) VORTAC (Lat. 27°54′27.95″ N, long. 082°41′03.51″ W) Q-110 BLANS, IL to OCTAL, FL [Amended] BLANS, IL WP (Lat. 37°28′09.27″ N, long. 088°44′00.68″ W) BETIE, TN WP (Lat. 36°07′29.88″ N, long. 087°54′01.48″ W) SKIDO, AL WP (Lat. 34°31′49.10″ N, long. 086°53′11.16″ W) BFOLO, AL WP (Lat. 34°03′33.98″ N, long. 086°31′30.49″ W) JYROD, AL WP (Lat. 33°10′53.29″ N, long. 085°51′54.85″ W) DAWWN, GA WP (Lat. 31°28′49.96″ N, long. 084°36′46.69″ W) JOKKY, FL WP (Lat. 30°11′31.47″ N, long. 083°38′41.86″ W) AMORY, FL WP (Lat. 29°13′17.02″ N, long. 082°55′42.90″ W) SMELZ, FL WP (Lat. 28°04′59.00″ N, long. 082°06′34.00″ W) SHEEK, FL WP (Lat. 27°35′15.40″ N, long. 081°46′27.82″ W) JAYMC, FL WP (Lat. 26°58′51.00″ N, long. 081°22′08.00″ W) OCTAL, FL WP (Lat. 26°09′01.91″ N, long. 080°06′37.51″ W) Q-116 Vulcan, AL (VUZ) to OCTAL, FL [Amended] Vulcan, AL (VUZ) VORTAC (Lat. 33°40′12.48″ N, long. 086°53′59.41″ W) DEEDA, GA WP (Lat. 31°34′13.55″ N, long. 085°00′31.10″ W) JAWJA, FL WP (Lat. 30°10′25.55″ N, long. 083°48′58.94″ W) MICES, FL WP (Lat. 29°51′37.65″ N, long. 083°33′18.30″ W) PATOY, FL WP (Lat. 29°03′52.49″ N, long. 082°54′00.09″ W) SMELZ, FL WP (Lat. 28°04′59.00″ N, long. 082°06′34.00″ W) SHEEK, FL WP (Lat. 27°35′15.40″ N, long. 081°46′27.82″ W) JAYMC, FL WP (Lat. 26°58′51.00″ N, long. 081°22′08.00″ W) OCTAL, FL WP (Lat. 26°09′01.91″ N, long. 080°06′37.51″ W) Q-118 Marion, IN (MZZ) to PEAKY, FL [Amended] Marion, IN (MZZ) VOR/DME (Lat. 40°29′35.99″ N, long. 085°40′45.30″ W) HEVAN, IN WP (Lat. 39°21′08.86″ N, long. 085°07′46.70″ W) VOSTK, KY WP (Lat. 38°28′15.86″ N, long. 084°43′03.58″ W) HELUB, KY WP (Lat. 37°42′54.84″ N, long. 084°44′28.31″ W) JEDER, KY WP (Lat. 37°19′30.54″ N, long. 084°45′14.17″ W) GLAZR, TN WP (Lat. 36°25′20.78″ N, long. 084°46′49.29″ W) KAILL, GA WP (Lat. 34°01′47.21″ N, long. 084°31′24.18″ W) Atlanta, GA (ATL) VORTAC (Lat. 33°37′44.68″ N, long. 084°26′06.23″ W) JOHNN, GA FIX (Lat. 31°31′22.94″ N, long. 083°57′26.55″ W) JAMIZ, FL WP (Lat. 30°13′46.91″ N, long. 083°19′27.78″ W) BRUTS, FL WP (Lat. 29°30′58.00″ N, long. 082°58′57.00″ W) JINOS, FL WP (Lat. 28°27′45.60″ N, long. 082°08′04.60″ W) KPASA, FL WP (Lat. 28°10′34.00″ N, long. 081°54′27.00″ W) SHEEK, FL WP (Lat. 27°35′15.40″ N, long. 081°46′27.82″ W) CHRRI, FL FIX (Lat. 27°03′00.70″ N, long. 081°39′14.81″ W) FEMID, FL WP (Lat. 26°06′29.59″ N, long. 081°27′23.07″ W) BRIES, FL WP (Lat. 25°03′56.03″ N, long. 081°14′38.35″ W) PEAKY, FL WP (Lat. 24°35′23.72″ N, long. 081°08′53.91″ W) Issued in Washington, DC, on May 30, 2018. Rodger A. Dean, Jr., Manager, Airspace Policy Group.
    [FR Doc. 2018-12293 Filed 6-7-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 1100, 1140, and 1143 [Docket No. FDA-2017-N-6107] RIN 0910-AH88 Regulation of Premium Cigars; Extension of Comment Period AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Advance notice of proposed rulemaking; extension of comment period.

    SUMMARY:

    The Food and Drug Administration (FDA or the Agency) is extending the comment period for the advance notice of proposed rulemaking (ANPRM) that appeared in the Federal Register of March 26, 2018. In the ANPRM, FDA requested comments, data, research results, or other information that may inform regulatory actions FDA might take with respect to premium cigars. The Agency is taking this action in response to requests for an extension to allow interested persons additional time to submit comments.

    DATES:

    FDA is extending the comment period on the ANPRM published on March 26, 2018 (83 FR 12901). Submit either electronic or written comments by July 25, 2018.

    ADDRESSES:

    You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before July 25, 2018. The https://www.regulations.gov electronic filing system will accept comments until midnight Eastern Time at the end of July 25, 2018. Comments received by mail/hand delivery/courier (for written/paper submissions) will be considered timely if they are postmarked or the delivery service acceptance receipt is on or before that date.

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on https://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2017-N-6107 for “Regulation of Premium Cigars.” Received comments, those filed in a timely manner (see ADDRESSES), will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Deirdre Jurand or Nate Mease, Center for Tobacco Products, Food and Drug Administration, Document Control Center, 10903 New Hampshire Ave., Bldg. 71, Rm. G335, Silver Spring, MD 20993, 1-877-287-1373, [email protected]

    SUPPLEMENTARY INFORMATION:

    In the Federal Register of March 26, 2018, FDA published an ANPRM with a 90-day comment period to obtain information related to the regulation of premium cigars under the Federal Food, Drug, and Cosmetic Act, as amended by the Family Smoking Prevention and Tobacco Control Act, and regulations regarding the sale and distribution of tobacco products. FDA is seeking comments, data, research results, or other information that may inform regulatory actions FDA might take with respect to premium cigars. Specifically, FDA is seeking information related to the following topics: Definition of premium cigars, use patterns of premium cigars, and public health considerations associated with premium cigars.

    The Agency has received requests for a 90-day extension of the comment period for the ANPRM. FDA has considered the requests and is extending the comment period for the ANPRM for 30 days, until July 25, 2018. The Agency believes that a 30-day extension allows adequate time for interested persons to submit comments without significantly delaying any potential regulatory action on these important issues.

    Dated: June 5, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-12367 Filed 6-7-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Parts 1100, 1140, and 1143 [Docket No. FDA-2017-N-6565] RIN 0910-AH60 Regulation of Flavors in Tobacco Products; Extension of Comment Period AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Advance notice of proposed rulemaking; extension of comment period.

    SUMMARY:

    The Food and Drug Administration (FDA or Agency) is extending the comment period for the advance notice of proposed rulemaking (ANPRM) that appeared in the Federal Register of March 21, 2018. In the ANPRM, FDA requested information related to the role that flavors play in tobacco products. The Agency is taking this action in response to requests for an extension to allow interested persons additional time to submit comments.

    DATES:

    FDA is extending the comment period on the ANPRM published on March 21, 2018 (83 FR 12294). Submit either electronic or written comments by July 19, 2018.

    ADDRESSES:

    You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before July 19, 2018. The https://www.regulations.gov electronic filing system will accept comments until midnight Eastern Time at the end of July 19, 2018. Comments received by mail/hand delivery/courier (for written/paper submissions) will be considered timely if they are postmarked or the delivery service acceptance receipt is on or before that date.

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on https://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2017-N-6565 for “Regulation of Flavors in Tobacco Products.” Received comments, those filed in a timely manner (see ADDRESSES), will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Laura Rich or Katherine Collins, Center for Tobacco Products, Food and Drug Administration, Document Control Center, 10903 New Hampshire Ave., Bldg. 71, Rm. G335, Silver Spring, MD 20993, 1-877-287-1373, [email protected]

    SUPPLEMENTARY INFORMATION:

    In the Federal Register of March 21, 2018, FDA published an ANPRM with a 90-day comment period to obtain information related to the role that flavors play in tobacco products. Specifically, the ANPRM is seeking comments, data, research results, or other information about, among other things, how flavors attract youth to initiate tobacco product use and about whether and how certain flavors may help adult cigarette smokers reduce cigarette use and switch to potentially less harmful products. FDA is seeking this information to inform regulatory actions FDA might take with respect to tobacco products with flavors, under the Federal Food, Drug, and Cosmetic Act, as amended by the Family Smoking Prevention and Tobacco Control Act. Potential regulatory actions include, but are not limited to, tobacco product standards and restrictions on sale and distribution of tobacco products with flavors.

    The Agency has received a number of requests for a 90-day extension of the comment period for the ANPRM and one request for a 105-day extension. FDA has considered these requests and is extending the comment period for the ANPRM for 30 days, until July 19, 2018.

    The Agency believes that a 30-day extension allows adequate time for interested persons to submit comments without significantly delaying any potential regulatory action on these important issues.

    Dated: June 5, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-12369 Filed 6-7-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF HEALTH AND HUMAN SERVICES Food and Drug Administration 21 CFR Part 1130 [Docket No. FDA-2017-N-6189] RIN 0910-AH86 Tobacco Product Standard for Nicotine Level of Combusted Cigarettes; Extension of Comment Period AGENCY:

    Food and Drug Administration, HHS.

    ACTION:

    Advance notice of proposed rulemaking; extension of comment period.

    SUMMARY:

    The Food and Drug Administration (FDA or the Agency) is extending the comment period for the advance notice of proposed rulemaking (ANPRM) that appeared in the Federal Register of March 16, 2018. In the ANPRM, FDA requested information for consideration in developing a tobacco product standard to set a maximum nicotine level in combusted cigarettes so that they are minimally addictive or nonaddictive. The Agency is taking this action in response to requests for an extension to allow interested persons additional time to submit comments.

    DATES:

    FDA is extending the comment period on the ANPRM published on March 16, 2018 (83 FR 11818). Submit either electronic or written comments by July 16, 2018.

    ADDRESSES:

    You may submit comments as follows. Please note that late, untimely filed comments will not be considered. Electronic comments must be submitted on or before July 16, 2018. The https://www.regulations.gov electronic filing system will accept comments until midnight Eastern Time at the end of July 16, 2018. Comments received by mail/hand delivery/courier (for written/paper submissions) will be considered timely if they are postmarked or the delivery service acceptance receipt is on or before that date.

    Electronic Submissions

    Submit electronic comments in the following way:

    Federal eRulemaking Portal: https://www.regulations.gov. Follow the instructions for submitting comments. Comments submitted electronically, including attachments, to https://www.regulations.gov will be posted to the docket unchanged. Because your comment will be made public, you are solely responsible for ensuring that your comment does not include any confidential information that you or a third party may not wish to be posted, such as medical information, your or anyone else's Social Security number, or confidential business information, such as a manufacturing process. Please note that if you include your name, contact information, or other information that identifies you in the body of your comments, that information will be posted on https://www.regulations.gov.

    • If you want to submit a comment with confidential information that you do not wish to be made available to the public, submit the comment as a written/paper submission and in the manner detailed (see “Written/Paper Submissions” and “Instructions”).

    Written/Paper Submissions

    Submit written/paper submissions as follows:

    Mail/Hand delivery/Courier (for written/paper submissions): Dockets Management Staff (HFA-305), Food and Drug Administration, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    • For written/paper comments submitted to the Dockets Management Staff, FDA will post your comment, as well as any attachments, except for information submitted, marked and identified, as confidential, if submitted as detailed in “Instructions.”

    Instructions: All submissions received must include the Docket No. FDA-2017-N-6189 for “Tobacco Product Standard for Nicotine Level of Combusted Cigarettes.” Received comments, those filed in a timely manner (see ADDRESSES), will be placed in the docket and, except for those submitted as “Confidential Submissions,” publicly viewable at https://www.regulations.gov or at the Dockets Management Staff between 9 a.m. and 4 p.m., Monday through Friday.

    • Confidential Submissions—To submit a comment with confidential information that you do not wish to be made publicly available, submit your comments only as a written/paper submission. You should submit two copies total. One copy will include the information you claim to be confidential with a heading or cover note that states “THIS DOCUMENT CONTAINS CONFIDENTIAL INFORMATION.” The Agency will review this copy, including the claimed confidential information, in its consideration of comments. The second copy, which will have the claimed confidential information redacted/blacked out, will be available for public viewing and posted on https://www.regulations.gov. Submit both copies to the Dockets Management Staff. If you do not wish your name and contact information to be made publicly available, you can provide this information on the cover sheet and not in the body of your comments and you must identify this information as “confidential.” Any information marked as “confidential” will not be disclosed except in accordance with 21 CFR 10.20 and other applicable disclosure law. For more information about FDA's posting of comments to public dockets, see 80 FR 56469, September 18, 2015, or access the information at: https://www.thefederalregister.org/fdsys/pkg/FR-2015-09-18/pdf/2015-23389.pdf.

    Docket: For access to the docket to read background documents or the electronic and written/paper comments received, go to https://www.regulations.gov and insert the docket number, found in brackets in the heading of this document, into the “Search” box and follow the prompts and/or go to the Dockets Management Staff, 5630 Fishers Lane, Rm. 1061, Rockville, MD 20852.

    FOR FURTHER INFORMATION CONTACT:

    Gerie Voss, Center for Tobacco Products, Food and Drug Administration, Document Control Center, 10903 New Hampshire Ave., Bldg. 71, Rm. G335, Silver Spring, MD 20993, 1-877-CTP-1373, [email protected]

    SUPPLEMENTARY INFORMATION:

    In the Federal Register of March 16, 2018, FDA published an ANPRM with a 90-day comment period to obtain information for consideration in developing a tobacco product standard to set a maximum nicotine level in combusted cigarettes so that they are minimally addictive or nonaddictive. Comments on the scope of products to be covered, maximum nicotine level for a potential nicotine tobacco product standard, implementation methods, analytical testing methods, technical achievability, possible countervailing effects, and other topics will aid FDA in its consideration regarding development of a tobacco product standard to set a maximum nicotine level in combusted cigarettes.

    The Agency has received a number of requests for a 90-day extension of the comment period for the ANPRM and one request for a 120-day extension. FDA has considered the requests and is extending the comment period for the ANPRM for an additional 30 days, until July 16, 2018. The Agency believes that a 30-day extension allows adequate time for interested persons to submit comments without significantly delaying any potential regulatory action on these important issues.

    Dated: June 5, 2018. Leslie Kux, Associate Commissioner for Policy.
    [FR Doc. 2018-12368 Filed 6-7-18; 8:45 am] BILLING CODE 4164-01-P
    DEPARTMENT OF THE INTERIOR National Indian Gaming Commission 25 CFR Part 543 RIN 3141-AA60 Minimum Internal Control Standards AGENCY:

    National Indian Gaming Commission, Department of the Interior.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The National Indian Gaming Commission (NIGC) proposes to amend its minimum internal control standards for Class II gaming under the Indian Gaming Regulatory Act to correct an erroneous deletion of the key control standards and to make other minor edits and additions for clarity.

    DATES:

    Written comments on this proposed rule must be received on or before July 9, 2018.

    ADDRESSES:

    You may submit comments by any one of the following methods, however, please note that comments sent by electronic mail are strongly encouraged.

    Email comments to: [email protected].

    Mail comments to: National Indian Gaming Commission, 1849 C Street NW, MS 1621, Washington, DC 20240.

    Fax comments to: National Indian Gaming Commission at 202-632-0045.

    FOR FURTHER INFORMATION CONTACT:

    Jennifer Lawson at (202) 632-7003 or by fax (202) 632-7066 (these numbers are not toll free).

    SUPPLEMENTARY INFORMATION:

    I. Background

    The Indian Gaming Regulatory Act (IGRA or Act), Public Law 100-497, 25 U.S.C. 2701 et seq., was signed into law on October 17, 1988. The Act established the National Indian Gaming Commission (“NIGC” or “Commission”) and set out a comprehensive framework for the regulation of gaming on Indian lands. On January 5, 1999, the NIGC published a final rule in the Federal Register called Minimum Internal Control Standards. 64 FR 590. The rule added a new part to the Commission's regulations establishing Minimum Internal Control Standards (MICS) to reduce the risk of loss because of customer or employee access to cash and cash equivalents within a casino. The rule contains standards and procedures that govern cash handling, documentation, game integrity, auditing, surveillance, and variances, as well as other areas.

    The Commission recognized from their inception that the MICS would require periodic review and updates to keep pace with technology and has substantively amended them numerous times, most recently in late 2013 (78 FR 63873).

    II. Development of the Rule

    On September 21, 2012, the Commission concluded nearly two years of consultation and drafting with the publication of comprehensive amendments, additions, and updates to Part 543, the minimum internal control standards (MICS) for Class II gaming operations (77 FR 58708). The regulations require tribes to establish controls and implement procedures at least as stringent as those described in this part to maintain the integrity of the gaming operation. In late 2013, the Commission published a final rule, adding kiosk drop, count, fill, and surveillance standards to Part 543 (78 FR 63873).

    Now, the Commission proposes additional revisions, largely technical in nature, that are meant to correct earlier editing oversights and to better clarify the intent of the provisions.

    III. Regulatory Matters Regulatory Flexibility Act

    The rule will not have a significant impact on a substantial number of small entities as defined under the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. Moreover, Indian Tribes are not considered to be small entities for the purposes of the Regulatory Flexibility Act.

    Small Business Regulatory Enforcement Fairness Act

    The rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. The rule does not have an effect on the economy of $100 million or more. The rule will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, local government agencies or geographic regions, nor will the proposed rule have a significant adverse effect on competition, employment, investment, productivity, innovation, or the ability of the enterprises, to compete with foreign based enterprises.

    Unfunded Mandates Reform Act

    The Commission, as an independent regulatory agency, is exempt from compliance with the Unfunded Mandates Reform Act, 2 U.S.C. 1502(1); 2 U.S.C. 658(1).

    Takings

    In accordance with Executive Order 12630, the Commission has determined that the rule does not have significant takings implications. A takings implication assessment is not required.

    Civil Justice Reform

    In accordance with Executive Order 12988, the Commission has determined that the rule does not unduly burden the judicial system and meets the requirements of sections 3(a) and 3(b)(2) of the Order.

    National Environmental Policy Act

    The Commission has determined that the rule does not constitute a major federal action significantly affecting the quality of the human environment and that no detailed statement is required pursuant to the National Environmental Policy Act of 1969, 42 U.S.C. 4321, et seq.

    Paperwork Reduction Act

    The information collection requirements contained in this rule were previously approved by the Office of Management and Budget as required by 44 U.S.C. 3501, et seq., and assigned OMB Control Number 3141-0009. The OMB control number expires on November 30, 2018.

    Tribal Consultation

    The National Indian Gaming Commission is committed to fulfilling its tribal consultation obligations—whether directed by statute or administrative action such as Executive Order (E.O.) 13175 (Consultation and Coordination with Indian Tribal Governments)—by adhering to the consultation framework described in its Consultation Policy published July 15, 2013. The NIGC's consultation policy specifies that it will consult with tribes on Commission Action with Tribal Implications, which is defined as: Any Commission regulation, rulemaking, policy, guidance, legislative proposal, or operational activity that may have a substantial direct effect on an Indian tribe on matters including, but not limited to the ability of an Indian tribe to regulate its Indian gaming; an Indian tribe's formal relationship with the Commission; or the consideration of the Commission's trust responsibilities to Indian tribes.

    The key control language proposed here is the most substantive of all the changes and was the subject of extensive consultation in 2012 (77 FR 58708). The language proposed here has not changed since initially adopted. It was inadvertently written over with the addition of kiosk controls in 2013. The remaining changes are all technical in nature, correcting numbering and adding minor clarifications.

    List of Subjects in 25 CFR Part 543

    Accounting, Administrative practice and procedure, Gambling, Indian—Indian lands, Reporting and recordkeeping requirements.

    For the reasons discussed in the Preamble, the Commission proposes to amend 25 CFR part 543 as follows:

    PART 543—MINIMUM INTERNAL CONTROL STANDARDS FOR CLASS II GAMING 1. The authority for part 543 continues to read as follows: Authority:

    25 U.S.C. 2702(2), 2706(b)(1-4), 2706(b)(10).

    2. Amend § 543.10 by revising paragraph (e) to read as follows:
    § 543.10 What are the minimum internal control standards for card games?

    (e) Standards for reconciliation of card room bank. Two agents—one of whom must be a supervisory agent—must independently count the main card room bank and table inventory at the end of each shift and record the following information:

    (1) Date;

    (2) Shift;

    (3) Table number (if applicable);

    (4) Amount by denomination;

    (5) Amount in total; and

    (6) Signatures of both agents.

    3. Amend § 543.17 by revising paragraphs (d), (i)(4)(i), and (j) to read as follows:
    § 543.17 What are the minimum internal control standards for drop and count?

    (d) Card game drop standards. Controls must be established and procedures implemented to ensure security of the drop process. Such controls must include the following:

    (1) Surveillance must be notified when the drop is to begin so that surveillance may monitor the activities.

    (2) At least two agents must be involved in the removal of the drop box, at least one of whom is independent of the card games department.

    (3) Once the drop is started, it must continue until finished.

    (4) All drop boxes may be removed only at the time previously designated by the gaming operation and reported to the TGRA. If an emergency drop is required, surveillance must be notified before the drop is conducted and the TGRA must be informed within a timeframe approved by the TGRA.

    (5) At the end of each shift:

    (i) All locked card game drop boxes must be removed from the tables by an agent independent of the card game shift being dropped;

    (ii) For any tables opened during the shift, a separate drop box must be placed on each table, or a gaming operation may utilize a single drop box with separate openings and compartments for each shift; and

    (iii) Card game drop boxes must be transported directly to the count room or other equivalently secure area by a minimum of two agents, at least one of whom is independent of the card game shift being dropped, until the count takes place.

    (6) All tables that were not open during a shift and therefore not part of the drop must be documented.

    (7) All card game drop boxes must be posted with a number corresponding to a permanent number on the gaming table and marked to indicate game, table number, and shift, if applicable.

    (i) * * *

    (4) * * *

    (i) The count of each box must be recorded in ink or other permanent form of recordation.

    (j) Controlled keys. Controls must be established and procedures implemented to safeguard the use, access, and security of keys in accordance with the following:

    (1) Each of the following requires a separate and unique key lock or alternative secure access method:

    (i) Drop cabinet;

    (ii) Drop box release;

    (iii) Drop box content; and

    (iv) Storage racks and carts used for the drop.

    (2) Access to and return of keys or equivalents must be documented with the date, time, and signature or other unique identifier of the agent accessing or returning the key(s).

    (i) For Tier A and B operations, at least two (2) drop team agents are required to be present to access and return keys. For Tier C operations, at least three (3) drop team agents are required to be present to access and return keys.

    (ii) For Tier A and B operations, at least two (2) count team agents are required to be present at the time count room and other count keys are issued for the count. For Tier C operations, at least three (two for card game drop box keys in operations with three tables or fewer) count team agents are required to be present at the time count room and other count keys are issued for the count.

    (3) Documentation of all keys, including duplicates, must be maintained, including:

    (i) Unique identifier for each individual key;

    (ii) Key storage location;

    (iii) Number of keys made, duplicated, and destroyed; and

    (iv) Authorization and access.

    (4) Custody of all keys involved in the drop and count must be maintained by a department independent of the count and the drop agents as well as those departments being dropped and counted.

    (5) Other than the count team, no agent may have access to the drop box content keys while in possession of storage rack keys and/or release keys.

    (6) Other than the count team, only agents authorized to remove drop boxes are allowed access to drop box release keys.

    (7) Any use of keys at times other than the scheduled drop and count must be properly authorized and documented.

    (8) Emergency manual keys, such as an override key, for computerized, electronic, and alternative key systems must be maintained in accordance with the following:

    (i) Access to the emergency manual key(s) used to access the box containing the player interface drop and count keys requires the physical involvement of at least three agents from separate departments, including management. The date, time, and reason for access, must be documented with the signatures of all participating persons signing out/in the emergency manual key(s);

    (ii) The custody of the emergency manual keys requires the presence of two agents from separate departments from the time of their issuance until the time of their return; and

    (iii) Routine physical maintenance that requires access to the emergency manual key(s), and does not involve accessing the player interface drop and count keys, only requires the presence of two agents from separate departments. The date, time, and reason for access must be documented with the signatures of all participating agents signing out/in the emergency manual key(s).

    (9) Controls must be established and procedures implemented to safeguard the use, access, and security of keys for kiosks.

    4. Amend § 543.18 by revising paragraph (d)(6)(v) to read as follows:
    § 543.18 What are the minimum internal control standards for the cage, vault, kiosk, cash and cash equivalents?

    (d) * *

    (6) * * *

    (v) Dollar amount per financial instrument redeemed;

    5. Amend 543.23 by revising paragraph (c)(1)(viii) to read as follows:
    § 543.23 What are the minimum internal control standards for audit and accounting?

    (c) * * *

    (1) * * *

    (viii) Drop and count standards, including supervision, count room access, count team, card game drop standards, player interface and financial instrument drop standards, card game count standards, player interface financial instrument count standards, collecting currency cassettes and financial instrument storage components from kiosks, kiosk count standards, and controlled keys;

    6. Amend 543.24 by revising paragraphs (a) and (d)(5) to read as follows:
    § 543.24 What are the minimum internal control standards for auditing revenue?

    (a) Supervision. Supervision must be provided as needed for revenue audit by an agent(s) with authority equal to or greater than those being supervised.

    (d) * * *

    (5) Complimentary services or items. At least monthly, review the reports required in § 543.13(c). These reports must be made available to those entities authorized by the TGRA or by tribal law or ordinance.

    Dated: May 1, 2018, Washington, DC. Dated: May 7, 2018. Jonodev O. Chaudhuri, Chairman. Dated: May 1, 2018. Kathryn Isom-Clause, Vice Chair. Dated: May 4, 2018. E. Sequoyah Simermeyer, Associate Commissioner.
    [FR Doc. 2018-10365 Filed 6-7-18; 8:45 am] BILLING CODE 7565-01-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-R6-ES-2018-0008; FXES11130900000-189-FF09E42000] RIN 1018-BC02 Endangered and Threatened Wildlife and Plants; Removing Oenothera coloradensis (Colorado Butterfly Plant) From the Federal List of Endangered and Threatened Plants AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Proposed rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), propose to remove the Colorado butterfly plant (Oenothera coloradensis, currently listed as Gaura neomexicana ssp. coloradensis) from the Federal List of Endangered and Threatened Plants (List) due to recovery. This determination is based on a thorough review of the best available scientific and commercial data, which indicate that the threats to the Colorado butterfly plant have been eliminated or reduced to the point that it has recovered, and that this plant is no longer likely to become endangered in the foreseeable future and, therefore, no longer meets the definition of a threatened species under the Endangered Species Act of 1973, as amended (Act). This proposed rule, if made final, would also remove the currently designated critical habitat for the Colorado butterfly plant. We are seeking information, data, and comments from the public on the proposed rule to remove the Colorado butterfly plant from the List (i.e., “delist” the species). In addition, we are also seeking input on considerations for post-delisting monitoring of the Colorado butterfly plant.

    DATES:

    We will accept comments received or postmarked on or before August 7, 2018. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below), must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by July 23, 2018.

    ADDRESSES:

    Written comments: You may submit written comments by one of the following methods:

    Electronically: Go to the Federal eRulemaking Portal: http://www.regulations.gov. In the Search box, enter Docket No. FWS-R6-ES-2018-0008, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rules link to locate this document. You may submit a comment by clicking on the blue “Comment Now!” box. If your comments will fit in the provided comment box, please use this feature of http://www.regulations.gov, as it is most compatible with our comment review procedures. If you attach your comments as a separate document, our preferred file format is Microsoft Word. If you attach multiple comments (such as form letters), our preferred formation is a spreadsheet in Microsoft Excel.

    By hard copy: Submit by U.S. mail or hand-delivery to: Public Comments Processing, Attn: FWS-R6-ES-2018-0008; U.S. Fish and Wildlife Service; MS: BPHC; 5275 Leesburg Pike, Falls Church, VA 22041-3803.

    We request that you submit written comments only by the methods described above. We will post all comments on http://www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Comments, below, for more details).

    Document availability: This proposed rule and supporting documents, including a copy of the draft post-delisting monitoring plan referenced in this document, are available on http://www.regulations.gov at Docket No. FWS-R6-ES-2018-0008. In addition, the supporting file for this proposed rule will be available for public inspection, by appointment, during normal business hours at the Wyoming Ecological Services Field Office; 5353 Yellowstone Road, Suite 308A, Cheyenne, WY 82009; telephone: 307-772-2374. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.

    FOR FURTHER INFORMATION CONTACT:

    Tyler A. Abbott, Field Supervisor, telephone: 307-772-2374. Direct all questions or requests for additional information to: COLORADO BUTTERFLY PLANT QUESTIONS, U.S. Fish and Wildlife Service; Wyoming Ecological Services Field Office; 5353 Yellowstone Road, Suite 308A, Cheyenne, WY 82009. Individuals who are hearing-impaired or speech-impaired may call the Federal Relay Service at 800-877-8339.

    SUPPLEMENTARY INFORMATION: Information Requested Public Comments

    We want any final action resulting from this proposal to be as accurate as possible. Therefore, we invite tribal and governmental agencies, the scientific community, industry, and other interested parties to submit comments or recommendations concerning any aspect of this proposed rule. Comments should be as specific as possible. We particularly seek comments and new information concerning:

    (1) Our analyses of the Colorado butterfly plant's abundance, distribution, and population trends;

    (2) Potential impacts from disturbances, such as grazing and residential, urban, and energy development;

    (3) Conservation activities within the plant's range;

    (4) Potential impacts from the effects of climate change; and

    (5) Input on considerations for post-delisting monitoring of the Colorado butterfly plant.

    Please include sufficient supporting information with your submission (such as scientific journal articles or other publications) to allow us to verify any scientific or commercial information you include. Please note that submissions merely stating support for or opposition to the action under consideration without providing supporting information, although noted, may not meet the standard of information required by section 4(b)(1)(A) of the Act (16 U.S.C. 1531 et seq.), which directs that determinations as to whether any species is an endangered or threatened species must be made “solely on the basis of the best scientific and commercial data available.”

    To issue a final rule to implement this proposed action, we will take into consideration all comments and any additional information we receive. Such communications may lead to a final rule that differs from this proposal. All comments, including commenters' names and addresses, if provided to us, will become part of the supporting record.

    You may submit your comments and materials concerning the proposed rule by one of the methods listed in ADDRESSES. Comments must be submitted to http://www.regulations.gov before 11:59 p.m. (Eastern Time) on the date specified in DATES. We will not consider hand-delivered comments that we do not receive, or mailed comments that are not postmarked, by the date specified in DATES.

    We will post your entire comment--including your personal identifying information--on http://www.regulations.gov. If you provide personal identifying information in your comment, you may request at the top of your document that we withhold this information from public review. However, we cannot guarantee that we will be able to do so.

    Comments and materials we receive, as well as supporting documentation we used in preparing this proposed rule, will be available for public inspection on http://www.regulations.gov, or by appointment, during normal business hours at the U.S. Fish and Wildlife Service, Wyoming Ecological Services Field Office (see Document availability under ADDRESSES, above).

    Public Hearing

    Section 4(b)(5) of the Act provides for one or more public hearings on this proposal, if requested. Requests must be received within 45 days after the date of publication of this proposed rule in the Federal Register (see DATES, above). Such requests must be sent to the address shown in FOR FURTHER INFORMATION CONTACT. We will schedule a public hearing on this proposal, if any is requested, and announce the date, time, and place of the hearing, as well as how to obtain reasonable accommodations, in the Federal Register and local newspapers at least 15 days before the hearing.

    Peer Review

    In accordance with our policy, “Notice of Interagency Cooperative Policy for Peer Review in Endangered Species Act Activities,” published on July 1, 1994 (59 FR 34270), we will seek the expert opinion of at least three appropriate and independent specialists regarding scientific data and interpretations contained in this proposed rule. We will send copies of this proposed rule to the peer reviewers immediately following its publication in the Federal Register. We will ensure that the opinions of peer reviewers are objective and unbiased by following the guidelines set forth in the Director's Memo that updates and clarifies Service policy on peer review (USFWS 2016a). The purpose of such review is to ensure that our decisions are based on scientifically sound data, assumptions, and analysis. Accordingly, our final decision may differ from that described in this proposal.

    Previous Federal Actions

    On October 18, 2000, we published a rule in the Federal Register (65 FR 62302) listing the Colorado butterfly plant, with the scientific name Gaura neomexicana ssp. coloradensis, as a federally threatened species. On January 11, 2005, we designated critical habitat for the Colorado butterfly plant (70 FR 1940).

    On May 25, 2010, we developed a recovery outline that laid out a preliminary course of action for the recovery of the Colorado butterfly plant. This recovery outline identified residential and urban development as the most immediate and severe threat to the species, with mowing and haying as an additional potential threat. A recovery plan has not been developed for this species, although a draft was assembled prior to the species' listing by the Service, the Nature Conservancy, and the Wyoming Natural Diversity Database in 1987 (USFWS 1987, entire).

    On December 17, 2012, we completed a 5-year review of the Colorado butterfly plant. The review was revised in June 2016, to remove private information protected under wildlife extension agreements (WEAs) from the document. The 5-year review concluded that the species should remain listed as threatened but also stated that threats currently affecting the species were occurring at low levels overall for Colorado butterfly plant populations and recommended further actions and analyses prior to the next 5-year review to assist in determining whether the species could be delisted.

    Species Description and Life History

    Detailed information regarding the Colorado butterfly plant's biology and life history can be found in the Species Biological Report for Colorado butterfly plant (USFWS 2017a, pp. 6-7), which was reviewed by recovery partners. The Species Biological Report is an in-depth review of the species' biology and threats, an evaluation of its biological status, and an assessment of the resources and conditions needed to maintain long-term viability. The Species Biological Report is an interim approach taken as we transition to using a Species Status Assessment (SSA) framework as the standard format that the Service uses to analyze species as we make decisions under the Act, and includes similar analyses of the species' viability in terms of its resiliency, redundancy, and representation (USFWS 2016b, entire). We summarize relevant information below.

    The Colorado butterfly plant is a short-lived perennial herb that is monocarpic or semelparous, meaning that it flowers once, sets seed, and then dies. Flowering plants may, on rare occasions, flower a second year or become vegetative the year after flowering (Floyd 1995, pp. 10-15, 32). Pollinators for related species of Gaura and Colyphus (Onagraceae, tribe Onagreae) consist of noctuid moths (Noctuidae) and halictid bees (Lasioglossum; Clinebell et al. 2004, p. 378); both moths and bees have been identified visiting Colorado butterfly plant flowers during annual surveys (USFWS 2016c, entire). Additionally, one study found that the Colorado butterfly plant does not exhibit a bimodal (day and night) pollination system that is seen in other Gaura species, since the majority of pollination occurs at night by noctuid moths (Krakos et al. 2013, entire).

    The Colorado butterfly plant is self-compatible; plants produce flowers capable of forming viable seed with pollen from the same plant (Floyd 1995, p. 4). During dispersal, many seeds fall to the ground around parent plants (Floyd and Ranker 1998, p. 854). Because the seed floats, it also may be dispersed downstream. Livestock and native ungulates could provide an important dispersal mechanism as well, through ingestion of the seeds (USFWS 2012, p. 27). Populations of this species show evidence of a seedbank, an adaptation that enables the species to take advantage of favorable growing seasons, particularly in flood-prone areas (Holzel and Otte 2004, p. 279).

    The number of individuals in a population of Colorado butterfly plants appears to be influenced by rates of seedling establishment and survival of vegetative rosettes to reproductive maturity. These factors may be influenced by summer precipitation (Floyd and Ranker 1998, p. 858; Fertig 2000, p. 13). The combination of cool and moist spring months is important in germination, and germination levels influence the outcome of flowering plant population census in subsequent years. Additionally, summer conditions, and temperature in particular, appear to be an important mortality factor rather than influencing germination (Laursen and Heidel 2003, p. 6). Differences in soil moisture and vegetation cover may also influence recruitment success (Munk et al. 2002, p. 123).

    The vegetative rosettes within a population may provide an important and particularly resilient stage of the life history of this species. Individual vegetative rosettes appear to be capable of surviving adverse stochastic events such as flooding (Mountain West Environmental Services 1985, pp. 2-3) and adverse climatic years when new seedling establishment is low. Therefore, episodic establishment of large seedling recruitment classes may be important for the long-term growth, replenishment, and survival of populations (Floyd and Ranker 1998, entire).

    Taxonomy

    The Colorado butterfly plant, a member of the evening primrose family (Onagraceae), was listed as Gaura neomexicana ssp. coloradensis in 2000 (65 FR 62302; October 18, 2000). Molecular studies by Hoggard et al. (2004, p. 143) and Levin et al. (2004, pp. 151-152) and subsequent revisions of the classification of the family Onagraceae (Wagner et al. 2007, p. 211) transferred the taxon previously known as Gaura neomexicana Wooton to Oenothera as Oenothera coloradensis ssp. neomexicana (Wooton) W.L. Wagner & Hoch. More recent analyses showed that there are no infraspecific entities (any taxa below the rank of species) within the taxon; the listed entity is now recognized as Oenothera coloradensis (Wagner et al. 2013, p. 67). A more detailed assessment of the taxonomy of the Colorado butterfly plant is available in the species Biological Report (USFWS 2017a, pp.4-6). The taxonomic and nomenclatural changes do not alter the description, range, or threat status of the listed entity.

    Throughout this proposed rule, we will use the current scientific name and rank, Oenothera coloradensis, for the Colorado butterfly plant. We acknowledge, however, that the listing of the Colorado butterfly plant in the Code of Federal Regulations (CFR) will continue to be identified as Gaura neomexicana ssp. coloradensis until such time as we publish a correction or a final delisting rule in the Federal Register.

    Species Abundance, Habitat, and Distribution

    The Colorado butterfly plant is a regional endemic riparian species known from 34 12-digit hydrologic unit code watersheds (watersheds) (28 extant and 6 extirpated), found from Boulder, Douglas, Larimer, and Weld Counties in Colorado, Laramie and Platte Counties in Wyoming, and western Kimball County in Nebraska (see figure below). Prior to 1984, few extensive searches for the plant had been conducted, and data taken from herbarium specimens were the primary basis of understanding the extent of the species' historical distribution. At that time, the plant was known from a few historical and presumably extirpated locations in southeastern Wyoming and several locations in northern Colorado, as well as from three extant occurrences in Laramie County in Wyoming and Weld County in Colorado. Prior to listing, extensive surveys were conducted in 1998, to document the status of the known occurrences, and all still contained Colorado butterfly plants (Fertig 1998a, entire).

    BILLING CODE 4333-15-P EP08JN18.007 BILLING CODE 4333-15-C Habitat Description

    The Colorado butterfly plant occurs on subirrigated (water reaches plant root zone from below the soil surface), alluvial soils derived from conglomerates, sandstones, and tuffaceous mudstones and siltstones of the Tertiary White River, Arikaree, and Oglalla Formations (Love and Christiansen 1985 in Fertig 2000, p. 6) on level or slightly sloping floodplains and drainage bottoms at elevations of 1,524-1,951 meters (m) (5,000-6,400 feet (ft)). Populations are typically found in habitats created and maintained by streams active within their floodplains, with vegetation that is relatively open and not overly dense or overgrown (65 FR 62302; October 18, 2000). Populations occur in a range of ecological settings, including streamside, outside of the stream channel but within the floodplain, and spring-fed wet meadows. The plant is often found in but not restricted to early- to mid-succession riparian habitat. Historically, flooding was probably the main cause of disturbances in the plant's habitat, although wildfire and grazing by native herbivores also may have been important. Although flowering and fruiting stems may exhibit increased dieback because of the abovementioned events, vegetative rosettes appear to be little affected (Mountain West Environmental Services 1985, pp. 2-3).

    It commonly occurs in communities dominated by nonnative and disturbance-tolerant native species including: Agrostis stolonifera (creeping bentgrass), Poa pratensis (Kentucky bluegrass), Glycyrrhiza lepidota (American licorice), Cirsium flodmanii (Flodman's thistle), Grindelia squarrosa (curlytop gumweed), and Equisetum laevigatum (smooth scouring rush). Its habitat on Warren Air Force Base (AFB) includes wet meadow zones dominated by Panicum virgatum (switchgrass), Muhlenbergia richadrsonis (mat muhly), Schizachyrium scoparium (little bluestem), Spartina pectinata (prairie cordgrass), and other native grasses. All of these habitat types are usually intermediate in moisture ranging from wet, streamside communities dominated by sedges, rushes, and cattails to dry, upland prairie habitats (Fertig 1998a, pp. 2-4).

    Typically, Colorado butterfly plant habitat is open, without dense or woody vegetation. The establishment and survival of seedlings appears to be enhanced at sites where tall and dense vegetation has been removed by some form of disturbance. In the absence of occasional disturbance, the plant's habitat can become choked by dense growth of willows, grasses, and exotic plants (Fertig 1996, p. 12). This prevents new seedlings from becoming established and replacing plants that have died (Fertig 1996, pp. 12-14).

    For the purposes of this analysis, we consider all occurrences of the Colorado butterfly plant within the same watershed to be one population. There are no data (e.g., genetic relatedness) available to more precisely define populations, and although distance of 1 km (0.6 mi) or greater may exceed the distance traveled by pollinators, it is possible that seeds may disperse over much greater distances (Heidel 2016, pers. comm.). Therefore, because these gaps are probably too small to prevent the dispersal of pollinators and/or seeds between subpopulations, colonies along the same stream reach should be considered part of the same population. This varies from the characterization of populations in both the listing decision (65 FR 62302; October 18, 2000) and critical habitat designation (70 FR 1940; January 11, 2005), where populations were defined by landowner and/or proximity within a drainage. We find organizing populations by watershed more accurately describes components of population ecology (genetic exchange within a geographic area), and stressors affecting the species tend to vary by watershed. Because of this new organization of population structure, some populations considered distinct and separate during the 2000 listing decision are now combined and vice versa, although many populations are the same in this proposed rule as they were presented in the 2000 listing rule.

    Population Abundance and Trends

    The Colorado butterfly plant occurred historically and persists in various ecological settings described above under Habitat Description including wet meadows, stream channels, stream floodplains, and spring-fed wetlands. A detailed summary of the status of the species between 1979 and 2016 is provided in the species' Biological Report (USFWS 2017a, pp. 13-22).

    In 1998 and 1999, in preparation for listing the species, the rangewide census of flowering individuals was estimated at 47,300 to 50,300, with the majority of these occurring in Wyoming (Fertig 1998a, p. 5; Fertig 2000, pp. 8-13). However, a population was discovered in Colorado in 2005 that had a peak census of 26,000 plants in 2011, bringing the total rangewide population to approximately 73,300 to 76,300 plants over time. Another population was discovered upstream of known populations on Horse Creek in Laramie County, Wyoming, in 2016 with only 17 individuals, although the area had just been hayed and was likely an incomplete representation of the total number of plants in this population (USFWS 2016c, entire).

    Average numbers may be a more appropriate way to represent populations than the minimum and maximum values, although all provide insight into the population's resiliency, or the ability to withstand stochastic events. The number of reproductive individuals in a population is somewhat driven by environmental factors and varies considerably, so understanding the variability in the number of individuals present in any given year is meaningful in assessing population resiliency. Population numbers have fluctuated five-fold over the course of the longest-running monitoring study (28 years) conducted on Warren AFB. There, the population peaked at over 11,000 flowering plants in 1999 and 2011, making it one of the largest populations rangewide, and then dropped to 1,916 plants in 2008 (Heidel et al. 2016, p. 1). The Warren AFB population numbers provide some indication of how population numbers can vary in landscapes not managed for agricultural purposes, and it is likely that numbers vary even more dramatically on managed landscapes. If this fluctuation was applied to the rangewide population estimates above, then total rangewide numbers for average years might be less than 50 percent of rangewide estimates in favorable years (Handwerk 2016, pers. comm.; Heidel 2016, pers. comm.).

    The final listing rule (65 FR 62302; October 18, 2000) defined large populations as those containing more than 3,000 reproductive individuals; moderate populations as those containing 500 to 2,500 reproductive individuals; and small populations having fewer than 500 reproductive individuals. At the time, the species was represented by 10 stable or increasing populations, 4 extant but declining populations, 3 likely small populations, and 9 likely extirpated populations. However, after monitoring roughly half the known populations annually for the past 13 years, we understand that population size fluctuates significantly from year to year; therefore, population size in any given year is not a good indicator of resiliency. Therefore, our estimates of resiliency are now based on averages of population censuses over multiple years and trends of populations in response to management and stressors. Based on this, we now have 15 highly resilient populations, 2 moderately resilient populations, 6 low resiliency populations, 2 populations with unknown resiliency, 3 introduced populations, and records of 6 extirpated populations.

    Colorado

    In 2005, when critical habitat was designated for the Colorado butterfly plant, only a single population was known from Colorado. That population was not designated as critical habitat because it was protected under a WEA. Currently, the species is known to occur in Adams, Boulder, Douglas, Jefferson, Larimer, and Weld Counties in northern Colorado, spanning 12 watersheds (see figure above). Six historical occurrences have not been documented since 1984, and are presumed extirpated. Three of the eight records in Colorado are introduced and do not represent indigenous populations, and are either seeded into the wild or into a garden. These introduced sites were not designed specifically for species' conservation, and therefore are not the focus of this species status evaluation in Colorado.

    The majority of Colorado butterfly plants in Colorado are located on lands managed by the City of Fort Collins Natural Areas Department (Ft. Collins or CFCNAD) in Weld and Larimer Counties. The plants are distributed among three distinct habitats on either side of Interstate 25 and have numbered between 3 to more than 26,000 reproductive individuals. These areas are being managed to maintain suitable habitat for the species (CFCNAD 2008, p. 1; CFCNAD 2010, p. 1; CFCNAD 2011a, entire; CFCNAD 2011b, entire; CFCNAD 2014, entire). Annual census information on flowering individuals at the Meadow Springs Ranch in Weld County indicates that the large fluctuations in population numbers are actually around a stable mean (434 flowering plant average, median of 205, range of 45−1,432 flowering plants). Other populations in Colorado have not been routinely monitored; consequently, no trend information is available (USFWS 2016c, entire). In summary, the species is represented in Colorado by two highly resilient, three low resiliency, and three introduced populations.

    Nebraska

    Populations of the Colorado butterfly plant in Nebraska are considered at the edge of the species' range and exist at higher elevations than we knew at the time we listed the species. Surveys conducted in 1985, along Lodgepole Creek near the Nebraska/Wyoming border in Kimball County, found just over 2,000 flowering plants (Rabbe 2016, pers. comm). A survey in 1992 found two populations of Colorado butterfly plant: One population (547 plants) along Lodgepole Creek and one population (43 plants) at Oliver Reservoir State Recreation Area (SRA) in the southwest panhandle of Nebraska in Kimball County (Fertig 2000a, p. 12). Survey results from 2004 suggested the species was extirpated from the State. In 2005, no critical habitat was designated in Nebraska. However, a 2008 survey along historically occupied habitat and the Oliver Reservoir SRA, located 12 plants in four locations on private lands along Lodgepole Creek: 5 plants in areas where the species had been located before and 7 plants in areas newly watered by a landowner piping water into Lodgepole Creek from a cattle stock tank. No plants were found at the Oliver Reservoir SRA (Wooten 2008, p. 4). These areas have not been surveyed since 2008. Outside of these occurrences, no other populations of the species are known to occur in Nebraska (Rabbe 2016, pers. comm.).

    Wyoming

    Extant populations of Colorado butterfly plant in Wyoming occur throughout most of Laramie County and extend northward into Platte County (USFWS 2012, pp. 11-21), spanning 17 watersheds (see figure above). Over 90 percent of known occurrences in Wyoming are on private lands, with parts of two occurrences on State school trust lands, one occurrence on State lands, and one occurrence on Federal lands. Populations in Wyoming that are found partly or fully on State school trust lands are managed for agricultural uses. The population on Federal lands occurs on Warren AFB located adjacent to Cheyenne, provides information on species trends as it may have occurred prior to human settlement of the area (with wild grazers and natural streamflow), and represents the level of hydrological complexity of three different sizes of streams. The highest census numbers at Warren AFB totaled over 11,000 plants in 1998 and 2011, and the mean census numbers for all other years have remained at or above 50 percent of that peak, based on 1988-2016 numbers (Heidel et al. 2016, pp. 11-14).

    In terms of genetic representation, a study conducted on Colorado butterfly plants occupying three drainages at Warren AFB found that one of the drainages was genetically unique and more diverse than the other two drainages (Floyd 1995, pp. 73-81). Another study at Warren AFB found that plants in one of the drainages contained unique alleles, sharing genetic composition with only a small number of individuals from the second and no individuals of the third drainage, indicating fine-scale genetic variability within that portion of the species' range (Tuthill and Brown 2003, p. 251). Assuming similar genetic structure across the species' range, this result suggests a high degree of genetic representation at the species' level. This genetic information, however, does not provide sufficient strength in terms of sample size in discerning populations from each other.

    The Service has agreements with 11 private landowners within six watersheds in Laramie County, Wyoming, and one watershed in Weld County, Colorado (described in detail under Conservation Efforts, below), since 2004 to conduct annual monitoring of the Colorado butterfly plant. We also provide management recommendations to help landowners maintain habitat for the species. Many of the landowners graze cattle or horses where the species occurs; others use the areas for haying operations. Populations at these locations may fluctuate by as much as 100-fold annually (USFWS 2012, pp. 11-21; USFWS 2016c, entire). For example, one population was heavily grazed for over a decade, leading to counts of fewer than 30 reproductive individuals for several years, but when the grazing pressure was relieved, the population rebounded within 1 year to more than 600 reproductive individuals (USFWS 2016c, entire). This may indicate that either a robust seedbank was present or vegetative rosettes avoided the intense grazing pressure and bolted after grazing diminished. The total number of plants counted in Wyoming under these agreements has varied from approximately 1,000 to over 21,000 reproductive individuals since 2004. Combining annual census numbers from all monitored populations in Wyoming, we have observed small to extreme population fluctuations (USFWS 2012, pp. 11-21; USFWS 2016c, entire). Wyoming is represented by 13 highly resilient populations, 2 moderately resilient populations, and 2 populations with unknown resiliency due to lack of information.

    The listing decision (65 FR 62302, October 18, 2000, see p. 62308) stated that “[i]n order for a population to sustain itself, there must be enough reproducing individuals and sufficient habitat to ensure survival of the population. It is not known if the scattered populations of [the Colorado butterfly plant] contain sufficient individuals and diversity to ensure their continued existence over the long term.” Today, we understand that, regarding ecological representation, the species is characterized by having at least one population within each ecological setting and within all but the southern-most portions of the historical range. Furthermore, most extant populations have high resiliency (with more than 100 reproductive individuals in most years). Additionally, most populations contain individuals in more than one ecological setting, such as individuals along the creek bank and individuals outside of the creek bank and in the floodplain of the creek. While surveyors typically census the number of flowering individuals during surveys due to relative ease in counting, the number of flowering plants in a survey location in any given year does not represent the resiliency of the population. Resiliency is determined through a combination of number of flowering individuals, trends in this number, and response of the population to stochastic events.

    Conservation Efforts

    The Service has worked with partners to protect existing populations. Much of this work has been accomplished through voluntary cooperative agreements. For example, beginning in 2004, the Service has entered into 11 WEAs with private landowners, representing six watersheds, to manage riparian habitat for Colorado butterfly plant (70 FR 1940; January 11, 2005). These 15-year WEAs cover a total of 1,038 hectares (ha) (2,564 acres (ac)) of the species' habitat along 59 km (37 mi) of stream. These agreements represent approximately one-third of the known populations of Colorado butterfly plant in Wyoming and Colorado, including some of the largest populations on private lands. All of the landowners have agreed to the following:

    (1) Allow Service representatives or their designee access to the property for monitoring or fence installation;

    (2) Coordinate hay cutting activities in areas managed primarily for hay production to consider the Colorado butterfly plant's seed production needs;

    (3) Prevent application of herbicides closer than 30.5 m (100 ft) from known subpopulations of the Colorado butterfly plant; and

    (4) Manage livestock grazing activities in conjunction with conservation needs of the Colorado butterfly plant.

    One of the landowners signed a 10-year agreement instead of a 15-year agreement that was renewed for an additional 10 years in 2015. The remaining agreements expire in late 2019. We anticipate that participating landowners will continue to support the work being performed under the WEAs and will seek renewal of these agreements if the species remains listed under the Act. Based on the ongoing relationship that the Service has with these participating landowners, we anticipate that they would support the inclusions of their properties under the post-delisting monitoring program should the Colorado butterfly plant be delisted.

    One of the benefits of the WEAs for both the Service and private landowners is that we can review the population numbers annually and together develop management recommendations to improve growing conditions for the species. Populations occurring within designated critical habitat (see figure, above) have not been surveyed since 2004, and their trends, threats, and viabilities are uncertain. However, no projects potentially impacting critical habitat for this species have occurred. Additionally, we reviewed aerial imagery of the critical habitat units and found only two minimal changes between 2004 and 2015 (reflecting habitat conditions at the time of designation and the most recent aerial imagery available) throughout all critical habitat units; these changes affect only a few acres of designated critical habitat (USFWS 2017b, entire). Consequently, we determine that activities occurring on critical habitat are likely the same as they were at the time of designation. Furthermore, because many of the private lands included in the critical habitat designation are adjacent to lands under WEAs, we determine that the populations occurring within designated critical habitat are likely stable, and fluctuating similarly to populations on lands that we monitor under WEAs. We have no reason to believe that populations occurring on designated critical habitat are responding to stressors differently than those populations we monitor. Therefore, populations throughout the species' range on private, local, and Federal lands either have been observed to be, or are highly likely to be, fluctuating around a stable population size.

    The Service and the U.S. Air Force signed a memorandum of agreement (MOA) on January 18, 1982 (updated in 1999 and 2004) to facilitate the preservation, conservation, and management of the Colorado butterfly plant (USFWS 1982, entire; USFWS 1999, entire; USFWS 2004, entire). In 2004, Warren AFB developed a conservation and management plan for the species (Warren AFB 2004, entire) that was added to their integrated natural resources management plan in 2014 (Warren AFB 2014, entire). Through these plans, the Service partners with the U.S. Air Force and Wyoming Natural Diversity Database to monitor and protect the population of the Colorado butterfly plant on the Warren AFB. This includes annual monitoring; nonnative, invasive species control and eradication; and maintenance of appropriate floodplain characteristics for the species. Based on 29 years of monitoring and management, the population of the Colorado butterfly plant on the Warren AFB is doing well, with some areas declining while others are increasing (Heidel et al. 2016, entire).

    Three populations in Larimer and Weld Counties, Colorado, occur on properties owned by the City of Fort Collins, and two are among the largest across the species' range. The City of Fort Collins developed a 10-year master plan for the Natural Areas Department in 2014, which provides a framework for the conservation and preservation of natural areas, including the populations of the Colorado butterfly plant. The master plan prescribes conservation actions that allow for the persistence of the Colorado butterfly plant on the landscape (CFCNAD 2016a, entire), including prescribed burns to eliminate competition, managed grazing, and improved security of water flow to the species' habitat.

    In summary, these agreements and plans have provided useful data, facilitated good management of nine of the largest and most resilient populations, and resulted in stable or increasing population trends. Because of the information we obtained through these agreements and plans, we are able to understand the resilience of individual plants and populations, the representation of the species within its ecological settings, and the redundancy of the plant population's numbers and potential for connectivity.

    Summary of Factors Affecting the Species

    Section 4 of the Act and its implementing regulations (50 CFR part 424) set forth the procedures for listing species, reclassifying species, or removing species from listed status. “Species” is defined by the Act as including any species or subspecies of fish or wildlife or plants, and any distinct vertebrate population segment of fish or wildlife that interbreeds when mature (16 U.S.C. 1532(16)). A species may be determined to be an endangered or threatened species due to one or more of the five factors described in section 4(a)(1) of the Act: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) overutilization for commercial, recreational, scientific, or educational purposes; (C) disease or predation; (D) the inadequacy of existing regulatory mechanisms; or (E) other natural or manmade factors affecting its continued existence.

    Determining whether the status of a species has improved to the point that it can be downlisted (i.e., reclassified from endangered to threatened) or delisted requires consideration of whether the species meets the definitions of either an endangered species or threatened species contained in the Act. For species that are already listed as endangered species or threatened species, this analysis of threats is an evaluation of both the threats currently facing the species and the threats that are reasonably likely to affect the species in the foreseeable future following the delisting or downlisting and the removal or reduction of the Act's protections.

    A species is an “endangered species” for purposes of the Act if it is in danger of extinction throughout all or a significant portion of its range and is a “threatened species” if it is likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range. The word “range” in the significant portion of its range phrase refers to the range in which the species currently exists, and the word “significant” refers to the value of that portion of the range being considered to the conservation of the species. We consider “foreseeable future” as that period of time within which a reliable prediction can be reasonably relied upon in making a determination about the future conservation status of a species, as described in the Solicitor's opinion dated January 16, 2009. We consider 15 to 20 years to be a reasonable period of time within which reliable predictions can be made for the Colorado butterfly plant. This time period includes at least five generations of the species, coincides with the duration of one renewal of the WEAs expiring in 2019, and aligns with the timeframes for predictions regarding municipal development and growth in the area. For the purposes of this analysis, we first evaluate the status of the species throughout all of its range, then consider whether the species is in danger of extinction or likely to become so in any significant portion of its range.

    In considering what factors might constitute threats, we must look beyond the exposure of the species to a particular factor to evaluate whether the species may respond to the factor in a way that causes actual impacts to the species. If there is exposure to a factor, but no response, or only a positive response, that factor is not a threat. If there is exposure to a factor and the species responds negatively, the factor may be a threat, and we attempt to determine how significant a threat it is. If the threat is significant it may drive, or contribute to, the risk of extinction of the species such that the species warrants listing as an endangered species or a threatened species as those terms are defined by the Act. This does not necessarily require empirical proof of a threat. The combination of exposure and some corroborating evidence of how the species is likely impacted could suffice. The mere identification of factors that could impact a species negatively is not sufficient to compel a finding that listing is appropriate; we require evidence that these factors individually or cumulatively are operative threats that act on the species to the point that the species meets the definition of an endangered species or threatened species under the Act.

    The Colorado butterfly plant is federally listed as threatened. Below, we present a summary of threats affecting the species and its habitats in the past, present, and predicted into the future. A detailed evaluation of factors affecting the species at the time of listing can be found in the listing determination (65 FR 62302; October 18, 2000) and designation of critical habitat (70 FR 1940; January 11, 2005). An evaluation of factors affecting the species after 2005 can be found in the 2012 5-year review (USFWS 2012, entire). The primary threats to the species identified at the time of listing include overgrazing by cattle or horses, haying or mowing at inappropriate times of the year, habitat degradation resulting from vegetation succession or urbanization of the habitat, habitat conversion to cropland or subdivision, water development, herbicide spraying, and competition with exotic plants (Marriott 1987, pp. 26-27; Fertig 1994, pp. 39-41, Fertig 2000a, pp. 16-17). Since the time of listing, oil and gas development and the effects of climate change have become potential threats to this species and are analyzed under Factor A and Factor E, respectively, below.

    A. The Present or Threatened Destruction, Modification, or Curtailment of Its Habitat or Range Residential, Urban, and Energy Development

    At the time of listing (65 FR 62302; October 18, 2000), residential and urban development around the cities of Cheyenne and Fort Collins were identified as past causes of habitat conversion and habitat loss to the Colorado butterfly plant; these types of development were not a concern in Nebraska at the time of listing nor are they now. Although difficult to quantify because land conversion was not tracked during the settlement of the West, likely a few hundred acres of formerly suitable habitat were converted to residential and urban sites, contributing to loss of habitat (Fertig 1994, p. 38; Fertig 2000a, pp. 16-17). Much of the species' range occurs along the northern Front Range of the Rocky Mountains in Colorado and Wyoming, which has experienced dramatic growth in the recent past and is predicted to grow considerably in the future (Regional Plan Association 2016, entire), particularly in Larimer and Weld Counties in Colorado (University of Colorado Boulder 2015, pp. 119-120). The demand that urban development places on water resources also has the ability to dewater the streams and lower groundwater levels required by the species to maintain self-sustaining populations, and is explored below.

    The two large populations of the Colorado butterfly plant in Larimer and Weld Counties, Colorado, occur on lands managed as open space by Fort Collins, and are not directly subject to residential or urban development. Consequently, despite projected increases in human density and urban development along the northern Front Range, these lands are managed to allow for the persistence of these populations, with managed grazing or burning (CFCNAD 2016b, entire). Fort Collins does not own all mineral rights on these lands; therefore, sensitive areas within these boundaries may be impacted by mineral development. However, in light of this potential threat, the city completed a planning process in which they highlighted areas to be avoided by mineral development (The Nature Conservancy 2013, entire). While oil and gas development has increased in northern Colorado and southeastern Wyoming since the time of listing, no oil or gas wells have been proposed or likely will be proposed in areas that will directly or indirectly impact populations of the Colorado butterfly plant in Colorado or in Wyoming, particularly due to the species' occurrence in riparian and wetland habitats. Because the plant occurs in riparian and wetland habitats that routinely flood, it is likely that oil and gas wells will be sited outside of population boundaries. While there is potential for indirect effects through spills or sedimentation, we have no specific information about those effects on the species to date.

    According to publicly available information, there are no current proposals for urban or residential development on lands containing populations of Colorado butterfly plant in Wyoming. Monitoring of lands under agreement (CFCNAD, WEAs, and Warren AFB) has also shown that neither urbanization nor conversion to intensive agricultural activities has occurred as predicted in the final listing rule (65 FR 62302, October 18, 2000; USFWS 2012, pp. 11-22; USFWS 2016c, entire). Populations at WAFB remained stable over the past 29 years without being managed for agricultural purposes, although numbers of reproductive individuals fluctuate during any given year (Heidel et al., 2016, pp. 14-18). Since the time of listing, the Service has received few requests for consultation under section 7 of the Act for projects that may adversely affect this species. Informal consultations have been limited to grazing, power lines, pipelines, road development, and drainage crossing projects, and avoidance and minimization of potential impacts has been readily achieved (USFWS 2017c, entire).

    Furthermore, chapters 3 and 4 of the Laramie County Land Use Regulations address floodplain management and require specific provisions and permits for construction within floodplains (Laramie County 2011, pp. 165-185), which encompass all Colorado butterfly plant habitat within the county; these regulations, therefore, extend some level of protection to the species and its habitat. These regulations are in place to “promote public health, safety, and general welfare and to minimize public and private losses due to flood conditions” (Laramie County 2011, p. 165), and protect many resources, including the Colorado butterfly plant and its habitat, by limiting development in the floodplains. These regulations are discussed in detail under Factor D, below.

    The threats of residential and urban development, once considered significant threats to the Colorado butterfly plant, have been largely avoided because most development has occurred outside of the habitat in which this species occurs. Annual monitoring conducted by the Service since 2004 indicates that populations are stable and unaffected by any development that has occurred within the species' range. While human population growth and development are predicted for the Front Range of the Rocky Mountains in Colorado into the future, these areas are outside of the species' occupied habitat, and we do not anticipate development in the protected areas under management of Fort Collins, and do not anticipate development due to continued restrictions against development within the floodplain. Additionally, increases in oil and gas development in northern Colorado and southeastern Wyoming have not directly or indirectly impacted populations of the Colorado butterfly plant. Current ownership and management by Fort Collins and Warren AFB of lands containing a majority of large populations of the Colorado butterfly plant protect the species from current and future impacts due to residential, urban, and energy development.

    Agricultural Practices

    At the time of listing (65 FR 62302; October 18, 2000), conversion of grassland to farmlands, mowing grasslands, and grazing were considered threats to the Colorado butterfly plant. Prior to listing, the conversion of moist, native grasslands to commercial croplands was widespread throughout much of southeastern Wyoming and northeastern Colorado (Compton and Hugie 1993, p. 22), as well as in Nebraska. However, conversion from native grassland to cropland has slowed throughout the species' range since the time of listing, with no lands converted in Laramie County and just 12 ha (30 ac) converted in Platte County between 2011 and 2012 (FSA 2013, entire).

    Mowing areas for hay production that are occupied by the Colorado butterfly plant was identified as a threat at the time of listing, if conducted at an inappropriate time of year (prior to seed maturation) (Fertig 1994, p. 40; USFWS 1997, p. 8). However, monitoring over the past 13 years indicates that mowing prior to seed maturation occurs infrequently. Even in areas where early season mowing has occurred, annual monitoring has shown high numbers of reproductive plants present in subsequent years, suggesting that mowing for hay production is not a threat to the species (USFWS 2016c, entire).

    The agricultural practices of grazing and herbicide application threatened the Colorado butterfly plant at the time of listing. However, since then, the Service has made and continues to make recommendations to cooperating landowners on agricultural management that fosters resiliency in populations of the species. We believe that these measures have decreased the severity of these stressors. We also anticipate that landowners will continue their current agricultural practices into the future, based on the data we have collected from WEAs (USFWS 2016c, entire) and analysis of aerial imagery of designated critical habitat (USFWS 2017b, entire). Through these agreements, we also learned that the species is highly adapted to withstand stochastic events. The assessment that the species is highly resilient is based on the information obtained through the WEAs; we do not rely on the implementation of the WEAs to ensure that the species remains highly resilient. Instead, we believe the plant will continue to thrive even if protections are removed. Grazing is further explored under Factor C, below, and herbicide spraying is further explored under Factor E, below.

    Water Management

    At the time of listing (65 FR 62302; October 18, 2000), water management (actions that moved water to croplands, such as irrigation canals, diversions, and center pivot irrigation development) was considered a threat that would remove moisture from Colorado butterfly plant habitat. The management of water resources for livestock production and domestic and commercial human consumption, coupled with increasing conversion of lands for agricultural production, often led to channelization and isolation of water resources; changes in seasonality of flow; and fragmentation, realignment, and reduction of riparian and moist lowland habitat (Compton and Hugie 1993, p. 22). All of these actions could negatively impact suitable habitat for the species.

    Dewatering portions of Lodgepole Creek in Kimball County, Nebraska, has led to the extirpation of some of the species' known historical populations there, and low likelihood of long-term resiliency for the two extant populations last monitored in 2008 (Rabbe 2016, pers. comm.). Extant populations in Nebraska continue to experience dewatering and overgrazing on private land. However, when water was reintroduced to formerly occupied habitat after being absent for more than 10 years, a population was rediscovered (Wooten 2008, p. 4). While rediscovery of this population indicates persistence of a viable seedbank for at least 10 years, numbers of plants within the population declined from over 600 plants (Fertig 2000a, p. 12) to 12 plants (Wooten 2008, p. 4), and the application of water that allowed plants to grow was temporary, which suggests the population has a low likelihood of long-term resiliency.

    In 2016, the Colorado Water Conservation Board on behalf of Fort Collins filed an instream flow right on Graves Creek, the stream that feeds the population of Colorado butterfly plants in Soapstone Prairie (CFCNAD 2016b, entire). While the water right has not yet been granted, we believe that this instream flow right will protect and maintain subirrigation of this large and important population through ensuring adequate water availability to the species throughout the year.

    The entire range of the Colorado butterfly plant occurs within the Platte River Basin. Water usage in the Platte River system is managed collaboratively by the States of Colorado, Wyoming, and Nebraska, and the Department of the Interior, through the Platte River Recovery Implementation Program (PRRIP). The PRRIP, which began in 1997, provides a mechanism for existing and new water users and water-development activities in the Platte River Basin to operate in regulatory compliance with the Act regarding potential impacts to the five Platte River “target species” in Nebraska: Grus americana (whooping crane), Sterna (Sternula) antillarum (interior least tern), Charadrius melodus (northern Great Plains population of piping plover), Scaphirhynchus albus (pallid sturgeon), and Platanthera praeclara (western prairie fringed orchid). Because the PRRIP ensures that shortages to the target flows in the central Platte River will be substantially reduced by keeping water within the basin more consistently throughout the year (PRRIP 2016), the hydrological component of habitat for the Colorado butterfly plant will be better maintained as well.

    In summary, water management can directly and indirectly impact the Colorado butterfly plant. While management of water resources has negatively impacted the species on a localized scale in the past, there is no indication that water management throughout the majority of the species' range poses a current threat to the species because programs and policies currently in place, such as the PRRIP and Graves Creek instream flow right, provide substantial assurances that the hydrological component of currently occupied habitat will remain protected over the long term.

    Natural Succession and Competition With Nonnative, Invasive Species

    In the absence of periodic disturbance, natural succession of the plant community in areas occupied by the Colorado butterfly plant moves from open habitats to dense coverage of grasses and forbs, and then to willows and other woody species. The semi-open habitats preferred by this species can become choked by tall and dense growth of willows; grasses; and nonnative, invasive species (Fertig 1994, p. 19; Fertig 2000a, p. 17). Natural disturbances such as flooding, fire, and native ungulate grazing were sufficient in the past to create favorable habitat conditions for the species. However, the natural flooding regime within the species' floodplain habitat has been altered by construction of flood control structures and by irrigation and channelization practices (Compton and Hugie 1993, p. 23; Fertig 1994, pp. 39-40). Consequently, the species relies on an altered flood regime and other sources of disturbance to maintain its habitat.

    In the absence of natural disturbances today, managed disturbance may be necessary to maintain and create areas of suitable habitat (Fertig 1994, p. 22; Fertig 1996, pp. 12-14; Fertig 2000a, p. 15). However, populations can persist without natural disturbances such as fire and flooding through natural dieback of woody vegetation and native ungulate grazing (Heidel et al., 2016, pp. 2-5). Additionally, some Federal programs, such as those administered by the U.S. Department of Agriculture's Natural Resources Conservation Service, focus on enhancing or protecting riparian areas by increasing vegetation cover and pushing the habitat into later successional stages, which removes the types of disturbance the Colorado butterfly plant needs (65 FR 62302; October 18, 2000, p. 62307). However, these programs are implemented in only a small portion of the species' range. The Service learned from monitoring the 11 WEA properties that the typical approach of managing for livestock grazing, coupled with an altered flood regime, appears to provide the correct timing and intensity of disturbance to maintain suitable habitat for the species (USFWS 2012, pp. 9-21; USFWS 2016c, entire). There has been no noticeable change in general management practices or change in the natural succession rate in either the WEA properties or the designated critical habitat since the agreements were signed or the critical habitat was designated, and we have no reason to believe that these practices or rates will change in the foreseeable future. Therefore, through the information we have gathered since the time of listing, it appears that natural succession is not occurring at the level previously considered to threaten this species.

    The final listing rule (65 FR 62302; October 18, 2000) included competition with exotic plants and noxious weeds as a threat to the Colorado butterfly plant. Competition with exotic plants and noxious weeds, here referred to as nonnative, invasive species, may pose a threat to the Colorado butterfly plant, particularly given the species' adaptation to more open habitats. In areas of suitable habitat for Colorado butterfly plant, the following plants may become dominant: The native Salix exigua (coyote willow); nonnative, invasive Cirsium arvense (Canada thistle); and nonnative, invasive Euphorbia esula (leafy spurge). Salix in particular increases in the absence of grazing or mowing. These species can outcompete and displace the Colorado butterfly plant, presumably until another disturbance removes competing vegetation and creates openings for Colorado butterfly plant seedlings to germinate (Fertig 1998a, p. 17). Since 2004, we have monitored populations of the Colorado butterfly plant that have slowly decreased in numbers or disappeared following the invasion and establishment of these other plant species, only to see Colorado butterfly plants return to the area following disturbance (USFWS 2016c, entire). Additionally, at least one population has moved to an uninvaded area downstream of its former invaded habitat (Handwerk 2016, pers. comm.), suggesting that populations can move to find more suitable habitat nearby.

    Prior to listing, biological control agents were used to control nonnative, invasive species at Warren AFB and may have depressed numbers and extent of Canada thistle and leafy spurge. Introduced gall-forming flies have slowly become established on Warren AFB and have reduced the vigor, height, and reproductive ability of small patches of Canada thistle (Fertig 1997, p. 15), at least in some years (Heidel et al., 2016, p. 16). Also on the Warren AFB, a biocontrol agent for leafy spurge, a different flea beetle than infests the Colorado butterfly plant, was observed in 1997 (Fertig 1998b, p. 18). While the effects of biocontrol agents on nonnative, invasive species appear promising, we do not have current information on the status of biocontrol of these agents.

    Natural succession was considered a threat to the Colorado butterfly plant at the time of listing. However, we now understand that the altered flood regime of today, coupled with disturbance from fire and grazing, is sufficient to maintain suitable habitat throughout much of the species' range. Competition with nonnative, invasive species is an ongoing stressor for portions of populations, although these invasive species tend not to survive the regular disturbances that create habitat for the Colorado butterfly plant. Therefore, while individuals or populations may be out-competed by native or nonnative, invasive species at higher succession levels, periodic disturbance maintains or creates new habitats for the Colorado butterfly plant.

    Summary of Factor A

    The following stressors warranted consideration as possible current or future threats to the Colorado butterfly plant habitat under Factor A: (1) Residential, urban, and energy development; (2) agricultural practices; (3) water management; and (4) natural succession and competition with nonnative, invasive species. However, these stressors are either being adequately managed, have not occurred to the extent anticipated at the time of listing, or new information indicates that the species is tolerant of the stressor as described above. While these stressors may be responsible for loss of historical populations (they have negatively affected population redundancy), and are currently negatively affecting the populations in Nebraska, we do not anticipate a rangewide increase in these stressors in the future, although they will continue at some level.

    B. Overutilization for Commercial, Recreational, Scientific, or Educational Purposes

    Factor B was not considered a threat to the species at the time of listing (65 FR 62302; October 18, 2000). We are aware of three unpermitted collections of seeds of the Colorado butterfly plant for scientific and/or commercial purposes since the publication of the final listing rule. These three collections were limited events that occurred at an introduction site in Colorado and from a large, robust population in Wyoming. Based on recent population data, these unpermitted collection events had no apparent impact on the number and distribution of plants within these populations or the species' habitat (based on Heidel et al., 2016, p. 13; USFWS 2016c, entire). Other than these collections, we are not aware of any attempts to use the Colorado butterfly plant for commercial, recreational, scientific, or educational purposes. In the future, we do not anticipate this species will be collected due to its lack of showiness for much of the year and because it occurs in generally inaccessible areas.

    Summary of Factor B

    At the time of listing, Factor B was not considered a threat to the Colorado butterfly plant. We are aware of only three unpermitted collections of the seeds of the species since listing. These collection events had no apparent effect on the number and distribution of plants from which they were taken. Based on available information, we do not consider there to be threats now or in the future related to overutilization for commercial, recreational, scientific, or educational purposes.

    C. Disease or Predation

    The listing of the Colorado butterfly plant (65 FR 62302; October 18, 2000) did not include threats from disease or predation, although livestock grazing was described as a potential threat if grazing pressures were high. No diseases are known to affect this species. In 2007, a precipitous decline in plant numbers was observed in many populations monitored in Colorado and Wyoming. The exact cause of the decline was not positively identified, but weather and insect herbivory were two potential contributing factors. Weather-related impacts included an early start to the growing season, lower than normal spring precipitation levels (which were magnitudes lower than in all previous years), and higher mean temperatures in late summer. Insect herbivory also was suspected, as virtually all reproductive plants were riddled with holes, flowering and fruit production was curtailed or greatly reduced on all plants, and some bolted plants died before flowering. Interestingly, no vegetative (i.e., non-reproductive) plants showed similar evidence of herbivory (Heidel et al., 2011, pp. 284-285). Flowering plant numbers remained low or declined further in 2008. Surveyors identified one or more flea beetle species that may have been responsible for the herbivory. The likely flea beetle species (Altica foliaceae) is a native species, and its numbers are not known to be affected by human causes.

    Insect herbivory may not be a severe or immediate threat to Colorado or Wyoming populations as the above-referenced impacted populations rebounded to pre-infestation numbers in 2009 and 2010 (Heidel et al., 2011, p. 286). However, insect herbivory may be episodic and potentially tied to climate; preliminary tests have been conducted on its potential impact on population resiliency (Heidel et al., 2011, p. 286). For example, in 2014, intense herbivory from flea beetles at Soapstone Prairie and Meadow Springs Ranch resulted in high mortality and a reduction in bolting of vegetative rosettes (Strouse 2017, pers. comm.), and numbers of reproductive individuals in those populations were low in 2015 and 2016. We found that these populations rebounded in 2017 to record numbers, in the same way populations rebounded after the 2007 flea-beetle-caused decline. This herbivory has not been reported for the Nebraska populations, although it is possible that similar insect herbivory influenced 2008 survey results in Nebraska.

    Colorado butterfly plant is highly palatable to a variety of insect and mammalian herbivores including Gaura moth (Schinia gaura), cattle, horses, and pronghorn (Antilocapra americana), but the plant appears to have some capacity to compensate for herbivory by increasing branch and fruit production (Fertig 1994, p. 6; Fertig 2000a, p. 17). Livestock grazing can be a threat at some sites if grazing pressures are high or if use is concentrated during the summer flowering and fruiting period. Additionally, plants may be occasionally uprooted or trampled by livestock and wildlife. In at least two locations where a population was divided by a fence, the heavily grazed side of the fence had few or no Colorado butterfly plants, while the ungrazed side had many (Marriott 1987, p. 27; USFWS 2016c, entire).

    Heavy grazing at key times of the year during the life cycle of the Colorado butterfly plant may be detrimental to populations by temporarily removing reproductive individuals and eliminating seed production for that year. However, even after many years of intensive grazing, populations rebounded upon relief (USFWS 2012, pp. 11-21; USFWS 2016c, entire). This response is likely due to survival of non-reproductive individuals and recruitment from the seedbank. Moderate grazing acts as a disturbance that keeps the habitat in an open or semi-open state suitable for this species, and light to medium grazing can provide benefits by reducing the competing vegetative cover and allowing seedlings to become established (USFWS 1997, p. 8).

    Summary of Factor C

    In general, while disease or predation has had an occasional negative impact on individuals and localities, most of these impacts do not appear to affect entire populations, nor do these impacts persist for any extended period of time. Individuals are resilient to damage; vegetative plants (basal rosettes) appear to be resistant to damage from grazing activities and are capable of withstanding stochastic events, and reproductive plants send out additional flowering branches upon injury. Also, the lack of any known diseases affecting the species and the species' redundancy of many populations distributed across most of the historical range would likely provide a buffer to any type of catastrophic disease outbreak.

    D. The Inadequacy of Existing Regulatory Mechanisms

    Under this factor, we examine whether the stressors identified within the other factors may be ameliorated or exacerbated by an existing regulatory mechanism. Section 4(b)(1)(A) of the Act requires the Service to take into account “those efforts, if any, being made by any State or foreign nation, or any political subdivision of a State or foreign nation, to protect such species.” In relation to Factor D under the Act, we interpret this language to require the Service to consider relevant Federal, State, and Tribal laws, regulations, and other such binding legal mechanisms that may ameliorate or exacerbate any of the threats we describe in threats analyses under the other four factors, or otherwise enhance conservation of the species. Our consideration of these mechanisms is described in detail within our analysis of each of the factors (see discussion under each of the other factors).

    For currently listed species, we consider the adequacy of existing regulatory mechanisms to address threats to the species absent the protections of the Act. Therefore, we examine whether other regulatory mechanisms would remain in place if the species were delisted, and the extent to which those mechanisms will continue to help ensure that future threats will be reduced or minimized.

    In our discussion under Factors A, B, C, and E, we evaluate the significance of threats as mitigated by any conservation efforts and existing regulatory mechanisms. Where threats exist, we analyze the extent to which conservation measures and existing regulatory mechanisms address the specific threats to the species. Regulatory mechanisms, if they exist, may reduce or eliminate the impacts from one or more identified threats. Presently, the Colorado butterfly plant is a Tier 1 species in the Plants of Greatest Conservation Need in Colorado (Colorado SWAP 2015, entire), and the species is listed on the State endangered species list for Nebraska, and will continue to be so designated due to the species' extreme rarity in Nebraska (Wooten 2008, p. 1).

    When we listed the Colorado butterfly plant in 2000 (65 FR 62302; October 18, 2000), the majority of known populations occurred on private lands managed primarily for agriculture, with one population at Warren AFB, and a few other populations throughout the species' range under various local jurisdictions. The listing decision described the species' status as Sensitive by the U.S. Forest Service, although no populations occurred on Forest Service lands at the time. The listing decision also described the lack of protection extended to the Colorado butterfly plant through the Federal threatened status of Zapus hudsonius preblei (Preble's meadow jumping mouse) that occurs in the same range of habitats due to the two species' use of differing successional stages of riparian habitats (65 FR 62302; October 18, 2000).

    Today, the population on Warren AFB represents one of the largest and most highly resilient populations of the species, is managed under an integrated natural resources management plan (Warren AFB 2014, entire) and a conservation and management plan under Air Force Information 32-7064 (Warren AFB 2004, entire). These plans call for annual monitoring, protection and maintenance, and research on threats and genetic variability of the population located there. Additionally, a Service employee stationed at Warren AFB manages its natural resources, including management of the Colorado butterfly plant and its habitat, such as directing the application of herbicide in the vicinity of the species' habitat. These plans would remain post-delisting. The population of the Colorado butterfly plant at Warren AFB has been monitored since before listing to determine population trends, detect any changes in its habitat, pursue viability assessment, and assess population response to different hydrological conditions. The results indicate that plant numbers fluctuate depending on climate and hydrology, and seem to be capable of rebounding after extreme stochastic events such as the flea beetle infestation of 2007 (Heidel et al., 2016, pp. 15-17). Should the protections of the Act be removed from this species upon delisting, the aforementioned plans would remain in place, at least until the next plan revisions, which have yet to be scheduled.

    Discovery and subsequent protection of large populations of the Colorado butterfly plant on lands owned and managed by Fort Collins are an important addition to conservation of the species after it was listed in 2000. The regulatory protections that these two populations receive from occurring on municipal natural areas lands include indefinite protections of land and water and restoring and rehabilitating land and natural systems to build ecological diversity and permanence (City of Fort Collins 2014, pp. 1-2). Populations managed by Fort Collins are afforded protection from oil and gas development (The Nature Conservancy 2013, entire) and from water withdrawals (CFCNAD 2016b, entire), as discussed above under Factor A. Also, as mentioned in “Residential, Urban, and Energy Development” under Factor A, the Laramie County Land Use Regulations address floodplain management and require specific provisions and permits for construction within floodplains (Laramie County 2011, pp. 165-185), which encompass all Colorado butterfly plant habitat within the county; therefore, these regulations extend some level of protection to the species and its habitat. While protecting riparian and wetland species is not the intent of these regulations, plants growing within the floodplain receive the habitat protections outlined as part of the floodplain construction avoidance provisions.

    Lands without specific regulatory mechanisms contain most populations of the Colorado butterfly plant. Over a decade of monitoring 11 occurrences on private lands in Wyoming has documented fluctuations in population size about a stable mean, apparently driven by changes in precipitation and disturbance regime (USFWS 2012, pp. 11-22; USFWS 2016c, entire). Management of lands under WEAs is discussed in Conservation Efforts, above.

    Populations of Colorado butterfly plant are not known to occur on lands managed by the Bureau of Land Management (BLM) at this time, although there is potential for populations to be discovered on BLM lands in the future. Because of this possibility, the Service and BLM in Wyoming have developed conservation measures under a Statewide programmatic consultation under section 7 of the Act for the Colorado butterfly plant. These conservation measures are incorporated into BLM's 2008 Record of Decision and Approved Rawlins Resource Management Plan (RMP; BLM 2008, entire) and include, but are not limited to: (1) Buffering individuals and populations by 800 m (0.5 mi); (2) implementing standards for healthy rangelands and guidelines for livestock grazing management for the public lands administered by BLM in the State of Wyoming; (3) limiting the number of grazing animals within the permit area; and (4) protecting surface water through prohibiting surface development in the following areas: Within 400 m (0.25 mi) of the North Platte River; within 152 m (500 ft) of live streams, lakes, reservoirs, and canals and associated riparian habitat; and within 152 m (500 ft) of water wells, springs, or artesian and flowing wells (BLM 2005, pp. 4-2 through 4-4). The newly discovered population on Wild Horse Creek (WY-23) occurs within the agreement area that BLM developed with the landowners, and so the conservation measures included in the Rawlins RMP are applied to this population.

    Water use is managed under the PRRIP, as described above under Factor A, which ensures that water use in the Platte River is conducted in a way to maintain volume at certain times of the year in the central and lower reaches of the Platte River in Nebraska. Because all of the watersheds in which the Colorado butterfly plant is found occur within the PRRIP, the water on which the species depends is managed under this program (PRRIP 2006). The water that this species requires would continue to be included under the PRRIP even if the Colorado butterfly plant is removed from the List of Threatened and Endangered Plants.

    Summary of Factor D

    At the time of listing (65 FR 62302; October 18, 2000), no Federal or State laws or regulations specifically protected populations of the Colorado butterfly plant and its habitat. However, two of the three largest populations occur on Warren AFB and lands owned and managed for the species by Fort Collins where regulatory mechanisms now exist. Additionally, 13 years of annual monitoring of 11 survey areas on private lands under WEAs that has occurred since the species was listed has shown that land used for agricultural purposes can be compatible with the resilience of the species, even without any regulatory mechanism in place (see discussions under Factors A, C, and E). Consequently, we find that existing regulatory mechanisms, as discussed above, will continue to address stressors to the Colorado butterfly plant absent protections under the Act.

    E. Other Natural or Manmade Factors Affecting Its Continued Existence

    Factor E requires the Service to consider any other factors that may be affecting the Colorado butterfly plant. Under this factor, we discuss small population size and restricted range, herbicide spraying, and effects of climate change.

    Small Population Size and Restricted Range

    The final listing decision (65 FR 62302; October 18, 2000) included the limited range and the small population size of many populations to be a threat to the Colorado butterfly plant. However, small population size and a restricted range is not a threat in and of itself. Historically, Colorado butterfly plant populations occurred from Castle Rock, Colorado, north to Chugwater, Wyoming, and east into a small portion of southwest Nebraska. The extent of its range was approximately 6,880 ha (17,000 ac). Most of this range is still occupied, although some small and/or peripheral populations in Nebraska and Colorado have been extirpated since intensive survey efforts began. Despite the loss of these populations, the species continues to maintain multiple resilient, representative, and redundant populations throughout nearly all of its range known at the time of listing (see figure, above).

    We have evidence that populations throughout the range have persisted despite stochastic events that may have caused short-term declines in number of individuals. For example, a 100-year flood in August 1985 on the Warren AFB inundated the Crow Creek portion of the population, knocking down some plants and surrounding vegetation, and depositing sediments (Rocky Mountain Heritage Task Force 1987, as cited in Heidel et al., 2016, p. 2). Instead of being extirpated, these populations rebounded in 1986 and continue to persist (summarized in Heidel et al., 2016, pp. 2-18). Additionally, based on annual monitoring of populations on private property in Wyoming, stochastic events such as floods and hail storms have reduced population numbers during the event year, then populations rebounded in following years (USFWS 2012, pp. 11-22; USFWS 2016c, entire). Individual plants may be vulnerable to random events such as fires, insect or disease outbreaks, or other unpredictable events. However, this species is adapted to disturbance, and rather than being extirpated, the seedbank can provide opportunity for populations to rebound after such events.

    The historical range included populations farther south into Larimer and Weld Counties in Colorado that were lost prior to the listing of the species in 2000. No populations in Larimer and Weld Counties in Colorado have been extirpated since the species was listed, and we do not think that further range restriction has occurred in this portion of the species' range. In the future, species range restriction may occur through loss of peripheral populations in Nebraska where dewatering has removed formerly suitable habitat (Wooten 2008, entire). However, these populations are downstream of highly viable populations in Wyoming, and do not constitute a removal of the species from this drainage entirely. The resiliency and redundancy of populations across much of the species' range indicate that further range restriction is not likely.

    Herbicide Spraying

    At the time of listing (65 FR 62302; October 18, 2000), the non-selective use of broadleaf herbicides to control Canada thistle, leafy spurge, and other nonnative, invasive plants was considered a threat to the Colorado butterfly plant. Non-selective spraying has had negative effects on some Colorado butterfly plant populations (Fertig 2000a, p. 16). For example, in 1983, which was prior to listing, nearly one-half of the mapped population on Warren AFB was inadvertently destroyed when sprayed with Tordon®, a persistent herbicide (Miller 1987, as cited in 65 FR 62302, October 18, 2000, p. 62307). The status of that portion of the population is unknown due to a subsequent lack of clear record-keeping at that time, prior to a Service biologist being employed on site; all plant locations have been tracked in the time after the Service biologist and Wyoming Natural Diversity Database began working at Warren AFB. Herbicide use along road crossings in and adjacent to plant populations was also noted (65 FR 62302, October 18, 2000, p. 62307).

    After the 2000 listing of the Colorado butterfly plant, the Service worked with Warren AFB and private landowners under WEAs to develop best management practices for applying herbicides within the vicinity of known occurrences to remove nonnative, invasive species while minimizing adverse effects to individual Colorado butterfly plants. For example, the WEAs require an herbicide-application buffer of 30.5 m (100 ft) from known locations of the Colorado butterfly plant. However, at one property, the landowner inadvertently sprayed individual plants in spring 2016. During subsequent monitoring, Service staff observed reddened plants with shriveled leaves, which likely reduced the vigor of those individuals (USFWS 2016c, entire). We presume that there will be no long-term effects on the population, and in fact, we found vigorous Colorado butterfly plants growing in this area during surveys in 2017. Furthermore, if the species is delisted, we anticipate that landowners will continue to maintain this buffer in accordance with requirements under the WEAs and that Warren AFB will continue to avoid spraying herbicide in the vicinity of the species' habitat as stipulated in their integrated natural resources management plan and conservation and management plan.

    While herbicide application may continue to occasionally occur within Colorado butterfly habitat, we know that unsprayed individuals persist in the population and can repopulate Colorado butterfly plants in areas where plants were killed. The seedbank can play an additional role in restoring Colorado butterfly plants to areas that have been sprayed. Based on our records, herbicide application is a management tool used in conjunction with nonnative, invasive species removal in only four of the known occurrences of the species, and these are among our largest and most resilient populations of the species. Our records indicate that, in general, application of buffers has been successful at reducing the presence of invasive species and competition near the Colorado butterfly plant (USFWS 2012, pp. 24-25; USFWS 2016c, entire), and when conducted appropriately, herbicide application can help improve habitat for the Colorado butterfly plant by eliminating competition.

    Effects of Climate Change

    Impacts from climate change were not considered in the final rule to list the species (65 FR 62302; October 18, 2000) or in the critical habitat designation (70 FR 1940; January 11, 2005). Our current analyses under the Act include consideration of ongoing and projected changes in climate. The terms “climate” and “climate change” are defined by the Intergovernmental Panel on Climate Change (IPCC). “Climate” refers to the mean and variability of different types of weather conditions over time, with 30 years being a typical period for such measurements, although shorter or longer periods also may be used (IPCC 2007, p. 78). The term “climate change” thus refers to a change in the mean or variability of one or more measures of climate (e.g., temperature or precipitation) that persists for an extended period, typically decades or longer, whether the change is due to natural variability, human activity, or both (IPCC 2007, p. 78). Various types of changes in climate can have direct or indirect effects on species. These effects may be positive, neutral, or negative and they may change over time, depending on the species and other relevant considerations, such as the effects of interactions of climate with other variables (e.g., habitat fragmentation) (IPCC 2007, pp. 8-14, 18-19). In our analyses, we use our expert judgment to weigh relevant information, including uncertainty, in our consideration of various aspects of climate change.

    According to IPCC, “most plant species cannot naturally shift their geographical ranges sufficiently fast to keep up with current and high projected rates of climate change on most landscapes” (IPCC 2014, p. 13). Plant species with restricted ranges may experience population declines as a result of the effects of climate change. The concept of changing climate can be meaningfully assessed both by looking into the future and reviewing past changes. A review of Wyoming climate since 1895 indicates that there has been a significant increase in the frequency of warmer-than-normal years, an increase in temperatures throughout all regions of the State, and a decline in the frequency of “wet” winters (Shumann 2011). Data from the Cheyenne area over the past 30 years indicate a rise in spring temperatures (Heidel et al. 2016). The current climate in Colorado butterfly plant habitat is quite variable, with annual precipitation ranging from 25-50 cm (10-20 in) of rain and 81-275 cm (32-108 in) of snow per year near the center of the species' range at Cheyenne Municipal Airport (NOAA 2016, entire). The years 2000 through 2006 appeared to have lower than average precipitation (NOAA 2016, entire), which may have affected the ability of plants to withstand flea beetle outbreak in 2007 (Heidel et al. 2011, p. 286). The Colorado butterfly plant is semelparous (individual plants are first vegetative, then flower and fruit, and then die). Therefore, individuals are likely capable of remaining in a vegetative state under some conditions and duration until suitable flowering conditions exist, suggesting that the species is adapted to variability in the amount and timing of precipitation.

    Climate change may affect the timing and amount of precipitation as well as other factors linked to habitat conditions for the Colorado butterfly plant. For example, climate models predict that by 2050, watersheds containing the species will become warmer for all four seasons, precipitation will increase in the winter, and remain about the same in spring, summer, and fall (USGS 2016, pp. 1-3). Snow water equivalent will decrease in winter and spring, and soil water storage will decrease in all four seasons (USGS 2016, pp. 4-5). Modeling predicts an increase in winter precipitation, but decreases in soil water storage will mean less water for subirrigation of the species' habitat. This may mean a shorter window for seed germination, lower seed production, and potentially increased years at the rosette stage to obtain sufficient resources to bolt and flower. However, we also understand that C3 plants (plants which combine water, sugar, and carbon dioxide in carbon fixation), including this species, have a 41 percent proportional increase in growth resulting from a 100 percent increase in carbon dioxide (Poorter 1993, p. 77). This increase in growth rate due to higher carbon dioxide may counteract the need to spend more time in the vegetative portion of the life cycle in response to climate change. Additionally, monitoring indicates that populations are able to withstand several consecutive years of poor growing conditions, and still rebound with suitable conditions (USFWS 2012, pp. 11-22; USFWS 2016c, entire). Climate change has the potential to affect the species and its habitat if flea beetle outbreaks are fostered or if flowering levels are suppressed. Although we lack scientific certainty regarding what those changes may ultimately mean for the species, we expect that the species' current adaptations to cope with climate variability will mitigate the impact on population persistence.

    Summary of Factor E

    Under this factor, we discussed the Colorado butterfly plant's small population size and restricted range, herbicide spraying, and climate change.

    In 2000, when we listed the species, the stochastic extirpation of individual populations suggested that the range of the species might be declining. Despite the fact that some populations in Colorado, Wyoming, and Nebraska were extirpated prior to listing, and others in Nebraska were extirpated after listing, four additional populations have been discovered, two of which are protected, and there are still representative and redundant populations occurring throughout the range of the species. Further, individuals and populations are resilient to a single herbicide application, and have been shown to survive or bounce back from such events. Education of landowners has greatly reduced the indiscriminate application of herbicides near populations of the Colorado butterfly plant. Finally, while climate change presents a largely unknown potential stressor to the species, individual plants are capable of deferring the reproductive stage until suitable conditions are available, populations are made up of individuals found in a range of microhabitats, and populations are located within various ecological settings within the species' range. This indicates that the resiliency, redundancy, and representation of populations will maintain the species in the face of climate change.

    Combination of Factors

    Many of the stressors discussed in this analysis could work in concert with each other and result in a cumulative adverse effect to the Colorado butterfly plant, e.g., one stressor may make the species more vulnerable to other threats. For example, stressors discussed under Factor A that individually do not rise to the level of a threat could together result in habitat loss. Similarly, small population size and a restricted range in combination with stressors discussed under Factor A could present a potential concern. However, most of the potential stressors we identified either have not occurred to the extent originally anticipated at the time of listing or are adequately managed as described in this proposal to delist the species. Furthermore, those stressors that are evident, such as climate change and grazing, appear well-tolerated by the species. In addition, for the reasons discussed in this proposed rule, we do not anticipate stressors to increase on lands that afford protections to the species (Warren AFB and CFCNAD lands) where many of the largest populations occur. Furthermore, the increases documented in the number and size of many populations since the species was listed do not indicate that cumulative effects of various activities and stressors are affecting the viability of the species at this time or into the future.

    Proposed Determination of Species Status

    Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for determining whether a species is an endangered species or threatened species and should be included on the Federal Lists of Endangered and Threatened Wildlife and Plants (listed). The Act defines an endangered species as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species as any species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” We may delist a species according to 50 CFR 424.11(d) if the best available scientific and commercial data indicate that the species is neither endangered or threatened for the following reasons: (1) The species is extinct; (2) the species has recovered and is no longer endangered or threatened; and/or (3) the original scientific data used at the time the species was classified were in error.

    Determination of Status Throughout All of the Colorado Butterfly Plant's Range

    We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Colorado butterfly plant. We examined the status of the species based on the 2010 Colorado butterfly plant recovery outline (USFWS 2010, entire). We also consulted with species experts and land management staff with Fort Collins and Warren AFB who are actively managing for the conservation of the Colorado butterfly plant.

    The 2010 Colorado butterfly plant recovery outline presented a recovery vision for the species in which the primary focus was protection of existing populations, threats abatement, and research (USFWS 2010, entire). The initial action plan focused on protection of existing populations through partnerships with Warren AFB, Fort Collins, and private landowners, followed by developing a recovery plan that would contain objective, measurable recovery criteria which, when met, would indicate that the species could be removed from the Federal List of Endangered and Threatened Plants. In 2016, the Service's Wyoming Ecological Services Field Office began development of a recovery plan for the Colorado butterfly plant. In reviewing information regarding population numbers and trends, as well as threats, it appeared that most monitored extant populations were doing well. Threats named at the time of listing were either affecting the species at low levels, likely due to management actions to recover the species, or not affecting the species at all, as was observed in preparing the 2012 5-year status review (USFWS 2012, entire). Therefore, the Service conducted an assessment of the status of the species and whether it should remain on the List of Endangered and Threatened Plants under the Act.

    We carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Colorado butterfly plant. We considered all of the stressors identified at the time of listing in 2000, as well as newly identified potential stressors such as oil and gas energy development and the effects of climate change. The stressors considered in our five-factor analysis (discussed in detail above under Summary of Factors Affecting the Species) fall into one or more of the following categories:

    Minimized or mitigated: The following stressors are adequately managed, and existing information indicates that this will not change in the future: Residential, urban, and energy development; agricultural practices; water management; overutilization; and herbicide spraying.

    Avoided: The following stressor has not occurred to the extent anticipated at the time of listing, and existing information indicates that this will not change in the future: Restricted range.

    Tolerated: The species is tolerant of the following stressors, and existing information indicates that this will not change in the future: Natural succession and competition with nonnative, invasive species; disease and predation; and climate change.

    These conclusions are supported by the available information regarding the species' abundance, distribution, and trends, and are in agreement with conclusions presented in our 2010 recovery outline (USFWS 2010, entire) and in our 5-year review (USFWS 2012, entire). Thus, after assessing the best available information, we conclude that the Colorado butterfly plant is not in danger of extinction, nor is it likely to become so in the foreseeable future.

    Determination of Status Throughout a Significant Portion of the Colorado Butterfly Plant's Range

    Under the Act and our implementing regulations, a species may warrant listing if it is an endangered or a threatened species throughout all or a significant portion of its range. The Act defines “endangered species” as any species which is “in danger of extinction throughout all or a significant portion of its range,” and “threatened species” as any species which is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.” The term “species” includes “any subspecies of fish or wildlife or plants, and any distinct population segment [DPS] of any species of vertebrate fish or wildlife which interbreeds when mature.” We published a final policy interpretating the phrase “Significant Portion of its Range” (SPR) (79 FR 37578). The final policy states that (1) if a species is found to be an endangered or a threatened species throughout a significant portion of its range, the entire species is listed as an endangered or a threatened species, respectively, and the Act's protections apply to all individuals of the species wherever found; (2) a portion of the range of a species is “significant” if the species is not currently an endangered or a threatened species throughout all of its range, but the portion's contribution to the viability of the species is so important that, without the members in that portion, the species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range; (3) the range of a species is considered to be the general geographical area within which that species can be found at the time FWS or NMFS makes any particular status determination; and (4) if a vertebrate species is an endangered or a threatened species throughout an SPR, and the population in that significant portion is a valid DPS, we will list the DPS rather than the entire taxonomic species or subspecies.

    The SPR policy is applied to all status determinations, including analyses for the purposes of making listing, delisting, and reclassification determinations. The procedure for analyzing whether any portion is an SPR is similar, regardless of the type of status determination we are making. The first step in our analysis of the status of a species is to determine its status throughout all of its range. If we determine that the species is in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range, we list the species as an endangered (or threatened) species and no SPR analysis will be required. If the species is neither an endangered nor a threatened species throughout all of its range, we determine whether the species is an endangered or a threatened species throughout a significant portion of its range. If it is, we list the species as an endangered or a threatened species, respectively; if it is not, we conclude that listing the species is not warranted.

    When we conduct an SPR analysis, we first identify any portions of the species' range that warrant further consideration. The range of a species can theoretically be divided into portions in an infinite number of ways. However, there is no purpose to analyzing portions of the range that are not reasonably likely to be significant and either an endangered or a threatened species. To identify only those portions that warrant further consideration, we determine whether there is substantial information indicating that (1) the portions may be significant and (2) the species may be in danger of extinction in those portions or likely to become so within the foreseeable future. We emphasize that answering these questions in the affirmative is not a determination that the species is an endangered or a threatened species throughout a significant portion of its range—rather, it is a step in determining whether a more detailed analysis of the issue is required. In practice, a key part of this analysis is whether the threats are geographically concentrated in some way. If the threats to the species are affecting it uniformly throughout its range, no portion is likely to warrant further consideration. Moreover, if any concentration of threats apply only to portions of the range that clearly do not meet the biologically based definition of “significant” (i.e., the loss of that portion clearly would not be expected to increase the vulnerability to extinction of the entire species), those portions will not warrant further consideration.

    If we identify any portions that may be both (1) significant and (2) endangered or threatened, we engage in a more detailed analysis to determine whether these standards are indeed met. The identification of an SPR does not create a presumption, prejudgment, or other determination as to whether the species in that identified SPR is an endangered or a threatened species. We must go through a separate analysis to determine whether the species is an endangered or a threatened species in the SPR. To determine whether a species is an endangered or a threatened species throughout an SPR, we will use the same standards and methodology that we use to determine if a species is an endangered or a threatened species throughout its range.

    Depending on the biology of the species, its range, and the threats it faces, it may be more efficient to address the “significant” question first, or the status question first. Thus, if we determine that a portion of the range is not “significant,” we do not need to determine whether the species is an endangered or a threatened species there; if we determine that the species is not an endangered or a threatened species in a portion of its range, we do not need to determine if that portion is “significant.”

    We evaluated the range of the Colorado butterfly plant to determine if any area could be considered a significant portion of its range. The only portion of the range where threats are geographically concentrated are the three populations in Nebraska. Grazing and water management, particularly the dewatering of Lodgepole Creek downstream of the Wyoming/Nebraska border in the three populations in Nebraska, has proven to impact populations in that portion of the species' range. This stressor has affected these populations to a level that the populations were presumed extirpated at the time we designated critical habitat for this species (70 FR 1940; January 11, 2005). However, after water was reintroduced to the creek by a landowner, Colorado butterfly plants were again observed in Lodgepole Creek (Wooten 2008, p. 4). It is possible that the species only occurs in this portion of its range during times of adequate subirrigation and surface flows, and that seeds either remain dormant at this location for several years or are transported from neighboring populations located upstream on Lodgepole Creek in Wyoming. Nevertheless, the removal of water from Lodgepole Creek impacts populations of the Colorado butterfly plant within this portion of the species' range.

    Because we identified an area on the periphery of the species' current range as warranting further consideration due to the geographic concentration of threats from water management, we then evaluated whether this area may be significant to the Colorado butterfly plant such that, without the members in that portion, the entire species would be in danger of extinction, or likely to become so in the foreseeable future, throughout all of its range. We can accomplish this by considering the viability of the remainder of the range without the portion and the biological or conservation importance of the portion. The viability of the remainder of the range, should the three populations in Nebraska be lost, will remain high: All of the highly and moderately resilient populations occur in the remainder of the range, which is comprised of more than 20 populations distributed through a geographically connected area, and which contains all of the ecological settings this species is known to inhabit.

    Additionally, to determine significance of this threatened portion of the range, we examined its contribution to the species' viability in terms of its resiliency, redundancy, and representation. Regarding redundancy, the populations within this portion of the range occur on the eastern extreme of the historical range of the species and represent a very small component of the total distribution of the species, occurring downstream of several highly viable populations. Therefore, these populations do not substantially increase redundancy at the species level. Regarding resiliency, individual plants in this portion of the range may be resilient to dewatering or other stressors, but populations contain few individuals and are, therefore, threatened by stochastic events. Regarding representation, we understand that there may be connectivity among the populations occurring in Nebraska and the populations upstream on Lodgepole Creek in Wyoming. However, this connectivity is likely only through limited pollinator movement among the few flowering plants at any location, and through seed dispersal downstream from Wyoming to Nebraska, considering the distance is too great (>1 km/0.6 mi) for most pollinators to travel (Heidel 2016, pers. comm.). Consequently, the populations in Nebraska are likely not contributing any genetic information upstream. We do not have genetic information on these populations, but we understand that the populations in this portion of the species' range do not occupy unique ecological settings, have unique morphology, or have differing phenology than other populations of the species on Lodgepole Creek or in the rest of the species' range.

    After careful examination of the Colorado butterfly plant population in the context of our definition of “significant portion of its range,” we determine an area on the periphery of the range warranted further consideration because threats are geographically concentrated there. After identifying this area, we evaluate whether it is significant and determine that it is not significant because, even without Colorado butterfly plants in this area, the species would not be in danger of extinction, or likely to become so in the foreseeable future. This is because the remainder of the species is characterized by high levels of resiliency, redundancy, and representation; the remainder of the species contains all of the highly and moderately resilient populations (high resiliency), is comprised of more than 20 populations distributed through a geographically connected area (high redundancy), and includes all of the ecological settings this species is known to inhabit (high representation). Therefore, we did not need to determine if the species is in danger of extinction or likely to become so in the foreseeable future in this peripheral area in Nebraska.

    Determination of Status for the Colorado Butterfly Plant

    We have carefully assessed the best scientific and commercial information available regarding the past, present, and future threats to the Colorado butterfly plant. The threats that led to the species being listed under the Act (primarily loss of the species' habitat (Factor A) and small population size, restricted range, and herbicide spraying (Factor E)) have not occurred to the extent anticipated at the time of listing, or are being appropriately managed by the actions of multiple conservation partners over the past 18 years. These actions include habitat management, monitoring, and research. Given commitments shown by private landowners, local governments, cooperating agencies, and other partners as discussed under Factor D, we expect conservation efforts will continue to support a healthy, viable population of the species post-delisting and into the foreseeable future. Furthermore, there is no information to conclude that at any time over the next 20 years (as we define the foreseeable future for this species) the species will be in danger of extinction. Because the species is not in danger of extinction now or within the foreseeable future throughout all or any significant portion of its range, the species does not meet the definition of an endangered species or threatened species. We therefore propose to remove the Colorado butterfly plant from the Federal List of Endangered and Threatened Wildlife at 50 CFR 17.11(h) due to recovery. Because the species is neither in danger of extinction now nor likely to become so in the foreseeable future throughout all or any significant portion of its range, the species does not meet the definition of an endangered species or a threatened species under the Act.

    Effects of the Rule

    This proposal, if made final, would revise 50 CFR 17.12(h) to remove the Colorado butterfly plant from the Federal List of Endangered and Threatened Plants. The prohibitions and conservation measures provided by the Act, particularly through sections 7 and 9, would no longer apply to this species. Federal agencies would no longer be required to consult with the Service under section 7 of the Act in the event that activities they authorize, fund, or carry out may affect the Colorado butterfly plant or its designated critical habitat. This proposal, if made final, would also remove the designation of critical habitat for the Colorado butterfly plant in Wyoming (codified at 50 CFR 17.96(a)).

    Post-Delisting Monitoring

    Section 4(g)(1) of the Act requires us, in cooperation with the States, to implement a monitoring program for not less than 5 years for all species that have been delisted due to recovery. The purpose of this requirement is to develop a program that detects the failure of any delisted species to sustain itself without the protective measures provided by the Act. If, at any time during the monitoring period, data indicate that protective status under the Act should be reinstated, we can initiate listing procedures, including, if appropriate, emergency listing.

    We are proposing delisting for the Colorado butterfly plant based on recovery actions taken and new information we have received. Since delisting would be due in part to recovery actions taken by Warren AFB, Fort Collins, and BLM, we have prepared a draft post-delisting monitoring plan for the Colorado butterfly plant. The plan has been developed with input from these and other partners.

    It is our intent to work with our partners towards maintaining the recovered status of the Colorado butterfly plant. While not required, we intend to seek peer review comments on the draft post-delisting monitoring plan (PDM plan), including its objectives and procedures. A copy of the draft PDM plan is available at http://www.regulations.gov under Docket No. FWS-R6-ES-2018-0008. You can submit your comments on the draft PDM plan by one of the methods listed above under ADDRESSES.

    Required Determinations Clarity of This Proposed Rule

    We are required by Executive Orders 12866 and 12988 and by the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means that each rule we publish must:

    (a) Be logically organized;

    (b) Use the active voice to address readers directly;

    (c) Use clear language rather than jargon;

    (d) Be divided into short sections and sentences; and

    (e) Use lists and tables wherever possible.

    If you feel that we have not met these requirements, send us comments by one of the methods listed in ADDRESSES. To better help us revise the rule, your comments should be as specific as possible. For example, you should tell us the numbers of the sections or paragraphs that are unclearly written, which sections or sentences are too long, the sections where you feel lists or tables would be useful, etc.

    National Environmental Policy Act

    We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.), need not be prepared in connection with regulations pursuant to section 4(a) of the Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

    Government-to-Government Relationship With Tribes

    In accordance with the President's memorandum of April 29, 1994, Government-to-Government Relations with Native American Tribal Governments (59 FR 22951), E.O. 13175, and the Department of the Interior's manual at 512 DM 2, we readily acknowledge our responsibility to communicate meaningfully with recognized Federal Tribes on a government-to-government basis. In accordance with Secretarial Order 3206 of June 5, 1997 (American Indian Tribal Rights, Federal-Tribal Trust Responsibilities, and the Endangered Species Act), we readily acknowledge our responsibilities to work directly with Tribes in developing programs for healthy ecosystems, to acknowledge that tribal lands are not subject to the same controls as Federal public lands, to remain sensitive to Indian culture, and to make information available to Tribes. We have determined that no Tribes will be affected by this rule.

    References Cited

    A complete list of all references cited in this proposed rule is available at http://www.regulations.gov at Docket No. FWS-R6-ES-2018-0008, or upon request from the Wyoming Ecological Services Field Office (see ADDRESSES).

    Authors

    The primary authors of this proposed rule are staff members of the Wyoming Ecological Services Field Office.

    List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

    Proposed Regulation Promulgation

    Accordingly, we hereby propose to amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

    PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361-1407; 1531-1544; and 4201-4245, unless otherwise noted.

    § 17.12 [Amended]
    2. Amend § 17.12(h) by removing the entry “Gaura neomexicana ssp. coloradensis” under “FLOWERING PLANTS” from the List of Endangered and Threatened Plants.
    § 17.96 [Amended]
    3. Amend § 17.96(a) by removing the entry “Family Onagraceae: Gaura neomexicana ssp. coloradensis (Colorado butterfly plant)”. Dated: May 15, 2018. James W. Kurth, Deputy Director, U.S. Fish and Wildlife Service, Exercising the Authority of the Director, for the U.S. Fish and Wildlife Service.
    [FR Doc. 2018-12409 Filed 6-7-18; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 660 RIN 0648-XE456 Pacific Fisheries Management Council; Notice of Intent To Withdraw an Environmental Impact Statement for Gear Rule Changes for the Pacific Coast Groundfish Fishery Trawl Catch Share Program AGENCY:

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

    ACTION:

    Withdrawal of notice of intent to prepare an environmental impact statement.

    SUMMARY:

    NMFS is issuing this notice to advise Federal, state, and local government agencies and the public that it is withdrawing its Notice of Intent (NOI) to prepare a draft Environmental Impact Statement (EIS) for the proposed action to revise regulations regarding the use and configuration of groundfish bottom trawl and midwater trawl gear in the Pacific Coast Groundfish Fishery's Trawl Catch Share Program, also called the Trawl Rationalization Program. After completion of the analysis, NMFS determined the impacts associated with this action would not reach a level necessitating an EIS, and is instead preparing an Environmental Assessment (EA).

    DATES:

    The environmental impact statement for the proposed regulations is withdrawn as of June 8, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Colin Sayre, NMFS West Coast Regional Office, telephone: (206) 526-4656, or email: [email protected]

    SUPPLEMENTARY INFORMATION:

    NMFS Published a NOI in the Federal Register on March 3, 2016 (81 FR 11189) to prepare an EIS in accordance with the National Environmental Policy Act (NEPA) to analyze the impacts on the human environment resulting from changes to gear requirements for groundfish bottom trawl and midwater trawl gear in the Trawl Rationalization Program. Additional details about the range of alternatives considered in this action are included in the March 3, 2016, NOI, and are not repeated here. NMFS solicited public input on the scope of the analysis through a public comment on the NOI from March 3, 2016, to April 4, 2016.

    Upon completion of the analysis for the proposed action, NMFS determined that the impacts associated with the implementation of the proposed action would not be significant and, therefore, there is no need to complete the EIS. Instead, NMFS is completing an EA, in compliance with NEPA, for the proposed action. Therefore, NMFS is withdrawing the NOI to prepare an EIS. NMFS plans to circulate the draft EA for public review and comment concurrent with publication of the proposed rule for this action.

    Authority:

    16 U.S.C. 1801 et seq. 40 CFR 1500-1508; and Companion Manual for NOAA Administrative Order 216-6A, 82 FR 4306

    Dated: June 1, 2018. Jennifer M. Wallace, Acting Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-12165 Filed 6-7-18; 8:45 am] BILLING CODE 3510-22-P
    83 111 Friday, June 8, 2018 Notices DEPARTMENT OF AGRICULTURE Submission for OMB Review; Comment Request June 5, 2018.

    The Department of Agriculture has submitted the following information collection requirement(s) to OMB for review and clearance under the Paperwork Reduction Act of 1995, Public Law 104-13. Comments are requested regarding (1) whether the collection of information is necessary for the proper performance of the functions of the agency, including whether the information will have practical utility; (2) the accuracy of the agency's estimate of burden including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility and clarity of the information to be collected; and (4) ways to minimize the burden of the collection 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.

    Comments regarding this information collection received by July 9, 2018 will be considered. Written comments should be addressed to: Desk Officer for Agriculture, Office of Information and Regulatory Affairs, Office of Management and Budget (OMB), New Executive Office Building, 725 17th Street NW, Washington, DC 20502. Commenters are encouraged to submit their comments to OMB via email to: [email protected] or fax (202) 395-5806 and to Departmental Clearance Office, USDA, OCIO, Mail Stop 7602, Washington, DC 20250-7602. Copies of the submission(s) may be obtained by calling (202) 720-8958.

    An agency may not conduct or sponsor a collection of information unless the collection of information displays a currently valid OMB control number and the agency informs potential persons who are to respond to the collection of information that such persons are not required to respond to the collection of information unless it displays a currently valid OMB control number.

    Food Safety and Inspection Service

    Title: Mechanically Tenderized Beef Products.

    OMB Control Number: 0583-0160.

    Summary of Collection: The Food Safety and Inspection Service (FSIS) has been delegated the authority to exercise the functions of the Secretary as provided in the Federal Meat Inspection Act (FMIA) (21 U.S.C. 601 et seq.). This statute mandate that FSIS protect the public by ensuring that meat products are safe, wholesome, unadulterated, and properly labeled and packaged.

    Need and Use of the Information: FSIS requires the use of the descriptive designation “mechanically tenderized” on the labels of raw or partially cooked needle or blade tenderized beef products, including beef products injected with marinade or solution, unless such products are destined to be fully cooked at an official establishment. Beef products that have been needle or blade tenderized are referred to as “mechanically tenderized” products. Consumers use the information added to the labels of raw or partially cooked mechanically tenderized beef products to ensure that they thoroughly cook these products.

    Description of Respondents: Business or other-for profit.

    Number of Respondents: 555.

    Frequency of Responses: Reporting: One time.

    Total Burden Hours: 19,719.

    Ruth Brown, Departmental Information Collection Clearance Officer.
    [FR Doc. 2018-12353 Filed 6-7-18; 8:45 am] BILLING CODE 3410-DM-P
    DEPARTMENT OF AGRICULTURE Forest Service Information Collection; Wild Food Collecting in Atlanta's Browns Mill Community AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice; request for comment.

    SUMMARY:

    In accordance with the Paperwork Reduction Act of 1995, the USDA Forest Service is seeking comments from all interested individuals and organizations on the information collection, Wild Food Collecting in Atlanta's Browns Mill Community, under the approved Forest Service Generic Information Collection on Non-Timber Forest Products.

    DATES:

    Comments must be received in writing on or before July 9, 2018 to be assured of consideration. Comments received after that date will be considered to the extent practicable.

    ADDRESSES:

    Comments concerning this notice should be addressed to Cassandra Johnson Gaither, Forestry Sciences Lab, 320 Green St., Athens, GA 30602. Comments also may be submitted via facsimile to (706) 559-4266 or by email to: [email protected] The public may inspect comments received at Forestry Sciences Lab, 320 Green St., Athens, GA 30602 during normal business hours. Visitors are encouraged to call ahead to (706) 559-4264 to facilitate entry to the building.

    FOR FURTHER INFORMATION CONTACT:

    Cassandra Johnson Gaither, USDA Forest Service, Southern Research Station, 706-559-4270. Individuals who use telecommunication devices for the deaf (TDD) may call the Federal Relay Service (FRS) at 1-800-877-8339 twenty-four hours a day, every day of the year, including holidays.

    SUPPLEMENTARY INFORMATION:

    Title: Wild Food Collecting in Atlanta's Browns Mill Community.

    OMB Number: 0596-0243.

    Expiration Date of Approval: October 31, 2020.

    Type of Request: Individual Information Collection under Approved Generic Information Collection.

    Abstract: This information collection gathers data on the social acceptability of urban foraging in Atlanta's Browns Mill community, and is an individual information collection under the Forest Service generic collection on non-timber forest products (Office of Management and Budget approval # 0596-0243, approved through October 31, 2020). This 30-day Federal Register Notice provides an opportunity for public comment on this individual information collection taking place under the generic collection approval.

    There is growing literature on urban foraging in the United States that concentrates on the Northeast, Pacific Northwest, and Pacific Southwest regions of the country. No studies have undertaken this investigation in the South, despite the fact that the South has a climate very conducive to both the growing and harvesting of wild foods. The City of Atlanta is cooperating with the Browns Mill community in southeast Atlanta to establish a Food Forest. This effort is being undertaken to help address the relative dearth of fresh produce sources in this part of the city, areas considered “food deserts”. The success of this effort for the Browns Mill community will hinge on residents' views and ultimate engagement with the resource. This study aims to capture that information.

    The data are intended to provide information on both urban foraging practices and the social acceptability of foraging by an urban minority group that is underserved from the perspective of having nearby, fresh produce sources. The survey will be conducted face-to-face at the household using paper copies of a survey instrument. Attempts will be made to conduct the survey face-to-face, but if that is not convenient for the householder, the survey will be left at the respondent's home and picked up at an agreed upon time. Trained neighborhood residents will help to administer the survey. Attempts will be made to have survey administrators from the Browns Mill or a nearby community. This is expected to increase response rates because of the familiarity of administrators with this part of the city. All administrators will receive training in appropriate data collection techniques from the USDA Forest Service or one of its partners.

    Type of Respondents: Browns Mill community residents.

    Estimated Annual Number of Respondents: 400.

    Estimated Annual Number of Responses per Respondent: 1.

    Estimated Amount of Time to Complete Survey Respondent: .167 hours.

    Estimated Total Annual Burden on Respondents: 66.8 hours.

    Comment is Invited:

    Comment is invited on: (1) Whether this collection of information is necessary for the stated purposes and the proper performance of the functions of the agency, including whether the information will have practical or scientific utility; (2) the accuracy of the agency's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used; (3) ways to enhance the quality, utility, and clarity of the information to be collected; and (4) ways to minimize the burden of the collection of information on respondents, including the use of automated, electronic, mechanical, or other technological collection techniques or other forms of information technology.

    All comments received in response to this notice, including names and addresses when provided, will be a matter of public record. Comments will be summarized and included in the submission request toward Office of Management and Budget approval.

    Dated: May 11, 2018. Carlos Rodriguez-Franco, Deputy Chief, Research & Development.
    [FR Doc. 2018-12311 Filed 6-7-18; 8:45 am] BILLING CODE 3411-15-P
    DEPARTMENT OF AGRICULTURE Forest Service Bend-Fort Rock Ranger District; Deschutes National Forest; Deschutes County Oregon; Twin Vegetation Management and Restoration Project AGENCY:

    Forest Service, USDA.

    ACTION:

    Notice of intent to prepare an environmental impact statement.

    SUMMARY:

    The USDA Forest Service will prepare an environmental impact statement (EIS) on a proposed action to promote more resilient forest conditions closer to their historic range of variability, which would contribute to desirable recreation experiences, conserve and enhance wildlife habitat, and reduce impacts to streams and aquatic habitat within the 40,000 acres Twin project area. The project area is located south and southwest of Bend, Oregon and includes the areas surrounding Wickiup and Crane Prairie Reservoirs, North and South Twin Lakes, Browns Mountain and Round Mountain Late Successional Reserves. An analysis has been initiated that takes a landscape approach to managing the vegetation to meet objectives for resilient forests.

    DATES:

    Comments concerning the scope of the analysis must be received by July 9, 2018. The draft EIS is expected September 2019 and the final EIS is expected August 2020.

    ADDRESSES:

    Send written comments to Kevin Larkin, District Ranger, Bend-Fort Rock Ranger District, 63095 Deschutes Market Road, Bend, OR 97701. Comments may also be sent via email to [email protected], or via facsimile to 541-383-4700, or submitted in person during regular business hours, Monday-Friday, 8:00 a.m.-4:30 p.m. at the address listed above.

    FOR FURTHER INFORMATION CONTACT:

    Alicia Underhill, Environmental Coordinator, Bend-Fort Rock Ranger District, 63095 Deschutes Market Road, Bend, OR 97701, phone 541-383-4012, between the hours of 8:00 a.m. and 4:30 p.m., Pacific Time, Monday through Friday or by 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 a.m. and 8 p.m., Eastern Time, Monday through Friday.

    SUPPLEMENTARY INFORMATION: Purpose and Need for Action

    There is a need to manage stand structure and composition to tolerate primary disturbance agents (i.e. fire, insect and disease) on a landscape scale and to improve fire management opportunities in anticipation of future wildfire events. There is a need to address impacts to shorelines, streambanks, and riparian vegetation due to recreational use. There is a need to restore wetland and stream function. There is a need to manage recreation impacts and a need to address trees showing signs of future failure within developed recreation sites. There is a need to establish an appropriate buffer between developed and dispersed campsites to minimize conflicts. There is a need to manage system and non-system roads to reduce negative impacts to natural resources.

    In summary, the Twin project intends to create more resilient forest conditions closer to their historic range of variability, which would contribute to desirable recreation experiences, conserve and enhance wildlife habitat, and reduce impacts to streams and aquatic habitat from high severity fires.

    Proposed Action

    The Bend-Fort Rock Ranger District proposes the following actions to meet the purpose and need of the project area. Silviculture treatments (e.g. thinning) will focus on restoration treatments in ponderosa and dry mixed conifer plant association groups and stand healthy and age class diversity in lodgepole pine plant association groups. Commercial treatments on 4,894 acres will focus on reducing stocking levels and re-establishing stand structure and species composition to reflect historic stand conditions found in fire adapted ecosystems. Commercial treatments on 2,855 acres focus on improving overall strand health and diversity of age classes across the landscape which would decrease the susceptibility of large scale mountain pine beetle outbreaks. Treatments proposed within the Browns Mountain Late Successional Reserve (LSR) are designed to accelerate the development of large trees and reduce stand densities which would reduce the risk of a stand to fire, insects and disease. No commercial treatments are proposed in Northern spotted owl (NSO) high quality habitat nor within activity centers or within high value habitat within LSR. Ladder fuel reduction treatments proposed in high value NSO habitat (approximately 920 acres) would affect the lowest canopy layer and stands would remain overstocked and above the upper management zone density.

    To meet the need to improve fire management opportunities and provide for public and firefighter safety, this project proposes to treat approximately 16,800 acres of treatment to meet hazardous fuels reduction objectives.

    The Twin projects also proposes to: (a) Rehab dispersed sites that are causing resource damage; (b) enhance spawning gravel, address boat ramp erosion and improve accessible trails; (c) establish a buffer between developed and dispersed campsites; (d) remove trees showing signs of future failure within developed sites; and (e) close and decommissioning system roads and decommission user-created roads.

    Responsible Official

    The responsible official will be Kevin Larkin, District Ranger, Bend-Fort Rock Ranger District.

    Nature of Decision To Be Made

    The responsible official will consider how the proposed action meets the project's purpose and need, how public comments have been considered, and what the short and long term effects and benefits are to other resource areas.

    Scoping Process

    This notice of intent initiates the scoping process, which guides the development of the EIS. Public comments regading this proposal are requested in order to assist in identifying issues and opportunities associated with the proposal, how to best manage resources, and to focus the analysis. Those wishing to object must meet the requirements at 36 CFR 218.

    It is important that reviewers provide their comments at such times and in such manner that they are useful to the agency's preparation of the EIS. Therefore, comments should be provided prior to the close of the comment period and should clearly articulate the reviewer's concerns and contentions.

    Comments received in response to this solicitation, including names and addresses of those who comment, will be part of the public record for this proposed action. Comments submitted anonymously will be accepted and considered.

    Dated: May 9, 2018. Chris French, Associate Deputy Chief, National Forest System.
    [FR Doc. 2018-12313 Filed 6-7-18; 8:45 am] BILLING CODE 3411-15-P
    CIVIL RIGHTS COMMISSION Sunshine Act Meeting Notice AGENCY:

    United States Commission on Civil Rights.

    ACTION:

    Notice of Commission public business meeting.

    DATES:

    Friday, June 15, 2018, 12:00 p.m. EST.

    ADDRESSES:

    Place: National Place Building, 1331 Pennsylvania Ave. NW, 11th Floor, Suite 1150, Washington, DC 20425. (Entrance on F Street NW.)

    FOR FURTHER INFORMATION CONTACT:

    Brian Walch: (202) 376-8371; TTY: (202) 376-8116; [email protected]

    SUPPLEMENTARY INFORMATION:

    This business meeting is open to the public.

    There will also be a call-in line for individuals who desire to listen to the presentations: (888) 378-0320; Conference ID 7025358. The event will also live-stream at https://www.youtube.com/user/USCCR/videos. (Please note that streaming information is subject to change.) Persons with disabilities who need accommodation should contact Pamela Dunston at (202) 376-8105 or at [email protected] at least seven (7) business days before the scheduled date of the meeting.

    Meeting Agenda I. Approval of Agenda II. Business Meeting A. Speaker Series: “50 Years Later: Reflecting on the 1968 U.S. Commission on Civil Rights Hearings on the Civil Rights of Mexican-Americans” • J. Richard Avena, former director, U.S. Commission on Civil Rights' then-Field Office in San Antonio, Texas • Robert Brischetto, Ph.D., Founding Executive Director, Southwest Voter Research Institute • Candace de Leon-Zepeda, Ph.D., Chair of the Department of English, Mass Communications and Drama, Our Lady of the Lake University B. Discussion and Vote on Commission report: “An Examination of Excessive Force and Modern Policing Practices” C. Discussion and Vote on Commission Advisory Committee Chairs a. Carol Johnson, nominated to Chair the Arkansas Advisory Committee b. John Malcolm, nominated to Chair the District of Columbia Advisory Committee c. Nadine Smith, nominated to Chair the Florida Advisory Committee d. Melanie Vigil, nominated to Chair the Wyoming Advisory Committee D. Presentation by Minnesota Advisory Committee Chair Velma Korbel, on the recently released report, “Civil Rights and Policing Practices in Minnesota.” E. Presentation by New York Advisory Committee Chair Alexandra Korry, on the recently released report, “The Civil Rights Implications of `Broken Windows' Policing in NYC and General NYPD Accountability to the Public” F. Management and Operations • Staff Director's Report III. Adjourn Meeting Dated: June 5, 2018. Brian Walch, Director, Communications and Public Engagement.
    [FR Doc. 2018-12428 Filed 6-6-18; 11:15 am] BILLING CODE 6335-01-P
    DEPARTMENT OF COMMERCE Census Bureau Proposed Information Collection; Comment Request; 2020 Census AGENCY:

    U.S. Census Bureau, 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:

    To ensure consideration, written comments must be submitted on or before August 7, 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]). You may also submit comments, identified by Docket number USBC-2018-0005, to the Federal e-Rulemaking Portal: http://www.regulations.gov. All comments received are part of the public record. No comments will be posted to http://www.regulations.gov for public viewing until after the comment period has closed. Comments will generally be posted without change. All Personally Identifiable Information (for example, name and address) voluntarily submitted by the commenter may be publicly accessible. Do not submit Confidential Business Information or otherwise sensitive or protected information. You may submit attachments to electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file formats only.

    FOR FURTHER INFORMATION CONTACT:

    Requests for additional information or copies of the information collection instrument(s) and instructions should be directed to Robin A. Pennington, Rm. 2H465, U.S. Census Bureau, Decennial Census Management Division, Washington, DC 20233 or by email to [email protected]

    SUPPLEMENTARY INFORMATION: I. Abstract

    Article 1, Section 2 of the United States Constitution mandates that the U.S. House of Representatives be reapportioned every ten years after conducting a national census of all residents. In addition to the reapportionment of the U.S. Congress, Census data are used to draw legislative district boundaries. Census data also are used to determine funding allocations for the distribution of an estimated $675 billion of federal funds each year.

    The goal of the 2020 Census is to count everyone once, only once, and in the right place. From the 2020 Census data, the Census Bureau will produce the basic population totals by state for congressional apportionment, as mandated by the U.S. Constitution and Title 13, U.S. Code. Title 13 also provides for the confidentiality of responses. Anyone who handles census data swears an oath for life to keep those data confidential. Under Title 13, it is against the law to disclose confidential information or any information that could identify an individual respondent. The information the Census Bureau collects cannot be used for any reason except to produce statistics, and violations of Title 13 are punishable by fines and up to five years in prison.

    This clearance request covers the 50 states, the District of Columbia, the Commonwealth of Puerto Rico, federally affiliated persons overseas, and the Island Areas of American Samoa, the Commonwealth of the Northern Mariana Islands, Guam, and the United States Virgin Islands. The methods of data collection for the Federally Affiliated Count Overseas and the Island Areas Censuses are different from the data collections described throughout this document and will be described separately in sections specific to those operations.

    In compliance with Public Law 94-171, the Census Bureau will tabulate for each state the total population counts by race and Hispanic origin. The Census Bureau will tabulate these counts for the total population and for the population of 18 years of age and over. The Census Bureau intends to work with the National Conference of State Legislatures and other stakeholders to solicit feedback as to how the states would prefer to receive tabulations of citizenship data. If stakeholders such as the National Conference of State Legislatures elect to receive tabulations of citizenship data, the Census Bureau will make require a design change to include citizenship as part of the Public Law 94-171 Redistricting Data File. That new design plan would then be published in the Federal Register after the 2020 Census final design is completed in the summer of 2019. For the prototype and for the 2020 Census, the Census Bureau will provide these tabulations for a variety of standard census geographic areas including state, county, place, tract, and tabulation block. If states provide their congressional, legislative, and voting districts through the Redistricting Data Program, the Census Bureau will also provide the tabulations for these areas. The Census Bureau also will tabulate housing unit counts by occupancy status (occupied or vacant) and provide total population counts for group quarters by group quarters type for a select set of geography, including tabulation blocks. Tallies by congressional, legislative, and voting districts will be available for the 50 states; equivalent tallies will be available for the District of Columbia and the Commonwealth of Puerto Rico. Tallies for state, county, and place will be available for the Island Areas.

    The Census Bureau plans to conduct the most automated, modern, and dynamic decennial census in history. The 2020 Census includes design changes in four key areas:

    (1) New methodologies to conduct the Address Canvassing operation.

    (2) Innovative ways of optimizing self-response.

    (3) The use of administrative records and third-party data to reduce the Nonresponse Followup (NRFU) operation workload.

    (4) The use of technology to reduce the manual effort and improve the productivity of field operations, while decreasing the amount of physical space required to perform the field operations.

    To the extent that these innovations influence the collection of data from respondents in the 2020 Census, these innovations will be described below.

    (1) Reengineering Address Canvassing

    A complete and accurate address list is the cornerstone of a successful census. In order to conduct the decennial census and enumerate in the census all people at a location, the Census Bureau needs the address and physical location of each place where someone is, or could be, living. In other words, all living quarters need to be identified. The Census Bureau maintains an address list and spatial data for the United States and Puerto Rico in its Master Address File (MAF)/Topologically Integrated Geographic Encoding and Referencing (TIGER) System database. This database was created using the address files from the 1990 Census and has been subsequently and regularly updated using:

    • Information collected from decennial census operation updates, including address and spatial updates.

    • The Delivery Sequence File of addresses from the United States Postal Service (USPS).

    • Input from tribal, state, and local governments and third parties, including address and boundary updates.

    • Information collected in other Census Bureau programs, such as the American Community Survey.

    Type of Enumeration Areas

    Prior to the census, it is necessary to delineate all geographic areas included in the 2020 Census into Type of Enumeration Areas (TEAs). These TEAs describe what methodology will be used for census material delivery and household enumeration in order to use the most cost-effective enumeration approach for achieving maximum accuracy and completeness. For the United States and Puerto Rico, TEAs are delineated at the block level based on the address and spatial data in the MAF/TIGER database.

    The MAF/TIGER does not contain data for the Island Areas, so a separate TEA is designated for these areas. The TEAs designated for the 2020 Census are:

    • TEA 1 = Self-Response.

    • TEA 2 = Update Enumerate.

    • TEA 3 = Island Areas.

    • TEA 4 = Remote Alaska.

    • TEA 5 = Military.

    • TEA 6 = Update Leave.

    The most common enumeration method by percentage of households is self-response (TEA 1), where materials will be delivered to each address through the mail, and enumeration data is expected to be returned or submitted by a respondent. After the initial self-response phase, nonresponding households will be enumerated in the NRFU operation. Puerto Rico is designated as entirely Update Leave. These TEAs, programs, and operations will be described throughout this notice.

    Address Canvassing

    Address Canvassing is the process of validating and updating addresses in the MAF and spatial data in TIGER before the census in order to create the initial list of addresses to be enumerated in the census. All housing units, group quarters, and transitory locations need to be identified and located correctly on the map as recorded in TIGER. Group quarters are living quarters where people who are typically unrelated have group living arrangements and frequently are receiving some type of service. College/university student housing and nursing/skilled-nursing facilities are examples of group quarters. Transitory locations include recreational vehicle parks, campgrounds, racetracks, circuses, carnivals, marinas, hotels, and motels. People residing at transitory locations during the census are recorded as living in housing units located at transitory locations. Address Canvassing will not occur in Island Areas.

    For the 2020 Census, the Census Bureau is using In-Office Address Canvassing for the first time, in addition to In-Field Address Canvassing. This innovation involves the use of electronic sources for much of the validation and updating of MAF/TIGER. Since 2015, the Census Bureau has used analysis of satellite imagery to identify areas of the United States and Puerto Rico where changes in living quarters have occurred. In-Office Address Canvassing is the process of using empirical geographic evidence (e.g., imagery and comparison of the Census Bureau's address list to partner-provided lists) to assess the current address list. This process detects and identifies change using high-quality imagery, administrative data, and third-party sources to review and update the address last.

    However, the Census Bureau will still need to conduct In-Field Address Canvassing in order to update the address and spatial data for an estimated 30 percent of housing units in TEA 1. The Census Bureau will make a final determination on which areas will be canvassed using In-Field Address Canvassing by March 2019. Some In-Office Address Canvassing activities will continue improving the address list until March 2020. In-Field Address Canvassing is the only stage of Address Canvassing that involves collecting information from the general public. The associated response burden is detailed later in this notice.

    (2) Optimizing Self-Response

    The goal of this innovation area is to communicate the importance of the 2020 Census to the entire population of the 50 states, the District of Columbia, and Puerto Rico, in order to generate the largest possible self-response. Self-response reduces the need to conduct in-person follow-up operations to complete the enumeration. To that end, the Census Bureau will motivate people to respond, as well as make it easy for people to respond, from any location at any time.

    Internet Self-Response

    One major means of making it easier for people to respond is by providing an internet questionnaire and using mailings, questionnaire delivery, advertising, and publicity to tell the public about this option. Internet response represents a substantial innovation for the enterprise. The internet was not a response option in the 2010 Census. The internet response option has been included in multiple tests leading up to the 2020 Census: The 2014 Census Test; all three census tests performed in 2015; the 2016 Census Test; the 2017 Census Test; and the 2018 End-to-End Census Test.

    Based on results from these tests, response rates from prior censuses, and data from the American Community Survey and other surveys, the Census Bureau estimates that 45 percent of U.S. households in areas that receive mailouts of materials from the Census Bureau will respond via the internet before the initial NRFU workload is created. At the same time, the Census Bureau recognizes the need for alternate response modes to allow respondents to complete their 2020 Census questionnaire, including paper questionnaires as used in the past. Details about the contact strategy for mailed materials in TEA 1 will be discussed below. The Census Questionnaire Assistance operation, also described below, will provide the third mode of self-response. Overall, the Census Bureau estimates that 60.5 percent of households that receive mailouts or hand delivery of materials from the Census Bureau will self-respond in one of these three modes (i.e., internet, paper, telephone) prior to the beginning of NRFU activities.

    (3) Utilizing Administrative Records and Third-Party Data

    For the 2020 Census, “administrative records” and “third-party data” are terms used to describe micro data records contained in files collected and maintained by Federal, state, and local government agencies (“administrative records”) and commercial entities (“third-party data”) for administering programs and providing services. For many decades, the Census Bureau has successfully and securely used administrative records and third-party data for statistical purposes. For the 2020 Census, the Census Bureau intends to use administrative records from both internal sources, such as data from prior decennial censuses and the American Community Survey, and from a range of other Federal agencies, including the Internal Revenue Service (IRS), the Social Security Administration, the Centers for Medicare and Medicaid Services, the Department of Housing and Urban Development, the Indian Health Service, the Selective Service, and the U.S. Postal Service. The Census Bureau is also working to acquire state government administrative records from enrollment in Federal block grant programs, such as the U.S. Department of Agriculture's Supplemental Nutrition Assistance Program and the Special Supplemental Nutrition Program for Women, Infants, and Children. Finally, the Census Bureau is also utilizing commercial third-party data from organizations such as CoreLogic and the Veterans Service Group of Illinois.

    Throughout the decade, the Census Bureau continuously conducted analyses and assessments to verify that the proposed uses of administrative records and third-party data sources in the 2020 Census were appropriate in each instance. Based on this research, testing, and analyses, the Census Bureau announced its plans in November 2015 to utilize administrative records and third-party data in the 2020 Census. The 2020 Census Operational Plan calls for employing this information for the following purposes:

    1. Consistent with previous decennial censuses, the Census Bureau will utilize administrative records from federal and state government agencies and third-party data to refine contact strategies and build and update the residential address list.

    2. Also consistent with previous decennial censuses, the Census Bureau will utilize federal and state administrative records to edit or impute invalid, inconsistent, or missing responses.

    3. The new use of administrative records for the 2020 Census is to use data exclusively from federal administrative records to improve the accuracy and efficiency of NRFU operations by:

    a. Removing vacant housing units and nonresidential addresses from the NRFU workload.

    b. enumerating households that do not self-respond and whom we were unable to contact after six mailings and one in-person field visit.

    For each of the purposes listed in items 2, 3a and 3b, the Census Bureau uses or plans to use administrative data only when it can confirm empirically across multiple sources that the data are consistent, of high quality, and can be accurately applied to the addresses and households in question. The Census Bureau plans to enumerate households utilizing administrative records only from Federal government agencies, such as the Internal Revenue Service. Each of the nonresponding addresses will be evaluated under a strict set of Census Bureau rules throughout the process to ensure completeness and accuracy.

    Based on the research and tests conducted, the Census Bureau estimates that under the current operational plan Federal administrative records will be used to enumerate up to 6.5 million households of the projected total of approximately 60 million addresses that are expected to be the NRFU workload for the 2020 Census. These 6.5 million households represent less than five percent of the approximately 145 million addresses in the Census master address file. Where the Census Bureau does not have confidence in the data, such as when the data are inconsistent or missing in the Federal administrative records, the household will remain in the NRFU workload.

    (4) Reengineering Field Operations

    The final innovation area, “Reengineering Field Operations,” has a goal of using technology to manage the 2020 Census fieldwork efficiently and effectively, and as a result, reduce the staffing, infrastructure, and brick and mortar footprint for the 2020 Census. These changes to census field operations will not be apparent to respondents to any of the data collection operations.

    The 2020 Census Operations

    The set of 35 operations that constitute all processes that will occur in the course of the 2020 Census is described in the 2020 Census Operational Plan. In addition to the public-facing data collection operations, there are operations in the categories of support, Information Technology, infrastructure, data publication, and testing and evaluation. The sections below outline data collection operations in the 2020 Census along with some operations that directly support these data collection operations by producing materials for the 2020 Census.

    Some data collection operations that are included in the 2020 Census Operational Plan are not described in this notice. These were or will be described in separate notices because of timing, type of work, or other considerations: Local Update of Census Addresses (Federal Register Notices: 81 FR 42686; 81 FR 78109), Redistricting Data Program (Federal Register Notices: 80 FR 40993; 80 FR 62015), Integrated Partnership and Communications (Federal Register Notice: 82 FR 38875), Evaluations and Experiments, and Count Question Resolution. In addition, all Coverage Measurement field operations, which result in an independent estimate of the coverage of the census, will be handled through separate Federal Register Notices.

    Final plans for each of these operations could receive minor updates or other changes as a result of lessons learned during the 2018 End-to-End Census Test, further systems testing, or other input received from stakeholders after the date of this posting. Consistent with the Paperwork Reduction Act of 1995 procedures, shortly after the 60-day comment period for this Notice ends, a 30-day Federal Register Notice of a pending information collection will provide the latest information on plans for every data collection operation in the 2020 Census and provide an additional opportunity for the public to comment.

    The Content and Forms Design and the Language Services operations for the 2020 Census are essential to data collection because they involve the development and translation of materials used with respondents. These two operations are described below to set the stage for the discussion of the remaining 2020 Census data collection operations.

    (A) Content and Forms Design

    The Census Bureau submitted the subjects planned for the 2020 Census to Congress on March 28, 2017, and the questions planned for the 2020 Census on March 29, 2018. The proposed questions for the 2020 Census questionnaire include age, citizenship, Hispanic origin, race, relationship, sex, and tenure.

    (B) Language Services

    Individuals of Limited English Proficiency require language assistance in order to complete their census questionnaires. The Census Bureau has identified the largest Limited English Proficiency populations in the United States using American Community Survey data and has established a program for providing non-English materials for the decennial census. Internet Self-Response and Census Questionnaire Assistance will be available in 12 non-English languages. Paper questionnaires, mailing materials, field data collection instruments, and field data collection materials will be available in English and Spanish. There will be additional support materials in 59 non-English languages.

    (C) Address Canvassing

    The purpose of address canvassing is (1) to deliver a complete and accurate address list and spatial database for enumeration and tabulation, and (2) to determine the type and address characteristics for each living quarter. Address canvassing consists of two major components: In-Office Address Canvassing and In-Field Address Canvassing. Only the latter component involves collection of information from residents at their living quarters.

    For the 2010 Census, the Address Canvassing field staff, referred to as listers, traversed almost every block in the nation to compare what they observed on the ground with the contents of the Census Bureau's address list. Listers verified or corrected addresses that were on the list, added new addresses to the list, and deleted addresses that no longer existed. Listers also collected map spot locations (i.e., Global Positioning System coordinates) for each structure and added new streets.

    The Census Bureau has determined that for the 2020 Census there will be a full Address Canvassing that will consist of In-Office Address Canvassing complemented with In-Field Address Canvassing. In-Office Address Canvassing is the process of using empirical geographic evidence (e.g., imagery, comparison of the Census Bureau's address list to partner-provided lists) to assess the current address list and make changes where necessary. This component detects and captures areas of change from high quality administrative records and third-party data. Advancements in technology have enabled continual address and spatial updates to occur throughout the decade as part of the In-Office Address Canvassing effort.

    Areas not resolved in the office become the universe of geographic areas worked during In-Field Address Canvassing. In the In-Field Address Canvassing, an extract of addresses from the MAF is created, and this address list is verified and updated, as needed. Listers will knock on doors at every structure in the assignment in an attempt to locate living quarters and classify each living quarter as a housing unit, group quarter, or transitory location. If someone answers, the lister will provide a Confidentiality Notice and ask about the address in order to verify or update the information, as appropriate. The listers will then ask if there are any additional living quarters in the structure or on the property. If there are additional living quarters, the listers will collect/update that information, as appropriate. In addition, there will be a check on the quality of the address listing work on approximately 20 percent of the housing unit workload.

    (D) Forms Printing and Distribution

    The Forms Printing and Distribution operation involves the printing and distribution of the following paper forms:

    • internet invitation letters.

    • Reminder cards and letters.

    • Questionnaire mailing packages.

    • Materials for other special operations, as required.

    Every address record will be identified by an ID, which will be printed on questionnaires and letters and used for tracking for responses. Paper questionnaires and responses from field operations will be linked to the ID in data capture. Internet and telephone respondents will be requested but not required to provide the ID. When an ID is not provided, these will be considered Non-ID responses. The Non-ID operation is discussed below. (E) Internet Self-Response

    The internet Self-Response operation performs the following functions:

    • Maximize online response to the 2020 Census through contact strategies and improved access for respondents.

    • Collect response data through the internet to reduce paper and the NRFU universe.

    Contact Strategies for Mailing Materials

    “Contact strategies for mailing materials” refers to all attempts by the Census Bureau to make direct contact with individual households by mail. Types of contact strategies include invitation letters, postcards, and questionnaires mailed to households.

    A primary objective of the 2020 Census is for a majority of self-respondents to complete their census questionnaire online. To that end, the Census Bureau will use an approach called “Internet First,” in which the first mailing includes an invitation to respond to the census online.

    In areas with low internet coverage or connectivity or other characteristics that may make it less likely that respondents will complete the census questionnaire online, the Census Bureau will employ an “internet Choice” contact strategy. In this approach, the first mailing includes both an invitation to complete the census online and a paper questionnaire. The Census Bureau anticipates about 20 percent of the households in TEA 1 will receive the internet Choice treatment. While all nonresponding households in the internet First areas will eventually receive a paper questionnaire—in the fourth mailing—households in internet Choice areas will receive a paper questionnaire in the first mailing, and again in the fourth mailing if they have not yet responded. Both mailing strategies have the objective of maximizing self-response to the 2020 Census, thereby minimizing NRFU.

    The contact strategies for mailing materials in TEA 1 are outlined in table form:

    Mailing materials treatment Mailing 1 Mailing 2 Mailing 3 * Mailing 4 * Mailing 5 * Internet First Letter with internet invitation Reminder letter Reminder postcard Questionnaire with letter with internet option “It's Not Too Late” postcard. Internet Choice Questionnaire with letter with internet option Reminder letter Reminder postcard Questionnaire with letter with internet option “It's Not Too Late” postcard. * Targeted only to nonrespondents. Internet Self-Response Instrument

    The internet self-response instrument and all related support systems will be designed to handle the volume of responses that are expected to be received by internet in the 2020 Census. It is imperative that the application and systems service the scale of the operation in order to ensure that users do not experience delays while completing the survey or unavailability of the application. In addition, the internet application and other associated systems will be developed to adhere to the highest standards of data security in order to ensure that all respondent data are secure and confidential.

    (F) Census Questionnaire Assistance

    The Census Questionnaire Assistance operation has three primary functions:

    • Answer respondent questions about specific items on the census questionnaire or other frequently asked questions about the census.

    • Provide an option for respondents to complete a census interview over the telephone.

    • Provide outbound calling in support of NRFU Reinterview and Coverage Improvement (discussed in the NRFU section below).

    Respondents using the internet instrument will have the ability to contact Census Questionnaire Assistance by telephone when web-based self-service help tools cannot answer their questions. Each of the 13 supported languages, including English, will have its own toll-free number for callers. Respondents calling the English and Spanish language lines are presented with a self-service Interactive Voice Response system, offering an assortment of automated responses to Frequently Asked Questions information. At any time, respondents may opt to transfer to a customer service representative, who is prepared to further assist and enumerate them. All callers who need assistance in other languages will be connected directly to an appropriately-skilled Customer Service Representative fluent in the language, based on the toll-free number called.

    (G) Update Leave

    The Update Leave operation is designed to occur in areas where the majority of housing units either do not have mail delivered to the physical location of the housing unit or the mail delivery information for the housing unit cannot be verified. Update Leave can occur in geographic areas that:

    • Do not have city-style addresses.

    • Do not receive mail through city-style addresses.

    • Receive mail at post office boxes.

    • Have been affected by major disasters.

    These areas will not be included in the In-Field Address Canvassing but will be worked within the In-Office Address Canvassing. The purpose of the Update Leave operation is to update the address and feature data for the area assigned and to leave an internet Choice questionnaire package at every housing unit identified to allow the household to self-respond. Enumerators do not attempt to enumerate the household in person when they leave the questionnaire.

    Occupants can respond online, using the ID printed on the questionnaire, or they can fill out and mail back the paper questionnaire. If they have questions or wish to respond on the telephone, they can call Census Questionnaire Assistance, using the contact information provided in the package.

    The Update Leave operation includes mailing a reminder letter and a reminder postcard to addresses that are capable of receiving mail within the areas designated for Update Leave. These mailed materials include the ID for the given address and the website address for the household to use in order to respond online. As in TEA 1, any households that do not self-respond will be contacted during the NRFU operation.

    Finally, the Update Leave operation performs a check on the quality of the address listing work (quality control [QC]) on approximately 5 percent of the production workload.

    (H) Update Enumerate

    The Update Enumerate operation is designated to occur in areas where the initial visit requires enumerating at the living quarters while updating the address list. The majority of the operation will occur in remote geographic areas that have unique challenges associated with accessibility. Update Enumerate can occur in the following geographic areas:

    • Remote Alaska.

    • Areas that were a part of the 2010 Census Remote Update Enumerate operation, such as northern parts of Maine and southeast Alaska.

    • Select American Indian areas that request to be enumerated in person during the initial visit.

    Note that the areas included in the 2010 Census Remote Update Enumerate operation might be delineated into TEA 1 or TEA 6 for the 2020 Census, based on changes in address type or mailability.

    In the Update Enumerate operation, field staff update the address and feature data and enumerate respondents in person. The address and feature data are updated on paper address registers and paper maps. The enumeration is collected on paper questionnaires. Field staff conducting Update Enumerate follow a specific contact strategy for the remote locations and conduct any needed follow-up. The Update Enumerate operation performs a check on the quality of the address work (listing QC) on approximately 10 percent of the listing workload and a check on the quality of the enumeration data through a telephone reinterview on approximately 5 percent of the enumeration workload.

    All completed questionnaires, address registers, and maps are delivered or shipped back to the area census office and then sent to a processing center for data capture, keying, and digitizing.

    (I) Paper Data Capture

    The Paper Data Capture operation captures and converts data from 2020 Census paper questionnaires. Core workloads for the Paper Data Capture operation include self-response questionnaires mailed back by respondents and Group Quarters Individual Census Reports. The Census Bureau's in-house Integrated Computer Assisted Data Entry system is used to capture paper responses from questionnaires. Each write-in and checkbox data field is data-captured, and Optical Character Recognition and Optical Mark Recognition are performed. If Key From Image is needed for forms that cannot be processed through Optical Character Recognition or Optical Mark Recognition, staff are presented the image of the page and are able to clarify, correct, or add to what was captured. The Census Bureau maintains the data, images of the forms, and the paper forms themselves until confirmation that the data have been correctly captured, at which point the paper forms are sent to destruction while the data and images are retained. The Census Bureau maintains the images for archiving purposes until such time as the National Archiving and Records Administration takes possession of the images for permanent archiving.

    (J) Non-ID Processing

    For the 2020 Census, respondents will be encouraged, but not required, to use the Census Bureau's preassigned ID for the living quarters. Within the internet instrument, and, consequently, within Census Questionnaire Assistance, it will be possible for respondents to submit the census response without the preassigned ID. Non-ID Processing is the effort to associate census responses that lack a Census ID with records included on the Census Bureau's 2020 Census address frame. This processing can occur through automated or clerical procedures. With the internet Self-Response instrument collecting the response and address data, it will be possible to perform automated processing to determine whether the address was already included on the address frame and extracted from the MAF. For those Non-ID responses not matched during automated processing, a clerical operation will make a further attempt to match the address to the 2020 Census address frame and validate nonmatching addresses. Some of the clerical work may require contacting the respondent to help determine a match or to verify the existence and location of the address; this is known as Non-ID Processing Phone Followup. Any nonmatching address whose existence and location cannot be verified by the clerical Non-ID operation will become a Field Verification assignment, handled as a component of the NRFU operation. Notably, Field Verification is only an address verification effort and does not include collection of the census questionnaire data.

    (K) Nonresponse Followup

    The 2020 Census NRFU operation will be different from the NRFU operation conducted in the 2010 Census. The Census Bureau will implement a NRFU operational design that utilizes a combination of the following:

    • Administrative records and third-party data usage to reduce the workload.

    • Reengineering of staffing and management of field operations.

    • A Best-Time-to-Contact model to increase the likelihood of making contact attempts when an enumerator will find people at home.

    • Automation to facilitate data collection.

    The NRFU workload is comprised of addresses from a number of sources, including:

    • Nonresponding addresses in the self-response and Update Leave TEAs.

    • Blank mail returns or mail returns otherwise deemed to be too incomplete.

    • Addresses considered to represent recently completed housing identified from the spring 2020 USPS Delivery Sequence File and other special efforts undertaken to identify new housing around the time of the census known as New Construction and Housing Unit Count Review; addresses upheld in the Local Update of Census Addresses appeals process; potentially other addresses determined to require follow-up after the initial enumeration universe is established.

    • Addresses with a vacant status reported from internet Self-Response.

    • Field Verification cases.

    • Coverage Improvement cases (described below).

    • Response Re-collect cases (described below).

    After giving the population in the United States and Puerto Rico an opportunity to self-respond to the 2020 Census, the Census Bureau will use the most cost-effective strategy for contacting and counting people to ensure an accurate count. Once the households that did not respond through internet, telephone, or paper are known, administrative records will be used to identify vacant addresses and addresses that do not exist in order to reduce the workload of addresses that NRFU enumerators will visit. Undeliverable-as-Addressed information from the USPS will provide the primary administrative records source for the identification of vacant addresses and addresses that do not exist.

    During the NRFU operation, enumerators will visit each housing unit designated for follow-up, determine the occupancy status of the unit on April 1, 2020, and complete an interview using an automated application on a smartphone. Various techniques will be used during NRFU to make the data collection as efficient as possible. The number of allowed attempts to contact is controlled within the automated instrument, and best-time-to-contact modeling is used in the creation of the daily assignments. Every case in the NRFU workload will have a maximum of six unique contact days and 12 proxy attempts. After a third attempt to contact a household does not yield a respondent, a case will become proxy-eligible. A proxy is a neighbor, landlord, real estate agent, or other knowledgeable person who can provide information about the unit and the people who live there. An enumerator should attempt three proxies after each noninterview for a proxy-eligible case. Addresses will also be removed from the workload throughout the course of the NRFU operation as self-responses are received.

    Administrative Records

    If the initial in-person contact attempt is unsuccessful, the Census Bureau will use administrative records as the household response data when it: (1) Believes that the address is occupied, and (2) has high-quality administrative records. These include records such as from the Internal Revenue Service, the Social Security Administration, and the Centers for Medicare and Medicaid Services, as well as prior censuses and the American Community Survey.

    Addresses found to be “administrative records vacant” or “administrative records nonexistent” will be removed from the NRFU workload and will immediately be mailed a final postcard that encourages occupants to self-respond to the 2020 Census. Addresses that are determined to be “administrative records occupied” and for which enumeration is incomplete after one in-person visit attempt will be mailed a final postcard encouraging self-response after seven days.

    NRFU Reinterview program

    The NRFU Reinterview program will check the quality of the work done by enumerators in NRFU. A sample of approximately 5 percent of NRFU interviews will be selected for verification through NRFU Reinterview. All cases that are sampled for the program and have a valid phone number will initially be subject to a reinterview attempt by a Census Questionnaire Assistance customer service representative to verify that an enumerator conducted the interview and followed procedures. NRFU Reinterview cases that cannot be completed via telephone will be sent to the field for personal visit reinterviews. The customer service representative or enumerator working a NRFU Reinterview case always attempts to contact the respondent from the original interview, which may be a household member, neighbor, or some other proxy. If the original respondent confirms that he/she was contacted and an enumerator conducted the original interview, the customer service representative or enumerator collects roster names and ends the interview. If the respondent was not contacted or does not know if an enumerator conducted the original interview, the customer service representative or enumerator conducts a full interview with the respondent.

    Manager Visit

    During the early weeks of NRFU, enumerators will conduct interviews with multiunit structure managers to determine the occupancy status of nonresponding units within the multiunit structure. This Manager Visit allows enumerators to identify several units as vacant or delete without having to attempt each unit individually. Enumerators have a maximum of two unique contact days to complete the Manager Visit cases. The Manager Visit Reinterview program will check the quality of work done by enumerators during the Manager Visit and will target enumerators with high numbers of vacant and delete unit statuses. During this Manager Visit Reinterview check, the enumerator will ask to speak to the manager from the original Manager Visit interview. If the respondent confirms that he/she was contacted and an enumerator conducted the original interview, the Manager Visit Reinterview enumerator asks about a subset of the list checked during the Manager Visit. If the respondent was not contacted or does not know if an enumerator conducted the original interview, the enumerator conducts a full interview and review the entire list of nonresponding units within the multiunit structure.

    Field Verification

    The NRFU universe also includes cases from Non-ID Processing that were not able to be matched to the address frame. As discussed in the Non-ID section, these are Field Verification cases, where the enumerators attempt to locate the address in question and collect its Global Positioning System (GPS) coordinates. A sample of the Field Verification cases is selected for verification through Field Verification Quality Control. Since Field Verification cases only require an enumerator to determine the existence of an address and will not require an interview with a respondent, this Field Verification Quality Control program will consist of an independent check of the production enumerator's work in the field. The Field Verification Quality Control enumerator will conduct the same procedures as the Field Verification enumerator. Field Verification cases, along with their quality control component, have a maximum of one field contact day.

    Coverage Improvement

    The Coverage Improvement operation improves the enumeration count by resolving categories of erroneous enumerations (people counted in the wrong place or counted more than once) and omissions (people who were missed) identified through collected enumeration data. The Coverage Improvement operation will attempt to resolve these issues identified from both self-response and NRFU questionnaires. The issues identified for the Coverage Improvement operation will be: Where a household enumeration shows a difference between the answer for the number of people within the household and the number of people enumerated, and answers to coverage questions in the initial enumeration that reflect potential coverage errors. Both of these types of cases could result in either erroneous enumerations or omissions. Automation and the internet self-response option will use various edit checks when these inconsistencies arise, which should reduce the prevalence of these types of respondent errors compared to the 2010 Census, which was completed almost entirely on paper questionnaires. All cases that are selected for Coverage Improvement with a valid phone number will be subject to an interview attempt by a Census Questionnaire Assistance customer service representative.

    Response re-collect cases are generated as part of the quality assurance efforts for self-response and will be worked within NRFU.

    (L) Group Quarters

    The 2020 Census Group Quarters operation will enumerate people living or staying in group quarters and provide an opportunity for people experiencing homelessness and receiving service at a service-based location, such as a soup kitchen, to be counted in the census.

    The 2020 Census Group Quarters operation consists of the following components:

    • In-Office Group Quarters Advance Contact.

    • Group Quarters Enumeration.

    • Service-Based Enumeration.

    • Military Enumeration.

    • Maritime Vessel (Shipboard) Enumeration.

    The In-Office Group Quarters Advance Contact is an in-office activity conducted in the area census offices in which the group quarters name, address, contact name, and phone number from the address list that results from Address Canvassing will be verified. Preferred dates, times, methods of enumeration, and expected population on Census Day will be collected as well. Special instructions or concerns related to privacy, confidentiality, and security will also be addressed.

    The Group Quarters enumeration will cover all 50 states, the District of Columbia, and Puerto Rico. This enumeration at group quarters occurs in approximately the same timeframe as the household enumeration operations. An additional late group quarters enumeration phase allows for the stakeholder identification and enumeration of group quarters that may have been missed during the earlier timeframe. The primary method of conducting in-person enumeration of people residing in group quarters will be by using the Individual Census Questionnaire as the paper data collection instrument. In-person interviewing is planned for all group quarter types that are part of the field enumeration workload.

    Group Quarters Enumeration—eResponse Data Transfer

    eResponse uses electronic data transfer from group quarter administrators to the Census Bureau. Client-level data from systems maintained by group quarter administrators can be transferred to a standardized Census Bureau system that will accept electronically submitted data in a standardized template. These data will be accepted in lieu of use of the Individual Census Questionnaire if data are deemed to be of sufficiently high quality and completeness.

    Service-Based Enumeration

    The Service-Based Enumeration is specifically designed to approach people using service facilities because they may be missed during the traditional enumeration of housing units and group quarters. These service locations and outdoor locations include the following:

    • Shelters: Shelters with sleeping facilities for people experiencing homelessness; shelters for children who are runaways, neglected, or experiencing homelessness.

    • Soup kitchens.

    • Regularly-scheduled mobile food vans: Stops where regularly scheduled mobile food vans distribute meals.

    • Targeted non-sheltered outdoor locations.

    For the 2020 Census, Service-Based Enumeration will be conducted over the three-day period that ends on April 1, 2020, Census Day. Service providers for shelters, soup kitchens, and regularly-scheduled mobile food vans will be given the flexibility for their facility to be enumerated on any one of the three days. Targeted non-sheltered outdoor locations will be enumerated April 1, 2020.

    Domestic Violence Shelters

    Domestic Violence Shelters are facilities for those seeking safety from domestic violence. As in previous censuses, the enumeration of individuals at Domestic Violence Shelters will be handled by personnel specially trained to protect the safety and security of respondents being enumerated at these locations.

    Military Enumeration

    Military Enumeration involves enumeration of people living in group quarters (or barracks) on domestic military installations or military vessels. Military installations are fenced, secured areas used for military purposes. An important feature of the military enumeration operation is that it includes both group quarters and housing units. Privatized housing on military installations will be enumerated as part of the housing unit data collection operations rather than through Military Enumeration. A military vessel is defined as a United States Navy or United States Coast Guard vessel assigned to a home port in the United States. In order to support the military's security requirements, military Group Quarters Enumeration will occur by means of electronic data transfer from the Defense Manpower Data Center to the Census Bureau.

    (M) Enumeration at Transitory Locations

    The 2020 Census Enumeration at Transitory Locations operation enumerates those individuals in occupied units at transitory locations who do not have a usual home elsewhere. This operation will:

    • Use automation, where possible, to facilitate data collection and streamline operations such as advance contact. However, data collection will be done using paper.

    • Use reengineered staffing and management of the field operation.

    • Use in-person enumeration as the primary mode of data collection.

    (N) Federally Affiliated Count Overseas

    The Federally Affiliated Count Overseas operation obtains counts by home state of United States military and federal civilian employees who are stationed or assigned overseas and their dependents living with them. For the 2020 Census, overseas is defined as anywhere outside the 50 states, the District of Columbia, Puerto Rico, and the Island Areas: American Samoa, Commonwealth of the Northern Mariana Islands, Guam, and the United States Virgin Islands. Counts are submitted from Federal agencies and the Department of Defense (Defense Manpower Data Command) through a Census Bureau secure server and are used to allocate the federally affiliated population living overseas to their home state for the purposes of apportioning seats in the U.S. House of Representatives. If military and federal civilian employees of the U.S. government are deployed overseas while stationed or assigned within the U.S., they are counted at their U.S. residence where they live or sleep most of the time using administrative data provided by Federal agencies and the Department of Defense.

    (O) Island Areas Censuses

    The Census Bureau will conduct the 2020 Island Areas Censuses through partnerships with local government agencies in American Samoa, Commonwealth of the Northern Mariana Islands, Guam, and the United States Virgin Islands. The Census Bureau will provide the materials and guidance to the local government agencies that are then responsible for recruiting and hiring local staff to conduct the data collection phase through in-person enumeration.

    The Island Areas Censuses questionnaire leverages the American Community Survey questionnaire with minor wording changes. These changes include accommodating time reference differences and incorporating the final 2020 Census questions while taking into account the Island Areas local governments' concerns, where possible. All data collection activities will rely on the use of paper questionnaires, paper maps, and paper address registers to record the physical addresses of housing units and group quarters. The MAF does not include addresses for the Island Areas, so the address registers become the address list for the Island Areas Censuses. Once the addresses have been listed, enumerators will visit every living quarter to conduct interviews with household members and follow up as necessary. The Census Offices conduct two quality control operations: (1) Reinterview for a sample of questionnaires, and (2) independent address check. The Census Offices also conduct a clerical review of all completed questionnaires for completeness and data consistency.

    After the Island Areas Censuses collects the detailed demographic and housing data, the data will be processed through the Decennial Response Processing System. Data products will include counts of the population and housing units, data profiles, subject tables, ranking tables, and supplemental tables.

    II. Method of Collection

    Data collection operations result in respondent burden from: (1) Contacts during the address frame-building process, and (2) contacts during enumeration for the 2020 Census.

    The frame-building operation in the field that can result in respondent burden is In-Field Address Canvassing. In-Field Address Canvassing is the process of having listers visit specific geographic areas to identify every place where people could live or stay and compare what they see on the ground with the existing census address list and either verify or correct the address and location information. Listers will knock on doors at every structure in the assignment in an attempt to locate living quarters. The Census Bureau expects that listers will make contact with residents (i.e., someone is at home) approximately 25 percent of the time, based on previous address list development field operations.

    The second component of respondent burden is the census enumeration operations. This consists of multiple operations that in combination serve the purpose of reaching all residents for the purposes of the enumeration in the census. All attempts by the Census Bureau to make direct contact in TEAs 1 and 6 with individual households by mail for enumeration are referred to as “contact strategies for mailing materials.” Types of contact strategies for mailing materials include invitation letters, postcards, and questionnaires mailed to households.

    The “Internet First” approach was developed to encourage respondents to use the internet. Currently, this model includes the mailing of a letter inviting respondents to complete the questionnaire online, two follow-up reminders and, if necessary, a mailed paper questionnaire followed by a final reminder (or two reminders to certain Administrative Records cases). All correspondence will contain a telephone number that respondents may use to complete the questionnaire over the telephone.

    The “Internet Choice” contact strategy will be used for the estimated 20 percent of households that have low internet coverage or connectivity or other characteristics that may make it less likely the respondents will complete the census questionnaire online. This strategy includes both an invitation to complete the census online and a paper questionnaire as part of the first mailing.

    For those housing unit addresses in TEAs 1 and 6 for which no self-response is received, the NRFU operation will be used to collect the household data. NRFU will use an automated instrument during data collection. Additional follow-up activities to improve and check quality will be included within the Census Questionnaire Assistance call center and NRFU workloads. All cases that are sampled for NRFU reinterview with a valid phone number will initially be subject to a reinterview attempt by a Census Questionnaire Assistance customer service representative. NRFU reinterview cases that cannot be completed via telephone will be sent to the field for personal visit reinterviews.

    The NRFU reinterview program will check the quality of the work done by enumerators in NRFU. The NRFU reinterview program involves conducting an independent reinterview for selected cases to verify that an enumerator conducted the interview and followed procedures, as described above. During the early weeks of NRFU, enumerators will conduct interviews with multiunit structure managers to determine the occupancy status of nonresponding units within the multiunit structure, as described above. The NRFU universe also includes cases from Non-ID Processing that were not able to be matched to the address frame. As discussed above, these are Field Verification cases, where the enumerators attempt to locate the address in question and collect its GPS coordinates.

    The Coverage Improvement operation resolves categories of erroneous enumerations (people counted in the wrong place or counted more than once) and omissions (people who were missed) identified through collected enumeration data. The Coverage Improvement operation will attempt to resolve these issues from both self-response and NRFU questionnaires.

    In summary, a census address list is the basis for the census enumeration. Some of the work to create the address list will occur in In-Field Address Canvassing, which will incur respondent burden. Using a post-Address Canvassing extract of the MAF, census materials will be provided to or for all living quarters according the TEA designated for the area and the operation designated for the living quarters type. Self-response modes for housing units include internet, paper questionnaires, and telephone. Response modes for group quarters include paper questionnaires and electronic file transfers. Special operations will be implemented to collect data at identified transitory units and service-based locations. The various follow-up, QC, and coverage improvement operations will also incur respondent burden. In addition, the Island Areas Censuses and Federally Affiliated Count Overseas operations enumerate the populations covered by those definitions, through the processes described above.

    III. Data OMB Control Number: 0607-XXXX Form Number(s): D-LF1 D-LF1(E/S) D-Q D-Q(E/S) D-Q-UL D-Q-UL(E/S) D-Q-TL D-Q-TL(S) D-CQ-TL D-CQ-TL(S) D-Q-FA D-Q-UE D-CQ-UE D-Q-TLUE D-CQ-TLUE D-Q-UERA D-CQ-UERA D-Q-TLRA D-CQ-TLRA D-Q-GERA D-Q-MV D-Q-PR(E/S) D-Q-GEPR(S) D-Q-ULPR(E/S) D-Q-TLPR(S) D-CQ-TLPR(S) D-Q-AS D-Q-MI D-Q-G D-Q-VI D-Q-VI(S) D-CQ-AS D-CQ-MI D-CQ-G D-CQ-VI D-CQ-VI(S) D-Q-GE-AS D-Q-GE-MI D-Q-GE-G D-Q-GE-VI D-Q-GE-VI(S)

    Type of Review: Regular submission.

    Affected Public: Households/Individuals.

    Estimated Number of Respondents: 178,202,534.

    Estimated Time per Response: 6.77 minutes.

    2020 Census Operation or category Estimated number
  • of respondents
  • Estimated time
  • per response
  • (minutes)
  • Total burden
  • hours
  • Address Canvassing 12,210,150 5 1,017,513 Address Canvassing Listing QC 2,442,030 5 203,503 Geographic Areas Focused on Self-Response (this includes Mailout and Update Leave): Internet/Telephone/Paper 80,700,000 10 13,450,000 Update Leave 11,900,000 5 991,667 Update Leave QC 1,190,000 5 99,167 Nonresponse Followup 52,700,000 10 8,783,333 Nonresponse Followup Reinterview 2,760,000 5 230,000 Re-collect 250,000 10 41,667 Field Verification 400,000 2 13,333 Coverage Improvement 3,200,000 7 376,471 Non-ID Processing Phone Followup 750,000 5 62,500 Self-Response Areas Subtotal 148,060,000 24,048,138 Geographic Area Focused on Update Enumerate: Update Enumerate Production 506,000 12 101,200 Update Enumerate Listing QC 50,600 5 4,217 Update Enumerate Reinterview 25,300 10 4,217 Update Enumerate Subtotal 581,900 109,634 Group Quarters (GQ): GQ Advance Contact (facility) 297,000 10 49,500 GQ Enumeration—eResponse (facility) 14,300 20 4,767 GQ Enumeration—person contact 8,000,000 5 666,667 Group Quarters QC 8,500 5 708 Group Quarters Subtotal 8,319,800 721,642 Enumeration at Transitory Locations—Advance Contact 50,000 10 8,333 Enumeration at Transitory Locations—Units 600,000 10 100,000 Island Areas Censuses—Housing Units 138,281 40 92,187 Island Areas Censuses—Group Quarters 10,291 30 5,146 Federally Affiliated Count Overseas 82 5 7 Totals 178,202,534 6.77 26,306,103

    Estimated Total Annual Burden Hours: 26,306,103 hours.

    Estimated Total Annual Cost to Public: $0 (This is not the cost of respondents' time, but the indirect costs respondents may incur for such things as purchases of specialized software or hardware needed to report, or expenditures for accounting or records maintenance services required specifically by the collection.)

    Respondent's Obligation: Mandatory.

    Legal Authority: Title 13 U.S.C. Section 141.

    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. 2018-12365 Filed 6-7-18; 8:45 am] BILLING CODE 3510-07-P
    DEPARTMENT OF COMMERCE Bureau of the Census [Docket Number 180402335-8335-01] Annual Business Survey AGENCY:

    Bureau of the Census, Department of Commerce.

    ACTION:

    Notice of determination.

    SUMMARY:

    Notice is hereby given that the Bureau of the Census (Census Bureau) has determined that it is conducting the Annual Business Survey (ABS) of domestic nonfarm employer businesses in 2018. We have determined that data to be collected in this survey are needed to aid the efficient performance of essential governmental functions and have significant application to the needs of the public and industry. The ABS will provide the only comprehensive federal data on owner demographics and business characteristics, including financing research and development (for microbusinesses), and innovation. The data derived from this survey are not publicly available from nongovernmental or other governmental sources.

    ADDRESSES:

    The Census Bureau will make the reporting instructions available to the organizations included in the survey. Additional copies are available upon written request to the Director, 4600 Silver Hill Road, U.S. Census Bureau, Washington, DC 20233-0101.

    FOR FURTHER INFORMATION CONTACT:

    Nick Orsini, Assistant Director for Economic Programs, U.S. Census Bureau, 5H160, Washington, DC 20233, Telephone: 301-763-2558; Email: [email protected]

    SUPPLEMENTARY INFORMATION:

    In an effort to improve the measurement of business dynamics in the United States, the Census Bureau, with support from the National Science Foundation (NSF), plans to conduct the Annual Business Survey (ABS). The ABS is a new survey designed to combine Census Bureau firm-level survey collections to reduce respondent burden and simultaneously increase data quality and operational efficiencies. The ABS replaces the following collections: The five-year Survey of Business Owners (SBO) (Office of Management and Budget (OMB) control number 0607-0943) for employer businesses; the Annual Survey of Entrepreneurs (ASE) (OMB control number 0607-0986); and the Business Research and Development and Innovation for Microbusinesses (BRDI-M) form, a component of the Business Research and Development and Innovation Survey, BRDI-S (OMB control number 0607-0912). The ABS also replaces the innovation questions, formerly asked in the BRDI-S.

    ABS estimates will include the number of employer firms and their sales/receipts, annual payroll, and employment by gender, ethnicity, race, and veteran status as well as research and development and innovation and various other relevant topics. The ABS will be conducted jointly by the Census Bureau and the National Center for Science and Engineering Statistics within the NSF. It is planned for five reference years (2017-2021). Title 13, United States Code (U.S.C.), Sections 8(b), 131, and 182, Title 42, U.S.C, Sections 1861-1875 (National Science Foundation Act of 1950, as amended), and Section 505 of the America COMPETES Reauthorization Act of 2010 (42 U.S.C. 1862p) authorize this collection. Sections 224 and 225 of Title 13, U.S.C., require responses from sampled firms.

    The ABS covers all domestic nonfarm employer businesses filing Internal Revenue Service tax forms as individual proprietorships, partnerships, or any type of corporation, and with receipts of $1,000 or more. The ABS will sample approximately 850,000 employer businesses for the benchmark survey year 2017, with data collection taking place in 2018. Annually for survey years 2018 to 2021, the survey sample will be reduced to approximately 300,000 employer businesses to reduce the burden on the respondents. The Census Bureau will use administrative data to estimate the owner demographics such that each firm is placed into one of nine frames for sampling: American Indian, Asian, Black or African American, Hispanic, Non-Hispanic White Men, Native Hawaiian and Other Pacific Islander, Some Other Race, Publicly Owned Businesses, and Women Owned Businesses. The sample would be stratified by state, industry, and frame. The Census Bureau will select companies with certainty based on volume of sales, payroll, number of paid employees or industry classification. All certainty cases are sure to be selected and represent only themselves.

    The ABS will provide continuing and timely national statistical data for the period between economic censuses. The data collected will be within the general scope and nature of those inquiries covered in the economic census. The next economic census is being conducted currently for the reference year 2017. Government program officials, industry organization leaders, economic and social analysts, business entrepreneurs, and domestic and foreign researcher in academia, business, and government will use statistics from the new ABS. More details on expected uses of the statistics from the new ABS are found in the Notice of Consideration for the ABS published in the Federal Register on October 24, 2017 (82 FR 49175).

    Public Comments

    The Census Bureau published a Notice of Consideration for the ABS in the Federal Register on October 24, 2017 (82 FR 49175). We received one comment. The commenter suggested that the Census Bureau take the following actions:

    (1) Determine the cost and benefits of the survey and consider whether the benefits outweigh the costs;

    (2) If the benefits outweigh the cost, consider how to minimize the cost imposed on the businesses participating in the survey;

    (3) If, after conducting the cost-benefit analysis and examining the means for minimizing the cost imposed on survey participants, the Census Bureau nevertheless wishes to proceed with the survey, publish a revised notice that includes a cost-benefit analysis and an explanation of steps taken to minimize the costs on businesses forced to participate in the survey; and

    (4) Eliminate the survey discrimination based on gender, ethnicity, race, and age.

    Census Bureau Response to the Public Comment

    The Census Bureau agrees that costs and benefits should be analyzed and weighed, and has already carried out this analysis, concluding that the value of information produced by the ABS outweighs the costs. The Census Bureau submitted a request to OMB on January 5, 2018, formally requesting approval of the ABS under the Paperwork Reduction Act (PRA). The request included information about the cost to administer the ABS and the cost imposed on respondents in terms of their time to respond. The request also documented the many uses of the data. The request demonstrated that the ABS has practical utility, i.e., that the value of information produced outweighs the cost. As noted in the Paperwork Reduction Act section below, OMB approved the ABS on March 7, 2018 (OMB control number 0607-1004).

    Furthermore, the ABS will provide data required by Executive Order 11458 (March 5, 1969), “Prescribing Arrangements for Developing and Coordinating a National Program For Minority Business Enterprise” (http://www.presidency.ucsb.edu/ws/?pid=60475). Executive Order 11458 prompted the Census Bureau to create the Survey of Minority Business Enterprises (SMOBE) and the Survey of Women Business Enterprises (SWOBE). The data previously collected in these two surveys was later collected in the SBO and the ASE, surveys that the ABS will now replace. Without the ABS, there will be no survey that complies with the executive order. The Minority Business Development Agency and Small Business Administration also rely on the Census Bureau to annually produce these data, including data on business ownership by gender, ethnicity, race, and veteran status as well as economic characteristics of businesses.

    The Census Bureau has designed the ABS survey to collect the required data while balancing the burden on businesses. The ABS is designed to combine Census Bureau firm-level collections to reduce respondent burden, increase data quality, reduce operational costs, and operate more efficiently.

    Paperwork Reduction Act

    Notwithstanding any other provision of law, no person is required to respond to, nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the Paperwork Reduction Act (PRA) (44 U.S.C., Chapter 45) unless that collection of information displays a currently valid OMB control number. In accordance with the PRA, OMB approved the ABS under OMB control number 0607-1004 on March 7, 2018.

    Based upon the foregoing, I have directed that the current mandatory business surveys be conducted for the purpose of collecting these data.

    Dated: May 31, 2018. Ron S. Jarmin, Associate Director for Economic Programs, Performing the Non-Exclusive Functions and Duties of the Director, Bureau of the Census.
    [FR Doc. 2018-12356 Filed 6-7-18; 8:45 am] BILLING CODE 3510-07-P
    DEPARTMENT OF COMMERCE International Trade Administration [A-570-010] Crystalline Silicon Photovoltaic Products From the People's Republic of China: Notice of Court Decision Not in Harmony With Final Determination of the Less Than Fair Value Investigation AGENCY:

    Enforcement and Compliance, International Trade Administration, Department of Commerce.

    SUMMARY:

    On May 25, 2018, the United States Court of International Trade (the Court) entered final judgment sustaining the final results of the second remand redetermination by the Department of Commerce (Commerce) pertaining to the antidumping duty (AD) investigation of certain crystalline silicon photovoltaic products from the People's Republic of China (China). Commerce is notifying the public that the final judgment in this case is not in harmony with Commerce's final determination in the AD investigation of certain crystalline silicon photovoltaic products from China.

    DATES:

    Applicable June 4, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Eli Lovely, AD/CVD Operations, Office IV, Enforcement and Compliance—International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone (202) 482-1593.

    SUPPLEMENTARY INFORMATION:

    Background

    Subsequent to the December 23, 2014, publication of the Final Determination in the AD investigation of certain crystalline silicon photovoltaic products from China,1 and the February 18, 2015 publication of the AD order,2 SolarWorld Americas, Inc. (SolarWorld), the petitioner, filed a complaint with the Court challenging, among other things, Commerce's determination that South African import data under subheading 8548.10, of the United States Harmonized Tariff Schedule (HTS), constituted the best available information for valuing Changzhou Trina Solar Energy Co., Ltd.'s (Trina) byproduct offset for scrapped solar modules.3

    1See Certain Crystalline Silicon Photovoltaic Products from the People's Republic of China: Final Determination of Sales at Less than Fair Value, 79 FR 76970 (December 23, 2014) (Final Determination).

    2See Certain Crystalline Silicon Photovoltaic Products from the People's Republic of China: Antidumping Duty Order; and Amended Final Affirmative Countervailing Duty Determination and Countervailing Duty Order, 80 FR 8592 (February 18, 2015).

    3See SolarWorld's Complaint, No. 15-00086, ECF No. 10 (CIT April 17, 2015).

    In Jinko Solar I, the Court remanded Commerce's use of South African import data under HTS subheading 8548.10, to value Trina's byproduct offset for scrapped solar modules when calculating normal value. The Court found that Commerce did not adequately explain how its decision was reasonable in light of the record as a whole.4 Further, the Court found that two arguments made before the Court constituted post hoc rationalizations and directed Commerce to make those rationalizations explicit and identify supporting evidence for them, if either of the rationalizations informed Commerce's decision to rely on HTS subheading 8548.10 to value Trina's byproduct offset for scrapped solar modules.5

    4See Jinko Solar Co., Ltd. v. United States, 229 F. Supp. 3d 1333, 1353-1355 (CIT 2017) (Jinko Solar I).

    5Id. at 1355.

    On August 2, 2017, Commerce issued its First Remand Results, in which it determined that it would continue to value Trina's byproduct offset for scrapped solar modules with South African import data under HTS 8548.10 and explained its decision to do so.6 The Court, in Jinko Solar II, held that Commerce's determination remained unsupported by substantial evidence and that Commerce did not explain how its selected surrogate value was a representative surrogate value for the scrapped modules.7 The Court directed Commerce to reconsider or further explain its decision to use South African import data under HTS subheading 8548.10 to value the byproduct offset for scrapped solar modules when calculating normal value.8

    6See Final Results of Redetermination Pursuant to Court Remand, Jinko Solar Co., Ltd. v. United States, Court No. 15-00080, Slip Op. 17-62 (Court of International Trade May 18, 2017) (August 2, 2017) (First Remand Results).

    7See Jinko Solar Co., Ltd. v. United States, 279 F. Supp. 3d 1253, 1261-1264 (CIT 2017) (Jinko Solar II).

    8Id. at 1264.

    On March 12, 2018, Commerce issued its Second Remand Results, wherein, considering the Court's order, and under respectful protest, Commerce selected Thai import data under HTS category 2804.69 to value Trina's byproduct offset for scrapped solar modules for purposes of its normal value calculations.9

    9See Final Results of Second Redetermination Pursuant to Court Order, Jinko Solar Co., Ltd., et al. v. United States, Court No. 15-00080, Slip Op. 17-165 (Court of International Trade December 13, 2017) (March 12, 2018) (Second Remand Results).

    On May 25, 2018, the Court issued its decision in Jinko Solar III sustaining Commerce's Second Remand Results.10

    10See Jinko Solar Co., Ltd. v. United States, No. 15-00080, Slip Op. 18-61 (CIT May 25, 2018) (Jinko Solar III).

    Timken Notice

    In its decision in Timken, 11 as clarified by Diamond Sawblades, 12 the United States Court of Appeals for the Federal Circuit held that, pursuant to section 516A(e) of the Tariff Act of 1930, as amended (the Act), Commerce must publish a notice of a court decision that is not “in harmony” with a Commerce determination and must suspend liquidation of entries pending a “conclusive” court decision. The Court's May 25, 2018, final judgment sustaining Commerce's Second Remand Redetermination constitutes a final decision of the Court that is not in harmony with Commerce's Final Determination. This notice is published in fulfillment of the publication requirements of Timken. Accordingly, Commerce will continue the suspension of liquidation of the subject merchandise pending the expiration of the period of appeal, or if appealed, pending a final and conclusive court decision. We have not amended the Final Determination because valuing Trina's scrapped solar modules using Thai import data under HTS category 2804.69 rather than South African import data under HTS subheading 8548.10 did not result in a change to the weighted average dumping margin calculated for Trina in the Final Determination.

    11See Timken Co. v. United States, 893 F.2d 337, 341 (Fed. Cir. 1990).

    12See Diamond Sawblades Mfrs. Coalition v. United States, 626 F.3d 1374 (Fed. Cir. 2010).

    Notification to Interested Parties

    This notice is issued and published in accordance with section 516A(e)(1) of the Act.

    Dated: June 4, 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.
    [FR Doc. 2018-12481 Filed 6-7-18; 8:45 am] BILLING CODE 3510-DS-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG280 Mid-Atlantic Fishery Management Council (MAFMC); Public Meeting AGENCY:

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

    ACTION:

    Notice of public meeting.

    SUMMARY:

    The Mid-Atlantic Fishery Management Council's (Council) Mackerel-Squid-Butterfish (MSB) Monitoring Committee will meet via webinar to develop recommendations for future MSB specifications.

    DATES:

    The meeting will be held Monday, June 25, 2018 at 9 a.m. and end by noon.

    ADDRESSES:

    The meeting will be held via webinar with a telephone-only connection option: http://mafmc.adobeconnect.com/moncom2018plusfmat/.

    Council address: Mid-Atlantic Fishery Management Council, 800 N. State St. Suite 201, Dover, DE 19901; telephone: (302) 674-2331.

    FOR FURTHER INFORMATION CONTACT:

    Christopher M. Moore, Ph.D. Executive Director, Mid-Atlantic Fishery Management Council; telephone: (302) 526-5255. The Council's website, www.mafmc.org will also have details on webinar access and any background materials.

    SUPPLEMENTARY INFORMATION:

    The Council's MSB Monitoring Committee will develop recommendations for future MSB specifications. The MSB Monitoring Committee will meet jointly with the Fishery Management Action Team (FMAT), which is developing analyses for the Council's Atlantic mackerel rebuilding framework to set 2019-2021 Atlantic mackerel specifications. The Council will review previously-set 2019 longfin squid, Illex squid, and butterfish specifications and take final action on the Atlantic mackerel rebuilding framework at its August 2018 Council Meeting (http://www.mafmc.org/meetings/).

    Special Accommodations

    This meeting is physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.

    Dated: June 4, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-12305 Filed 6-7-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Submission for OMB Review; Comment Request

    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: National Oceanic and Atmospheric Administration (NOAA).

    Title: Atlantic Highly Migratory Species Vessel and Gear Marking.

    OMB Control Number: 0648-0373.

    Form Number(s): None.

    Type of Request: Regular (extension of a currently approved information collection).

    Number of Respondents: 3,282.

    Average Hours per Response: Vessels, 45 minutes; gear, 15 minutes per piece.

    Burden Hours: 3,894.

    Needs and Uses: This request is for an extension of a current information collection. These requirements apply to vessel owners in the Atlantic highly migratory species (HMS) Fishery.

    Under current regulations at 50 CFR 635.6, fishing vessels permitted for Atlantic HMS fisheries must display their official vessel numbers on their vessels. Flotation devices and high-flyers attached to certain fishing gears must also be marked with the vessel's number to identify the vessel to which the gear belongs. These requirements are necessary for identification, law enforcement, and monitoring purposes.

    Specifically, all vessel owners that hold a valid Atlantic HMS permit under 50 CFR 635.4, other than an Atlantic HMS Angling permit, are required to display their vessel identification number. Numbers must be permanently affixed to, or painted on, the port and starboard sides of the deckhouse or hull and on an appropriate weather deck, so as to be clearly visible from an enforcement vessel or aircraft. The vessel's identification number must be in block Arabic numerals permanently affixed to or painted on the vessel in contrasting color to the background, and must be at least 18 inches (45.7 cm) in height for vessels over 65 ft (19.8 m) in length; at least 10 inches (25.4 cm) in height for all other vessels over 25 ft (7.6 m) in length; and at least 3 inches (7.6 cm) in height for vessels 25 ft (7.6 m) in length or less.

    Furthermore, the owner or operator of a vessel for which a permit has been issued under § 635.4 and that uses handline, buoy gear, harpoon, longline, or gillnet, must display the vessel's name, registration number or Atlantic Tunas, Atlantic HMS Angling, or Atlantic HMS Charter/Headboat permit number on each float attached to a handline, buoy gear, or harpoon, and on the terminal floats and high-flyers (if applicable) on a longline or gillnet used by the vessel. The vessel's name or number must be at least 1 inch (2.5 cm) in height in block letters or arabic numerals in a color that contrasts with the background color of the float or high-flyer.

    Affected Public: Business or other for-profit organizations; individuals or households.

    Frequency: Annually.

    Respondent's Obligation: Required to obtain or retain benefits.

    This information collection request may be viewed at reginfo.gov. 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] or fax to (202) 395-5806.

    Dated: June 5, 2018. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2018-12345 Filed 6-7-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration Submission for OMB Review; Comment Request

    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: National Oceanic and Atmospheric Administration (NOAA).

    Title: U.S. Caribbean Commercial Fishermen Census.

    OMB Control Number: 0648-0716.

    Form Number(s): None.

    Type of Request: Regular (revision and extension of a currently approved information collection).

    Number of Respondents: 1,500.

    Average Hours per Response: 30 minutes.

    Burden Hours: 750.

    Needs and Uses: This request is for revision and extension of a currently approved information collection.

    The National Marine Fisheries Service (NMFS) proposes to conduct a census of small-scale fishermen operating in the United States (U.S.) Caribbean. The extension for the data collection applies only to the Commonwealth of Puerto Rico because the data collection was completed in the U.S. Virgin Islands. The proposed socio-economic study will collect information on demographics, capital investment in fishing gear and vessels, fishing and marketing practices, economic performance, and miscellaneous attitudinal questions. The data gathered will be used for the development of amendments to fishery management plans, which require descriptions of the human and economic environment and socio-economic analyses of regulatory proposals. The information collected will also be used to strengthen fishery management decision-making and satisfy various legal mandates under the Magnuson-Stevens Fishery Conservation and Management Act (U.S.C. 1801 et seq.), Executive Order 12866, Regulatory Flexibility Act, Endangered Species Act, and National Environmental Policy Act, and other pertinent statues.

    Affected Public: Business or other for-profit organizations.

    Frequency: One time.

    Respondent's Obligation: Voluntary.

    This information collection request may be viewed at reginfo.gov. 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] or fax to (202) 395-5806.

    Dated: June 5, 2018. Sarah Brabson, NOAA PRA Clearance Officer.
    [FR Doc. 2018-12344 Filed 6-7-18; 8:45 am] BILLING CODE 3510-22-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration RIN 0648-XG281 Mid-Atlantic Fishery Management Council (MAFMC); Public Meeting AGENCY:

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

    ACTION:

    Notice; public meeting.

    SUMMARY:

    The Mid-Atlantic Fishery Management Council's Summer Flounder, Scup, and Black Sea Bass Advisory Panel will hold a public meeting, jointly with the Atlantic States Marine Fisheries Commission's Summer Flounder, Scup, and Black Sea Bass Advisory Panel.

    DATES:

    The meeting will be held on Tuesday, June 26, 2018, from 10 a.m. until 4:30 p.m.

    ADDRESSES:

    The meeting will be held at the Hilton Garden Inn BWI Airport, 1516 Aero Dr., Linthicum, MD 21090; telephone: (410) 691-0500.

    Council address: Mid-Atlantic Fishery Management Council, 800 N. State Street, Suite 201, Dover, DE 19901; telephone: (302) 674-2331; www.mafmc.org.

    FOR FURTHER INFORMATION CONTACT:

    Christopher M. Moore, Ph.D., Executive Director, Mid-Atlantic Fishery Management Council, telephone: (302) 526-5255.

    SUPPLEMENTARY INFORMATION:

    The Mid-Atlantic Fishery Management Council's (MAFMC's) Summer Flounder, Scup, and Black Sea Bass Advisory Panel will meet jointly with the Atlantic States Marine Fisheries Commission's (ASMFC's) Summer Flounder, Scup, and Black Sea Bass Advisory Panel. The purpose of this meeting is to discuss recent performance of the summer flounder, scup, and black sea bass commercial and recreational fisheries and develop Fishery Performance Reports. These reports will be considered by the Scientific and Statistical Committee, the Monitoring Committee, and the MAFMC and ASMFC when setting 2019 fishery specifications (i.e., catch and landings limits and management measures) for summer flounder and black sea bass and reviewing previously implemented 2019 specifications for scup. The AP will also receive updates on the Summer Flounder Commercial Issues Amendment and a framework/addendum which will consider conservation equivalency for black sea bass, conservation equivalency rollover for summer flounder, Block Island Sound transit provisions, and slot limits in the recreational fisheries for all three species.

    Special Accommodations

    These meetings are physically accessible to people with disabilities. Requests for sign language interpretation or other auxiliary aid should be directed to M. Jan Saunders, (302) 526-5251, at least 5 days prior to the meeting date.

    Dated: June 4, 2018. Tracey L. Thompson, Acting Deputy Director, Office of Sustainable Fisheries, National Marine Fisheries Service.
    [FR Doc. 2018-12306 Filed 6-7-18; 8:45 am] BILLING CODE 3510-22-P
    COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Proposed Additions AGENCY:

    Committee for Purchase From People Who Are Blind or Severely Disabled.

    ACTION:

    Proposed additions to the Procurement List.

    SUMMARY:

    The Committee is proposing to add product(s) and service(s) to the Procurement List that will be furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.

    DATES:

    Comments must be received on or before: July 8, 2018.

    ADDRESSES:

    Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 715, Arlington, Virginia 22202-4149.

    FOR FURTHER INFORMATION CONTACT:

    For further information or to submit comments contact: Amy B. Jensen, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email [email protected]

    SUPPLEMENTARY INFORMATION:

    This notice is published pursuant to 41 U.S.C. 8503(a)(2) and 41 CFR 51-2.3. Its purpose is to provide interested persons an opportunity to submit comments on the proposed actions.

    Additions

    If the Committee approves the proposed additions, the entities of the Federal Government identified in this notice will be required to procure the product(s) and service(s) listed below from nonprofit agencies employing persons who are blind or have other severe disabilities.

    The following product(s) and service(s) are proposed for addition to the Procurement List for production by the nonprofit agencies listed:

    Products NSN(s)—Product Name(s): 8415-01-605-7311—Coverall, Fuel Handlers, Type II, Class III, Coyote, XXSM 8415-01-605-7315—Coverall, Fuel Handlers, Type II, Class III, Coyote, XSM 8415-01-605-7316—Coverall, Fuel Handlers, Type II, Class III, Coyote, SM 8415-01-605-7317—Coverall, Fuel Handlers, Type II, Class III, Coyote, MED 8415-01-605-7318—Coverall, Fuel Handlers, Type II, Class III, Coyote, LG 8415-01-605-7319—Coverall, Fuel Handlers, Type II, Class III, Coyote, XLG 8415-01-605-7321—Coverall, Fuel Handlers, Type II, Class III, Coyote, XXLG Mandatory for: 100% of the requirement for the U.S. Army Mandatory Source of Supply: Winston-Salem Industries for the Blind, Inc., Winston-Salem, NC Contracting Activity: Army Contracting Command—Aberdeen Proving Ground, Natick Contracting Division Distribution: C-List Services Service Type: Medical Procurement, Integration, and Warehousing Service Mandatory for: U.S. Army, Natick Contracting Division, Aberdeen Proving Ground, 15 General Greene Ave., Natick, MA Mandatory Source of Supply: Winston-Salem Industries for the Blind, Inc., Winston-Salem, NC Contracting Activity: Army Contracting Command—Aberdeen Proving Ground —Natick Contracting Division Service Type: Vehicle Maintenance Facility Operation Mandatory for: Department of State, Diplomatic Security, Foreign Affairs Security Training Center, Fort Pickett, 1125 West Parade, Blackstone, VA Mandatory Source of Supply: Skookum Educational Programs, Bremerton, WA Contracting Activity: Department of State, Acquisitions—AQM MOMENTUM Service Type: Grounds Maintenance and Snow Removal Service Mandatory for: U.S. Navy, NAVFAC Mid-Atlantic Division: Naval Station Newport Complex, Newport, RI; Naval Undersea Warfare Center Division, Newport, RI; Fishers Island, NY & Dodge Pond, NY; Naval Health Clinic New England, Newport, RI; 9324 Virginia Avenue, Norfolk, VA Mandatory Source of Supply: CW Resources, Inc., New Britain, CT Contracting Activity: Dept. of the Navy, Naval FAC Engineering CMD MID LANT Service Type: Mess Attendant Service Mandatory for: U.S. Air Force, Luke AFB, Ray V. Hensman (RVH) Dining Facility and Falcon Inn (FI) Flight Kitchen, Building 545 (RVI) & Building 954 (FI), 14185 Falcon Street, Luke AFB, AZ Mandatory Source of Supply: The Centers for Habilitation/TCH, Tempe, AZ Contracting Activity: Dept. of the Air Force, FA4887 56 CONS CC Amy Jensen, Director, Business Operations.
    [FR Doc. 2018-12385 Filed 6-7-18; 8:45 am] BILLING CODE 6353-01-P
    COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Deletions AGENCY:

    Committee for Purchase From People Who Are Blind or Severely Disabled.

    ACTION:

    Deletions from the Procurement List.

    SUMMARY:

    This action deletes product(s) and service(s) from the Procurement List that were previously furnished by nonprofit agencies employing persons who are blind or have other severe disabilities.

    DATES:

    Date deleted from the Procurement List: July 8, 2018.

    ADDRESSES:

    Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S Clark Street, Suite 715, Arlington, Virginia 22202-4149.

    FOR FURTHER INFORMATION CONTACT:

    Amy B. Jensen, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email [email protected]

    SUPPLEMENTARY INFORMATION: Deletions

    On 5/4/2018 (83 FR 87), the Committee for Purchase From People Who Are Blind or Severely Disabled published notice of proposed deletions from the Procurement List.

    After consideration of the relevant matter presented, the Committee has determined that the product(s) and service(s) listed below are no longer suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.

    Regulatory Flexibility Act Certification

    I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

    1. The action will not result in additional reporting, recordkeeping or other compliance requirements for small entities.

    2. The action may result in authorizing small entities to furnish the product(s) and service(s) to the Government.

    3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the product(s) and service(s) deleted from the Procurement List.

    End of Certification

    Accordingly, the following product(s) and service(s) are deleted from the Procurement List:

    Products NSN(s)—Product Name(s): 8415-00-NSH-0687—Pants, Level 1, PCU, Army, Brown, M 8415-01-519-7444—Pants, Level 1, PCU, Army, Brown, M Mandatory Source of Supply: Southeastern Kentucky Rehabilitation Industries, Inc., Corbin, KY Contracting Activity: W6QK ACC-APG NATICK, NATICK, MA Services Service Type: Switchboard Operation Service Mandatory for: 4th Communication Squadron: 1695 Wright Brothers Avenue, Seymour Johnson AFB, NC Mandatory Source of Supply: Coastal Enterprises of Jacksonville, Inc., Jacksonville, NC Contracting Activity: Dept. of the Air Force, FA4809 4TH CONS SQDN CC Service Type: Janitorial/Custodial Service Mandatory for: Indiana Air National Guard, 181st Fighter Wing: Hulman Regional Airport, 800 South Petercheff, Terre Haute, IN Mandatory Source of Supply: Child-Adult Resource Services, Inc., Rockville, IN Contracting Activity: Dept. of the Air Force, FA7014 AFDW PK Service Type: Custodial Service Mandatory for: David W. Dyer Federal Building-Courthouse, 300 NE First Ave, Miami, FL Mandatory Source of Supply: Goodwill Industries of South Florida, Inc., Miami, FL Contracting Activity: Public Buildings Service, Acquisition Division/Services Branch Service Type: Janitorial/Custodial Service Mandatory for: 183rd Fighter Wing Air National Guard Capitol Airport, 3101 J. David Jones Parkway, Springfield, IL Mandatory Source of Supply: United Cerebral Palsy of the Land of Lincoln, Springfield, IL Contracting Activity: Dept of the Army, W7M6 USPFO Activity IL ARNG Service Type: Laundry Service Mandatory for: Air National Guard-Sioux City, 2920 Headquarters Avenue, Sioux City, IA Mandatory Source of Supply: Genesis Development, Jefferson, IA Contracting Activity: Dept. of the Air Force, FA7014 AFDW PK Service Type: Food Service Mandatory for: Volk Field Air National Guard, 100 Independence Drive, Camp Douglas, WI Mandatory Source of Supply: Challenge Unlimited, Inc., Alton, IL Contracting Activity: Dept. of the Air Force, FA7014 AFDW PK Service Type: Grounds Maintenance Service Mandatory for: 130th Airlift Squadron, 1679 Coonskin Dr., Unit #36, Charleston, WV Mandatory Source of Supply: Goodwill Industries of Kanawha Valley, Charleston, WV Contracting Activity: Dept. of the Army, W7N7 USPFO ACTIVITY WV ARNG Service Type: Grounds Maintenance Service Mandatory for: Admiral Bakerfield Army Reserve Center, San Diego, CA Mandatory Source of Supply: Job Options, Inc., San Diego, CA Contracting Activity: Dept. of the Navy, U.S. Fleet Forces Command Amy Jensen, Director, Business Operations.
    [FR Doc. 2018-12386 Filed 6-7-18; 8:45 am] BILLING CODE 6353-01-P
    COMMITTEE FOR PURCHASE FROM PEOPLE WHO ARE BLIND OR SEVERELY DISABLED Procurement List; Addition AGENCY:

    Committee for Purchase From People Who Are Blind or Severely Disabled.

    ACTION:

    Addition to the Procurement List.

    SUMMARY:

    This action adds a service to the Procurement List that will be provided by a nonprofit agency employing persons who are blind or have other severe disabilities.

    DATES:

    Date added to the Procurement List: June 17, 2018.

    ADDRESSES:

    Committee for Purchase From People Who Are Blind or Severely Disabled, 1401 S. Clark Street, Suite 715, Arlington, Virginia, 22202-4149.

    FOR FURTHER INFORMATION CONTACT:

    Amy B. Jensen, Telephone: (703) 603-7740, Fax: (703) 603-0655, or email [email protected]

    SUPPLEMENTARY INFORMATION:

    Addition

    On 3/16/2018 (83 FR 52), the Committee for Purchase From People Who Are Blind or Severely Disabled published a notice of proposed addition to the Procurement List.

    After consideration of the material presented to it concerning capability of qualified nonprofit agency to provide the service and impact of the addition on the current or most recent contractors, the Committee has determined that the service listed below is suitable for procurement by the Federal Government under 41 U.S.C. 8501-8506 and 41 CFR 51-2.4.

    Regulatory Flexibility Act Certification

    I certify that the following action will not have a significant impact on a substantial number of small entities. The major factors considered for this certification were:

    1. The action will not result in any additional reporting, recordkeeping or other compliance requirements for small entities other than the small organization that will provide the service to the Government.

    2. The action will result in authorizing small entities to provide the service to the Government.

    3. There are no known regulatory alternatives which would accomplish the objectives of the Javits-Wagner-O'Day Act (41 U.S.C. 8501-8506) in connection with the service proposed for addition to the Procurement List.

    The Committee finds good cause to dispense with the 30-day delay in the effective date normally required by the Administrative Procedure Act. See 5 U.S.C. 553(d). This addition to the Committee's Procurement List is effectuated because of the expiration of the U.S. Navy NAVSUP Fleet Logistics Center Norfolk Warehouse Support Service contract. The Federal customer contacted, and has worked diligently with the AbilityOne Program to fulfill this service need under the AbilityOne Program. To avoid performance disruption, and the possibility that the U.S. Navy will refer its business elsewhere, this addition must be effective on June 17, 2018, ensuring timely execution for a June 18, 2018 start date while still allowing 8 days for comments. Pursuant to its own regulation 41 CFR 51-2.4, the Committee has been in contact with one of the affected parties, the incumbent of the expiring contract since May 2017, and determined that no severe adverse impact exists. The Committee also published a notice of proposed Procurement List addition in the Federal Register on March 16, 2018, and did receive comments from the incumbent contractor. The Committee has addressed those comments which are provided in this notice. This addition will not create a public hardship and has limited effect on the public at large, but, rather, will create new jobs for other affected parties—people with significant disabilities in the AbilityOne Program who otherwise face challenges locating employment. Moreover, this addition will enable Federal customer operations to continue without interruption.

    End of Certification

    Accordingly, the following service is added to the Procurement List:

    Service Service Type: Warehouse Support Service Mandatory for: NAVSUP Fleet Logistics Center Norfolk, NDW, Supply Management Division, NAVSUP Warehouse, Building 234, 234 Halligan Rd., Annapolis, MD Mandatory Source of Supply: Richmond Area Association for Retarded Citizens, Richmond, VA Contracting Activity: Dept of the Navy, NAVSUP FLT Log CTR Norfolk

    The U.S. AbilityOne Commission, whose mission is to provide employment opportunities for individuals who are blind or have significant disabilities in the manufacture and delivery of products and services to the Federal Government, received comments from one party with interests in the proposed addition to the Procurement List.

    The Commenter objected to the addition of warehouse support service requirements at Navy Supply Warehouse, Annapolis, MD to the Procurement List for three reasons: suitability of the work for the AbilityOne Program, inability of a nonprofit agency to maintain the mandatory overall direct labor hour ratio while performing the warehouse support services requirement, and financial and business impact to the small business incumbent.

    The Commenter questioned whether warehouse support services tasks, including inspecting, receiving and processing materials; utilizing material handling equipment (i.e., box truck, fork lifts, etc.); maintaining accurate records; and cleaning the warehouse are tasks suitable for people with significant disabilities. Pursuant to 41 CFR 51-2.4, the Commission conducts a suitability analysis prior to each Procurement List addition. Similar warehouse support service requirements are currently on the Procurement List, and the Commission has historically considered this type of work requirement suitable for the employment of individuals with significant disabilities. The Commission notes several nonprofit agencies currently perform warehouse support services requirements like the Navy Supply Warehouse, Annapolis, MD, in full compliance with the requirements of the AbilityOne Program.

    The Commenter also questioned whether a nonprofit agency will be able to maintain the overall direct labor hour ratio requirement of performing 75% of the direct labor hours by people who are blind or significantly disabled. Pursuant to 41 U.S.C. 8501(6), a nonprofit agency in the AbilityOne Program must employ blind or significantly disabled individuals at a level no less than 75% of the agency's overall direct labor hour ratio. The Commission notes that several nonprofit agencies currently perform warehouse support service requirements, like Navy Supply Warehouse, Annapolis, MD, and maintain compliance with the overall 75% direct labor hour requirement.

    Finally, the Commenter asserted adverse financial and business impact to its operations should the work requirement be added to the Procurement List. The Commission conducted an analysis of a possible severe adverse impact on the Commenter, the incumbent contractor, in accordance with 41 CFR 51-2.4(a)(4) and concluded there was no severe adverse impact.

    Amy Jensen, Director, Business Operations.
    [FR Doc.2018-12387 Filed 6-7-18; 8:45 am] BILLING CODE 6353-01-P
    DEPARTMENT OF DEFENSE Defense Acquisition Regulations System [Docket DARS-2018-0006; OMB Control Number 0704-0397] Submission for OMB Review; Comment Request AGENCY:

    Defense Acquisition Regulations System, Department of Defense (DoD).

    ACTION:

    Notice; correction.

    SUMMARY:

    DoD is making a correction to the notice published at 83 FR 19549 on May 3, 2018, which advised that the Defense Acquisition Regulations System submitted to OMB for clearance, a proposal for collection of information under the provisions of the Paperwork Reduction Act. The document contained an incorrect docket number.

    DATES:

    Applicable June 8, 2018. Applicable beginning May 3, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Ms. Amy Williams, telephone 571-372-6106.

    SUPPLEMENTARY INFORMATION:

    In the notice published at 83 FR 19549 on May 3, 2018, in the first column, the following correction is made to this notice. The docket number cited, DARS-2018-0003, is corrected to read DARS-2018-0006.

    Amy G. Williams, Deputy, Defense Acquisition Regulations System.
    [FR Doc. 2018-12357 Filed 6-7-18; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID: DOD-2017-OS-0057] Notice of Availability for Finding of No Significant Impact for the Environmental Assessment Addressing Construction and Operation of a Disposition Services Complex at DLA Disposition Services Red River, Texas AGENCY:

    Defense Logistics Agency (DLA), Department of Defense.

    ACTION:

    Notice of availability (NOA).

    SUMMARY:

    On October 19, 2017, DLA published a NOA in the Federal Register announcing the publication of an Environmental Assessment (EA) Addressing Construction and Operation of a Disposition Services Complex at DLA Disposition Services Red River, Texas. The EA was available for a 30-day public comment period that ended November 20, 2017. The EA was prepared as required under the National Environmental Policy Act (NEPA) of 1969.

    FOR FURTHER INFORMATION CONTACT:

    Ira Silverberg at 571-767-0705 during normal business hours Monday through Friday, from 8:00 a.m. to 4:30 p.m. (EDT) or by email: [email protected]

    SUPPLEMENTARY INFORMATION:

    DLA completed an EA to address the potential environmental consequences associated with the Proposed Action at DLA Disposition Services Red River, which is on Red River Army Depot (RRAD). This FONSI incorporates the EA by reference, summarizes the results of the analyses in the EA, and documents DLA's decision to construct and operate the Disposition Services Complex at the installation. DLA has determined that the Proposed Action is not a major federal action that significantly affects the quality of the human environment within the context of NEPA, and that no significant impacts on the human environment are associated with this decision.

    No public comments were received during the EA public comment period. Red River Army Depot (RRAD), the host installation, consulted with the Texas State Historic Preservation Officer (SHPO) at the Texas Historical Commission; Texas Parks and Wildlife Department (TPWD); and the Tribal Historic Preservation Officers of the Caddo Nation, Comanche Nation, Kiowa Tribe of Oklahoma, and the Wichita and Affiliated Tribes. The Texas SHPO provided concurrence that no historic resources would be affected by the Proposed Action. TPWD provided comments and recommendations regarding protection of migratory birds, state-listed species, and other wildlife species. DLA addressed TPWD's comments and recommendations in the EA and responded to TPWD with an acknowledgment letter stating that construction activities should avoid or minimize potential impacts on the state-listed timber rattlesnake and other wildlife species. The Comanche Nation responded that a review of their site files indicated “No Properties” have been identified at the project area. RRAD did not receive responses to the consultation requests with the Caddo Nation, Kiowa Tribe of Oklahoma, or the Wichita and Affiliated Tribes. An appendix was added to the EA that includes the SHPO, TPWD, and tribal consultation documents. The revised EA is available electronically at the Federal eRulemaking Portal at http://www.regulations.gov within Docket ID: DOD-2017-OS-0057.

    Purpose and Need for Action: The purpose of the Proposed Action is to provide DLA Disposition Services Red River with a reutilization, transfer, donation, and sales complex suitable for collecting, processing, and liquidating materiel from military installations and their units across northern Texas, Oklahoma, and Arkansas. The Proposed Action is needed to address the inefficiency of the facilities and resultant handling of materiel at the existing disposal operations sites.

    Proposed Action and Alternatives: Under the Proposed Action, DLA would construct and operate a complex of facilities necessary to support the materiel disposal operations of DLA Disposition Services Red River. The Proposed Action would consolidate the DLA Disposition Services Red River disposal operations currently conducted at two sites on RRAD.

    The primary facility would be a 145,200-square foot (ft2) noncombustible general purpose warehouse. A special foundation system would be required because of expansive clay soils. The general purpose warehouse would also include a 10,000-ft2 administrative and utility annex containing a training/conference classroom, a locker room with showers and latrine, and a break room. These facilities would include fire suppression systems, utilities and communications, and security systems.

    A 14.9-acre (648,000-ft2) holding and sales yard would be constructed for the sorting, processing, and open storage of large items and rolling stock. Military equipment that must be demilitarized would be fenced from material processed and displayed for commercial sales. A 4.1-acre (180,000-ft2) paved scrapyard would be constructed for the separation, processing, and transfer of scrap metal for commercial sales. A 4,608-ft2 scrap area storage facility would be constructed for the management of the scrapyard operation, with two overhead covers for weather protection of the scrap bins. A weigh and dispatch facility would be constructed on the perimeter of the complex and include a 634-ft2 scale house with restrooms, truck scales, a radiation detector, 5,900 ft2 of covered storage, 7,200 ft2 of paved vehicle parking/queuing area, and a 528-ft2 restroom building. The complex would include utilities, fire protection, storm drainage, communication systems, site lighting, 383,110 ft2 of paving (i.e., access roadways, hardstand aprons, parking, and walkways), security fencing, and related site improvements.

    Description of the No Action Alternative: Under the No Action Alternative, DLA would not construct and operate a new DLA Disposition Services Complex at RRAD. No changes to existing facilities or their operations would result. The continued movement of materiel for disposal across the installation is unnecessary and inefficient and would continue to create traffic conflicts with installation production and safety risks. The No Action Alternative would not meet the purpose of and need for the Proposed Action.

    Potential Environmental Impacts: No significant effects on environmental resources would be expected from the Proposed Action. Insignificant, adverse effects on land use and recreation, noise, air quality, geological resources, water resources, biological resources, infrastructure and transportation, and hazardous materials and wastes would be expected. Additionally, insignificant, beneficial effects on noise and infrastructure and transportation would be expected. Details of the environmental consequences are discussed in the EA, which is hereby incorporated by reference.

    Determination: DLA has determined that implementation of the Proposed Action will not have a significant effect on the human environment. Human environment was interpreted comprehensively to include the natural and physical environment and the relationship of people with that environment. Specifically, no highly uncertain or controversial impacts, unique or unknown risks, or cumulatively significant effects were identified. Implementation of the Proposed Action will not violate any federal, state, or local laws. Based on the results of the analyses performed during preparation of the EA and consideration of comments received during the public comment period, Mr. Patrick Wright, Acting Director, DLA Installation Management, concludes that implementation of the Proposed Action at DLA Disposition Services Red River does not constitute a major federal action significantly affecting the quality of the human environment within the context of NEPA. Therefore, an environmental impact statement for the Proposed Action is not required.

    Dated: May 29, 2018. Shelly E. Finke, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2018-12325 Filed 6-7-18; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID: DOD-2018-OS-0033] Notice of Availability of an Environmental Assessment Addressing Construction and Operation of a Fiscal Year 2019 General Purpose Warehouse at Defense Logistics Agency Distribution Red River, Texas AGENCY:

    Defense Logistics Agency (DLA), Department of Defense.

    ACTION:

    Notice of availability (NOA).

    SUMMARY:

    DLA announces the availability of an Environmental Assessment (EA) documenting the potential environmental effects associated with the Proposed Action to construct and operate a Fiscal Year 2019 General Purpose Warehouse at DLA Distribution Red River, Texas, which is on Red River Army Depot.

    DATES:

    The public comment period will end on July 9, 2018.

    ADDRESSES:

    You may submit comments, identified by DOD-2018-OS-0033, to one of the following:

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

    Mail: Department of Defense, Office of the Deputy Chief Management Officer, Directorate for Oversight and Compliance, Regulatory and Advisory Committee Division, 4800 Mark Center Drive, Mailbox #24, Suite 08D09, Alexandria, VA 22350-1700.

    FOR FURTHER INFORMATION CONTACT:

    Ira Silverberg at 571-767-0705 during normal business hours Monday through Friday, from 8:00 a.m. to 4:30 p.m. (EDT) or by email: [email protected]

    SUPPLEMENTARY INFORMATION:

    The EA has been prepared as required under the National Environmental Policy Act (NEPA), 32 Code of Federal Regulations part 651, Environmental Analysis of Army Actions, and DLA Regulation 1000.22, Environmental Considerations in Defense Logistics Agency Actions.

    The environmental assessment posted to the docket provides additional information about the proposed action.

    Dated: May 29, 2018. Shelly E. Finke, Alternate OSD Federal Register Liaison Officer, Department of Defense.
    [FR Doc. 2018-12326 Filed 6-7-18; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID: DoD-2018-OS-0016] Submission for OMB Review; Comment Request AGENCY:

    Office of the Under Secretary of Defense for Acquisition and Sustainment, DoD.

    ACTION:

    30-Day information collection notice.

    SUMMARY:

    The Department of Defense has submitted to OMB for clearance the following proposal for collection of information under the provisions of the Paperwork Reduction Act.

    DATES:

    Consideration will be given to all comments received by July 9, 2018.

    ADDRESSES:

    Comments and recommendations on the proposed information collection should be emailed to Ms. Jasmeet Seehra, DoD Desk Officer, at [email protected] Please identify the proposed information collection by DoD Desk Officer, Docket ID number, and title of the information collection.

    FOR FURTHER INFORMATION CONTACT:

    Fred Licari, 571-372-0493, or [email protected]

    SUPPLEMENTARY INFORMATION:

    Title; Associated Form; and OMB Number: DLA Culture/Climate Survey; OMB Control Number 0704-XXXX.

    Type of Request: New.

    Number of Respondents: 860.

    Responses per Respondent: 1.

    Annual Responses: 860.

    Average Burden per Response: 45 minutes.

    Annual Burden Hours: 645 hours.

    Needs and Uses: The purpose of the DLA Culture/Climate Survey is to provide a confidential mechanism for employees to share their feedback on the DLA organization culture and climate. DLA culture is assessed using the Denison Model of Organizational Culture and the associated survey instrument. The climate is assessed using a DLA-developed assessment on current strategic initiatives. As a result, the DLA Culture/Climate Survey provides an opportunity to engage DLA employees and leaders in thoughtful, data-driven discussions that lead to informed action and improve our collective organizational performance.

    Affected Public: Individuals or households.

    Frequency: Biennially.

    Respondent's Obligation: Voluntary.

    OMB Desk Officer: Ms. Jasmeet Seehra.

    You may also submit comments and recommendations, identified by Docket ID number and title, by the following method:

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

    Instructions: All submissions received must include the agency name, Docket ID number, and title for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

    DOD Clearance Officer: Mr. Frederick Licari.

    Requests for copies of the information collection proposal should be sent to Mr. Licari at [email protected]

    Dated: June 5, 2018. Shelly E. Finke, Alternate OSD Federal Register, Liaison Officer, Department of Defense.
    [FR Doc. 2018-12378 Filed 6-7-18; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF DEFENSE Office of the Secretary [Docket ID DOD-2018-OS-0034] Proposed Collection; Comment Request AGENCY:

    Office of the Under Secretary of Defense for Personnel and Readiness, DoD.

    ACTION:

    Information collection notice.

    SUMMARY:

    In compliance with the Paperwork Reduction Act of 1995, the Office of the Undersecretary of Defense for Personnel and Readiness announces a proposed public information collection and seeks public comment on the provisions thereof. Comments are invited on: 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; the accuracy of the agency's estimate of the burden of the proposed information collection; ways to enhance the quality, utility, and clarity of the information to be collected; and ways to minimize the burden of the information collection on respondents, including through the use of automated collection techniques or other forms of information technology.

    DATES:

    Consideration will be given to all comments received by August 7, 2018.

    ADDRESSES:

    You may submit comments, identified by docket number and title, by any of the following methods:

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

    Mail: Department of Defense, Office of the Chief Management Officer, Directorate for Oversight and Compliance, 4800 Mark Center Drive, Mailbox #24, Suite 08D09, Alexandria, VA 22350-1700.

    Instructions: All submissions received must include the agency name, docket number and title for this Federal Register document. The general policy for comments and other submissions from members of the public is to make these submissions available for public viewing on the internet at http://www.regulations.gov as they are received without change, including any personal identifiers or contact information.

    FOR FURTHER INFORMATION CONTACT:

    To request more information on this proposed information collection or to obtain a copy of the proposal and associated collection instruments, please write to the Office of the Under Secretary of Defense (Personnel and Readiness) (Military Community and Family Policy) Office of Special Needs, ATTN: Jennifer Funk, 1500 Defense Pentagon, Washington, DC 20301-1500 or call 571-372-6583.

    SUPPLEMENTARY INFORMATION:

    Title; Associated Form; and OMB Number: Exceptional Family Member Program (EFMP) Family Needs Assessment (FNA); DD Form X768; OMB Control Number 0704-XXXX.

    Needs and Uses: This information collection is necessary to address current differences in assessment processes and inconsistent transfer of cases across the Services. With this standardized form, installation-level EFMP Family Support Offices can provide a family support experience that is consistent across the Services and maintains continuity of services when military families with special needs have Permanent Change of Station (PCS) orders to a joint base or sister-Service location.

    Affected Public: Individuals or households.

    Annual Burden Hours: 10,000 hours.

    Number of Respondents: 20,000.

    Responses per Respondent: 1.

    Annual Responses: 20,000.

    Average Burden per Response: 30 minutes.

    Frequency: On occasion.

    This form is used by EFMP Family Support staff in collaboration with families who request assistance in navigating resources and systems of support. The DD Form X768 will be standardized across the four Services with the goal of facilitating a consistent Family Support experience for all military families. Form respondents include EFMP Family Support staff who complete the form in conjunction with families who are needing support services. The FNA will be stored and maintained internally at the Family Support Office. A family may request a copy of the form.

    Dated: June 5, 2018. Shelly E. Finke, Alternate OSD Federal Register, Liaison Officer, Department of Defense.
    [FR Doc. 2018-12383 Filed 6-7-18; 8:45 am] BILLING CODE 5001-06-P
    DEPARTMENT OF EDUCATION Federal Need Analysis Methodology for the 2019-20 Award Year—Federal Pell Grant, Federal Work-Study, Federal Supplemental Educational Opportunity Grant, William D. Ford Federal Direct Loan, Iraq and Afghanistan Service Grant, and TEACH Grant Programs Correction

    In notice document 2018-10586 appearing on pages 22967-22971 in the issue of May 17, 2018, make the following corrections:

    1. On pages 22968-22969, table “Parents of Dependent Students” is corrected as set forth below:

    Parents of Dependent Students If the age of the older parent is And they are Married Single Then the education savings and asset protection allowance is 25 or less 0 0 26 700 300 27 1,300 700 28 2,000 1,000 29 2,600 1,400 30 3,300 1,700 31 4,000 2,100 32 4,600 2,400 33 5,300 2,800 34 5,900 3,100 35 6,600 3,500 36 7,300 3,800 37 7,900 4,200 38 8,600 4,500 39 9,200 4,900 40 9,900 5,200 41 10,100 5,300 42 10,400 5,500 43 10,600 5,600 44 10,900 5,700 45 11,100 5,800 46 11,400 6,000 47 11,600 6,100 48 11,900 6,200 49 12,200 6,400 50 12,500 6,500 51 12,900 6,700 52 13,200 6,800 53 13,500 7,000 54 13,900 7,200 55 14,300 7,300 56 14,700 7,500 57 15,100 7,700 58 15,500 7,900 59 15,900 8,100 60 16,400 8,300 61 16,800 8,500 62 17,300 8,800 63 17,800 9,000 64 18,300 9,200 65 or older 18,900 9,500

    2. On page 22969, table “Independent Students Without Dependents Other Than a Spouse” is corrected as set forth below:

    Independent Students With Dependents Other Than a Spouse If the age of the student is And they are Married Single Then the education savings and asset protection allowance is 25 or less 0 0 26 700 300 27 1,300 700 28 2,000 1,000 29 2,600 1,400 30 3,300 1,700 31 4,000 2,100 32 4,600 2,400 33 5,300 2,800 34 5,900 3,100 35 6,600 3,500 36 7,300 3,800 37 7,900 4,200 38 8,600 4,500 39 9,200 4,900 40 9,900 5,200 41 10,100 5,300 42 10,400 5,500 43 10,600 5,600 44 10,900 5,700 45 11,100 5,800 46 11,400 6,000 47 11,600 6,100 48 11,900 6,200 49 12,200 6,400 50 12,500 6,500 51 12,900 6,700 52 13,200 6,800 53 13,500 7,000 54 13,900 7,200 55 14,300 7,300 56 14,700 7,500 57 15,100 7,700 58 15,500 7,900 59 15,900 8,100 60 16,400 8,300 61 16,800 8,500 62 17,300 8,800 63 17,800 9,000 64 18,300 9,200 65 or older 18,900 9,500
    [FR Doc. C1-2018-10586 Filed 6-7-18; 8:45 am] BILLING CODE 1301-00-D
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OECA-2018-0248; FRL-9979-04-OECA] Proposed Information Collection Request; Comment Request; Air Stationary Source Compliance and Enforcement Information Reporting (Renewal) AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice.

    SUMMARY:

    The Environmental Protection Agency (EPA) is planning to submit an information collection request (ICR), “Air Stationary Source Compliance and Enforcement Information Reporting” (EPA ICR No. 0107.12, OMB Control No. 2060-0096) to the Office of Management and Budget (OMB) for review and approval in accordance with the Paperwork Reduction Act. Before doing so, EPA is soliciting public comments on specific aspects of the proposed information collection as described below. This is a proposed extension of the ICR, which is currently approved through January 31, 2019. 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.

    We are also soliciting comment on several options for improving the reporting of Clean Air Act stationary source facility compliance information in order to improve the display, usability and accuracy of these data for presentation to the public through EPA's Enforcement Compliance History Online (ECHO) capability.

    DATES:

    Comments must be submitted on or before August 7, 2018.

    ADDRESSES:

    Submit your comments, referencing Docket ID No. EPA-HQ-OECA-2018-0248 online using www.regulations.gov (our preferred method), by email to [email protected], or by mail to: EPA Docket Center, Environmental Protection Agency, Mail Code 28221T, 1200 Pennsylvania Ave. NW, Washington, DC 20460.

    EPA's policy is that all comments received will be included in the public docket without change including any personal information provided, unless the comment includes profanity, threats, information claimed to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute.

    FOR FURTHER INFORMATION CONTACT:

    David A. Meredith, Enforcement Targeting and Data Division, Office of Compliance, (2222A), Environmental Protection Agency, 1200 Pennsylvania Ave. NW, Washington, DC 20460; telephone number: 202-564-4152; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Supporting documents which explain in detail the information that the EPA will be collecting are available in the public docket for this ICR. The docket can be viewed online at www.regulations.gov or in person at the EPA Docket Center, WJC West, Room 3334, 1301 Constitution Ave. NW, Washington, DC. The telephone number for the Docket Center is 202-566-1744. For additional information about EPA's public docket, visit http://www.epa.gov/dockets.

    Pursuant to section 3506(c)(2)(A) of the PRA, EPA is soliciting comments and information to enable it to: (i) Evaluate whether the proposed collection of information is necessary for the proper performance of the functions of the Agency, including whether the information will have practical utility; (ii) evaluate the accuracy of the Agency's estimate of the burden of the proposed collection of information, including the validity of the methodology and assumptions used; (iii) enhance the quality, utility, and clarity of the information to be collected; and (iv) minimize the burden of the collection 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. Burden is defined at 5 CFR 1320.03(b). EPA will consider the comments received and amend the ICR as appropriate. The final ICR package will then be submitted to OMB for review and approval. At that time, EPA will issue another Federal Register notice to announce the submission of the ICR to OMB and the opportunity to submit additional comments to OMB.

    Abstract: Air Stationary Source Compliance and Enforcement Information Reporting is an activity whereby State, Local, Native American, Territorial, and Commonwealth governments (hereafter referred to as either “states/locals” or “state and local agencies”) make air stationary source compliance and enforcement information available to the U.S. Environmental Protection Agency (EPA or the Agency) on a cyclic basis via input to the Air component of the Integrated Compliance Information System (ICIS-Air). ICIS-Air replaced the Air Facility System (AFS) in October 2014 when the Agency, with support from state and local agencies, completed the modernization of AFS into ICIS-Air.

    ICIS-Air supports EPA and state and local agency efforts to ensure compliance with the nation's environmental laws pertaining to air, via the collection and management of important Clean Air Act (CAA or the “Act”) compliance and enforcement information. ICIS-Air is a sub-component of ICIS, which provides compliance and enforcement information on thousands of facilities regulated under numerous federal statutes. The information provided to EPA via ICIS-Air includes source characterization, compliance monitoring, and enforcement activities. EPA will use this information to assess progress toward meeting emission requirements developed under the authority of the CAA, and to protect and maintain air quality, public health, and the environment. Agencies receive delegation of the CAA through regulated grant authorities, and report compliance/enforcement activities undertaken at stationary sources pursuant to the Minimum Data Requirements (MDRs) as outlined in this ICR. The provisions of Section 114(a)(1) of the Clean Air Act, 42 U.S.C. Section 7414(a)(1) provide the broad authority for the reporting of compliance monitoring and enforcement information, along with Subpart Q—Reports in 40 CFR 51: Sections 51.324(a) and (b), and 51.327. This renewal requires the continuation of reporting of previously established MDRs via either direct, on-line entry or electronic data transfer (EDT) to ICIS-Air.

    U.S. EPA and states are cooperating to improve the display, usability, and accuracy of EPA's Enforcement and Compliance History Online (ECHO). ECHO is a critical tool for accessing and analyzing information about facilities regulated under the Clean Air Act and other environmental statutes. As a first step, a team of state and EPA representatives has identified some changes to ECHO that will enhance the user experience and improve ECHO's display of facility compliance-related data. As such, EPA is soliciting state and local input on three options presented for the reporting of Federally Reportable Violation (FRV) dates. These options are presented in the 2/27/18 joint EPA-State paper written to identify improvements to the display, usability, and accuracy of EPA's ECHO. That paper is attached to the docket for this FR notice.

    As suggested by the 2/27/18 joint EPA-State paper written to identify improvements to the display, usability, and accuracy of ECHO, we are asking commenters, if they would like, to indicate a preference for one of the three FRV date reporting options agencies may choose to display on ECHO: 1a. FRV Determination Date and Case File Resolved Date; 1b. Violation Occurrence Start Date and Occurrence End Date; 2. FRV Determination Date. Option 1a would require the linking of formal enforcement actions to the case file, and in the absence of formal enforcement action, the entry of Resolving Action Type and Date. Option 1b would add two data elements to the minimum data requirements. Option 2 continues the status quo in which the FRV Determination Date is either reported voluntarily by the agency or auto-generated by ICIS-Air to match the date on which the agency submitted the FRV data to ICIS-Air.

    The EPA-State paper expressed the authors' belief that EPA's ECHO could better display CAA violations if FRV dates are consistently reported. Several members of the workgroup that created the paper expressed the view that EPA should select an approach for FRV date reporting and request the entry of the necessary data, via this ICR renewal process. EPA encourages you to share the views of your organization on this topic.

    EPA currently intends to continue the status quo with respect to the minimum data requirements associated with reporting FRVs. However, EPA is open to changing its viewpoint based upon the feedback received from stakeholders in response to this Federal Register notice.

    Respondents: State, Local, Territorial, Indian Nations, and Commonwealth governments.

    Respondent's obligation to respond: Mandatory, see Section 114(a)(1) of the Clean Air Act, 42 U.S.C. Section 7414(a)(1).

    Estimated number of respondents: 99.

    Frequency of response: Every 60 days.

    Annual estimated burden: 51,413 hours.

    Annual estimated cost: $2,688,901. There are no annualized capital/startup or operations & maintenance costs.

    Changes in Estimates: When developing the previous ICR, ICIS-Air was not yet implemented in a production environment and EPA estimated burden to the best of its ability based on the Agency's knowledge of ICIS-Air. At that time, EPA believed that states and locals, as a whole, would experience a reduction in reporting burden due to the ease of reporting to ICIS-Air, a modern and more robust information system. For this ICR renewal, EPA will use experience from the last three years to provide burden estimates that adequately reflect the actual burden. EPA will consider any comment received and will conduct consultation with delegated agencies that are direct users of ICIS-Air, as well as those using EDT to report MDRs. Since ICIS-Air is a relatively new platform, the estimates provided are likely to change.

    Dated: May 23, 2018. Randolph L. Hill, Director, Enforcement Targeting & Data Division, Office of Compliance.
    [FR Doc. 2018-12375 Filed 6-7-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [FRL-9978-85—Region 10] Extension of Comment Period for Proposed Issuance of NPDES General Permit for Hydroelectric Facilities Within the State of Idaho (IDG360000) AGENCY:

    Environmental Protection Agency.

    ACTION:

    Notice of proposed issuance of NPDES General Permit; extension of comment period.

    SUMMARY:

    The Environmental Protection Agency (EPA) Region 10 is extending the comment period for the proposed issuance of a National Pollutant Discharge Elimination System (NPDES) General Permit for Hydroelectric Facilities discharging to waters within the State of Idaho (Permit No. IDG360000). The agency is extending the comment period for 30 days in response to requests from Idaho Power Co. and Utility Water Act Group.

    DATES:

    The comment period for the proposed General Permit published in the Federal Register on April 27, 2018 (83 FR 18555) is being extended. Comments must be received on or before July 11, 2018.

    ADDRESSES:

    Submit your comments on the draft General Permit to Director, Office of Water and Watersheds, USEPA Region 10, 1200 Sixth Avenue, Suite 155, OWW-191, Seattle, WA 98101. Your comments may also be submitted by fax to (206) 553-1280 or electronically to [email protected]

    Comments on the draft 401Certification should be sent to Loren Moore, Idaho Department of Environmental Quality, 1410 N Hilton, Boise, Idaho 83706 or electronically to [email protected]

    FOR FURTHER INFORMATION CONTACT:

    Dru Keenan, 206-553-1219, [email protected]

    SUPPLEMENTARY INFORMATION:

    On April 27, 2018 (83 FR 18555), the EPA Region 10 published the proposed general NPDES permit for hydroelectric facilities located in Idaho in the Federal Register. The original deadline to submit comments was June 11, 2018. This action extends the comment period for 30 days. Written comments must now be received on or before July 11, 2018.

    Permit documents may be found on the EPA Region 10 website at: https://www.epa.gov/npdes-permits/draft-npdes-general-permit-hydroelectric-generating-facilities-idaho. Copies of the draft General Permit and Fact Sheet are also available upon request. Requests may be made to Audrey Washington at (206) 553-0523 or to Dru Keenan at (206) 553-1219. Requests may also be electronically mailed to: [email protected], or [email protected]

    Dated: May 22, 2018. Daniel D. Opalski, Director, Office of Water and Watersheds, Region 10.
    [FR Doc. 2018-12389 Filed 6-7-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [ER-FRL-9039-7] Environmental Impact Statements; Notice of Availability

    Responsible Agency: Office of Federal Activities, General Information (202) 564-7156 or https://www2.epa.gov/nepa/.

    Weekly receipt of Environmental Impact Statements Filed 05/28/2018 Through 06/01/2018 Pursuant to 40 CFR 1506.9. Notice

    Section 309(a) of the Clean Air Act requires that EPA, make public its comments on EISs issued by other, Federal agencies. EPA's comment letters on EISs are available at: https://cdxnodengn.epa.gov/cdx-enepa-public/action/eis/search.

    EIS No. 20180119, Final, BPA, NAT, Walla Walla Basin Spring Chinook Hatchery Program, Review Period Ends: 07/09/2018, Contact: Chad Hamel 503-230-5564. EIS No. 20180120, Final Supplement, NRC, NY, Generic Environmental Impact Statement for License Renewal of Nuclear Plants Supplement 38 Regarding Indian Point Nuclear Generating Unit Nos. 2 and 3, Review Period Ends: 07/09/2018, Contact: William Burton 301-415-6332 EIS No. 20180121, Draft Supplement, USACE, NM, Middle Rio Grande Flood Protection Bernalillo to Belen New Mexico Integrated General Reevaluation Report and Supplemental Environmental Impact Statement, Comment Period Ends: 07/23/2018, Contact: Michael D. Porter 505-342-3264 EIS No. 20180122, Draft, NRC, LA, Generic Environmental Impact Statement for License Renewal of Nuclear Plants, Supplement 58, Regarding River Bend Station, Unit 1, Comment Period Ends: 07/23/2018, Contact: David Drucker 301-415-6223 EIS No. 20180123, Draft, FERC, CA, Yuba River Development Project, Comment Period Ends: 07/30/2018, Contact: Alan Mitchnick 202-502-6074 EIS No. 20180124, Draft, USFS, MT, Draft Environmental Impact Statement for the Draft Revised Forest Plan Helena—Lewis and Clark National Forest, Comment Period Ends: 09/06/2018, Contact: Deborah Entwistle 406-495-3774 EIS No. 20180125, Draft Supplement, USACE, WA, Mill Creek Flood Control Project Operations and Maintenance, Comment Period Ends: 07/23/2018, Contact: Benjamin Tice 509-527-7267 EIS No. 20180126, Draft, USACE, FL, Central Everglades Planning Project South Florida Water Management District Section 203 Everglades Agricultural Area Southern Reservoir and Stormwater Treatment Area, Comment Period Ends: 07/24/2018, Contact: Stacie Auvenshine 904-314-7614 EIS No. 20180127, Draft, USFS, WA, Sunrise Vegetation and Fuels Management, Comment Period Ends: 08/09/2018, Contact: Johnny Collin 509-843-4643 EIS No. 20180128, Final, USFS, CO, Steamboat Ski Area Improvements, Review Period Ends: 07/17/2018, Contact: Erica Dickerman 970-870-2185 Amended Notice

    Revision to the Federal Register Notice published 06/01/2018, extend comment period from 07/24/2018 to 07/31/2018,

    EIS No. 20180111, Draft, NMFS, NAT, Draft Environmental Impact Statement for Issuing Annual Catch Limits to the Alaska Eskimo Whaling Commission for a Subsistence Hunt on Bowhead Whales for the Years 2019 and Beyond, Contact: John Henderschedt, 301-427-8385 Dated: June 5, 2018. Rob Tomiak, Director, Office of Federal Activities.
    [FR Doc. 2018-12334 Filed 6-7-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY [EPA-HQ-OAR-2018-0295; FRL-9979-20-OAR] RIN 2060-AT40, 2060-AT39, 2060-AT38, 2060-AT37, 2060-AT36 Response to Clean Air Act Section 126(b) Petitions From Delaware and Maryland AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Notice of proposed action on petitions.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to deny four petitions submitted by the state of Delaware and one petition submitted by the state of Maryland under Clean Air Act (CAA or Act) section 126(b). The petitions were submitted between July and November 2016. Each of Delaware's four petitions requested that the EPA make a finding that emissions from individual sources in Pennsylvania or West Virginia are significantly contributing to Delaware's nonattainment of the 2008 and 2015 8-hour ozone national ambient air quality standards (NAAQS). Maryland's petition requested that the EPA make a finding that emissions from 36 electric generating units in Indiana, Kentucky, Ohio, Pennsylvania, and West Virginia are significantly contributing to ozone levels that exceed the 2008 8-hour ozone NAAQS in Maryland, and, therefore, are interfering with nonattainment and maintenance of the 2008 ozone NAAQS. The EPA proposes to deny all five petitions because Delaware and Maryland have not met their burden to demonstrate that the sources emit or would emit in violation of the CAA's “good neighbor” provision (i.e., the petitions have not demonstrated that the sources will significantly contribute to nonattainment or interfere with maintenance of the 2008 or 2015 ozone NAAQS in the petitioning states). The EPA is further proposing to deny the petitions based on the agency's independent analysis that the identified sources do not currently emit and are not expected to emit pollution in violation of the good neighbor provision for either the 2008 or 2015 ozone NAAQS.

    DATES:

    Comments. Comments must be received on or before July 23, 2018. Public Hearing. The EPA will hold a public hearing on the proposed action. Details will be announced in a separate Federal Register document.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-HQ-OAR-2018-0295, at http://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 (e.g., 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:

    Questions concerning this proposed notice should be directed to Mr. Lev Gabrilovich, U.S. Environmental Protection Agency, Office of Air Quality Planning and Standards, Air Quality Policy Division, Mail Code C539-01, Research Triangle Park, NC 27711, telephone (919) 541-1496; email at [email protected]

    SUPPLEMENTARY INFORMATION:

    The information in this document is organized as follows:

    I. General Information II. Executive Summary of the EPA's Decision on CAA Section 126(b) Petitions From Delaware and Maryland III. Background and Legal Authority A. Ozone and Public Health B. Clean Air Act Sections 110 and 126 C. The EPA's Historical Approach to Addressing Interstate Transport of Ozone Under the Good Neighbor Provision D. The CAA Section 126(b) Petitions From Delaware E. The CAA Section 126(b) Petition From Maryland IV. The EPA's Proposed Decision on Delaware's and Maryland's CAA Section 126(b) Petitions A. The EPA's Approach for Granting or Denying CAA Section 126(b) Petitions Regarding the 2008 and 2015 8-Hour Ozone NAAQS B. The EPA's Evaluation of Whether the Petitions Are Sufficient To Support a Section 126(b) Finding C. The EPA's Independent Analysis of the CAA Section 126(b) Petitions D. The EPA's Independent Analysis of Sources Without Selective Catalytic Reduction Post Combustion Controls V. Conclusion VI. Determinations Under Section 307(b)(1) VII. Statutory Authority I. General Information

    Throughout this document, wherever “we,” “us,” or “our” is used, we mean the United States (U.S.) EPA.

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

    The EPA has established a docket for this action under Docket ID No. EPA-HQ-OAR-2018-0295 (available at http://www.regulations.gov). The EPA has made available information related to the proposed action and the public hearing at website: https://www.epa.gov/ozone-pollution/ozone-national-ambient-air-quality-standards-naaqs-section-126-petitions.

    II. Executive Summary of the EPA's Decision on CAA Section 126(b) Petitions From Delaware and Maryland

    In 2016, the states of Delaware and Maryland submitted a total of five petitions requesting that the EPA make findings pursuant to CAA section 126(b) that emissions from numerous upwind sources significantly contribute to nonattainment and/or interfere with maintenance of the ozone NAAQS in violation of CAA section 110(a)(2)(D)(i)(I), otherwise known as the good neighbor provision. Delaware submitted four petitions, each alleging good neighbor violations related to the 2008 and 2015 ozone NAAQS by individual sources located in Pennsylvania or West Virginia. Maryland submitted a single petition alleging good neighbor violations related to the 2008 ozone NAAQS by 36 electric generating units (EGUs) in five states.

    The EPA is evaluating the petitions consistent with the same four-step regional analytic framework that the EPA has used in previous regulatory actions addressing regional interstate ozone transport problems. The EPA is therefore using this framework to evaluate whether the petitions meet the standard to demonstrate under CAA section 126(b) that the sources emit or would emit in violation of the good neighbor provision based on both current and anticipated future emissions levels. The EPA identifies two bases for denying the petitions. First, the agency's historical approach to evaluating CAA section 126(b) petitions looks to see whether a petition, standing alone, identifies or establishes an analytic basis for the requested CAA section 126(b) finding, and the agency identified several elements of the states' analysis that are considered insufficient to support the states' conclusions. Second, the EPA also can rely on its own independent analyses to evaluate the potential basis for the requested CAA section 126(b) finding. The EPA is, therefore, proposing to find, based on its own analysis, that there are no additional highly cost-effective emissions reductions available at the sources, and, thus, that none of the named sources currently emit or would emit in violation of the good neighbor provision with respect to the relevant ozone NAAQS.

    Section III of this notice provides background information regarding the EPA's approach to addressing the interstate transport of ozone under CAA sections 110(a)(2)(D)(i) and 126(b), and provides a summary of the relevant issues raised in Delaware's and Maryland's CAA section 126(b) petitions. Section IV of this notice details the EPA's proposed action to deny these petitions, including explaining the EPA's approach for granting or denying CAA section 126(b) petitions regarding the 2008 and 2015 8-hour ozone NAAQS, identifying technical insufficiencies in the petitions, and explaining the EPA's own analysis evaluating whether the sources named in the petitions emit or would emit in violation of the good neighbor provision for the pertinent NAAQS.

    III. Background and Legal Authority A. Ozone and Public Health

    Ground-level ozone is not emitted directly into the air, but is a secondary air pollutant created by chemical reactions between nitrogen oxides (NOX) and volatile organic compounds (VOCs) in the presence of sunlight. These precursor emissions can be transported downwind directly or, after transformation in the atmosphere, as ozone. As a result, ozone formation, atmospheric residence, and transport can occur on a regional scale (i.e., hundreds of miles). For further discussion of ozone-formation chemistry, interstate transport issues, and health effects, see the Cross-State Air Pollution Rule Update for the 2008 Ozone NAAQS (CSAPR Update), 81 FR 74504, 74513-14 (October 26, 2016).

    On March 12, 2008, the EPA promulgated a revision to the ozone NAAQS, lowering both the primary and secondary standards to 75 parts per billion (ppb).1 On October 1, 2015, the EPA revised the ground-level ozone NAAQS to 70 ppb.2

    1See National Ambient Air Quality Standards for Ozone, Final Rule, 73 FR 16436 (March 27, 2008).

    2See National Ambient Air Quality Standards for Ozone, Final Rule, 80 FR 65292 (October 26, 2015).

    B. Clean Air Act Sections 110 and 126

    The statutory authority for this action is provided by CAA sections 126 and 110(a)(2)(D)(i). Section 126(b) of the CAA provides, among other things, that any state or political subdivision may petition the Administrator of the EPA to find that any major source or group of stationary sources in an upwind state emits or would emit any air pollutant in violation of the prohibition of CAA section 110(a)(2)(D)(i).3 Petitions submitted pursuant to this section are commonly referred to as CAA section 126(b) petitions. Similarly, findings by the Administrator, pursuant to this section, that a source or group of sources emits air pollutants in violation of the CAA section 110(a)(2)(D)(i) prohibition are commonly referred to as CAA section 126(b) findings.

    3 The text of CAA section 126 as codified in the U.S. Code cross-references section 110(a)(2)(D)(ii) instead of section 110(a)(2)(D)(i). The courts have confirmed that this is a scrivener's error and the correct cross-reference is to CAA section 110(a)(2)(D)(i). See Appalachian Power Co. v. EPA, 249 F.3d 1032, 1040-44 (D.C. Cir. 2001).

    CAA section 126(c) explains the effect of a CAA section 126(b) finding and establishes the conditions under which continued operation of a source subject to such a finding may be permitted. Specifically, CAA section 126(c) provides that it is a violation of section 126 of the Act and of the applicable state implementation plan (SIP): (1) For any major proposed new or modified source subject to a CAA section 126(b) finding to be constructed or operate in violation of the prohibition of CAA section 110(a)(2)(D)(i); or (2) for any major existing source for which such a finding has been made to stay in operation more than 3 months after the date of the finding. The statute, however, also gives the Administrator discretion to permit the continued operation of a source beyond 3 months if the source complies with emissions limitations and compliance schedules provided by the EPA to bring about compliance with the requirements contained in CAA sections 110(a)(2)(D)(i) and 126 as expeditiously as practicable, but in any event no later than 3 years from the date of the finding. Id.

    Section 110(a)(2)(D)(i) of the CAA, referred to as the good neighbor provision of the Act, requires states to prohibit certain emissions from in-state sources if such emissions impact the air quality in downwind states. Specifically, CAA sections 110(a)(1) and 110(a)(2)(D)(i)(I) require all states, within 3 years of promulgation of a new or revised NAAQS, to submit SIPs that contain adequate provisions prohibiting any source or other type of emissions activity within the state from emitting any air pollutant in amounts which will contribute significantly to nonattainment in, or interfere with maintenance by, any other state with respect to that NAAQS. As described further in Section III.C, the EPA has developed a number of regional rulemakings to address CAA section 110(a)(2)(D)(i)(I) for the various ozone NAAQS. The EPA's most recent rulemaking, the CSAPR Update, was promulgated to address interstate transport under section 110(a)(2)(D)(i)(I) for the 2008 ozone NAAQS. 81 FR 74504 (October 26, 2016). The EPA notes that the petitions from both states were submitted before the implementation of the emissions budgets promulgated in the CSAPR Update.

    C. The EPA's Historical Approach To Addressing Interstate Transport of Ozone Under the Good Neighbor Provision

    Given that formation, atmospheric residence, and transport of ozone occur on a regional scale (i.e., hundreds of miles) over much of the eastern U.S., the EPA has historically addressed interstate transport of ozone pursuant to the good neighbor provision through a series of regional rulemakings focused on the reduction of NOX emissions. In developing these rulemakings, the EPA has typically found that downwind states' problems attaining and maintaining the ozone NAAQS result, in part, from the contribution of pollution from multiple upwind sources located in different upwind states.

    The EPA has promulgated four regional interstate transport rulemakings that have addressed the good neighbor provision with respect to various ozone NAAQS considering the regional nature of ozone transport. Each of these rulemakings essentially followed the same four-step framework to quantify and implement emissions reductions necessary to address the interstate transport requirements of the good neighbor provision. These steps are:

    (1) Identifying downwind air quality problems relative to the ozone NAAQS. The EPA has identified downwind areas with air quality problems (referred to as “receptors”) considering monitored ozone data where appropriate and air quality modeling projections to a future compliance year. Pursuant to the opinion in North Carolina v. EPA, 531 F.3d 896, 908-911 (D.C. Cir. 2008), the agency identified areas expected to be in nonattainment with the ozone NAAQS and those areas that may struggle to maintain the NAAQS;

    (2) determining which upwind states are linked to these identified downwind air quality problems and warrant further analysis to determine whether their emissions violate the good neighbor provision. In the EPA's most recent rulemakings, the EPA identified such upwind states to be those modeled to contribute at or above a threshold equivalent to one percent of the applicable NAAQS.

    (3) for states linked to downwind air quality problems, identifying upwind emissions on a statewide basis that will significantly contribute to nonattainment or interfere with maintenance of a standard. In all four of the EPA's prior rulemakings, the EPA apportioned emissions reduction responsibility among multiple upwind states linked to downwind air quality problems using cost- and air quality-based criteria to quantify the amount of a linked upwind state's emissions that must be prohibited pursuant to the good neighbor provision; and

    (4) for states that are found to have emissions that significantly contribute to nonattainment or interfere with maintenance of the NAAQS downwind, implementing the necessary emissions reductions within the state. The EPA has done this for its federal implementation plans (FIPs) addressing the good neighbor provision for the ozone NAAQS by requiring affected sources in upwind states to participate in allowance trading programs to achieve the necessary emissions reductions.4

    4 While the EPA has chosen to implement emission reductions through allowance trading programs for states found to have a downwind impact, upwind states can choose to submit a SIP that implements such reductions through other enforceable mechanisms that meets the requirements of the good neighbor provision.

    The EPA's first such rulemaking, the NOX SIP Call, addressed interstate transport with respect to the 1979 ozone NAAQS. 63 FR 57356 (October 27, 1998). The EPA concluded in the NOX SIP Call that “[t]he fact that virtually every nonattainment problem is caused by numerous sources over a wide geographic area is a factor suggesting that the solution to the problem is the implementation over a wide area of controls on many sources, each of which may have a small or unmeasurable ambient impact by itself.” 63 FR 57356, 57377 (October 27, 1998). The NOX SIP Call promulgated statewide emissions budgets and required upwind states to adopt SIPs that would decrease NOX emissions by amounts that would meet these budgets, thereby eliminating the emissions that significantly contribute to nonattainment or interfere with maintenance of the ozone NAAQS in downwind states. The EPA also promulgated a model rule for a regional allowance trading program called the NOX Budget Trading Program that states could adopt in their SIPs as a mechanism to achieve some or all of the required emissions reductions. All of the jurisdictions covered by the NOX SIP Call ultimately chose to adopt the NOX Budget Trading Program into their SIPs. The NOX SIP Call was upheld by the U.S. Court of Appeals for the District of Columbia Circuit (D.C. Circuit) in all pertinent respects. See Michigan v. EPA, 213 F.3d 663 (2000).

    In coordination with the NOX SIP Call rulemaking under CAA section 110(a)(2)(D)(i)(I), the EPA also addressed several pending CAA section 126(b) petitions submitted by eight northeastern states regarding the same air quality issues addressed by the NOX SIP Call (i.e., interstate ozone transport for the 1979 ozone NAAQS). These CAA section 126(b) petitions asked the EPA to find that ozone emissions from numerous sources located in 22 states and the District of Columbia had adverse air quality impacts on the petitioning downwind states. Based on technical determinations made in the NOX SIP Call regarding upwind state impacts on downwind air quality, the EPA in May 1999 made technical determinations regarding the claims in the petitions, but did not at that time make the CAA section 126(b) findings requested by the petitions. 64 FR 28250 (May 25, 1999). In making these technical determinations, the EPA concluded that the NOX SIP Call would fully address and remediate the claims raised in these petitions, and that the EPA would therefore not need to take separate action to remedy any potential violations of the CAA section 110(a)(2)(D)(i) prohibition. 64 FR 28252. However, subsequent litigation over the NOX SIP Call led the EPA to “de-link” the CAA section 126(b) petition response from the NOX SIP Call; the EPA made final CAA section 126(b) findings for 12 states and the District of Columbia. The EPA found that sources in these states emitted in violation of the prohibition in the good neighbor provision with respect to the 1979 ozone NAAQS based on the affirmative technical determinations made in the May 1999 rulemaking. In order to remedy the violation under CAA section 126(c), the EPA required affected sources in the upwind states to participate in a regional allowance trading program whose requirements were designed to be interchangeable with the requirements of the optional NOX Budget Trading Program model rule provided under the NOX SIP Call. 65 FR 2674 (January 18, 2000). The EPA's action on these section 126(b) petitions was upheld by the D.C. Circuit. See Appalachian Power Co. v. EPA, 249 F.3d 1032 (D.C. Cir. 2001).

    The EPA next promulgated the Clean Air Interstate Rule (CAIR) to address interstate transport under the good neighbor provision with respect to the 1997 ozone NAAQS, as well as the 1997 fine particulate matter (PM2.5) NAAQS. The EPA adopted the same framework for quantifying the level of states' significant contribution to downwind nonattainment in CAIR as it used in the NOX SIP Call, based on the determination in the NOX SIP Call that downwind ozone nonattainment is due to the impact of emissions from numerous upwind sources and states. 70 FR 25162, 25172 (May 12, 2005). The EPA explained that “[t]ypically, two or more States contribute transported pollution to a single downwind area, so that the `collective contribution' is much larger than the contribution of any single State.” 70 FR 25186. CAIR included two distinct regulatory processes: (1) A regulation to define significant contribution (i.e., the emissions reduction obligation) under the good neighbor provision and provide for submission of SIPs eliminating that contribution, 70 FR 25162 (May 12, 2005); and (2) a regulation to promulgate, where necessary, FIPs imposing emissions limitations, 71 FR 25328 (April 28, 2006). The FIPs required EGUs in affected states to participate in regional allowance trading programs, which replaced the previous NOX Budget Trading Program.

    In conjunction with the second CAIR regulation promulgating FIPs, the EPA acted on a CAA section 126(b) petition received from the state of North Carolina on March 19, 2004, seeking a finding that large EGUs located in 13 states were significantly contributing to nonattainment and/or interfering with maintenance of the 1997 ozone NAAQS and the 1997 PM2.5 NAAQS in North Carolina. Citing the analyses conducted to support the promulgation of CAIR, the EPA denied North Carolina's CAA section 126(b) petition in full based on a determination that either the named states were not adversely impacting downwind air quality in violation of the good neighbor provision or such impacts were fully remedied by implementation of the emissions reductions required by the CAIR FIPs. 71 FR 25328, 25330 (April 28, 2006).

    The D.C. Circuit found that EPA's approach to section 110(a)(2)(D)(i)(I) in CAIR was “fundamentally flawed” in several respects, and the rule was remanded in July 2008 with the instruction that the EPA replace the rule “from the ground up.” North Carolina v. EPA, 531 F.3d at 929. The decision did not find fault with the EPA's general multi-step framework for addressing interstate ozone transport, but rather concluded the EPA's analysis did not address all elements required by the statute. The EPA's separate action denying North Carolina's CAA section 126(b) petition was not challenged.

    On August 8, 2011, the EPA promulgated the Cross-State Air Pollution Rule (CSAPR) to replace CAIR. 76 FR 48208 (August 8, 2011). CSAPR addressed the same ozone and PM2.5 NAAQS as CAIR and, in addition, addressed interstate transport for the 2006 PM2.5 NAAQS by requiring 28 states to reduce sulfur dioxide (SO2) emissions, annual NOX emissions, and/or ozone season NOX emissions that would significantly contribute to other states' nonattainment or interfere with other states' abilities to maintain these air quality standards. Consistent with prior determinations made in the NOX SIP Call and CAIR, the EPA again found that multiple upwind states contributed to downwind ozone nonattainment. Specifically, the EPA found “that the total `collective contribution' from upwind sources represents a large portion of PM2.5 and ozone at downwind locations and that the total amount of transport is composed of the individual contribution from numerous upwind states.” 76 FR 48237. Accordingly, the EPA conducted a regional analysis, calculated emissions budgets for affected states, and required EGUs in these states to participate in new regional allowance trading programs to reduce statewide emissions levels. CSAPR was subject to nearly 4 years of litigation. Ultimately, the Supreme Court upheld the EPA's approach to calculating emissions reduction obligations and apportioning upwind state responsibility under the good neighbor provision, but also held that the EPA was precluded from requiring more emissions reductions than necessary to address downwind air quality problems, or “over-controlling.” See EPA v. EME Homer City Generation, L.P., 134 S. Ct. 1584, 1607-09 (2014).5

    5 On remand from the Supreme Court, the D.C. Circuit further affirmed various aspects of the CSAPR, while remanding the rule without vacatur for reconsideration of certain states' emissions budgets, where it found those budgets “over-controlled” emissions beyond what was necessary to address the good neighbor requirement. EME Homer City Generation, L.P. v. EPA, 795 F.3d 118 (2015). The EPA addressed the remand in several rulemaking actions in 2016 and 2017.

    Most recently, the EPA promulgated the CSAPR Update to address the good neighbor provision requirements for the 2008 ozone NAAQS. 81 FR 74504 (October 26, 2016). The final CSAPR Update built upon previous efforts to address the collective contributions of ozone pollution from 22 states in the eastern U.S. to widespread downwind air quality problems, including the NOX SIP Call, CAIR, and the original CSAPR. As was also the case for the previous rulemakings, the EPA identified emissions from large EGUs as significantly contributing and/or interfering with maintenance based on cost and air quality factors. The CSAPR Update finalized EGU NOX ozone season emissions budgets for affected states that were developed using uniform control stringency available at a marginal cost of $1,400 per ton of NOX reduced. This level of control stringency represented ozone season NOX reductions that could be achieved in the 2017 analytic year, which was relevant to the upcoming 2018 attainment date for moderate ozone nonattainment areas, and included the potential for operating and optimizing existing selective catalytic reduction (SCR) post-combustion controls; installing state-of-the-art NOX combustion controls; and shifting generation to existing units with lower NOX emissions rates within the same state.

    The CSAPR Update finalized enforceable measures necessary to achieve the emission reductions in each state by requiring power plants in covered states to participate in the CSAPR NOX Ozone Season Group 2 allowance trading program. The CSAPR trading programs and the EPA's prior emissions trading programs (e.g., the NOX Budget Trading Program associated with the NOX SIP Call) have provided a proven, cost-effective implementation framework for achieving emissions reductions. In addition to providing environmental certainty (i.e., a cap on regional and statewide emissions), these programs have also provided regulated sources with flexibility when choosing compliance strategies. This implementation approach was shaped by previous rulemakings and reflects the evolution of these programs in response to court decisions and practical experience gained by states, industry, and the EPA.

    In finalizing the CSAPR Update, the EPA determined the rule may only be a partial resolution of the good neighbor obligation for all but one of the states subject to that action, including those addressed in Delaware's and Maryland's petitions (Indiana, Kentucky, Ohio, Pennsylvania, and West Virginia), and that the emissions reductions required by the rule “may not be all that is needed” to address transported emissions.6 81 FR 74521-22 (October 26, 2016). The EPA noted that the information available at that time indicated that downwind air quality problems would remain in 2017 after implementation of the CSAPR Update, and that upwind states continued to be linked to those downwind problems at or above the one-percent threshold. However, the EPA could not determine whether, at step three of the four-step framework, the EPA had quantified all emissions reductions that may be considered highly cost effective because the rule did not evaluate non-EGU ozone season NOX reductions and further EGU control strategies (i.e., the implementation of new post-combustion controls) that are achievable on timeframes extending beyond 2017 analytic year.

    6 The EPA determined that the emission reductions required by the CSAPR Update satisfied the full scope of the good neighbor obligation for Tennessee with respect to the 2008 ozone NAAQS. 81 FR 74551-52.

    Of particular relevance to this action, the EPA determined in the CSAPR Update that emissions from the states identified in Maryland's petition were linked to maintenance concerns for the 2008 ozone NAAQS in Maryland based on air quality modeling projections to 2017. 81 FR 74538-39. With respect to Delaware, the EPA in the CSAPR Update did not identify any downwind air quality problems in Delaware with respect to the 2008 ozone NAAQS, and, therefore, did not determine that emissions from any of the states identified in the four petitions would be linked to Delaware. The CSAPR Update modeling indicated no monitors in Delaware with a projected average or maximum design value above the level of the 2008 ozone NAAQS in 2017.7

    7See modeling conducted for purposes of the proposed CSAPR Update in 2015. 80 FR 75706, 75725-726 (December 3, 2015).

    For states linked to downwind air quality problems, the EPA in the CSAPR Update found there were cost-effective emissions reductions that could be achieved within upwind states at a marginal cost of $1,400 per ton, quantified an emissions budget for each state based on that level of control potential, and required EGUs located within the state, including the sources identified in Maryland and Delaware's petitions, to comply with the EPA's allowance trading program under the CSAPR Update beginning with the 2017 ozone season. The EPA found that these emissions budgets were necessary to achieve the required emissions reductions and mitigate impacts on downwind states' air quality in time for the July 2018 moderate area attainment date for the 2008 ozone NAAQS.

    D. The CAA Section 126(b) Petitions From Delaware

    In 2016, the state of Delaware, through the Delaware Department of Natural Resources and Environmental Control (Delaware), submitted four petitions claiming that four individual sources in Pennsylvania and West Virginia significantly contribute to Delaware's nonattainment of the 2008 and 2015 8-hour ozone NAAQS. In particular, Delaware's petitions allege that emissions from the Harrison Power Station (Harrison), the Homer City Generating Station (Homer City), and the Brunner Island Steam Generating Station (Brunner Island) in Pennsylvania, and the Conemaugh Generating Station (Conemaugh) in West Virginia, significantly contribute to exceedances of the 2008 8-hour ozone NAAQS in the state of Delaware. The petitions identify a total of 59 exceedance days in the six ozone seasons between 2010 and 2015. Furthermore, Delaware contends that if the 2015 8-hour ozone NAAQS had been in effect during this period, Delaware would have experienced a total of 113 exceedance days in those ozone seasons. Notably, Harrison is equipped with low NOX burners (LNBs), overfire air (OFA), and SCR for control of NOX emissions at all three units. Homer City is equipped with LNBs, OFA, and SCR for control of NOX emissions at all three units. Conemaugh is equipped with LNBs, close-coupled and separated overfire air (CC/SOFA), and SCR for control of NOX emissions at both units. Brunner Island is equipped with LNBs and combustion air controls.

    1. Common Arguments in Delaware Petitions

    Each of the Delaware petitions alleges that an individual source significantly contributes to nonattainment of the 2008 and 2015 8-hour ozone NAAQS in Delaware based on two common arguments. First, all four petitions allege that the EPA's modeling conducted in support of the CSAPR Update shows that the states in which these sources are located contribute one percent or more of the 2008 8-hour ozone NAAQS to ozone concentrations in Delaware. Second, all four petitions point to additional modeling for support. The Brunner Island and Harrison petitions cite an August 6, 2015, technical memorandum from Sonoma Technology, Inc. (STI), which describes contribution modeling conducted with respect to Brunner Island. The Conemaugh and Homer City petitions cite October 24, 2016, CAMx modeling documentation. Delaware did not provide the EPA with this documentation. Based on this modeling, the petitions claim that all four sources had modeled contributions above one percent of the 2008 8-hour ozone NAAQS to locations in Delaware on select days during the 2011 ozone season.

    All four petitions also contend that the absence of short-term NOX emissions limits causes the named sources to significantly contribute to Delaware's nonattainment of the 2008 and 2015 ozone NAAQS. The petitions, therefore, ask the EPA to implement short-term NOX emissions limits as a remedy under CAA section 126(c). The petitions identify existing regulatory programs aimed at limiting NOX emissions at the sources, but argue that these programs are not effective at preventing emissions from significantly contributing to downwind air quality problems in Delaware. In the case of Brunner Island, Homer City, and Conemaugh, Delaware argues that the Pennsylvania NOX reasonable available control technology (RACT) regulation includes a 30-day averaging period for determining emissions rates, which will allow the facilities to emit above the rate limit on specific days while still meeting the 30-day average limit. Furthermore, the state argues that although all four facilities named in Delaware's petitions have been subject to several NOX emissions cap-and-trade programs that effectively put a seasonal NOX emissions mass cap on the fleet of subject units, the subject units are not required to limit their NOX emissions over any particular portion of the ozone season as long as they are able to obtain sufficient NOX allowances to cover each unit's actual ozone season NOX mass emissions. The state alleges that the sources have been able to attain compliance without having to make any significant reductions in their ozone season average NOX emissions rates. Delaware also acknowledges that Brunner Island can use natural gas as fuel at all three units, lowering the units' NOX emissions, but argues that Brunner Island's ability to also use coal indicates that, without a short-term NOX emissions limit, the units will continue to significantly contribute to nonattainment or interfere with maintenance of the ozone NAAQS in Delaware. In the case of Conemaugh, Harrison, and Homer City, Delaware similarly contends that current NOX emissions regulations applicable to sources in Pennsylvania and West Virginia do not prevent significant contribution to Delaware's nonattainment of the ozone NAAQS. As indicated in this notice, unlike Brunner Island, these sources all have SCR to control NOX emissions. Delaware argues that a review of emissions rates since the SCRs were installed indicates that the SCRs are being turned off or operated at reduced levels of effectiveness in the ozone season. Thus, in Delaware's view, these sources also need a short-term NOX emissions limit to incentivize effective and consistent NOX control operation. The following sections describe additional information Delaware provided in each specific petition.

    2. Delaware's Petition Regarding the Harrison Power Station

    Delaware's August 8, 2016 CAA section 126(b) petition addresses the Harrison Power Station,8 identified as a 2,052-megawatt facility located near Haywood, Harrison County, West Virginia, with three coal-fired steam EGUs. To support its petition, Delaware states that, based on the STI modeling, the Harrison Power Station had a modeled impact above one percent of the NAAQS on August 10, 2011. Delaware further states that a review of emissions data indicates that the facility emitted 61.588 tons of NOX on that day. Delaware concludes that emissions data indicate that daily ozone season NOX emissions from the Harrison Power Station frequently exceed the 61.588 tons/day value that the petition estimated had a significant impact on Delaware's monitors.

    8See Petition from the state of Delaware under CAA section 126(b) requesting that the EPA find that Harrison Power Station's EGUs are emitting air pollutants in violation of the provisions of CAA section 110(a)(2)(D)(i) of the CAA with respect to the 2008 and the 2015 ozone NAAQS, available in the docket for this action.

    Delaware indicates that the Harrison Power Station is subject to operating permit NOX emissions rate limits and has been subject to various NOX emissions allowance trading programs, which Delaware asserts put a seasonal NOX emissions mass cap on the fleet of subject units. Delaware asserts, however, that these programs do not require the subject units to limit their NOX emissions over any particular portion of the ozone season as long as each EGU is able to obtain sufficient NOX allowances to balance that unit's actual ozone season NOX mass emissions. Delaware further indicates that the Harrison Power Station's owner has submitted a permit amendment to install and operate a refined coal facility to produce lower-emitting coal as fuel for combustion in the Harrison Power Station's coal-fired EGU steam generators. The amendment includes ozone season NOX emissions rate limits of 0.20 lb/MMBTU, 30-day average, for each of the three coal-fired EGUs.9

    9 Delaware states that as of the preparation of this petition, this permit amendment has not been approved and is therefore not yet in force.

    According to Delaware, from the 2010 ozone season and beyond, the ozone season average NOX emissions rates for each of the three Harrison Power Station coal-fired EGUs were well above what might be expected from coal-fired EGUs with operating SCRs. Delaware contends these existing NOX emissions rate limits and seasonal NOX mass emissions regulatory requirements have not been sufficient to result in consistently low NOX emissions rates from the Harrison Power Station EGUs. Moreover, Delaware claims that emissions data indicate that decisions to operate the SCR NOX controls at the Harrison Power Station at reduced levels of effectiveness are made on both a seasonal and daily basis as a result of other EGU operating influences.

    3. Delaware's Petition Regarding the Homer City Generating Station

    Delaware's November 10, 2016, CAA section 126(b) petition cites the Homer City Generating Station,10 identified as a 2,012-megawatt facility located in Indiana County, Pennsylvania, with three coal-fired steam generators. To support their petition, Delaware states that, based on the STI modeling, the Homer City Generating station had a modeled impact above one percent of the NAAQS on July 18, 2011. Delaware further states that a review of the Homer City Generating Station's emissions data indicates that, on that day, the facility emitted 38.153 tons of NOX. Delaware claims that between 2011 and 2016 the facility exceeded emissions of 38.153 tons/day on multiple days. Thus, Delaware claims that, while weather patterns affect the frequency and magnitude of the impacts that the Homer City Generating Station's NOX emissions have on Delaware's air quality, the data provide an indication that the NOX emissions from the Homer City Generating Station have historically been at levels sufficient to have a significant impact.

    10See Petition from the state of Delaware under CAA section 126(b) requesting that the EPA find that Homer City Generating Station's EGUs are emitting air pollutants in violation of the provisions of CAA section 110(a)(2)(D)(i) of the CAA with respect to the 2008 and the 2015 ozone NAAQS, available in the docket for this action.

    4. Delaware's Petition Regarding the Conemaugh Generating Station

    Delaware's November 28, 2016, CAA section 126(b) petition cites the Conemaugh Generating Station,11 identified as a 1,872-megawatt facility located in Indiana County, Pennsylvania, with two coal-fired steam electric generating units. To support its petition, Delaware states that, based on the STI modeling, the Conemaugh Generating Station had a modeled impact above one percent on ten separate days in 2011, which coincided with daily NOX mass emissions from Conemaugh ranging between 54.516 and 67.173 tons. Furthermore, Delaware indicated that Delaware monitors were exceeding the 2008 ozone NAAQS on eight of the days in 2011 with alleged significant impacts. Delaware analyzed air parcel trajectories modeled with the Hybrid Single Particle Lagrangian Integrated Trajectory (HYSPLIT) on selected days on which the state alleged it experienced significant impacts from the source. According to Delaware, these trajectories indicating contribution from Conemaugh's NOX emissions, which coincided with the STI model's estimated ozone impact events, show that emissions from Conemaugh are significantly contributing to ozone concentrations in Delaware.

    11See Petition from the state of Delaware under CAA section 126(b) requesting that the EPA find that Conemaugh Generating Station's EGUs are emitting air pollutants in violation of the provisions of CAA section 110(a)(2)(D)(i) of the CAA with respect to the 2008 and the 2015 ozone NAAQS, available in the docket for this action.

    5. Delaware's Petition Regarding the Brunner Island Electric Steam Station

    Delaware's July 7, 2016, CAA section 126(b) petition cites emissions from the Brunner Island Electric Steam Station,12 a 1,411-megawatt facility located in York County, Pennsylvania with three tangentially-fired steam boiler EGUs, each equipped with low NOX burner technology with closed-coupled/separated over fire air (LNC3) combustion controls.13

    12See Petition from the state of Delaware under CAA section 126(b) requesting that the EPA find that Brunner Island Facility's EGUs are emitting air pollutants in violation of the provisions of section 110(a)(2)(D)(i) of the CAA with respect to the 2008 and the 2015 ozone NAAQS, available in the docket for this action.

    13 For tangentially-fired boiler types, LNC3 is state of the art control technology. See sections 3.9.2 and 5.2.1 on pages 3-25 and 5-5 of the Integrated Planning Model (IPM) 5.13 documentation for details about combustion controls. The IPM documentation is available at https://www.epa.gov/airmarkets/power-sector-modeling-platform-v513.

    According to Delaware, a modeling analysis conducted by STI estimated that during the 2011 ozone season the Brunner Island facility's NOX emissions had a significant impact on Delaware's ambient ozone on 43 separate days relative to the 2015 8-hour ozone NAAQS of 70 ppb and on 41 separate days relative to the 2008 8-hour ozone NAAQS of 75 ppb. The highest estimated impact was predicted on June 8, 2011, with a modeled impact value of 4.83 ppb. Delaware states that the data also indicate that Brunner Island facility NOX emissions contributed at significant levels to ozone NAAQS exceedances in Delaware on 9 of the 15 days in 2011. However, Delaware does not identify which of the identified days were exceedance days or the specific ozone NAAQS exceeded. Delaware also notes that the STI modeling information and Air Markets Program Data (AMPD) emissions data indicate that on September 13, 2011, Brunner Island had a modeled impact on Delaware ozone approximately twice the value identified as the threshold for significant impact (1.41 ppb estimated impact compared to 0.70 ppb for significant impact). According to the petition, this impact was caused by emissions amounting to about half of the facility's recorded peak daily NOX, and is an indication that even lower amounts of Brunner Island facility NOX mass emissions (compared to the 27.4 tons/day value documented in the EPA's AMPD) may still have significant impact on Delaware's measured ozone levels under certain atmospheric conditions. However, the petition does not identify whether September 13, 2011, was a day that exceeded the 2008 ozone NAAQS.

    6. Subsequent Actions and Correspondence Regarding the Delaware Petitions

    Subsequent to receiving the petitions, the EPA published final rules extending the statutory deadline for the agency to take final action on all four of Delaware's section 126(b) petitions. Section 126(b) of the Act requires the EPA to either make a finding or deny a petition within 60 days of receipt of the petition and after holding a public hearing. However, any action taken by the EPA under CAA section 126(b) is subject to the procedural requirements of CAA section 307(d). See CAA section 307(d)(1)(N). This section of the CAA requires the EPA to conduct notice-and-comment rulemaking, including issuance of a notice of proposed action, a period for public comment, and a public hearing before making a final determination whether to make the requested finding. In light of the time required for notice-and-comment rulemaking, CAA section 307(d)(10) provides for a time extension, under certain circumstances, for rulemakings subject to the section 307(d) procedural requirements. In accordance with CAA section 307(d)(10), the EPA determined that the 60-day period for action on Delaware's petitions would be insufficient for the EPA to complete the necessary technical review, develop an adequate proposal, and allow time for notice and comment, including an opportunity for public hearing. Therefore, on August 23, 2016, the EPA published a notice extending the deadline to act on Delaware's Brunner Island petition to March 5, 2017.14 On September 27, 2016, the EPA published a notice extending the deadline to act on Delaware's Harrison Power Station petition to April 7, 2017.15 On December 29, 2016, the EPA published a notice extending the deadline to act on Delaware's Homer City petition to July 9, 2017.16 On January 23, 2017, the EPA published a notice extending the deadline to act on Delaware's Conemaugh petition to August 3, 2017.17 The notices extending these deadlines can be found in the docket for this rulemaking.

    14 81 FR 57461 (August 23, 2016).

    15 81 FR 66189 (September 27, 2016).

    16 81 FR 95884 (December 29, 2016).

    17 82 FR 7595 (January 23, 2017).

    On March 5, 2017, the Chesapeake Bay Foundation (CBF) submitted a letter in support of Delaware's petition regarding Brunner Island. The CBF supports Delaware's argument that emissions from the named coal-fired EGUs significantly contribute to nonattainment and interfere with maintenance of the ozone NAAQS in Delaware. On April 11, 2017, the CBF sent a second letter in support of Delaware's petition regarding Harrison. The CBF supports Delaware's argument that emissions data since 2011 demonstrate that Harrison's operators have either ceased to operate the SCR systems regularly or have chosen to operate them in a sub-optimal manner. In both letters, the CBF argued that the EPA should implement an emissions rate limit at both facilities based on short averaging periods and indicated that Delaware's proposed remedy would help reduce nitrogen deposition to the Chesapeake Bay watershed, with beneficial effects upon the health of the Bay.

    On June 20, 2017, the Midwest Ozone Group (MOG) submitted a letter urging the EPA to deny the Conemaugh petition and asserted that Delaware does not have ozone nonattainment or maintenance problems upon which to base a CAA section 126(b) petition. The MOG contends that Delaware air quality currently meets the 2008 8-hour ozone NAAQS, was projected to attain the standard in 2017 18 , and will continue to improve with the implementation of existing regulatory programs. The MOG also suggests that the EPA cannot grant a CAA section 126(b) petition for the 2015 ozone NAAQS until after the EPA has issued designations for that standard.

    18 Note that the EPA designated certain areas of Delaware nonattainment for the 2008 ozone NAAQS. 77 FR 30088 (May 21, 2012).

    The EPA acknowledges receipt of these letters and has made them available in the docket for this action. However, the EPA is not in this action responding directly to these letters. Rather, the EPA encourages interested parties to review this proposal and then submit relevant comments during the public comment period.

    E. The CAA Section 126(b) Petition From Maryland

    On November 16, 2016, the state of Maryland, through the Maryland Department of the Environment, submitted a CAA section 126(b) petition alleging that emissions from 36 EGUs significantly contribute to ozone levels that exceed the 2008 ozone NAAQS in Maryland and therefore interfere with both attainment and maintenance of the NAAQS.19 These sources are coal-fired EGUs located in Indiana, Kentucky, Ohio, Pennsylvania, and West Virginia, which Maryland notes are states that EPA has already determined are significantly contributing to nonattainment in Maryland under the 2008 ozone NAAQS. Maryland indicates that all of these sources have SCR or Selective Non-Catalytic Reduction (SNCR) to control NOX emissions. In addition, Maryland's technical support document discusses modeling conducted by the University of Maryland, which claims to show that ozone concentrations would reduce if these EGUs were to optimize running their SCR and SNCR controls, and provides control optimization modeling scenarios which project the ozone impacts of optimizing emissions controls in 2018. Maryland suggests, by way of using its own state regulation as an example, that optimizing controls means operating controls consistent with technological limitations, manufacturers' specifications, good engineering and maintenance practices, and good air pollution control practices for minimizing emissions.

    19See Petition to the United States Environmental Protection Agency Pursuant to Section 126 of the Clean Air Act for Abatement of Emissions from 36 Coal-Fired Electric Generating Units at 19 Plants in Five States that Significantly Contribute to Nonattainment of, and Interfere with Maintenance of, the 2008 Ozone National Ambient Air Quality Standard in the State of Maryland, available in the docket for this action.

    The petition further alleges that Maryland's proposed remedy—discussed further below—will influence how areas in Maryland and other Mid-Atlantic states are designated under the new 2015 ozone NAAQS. According to Maryland, the proposed remedy, if implemented in 2017, would most likely allow the Baltimore area and the Washington, DC, multi-state area, which includes portions of Maryland, to both be designated attainment for the 2015 ozone NAAQS. The EPA notes that the cover letter of Maryland's petition specifically requests that EPA make a finding “that the 36 electric generating units (EGUs) . . . are emitting pollutants in violation of the provisions of Section 110(a)(2)(D)(i)(I) of the CAA with respect to the 2008 ozone National Ambient Air Quality Standards,” and the petition throughout refers only to the 2008 ozone NAAQS when identifying alleged air quality problems in Maryland and the impacts from upwind sources. Accordingly, while Maryland suggests that its requested remedy for 2008 ozone will assist in achieving attainment of the 2015 ozone NAAQS, the state has not specifically requested that EPA make a finding with respect to the 2015 ozone NAAQS, and, therefore, the EPA is not evaluating the petition for this standard.

    Maryland alleges that, although the 36 EGUs have existing post-combustion control mechanisms that should prevent significant contribution, the facilities have either ceased to operate the controls regularly during the ozone season or have chosen to operate them in a sub-optimal manner. Maryland presents an analysis based on 2005-2015 ozone season data to support this contention.20 Maryland argues that whether controls are optimally run can be determined by comparing current ozone season average emissions rates to the lowest ozone season average emissions rate after 2005 or after the unit installed SCR or SNCR. Maryland alleges that NOX emissions rates at the 36 facilities have increased significantly since the SCR and SNCR installation and initial testing, indicating that these EGUs are not operating their post-combustion controls efficiently on each day of the ozone season.

    20 Maryland Petition, Appendix A, Part 2, available in the docket for this action.

    Maryland also submitted a number of technical memoranda to support its argument. Maryland submitted analyses of control technology optimization for coal-fired EGUs in eastern states, which they contend demonstrate that NOX emissions rates at specific EGUs are well above what is considered representative of an EGU running post-combustion controls efficiently; that 2015 and 2016 EPA data show that many EGUs have not been running their post combustion controls as efficiently as they have in the past during the ozone season; and that the EPA should therefore ensure these controls are operating during the 2017 ozone season by including requirements or permit conditions requiring each named EGU to minimize emissions by optimizing existing control technologies, enforced through use of a 30-day rolling average rate.21

    21See id.

    Maryland also submitted the following documents: A review of its own NOX regulations for coal fired EGUs; 22 a detailed study conducted by Maryland and the University of Maryland regarding regional ozone transport research and analysis efforts in Maryland; 23 an August 6, 2015, STI report alleging that source apportionment modeling indicates that emissions from Brunner Island (a source not specifically addressed in Maryland's petition) contribute significantly to ozone formation in Pennsylvania and neighboring states during the modeled ozone season; 24 a list of recommended language for the EPA to include in federal orders related to the named EGUs to remedy significant contribution; 25 and an evaluation of cost savings Maryland alleges the units have incurred in 2014 by not fully running their controls compared with the cost of running their controls at full efficiency.26 As discussed previously, Maryland also submitted a memorandum detailing modeling analyses conducted by the University of Maryland, which presents projected reductions in ozone concentrations in Maryland that would occur as a result of optimized SCR and SNCR operations at the 36 sources named in Maryland's petition.27 Maryland argues that these projected reductions in ozone concentrations at Maryland monitors demonstrate that optimizing the post-combustion controls at the 36 units with SCR or SNCR would allow Maryland to attain, or come very close to attaining, the 2008 8-hour ozone NAAQS.

    22Id. Appendix B.

    23Id. Appendix C.

    24Id. Appendix D.

    25Id. Appendix E.

    26Id. Appendix F.

    27Id. Appendix D.

    Additionally, Maryland supplemented its petition with several further appendices submitted in 2017. Maryland submitted an additional optimization analysis comparing NOX emissions rates in 2006, 2015, and 2016 for EGUs listed in its petition; 28 a comparison of 2016 ozone season average emissions rates to the lowest demonstrated ozone season average emissions rates between 2005 and 2015 at 369 coal-fired EGUs in 29 states identified as the Eastern Modeling Domain; 29 a comparison of average emissions data at 21 units in Pennsylvania in the first quarter of 2017 to the lowest demonstrated ozone season average emissions rate between 2005-2016; 30 and additional photochemical modeling conducted by the University of Maryland of the impact of the 36 EGUs in the five states on ozone concentrations in Maryland, which concludes that emissions from these units significantly contribute to ozone concentrations in Maryland and therefore contribute to nonattainment and interfere with the maintenance of the 8-hour ozone NAAQS.31

    28Id. Supplemental Appendix A.

    29Id. Supplemental Appendix B.

    30Id. Supplemental Appendix C.

    31Id. Supplemental Appendix D.

    Maryland's petition also requests a remedy that will compel the named units to optimize their SCR and SNCR. Maryland indicates that its petition is focused on ensuring controls are run at the units every day of the ozone season. According to Maryland, the CSAPR Update, earlier federal allowance trading programs, and many state regulations allow for longer term averaging, which means that controls do not necessarily need to be run effectively every day to comply with these requirements. Maryland claims that this has resulted in situations where sources in the five upwind states have not run their controls efficiently on many days with high ozone, and, therefore, these sources are impacting Maryland in violation of CAA section 110(a)(2)(D)(i)(I). Maryland also claims that, on some of those days, the 36 EGUs in these states emitted in the aggregate over 300 more tons of NOX than they would have if they had run their control technologies efficiently. Additionally, Maryland states that these days are often the same days where downwind ozone levels are likely to be highest because of hot, ozone-conducive weather. Maryland supports its claim by alleging that over the entire ozone season, the relief requested in its petition could result in very large reductions. Maryland contends that in 2015, approximately 39,000 tons of NOX reductions could have been achieved in the ozone season if the 36 targeted EGUs had simply run their controls efficiently. Therefore, Maryland states that, based on the EPA's past approaches in establishing significant contributions based on highly cost-effective controls, the NOX emissions from these 36 EGUs must be abated on each day of the ozone season starting in May of 2017.

    Maryland contends that emissions at the 36 EGUs can be reduced at reasonable cost, or with potentially no actual new costs to the EGUs at all,32 because this requested remedy rests on the use of existing control equipment. Maryland suggests two methods to ensure optimized use of controls at these sources. First, Maryland requests that the EPA include language in federal and state regulations or operating permits requiring the owners or operators of the relevant EGUs to use all installed pollution control technology consistent with technological limitations, manufacturers' specifications, good engineering and maintenance practices, and good air pollution control practices. Second, Maryland requests that the EPA enforce this requirement by comparing each unit's maximum 30-day rolling average emissions rate to the unit's lowest reported ozone emissions rate. Maryland also requests that this remedy be implemented by 2017 to help areas in Maryland achieve attainment in time to inform the 2015 ozone NAAQS area designations

    32 Although Maryland suggests emissions could potentially be reduced with no actual new costs to the EGUs, Maryland does not provide further information supporting its suggestion that zero-cost reductions may be available. To the contrary, Maryland states that the cost per ton range would be from $670 to $1000, depending on whether the SCR systems are in partial operation or totally idled. See Maryland Petition Appendix F, available in the docket for this action.

    1. Subsequent Actions and Correspondence Regarding the Maryland Petition

    Consistent with CAA section 307(d), as discussed in Section III.D of this notice, the EPA determined that the 60-day period for responding to Maryland's petition is insufficient for the EPA to complete the necessary technical review, develop an adequate proposal, and allow time for notice and comment, including an opportunity for public hearing, on a proposed finding regarding whether the 36 EGUs identified in the petition significantly contribute to nonattainment or interfere with maintenance of the 2008 ozone NAAQS in Maryland. On January 3, 2017, the EPA published a final rule extending the deadline for acting on Maryland's section 126(b) petition to July 15, 2017.33

    33 82 FR 22 (January 3, 2017).

    On May 17, 2017, the MOG submitted a letter asking the EPA to deny Maryland's section 126(b) petition. The MOG argues that all monitors in Maryland are either attaining the 2008 8-hour ozone NAAQS or are very close to attaining the standard, and that modeling indicates that all Maryland monitors will attain the 2008 8-hour ozone NAAQS in 2025. Furthermore, the MOG argues that the CSAPR Update moots Maryland's petition. Finally, the MOG argues that the EPA must assess the impact of international emissions when reviewing a section 126(b) petition. On May 18, 2017, the Indiana Energy Association submitted a letter making similar assertions, and urged the EPA to deny Maryland's section 126(b) petition.

    The EPA acknowledges receipt of these letters, and has made them available in the docket for this action. However, the EPA is not responding directly to these letters in this action. Rather, the EPA encourages interested parties to review this proposal and then submit relevant comments during the public comment period.

    IV. The EPA's Proposed Decision on Delaware's and Maryland's CAA Section 126(b) Petitions A. The EPA's Approach for Granting or Denying CAA Section 126(b) Petitions Regarding the 2008 and 2015 8-Hour Ozone NAAQS

    As discussed in Section III.B of this notice, section 126(b) of the CAA provides a mechanism for states and other political subdivisions to seek abatement of pollution in other states that may affect their air quality. However, it does not identify specific criteria or a specific methodology for the Administrator to apply when deciding whether to make a CAA section 126(b) finding or deny a petition. Therefore, the EPA has discretion to identify relevant criteria and develop a reasonable methodology for determining whether a CAA section 126(b) finding should be made. See, e.g., Appalachian Power, 249 F. 3d at 1050 (finding that given section 126(b)'s silence on what it means for a source to violate section 110(a)(2)(D)(i), EPA's approach, if reasonable, is entitled to deference under Chevron); Chevron, U.S.A., Inc. v. NRDC, 467 U.S. 837, 842-43 (1984); Smiley v. Citibank, 517 U.S. 735, 744-45 (1996).

    As an initial matter, the EPA's historical approach to evaluating CAA section 126(b) petitions looks first to see whether a petition establishes a sufficient basis for the requested CAA section 126(b) finding. The EPA first evaluates the technical analysis in the petition to see if that analysis, standing alone, is sufficient to support a CAA section 126(b) finding. The EPA focuses on the analysis in the petition because the statute does not require the EPA to conduct an independent technical analysis to evaluate claims made in CAA section 126(b) petitions. The petitioner, thus, bears the burden of establishing, as an initial matter, a technical basis for the specific finding requested. The EPA has no obligation to prepare an analysis to supplement a petition that fails, on its face, to include an initial technical demonstration. Such a petition, or a petition that fails to identify the specific finding requested, can be denied as insufficient. Nonetheless, the EPA has the discretion to conduct independent analyses when helpful in evaluating the basis for a potential CAA section 126(b) finding or developing a remedy if a finding is made. See e.g., 76 FR 19662, 19666 (April 7, 2011) (proposed response to petition from New Jersey regarding SO2 emissions from the Portland Generating Station); 83 FR 16064, 16070 (April 13, 2018) (final response to petition from Connecticut regarding ozone emissions from the Brunner Island Steam Electric Station). As explained in the following sections, in this instance, given the EPA's concerns with the adequacy of the information submitted as part of the CAA section 126(b) petitions, and the fact that the EPA has previously issued a rulemaking defining and at least partially addressing the same environmental concern that the petitions seek to address, the EPA determined that it was appropriate to conduct an independent analysis to determine whether it should grant or deny the petitions. Such an analysis, however, is not required by the statute and may not be necessary or appropriate in other circumstances.

    With respect to the statutory requirements of both section 110(a)(2)(D)(i) and section 126 of the CAA, the EPA has consistently acknowledged that Congress created these provisions as two independent statutory tools to address the problem of interstate pollution transport. See, e.g., 76 FR 69052, 69054 (November 7, 2011).34 Congress provided two separate statutory processes to address interstate transport without indicating any preference for one over the other, suggesting it viewed either approach as a legitimate means to produce the desired result. While either provision may be applied to address interstate transport, they are also closely linked in that a violation of the prohibition in CAA section 110(a)(2)(D)(i) is a condition precedent for action under CAA section 126(b) and, critically, that significant contribution to nonattainment and interference with maintenance are construed identically for purposes of both provisions (since the identical terms are naturally interpreted as meaning the same thing in the two linked provisions). See Appalachian Power, 249 F. 3d at 1049-50.

    34 Courts have also upheld the EPA's position that CAA sections 110(a)(2)(D)(i) and section 126 are two independent statutory tools to address the same problem of interstate transport. See GenOn REMA, LLC v. EPA, 722 F.3d 513, 520-23 (3d Cir. 2013); Appalachian Power, 249 F.3d at 1047.

    Thus, in addressing a CAA section 126(b) petition that addresses ozone transport, the EPA believes it is appropriate to interpret these ambiguous terms consistent with the EPA's historical approach to evaluating interstate ozone pollution transport under the good neighbor provision, and its interpretation and application of that related provision of the statute. As described in Sections III.A and III.C of this notice, ozone is a regional pollutant and previous EPA analyses and regulatory actions have evaluated the regional interstate ozone transport problem using a four-step regional analytic framework. The EPA most recently applied this four-step framework in the promulgation of the CSAPR Update to address interstate transport with respect to the 2008 ozone NAAQS under CAA section 110(a)(2)(D)(i)(I). Given the specific cross-reference in CAA section 126(b) to the substantive prohibition in CAA section 110(a)(2)(D)(i), the EPA believes any prior findings made under the good neighbor provision are informative—if not determinative—for a CAA section 126(b) action, and thus the EPA's four-step approach under CAA section 110(a)(2)(D)(i)(I) is also appropriate for evaluating under CAA section 126(b) whether an upwind source or group of sources will significantly contribute to nonattainment or interfere with maintenance of the 2008 8-hour ozone NAAQS in a petitioning downwind state. Because the EPA interprets the statutory phrases “significantly contribute to nonattainment” and “interfere with maintenance,” which appear in both statutory provisions, to mean the same thing in both those contexts, the EPA's decision whether to grant or deny a CAA section 126(b) petition regarding both the 2008 8-hour ozone and 2015 ozone NAAQS depends on: (1) Whether there is a downwind air quality problem in the petitioning state (i.e., step one of the four-step framework); (2) whether the upwind state where the source subject to the petition is located is linked to the downwind air quality problem (i.e., step two); and, (3) if such a linkage exists, whether there are additional highly cost-effective controls achievable at the source(s) named in the CAA section 126(b) petition (i.e., step three).35 The application of the four-step framework to EPA's analysis of a CAA section 126(b) petition regarding the 2008 ozone NAAQS is appropriate given the EPA has previously interpreted significant contribution and interference with maintenance under CAA section 110(a)(2)(D)(i) under this framework via the CSAPR Update.

    35 As previously discussed, step four comprises of implementing the necessary emission reductions for states that are found to have emissions that significantly contribute to nonattainment or interfere with maintenance of the NAAQS downwind under steps one, two, and three of the framework. If a state is not found to have downwind impacts through the first three steps, step four is simply not reached under the EPA's analysis.

    Unlike the 2008 ozone NAAQS, the EPA has not to date engaged in a rulemaking action to apply the good neighbor provision for the 2015 ozone NAAQS. However, the EPA has recently released technical information intended to inform states' development of SIPs to address this standard.36 As part of the memo releasing the technical information, the EPA acknowledged that states have flexibility to pursue approaches that may differ from the EPA's historical approach to evaluating interstate transport in developing their SIPs, which are due in October 2018. Nonetheless, the EPA's technical analysis and the potential flexibilities identified in the memo generally followed the basic elements of the EPA's historical four-step framework. Thus, in light of the EPA's discretion to identify relevant criteria and develop a reasonable methodology for determining whether a CAA section 126(b) finding should be made, the EPA continues to evaluate the claims regarding the 2015 ozone NAAQS in Delaware's section 126(b) petitions consistent with the EPA's four-step framework.

    36See Information on the Interstate Transport State Implementation Plan Submissions for the 2015 Ozone National Ambient Air Quality Standards under Clean Air Act Section 110(a)(2)(D)(i)(I) (March 2018), available in the docket for this proposed action. By operation of statute, SIPs to address the good neighbor provision for the 2015 ozone NAAQS are due in October 2018.

    The EPA notes that Congress did not specify how the EPA should determine that a major source or group of stationary sources “emits or would emit” any air pollutant in violation of the prohibition of CAA section 110(a)(2)(D)(i)(I) under the terms of section 126(b). Thus, the EPA also believes it is reasonable and appropriate at each step to consider whether the facility “emits or would emit” in light of the facility's current operating conditions. Therefore, the EPA interprets the phrase “emits or would emit” in the context of acting on Delaware's and Maryland's petitions regarding the 2008 and 2015 ozone NAAQS to mean that a source may “emit” in violation of the good neighbor provision if, based on current emissions levels, the upwind state contributes to downwind air quality problems (i.e., steps one and two), and the source may be further controlled through implementation of highly cost-effective controls (i.e., step 3). Similarly, a source “would emit” in violation of the good neighbor provision if, based on reasonably anticipated future emissions levels (accounting for existing conditions), the upwind state contributes to downwind air quality problems (i.e., steps one and two) and the source could be further controlled through implementation of highly cost-effective controls (i.e., step 3). Consistent with this interpretation, the EPA has therefore evaluated, in the following sections, whether the sources cited in the petitions emit or would emit in violation of the good neighbor provision based on both current and future anticipated emissions levels.

    In interpreting the phrase “emits or would emit in violation of the prohibition of section [110(a)(2)(D)(i)],” if the EPA or a state has already adopted provisions that eliminate the significant contribution to nonattainment or interference with maintenance of the NAAQS in downwind states, then there simply is no violation of the CAA section 110(a)(2)(D)(i)(I) prohibition, and hence no grounds to grant a section 126(b) petition. Put another way, requiring additional reductions would result in eliminating emissions that do not contribute significantly to nonattainment or interfere with maintenance of the NAAQS, an action beyond the scope of the prohibition in CAA section 110(a)(2)(D)(i)(I) and therefore beyond the scope of the EPA's authority to make the requested finding under CAA section 126(b). See EPA v. EME Homer City Generation, L.P., 134 S. Ct. at 1604 n.18, 1608-09 (holding the EPA may not over-control by requiring sources in upwind states to reduce emissions by more than necessary to eliminate significant contribution to nonattainment or interference with maintenance of the NAAQS in downwind states under the good neighbor provision).

    Thus, for example, if the EPA has already approved a state's SIP as adequate to meet the requirements of CAA section 110(a)(2)(D)(i)(I), the EPA will not find that a source in that state was emitting in violation of the prohibition of CAA section 110(a)(2)(D)(i)(I) absent new information demonstrating that the SIP is now insufficient to address the prohibition. Similarly, if the EPA has promulgated a FIP that fully addressed the deficiency, the FIP would eliminate emissions that significantly contribute to nonattainment or interfere with maintenance in a downwind state, and, hence, absent new information to the contrary, EPA will not find that sources in the upwind state are emitting or would emit in violation of the CAA section 110(a)(2)(D)(i)(I) prohibition.

    The EPA notes that the approval of a SIP or promulgation of a FIP implementing section 110(a)(2)(D)(i)(I) means that a state's emissions are adequately prohibited for the particular set of facts analyzed under approval of a SIP or promulgation of a FIP. If a petitioner produces new data or information showing a different level of contribution or other facts not considered when the SIP or FIP was promulgated, compliance with a SIP or FIP may not be determinative regarding whether the upwind sources would emit in violation of the prohibition of CAA section 110(a)(2)(D)(i)(I). See 64 FR 28250, 28274 n.15 (May 25, 1999); 71 FR 25328, 25336 n.6 (April 28, 2006); Appalachian Power, 249 F.3d at 1067 (later developments can provide the basis for another CAA section 126(b) petition). Thus, in circumstances where a SIP or FIP addressing CAA section 110(a)(2)(D)(i)(I) is being implemented, the EPA will evaluate the CAA section 126(b) petition to determine if it raises new information that merits further consideration.

    B. The EPA's Evaluation of Whether the Petitions Are Sufficient To Support a Section 126(b) Finding

    As an initial matter in reviewing a CAA section 126(b) petition, the EPA evaluates the technical analysis in the petition to see if that analysis, standing alone, is sufficient to support the requested CAA section 126(b) findings. In this regard, the EPA has determined that material elements of the analysis provided in Delaware's and Maryland's petitions are technically deficient and, thereby, proposes to deny the petitions, in part, on the basis that the conclusions that the petitions draw are not supported by the petitions' technical assessments.

    1. Petitions From Delaware

    As discussed in Section IV.A, the EPA interprets the good neighbor provision for purposes of the pending CAA section 126(b) petitions consistent with the EPA's historical four-step framework. With respect to step one of the four-step framework, the EPA began by evaluating Delaware's four petitions to determine if the state identified a downwind air quality problem (nonattainment or maintenance) that may be impacted by ozone transport from other states. EPA conducted this evaluation with regard to both the 2008 and 2015 ozone NAAQS.

    First, with respect to the 2008 ozone NAAQS, Delaware does not provide sufficient information to indicate that there is a current or expected future downwind air quality problem in the state. While the Delaware petitions identify individual exceedances of the ozone standard in the state between the 2000 and 2016 ozone seasons, this does not necessarily demonstrate that there is a resulting nonattainment or maintenance problem. Ozone NAAQS violations are determined based on the fourth-highest daily maximum ozone concentration, averaged across 3 consecutive years.37 Thus, individual exceedances at monitors do not by themselves indicate that a state is not attaining or maintaining the NAAQS.

    37See 80 FR 65296 (October 26, 2015) for a detailed explanation of the calculation of the 3-year 8-hour average and the methodology set forth in 40 CFR part 50, appendix U.

    Second, with respect to the 2015 ozone NAAQS, Delaware argues that if that NAAQS had been in effect from 2011 through 2016, Delaware monitors would have recorded more exceedances than they did under the 2008 ozone NAAQS. However, again, the identification of individual exceedances does not speak to whether there are current violations of the standard. Additionally, the EPA evaluates downwind ozone air quality problems for purposes of step one of the four-step framework using modeled future air quality concentrations for a year that considers the relevant attainment deadlines for the NAAQS.38 This approach is based on the EPA's interpretation of the language in the good neighbor provision indicating that states should prohibit emissions that “will” significantly contribute to nonattainment or interfere with maintenance of the NAAQS. See North Carolina, 531 F.3d at 913-914 (affirming as reasonable the EPA's interpretation of “will” to refer to future, projected ozone concentrations). However, the petitions do not provide any analysis indicating that Delaware may be violating or have difficulty m