Federal Register Vol. 83, No.125,

The NRC is amending its regulations in parts 1, 2, 34, 37, 50, 71, 73, and 140 of title 10 of the Code of Federal Regulations (10 CFR) to make miscellaneous updates and corrections. The amendments update branch, division, and office titles; update agency organization and functions; correct cross-reference, typographical, and grammatical errors; and add a certification recipient and clarifying language. This document is necessary to ensure orderly codification of the NRC's requirements and to inform the public of these non-substantive amendments to the NRC's regulations.

Update Organization and Functions. In § 1.34(d), this final rule removes the rulemaking function from the Office of Administration (ADM).

Update Organization and Functions. In § 1.42(a) and (b), this final rule adds the responsibility for leading, managing, and facilitating rulemaking for the agency to the Office of Nuclear Material Safety and Safeguards (NMSS).

Correct Reference. In § 2.101(a)(2), this final rule removes the incorrect reference to § 2.101(g) and replaces it with the correct reference to § 2.101(f) in the last sentence.

Update Branch and Office Designation. In § 2.802(b), this final rule updates the branch and office designation from the Office of Administration to the Office of Nuclear Material Safety and Safeguards.

Correct Reference. In § 34.101(c), this final rule removes the incorrect reference to § 30.6(a)(2) for locations of regional offices and replaces it with the correct reference to § 30.6(b)(2).

Include Certification Recipient. In § 37.23(b)(2), after the second sentence, this final rule adds the sentence “Provide oath or affirmation certifications to the ATTN: Document Control Desk; Director, Office of Nuclear Material Safety and Safeguards.”

Insert Clarifying Language. In § 37.43 paragraphs (d)(2) and (3), and paragraphs (d)(5) through (8), this final rule adds the phrase “the list of individuals that have been approved for unescorted access” from paragraph (d)(1) to provide the full list of information required to be protected.

Correct Reference. In § 37.45(b), this final rule removes the incorrect reference to § 30.6(a)(2) and replaces it with the correct reference to §  30.6(b)(2).

Update Division Title. In §§ 37.77(a)(1), 71.97(c)(3)(iii), and 73.37(b)(2) this final rule updates the Office of Nuclear Material Safety and Safeguards' division title from “Division of Material Safety, State, Tribal, and Rulemaking Programs” to “Division of Materials Safety, Security, State, and Tribal Programs.”

Correct Typographical Error. In § 50.75(e)(1)(v), this final rule removes the word “entity(ies)” and replaces it with the words “entity or entities.”

Correct Spelling. In § 73.70(g), this final rule corrects the spelling of “vertification” to “verification.”

Correct Grammatical Error. In § 140.2(b)(2), this final rule adds the indefinite article “a” before the last word in the paragraph.

Correct Reference. In § 140.3, this final rule presents the definitions in alphabetical order, and removes the paragraph designations.

Clarifying Language. In § 140.13a(a), this final rule adds the word “specified” before “in § 140.15” in the last sentence.

Correct Typographical Error. In § 140.22, this final rule corrects the title from “Committee” to “Commission” in the last sentence.

Under the Administrative Procedure Act (5 U.S.C. 553(b)), an agency may waive publication in the Federal Register of a notice of proposed rulemaking and opportunity for comment requirements if it finds, for good cause, that it is impracticable, unnecessary, or contrary to the public interest. As authorized by 5 U.S.C. 553(b)(3)(B), the NRC finds good cause to waive notice and opportunity for comment on these amendments, because notice and opportunity for comment is unnecessary. The amendments will have no substantive impact and are of a minor and administrative nature dealing with corrections to certain CFR sections or are related only to agency management, organization, procedure, and practice. Specifically, the revisions update branch, division, and office titles; update descriptions of agency organization and functions; correct cross-reference, typographical, and grammatical errors; and add a certification recipient and clarifying language. The Commission is exercising its authority under 5 U.S.C. 553(b)(3)(B) to publish these amendments as a final rule. The amendments are effective July 30, 2018. These amendments do not require action by any person or entity regulated by the NRC, and do not change the substantive responsibilities of any person or entity regulated by the NRC.

The NRC has determined that this final rule is the type of action described in 10 CFR 51.22(c)(2), which categorically excludes from environmental review rules that are corrective or of a minor, nonpolicy nature and do not substantially modify existing regulations. Therefore, neither an environmental impact statement nor an environmental assessment has been prepared for this rule.

This final rule does not contain a collection of information as defined in the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.) and, therefore, is not subject to the requirements of the Paperwork Reduction Act of 1995.

The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the document requesting or requiring the collection displays a currently valid OMB control number.

The Plain Writing Act of 2010 (Pub. L. 111-274) requires Federal agencies to write documents in a clear, concise, and well-organized manner. The NRC has written this document to be consistent with the Plain Writing Act as well as the Presidential Memorandum, “Plain Language in Government Writing,” published June 10, 1998 (63 FR 31883).

The NRC has determined that the corrections in this final rule do not constitute backfitting and are not inconsistent with any of the issue finality provisions in 10 CFR part 52. The amendments are non-substantive in nature; they update branch, division, and office titles; update descriptions of agency organization and functions; correct cross-reference, typographical, and grammatical errors; and add a certification recipient and clarifying language. They impose no new requirements and make no substantive changes to the regulations. The corrections do not involve any provisions that would impose backfits as defined in 10 CFR chapter I, or would be inconsistent with the issue finality provisions in 10 CFR part 52. For these reasons, the issuance of the rule in final form would not constitute backfitting or represent a violation of any of the issue finality provisions in 10 CFR part 52. Therefore, the NRC has not prepared any additional documentation for this administrative rulemaking addressing backfitting or issue finality.

This final rule is not a rule as defined in the Congressional Review Act (5 U.S.C. 801-808).

For the reasons set out in the preamble and under the authority of the Atomic Energy Act of 1954, as amended; the Energy Reorganization Act of 1974, as amended; and 5 U.S.C. 552 and 553, the NRC is adopting the following amendments to 10 CFR parts 1, 2, 34, 37, 50, 71, 73, and 140:

I. Background A. Overview

The NCUA's Chartering and Field of Membership Manual, incorporated as Appendix B to part 701 of the NCUA regulations (“Chartering Manual”), 1 implements the field of membership (“FOM”) requirements established by the Federal Credit Union Act (“Act”) for federal credit unions (“FCU”).2 An FOM consists of those persons and entities eligible for membership based on an FCU's type of charter.

In adopting the Credit Union Membership Access Act of 1998 (“CUMAA”), Congress reiterated its longstanding support for credit unions, noting their “specific mission of meeting the credit and savings needs of consumers, especially persons of modest means.” 3 As amended by CUMAA, the FCU Act provides a choice among three charter types: A single group sharing a single occupational or associational common bond; 4 a multiple common bond of groups that each have a distinct occupational or associational common bond among group members; 5 and a community common bond among “persons or organizations within a well-defined local community, neighborhood, or rural district.” 6

Congress has delegated to the Board broad authority in the FCU Act to define what constitutes a well-defined local community (“WDLC”), neighborhood, or rural district for purposes of “making any determination” regarding a community credit union,7 and to establish applicable criteria for any such determination.8 To qualify as a WDLC, neighborhood, or rural district, the Board requires the proposed area to have “specific geographic boundaries,” such as those of “a city, township, county (single or multiple portions of a county) or their political equivalent, school districts or a clearly identifiable neighborhood.” 9 The boundaries themselves may consist of political borders, streets, rivers, railroad tracks, or other static geographical features.10 The Board continues to emphasize that common interests or interaction among residents within those boundaries are essential features of a local community.

Until 2010, the Chartering Manual required FCUs seeking to establish an area as a WDLC to submit for NCUA approval a narrative, supported by documentation, that demonstrated indicia of common interests or interaction among residents of a proposed community (the “narrative model”) if the community extended beyond a single political jurisdiction.11 A WDLC is required to consist of contiguous areas, and the Chartering Manual previously included the term “contiguous” in its text.12 In 2010, the Board replaced the narrative model in favor of an objective model that provided credit unions a choice between two statistically based “presumptive communities” that each by definition qualifies as a WDLC (the “presumptive community model”).13 In doing so, the Board inadvertently removed the term “contiguous” from the Chartering Manual, but did not intend to remove the requirement that the relevant areas be contiguous.

One kind of presumptive community is a “Single Political Jurisdiction . . . or any contiguous portion thereof” (“SPJ”), regardless of population.14 The second is a single Core Based Statistical Area (“CBSA” 15 ) as designated by the U.S. Census Bureau (“Census”) or a well-defined portion thereof, which under the 2010 final rule was subject to a 2.5 million population limit.16

Currently, in the case of a CBSA that the Office of Management and Budget (“OMB”) has subdivided into metropolitan divisions, a community consisting of a portion of the CBSA is required to conform to the boundaries of such divisions. Under either “presumptive community” option, an FCU was required to demonstrate that it is able to serve its entire proposed community, as demonstrated by its business and marketing plans that must accompany an application to approve a new community charter, expansion or conversion.17

On October 27, 2016, the Board issued two rulemakings relating to the Chartering Manual. One was a final rule and the other a proposed rule. In the final rule,18 the Board comprehensively amended the Chartering Manual to organize it in a more efficient framework and to maximize member access to FCU services to the extent permitted by law. The final rule permitted an applicant to utilize, in limited circumstances, a narrative approach supported by objective documentation to demonstrate that an area adjacent to a presumptive community qualifies as part of that community.

In the proposed rule, the Board proposed three additional changes to the community charter provisions.19 Specifically, the Board proposed permitting an applicant for a community charter to submit a narrative to establish the existence of a WDLC, as an alternative to selecting a presumptive statistical community. The narrative would serve the same purpose as in years prior to 2010 when the narrative model was used exclusively. The Board also proposed increasing to 10 million the population limit on a community consisting of a statistical area or a portion thereof. In that regard, the Board requested comment on whether there should be any population limit at all for a statistical area and whether a public hearing would be appropriate for areas with large populations. Further, the Board proposed permitting an FCU to designate a portion of a statistical area as its community without regard to metropolitan division boundaries. The Board noted that consistent with its responsibility under CUMAA to facilitate access to FCU services, the proposal sought to provide FCUs greater flexibility in that regard.

The Board received approximately 55 comments from federal and state-chartered credit unions, credit union associations, credit union leagues, banks, bank trade associations, and consultants. The majority of commenters were credit union affiliated entities, which uniformly supported the proposed rule. In contrast, the four bank-affiliated commenters uniformly opposed the proposal.

Several provisions of the 2016 final rule were challenged by the American Bankers Association. On March 29, 2018, the U.S. District Court for the District of Columbia upheld two provisions and vacated two provisions of the 2016 final rule addressing community charters.20 Specifically, the court upheld the provision allowing an FCU to serve areas within a CBSA that do not include the CBSA's core.21 The court also upheld the provision allowing an FCU to add an adjacent area to a presumptive community. The court vacated the provision permitting automatic characterization of any individual portion of a combined statistical area (“CSA”) as belonging to a local community as long as that portion contains no more than 2.5 million people.22 The court also vacated the provision to increase the population limit to 1 million people for rural districts.

This final rule amends the community chartering provisions of the Chartering Manual. Any modification in this final rule is consistent with the District Court decision. The rule allows for the general use of the narrative model, so that an applicant can seek Board approval to form, expand, or convert to a community charter, provided that the applicant provides sufficient supporting documentation. The rule also provides that the NCUA will conduct a public hearing and solicit public comments on any community charter application that uses the narrative approach for an area whose population exceeds 2.5 million people. Further, the rule permits an FCU to designate a portion of a CBSA statistical area as its community without regard to metropolitan division boundaries.

With respect to the proposal to raise the population limit for a presumptive community, the Board has decided not to move forward with this amendment at this time.

In 2016, the Board proposed to allow the general use of the narrative model to form, expand, or convert to a community charter as an alternative to using the “presumptive community” model.23

In response to the proposal, nearly every credit union-affiliated commenter supported allowing the narrative model as an alternative to the presumptive community model. These commenters stated that such an alternative provides added flexibility, thus potentially allowing FCUs to provide more financial services to the public. In contrast, bank-affiliated commenters opposed this proposal, claiming that it was overly subjective. They stated that the Board's 2010 decision to replace this approach with an objective one enhanced the process because it provided greater consistency.

The Board has determined that it is appropriate to permit the narrative model as an alternative to the presumptive community model. The Board believes that a significant majority of FCUs will rely on the presumptive community model for practical reasons. The presumptive community model is less costly and requires fewer resources for an applicant to expend. Further, an applicant can rely on a streamlined process, thus ensuring a more timely determination by utilizing the presumptive community model. While most applicants will be well served by the presumptive community model, the Board believes that some FCUs will find that using the narrative model will provide a better opportunity for them to establish that the relevant area is a WDLC. As is noted above, prior to 2010, a WDLC expressly needed to be “contiguous” under the narrative model. Given that contiguity is still required in setting forth the parameters of a WDLC and for clarity, the Board specifically includes the contiguity requirement in the final rule's regulatory text.

Some commenters stated that certain potential communities do not necessarily align with CBSAs, SPJs, or other recognized statistical areas. The Board anticipates that this change to allow the narrative model as an alternative will be used sparingly, given the associated costs in preparing a narrative package. As noted in the section addressing the Paperwork Reduction Act (PRA), CURE estimates that there would be approximately 25 FCUs per year that would use the narrative approach based on data from the five years preceding 2010. The Board notes any such costs are not mandated by the NCUA but rather are voluntarily assumed by a potential applicant.

The Board has further determined that allowing such an alternative to the presumptive community model is appropriate because it expands the delivery of financial services to the public, particularly people from underserved communities, with no significant downside. The Board notes that the Act gives the Board broad discretion to define a WDLC for purposes of “making any determination” regarding a community credit union,24 and to establish criteria to apply to any such determination.25 (Emphasis added)

Under its statutory authority, the Board is adopting, with minor modifications from the proposal, a new appendix to the Chartering Manual, which sets thirteen “Narrative Criteria to Identify a Well-Defined Local Community” that an FCU should address in the narrative it submits to support its application to charter, expand, or convert to a community credit union. The Board has determined that establishing such criteria will facilitate an applicant's ability to provide justification to support the common interest or interaction standard. The Board notes that if an FCU has successfully established that an area is a WDLC through the narrative process, then another FCU may adopt that exact area as a WDLC without submitting a narrative of its own, provided it complies with the other requirements of the Chartering Manual including submitting a business plan that demonstrates its ability to serve the proposed FOM.

Commenters generally supported the thirteen criteria. Several commenters emphasized that the NCUA should evaluate the “totality of circumstances” in assessing applications. These commenters stated that the criteria provided solid evidence of common interests and interaction. One commenter stated that the NCUA should allow consideration of additional criteria that are unique to a community. Another commenter stated that the NCUA should allow consideration of “on line communities” given the trend toward such use. Bank commenters opposed the narrative approach, but said if it is adopted, then an applicant should be required to establish compliance with, most if not all, of the thirteen criteria.

The NCUA's experience with community charter applications under the pre-2010 narrative model indicates that these thirteen criteria were generally the most useful and compelling, when properly addressed and documented, to demonstrate common interests or interaction among residents of a proposed community. An area need not meet all of the narrative criteria to qualify as a local community; rather, the totality of circumstances within the criteria a credit union elects to address must indicate a sufficient presence of common interests or interaction among the area's residents. The new appendix explains each criterion in order to guide applicants in the prudent use of their resources, with minimal burden, to assess whether an area qualifies as a local community and, if so, to develop an effective and well-documented narrative to justify Board approval of its application.26 The Board reiterates that the proposed area does not have to match exactly the entirety of the thirteen criteria. Rather, the more a proposed area satisfies the criteria to establish a WDLC, the stronger the applicant's case. Consistent with this approach, Appendix B identifies for each of the thirteen criteria three levels of persuasiveness: “most persuasive,” “persuasive,” and “not persuasive” with examples of each.

Accordingly, the Board will consider the following criteria, and the supporting documentation for each, in evaluating the presence of interaction and/or common interest among residents to establish that an area is a WDLC:

The proposed community includes an economic hub. An economic hub is evident when one political jurisdiction (city or county) within a proposed local community has a relatively large percentage of the community's population or is the primary location for employment. The application needs to identify the major employers and their locations within the proposed community.

The existence of organizations such as economic development commissions, regional planning boards, and labor or transportation districts can be important factors to consider. The more closely their service area matches the area, the greater the showing of common interests or interaction.

Designation of the proposed community by a government agency as a region or distinct district—such a regional transportation district, a water district, or a tourism district—is a factor that can be considered in determining whether the area is a local community. The more closely the designation matches the area's geographic boundaries, the greater the value of that evidence in demonstrating common interests or interaction.

The existence of shared services and facilities, such as police, fire protection, park districts, public transportation, airports, or public utilities, can contribute to a finding that an area is a community. The more closely the service area matches the geographic boundaries of the community, and the higher the percentage of residents throughout the community using those services or facilities, the more valuable the data.

Data on medical facilities should include admittance or discharge statistics providing the ratio of use by residents of each political jurisdiction. The greater the percentage of use by residents throughout the proposed community, the higher the value of this data in showing interaction. The application can also support the importance of an area hospital with documentation that correlates the facility's target area with the proposed local community and/or discusses the relative distribution of hospitals over a larger area.

College enrollment data can be a useful factor in establishing a local community. The higher the percentages of student enrollment at a given campus by residents throughout each part of the community, the greater the value in showing interaction. Additionally, the greater the participation by the college in community initiatives (e.g., partnering with local governments), and the greater the service area of these initiatives, the stronger the value of this factor.

The existence of written agreements among law enforcement and fire protection agencies in the area to provide services across multiple jurisdictions can be an important factor.

The more closely the service area of an organization or club matches the proposed community's boundaries, and the greater the percentage of membership and services throughout the proposed community, the more relevant the data.

A newspaper that has a substantial subscription base in an area can be an indication of common interests or interaction. The higher the household penetration figures throughout the area, the greater the value in showing common interests or interaction. Subscription data may include print copies as well as on-line access.

Data to show the percentage of residents from each political jurisdiction who attend the events. The higher the percentage of residents from throughout the proposed community, the stronger the evidence of interaction. For sporting events, as well as some entertainment events, data on season ticket holders and memberships may be available. As with overall attendance figures, the higher the percentage of residents from throughout the proposed community, the stronger the evidence of interaction.

A television or radio station broadcasting in an area can be an indication of common interests or interaction. Objective data on viewer and listener audiences in the proposed community can support the existence of a community.

The narrative must identify the location of the major shopping centers and malls and include the percentage of shoppers coming from each part of the community. The larger the percentage of shoppers from throughout the community, the stronger the case for interaction. While of lesser value than the shopping data, identification of the shopping center's target area can be persuasive.

Some communities face varying degrees of geographic isolation. As such, travel outside the community can be limited by mountain ranges, forests, national parks, deserts, bodies of waters, etc. This factor, and the relative degree of isolation, may help bolster a finding of common interests or interaction.

In the November 2016 proposal, the Board requested comment about whether it should establish a process to give the public notice and an opportunity to comment on an FCU's application for approval of a statistical area with a population in excess of 2.5 million.

One bank-affiliated commenter supported having a public hearing along with the opportunity for comment for applications for community charters for statistical areas exceeding 2.5 million. No credit-union affiliated commenter addressed this issue.

The Board has determined that it is appropriate to require a public hearing along with opportunity for comment for charter applications using a narrative model over a certain population. The Board believes that such a procedure will allow applicants to present information, including their business and marketing plan, in a transparent manner. Other interested parties, including community groups, businesses, and competitors will have the opportunity to present their views. After further consideration of this issue and the comments, the Board has decided to modify the use of public hearings from what was discussed in the proposal. Specifically, the Board intends for the NCUA to conduct public hearings and solicit public comments on any narrative community application comprising an area whose population is in excess of 2.5 million people. Any public comments should be submitted to the Board at least twenty business days prior to the public hearing.

The Board intends to delegate to CURE the responsibility to conduct the public hearings on any narrative community applications in excess of 2.5 million people with assistance from the NCUA's Office of General Counsel (OGC). Upon receiving such an application, CURE will publish in the Federal Register information stating the location, time, procedures and other relevant information about the hearing at least 30 days prior to the hearing date. CURE will determine whether the hearing will be held at the NCUA's Headquarters in Alexandria, VA or a location near the applicant's anticipated community. The public hearing will last no more than four hours with interested parties being permitted to make presentations of no more than 30 minutes each. The applicant along with no more than seven other interested parties may request to make presentations. The first six entities that contact the NCUA in writing will be permitted to make such presentations. CURE will reserve one additional slot which it has the discretion to designate as eligible for a presentation by an interested party. In addition to the presentations, interested parties may submit written statements to CURE at least twenty business days prior to the hearing.

CURE will take under advisement the presentations and written statements and will make a determination as to whether to approve, deny, or make modifications to the application. CURE will make this determination based on whether the applicant demonstrated common interests or interactions among residents of the area under consideration, thus qualifying the area as a WDLC. CURE will make this determination no sooner than 30 days after the date of the public hearing.

In 2016, the Board proposed to permit an FCU to designate a portion of a CBSA as its community without regard to metropolitan division boundaries. The Board noted that when an FCU seeks to serve a portion of a single CBSA as its WDLC, the existing rule requires such a portion to conform to any boundary of a metropolitan divisions. In contrast, a CSA was not required to conform to any metropolitan division boundary, even though CSAs cover a wider geographic area. For purposes of consistency, the Board proposed permitting an FCU to designate a portion of a CBSA as its community without regard to division boundaries.

No commenter objected to this proposal, and approximately ten credit union-affiliated commenters specifically supported it. The commenters stated that the change would correct a disparity in treatment between a community consisting of a portion of a CBSA and a CSA. The commenters who supported it viewed it as affording regulatory relief via a common sense change to enhance consistency and provide flexibility.

The Board has determined that it is appropriate to amend the Chartering Manual to designate a portion of a CBSA as its community without regard to the boundaries of any metropolitan divisions within a CBSA.27 This modification corrects an inconsistency that was never intended. In light of the District Court decision, the Board has removed reference to Metropolitan Divisions with respect to CSAs.

As noted above, the Board issued a final rule in 2010 recognizing as a presumptive community a CBSA as designated by the U.S. Census, or a CSA as designated by OMB, subject in either case to a population limit of 2.5 million and proof of the FCU's ability and commitment to serve the entire community.28 At the time, the Board recognized a 2.5 million population “as a logical breaking point in terms of community cohesiveness with respect to a multijurisdictional area.” 29

In the 2015 proposal, the Board decided to retain the existing 2.5 million population cap as the upper limit for a presumptive community, although it solicited public comment on whether to adjust the amount, and for what reasons.30 Specifically, the Board stated that a CBSA qualifies as a WDLC only if its population does not exceed 2.5 million, and that “[b]y design, this population limit conforms to the population parameter by which [the Office of Management and Budget (“OMB”)] recognizes metropolitan divisions within a Core Based Statistical Area.” 31

In their comments to the 2015 proposal, bankers opposed raising the existing population limit. For instance, a bank trade association stated that “NCUA's overly broad interpretation of what is `rural' or `local' is at odds with any reasonable interpretation of those terms and makes a mockery of the field of membership restrictions”

The 2016 final rule retained the 2.5 million population limit that applies to a community consisting of a CBSA or CSA. However, in the November 2016 proposed rule, the Board requested comment on its proposal to increase the limit to “up to 10 million” or to eliminate it completely. Despite affirming the then current 2.5 million population limit in that final rule, the Board stated that it anticipates that many areas that would qualify as a WDLC will experience population growth over time and that it should anticipate and accommodate inevitable growth, to the extent permissible under the Act, in order to maximize the potential membership base available to community credit unions.32

Comments were mixed about the proposal on the population cap for statistical areas that comprise more than a single political jurisdiction. Virtually all credit union-affiliated commenters urged the Board to eliminate the population cap on statistical areas altogether. Alternatively, they preferred the 10 million cap to the 2.5 million cap, if the Board decided to retain a population cap. In contrast, bank-affiliated commenters continued to oppose increasing the existing 2.5 million population cap on CBSAs and CSAs. The bankers argued that the proposal oversteps congressional bounds established by the Act, particularly with respect to the definition of “local.” Specifically, they stated that this interpretation of “local” would “allow nearly any federal community credit union to serve almost any geographic area or population center.” The bankers further stated that a 10 million population cap would allow an FCU to serve a statistical area with a population that exceeds the population of 41 states and would add 20 additional CSAs to qualify as presumptive communities. Thus, they stated that all but two CSAs would be presumptive communities. In addition, these commenters claimed that the NCUA provided “no analysis to support this arbitrary, massive increase.”

The Board has determined that increasing the population cap for presumptive communities is not appropriate at this time. The Board is evaluating population caps for presumptive communities in light of the above-referenced District Court decision.

The Regulatory Flexibility Act requires the NCUA to prepare an analysis to describe any significant economic impact a regulation may have on a substantial number of small entities.33 For purposes of this analysis, the NCUA considers small credit unions to be those having under $100 million in assets.34 Although this rule is anticipated to economically benefit FCUs that choose to charter, expand or convert to a community charter, the NCUA certifies that it will not have a significant economic impact on a substantial number of small credit unions.

The Paperwork Reduction Act of 1995 (PRA) applies to collections of information through which an agency creates a paperwork burden on regulated entities or the public, or modifies an existing burden.35 For purposes of the PRA, a paperwork burden may take the form of either a reporting or a recordkeeping requirement, both referred to as information collections. OMB previously approved the current information collection requirements for the Chartering Manual and assigned them control number 3133-0015.

Regarding a community charter, the rule gives community charter applicants the option, in lieu of a presumptive community, to submit a narrative to establish common interests or interaction among residents of the area it proposes to serve, thus qualifying the area as a WDLC. For that purpose, the rule includes guidance in identifying compelling indicia of common interests or interaction that would be relevant in drafting a narrative summarizing how the community meets the requirements of a WDLC. In addition, when a CBSA is subdivided into Metropolitan Divisions, the rule permits a credit union to designate a portion of the area as its community without regard to division boundaries.

The NCUA has determined that the procedure for an FCU to assemble and document a narrative summarizing the evidence to support its community charter application would create a new information collection requirement. As required, the NCUA applied to OMB for approval to amend the current information collection to account for the new procedure.

Prior to 2010, when the NCUA moved to an objective model of presumptive communities, FCUs had the following three choices for a community charter: Previously approved areas; single political jurisdictions; and multiple political jurisdictions. For applications involving multiple statistical areas, the NCUA required FCUs to submit for the NCUA approval a narrative, supported by documentation that presents indicia of common interests or interaction among residents of the proposed community.

In the five-year period preceding the move to an objective model of presumptive communities, the NCUA processed an average of twenty FOM applications involving multiple statistical areas. From 2010 to 2018, the NCUA processed 2 applicants for multiple statistical areas that exceeded 2.5 million people. Based on this historical trend, the NCUA estimates that, on average, it would take an FCU's staff approximately 160 hours to collect the evidence of common interests or interaction and to develop a narrative to support its application to expand or to convert. Accordingly, the NCUA estimates the aggregate information collection burden on existing and would-be FCUs that elect to use the narrative option to form, expand, or convert to a community charter would be 160 hours times 10 FCUs for a total of 1600 hours. The NCUA is amending the current information collection control number 3133-0015 to account for these additional burden hours.

In the proposal, the Board directed organizations and individuals who wished to submit comments on this information collection requirement to direct them to the Office of Information and Regulatory Affairs, OMB, Attn: Shagufta Ahmed, Room 10226, New Executive Office Building, Washington, DC 20503, with a copy to the Secretary of the Board, National Credit Union Administration, 1775 Duke Street, Alexandria, Virginia 22314-3428.

The NCUA considered comments by the public on the proposed collection of information in:

• Evaluating whether the collection of information is necessary for the proper performance of the functions of the NCUA, including whether the information will have a practical use;

• Evaluating the accuracy of the NCUA's estimate of the burden of the collection of information, including the validity of the methodology and assumptions used;

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

• Minimizing the burden of 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).

Executive Order 13132 encourages independent regulatory agencies to consider the impact of their actions on state and local interests. In adherence to fundamental federalism principles. The NCUA, an independent regulatory agency as defined in 44 U.S.C. 3502(5), voluntarily complies with the executive order. Primarily because this rule applies to FCUs exclusively, it will not have a substantial direct effect on the states, on the connection between the national government and the states, or on the distribution of power and responsibilities among the various levels of government. The NCUA has determined that this rule does not constitute a policy that has federalism implications for purposes of the executive order.

The NCUA has determined that this rule will not affect family well-being within the meaning of Section 654 of the Treasury and General Government Appropriations Act, 1999.36

For the reasons stated above, the NCUA amends 12 CFR part 701, Appendix B, as follows:

I. Background

In June 2017, the Board issued proposed revisions to the NCUA's voluntary merger rule.1 The proposed rule was designed to address shortcomings in the current rule which did not always provide credit union members sufficient time to consider the merger or adequately communicate all information relevant to the merger decision.

The proposed revisions addressed the timing and contents of the notice provided to members of a merging federal credit union (FCU), provided FCU members with an opportunity to make their views known to the general membership, clarified the material that must be submitted to the NCUA for review, and revised definitions. In addition, the proposed rule reorganized the current rule to improve readability and clarity. These revisions were designed to ensure that a merging FCU's member-owners have more complete and accurate information regarding a proposed merger, including disclosure of financial arrangements that could create potential conflicts of interest. The proposal also sought comments on whether the final rule should apply to all merging FICUs rather than only to merging FCUs.

The Board is now finalizing the proposed rule, with some changes. The changes significantly narrow the definition of a “merger-related financial arrangement” that is subject to disclosure, adopt a less burdensome method for members to communicate their views on the merger, and apply the entire rule to all FICUs.

The Board received 84 comments on the proposed rule. Seventy of the commenters opposed the rule. Of the remaining 14 commenters, eight supported the proposed rule, four supported the proposed rule except for the member-to-member communication provision, one addressed only the question of whether the rule should apply to federally insured, state-chartered credit unions (FISCUs), and one requested an extension of the comment period.

In addition to the comments on the proposed rule, the Board has also been informed by a more thorough review of voluntary merger proposals since early 2017 (merger review). NCUA staff reviewed the member disclosure documents and ballot for every merger application submitted by an FCU, with an eye toward identifying ongoing issues. The direction of the final rule reflects the experience and knowledge the NCUA has gained from the merger review process.

The section-by-section summary of the final rule, below, discusses comments on specific provisions of the rule. This section explains the Board's views on general comments relating to: (1) The nature of the NCUA's authority; (2) credit union member-ownership; and (3) the state of the merger landscape for credit unions generally.

The NCUA's authority to regulate mergers: Several commenters questioned the NCUA's authority to regulate credit union mergers, or suggested that the NCUA's role is limited to safety and soundness concerns. These comments are inaccurate. The FCU Act explicitly requires the Board's “prior written approval” before a FICU merges with another FICU.2 Moreover, as detailed in the preamble to the proposed rule, the FCU Act requires the Board to consider six factors in determining whether to approve FICU mergers and other types of transactions.3 While several of the factors are safety and soundness-related, the factors also include “the convenience and needs of the members” and “whether the credit union is a cooperative association organized for the purpose of promoting thrift among its members and creating a source of credit for provident or productive purposes.” 4 Clearly, the FCU Act expects the Board to consider the effect of the proposed merger on credit union members and gives the Board authority to deny mergers that do not, in its judgment, serve members well.

Need for a rule change: Many commenters considered the proposed rule unnecessary. Twenty-two commenters opined that the NCUA has sufficient authority to address any issues related to particular mergers under the current rule. Twenty-two commenters also asserted that evidence of a widespread problem with mergers was lacking. While the Board agrees that the FCU Act and current regulation provide it authority to impose requirements on specific merger transactions on a case-by-case basis,5 it questions whether this is the best approach in the long term. Further, the merger review confirmed prior anecdotal reports that the current regulation and model forms do not encourage clear member disclosures in many situations, particularly in the area of insider benefits. The use of terminology that may not be clear to all credit union members, combined with the lack of instructions around how to disclose merger-related financial arrangements, often resulted in disclosures that obscured critical information. The Board has determined that adopting a uniform, explicit standard for disclosures, with updated regulatory language and a conforming sample form, is a more cost-effective and efficient use of agency resources than the case-by-case approach it utilized during the merger review.

Nature of Credit Union Membership: Several commenters stated that while shareholders of public companies can sell their shares of stock at any time, credit union members have no right to the net worth of a credit union except in liquidation. This assertion ignores the reality that hundreds of credit unions annually return excess net worth to members via bonus dividends or interest rebates. Further, the fact that ownership of a portion of a credit union's net worth is less negotiable than a share of stock in a public company is irrelevant at the time of a proposed merger transaction. A credit union in good condition has the option of voluntary liquidation instead of voluntary merger. In recommending a proposed merger transaction, the board of directors of a merging credit union has made the determination to transfer its net worth to the continuing credit union instead of voluntarily liquidating and disbursing the credit union's net worth to its members.

Factors contributing to mergers: A number of commenters offered thoughtful analyses about how conditions, in the credit union industry and at the NCUA, tend to favor mergers and disfavor a robust appraisal of whether the merger meets the convenience and needs of the credit union's members. Several commenters who supported the rule argued that mergers have become the NCUA's method to resolve issues such as CEO succession and worrisome financial trends. Also, two commenters opposed to the rule stated the NCUA should acknowledge that many mergers occur because the merging credit union has determined it cannot keep up with increasing and changing regulation. The Board agrees that mergers should not be the first resort when an otherwise healthy credit union faces succession issues or lack of growth. The changes implemented in the final rule, particularly to the member notice, will provide members the information they need to determine whether the merger meets their needs.

Role of Boards of Directors and the NCUA: Several commenters who supported the rule also asserted that the boards of directors of merging credit unions were failing to conduct sufficient due diligence and that the NCUA was not enforcing its rule on fiduciary duties for directors of FCUs. The merger review documented many instances where boards of merging credit unions discussed the possibility of a merger with multiple credit unions and approached the merger transaction with the best interests of their members as the highest priority. For example, one merging credit union wrote to nine different CUs, soliciting a merger partner, and conducted interviews with representatives of the credit unions that submitted the three best responses. The Board acknowledges, however, that not all boards of directors are as conscientious about fulfilling their fiduciary duties. The Board believes that this final rule, which will provide members with a more complete and understandable picture of the merger transaction, addresses these concerns. The revised member notice clearly communicates information about the merging credit union's net worth relative to the continuing credit union's net worth and whether insiders will be receiving significant payouts from that net worth. The revised member notice will also clearly convey how the proposed merger will affect access to locations and services. These changes give members greater ability to assess whether the proposed merger is in their best interests. The Board also confirms that, for merging FCUs, the NCUA's Regional Offices must ensure that boards and management have fulfilled their fiduciary duties under 12 CFR 701.4.

In the proposed rule, the Board noted that its concerns may not be limited to mergers where the merging credit union is an FCU. The plain language of section 205 of the FCU Act provides the NCUA with authority to approve mergers for all FICUs, not only FCUs.6 Accordingly, the Board requested specific comments on whether it should use the authority in the FCU Act to also apply the rule to merging FISCUs.7

The substance of these special conditions previously has been published in the Federal Register for public comment. These special conditions have been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and finds that, for the same reason, good cause exists for adopting these special conditions upon publication in the Federal Register.

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

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

On February 2, 2017, Airbus applied for a change to Type Certificate No. A28NM for the installation of electronic network system architecture or Flight Operations and Maintenance Exchanger (FOMAX) equipment in the Model A318, A319, A320 and A321 series airplanes. The Airbus Model A318, A319, A320 and A321 series airplanes are twin-engine, transport category airplanes with a passenger seating capacity of 136 to 230 and a maximum takeoff weight of 123,458 to 213,848 pounds, depending on the specific design.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Airbus must show that the Model A318, A319, A320 and A321 series airplanes as changed, continue to meet the applicable provisions of the regulations listed in Type Certificate No. A28NM or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Airbus Model A318, A319, A320 and A321 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16.

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

In addition to the applicable airworthiness regulations and special conditions, the Airbus Model A318, A319, A320 and A321 series airplanes must comply with the fuel vent and exhaust-emission requirements of 14 CFR part 34, and the noise certification requirements of 14 CFR part 36.

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

The Airbus Model A318, A319, A320 and A321 series airplanes will incorporate the following novel or unusual design feature:

The installation and activation of electronic network system architecture or Flight Operations and Maintenance Exchanger (FOMAX) equipment that allows access from external sources (e.g., wireless devices, internet connectivity) to the airplane's internal electronic components.

The Airbus Model A318, A319, A320 and A321 series airplane architecture and network configuration may allow increased connectivity to and access from external network sources and airline operations and maintenance networks to the aircraft control domain and airline information services domain. The aircraft control domain and airline information services domain perform functions required for the safe operation and maintenance of the airplane. Previously these domains had very limited connectivity with external network sources. The architecture and network configuration may allow the exploitation of network security vulnerabilities resulting in intentional or unintentional destruction, disruption, degradation, or exploitation of data, systems, and networks critical to the safety and maintenance of the airplane.

The existing regulations and guidance material did not anticipate these types of airplane system architectures. Furthermore, 14 CFR regulations and the current system safety assessment policy and techniques do not address potential security vulnerabilities, which could be exploited by unauthorized access to airplane networks, data buses, and servers. Therefore, these special conditions are to ensure that the security (i.e., confidentiality, integrity, and availability) of airplane systems is not compromised by unauthorized wired or wireless electronic connections.

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

As discussed above, these special conditions are applicable to the Model A318, A319, A320 and A321 series airplanes. Should Airbus apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only a certain novel or unusual design feature on Airbus Model A318, A319, A320 and A321 series airplanes. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

1. The applicant must ensure that the airplane electronic systems are protected from access by unauthorized sources external to the airplane, including those possibly caused by maintenance activity.

2. The applicant must ensure that electronic system-security threats are identified and assessed, and that effective electronic system-security protection strategies are implemented to protect the airplane from all adverse impacts on safety, functionality, and continued airworthiness.

3. The applicant must establish appropriate procedures to allow the operator to ensure that continued airworthiness of the aircraft is maintained, including all post-type-certification modifications that may have an impact on the approved electronic system security safeguards.

The substance of these special conditions previously has been published in the Federal Register for public comment. These special conditions have been derived without substantive change from those previously issued. It is unlikely that prior public comment would result in a significant change from the substance contained herein. Therefore, the FAA has determined that prior public notice and comment are unnecessary, and finds that, for the same reason, good cause exists for adopting these special conditions upon publication in the Federal Register.

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

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

On February 2, 2017, Airbus applied for a change to Type Certificate No. A28NM for the installation of electronic network system architecture or Flight Operations and Maintenance Exchanger (FOMAX) equipment in the Model A318, A319, A320 and A321 series airplanes. The Airbus Model A318, A319, A320 and A321 series airplanes are twin-engine, transport category airplanes with a passenger seating capacity of 136 to 230 and a maximum takeoff weight of 123,458 to 213,848 pounds, depending on the specific design.

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Airbus must show that the Model A318, A319, A320 and A321 series airplanes as changed, continue to meet the applicable provisions of the regulations listed in Type Certificate No. A28NM or the applicable regulations in effect on the date of application for the change, except for earlier amendments as agreed upon by the FAA.

If the Administrator finds that the applicable airworthiness regulations (i.e., 14 CFR part 25) do not contain adequate or appropriate safety standards for the Airbus Model A318, A319, A320 and A321 series airplanes because of a novel or unusual design feature, special conditions are prescribed under the provisions of § 21.16

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

In addition to the applicable airworthiness regulations and special conditions, the Airbus Model A318, A319, A320 and A321 series airplanes must comply with the fuel vent and exhaust-emission requirements of 14 CFR part 34, and the noise certification requirements of 14 CFR part 36.

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

The Airbus Model A318, A319, A320 and A321 series airplanes will incorporate the following novel or unusual design feature:

The installation and activation of electronic network system architecture or Flight Operations and Maintenance Exchanger (FOMAX) equipment that allows access from internal sources (e.g., wireless devices, internet connectivity) to the airplane's once isolated internal electronic components.

The Airbus Model A318, A319, A320 and A321 series airplanes architecture is novel or unusual for commercial transport airplanes because it allows connection to previously isolated data networks connected to systems that perform functions required for the safe operation of the airplane. This data network and design integration may result in security vulnerabilities from intentional or unintentional corruption of data and systems critical to the safety and maintenance of the airplane. The existing regulations and guidance material did not anticipate this type of system architecture or electronic access to aircraft systems. Furthermore, 14 CFR regulations and the current system safety assessment policy and techniques do not address potential security vulnerabilities, which could be exploited by unauthorized access to airplane networks and servers. Therefore, these special conditions are to ensure that the security of airplane systems and networks is not compromised by unauthorized wired or wireless internal access.

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

As discussed above, these special conditions are applicable to the Model A318, A319, A320 and A321 series airplanes. Should Airbus apply at a later date for a change to the type certificate to include another model incorporating the same novel or unusual design feature, these special conditions would apply to that model as well.

This action affects only a certain novel or unusual design feature on Airbus Model A318, A319, A320 and A321 series airplanes. It is not a rule of general applicability.

The authority citation for these special conditions is as follows:

1. The applicant must ensure that the design provides isolation from, or airplane electronic system security protection against, access by unauthorized sources internal to the airplane. The design must prevent inadvertent and malicious changes to, and all adverse impacts upon, airplane equipment, systems, networks, or other assets required for safe flight and operations.

2. The applicant must establish appropriate procedures to allow the operator to ensure that continued airworthiness of the aircraft is maintained, including all post type certification modifications that may have an impact on the approved electronic system security safeguards.

I. Authority for This Rulemaking

Under 49 U.S.C. 40103(a), the Administrator has broad authority to regulate the safe and efficient use of the navigable airspace. The Administrator is also authorized to issue air traffic rules and regulations to govern the flight, navigation, protection, and identification of aircraft for the protections of persons and property on the ground and for the efficient use of the navigable airspace. 49 U.S.C. 40103(b). Under section 44701(a)(5), the Administrator promotes safe flight of civil aircraft in air commerce by prescribing regulations and minimum standards for other practices, methods, and procedures necessary for safety in air commerce and national security. This action is within the scope of that authority.

SIAPs are promulgated by rulemaking procedures and are incorporated by reference pursuant to 5 U.S.C. 552(a) and 1 CFR part 51 into Title 14 of the Code of Federal Regulations; Part 97 (14 CFR part 97), Subpart C—TERPS Procedures.

The National Airspace System (NAS) is currently in transition to a “NextGen NAS.” During this transition, the FAA is managing the technology and procedures to support both the legacy (NavAid-based) NAS as well as the NextGen (satellite-based) NAS. As new technology has facilitated the introduction of area navigation (RNAV) instrument approach procedures over the past decade, the number of procedures available in the NAS has nearly doubled. The complexity and cost to the FAA of maintaining the instrument flight procedures inventory while expanding the new RNAV capability is not sustainable. Managing two versions of the NAS requires excess manpower, infrastructure, and information management which is costly and unsupportable in the long-term. To mitigate these costs, the FAA has a number of efforts underway to effectively transition from the legacy to the NextGen NAS. One area of focus for this transition is instrument flight procedures (IFPs). The FAA seeks to ensure an effective transition from ground-based IFPs to greater availability and use of satellite-based IFPs while maintaining NAS safety.

In early 2015, the FAA requested the RTCA's Tactical Operations Committee (TOC) 1 with providing recommendations on criteria and processes for cancelling instrument flight procedures. Among the many recommendations provided by the TOC were criteria to identify circling procedures that would qualify as candidates for cancellation. As of March 29, 2018, there are 12,068 IAPs in publication, consisting of 33,825 lines of minima, 11,701 of which are circling lines of minima. This represents a nearly 9 percent increase in IAP lines of minima from September 18, 2014. Circling procedures account for approximately one-third of all lines of minima for IAPs in the NAS.

In response to the unsustainable growth in the number of IFPs, the FAA requested feedback and recommendations from the RTCA TOC related to removing underutilized or unneeded IFPs to facilitate a transition to NextGen and reduce FAA maintenance costs related to IFPs. The task group assigned to study IFP reduction adopted the following guiding principles when considering their recommendations:

• Utilization was determined not to be a valid stand-alone criterion, as usage data can be inaccurate or unavailable in some cases and does not necessarily reflect the operational value of an IFP.

• Effort was focused on a NAS-level examination of public procedures maintained by the FAA. Additionally, specific criteria for special operating conditions, such as those in Alaska, where additional considerations may be required, should be developed apart from this effort.

• The FAA procedure reduction program is highly dependent upon and interwoven with other efforts such as VOR Minimum Operating Network (MON), the Performance Based Navigation (PBN) NAS Navigation Strategy effort and the ongoing rewrite of the Regional Airspace Procedures Team (RAPT) Order, and these efforts need to be synchronized as each effort progresses.

• Airways were deemed to be beyond the focus of this group's effort.

• When evaluating any procedure, air traffic personnel and operators should be involved.

In its continued effort to right-size the NAS through optimization and elimination of redundant and unnecessary IAPs, on October 6, 2017, the FAA published a proposed policy and request for comment that identified the following criteria to guide the identification and selection of appropriate circling procedures to be considered for cancellation. 82 FR 46738.

The FAA proposed that all circling procedures will continue to be reviewed through the established IAP periodic review process.2 As part of that review process, the FAA proposed that each circling procedure be evaluated against the following questions:

• Is this procedure a designated MON airport procedure?

• If multiple IAPs serve a single runway end, is this the lowest circling minima for that runway?

• Would cancellation result in removal of circling minima from all conventional NAVAID procedures at an airport?

• Would cancellation result in all circling minima being removed from all airports within 20 NM?

• Will removal eliminate lowest landing minima to an individual runway?

The following questions are applicable only to circling-only procedures:

• Does this circling-only procedure exist because of high terrain or an obstacle that makes a straight-in procedure unfeasible or which would result in the straight-in minimums being higher than the circling minima?

• Is this circling-only procedure (1) at an airport where not all runway ends have a straight-in IAP, and (2) does it have a Final Approach Course not aligned within 45 degrees of a runway which has a straight-in IAP?

The FAA proposed that further consideration for cancellation under this policy would be terminated if any of the aforementioned questions are answered in the affirmative. If all questions are answered in the negative, the procedure would be processed as described in the following paragraph.

When a candidate has been identified, Aeronautical Information Services would send a notification of procedure cancellation memorandum and completed checklist to the appropriate Regional Service Area, Operations Support Group.3 The Regional Service Area, Operations Support Group would follow the same notification process used for standard IFP requests.4 Consistent with FAA procedures outlined in the procedure cancellation memorandum, comments regarding the aforementioned circling procedure would need to be submitted within 30 days of the timestamp on the communication media through which it was delivered. Comments would be directed to the Regional Service Area, Operations Support Group for dissemination to Aeronautical Information Services. Comments would be adjudicated by Aeronautical Information Services within 30 days of the timestamp on the communication media through which it was received. A final decision would be forwarded to Regional Service Area, Operations Support Group to disseminate to commenter(s). The cancellation of the part 97 instrument procedure will be published in the Federal Register.

In its proposed policy, the FAA noted that National Procedures Assessment (NPA) Instrument Flight Procedure (IFP) cancellation activities and associated criteria do not supersede similar activities being performed under the FAA's VOR MON Program. See 81 FR 48694 (July 26, 2016). However, NPA IFP cancellation activities have been coordinated with the FAA office responsible for the VOR MON implementation program, and its input has been thoroughly considered.

The FAA received 11 comments pertaining to the proposed statement of policy. Commenters included the Aircraft Owners and Pilots Association (AOPA), National Business Aviation Association (NBAA), and nine individuals.

AOPA suggested adding language to the proposed policy to point out the cancellation criteria's consideration of circling procedures being required for pilot training and testing. AOPA expressed concern that flight procedures critical to part 142 training centers could be cancelled without the awareness of these training centers, and requested coordination with the National Simulator Program (and simulator operators) before any IFPs are cancelled to prevent adversely hindering simulator training and testing. AOPA also requested the FAA implement outreach recommendations made in the March 2016 RTCA NPA Report “Process and Criteria for Cancellation of Instrument Flight Procedures” 5 to ensure users and air traffic control are able to provide input prior to IFP cancellation decisions being made.

Language has been added to one of the questions used to evaluate each circling procedure expressing awareness of the need to retain sufficient circling procedures to allow for instrument flight proficiency and training. That criterion now states, “Would cancellation result in all circling minima being removed from all airports within 20 NM?” This particular criteria recognizes the circling-related content of the Instrument Rating—Airplane Airman Certification Standards (ACS). Once a circling procedure is proposed for cancellation, it will be posted on the Instrument Flight Procedures Information Gateway (https://www.faa.gov/air_traffic/flight_info/aeronav/procedures/). This information will be provided to the National Simulator Program, Air Traffic Services, and the Operations Support Groups. This notification will enable them to maintain awareness of IFP-related actions, including proposed cancellations for circling procedures, and communicate this site's availability to their stakeholders for their awareness. Additionally, language has been added to the statement of policy that informs users how to access the FAA's Instrument Flight Procedures Information Gateway (IFP Gateway), through which they can be notified when there are proposed actions to instrument flight procedures at airports of their choosing. Users will be able to submit comments pertaining to proposed circling flight procedure cancellations, and each comment will be taken into consideration before a final determination is made.

NBAA requested the proposed policy be temporarily suspended while Flight Management Systems (FMS) issues that resulted in a number of IFPs being inadvertently eliminated from FMS IFP databases could be evaluated and considered with respect to the proposed policy.

The inadvertent removal of IFPs from certain FMS was unrelated to any action by the FAA with regard to IFP process. The NBAA's suggestion that the effective date of this policy be temporarily suspended or delayed while these FMS issues are addressed is not practical considering these criteria have been discussed, vetted via the RTCA TOC, in which NBAA has been a participant, and finally published in the 2016 RTCA Final NPA Report. Additionally, any circling procedure cancellations that result from implementation of this policy should not impact the probability of future FMS issues as mentioned in the NBAA's comment.

One commenter expressed approval of the cancellation of a circling procedure only if all runways accessible by the procedure have a straight-in IAP with lower minimums than those associated with the cancelled procedure. The individual also expressed the need for some circling procedures to remain in the NAS given the tasks and maneuvers of the Instrument Rating—Airplane Airman Certification Standards (ACS).

The FAA's policy is not intended to ensure straight-in IAPs for every runway end, but rather minimizing IFP redundancy in the NAS. The FAA acknowledges that with the cancellation of some circling procedures, there may be reduced airport accessibility, but no reduction in runway availability. To the extent that the commenter expressed concern over the ACS, the criteria the FAA is finalizing takes into account circling procedures in the ACS. The fourth criteria, which asks whether cancellation will result in all circling minima being removed from all airports within 20 NMs, should ensure that there are sufficient circling procedures for pilot training and testing.

One individual expressed concern that economic, environmental and air traffic management impacts of removing the circling approaches needs to be considered in this policy. The individual also recommended that IFR use over the last several years be evaluated and included as part of the policy.

The FAA has invested significant resources in the infrastructure of the NAS pertaining to IFPs, and a significant portion of those resources have resulted in an increased number of NextGen IFPs. Because of this, the IFP inventory is at an unsustainable level given the current and projected resources needed to maintain IFPs. Also, the criteria outlined in the proposed policy is a result of a collaborative effort between the FAA and aviation industry stakeholders to accomplish a reduction in the number of circling procedures while considering the very concerns expressed by the individual. One of the guiding principles adopted by the TOC Task Group in considering their recommendations for this effort was that IFP utilization was determined not to be a valid stand-alone criterion, as usage data can be inaccurate or unavailable in some cases and does not necessarily reflect the operational value of an IFP. The proposed criteria are only a foundation for identifying procedures for cancellation and is not sole justification for any IFP being cancelled. Once a procedure is identified and proposed for cancellation, and that proposal is posted on the IFP Gateway, stakeholders will have the opportunity to present their justification for retaining that procedure, and each justification will be considered and adjudicated before a determination is made to either retain or cancel that procedure.

One individual stated that the proposed policy does not account for convenience and efficiency, and provided an example of the VOR-A at MOTON FIELD MUNI (K06A). The individual also asked the FAA to add the following to the criteria:

• Does circling allow the pilot to access runways not served by other IAPs?

• Does the existing approach allow the pilot to approach the field and/or access the runway more directly than the alternative straight in approaches?

• Are sufficient alternatives available so that the removal of this circling approach will not force pilots to fly significantly further to access each runway when considering all possible arrival sectors and winds?

• Would removing this circling approach cause harm by forcing pilots to fly further to access straight in approaches?

As stated previously, the proposed policy could minimally impact accessibility to some airports, but the current inventory of IFPs is not sustainable. The proposed policy is intended to minimize IFP redundancy currently present in the NAS, and convenience and efficiency could be impacted at some airports. However, convenience and efficiency have also been significantly enhanced at numerous airports with the implementation of NextGen IFPs, so the commenter's assertion would need to be considered for each specific IFP and each airport with consideration given to the IFP enhancements made at that airport over the last several years. As noted, the public will have an opportunity to provide comment on a proposed cancellation of a specific IFP prior to its cancellation.

The K06A VOR-A is a good example of the IFP redundancy that currently exists within the NAS, as it highlights the investment of resources in NextGen IFPs. At this particular airport, K06A, two RNAV (GPS) IAPs have been installed—one for each runway end. Both of the NextGen approaches have circling minima as good as or better than the minima offered by the VOR-A. Additionally, both of the NextGen IAPs have straight-in minima substantially better than the circling minima offered by the VOR-A, and yet the commenter points out that the VOR-A is useful because the NextGen IAPs add significant distance (time and fuel) to “shoot those approaches from the north or south.” The FAA notes that NextGen IAPs can also be used to approach from a particular direction, east in the commenter's comment, then circle to land on the appropriate runway if needed. Additionally, straight-in approaches with circling minima are viable IAPs for circling to other runways at that airport in accordance with any circling restrictions noted on the associated IAP.

Regarding the additional questions the commenter recommended adding to the criteria, the first criterion request is unnecessary as the FAA's proposed criteria prevents the cancellation of all circling procedures at an airport, so runways currently accessible via circling will remain accessible. For the other 3 criteria recommendations from the commenter, all users will be able to provide justification for objecting to the cancellation of specific circling procedures once a particular circling procedure has been proposed for cancellation and publicized on the IFP Gateway, and those objections will be adjudicated on their own merits. Additionally, the commenter's terms “more directly”, “significantly further”, and “cause harm” are both subjective and ambiguous, and do not provide measurable elements with which to determine a specific procedure's necessity and/or value.

One individual expressed their approval of the proposed policy and expressed their opinion, based upon their stated aviation experience, that circle-to-land maneuvers are dangerous as they can lead to task saturation. The commenter also supported the proposed criteria that ensures at least one circling procedure remains at airports that currently have a circling procedure.

The FAA appreciates the commenter's support of this initiative, but also recognizes the need and purpose for circling procedures in the NAS. While circling maneuvers may involve unique requirement for aviators and air traffic control specialists, it is something that is accounted for in training requirements and, as such, is not considered dangerous. The FAA recognizes that unique situations and conditions could warrant a circling approach, and the design criteria for circling approaches reflects that.

One individual expressed concern regarding their inability to utilize RNAV (GPS) IFPs due to their lack of ADS-B equipage at this time, and the only non-NextGen IAP at their home airport, CLARENCE E. PAGE MUNI (KRCE), is the VOR-B.

The FAA notes that this particular approach would not be considered for cancellation as part of this policy due to it not meeting the criteria that states, “Would cancellation result in removal of circling minima from all conventional NAVAID procedures at an airport?” Because the cancellation of the KRCE VOR-B would result in the cancellation of circling minima from all conventional NAVAID procedures at KRCE, it would not be considered for cancellation as part of this policy.

One individual expressed concerns pertaining to the safety critical nature of circling minima for piston aircraft due to the ability to remain in closer proximity to an airport than when using “direct RNAV approaches,” and cited “deteriorating weather, possible icing, and thunder storm conditions” as justification for retention of circling minima. The individual's assertions lack sufficient details and specifics for the FAA to provide an informed response. Accounting for every possible situation and condition of flight with flight procedures is not practical. Both circling maneuvers and straight-in maneuvers are evaluated using the same criteria and one is not safer than the other is. Access to airports is a separate issue and should be raised to the airport owner/operator and Air Traffic Control through comments submitted after notification of a candidate procedure for cancellation under this program.

One individual requested the following criteria to assure that the FAA maintains or improves the access to the airport, stating that access to a candidate location should never be reduced in the interest of process efficiency:

As previously stated, this IFP reduction effort could impact access at some airports, but the criteria in this policy are in agreement with the PBN NAS Navigation Strategy effort. The addition of NextGen IFPs at airports across the country has substantially improved access at numerous airports, which significantly offsets and frequently outweighs claims of circling procedure cancellations resulting in reduced access to airports. The transition to a predominantly NextGen NAS requires a reduction in ground-based IFPs and infrastructure as outlined in the VOR MON Final Policy Statement published in the Federal Register July 26, 2016. VOR MON policy specifically states, “The MON will enable pilots to revert from Performance Based Navigation (PBN) to conventional navigation for approach, terminal and en route operations in the event of a GPS outage and supports the NAS transition from VOR-based routes to a more efficient PBN structure consistent with NextGen goals and the NAS Efficient Streamlined Services Initiative.” In accordance with VOR MON, NextGen, NAS Efficient Streamlined Services Initiative, and PBN NAS Navigation Strategy, conventional navigation services for approach, terminal and en route operations will be minimized in a strategic manner consistent with these initiatives.

One individual recommended additional criteria to take into consideration nearby “high volume airports” when considering the cancellation of circling procedures, and the example of using the ILS OR LOC RWY 16 to circle to land RWY 34 at CHICAGO EXECUTIVE (KPWK), and its “close proximity to CHICAGO OHARE INTL (KORD)” as an example. The criteria requested by the individual states, “Would the potential cancelling of the circling minimums involve an airport that is in close proximity to a high volume airport, impact safety, procedures or encounter delays?”

In the commenter's example, the ILS OR LOC RWY 16 at KPWK would retain its circling minima in accordance with the FAA's proposed policy's criteria, “Would cancellation result in removal of circling minima from all conventional NAVAID procedures at an airport? Note: If circling minima exists for multiple Conventional NAVAID procedures, preference would be to retain ILS circling minima.”

Regarding the criteria proposed by the individual, circling procedures are being reviewed at every U.S. airport that has instrument approach procedures. ATC's involvement via notification from the Operations Support Group (Flight Procedures Team) will allow them ample opportunity to prevent the cancellation of circling procedures they deem necessary to their operations, and public notification, via the IFP Gateway, will allow the public ample opportunity to communicate concerns regarding the proposed cancellation of any circling procedure.

Based on the comments received, the FAA is finalizing the following policy regarding the criteria and process for the cancellation of standard instrument approach procedures as Part of the national procedures assessment as follows:

All circling procedures will continue to be reviewed through the established IAP periodic review process.6 As part of that review process, each circling procedure will be evaluated against the following questions:

• Is this the only IAP at the airport?

• Is this procedure a designated MON airport procedure?

• If multiple IAPs serve a single runway end, does this procedure provide the lowest circling minima for that runway? 7 Note: If the RNAV circling minima is not the lowest, but is within 50′ of the lowest, the FAA would give the RNAV preference.

• Would cancellation result in removal of circling minima from all conventional NAVAID procedures at an airport? Note: If circling minima exists for multiple Conventional NAVAID procedures, preference would be to retain ILS circling minima.

• Would cancellation result in all circling minima being removed from all airports within 20 NMs? This particular criterion recognizes the circling content of the Instrument Rating—Airplane Airman Certification Standards (ACS).

• Will removal eliminate lowest landing minima to an individual runway?

The following questions are applicable only to circling-only procedures:

• Does this circling-only procedure exist because of high terrain or an obstacle which makes a straight-in procedure infeasible or which would result in the straight-in minimums being higher than the circling minima?

• Is this circling-only procedure (1) at an airport where not all runway ends have a straight-in IAP, and (2) does it have a Final Approach Course not aligned within 45 degrees of a runway which has a straight-in IAP?

Further consideration for cancellation under this policy will be terminated if any of the aforementioned questions are answered in the affirmative. If all questions are answered in the negative, the procedure will be processed as described in the following paragraph.

When a candidate has been identified for cancellation, Aeronautical Information Services will post the proposed cancellation on the Instrument Flight Procedures Information Gateway (IFP Gateway) (https://www.faa.gov/air_traffic/flight_info/aeronav/procedures/) and send a notification of procedure cancellation memorandum and completed checklist (see attached NPA Checklist Sample) to the appropriate Regional Service Area, Operations Support Group.8 The Regional Service Area, Operations Support Group will follow the same notification process used for standard IFP requests. 9 Comments regarding the aforementioned circling procedure should be submitted via email to: [email protected]. Comments will only be considered and adjudicated when submitted prior to the comment deadline associated with the flight procedure as listed on the IFP Coordination tab of the Instrument Flight Procedures Information Gateway site. Aeronautical Information Services will adjudicate and respond to each comment within 30 days of being received. When a determination is made to cancel a part 97 instrument flight procedure or circling line of minima, the cancellation will be published in the Federal Register.

On December 21, 2017, the Commission proposed amendments to its existing regulations under the FOIA, 5 U.S.C. 552,1 to reflect changes required by the Improvement Act and to clarify, update, and streamline the language of several procedural provisions. The Commission received four comment letters on the proposed amendments. After consideration of the comments received, the Commission is adopting the amendments to its FOIA regulations as proposed, other than changes to two definitions related to the collection of fees and a few technical modifications for clarity. Due to the scope of the amendments, this final rule replaces the Commission's existing FOIA regulations in their entirety (17 CFR 200.80 through 200.80f).

The Commission is adopting four changes to the Commission's FOIA regulations to conform them to the Improvement Act. These changes are being adopted largely as proposed.2 First, the final rule revises Section 200.80(a) to provide that records the FOIA requires to be made available for public inspection will be available in electronic format on the Commission's website, http://www.sec.gov. Second, the final rule revises Section 200.80(c) to provide that a request for records may be denied to the extent the exemptions in 5 U.S.C. 552(b) apply to the requested records and Commission staff reasonably foresees that disclosure would harm an interest protected by the applicable exemption, the disclosure of the requested records is prohibited by law, or the requested records are otherwise exempted from disclosure under 5 U.S.C. 552(b)(3). Third, the final rule revises the regulations to state that FOIA requesters may seek assistance from the Office of FOIA Services' FOIA Public Liaisons (Sections 200.80(b), (d), and (e)) and to advise FOIA requesters of their right to seek dispute resolution services offered by the Office of Government Information Services in the case of a denied request (Section 200.80(e)). Fourth, the final rule incorporates the amendments to the FOIA requiring agencies, if they do not comply with the time limits, to waive fees, under certain circumstances (Section 200.80(g)).

The final amendments also revise certain procedural provisions. Those changes clarify, update, and streamline the Commission's regulations, and most of the changes make the regulations consistent with existing practices. These changes are being largely adopted as proposed.3 The amended regulations, among other things, update the various methods for submitting FOIA requests and administrative appeals (Sections 200.80(b) and (f)); incorporate language requiring requesters to include their full names and return addresses in their FOIA requests (Section 200.80(b)); describe certain information that is required when submitting requests for records about oneself or another individual (Section 200.80(b)); explain the situations in which the Office of FOIA Services staff will work with other Federal agencies that have an interest in agency records that may be responsive to a request (Section 200.80(c)); incorporate language that allows the Office of FOIA Services to seek a one-time clarification of an ambiguous request and toll the time period for responding to the request until the requester clarifies the request (Section 200.80(d)); clarify when the 20-day statutory time limit for responding to requests begins (i.e., when requests are received by the Office of FOIA Services and when requests are modified so that they reasonably describe the records sought) (Section 200.80(d)); clarify the Office of FOIA Services' system for multitrack processing of requests (Section 200.80(d)); and insert a provision to enable the Office of FOIA Services to aggregate requests involving related matters where it appears that multiple requests together constitute a single request that would involve unusual circumstances (Section 200.80(d)).

The final rule also clarifies, consistent with existing practice, that the Office of FOIA Services will close requests if requesters do not take certain steps within set time periods. For example, requesters must respond to the Office of FOIA Services' one-time clarification request within 30 calendar days (Section 200.80(d)); agree to pay anticipated fees within 30 calendar days of the Office of FOIA Services' fee estimate (Section 200.80(g)); and, when required to do so, make an advance payment within 30 calendar days of the Office of FOIA Services' fee notice (Section 200.80(g)).

Section 200.80(g) of the final rule revises the Office of FOIA Services' fee procedures and fee schedule in two ways. Both of these changes are being adopted as proposed. First, the final rule allows the Office of FOIA Services to collect fees before sending records to a requester instead of seeking payment when the records are sent (Section 200.80(g)(1)). Second, the final rule removes the set duplication fee of 24 cents per page and instead refers requesters to the FOIA fee page on the Commission's website, where the current fee will be posted (Section 200.80(g)(3)(v)).4 The duplication fee posted on the website will reflect the direct costs of photocopying or producing a printout, taking into account various factors including the salary of the employee(s) performing the work and the cost of materials. The duplication fee posted on the Commission's website will be adjusted as appropriate to reflect current costs. Eliminating the set duplication fee will allow the Office of FOIA Services to align its photocopying and printout fees with the actual costs of duplicating records for production to requesters (in paper format) without having to amend the regulations.

As proposed, the final rule also codifies several existing practices. For example, it states that fees for duplicating records onto electronic medium (including the costs associated with scanning materials, where applicable) will be the direct costs of duplicating records for requesters (Section 200.80(g)(3)(v)); clarifies that the Office of FOIA Services will not process any requests once it determines that a fee may be charged unless the requester commits to pay any estimated fees (Section 200.80(g)(5)(ii)); clarifies the direct costs that can be charged by the Office of FOIA Services as part of search, review, and duplication fees (Section 200.80(g)(3)); and sets forth the various methods by which FOIA processing fees can be paid (Section 200.80(g)(1)).

The final rule also revises existing fee-related definitions and incorporates new fee-related definitions (Section 200.80(g)(2)). As discussed below, some of these definitions have been slightly revised in the final rule in response to comments received on the proposed rule.5

As proposed, the final rule eliminates certain provisions in the Commission's current FOIA regulations that repeat information contained in the FOIA statute and do not need to be in the Commission's regulations. Among the provisions that the Commission is removing are: (1) The list of information the FOIA requires the Commission to publish in the Federal Register (Section 200.80(a)(1) of the superseded regulations), (2) the categories of records the FOIA requires the Commission to make available for public inspection (Section 200.80(a)(2) of the superseded regulations), and (3) the nine categories of records that are exempt from disclosure under 5 U.S.C. 552(b) (Section 200.80(b) of the superseded regulations). Finally, the final rule eliminates Appendices A through F from the existing FOIA regulations. Appendices A through D and F of the existing regulations provide general information that is available on the Commission's website to the extent it is relevant to the public. The information in Appendix E of the existing regulations is revised and updated and moved to Section 200.80(g) (Fees) of the final rule.

The structure of the regulations is amended accordingly: Section 200.80(a) (General provisions); Section 200.80(b) (Requirements for making requests); Section 200.80(c) (Processing requests); Section 200.80(d) (Time limits and expedited processing); Section 200.80(e) (Responses to requests); Section 200.80(f) (Administrative appeals); and Section 200.80(g) (Fees).

The Commission received four comment letters in response to the proposed rulemaking. Two of the comments concern definitions in the fee provisions of the proposed rule and suggest substantive changes to the Commission's proposed fee definitions.6 One comment suggests technical clarifications to some of the Commission's FOIA procedures.7 The final letter supports certain provisions in the proposed rule.8 The Commission has considered the comments received and, as discussed below, in certain cases has made modifications in the final amendments in response to those comments.

In proposing the definitions in the fee provisions of the proposed rule, the Commission considered the FOIA's directive that agencies “promulgate regulations . . . specifying the schedule of fees applicable to the processing of requests . . . [and that] [s]uch schedule shall conform to the guidelines which shall be promulgated . . . by the Director of the Office of Management and Budget [(“OMB”)].” 9 In light of this directive, the Commission looked to the definitions in the OMB's 1987 FOIA fee guidelines except to the extent that courts have held that the definitions are not consistent with the FOIA.10

One commenter expressed concern that the Commission's definition of “educational institution” in proposed Section 200.80(g)(2)(iv) is inconsistent with the FOIA provision that addresses fees that agencies can charge when “records are not sought for commercial use and the request is made by an educational or noncommercial scientific institution, whose purpose is scholarly or scientific research.” 11 The commenter stated that the Commission's proposed definition of “educational institution” “deviates from the statute in two respects”—the definition “omits reference to `scientific research' ” and it “requires that the purpose of the request be `to further scholarly research' whereas the statute requires only that the educational institution have a purpose of scholarly or scientific research.” 12

Electronic Access and Filing

This document and all comments received may be viewed online through the Federal eRulemaking portal at www.regulations.gov. It is available 24 hours each day, 365 days each year. Please follow the instructions online for more information and help.

An electronic copy of this document may also be downloaded by accessing the Office of the Federal Register's home page at: http://www.archives.gov and the Government Publishing Office's web page at: http://www.access.thefederalregister.org/nara.

The NN consists of Interstate System routes (except exempted routes) and those non-Interstate System routes added through the rulemaking process. See 49 U.S.C. 31111(e)-(f) and 31113(e); 23 CFR part 658 Appendix A; see also 49 FR 23302 (June, 5, 1984). To ensure that the NN remains substantially intact, FHWA retains the authority to rule upon all requests for additions to, and deletions from, the NN as well as requests for the imposition of certain restrictions. Pursuant to 23 CFR 658.11, requests for additions to the NN must be submitted in writing to the appropriate FHWA Division Office and endorsed by the Governor or the Governor's authorized representative. Proposals for addition of routes to the NN must also be accompanied by an analysis of suitability based on the criteria in 23 CFR 658.9. Once a non-Interstate System route is added to the NN, it is included in Appendix A of 23 CFR part 658—National Network—Federally Designated Routes.

On November 10, 2017, FHWA received a request from the New York State Department of Transportation (NYSDOT) proposing a modification to the Interstate System. The request, available in the rulemaking docket, proposes the de-designation (removal from the Interstate System) of the Sheridan Expressway (I-895), approximately a 1.3-mile Interstate between the Bruckner Expressway (I-278) and the Cross Bronx Expressway (I-95). As part of the de-designation, the State also proposes the functional reclassification of this highway segment from an Interstate to “Urban Principal Arterial—Other” and to rename the road Sheridan Boulevard (NY-895). The physical alignment of the highway would be maintained, and it would therefore continue to provide the same access for commercial vehicles as currently exists. The FHWA intends to act on this request pursuant to its regulatory authority on revisions to the Interstate System (23 CFR 470.115(a) and 23 CFR 658.11(d)) and guidance on Interstate System de-designations (https://www.fhwa.dot.gov/planning/national_highway_system/interstate_highway_system/withdrawalqa.cfm).

The NYSDOT intends to keep Sheridan Boulevard (NY-895) in the NN. Because the route would no longer be in the Interstate System, it must be added to NN as a non-Interstate System route and be listed in 23 CFR part 658 Appendix A. The NYSDOT proposal included the required analysis of suitability based on the criteria in 23 CFR 658.9, which includes a crash analysis and safety study, and also documents effects on Interstate commerce, effects on alternate routes, effects on traffic operations, and consultation with local governments.

The FHWA reviewed NYSDOT's proposal and affirms that the request to add a route to the NN is consistent with 23 CFR 658.9 and 658.11 with respect to the criteria for the NN and the procedures for additions to the NN. The FHWA published a Notice of Proposal Rulemaking at 83 FR 15524 on April 11, 2018, proposing to approve the addition of Sheridan Boulevard (NY 895) to the NN and to revise existing regulations (23 CFR part 658 Appendix A) to reflect the addition. The FHWA did not receive any comments to the NPRM and is adopting the changes as proposed.

As the Sheridan Expressway is already part of the NN due to its Interstate designation, FHWA has determined there would be no substantive impact to the public resulting from the addition of the reconstructed facility, Sheridan Boulevard, to the NN.

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). The FHWA has determined that this action is not a significant regulatory action within the meaning of Executive Order 12866 and is not significant within the meaning of DOT regulatory policies and procedures. Executive Order 13563 emphasizes the importance of quantifying both costs and benefits, reducing costs, harmonizing rules, and promoting flexibility. It is anticipated that the economic impact of this rulemaking would be minimal. These changes would not adversely affect, in a material way, any sector of the economy. In addition, these changes would not interfere with any action taken or planned by another agency and would not materially alter the budgetary impact of any entitlements, grants, user fees, or loan programs. Consequently, a full regulatory evaluation is not required. Finally, this rule is not an E.O. 13771 regulatory action because it is not significant under E.O. 12866.

In compliance with the Regulatory Flexibility Act (Pub. L. 96-354, 5 U.S.C. 601-612), the FHWA has evaluated the effects of this action on small entities and has determined that the action would not have a significant economic impact on a substantial number of small entities. “Small entities” include small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations under 50,000. This action does not affect any funding distributed under any of the programs administered by FHWA. For these reasons, FHWA certifies that this action would not have a significant economic impact on a substantial number of small entities.

This rule would not impose unfunded mandates as defined by the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4, 109 Stat. 48). This rule would not result in the expenditure by State, local, and Tribal governments, in the aggregate, or by the private sector, of $148.1 million or more in any one year (2 U.S.C. 1532).

This action has been analyzed in accordance with the principles and criteria contained in Executive Order 13132, and FHWA has determined that this action would not have sufficient federalism implications to warrant the preparation of a federalism assessment. The FHWA has also determined that this action would not preempt any State law or State regulation or affect the States' ability to discharge traditional State governmental functions.

We have analyzed this action under Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use, dated May 18, 2001. We have determined that it is not a significant energy action under that order since it is not likely to have a significant adverse effect on the supply, distribution, or use of energy. Therefore, a Statement of Energy Effects is not required.

Catalog of Federal Domestic Assistance Program Number 20.205, Highway Planning and Construction. The regulations implementing Executive Order 12372 regarding intergovernmental consultation on Federal programs and activities apply to this program.

Under the Paperwork Reduction Act of 1995 (PRA) (44 U.S.C. 3501), Federal agencies must obtain approval from the Office of Management and Budget for each collection of information they conduct, sponsor, or require through regulations. The FHWA has determined that this rule does not contain collection of information requirements for the purposes of the PRA.

This action meets applicable standards in sections 3(a) and 3(b)(2) of Executive Order 12988, Civil Justice Reform, to minimize litigation, eliminate ambiguity, and reduce burden.

The FHWA has analyzed this rule under Executive Order 13045, Protection of Children from Environmental Health Risks and Safety Risks. The FHWA certifies that this action would not cause any environmental risk to health or safety that might disproportionately affect children.

The FHWA has analyzed this rule under Executive Order 12630, Governmental Actions and Interface with Constitutionally Protected Property Rights. The FHWA does not anticipate that this action would affect a taking of private property or otherwise have taking implications under Executive Order 12630.

The Agency has analyzed this action for the purpose of the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4347) and has determined that this action would not have any effect on the quality of the environment.

A regulation identification number (RIN) is assigned to each regulatory action listed in the Unified Agenda of Federal Regulations. The Regulatory Information Service Center publishes the Unified Agenda in April and October of each year. The RIN contained in the heading of this document can be used to cross reference this action with the Unified Agenda.

In consideration of the foregoing, the FHWA amends 23 CFR part 658, as set forth below:

Electronic Availability

This document and additional information concerning OFAC are available on OFAC's website (www.treasury.gov/ofac).

On May 8, 2018, the President issued NSPM-11, which set forth his decision to end the United States' participation in the JCPOA. In NSPM-11, the President directed the Secretary of State and the Secretary of the Treasury to immediately begin taking steps to re-impose all United States sanctions lifted or waived in connection with the JCPOA as expeditiously as possible, and in no case later than 180 days from the date of NSPM-11. Today, OFAC is amending the ITSR, 31 CFR part 560, to issue wind-down authorizations for activities involving Iran that were previously authorized by OFAC in connection with the U.S. sanctions relief provided for under the JCPOA. In conjunction with this action, OFAC has revoked General License H and General License I, two authorizations for activities involving Iran that were previously issued by OFAC in connection with the U.S. sanctions relief provided for under the JCPOA.

On January 16, 2016, OFAC issued General License H to license certain transactions relating to foreign entities owned or controlled by a United States person. At the time of its issuance, General License H was posted on OFAC's website (www.treasury.gov/ofac).

Also on January 16, 2016, OFAC issued a Statement of Licensing Policy for Activities Related to the Export or Re-export to Iran of Commercial Passenger Aircraft and Related Parts and Services (JCPOA SLP). At the time of its issuance, the JCPOA SLP was posted on OFAC's website (www.treasury.gov/ofac). Following the issuance of NSPM-11, OFAC rescinded the JCPOA SLP and posted an archived version of the JCPOA SLP on its website for reference purposes.

On January 21, 2016, OFAC amended the ITSR to license the importation into the United States of certain Iranian-origin carpets and foodstuffs, including pistachios and caviar (81 FR 3330). Specifically, OFAC added § 560.534 to the ITSR to authorize by general license the importation into the United States of, and dealings in, certain Iranian-origin foodstuffs and carpets from Iran or a third country. OFAC also added § 560.535 to the ITSR to authorize by general license certain letters of credit and brokering services relating to certain Iranian-origin foodstuffs and carpets.

On March 24, 2016, OFAC issued General License I to authorize certain transactions related to the negotiation of, and entry into, contingent contracts for activities eligible for authorization under the JCPOA SLP. At the time of its issuance, General License I was posted on OFAC's website (www.treasury.gov/ofac).

Today, OFAC is amending the ITSR to implement the wind-down authorizations for the above-referenced activities involving Iran that were previously authorized by OFAC pursuant to the ITSR in connection with the U.S. sanctions relief provided for under the JCPOA.

First, OFAC is amending § 560.534 to narrow the scope of that general license to authorize, through 11:59 p.m. eastern daylight time on August 6, 2018, only the wind down of transactions related to the importation into the United States of, and dealings in, certain Iranian-origin foodstuffs and carpets. U.S. persons will be authorized to engage in all transactions and activities that are ordinarily incident and necessary to the wind down of transactions that were previously authorized under § 560.534. After 11:59 p.m. eastern daylight time on August 6, 2018, no further transactions are authorized under amended § 560.534.

OFAC is also amending § 560.535 to narrow the scope of that general license to authorize, through 11:59 p.m. eastern daylight time on August 6, 2018, only the wind down of transactions related to letters of credit and brokering services relating to certain Iranian-origin foodstuffs and carpets. U.S. persons will be authorized to engage in all transactions and activities that are ordinarily incident and necessary to the wind down of transactions that were previously authorized under § 560.535. After 11:59 p.m. eastern daylight time on August 6, 2018, no further transactions are authorized under amended § 560.535.

In addition, OFAC is adding § 560.536 to authorize, through 11:59 p.m. eastern daylight time on August 6, 2018, all transactions and activities that are ordinarily incident and necessary to the wind down of transactions related to the negotiation of contingent contracts for activities that were, at the time of the negotiation, eligible for authorization under the JCPOA SLP. This wind-down authorization enables U.S. persons to wind down, through August 6, 2018, activities that were previously authorized pursuant to General License I. In conjunction with this action, OFAC has revoked General License I and has posted an archived version of General License I on its website (www.treasury.gov/ofac) for reference purposes. After 11:59 p.m. eastern daylight time on August 6, 2018, no further transactions are authorized under § 560.536.

Finally, OFAC is adding § 560.537 to authorize, through 11:59 p.m. eastern standard time on November 4, 2018, all transactions and activities that are ordinarily incident and necessary to the wind down of transactions relating to foreign entities owned or controlled by a United States person that were previously authorized under General License H. In conjunction with this action, OFAC has revoked General License H and has posted an archived version of General License H on its website (www.treasury.gov/ofac) for reference purposes. After 11:59 p.m. eastern standard time on November 4, 2018, no further transactions are authorized under § 560.537.

Because the amendment of the ITSR involves a foreign affairs function, the provisions of Executive Order 12866 and the Administrative Procedure Act (5 U.S.C. 553) requiring notice of proposed rulemaking, opportunity for public participation, and delay in effective date, as well as the provisions of Executive Order 13771, are inapplicable. Because no notice of proposed rulemaking is required for this rule, the Regulatory Flexibility Act (5 U.S.C. 601-612) does not apply.

The collections of information related to the ITSR are contained in 31 CFR part 501 (the “Reporting, Procedures and Penalties Regulations”). Pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3507), those collections of information have been approved by the Office of Management and Budget under control number 1505-0164. An agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless the collection of information displays a valid control number.

For the reasons set forth in the preamble, the Department of the Treasury's Office of Foreign Assets Control amends 31 CFR chapter V as follows:

I. Table of Abbreviations CFR Code of Federal Regulations DHS Department of Homeland Security FR Federal Register NPRM Notice of proposed rulemaking Pub. L. Public Law § Section U.S.C. United States Code COTP Captain of the Port II. Background Information and Regulatory History

The Coast Guard is establishing this special local regulation without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it is impracticable. Insufficient time remains to publish an NPRM and to receive public comments, as the Sarasota Powerboat Grand Prix event will occur before the rulemaking process would be completed. Because of the dangers associated with high speed boat races, the regulation is necessary to provide for the safety of event participants, spectators, and vessels transiting the event area. For those reasons, it would be impracticable to publish an NPRM.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. For the reason discussed above, the Coast Guard finds that good cause exists.

The legal basis for this rule is the Coast Guard's authority to establish special local regulations: 33 U.S.C. 1233. The purpose of the rule is to provide for the safety of life on navigable waters of the United States during the Sarasota Powerboat Grand Prix High Speed Boat Race.

This rule establishes a special local regulation that will encompass certain waters of the Gulf of Mexico, Lido Beach, Florida. The special local regulation will be enforced daily from 8 a.m. to 6 p.m. on June 29, 2018 through July 1, 2018. The special local regulation will establish an enforcement area where all persons and vessels, except those persons and vessels participating in the high speed boat races, are prohibited from entering, transiting through, anchoring in, or remaining within without obtaining permission from the COTP St. Petersburg or a designated representative.

Persons and vessels may request authorization to enter, transit through, anchor in, or remain within the regulated area by contacting the Captain of the Port (COTP) St. Petersburg by telephone at (727) 824-7506, or a designated representative via VHF radio on channel 16. If authorization to enter, transit through, anchor in, or remain within the regulated area is granted by the COTP St. Petersburg or a designated representative, all persons and vessels receiving such authorization must comply with the instructions of the COTP St. Petersburg or a designated representative. The Coast Guard will provide notice of the special local regulation by Local Notice to Mariners and/or Broadcast Notice to Mariners.

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

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

This regulatory action determination is based on: (1) The special local regulation will be enforced for only ten hours on two days; (2) although persons and vessels may not enter, transit through, anchor in, or remain within the regulated area without authorization from the COTP St. Petersburg or a designated representative, they may operate in the surrounding area during the enforcement period; (3) persons and vessels may still enter, transit through, anchor in, or remain within the regulated area or anchor in the sponsor's designated spectator area(s), during the enforcement period if authorized by the COTP St. Petersburg or a designated representative; and (4) the Coast Guard will provide advance notification of the special local regulation to the local maritime community by Local Notice to Mariners and/or Broadcast Notice to Mariners.

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

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

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Management Directive 023-01 and Commandant Instruction M16475.lD, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves a special local regulation issued in conjunction with a regatta or marine parade. It is categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

The Coast Guard is issuing this temporary rule without prior notice and opportunity to comment pursuant to authority under section 4(a) of the Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision authorizes an agency to issue a rule without prior notice and opportunity to comment when the agency for good cause finds that those procedures are “impracticable, unnecessary, or contrary to the public interest.” Under 5 U.S.C. 553(b)(3)(B), the Coast Guard finds that good cause exists for not publishing a notice of proposed rulemaking (NPRM) with respect to this rule because it would be impracticable. This safety zone must be established by July 14, 2018 and we lack sufficient time to provide a reasonable comment period and then consider those comments before issuing this rule. The NPRM process would delay the establishment of the special local regulation until after the scheduled date of the regatta and compromise public safety.

Under 5 U.S.C. 553(d)(3), the Coast Guard finds that good cause exists for making this rule effective less than 30 days after publication in the Federal Register. Delaying the effective date of this rule would be contrary to the public interest because immediate action is necessary to ensure the safety of persons and vessels during the regatta.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 1233. The Captain of the Port Sector Corpus Christi (COTP) has determined that potential hazards associated with the vessel traffic occurring on July 14, 2018 through July 21, 2018 will be a safety concern for participants within the boating course. Potential hazards include risk of injury or death resulting from near or actual contact among participant vessels and spectator vessels or waterway users if normal vessel traffic were to interfere with the event. The purpose of this rule is to ensure safety of participants, spectators, and transiting vessels in the regulated area before, during, and after the Youth World's Championship regatta.

This rule establishes a temporary special local regulation from 6:15 a.m. through 3 p.m. each day from July 14, 2018 through July 21, 2018 in Corpus Christi Bay, approximately 3,000 feet east of People's Street T-Head in Corpus Christi, TX. The regatta will be inside a rectangular area with the most northwestern point located at 27°47′31″ N, 97°22′33.05″ W, most northeastern point located at 27°47′29.46″ N, 97°19′44.26″ W, most southeastern point located at 27°46′12.06″ N, 97°19′44.78″ W, and the most southwestern located at 27°46′09.55″ N, 97°22′28.78″ W. The duration of the special local regulation is intended to protect the public from potential navigation hazards before, during, and after the event. No vessel or person is permitted to enter the regulated area without obtaining permission from the COTP or a designated representative. A designated representative may be a Patrol Commander (PATCOM). The PATCOM will be aboard either a Coast Guard or Coast Guard Auxiliary vessel. The PATCOM may be contacted on Channel 16 VHF-FM (156.8 MHz) by the call sign “PATCOM”.

All persons and vessels not registered with the sponsor as participants or official patrol vessels are considered spectators. The “official patrol vessels” consist of any Coast Guard, state, or local law enforcement and sponsor provided vessels assigned or approved by the COTP to patrol the regulated area.

Spectator vessels desiring to enter, transit through or within, or exit the regulated area may do so only with permission from the COTP or a designated representative, and when permitted, must operate at a minimum safe navigation speed in a manner which will not endanger participants in the regulated area or any other vessels. No spectator vessel shall anchor, block, loiter, or impede the through transit of participants or official patrol vessels in the regulated area during the effective dates and times, unless cleared for entry by or through an official patrol vessel. Any spectator vessel may anchor outside the regulated area, but may not anchor in, block, or loiter in a navigable channel.

The COTP or a designated representative may forbid and control the movement of all vessels in the regulated area. When hailed or signaled by an official patrol vessel, a vessel shall come to an immediate stop and comply with the directions given. Failure to do so may result in expulsion from the area, citation for failure to comply, or both.

The COTP or a designated representative may terminate the event or the operation of any vessel at any time it is deemed necessary for the protection of life or property. The COTP or a designated representative can terminate enforcement of the special local regulations at the conclusion of the event.

The COTP or a designated representative would inform the public of the enforcement times for this safety zone through Broadcast Notices to Mariners (BNMs), Local Notices to Mariners (LNMs), and/or Marine Safety Information Bulletins (MSIBs) as appropriate.

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

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

This regulatory action determination is based on size, location, duration, and time-of-day for the special local regulation. Vessel traffic will be able to safely navigate around the regulated area, which will impact only a small portion of the Laguna Madre for 3 hours and 15 minutes on one day. Moreover, the Coast Guard will issue Broadcast Notices to Mariners (BNMs) via VHF-FM marine channel 16 about the regulation so that waterway users may plan accordingly for transits during this restriction, and the rule allows vessels to seek permission from the COTP or a designated representative to enter the regulated area.

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

While some owners or operators of vessels intending to transit the temporary regulated area may be small entities, for the reasons stated in section V.A above, this rule will not have a significant economic impact on any vessel owner or operator.

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

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

Under section 213(a) of the Small Business Regulatory Enforcement Fairness Act of 1996 (Pub. L. 104-121), we want to assist small entities in understanding this rule. If the rule would affect your small business, organization, or governmental jurisdiction and you have questions concerning its provisions or options for compliance, please contact the person listed in the FOR FURTHER INFORMATION CONTACT section. The Coast Guard will not retaliate against small entities that question or complain about this rule or any policy or action of the Coast Guard.

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have made a preliminary determination that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule is a special local regulation that limits daily access to certain navigable waters of Corpus Christi Bay over eight days. Normally such actions are categorically excluded from further review under paragraph L61 of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A preliminary Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 100 as follows:

I. Table of Abbreviations AIS Automatic identification system CFR Code of Federal Regulations DHS Department of Homeland Security NPRM Notice of proposed rulemaking § Section U.S.C. United States Code II. Background Information and Regulatory History

The Coast Guard is establishing two anchorage grounds, one in the vicinity of Carleton Island, New York, and the second near Tibbetts Point, New York. Each area has historically been used as an anchorage and the Saint Lawrence Seaway Development Corporation, at the request of its waterway users, has requested each area to be officially designated as Federal Anchorage Grounds.

Without this designation, pilots who anchor a ship in the respective areas are unable to disembark during sustained delay periods which hinder compliance with rest requirements and complicate pilot availability and logistics for other vessels. On February 2, 2018, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Saint Lawrence Seaway Anchorages (83 FR 4882). The NPRM discussed the need for the rule and invited the public to comment on the proposed regulatory action related to this Anchorage Grounds establishment. During the comment period that ended May 3, 2018, we received two comments. One comment was not relevant to the proposed rule and the other comment expressed support of the proposal.

The Coast Guard is issuing this rule under authority in 33 U.S.C. 471, 1221 through 1236, 2071; 33 CFR 1.05-1; Department of Homeland Security Delegation No. 0170.1.

The Coast Guard recognizes the need to establish two anchorage grounds, one in the vicinity of Carleton Island, New York and the second near Tibbetts Point, New York. Each area has historically been used as an anchorage and the Saint Lawrence Seaway Development Corporation, at the request of its waterway users, has requested each area to be officially designated as Federal Anchorage Grounds.Without this designation, pilots who anchor a ship in the respective areas are unable to disembark during sustained delay periods which hinder compliance with rest requirements and complicate pilot availability and logistics for other vessels.

As noted above, we received two comments on our NPRM published February 2, 2018. We made no changes to the regulatory text based on these comments, but we did clarify that our reference to the Captain of the Port was to the Captain of the Port Buffalo.

This rule establishes two new anchorage areas to be known as Carleton Island Anchorage and Tibbetts Point Anchorage.

The Carleton Island Anchorage will be located just northeast and adjacent to Carleton Island and Millen Bay. The boundaries of Carleton Island Anchorage are presented in the regulatory text at the end of this document. The anchorage will be approximately .75 square miles. Carleton Island Anchorage is primarily intended for use by up-bound inland or ocean going bulk freight and tank ships, towing vessels and barges that need to anchor and wait for the availability of a Lake Ontario Pilot. Under this rule no anchors would be allowed to be placed in the channel and no portion of the hull or rigging will be allowed to extend outside the limits of the anchorage area.

The Tibbetts Point Anchorage will be located just west and adjacent to Tibbetts Point and Fuller Bay. The boundaries of Tibbett's Point Anchorage are presented in the regulatory text at the end of this document. The anchorage will be approximately 1.5 square miles. Tibbett's Point Anchorage is primarily intended for use by down-bound inland or ocean going bulk freight and tank ships, towing vessels and barges that need to anchor and wait for the availability of a River Pilot. Under this rule no anchors will be allowed to be placed in the channel and no portion of the hull or rigging will be allowed to extend outside the limits of the anchorage area.

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

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

This regulatory action determination is based on the location and size of the anchorage grounds, as well as the historical automatic identification system (AIS) data. The impacts on routine navigation are expected to be minimal because the anchorage grounds are located outside the navigational channel. When not occupied, vessels would be able to maneuver in, around and through the anchorage.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves the establishment of permanent anchorages near Carleton Island and Tibbetts Point, New York. It is categorically excluded from further review under paragraph L59(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

For the reasons discussed in the preamble, the Coast Guard amends 33 CFR part 110 as follows:

On July 10, 2012 (77 FR 40521), the Coast Guard Captain of the Port, Sector Puget Sound, published a final rule that became effective Aug. 1, 2012; the Seattle's Seafair Fleet Week Moving Vessels security zone. On April 6, 2018, the Coast Guard published a notice of proposed rulemaking (NPRM) titled Security Zone; Seattle's Seafair Fleet Week Moving Vessels, Puget Sound, WA (83 FR 14801) in which we proposed to amend the current final rule. There we stated why we issued the NPRM, and invited comments on our proposed regulatory action. During the comment period that ended May 21, 2018, we received three written submissions.

The Coast Guard is amending its Seattle Seafair Fleet Week Moving Vessel Security Zone regulation, 33 CFR 165.1333, under authority in 33 U.S.C. 1231. In past years, some of the designated participating vessels which required the security zone have been rescheduled at the last moment due to operational needs, and as a result, the changes precluded the Coast Guard from providing sufficient notice of which vessels are participating in the parade of ships in the Federal Register. The amended regulation will allow the Coast Guard to publish dates and times of the Parade of Ships in the Federal Register and Local Notice to Mariners, and of the designated participating vessels it is aware of at the time it issues the notice, and provide that actual notice will be used to enforce the security zone around any vessels designated after the notice has been issued. Further, for the reasons discussed above, the amended regulation will require that the Coast Guard publish the above information before the beginning of the Parade of Ships instead of the three days currently provided for in the regulation. The names of the designated vessels will also be published in a Broadcast Notice to Mariners.

As noted above, we received three written submissions on our NPRM published April 6, 2018. The first commenter requested to stop the Russian and Chinese fishing ships from fishing within the U.S. Exclusive Economic Zone. As this comment does not relate to this rulemaking, no response is required. The second commenter requested the Agency stop wasting water from several of the Snake River hydroelectric dams that provide power and water for the navigation of vessel traffic for the region. This comment also does not relate the subject matter of this rulemaking and no response is required.

The third commenter provided a number of different concerns, each of which we address in turn as follows.

First, the commenter provided that the Thirteenth Coast Guard District failed to contact “interested community groups” as recommended by the Office for Civil Rights and Civil Liberties, U.S. Department of Homeland Security, prior to implementation of exclusion zones. As noted by the commenter, the Coast Guard published a notice of proposed rulemaking in the Federal Register, providing notice of a proposed change of the notice of an annual security zone.

Second, the commenter provided that the Parade of Ships fails to comply with 33 CFR 100.15, which details the procedures for submission of a marine event permit, and that the event had never been conducted in a lawful manner. The Coast Guard has determined that in light of the existing regulations in place, such as the Naval Vessel Protection Zone in 33 CFR 165.2030, and the subject regulation, 33 CFR 165.1333, the Parade of Ships will not introduce extra or unusual hazards to the safety of life on the navigable waters of the United States such that a marine event permit would be required under 33 CFR 100.15. The commenter provided a discussion on the information required in a marine event permit application. As the discussion on what is required in a marine event permit does not relate to the proposed amendments to 33 CFR 165.1333, no further response is required.

Third, the commenter provided that proposed revisions to 33 CFR 165.1333 are actually due to previous Coast Guard errors instead of changing schedules, because it appears from prior correspondence with the Coast Guard that the Coast Guard may have mistakenly left out U.S. Navy vessels from the applicability of this zone. Naval Vessel Protection Zones under 33 CFR 165.2030 apply to large U.S. Navy vessels, which have historically participated in the Parade of Ships. As stated in the NPRM for the regulatory change we proposed, the reason why this rule is being amended is due to last minute changes in the vessels participating in the Parade of Ships due to operational needs. Based on this comment, however, we have decided to make a change from our proposed amendment to § 165.1333. We are amending § 165.1333(a) to explain that the Coast Guard may use actual notice to enforce security zones around participating vessels not included in the notice, in situations when due to operational needs there is a change after the notice has been issued and the COTP needs to add a vessel to the list of designated participating vessels. In those situations the Coast Guard will also announce any such changes in the Local Notice to Mariners. The reference to actual notice reflects existing authorities and enforcement practices, but we hope that stating it in the Code of Federal Regulations will be helpful. The change is within the scope of the proposed rule, which envisioned using actual notice for security zones around all participating vessels.

The COTP does not designate large U.S. Navy vessels—those more than 100 feet in length overall—that participate in the parade as designated participating vessels because persons who violate the naval vessel protection zone around those vessels, which are issued under 14 U.S.C. 91 authority, are already subject to penalties under 33 U.S.C. 1232. Whether a large U.S. Navy vessels is in Parade of Ships or not, it will be surrounded by a naval vessel protection zone and persons should comply with the provisions of that regulation.

Fourth, the commenter provided that Broadcast Notice to Mariners before and during the event is insufficient notice. The proposed regulatory change provides that the security zones will be enforced with actual notice which meets the standard set in 5 U.S.C. 552(a)(1). The Coast Guard considered the commenter's concerns about receiving Broadcast Notice to Mariners and, in response we revised the regulatory text to include an email and a phone number which members of the public can contact the Captain of the Port to receive an updated list of participating vessels. Furthermore, the Coast Guard actively conducts outreach to those participating in planned First Amendment activities related to the Parade of Ships so as to ensure the safety of all participants, and that participants of such activities are aware of all means to obtain the names of the vessels to which regulations apply.

Fifth, the commenter provided that an accurate list of vessels in the Parade of Ships is essential for vessel operators engaged in First Amendment activities. The Coast Guard concurs with this comment, but has pointed to the problem of last-minute changes making this objective difficult to achieve. Instead of eliminating the notice identifying participating vessels, as proposed, we will use actual notice to enforce security zones around vessels designated after the notice has been issued. In addition to actual notice, the Coast Guard will broadcast the names of the vessels to which the security zone applies using a Broadcast Notice to Mariners.

Sixth, the commenter provided that the Coast Guard's fear of free speech activities is irrational. The Coast Guard's rule amends the manner in which notice will be provided as to which vessels will have a security zone during the annual Parade of Ships during Fleet Week. The Coast Guard strives to ensure that free speech activities are respected and accommodated.

Seventh, the commenter provided that the Coast Guard should require an application for the maritime event, pursuant to 33 CFR 100.15, as it might allow for citizens to comment on the entire event in a meaningful way. The Coast Guard's position with respect to marine event permits can be found in the response to this commenter's second comment. Citizens may comment on the event in any way that is provided for under the protections of the First Amendment.

Eighth, the commenter provided that proposed revisions to 33 CFR 165.1333 expand restricted zones in Elliot Bay. The proposed amendment to 33 CFR 165.1333 did not expand the geographic size nor timeframe of the security zone.

After considering all the foregoing comments, the Coast Guard amended paragraph (a) of the regulatory text to maintain the notice while adding a provision providing for the Coast Guard to use actual notice for any vessels designated as participating vessels after the notice is issued. This maintains the notice but clarifies that we can address last minute changes to participating vessels because of operational needs. We also amended paragraph (e) to reflect additional methods of obtaining an up to date list of participating vessels, and we included both the date and times of the period that the regulation will be enforced, as opposed to just the date.

This rule amends the way in which the Coast Guard informs the public of the Seattle Seafair Fleet Week Parade. In order to provide notice to the public regarding the vessels requiring the security zones, the Coast Guard will continue to publish a notice in the Federal Register identifying designated participating vessels. We will also list in those notices the times, in addition to the dates, that the security zones will be enforced. We will use actual notice to make persons aware of changes to the notice identifying designated participating vessels and we will identify all designated participating vessels, included those added late, in both Local Notice to Mariners and Broadcast Notice to Mariners.

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

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

This regulatory action determination is based on the fact that this rule only changes the means by which the public will be notified about the security zone.

The Regulatory Flexibility Act of 1980, 5 U.S.C. 601-612, as amended, requires Federal agencies to consider the potential impact of regulations on small entities during rulemaking. The term “small entities” comprises small businesses, not-for-profit organizations that are independently owned and operated and are not dominant in their fields, and governmental jurisdictions with populations of less than 50,000. The Coast Guard received no comments from the Small Business Administration on this rulemaking. The Coast Guard certifies under 5 U.S.C. 605(b) that this rule will not have a significant economic impact on a substantial number of small entities.

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

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

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

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

A rule has implications for federalism under Executive Order 13132, Federalism, if it has a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. We have analyzed this rule under that Order and have determined that it is consistent with the fundamental federalism principles and preemption requirements described in Executive Order13132.

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

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

We have analyzed this rule under Department of Homeland Security Directive 023-01 and Commandant Instruction M16475.1D, which guide the Coast Guard in complying with the National Environmental Policy Act of 1969 (42 U.S.C. 4321-4370f), and have determined that this action is one of a category of actions that do not individually or cumulatively have a significant effect on the human environment. This rule involves amending the way in which the Coast Guard will notify the public which vessels are designated participants in Seattle's Seafair Fleet Week. It is categorically excluded from further review under paragraph L60(a) of Appendix A, Table 1 of DHS Instruction Manual 023-01-001-01, Rev. 01. A Record of Environmental Consideration supporting this determination is available in the docket where indicated under ADDRESSES.

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

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

Throughout this document “we,” “us,” and “our” refer to EPA. This section provides additional information by addressing the following:

On August 25, 2017, EPA proposed to approve a revision to the Iowa State Implementation Plan (SIP) which amended the Administrative Consent Order (ACO) for Grain Processing Corporation (GPC), Muscatine, Iowa. The revision amended the ACO to change the date for completion of performance testing from May 31, 2017, to May 31, 2018, to allow the state more time to complete processing the remaining air construction permit applications submitted by GPC, and to specify testing requirements as appropriate in the remaining final permits. See 82 FR 40519. In conjunction with the August 25, 2017 notice of proposed rulemaking (NPR), EPA issued a direct final rule (DFR) approving the amended ACO. See 82 FR 40491. In the DFR, EPA stated that if adverse comments were submitted to EPA by September 25, 2017, the action would be withdrawn and not take effect. EPA received an adverse comment prior to the close of the comment period. EPA withdrew the DFR on October 12, 2017. See 82 FR 47396.

On April 11, 2018, EPA proposed to incorporate the amendment to the ACO for GPC. See 83 FR 15526. A revised Technical Support Document was included in the docket that addressed background information with regard to air quality in Muscatine, Iowa, as well as declining design values for the National Ambient Air Quality Standard for fine particulate matter with a diameter of 2.5 microns or smaller (PM2.5). The proposal also addressed EPA's response to the adverse comments. The comment period for the proposed action ended on May 11, 2018. Three comments were received that were not related to the scope of the proposed rulemaking and therefore, will not be addressed in this final rulemaking.

This final action approves a revision to the Iowa State Implementation Plan (SIP) submitted by the State of Iowa for the purpose of incorporating an amendment to the Administrative Consent Order (ACO) with Grain Processing Corporation (GPC), Muscatine, Iowa. The revision changes the date for completion of performance testing from May 31, 2017, to May 31, 2018, and will allow the state more time to complete processing air construction permit applications submitted by GPC and specify testing requirements as appropriate in the final permits. This amendment will not impact the schedule for installation and operation of control equipment, will not alter any other compliance dates, and will not adversely affect air quality in the Muscatine, Iowa, area.

The state met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The state initiated public comment from April 6, 2013, to May 8, 2013. One comment was received and adequately addressed in the final SIP submission. The amended submission was placed on public comment January 12, 2017, to February 15, 2017. No comments were received. These submissions also satisfied the completeness criteria of 40 CFR part 51, appendix V. In addition, as explained above and in more detail in the technical support documents which are part of the docket for this rulemaking, the submissions met the applicable substantive SIP requirements of the CAA, including section 110 and implementing regulations.

This final action approves a SIP revision submitted by the State of Iowa for the purpose of incorporating an amendment to the Administrative Consent Order (ACO) with Grain Processing Corporation (GPC), Muscatine, Iowa.

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 a revision to Iowa's EPA-approved State source-specific permits described in the direct 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.1

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

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

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

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

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

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

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

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

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

• Is not subject to requirements of the National Technology Transfer and Advancement Act (NTTA) because this rulemaking does not involve technical standards; and

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

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

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

Under section 307(b)(1) of the Clean Air Act, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 27, 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).)

For the reasons stated in the preamble, EPA amends 40 CFR part 52 as set forth below:

Throughout this document whenever “we,” “us,” or “our” is used, we mean EPA. This supplementary information section is arranged as follows:

States are required to submit a progress report every five years that evaluates progress towards the reasonable progress goals (RPGs) for each mandatory Class I Federal area 1 (Class I area) within the state and in each Class I area outside the state which may be affected by emissions from within the state. 40 CFR 51.308(g). States are also required to submit, at the same time as the progress report, a determination of the adequacy of the state's existing regional haze SIP. 40 CFR 51.308(h). The first progress report SIP is due five years after submittal of the initial regional haze SIP.

Minnesota submitted its regional haze plan to EPA on December 30, 2009, with a supplement submitted on May 8, 2012. Correspondingly, Minnesota submitted its five-year progress report and its determination of adequacy on December 30, 2014. Minnesota made no substantive revisions to its regional haze plan as it determined that the existing SIP is sufficient to achieve the 2018 reasonable progress goals for the Class I areas impacted by Minnesota emissions and thus further revision to the SIP was unnecessary. EPA is approving Minnesota's progress report on the basis that it satisfies the applicable requirements of 40 CFR 51.308.

In order to satisfy the requirements for Best Available Retrofit Technology (BART) for certain taconite ore processing facilities in Minnesota, EPA promulgated a Federal Implementation Plan (FIP) for taconite on February 6, 2013, (78 FR 8706) and revised the taconite FIP on April 12, 2016, (81 FR 21672). Minnesota elected to use the Cross-State Air Pollution Rule (CSAPR) to satisfy BART for its electric generating units.

Two Class I areas are located in Minnesota, the Boundary Waters Canoe Wilderness Area (Boundary Waters) and the Voyageurs National Park (Voyageurs). Further, Minnesota emissions contribute to visibility impairment at a Class I area located out of state, the Isle Royale National Park (Isle Royale) in Michigan.

A direct final rule (DFR) approving the Minnesota regional haze progress report published on October 18, 2017 (82 FR 48425), along with a proposed rule (82 FR 48472) that provided a 30-day public comment period. The DFR evaluated the Minnesota submission by assessing its progress in implementing its regional haze plan during the first half of the first implementation period as well as the statutory and regulatory background for EPA's review of Minnesota's regional haze plan. The DFR also provided a description of the regional haze requirements addressed in the Minnesota progress report. The DFR serves as the detailed basis for this final rule.

Comments were received on the DFR (82 FR 48425). The two anonymous commenters both expressed concern over CSAPR issues. The comments pertain to issues that were addressed in earlier Federal rulemakings.

Comments: One commenter claims that Minnesota's submission cannot be approved because CSAPR is a FIP and Minnesota cannot rely on a FIP to demonstrate that its SIP is adequate. The commenter also claims that CSAPR has been rescinded as a program and is no longer in force. The commenter states that, as a result, Minnesota cannot rely on CSAPR for its long term goals.

The other commenter contends that EPA cannot approve progress reports that rely on CSAPR or any other regional trading program to satisfy the BART requirements because BART is required on a source-by-source basis. The commenter claims that BART needs to evaluated based on the impacts on each national park from each source, not as a holistic multi-source or multi-park evaluation.

Response: The regulations governing progress reports do not include a requirement for states (or EPA) to ensure that all applicable regional haze requirements for the planning period have been met by the existing plan. As such, the comment raising concerns about the reliance on CSAPR to satisfy the BART requirement raises issues outside the scope of this rulemaking. We do note, however, that 40 CFR 51.308(e)(4) allows a state to rely on participation in a CSAPR FIP to address the BART requirements for electric generating units (EGUs). Consistent with this rule, EPA approved Minnesota's regional haze plan in 2012 as satisfying the applicable BART requirements in 40 CFR 51.308 for the subject EGUs through participation in CSAPR (77 FR 34801 (June 12, 2012)).

EPA's approval of Minnesota's reliance on CSAPR to satisfy the BART requirements for these sources rather than requiring source by source BART was upheld by the 8th Circuit. National Parks Conservation Ass'n v. McCarthy, 816 F.3d.989, 994 (8th Cir. 2016). More broadly, EPA's regulations that allow for the comparison of average visibility improvements across multiple Class I areas in assessing regional trading programs as alternatives to BART has also been upheld as reasonable by the D.C. Circuit. Utility Air Regulatory Group v. EPA, 471 F.3d 1333, 1340-41 (D.C. Cir. 2006) (upholding CAIR as a BART alternative); Utility Air Regulatory Group v. EPA, 885 F.3d 714, 721 (D.C. Cir. 2018) (upholding CSAPR as a BART alternative). We also note that CSAPR has not been rescinded and remains in force. Finally, the regional haze rule defines “implementation plan” to include approved SIPs or FIPs. Given this, states may rely on FIPs in their progress reports to demonstrate the adequacy of a plan to achieve reasonable progress goals.

In summary, EPA disagrees that the points raised by the commenters prevent approval of the progress report. Thus, EPA finds that Minnesota's progress report satisfies 40 CFR 51.308.

EPA is approving the regional haze progress report that Minnesota submitted on December 30, 2014, under the CAA as a revision to the Minnesota SIP. EPA finds that Minnesota has satisfied the progress report requirements of the Regional Haze Rule. EPA also finds that Minnesota has met the requirements for a determination of the adequacy of its regional haze plan with its negative declaration submitted with the progress report.

Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the CAA and applicable Federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, EPA's role is to approve state choices, provided that they meet the criteria of the 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 27, 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).)

40 CFR part 52 is amended as follows:

Throughout this document “we,” “us,” and “our” refer to EPA. This section provides additional information by addressing the following:

EPA received Nebraska's November 8, 2011, SIP submission. On October 5, 2017, EPA proposed to approve the SIP submission from the State of Nebraska. See 82 FR 46433. In conjunction with the October 5, 2017 notice of proposed rulemaking (NPR), EPA issued a direct final rule (DFR) approving the same SIP submission. See 82 FR 46415. However, in the DFR, EPA stated that if EPA received adverse comments by November 6, 2017, the action would be withdrawn and not take effect. EPA received one set of adverse comments prior to the close of the comment period. EPA withdrew the DFR on November 27, 2017. See 82 FR 55951.

The revision to title 129, adding chapter 43, Visibility Protection, addressed in this action was originally proposed and approved during the September 8, 2006, Environmental Quality Council (ECQ) meeting. However, the revision was not approved by Attorney General's office. On August 17, 2007, an amended package was re-submitted to the EQC, at which time it was approved by both the EQC and the Attorney General's office. After the Governor's signature, the revision adding chapter 43 became effective on February 6, 2008. Chapter 43 was submitted to the EPA, as part of a larger SIP package on November 8, 2011. Some of the revisions submitted in November 2011, were withdrawn by the State for various reasons. The remaining revisions to title 129, except for revisions adding chapter 43, were approved on October 7, 2016, (81 FR 69693). Chapter 43 is being addressed with this action.

This final rule action will include the updated docket, address comments received, and finalize the approval of Nebraska's SIP submission.

EPA is taking action to approve revisions to Nebraska's SIP that will amend title 129 of the Nebraska Administrative Code to include a rule addressing certain requirements related to regional haze rule of 1999 1 . This proposed revision adds a new chapter, chapter 43, entitled “Visibility Protection”, to title 129 which incorporates a portion of EPA Code of Federal Regulations under title 40 part 51 of EPA's Guidelines for BART determinations under the Regional Haze Rule. This new chapter provides the Nebraska Department of Environmental Quality (NDEQ) the authority to require sources to conduct BART determinations for the purpose of issuing BART permits. This revision to title 129 is consistent with Federal regulations related to Regional Haze and BART, adopting by reference the definitions for the Federal Regional Haze rule at 40 CFR 51.301 and adopting by reference, appendix Y to 40 CFR part 51, “Guidelines for BART Determinations under the Regional Haze Rule.” The revision to the SIP also meets the visibility component of the CAA section 110(a)(2)(J). Approval of these revisions will not impact air quality and will ensure consistency between the State and federally approved rules.

The state submission has met the public notice requirements for SIP submissions in accordance with 40 CFR 51.102. The submission also satisfied the completeness criteria of 40 CFR part 51, appendix V. The revised chapter was placed on public notice and a public hearing was held by the State on July 13, 2007, where no comments were received. In addition, the revision meets the substantive SIP requirements of the CAA, including section 110 and implementing regulations.

The public comment period on EPA's proposed rule opened October 5, 2017 the date of its publication in the Federal Register, and closed on November 6, 2017. During this period, EPA received one set of adverse comments, which are addressed below.

Comment 1: The commenter stated that the EPA has improperly titled this action. The commenter elaborated by stating that if EPA is acting on a Regional Haze SIP from Nebraska, then it should not be calling this `New Chapter under Nebraska Code'. The commenter's concern was that the title was not descriptive or transparent. Finally, the commenter stated that the EPA's titling of this action could very well violate the administrative procedures act (APA), or at least the spirit of the APA.

Response 1: By this action, EPA is not acting on a regional haze SIP. This rule gives NDEQ the authority to issue permits for best available retrofit technology or “BART.” EPA retained the title used by the state in describing its SIP, and that title accurately describes the action—addition of the new chapter 43.

The Administrative Procedure Act at 5 U.S.C. 553(b)(1)-(3) states that the notification of the rule be published in the Federal Register and that the document shall include the time, place, and nature of the public rule making proceedings, the legal authority for the proposed rule, and either the terms or substance of the proposed rule or a description of the subjects and issues involved. This action meets the procedures outlined in the APA. The proposal document was published in the Federal Register. See 82 FR 46433. It provided a summary that clearly described that substance of the proposed rule, explaining that the addition of the new chapter provides Nebraska with “authority to implement Federal regulations relating to Regional Haze and Best Available Retrofit Technology (BART) . . . [and] meets the visibility component of the Clean Air Act (CAA).” Id. In addition, the document provided information on the process for submitting comments and explained the general rulemaking process EPA was using (i.e., the direct final rule with an accompany parallel proposal). That document also clearly stated that EPA “explained our reasons for this action in the preamble to the direct final rule,” id., thereby incorporating the information provided in the accompanying direct final rule preamble, and directing the reader where to find the document for the direct final rule within the Federal Register. In turn, the document for the direct final rule provided more detail on the substance of the SIP submittal and the legal authority for both Nebraska's submission and EPA's action on it. See 82 FR 46415 (which includes a section describing how the state's submission met various statutory and regulatory requirements and explaining that EPA could approve the submission because it is consistent with Federal Regional Haze regulations in 40 CFR part 51 and CAA section 110(a)(2)(j)).

Comment 2: The commenter stated that EPA needs to repropose this action. The commenter stated that multiple documents in the docket were incomplete, specifically citing: “1) the memo from NE that details the regional haze changes to chapter 43 has been cutoff, see docket document ending in 2017-0386-0012, page 4—this page ends in the middle of a sentence and does not include important information allowing me to evaluate and provide comment. 2) Document ending in 2017-0386-0016, page 5 is corrupt and page 6 is nonexistant [sic].” The commenter was concerned that information was not able to be reviewed or commented on.

Response 2: After review of the comments received and the EPA's docket for this action, the EPA agrees that the pages outlined by the commenter were missing. However, the missing pages highlighted by the commenter were not provided by the state as part of the state's SIP submission, was an administrative error, and were not used to support the EPA's action. To verify this statement, the EPA has followed up with the state of Nebraska. The state determined that the documents in the docket were the same as what was placed on review for public comment in Nebraska during the state's comment period. The referenced memorandum was a request for approval. It is not evidence of the governor's approval and therefore, is not relied upon for the approval of the SIP action. The attachment listed in the docket as 2017-0386-0016 is a proposed SIP revision for chapter 5 of Nebraska's SIP. EPA took action on this portion of the submission on October 7, 2016 (see 81 FR 69693). Therefore, attachment 2017-0386-0016 of the docket for this action is not relied upon to support this action.

Additionally, the state's submission included additional revisions that are not being acted upon in this action.2 When the EPA uploaded the docket for this action, additional attachments were included. For this action, the EPA relied upon the following specific pages of the outlined attachments:

Comment 3: The commenter stated that the EPA failed to evaluate this action in regard to the March 27, 2017, executive order on energy independence and economic growth. EPA's requirement for states to adopt regional haze SIPs, and thus including chapter 43 in the SIP, will cause a significant impact on coal EGUs and eventually closure of coal EGUs in the state, causing economic hardship on the local communities. Nebraska's fiscal impact statement says, “There is a substantial cost to BART-eligible sources for the required modeling under the BART program. As of now, it is unknown whether and what controls any source in Nebraska may have to install to comply with BART, but the cost of controls would be substantial.” The requirement to comply with chapter 43 is significant.

Response 3: Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the Act and applicable federal regulations. 42 U.S.C. 7410(k); 40 CFR 52.02(a). Thus, in reviewing SIP submissions, the EPA's role is to approve state actions, provided that they meet the criteria of the CAA. The EPA cannot consider disapproving a SIP submission or require any changes based on the March 27, 2017, executive order.

Comment 4: The commenter stated that it is unclear from the action whether EPA is approving the other chapters and revisions to other chapters into the SIP. EPA included multiple other rules in the docket; however, the rule making action only discusses chapter 43, which is merely three provisions long.

Response 4: EPA acknowledges that the state's submittal referenced multiple additional chapters and revisions to the state's rules. Within the proposal for this action, the EPA clearly stated that it was proposing “to take action to add chapter 43, `Visibility Protection.' ” 82 FR 46433. Within the EPA's proposal, no additional chapters were referenced for approval. This action finalizes the proposed action 3 and does not include any additional chapters beyond chapter 43. As the EPA stated earlier, additional portions of the state's submittal were included in the docket for the proposed rule. As outlined in Nebraska's September 12, 2016, letter, portions of the state's submission were withdrawn. However, the EPA has kept the docket intact and added the September 12, 2016, letter to provide additional clarity on which portions of the submission that the EPA was requested to approve. However, in response to comment number 2, the EPA has provided specific pages of the docket on which the EPA relied for this action.

Comment 5: The commenter stated that the EPA did not evaluate the new regulation against the EPA's Regional Haze Rule nor did EPA show that this new rule meets the regional haze requirements. EPA also did not say whether or not approving this new rule means that Nebraska has an approved Regional Haze SIP.

Response 5: This action is not specifically a Regional Haze SIP. This action is designed to show that NDEQ has the authority to implement BART procedures. This action was not required as part of Nebraska's Regional Haze SIP. The EPA partially approved and partially disapproved Nebraska's Regional Haze SIP on July 6, 2012. The full docket for that rulemaking can be found at EPA-R07-2012-0158-0051.

Comment 6: The commenter stated that assuming this new rule is not a Regional Haze SIP and does not meet the requirements of the Regional Haze rule, EPA needs to require Nebraska to submit any permits issued to address BART under this new rule as source-specific SIP revisions as this rule is merely a generic-type rule that lays out a process by which sources will address BART related requirements.

Response 6: As explained above, this action is not specifically a Regional Haze SIP, so the assumptions alleged in the comment are not relevant. This action is designed to show that NDEQ has the authority to implement BART procedures and it has been approved for that purposes. This action was not required as part of Nebraska's Regional Haze SIP, which the EPA partially approved and partially disapproved on July 6, 2012 (see rulemaking docket EPA-R07-2012-0158-0051).

Comment 7: The commenter stated that the new chapter 43 and the revised chapter 1 do not include any Regional Haze related definitions such as the definition of BART, or the types of emission limitations or work practices which constitute BART for a given source. The commenter also stated that there was confusion on if EPA was acting on chapter 1 as part of this action.

Response 7: As the EPA outlined in its proposed rule and explained above in response to comment 4, the EPA is only acting on chapter 43 in this action. EPA is not acting on revisions to chapter 1 in this action. Chapter 43 references the Federal BART requirements. The state is incorporating a portion of the Federal requirements, including definitions related to BART.

EPA is taking final action to revise the Nebraska SIP to add a new chapter, chapter 43.

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 Nebraska Regulations described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these materials generally available through 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.4

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 (Public Law 104-4);

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

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

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

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

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

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

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

Under section 307(b)(1) of the CAA, petitions for judicial review of this action must be filed in the United States Court of Appeals for the appropriate circuit by August 27, 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)).

For the reasons stated in the preamble, EPA amends 40 CFR part 52 as set forth below:

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

EPA is granting approval to Oklahoma's CCR state permit program application, pursuant to RCRA 4005(d)(1)(B). Oklahoma's program allows the Oklahoma Department of Environmental Quality (ODEQ) to enforce state rules related to CCR disposal activities in non-Indian country, as well as to review for approval permit applications and to enforce permit violations. Oklahoma's CCR permit program will operate in lieu of the Federal CCR program, codified at 40 CFR part 257, subpart D.

EPA will retain sole authority to regulate and permit CCR units in Indian country as defined in 18 U.S.C. 1151, which includes reservations, dependent Indian communities, and Indian allotments, whether restricted or held in trust by the United States. EPA treats as reservations trust lands validly set aside for the use of a tribe even if the trust lands have not been formally designated as a reservation.1 EPA has engaged federally-recognized Tribes within the state of Oklahoma in consultation and coordination regarding the program authorizations for ODEQ and established opportunities for formal as well as informal discussion throughout the consultation period, beginning with an initial conference call on October 19, 2017. On that call, the authorization procedures and the impact of granting authorization were discussed, and further consultation was offered. Tribal consultation is conducted in accordance with the EPA policy on Consultation and Coordination with Indian Tribes. (see https://www.epa.gov/sites/production/files/2013-08/documents/cons-and-coord-with-indian-tribes-policy.pdf).2

CCR are generated from the combustion of coal, including solid fuels classified as anthracite, bituminous, subbituminous, and lignite, for the purpose of generating steam for powering a generator to produce electricity or electricity and other thermal energy by electric utilities and independent power producers. CCR include fly ash, bottom ash, boiler slag, and flue gas desulfurization materials. CCR can be sent off-site for disposal or beneficial use or may be disposed in on-site landfills or surface impoundments.

On April 17, 2015, EPA published a final rule, creating 40 CFR part 257, subpart D, which established nationally applicable minimum criteria for the safe disposal of CCR in landfills and surface impoundments (80 FR 21302). The rule created a self-implementing program which regulates the location, design, operating criteria, groundwater monitoring and corrective action for CCR disposal, as well as regulating the closure and post-closure care of CCR units and recordkeeping and notifications for CCR units. The regulations do not cover the “beneficial use” of CCR as that term is defined in § 257.53.

EPA is issuing this action under the authority of RCRA sections 4005(d) and 7004(b)(1). See 42 U.S.C. 6945(d), 6974(b)(1).

In December 2016, Congress passed and the President signed the Water Infrastructure Improvements for the Nation (WIIN) Act. Section 2301 of the WIIN Act amended Section 4005 of RCRA, creating a new subsection (d) that establishes a Federal permitting program similar to those under RCRA section 4005(c) and subtitle C, as well as other environmental statutes. See 42 U.S.C. 6945(d). Under section 4005(d), states may develop and submit a CCR permit program to EPA for approval; once approved the state permit program operates in lieu of the Federal requirements. See 42 U.S.C. 6945(d)(1)(A).

To become approved, the statute requires that a state provide “evidence of a permit program or other system of prior approval and conditions under state law for regulation by the state of coal combustion residuals units that are located in the state.” See 42 U.S.C. 6945(d)(1)(A). In addition, the statute directs that the state submit evidence that the program meets the standard in section 4005(d)(1)(B), i.e., that it will require each CCR unit located in the state to achieve compliance with either: (1) The Federal CCR requirements at 40 CFR part 257, subpart D; or (2) other state criteria that the Administrator, after consultation with the state, determines to be at least as protective as the Federal requirements. See 42 U.S.C. 6945(d)(1)(B). EPA has 180 days after submittal of such evidence to make a final determination, and must provide public notice and an opportunity for public comment. See 42 U.S.C. 6945(d)(1)(B).

To receive EPA approval, EPA must determine that the state program requires each CCR unit located in the state to achieve compliance either with the requirements of 40 CFR part 257, subpart D, or with state criteria that EPA determines (after consultation with the state) to be at least as protective as the requirements of 40 CFR part 257, subpart D. See 42 U.S.C. 6945(d)(1)(B). EPA may approve a proposed state permit program in whole or in part. Id.

Once a program is approved, EPA must review the program at least every 12 years, as well as no later than three years after a revision to an applicable section of 40 CFR part 257, subpart D, or one year after any unauthorized significant release from a CCR unit located in the state. See 42 U.S.C. 6945(d)(1)(D)(i)(I)-(III). EPA also must review a program at the request of another state alleging that the soil, groundwater, or surface water of the requesting state is or is likely to be adversely affected by a release from a CCR unit in the approved state. See 42 U.S.C. 6945(d)(1)(D)(i)(IV).

In a state with an approved CCR program, EPA may commence administrative or judicial enforcement actions under RCRA section 3008 if the state requests assistance or if EPA determines that an EPA enforcement action is likely to be necessary to ensure that a CCR unit is operating in accordance with the criteria of the approved permit program. See 42 U.S.C. 6945(d)(4).

ODEQ issued a notice of rulemaking intent related to its proposed CCR program and accepted public comments from December 1, 2015, through January 13, 2016. ODEQ then published an Executive Summary rulemaking document that included the public comments received and the ODEQ responses.

In September 2016, ODEQ promulgated Oklahoma Administrative Code (OAC) Title 252 Chapter 517 Disposal of Coal Combustion Residuals from Electric Utilities, establishing its CCR program. OAC 252:517 incorporates the Federal technical regulations at 40 CFR part 257, subpart D, with some minor modifications discussed below.

On August 3, 2017, EPA received an application from the state of Oklahoma requesting a review of their CCR state permit program. EPA determined that the application was complete and notified Oklahoma of its determination by letter dated December 21, 2017.3 On January 16, 2018, EPA published a notification and requested comment on its proposed determination to approve the Oklahoma CCR program (83 FR 2100). The comment period closed on March 19, 2018.

On February 13, 2018, EPA conducted a public hearing on the application at the ODEQ building located at 707 N Robinson Avenue, Oklahoma City, Oklahoma. The public hearing provided interested persons the opportunity to present information, views or arguments concerning ODEQ's program application. Comments from the hearing as well as additional comments received during the comment period are included in the docket for this document.

The state indicates there are currently five CCR facilities in Oklahoma.4 A facility previously thought to be regulated under the CCR part 257 regulations was not correctly identified initially. One of the current five facilities is not yet permitted as it was previously under the jurisdiction of the Oklahoma Department of Mines. The other four facilities have permitted landfills and/or surface impoundments that are now subject to the CCR part 257 regulations. Approval of ODEQ's CCR application allows the ODEQ regulations to apply to existing CCR units, as well as any future CCR units not located in Indian country, in lieu of the Federal requirements.

EPA is not aware of any existing CCR units in Indian country within Oklahoma, but EPA will maintain sole authority to regulate and permit CCR units in Indian country, meaning formal and informal reservations, dependent Indian communities, and Indian allotments, whether restricted or held in trust by the United States.

As discussed in Section I.C. of this document, the statute requires EPA to evaluate two components of a state program to determine whether it meets the standard for approval. First, EPA is to evaluate the adequacy of the permit program itself (or other system of prior approval and conditions). See 42 U.S.C. 6945(d)(1)(A). Second, EPA is to evaluate the adequacy of the technical criteria that will be included in each permit to determine whether they are the same as the Federal criteria, or to the extent they differ, whether the modified criteria are “at least as protective as” the Federal requirements. See 42 U.S.C. 6945(d)(1)(B). Only if both components meet the statutory requirements may EPA approve the program. See 42 U.S.C. 6945(d)(1).

On that basis, EPA conducted a review of ODEQ's application, including a thorough analysis of OAC 252:517 and its adoption of 40 CFR part 257, subpart D (see section A. Adequacy of Oklahoma's Permit Program and section B. Adequacy of Technical Criteria below.). Based on this review, EPA has determined that ODEQ's CCR permit program as submitted meets the standard for approval in section 4005(d)(1)(A) and (B). Oklahoma's program contains all but two of the technical elements of the Federal rule, including requirements for location restrictions, design and operating criteria, groundwater monitoring and corrective action, closure requirements and post-closure care, recordkeeping, notification and internet posting requirements. As discussed in greater detail below, the two exceptions relate to the requirements at 40 CFR 257.3-1 (which address siting of units in floodplains), and 257.3-2 (which addresses the protection of endangered and threatened species). Oklahoma has not adopted the specific language of either of these Federal regulations but is relying on its existing state regulations at OAC 252:517-5-8 and 5-9 which EPA has determined to be at least as protective as the Federal criteria. The program also contains state-specific language, references and state-specific requirements that differ from the Federal rule, which EPA has determined to be at least as protective as the Federal criteria. EPA's analysis and findings are discussed in greater detail below and in the Technical Support Document for the Approval of Oklahoma's Coal Combustion Residuals State Permit Program, which is included in the docket to this action.

The OAC rules promulgated in 2016 included language inserts and deletions to enable ODEQ to permit CCR units and enforce the Oklahoma rule. The revisions include: The removal of statements regarding national applicability; the inclusion of language to require submittal and approval of plans to ODEQ; the inclusion of permitting provisions to allow ODEQ to administer the CCR rules in the context of a permitting program; the inclusion of state-specific location restrictions; the inclusion of procedures for subsurface investigation; and the inclusion of provisions addressing cost estimates and financial assurance.

Throughout Oklahoma's Chapter 517 rules, references for tribal notifications and/or approval that appear in the Federal rule have been deleted along with the terms “Indian Country,” “Indian Lands,” and “Indian Tribe.” Per the WIIN Act, EPA will retain sole authority to operate the Federal CCR program in Indian country, including the regulation and permitting of CCR units. As defined in 18 U.S.C. 1151, Indian country includes reservations. Dependent Indian communities, and Indian allotments, whether restricted or held in trust by the United States. EPA treats as reservations trust lands validly set aside for the use of a tribe even if the trust lands have not been formally designated as a reservation. See, e.g., Oklahoma Tax Commission vs. Citizen Band Potawatomi Indian Tribe of Oklahoma, 498 U.S. 505, 511 (1991).

RCRA section 4005(d)(1)(A) requires a state seeking program approval to submit to EPA an application with “evidence of a permit program or other system of prior approval and conditions under state law for regulation by the state of coal combustion residuals units that are located in the State.” RCRA section 4005(d) does not require EPA to promulgate regulations for determining the adequacy of state programs. EPA therefore evaluated the adequacy of ODEQ's permit program against the standard in RCRA section 4005(d)(1)(A) by reference to the existing regulations in 40 CFR part 239, Requirements for State Permit Program Determination of Adequacy and the statutory requirements for public participation in RCRA Section 7004(b). The Agency's general experience in reviewing and approving state programs also informed EPA's evaluation.

In order to aid states in developing their programs and to provide a clear statement of how, in EPA's judgment, the existing regulations and statutory requirements in sections 4005(d) and 7004(b) apply to state CCR programs, EPA announced on August 15, 2017, the availability of an interim final Guidance for Coal Combustion Residuals State Permit Programs (82 FR 38685). This guidance outlines the process and procedures EPA generally intends to use to review and make determinations on state CCR permit programs, and that were used in evaluating Oklahoma's application.

RCRA section 7004(b) applies to all RCRA programs, directing that “public participation in the development, revision, implementation, and enforcement of any . . . program under this chapter shall be provided for, encouraged, and assisted by the Administrator and the States.” 42 U.S.C.S. 6974(b)(1). Although 40 CFR part 239 applies to approval of state Municipal Solid Waste Landfill (MSWLF) programs under RCRA 4005(c)(1), rather than EPA's evaluation of CCR permit programs under RCRA 4005(d), the specific criteria outlined in part 239 provide a helpful framework to more broadly examine the various aspects of ODEQ's proposed program. States are familiar with these criteria through the MSWLF program (all states have MSWLF programs that have been approved pursuant to these regulations) and the regulations are generally regarded as protective and appropriate. In general, EPA considers that a state program that is consistent with the part 239 provisions would meet the section 7004(b)(1) directive regarding public participation. As part of analyzing the application, EPA reviewed the four categories of criteria outlined in 40 CFR part 239 as guidelines for permitting requirements, requirements for compliance monitoring authority, requirements for enforcement authority, and requirements for intervention in civil enforcement proceedings.

To complete its evaluation, EPA relied on the information contained in the original application, as well as all materials submitted during the comment period and at the public hearing. The findings are also based on additional information submitted by Oklahoma on April 27, 2018 and May 9, 14, 16, and 31, 2018, in response to follow-up questions from EPA on the authorization application. All of this information is included in the docket for this document. A summary of EPA's findings is provided below, organized by the program elements identified in the part 239 regulations and EPA's interim final guidance document; detailed analysis of the submitted state program can be found in the Technical Support Document, which is included in the docket for this action.

Based on RCRA section 7004 and on the part 239 regulations, an adequate permitting program will provide for public participation by ensuring that: Documents for permit determinations are made available for public review and comment; final determinations on permit applications are made known to the public; and public comments on permit determinations are considered.

All environmental permit and modification applications in Oklahoma are subject to the Oklahoma Uniform Environmental Permitting Act (UEPA) and the permitting rules promulgated to carry out UEPA. UEPA classifies all permit applications and modifications into three tiers that determine the level of public participation and administrative review the permit application will receive. (Section 27A-2-14-201(B)(1)). In making determinations for Tier I, II or III, the following criteria are considered:

• The significance of the potential impact of the type of activity on the environment,

• the amount, volume and types of waste proposed to be accepted, stored, treated, disposed, discharged, emitted or land applied,

• the degree of public concern traditionally connected with the type of activity,

• the Federal classification, if any, for such proposed activity, operation or type of site or facility, and

• any other factors relevant to such determinations.

Such designations must be consistent with any analogous classifications set forth in applicable Federal programs. Section 27A OS-2-14-201(B)(2). Oklahoma classifies solid waste management applications, including CCR applications, into their respective tiers at OAC 252:4-7-58 through 60. All permit documents, regardless of tier, are available for public review and copying. OAC 252:4-1-5.

Oklahoma describes the Tier I permit application process as “the category for those things that are basically administrative decisions which can be made by a technical supervisor with no public participation except for the landowner.” OAC 252:4-7-2. The Tier I permit application requires an application, notice to the landowner, and Department review. 27A O.S. section 2-14-103(9). Applications for minor modifications, and approval of technical plans fall within the Tier I category. OAC 252:4-7-58. Such plans would include, for example, fugitive dust control plans, run-on/runoff control system plans. EPA notes that these plans would be available for public comment and review if they are part of a new permit or other action designated as Tier II or III as discussed below.

Under OAC 252:4-7-58 (2)(A)(iii), modifications to closure or post-closure plans and modifications to technical plans are considered Tier 1 modifications. ODEQ has stated that, when applying the regulations and designating the appropriate Tier for these plan modifications, the underlying UEPA statute requires consideration of potential environmental impact.5 For example, if a facility had an approved closure plan to close the unit with waste in place and they sought approval instead to “clean close” the unit, that would be considered minor (Tier I) because clean closure is generally a more aggressive and difficult to achieve option. However, if a facility applied to amend a closure plan that specifies clean closure, and it is modified to authorize closure of the unit with waste in place, such a change would be designated as Tier II (discussed below). The basis for requiring this would be the statutory provisions at 27A-2-14-201 listed above. Thus, the seemingly broad categories of Tier 1 modifications must be interpreted to be consistent with the statutory directive.

The Tier II permit application process expands upon the Tier I requirements to include published notice of the application filing, published notice of the draft permit or denial, opportunity for a public meeting, and submittal of public comment. 27A O.S. section 2-14-103(10). The Tier II process applies to new permits for on-site CCR disposal units and all modifications to existing facilities unless specifically listed under Tier I. OAC 252:4-7-59. ODEQ requires any application for expansion of a CCR unit or additional capacity, whether existing or new surface impoundment or landfill, to follow at a minimum the Tier II process. Non-generator owned facilities that receive material from off-site follow the Tier III process.

The Tier III permit application process includes the requirements of Tiers I and II and adds notice of an opportunity for a process meeting (i.e. how the permit process works). The Tier III process applies to new permits for off-site disposal units and permits for some significant modifications to off-site disposal units. OAC 252:4-7-60.

UEPA provides for public notice and review of permit applications and significant permit modifications through its Tier II and III programs. In the case of Tier II and III applications that do not receive timely comments or public meeting request and for which no public meeting was held, the final permit would be issued or denied by ODEQ. For Tier II and III applications for which comments or a public meeting request was received or which a public meeting was held, ODEQ considers the comments and then prepares a response to comments prior to issuance of the final permit. These programs provide opportunities for public participation and the application of UEPA to the CCR permitting program is consistent with Oklahoma's practice across environmental programs. Permit and permit modification applications for CCR facilities fall under the existing solid waste management application requirements at OAC 252:4-7-58 through 60. Thus, EPA has determined that the Oklahoma program provides for adequate public participation, thereby satisfying the requirements of RCRA section 7004.

EPA considers that the “evidence of a permit program or other system of prior approval and conditions under state law for regulation by the state of coal combustion residuals units” required under RCRA 4005(d)(1)(A) should normally include information to demonstrate that the state has the authority to gather information about compliance, perform inspections, and ensure that information it gathers is suitable for enforcement. Note that this is consistent with the part 239 regulations and with the interpretation expressed in EPA's interim final guidance.

ODEQ has compliance monitoring authority under 27A O.S. section 2-3-501, allowing for inspections, sampling, information gathering, and other investigations. This authority extends to ODEQ's proposed CCR permit program and would provide the authority to adequately gather information for enforcement.

EPA considers that the “evidence of a permit program or other system of prior approval and conditions under state law for regulation by the state of coal combustion residual units” required under RCRA 4005(d)(1)(A) should normally include information to demonstrate that the state has adequate authority to administer and enforce RCRA CCR permit programs, including: the authority to restrain any person from engaging in activity which may damage human health or the environment, the authority to sue to enjoin prohibited activity, and the authority to sue to recover civil penalties for prohibited activity.

EPA has determined that ODEQ has adequate authority to administer and enforce its existing programs under 27A O.S. section 2-3-501-507 and that authority extends to the ODEQ CCR permit program.

Based on RCRA section 7004, EPA considers that the “evidence of a permit program or other system of prior approval and conditions under state law for regulation by the state of coal combustion residuals units” required under RCRA 4005(d)(1)(A) includes a demonstration that the state provides adequate opportunity for citizen intervention in civil enforcement proceedings. As EPA has explained (for example, in the interim final guidance) the standards found in 40 CFR 239.9 provide a useful model. Using those standards, the state must have authority to allow citizen intervention or provide assurance of (1) a notice and public involvement process, (2) investigating and providing responses about violations, and (3) not opposing intervention when permitted by statute, rule, or regulation.

Using 40 CFR 239.9(a) as a model, ODEQ's CCR program satisfies the civil intervention requirement by allowing intervention by right (12 OK Stat section 12-2024).6 In addition, ODEQ's CCR program would satisfy the requirements of 40 CFR 239.9(b) by providing a process to respond to citizen complaints (see 27A O.S. section 2-3-101,503) and by not opposing citizen intervention when allowed by statute (see 27A O.S. section 2-7-133).

ODEQ has a robust process for responding to citizen complaints. Under 27A O.S. section 2-3-101-F-1, the complaints program is responsible for intake processing, mediation and conciliation of inquiries and complaints received by the Department and provides for the expedient resolution of complaints within the jurisdiction of the Department. Under 27A O.S. section 2-3-503, if the Department undertakes an enforcement action as a result of a complaint, the Department notifies the complainant of the enforcement action by mail. The state program in 27A O.S. section 2-3-503 offers the complainant an opportunity to provide written information pertinent to the complaint within fourteen (14) calendar days after the date of the mailing. The state program also goes further in 27A O.S. section 2-3-104 stating that the complaints program shall, in addition to the responsibilities specified by section 2-3-101, refer, upon written request, all complaints in which one of the complainants remains unsatisfied with the Department's resolution of said complaint to an outside source trained in mediation. These additional elements of the state's complaint process indicate that ODEQ takes public intervention seriously in enforcement actions.

EPA has determined that these requirements meet the level of public participation in the enforcement process required under RCRA 7004(b).

EPA has determined that ODEQ's CCR permit program meets the standard for approval in RCRA section 4005(d)(1)(B)(i), as it will require each CCR unit located in Oklahoma to achieve compliance with the applicable criteria for CCR units under 40 CFR part 257 or with other state criteria that the Administrator, after consultation with the state, has determined to be at least as protective as the criteria in part 257. To make this determination, EPA compared ODEQ's proposed CCR permit program to 40 CFR part 257 to determine whether it differed from the Federal requirements, and if so, whether those differences met the standard for approval in RCRA section 4005(d)(1)(B)(ii) and (C).

Oklahoma has adopted all but two of the technical criteria at 40 CFR part 257, subpart D, into its regulations at OAC Title 252 Chapter 517. The two exceptions are discussed in sections 1 and 2 below.

While ODEQ's CCR permit program also includes some modification of 40 CFR part 257, subpart D, the majority of ODEQ's modifications were needed to allow the state to implement the part 257 criteria through a permit process. As mentioned above, the 40 CFR part 257, subpart D, rules were meant to be implemented directly by the regulated facility, without the oversight of any regulatory authority, such as a state permitting program. ODEQ thus needed to make some changes to the part 257 regulations to allow it to implement the permit program. Examples of these changes include the addition of language to require submittal and approval of plans to ODEQ, and of permitting provisions to allow the ODEQ to administer the CCR rules in the context of a permitting program. ODEQ also made some minor modifications to address state-specific issues: For example, the state did not incorporate 40 CFR 257.61(a)(2)(iv), which references the Marine Protection, Research, and Sanctuaries Act (MPRSA) requirements because Oklahoma does not have any coastal or ocean environments which apply under the MPRSA regulations. Oklahoma also included provisions to integrate purely state-law requirements into the Federal criteria—such as state-specific locations restrictions; procedures for subsurface investigation; and provisions addressing cost estimates and financial assurance. EPA considers these revisions to be administrative ones, that they do not substantively modify the Federal technical criteria.7

Other minor changes made by ODEQ to the 40 CFR part 257, subpart D, criteria reflect the integration of the CCR rules with the responsibilities of other state agencies or state specific conditions. Additional changes include removal of the web link to EPA publication SW-846 under the definition “Representative Sample” in 40 CFR 257.53; and the replacement of 40 CFR 257.91(e) with a reference to the Oklahoma Water Resources Board (OWRB) section 785:35-7-2. A few changes were made inadvertently including a typographic error in Chapter 517-9-4(g)(5) and the inadvertent removal of the words “and the leachate collection and removal” from section 252:517-11-1(e)(1). The state has updated their rule language to correct the errors.

EPA finds these references to OWRB standards to be minor because the key aspects of the CCR program, including requirements for location restrictions, design and operating criteria, groundwater monitoring and corrective action, closure requirements and post-closure care, recordkeeping, notification and internet posting requirements, are not substantially changed or reduced and in one example, are more stringent. These changes do not keep the overall program from being at least as protective as 40 CFR part 257, subpart D. EPA's full analysis of Oklahoma's CCR permit program can be found in the Technical Support Document, located in the docket for this document.

The current Federal criteria at § 257.3-1 addresses location of CCR units in floodplains as follows:

Facilities or practices in floodplains cannot restrict the flow of the base flood, reduce the temporary water storage capacity of the floodplain, or result in washout of solid waste, so as to pose a hazard to human life, wildlife, or land or water resources.

(1) Base flood means a flood that has a one percent or greater chance of recurring in any year or a flood of a magnitude equaled or exceeded once in 100 years on the average over a significantly long period.

(2) Floodplain means the lowland and relatively flat areas adjoining inland and coastal waters, including flood-prone areas of offshore islands, which are inundated by the base flood.

(3) Washout means the carrying away of solid waste by waters of the base flood.

Oklahoma's floodplain requirement at section 252:517-5-9 states that no waste management or disposal area of a CCR unit can be located within the 100-year floodplain except: (1) CCR units that were permitted before April 9, 1994 and that meet the same criteria under the Federal floodplain standards at 40 CFR 257.3-1 and summarized above; and (2) units that have received an authorized variance for waste management or disposal areas of new CCR units, or expansions of waste management or disposal areas of existing units, provided the variance is conditioned upon the subsequent redefinition of the floodplain to not include the land area proposed by the variance.

Discussions with ODEQ provided additional information regarding how the variance is implemented.8 Specifically, to qualify for the variance, facilities may employ engineering solutions such as building a dike, changing the flow of water or changing the elevation of the area, and seek to have the floodplain redefined not to include the land area of the new or expanded unit. To authorize the redefinition of the floodplain based on these engineering solutions, an application is submitted by the facility to the Federal Emergency Management Administration (FEMA) for receipt of a Letter of Map Revision (LOMR). If approved, the facility first receives a Conditional Letter of Map Revision (CLOMR) allowing construction of the unit and the engineering solutions per the conditions outlined in the CLOMR. If the conditions of the CLOMR are met, a LOMR is issued by FEMA authorizing that agency to revise the flood hazard map information so as not to include the land area of the new or expanded unit (see https://www.fema.gov/flood-map-revision-processes#4 for additional information on the FEMA process).

ODEQ has stated that no CCR unit can begin receiving CCR until approval of the redefined floodplain by FEMA and receipt of the LOMR by the facility. Based on all of these facts, EPA has determined that the Oklahoma floodplain standard would be at least as protective as the Federal part 257 standard.

As noted previously, Oklahoma has not adopted the Federal regulation, but is relying on its existing state regulation at OAC 252:517-5-8. EPA has determined that this regulation meets the standard for approval in RCRA section 4005(d)(1)(B)(ii) and (C) as it is at least as protective as the Federal criteria in 40 CFR 257.3-2.

OAC 252:517-5-8. Endangered or Threatened Species requires that for a new CCR unit, or expansion of the permit boundary of an existing CCR unit, a statement from the Oklahoma Department of Wildlife Conservation (ODWC) and from the Oklahoma Biological Survey (OBS), must be submitted regarding current information about endangered or threatened wildlife or plant species listed in state and Federal laws, that exist within one mile of the permit boundary or expansion area. If threatened or endangered species exist within, or periodically utilize any area within, or within one mile of, the permit boundary or expansion area, the projected impacts on the identified species must be addressed, and measures specified to avoid or mitigate the impacts.

When impacts are unavoidable, a mitigation plan that has been approved by ODWC for wildlife or OBS for plants, must be submitted to ODEQ. ODEQ confirmed the language in OAC 252:517-5-8 includes fish. See OAC 800:25-19-6.

EPA has compared the existing Federal CCR regulations at 40 CFR 257.52 with ODEQ's act and regulation and has determined that ODEQ's provision is at least as protective as the Federal CCR provision. Specifically, the term “impact” in the state rule is consistent with “taking” in the Federal rule. Pursuant to 40 CFR 257.3-2(a), facilities or practices cannot cause or contribute to the taking of an endangered or threatened species. All the actions included in the definition of “taking” in 40 CFR 257.3-2(b)(3) can have an impact on a particular species and therefore fall within the scope of OAC 252:517-5-8(a).

Pursuant to OAC 252:517-5-8(1), the facility must address any projected impact on any threatened or endangered species that exists within or periodically utilizes any area within one mile of the permit boundary or proposed area of expansion. Furthermore, the facility must specify measures to avoid or mitigate the projected impacts. The state interprets this provision to include any destruction or adverse modification of critical habitat of the endangered/threatened species, as that would have an impact on the species.

The Federal provision has no time-specific trigger of when any review, etc. is to occur. The state provision requires that the facility, upon the proposed permitting of a new CCR unit or the expansion of a facility's permit boundaries, shall provide confirmation from the OBS of any state and Federal listed threatened or endangered species that can be found within a mile of the facility or expansion area. Due to the inclusion of state-listed species, EPA has read this provision to be more protective than the Federal requirements.

Pursuant to OAC 252:517-5-8(2), if a projected impact is determined to be unavoidable, the facility must develop and submit a mitigation plan to ODWC or OBS for approval. An approved plan must be submitted to ODEQ with the permit application for the new CCR unit or expansion of the permitted boundary. In the event a Federal listed species is involved, ODWC refers the matter to USFWS. For purposes of wetlands, OAC 252:517-5-2(a)(2)(C) contains the same restrictions as 40 CFR 257.61(a)(2)(iii). Any additional ESA requirements beyond what is set out in the Federal and state provisions being compared must still be complied with by all facilities under ODEQ's rules. OAC 252:517-1-2 expressly provides that compliance with Chapter 517 does not affect the need for a CCR facility to comply with any other applicable Federal, state, tribal, or local laws or requirements. Therefore, compliance with Chapter 517 does not preclude any additional ESA requirements.

Overall, based on our analysis, EPA concludes that Oklahoma's Endangered Species Act provisions are as protective as the Federal standards.

Below is a summary of the major comments received on the February 20, 2018, proposed notification: Approval of Coal Combustion Residuals State Permit Programs: Oklahoma. (EPA-HQ-OLEM-2017-0613-0013). The major comments received focused on three primary topics: Facility compliance with (and state oversite of) state and Federal groundwater protection standards for CCR units, public participation under the Oklahoma CCR permitting program and facility compliance with the Endangered Species Act. Responses to all other comments received are summarized in the Response to Comments document included in the docket for this document.

Commenters raised a number of questions or concerns about compliance issues at individual facilities, with varying specificity and supporting data. EPA is not making any determinations regarding the compliance status of individual facilities based on the public comment process for this action. However, some commenters raised these concerns about compliance issues in the broader context of program approval, and questioned whether Oklahoma has the ability and inclination to fully implement an approved program. EPA has reviewed all significant comments on this issue, and has identified evidence of actions taken by ODEQ to address instances of non-compliance through notices and consent orders.

EPA reviews of state program applications focus primarily on the legal and regulatory framework that the state puts forward. The Agency has determined that the underlying statutes and regulations, provide Oklahoma the authority to implement the program, and that there is evidence that Oklahoma has utilized its authority to implement these provisions since it adopted the Federal standards in 2016, and also prior to that time. Given that Oklahoma is in the early stages of implementing its new CCR rules, it is not unexpected that compliance with those rules across the state may be evolving. EPA does not view instances of non-compliance as a reason to deny approval of a State program. Implementation and enforcement of Oklahoma's CCR requirements in Oklahoma are expected to continue, and enforcement of those provisions may be initiated not only by ODEQ, but also by EPA or citizens, as appropriate. In accordance with the WIIN Act, the Agency must also conduct continuing periodic reviews of state permit programs (see Section IV below for additional details).

Comments: When CCR is dumped without proper safeguards, hazardous chemicals are released to groundwater, surface water, soil and air, and nearby communities and ecosystems are harmed. There is evidence that CCR regulatory oversight by state agencies has failed to prevent contamination of Oklahoma's fresh groundwater or CCR from blowing into and harming Oklahoma communities.

For example, recent groundwater monitoring conducted at Oklahoma CCR units pursuant to the Federal CCR rule shows that groundwater can contain contaminants at levels significantly higher than the corresponding Maximum Concentration Levels (MCLs) established under the Safe Drinking Water Act.9 Other harmful metals were found in concentrations multiple times greater than the Regional Screening Levels for tap water. Chloride, fluoride, sulfate and total dissolved solids (“TDS”)—all indicators of coal ash pollution—were also found in elevated concentrations in the groundwater. Other recent groundwater testing showed high concentrations of arsenic, lead, mercury, nickel, selenium, and vanadium.

Response: Under both the Federal CCR regulations and the state program, the determination that a release has occurred that may result in contamination of groundwater is not determined solely by contaminant concentrations that exceed an MCL or Regional Screening Levels cited above.10 Rather, it is first determined if those exceedances represent statistically significant increases (SSIs) of Appendix III and IV contaminants over background levels. Corrective action is required when there is an SSI of any Appendix IV contaminants that exceeds the groundwater protection standard, typically set at the applicable MCL. (See 40 CFR 257.96(a), OAC 252-917-9-5,6).

Public comments and EPA's analysis both indicate that some Oklahoma CCR units may not currently be in compliance with OAC standards requiring the establishment of a groundwater monitoring program and the posting of the first annual groundwater monitoring report.11 As discussed above, the state is addressing such instances of noncompliance through inspection or investigation. In general, ODEQ may give the owner or operator of the unit a written notice of the specific violation and the duty to correct it (a notice of deficiency). The failure to do so can result in the issuance of a compliance order (CO). If the owner or operator fails to come into compliance or fails to agree to a schedule to come into compliance, the Department may issue a CO, which becomes final within fifteen days unless an administrative enforcement hearing is requested. The CO may assess administrative penalties for each day the owner or operator fails to comply. If a facility does not comply with a CO or an administrative compliance order (ACO) within the specified time frames, an Assessment Order to impose an additional penalty may be issued. ODEQ may also pursue action in District Court for an injunction to require a facility to comply and, in rare and extreme instances, may seek to revoke or suspend the permit of a facility. Criminal enforcement proceedings may also be pursued in some instances.12

Oklahoma has provided evidence that it has taken actions to ensure that all CCR facilities covered by the OAC standards are either complying with or will be put on a schedule to comply with the applicable groundwater monitoring requirements.13

The Agency notes that Oklahoma facilities have submitted most of the compliance documents that are required to be placed on the facilities' internet site (see OAC 252:517-19-1). Oklahoma has provided information to EPA about its current enforcement strategy for this requirement. Specifically, when documents that are required to be posted to the internet are received, permit engineers will check to ensure those documents have been posted to a facility's website. Compliance inspections will include website reviews as part of records checks during annual, in-depth inspections. Failure to maintain required documents on a facility's public website will be handled similarly to a deficient record, and as an issue of noncompliance.14

Comments: Oklahoma's CCR program fails to provide adequate opportunities for public participation in the development, revision, implementation, and enforcement of its CCR regulations. For permitting, the program fails to require new CCR units to submit key compliance proposals and compliance demonstrations in permit applications, such as groundwater monitoring plans, sampling and analysis plan, plans and specifications relating to design requirements (i.e. structural stability assessments), retrofit plans and post-closure care plans. The public is not provided an opportunity to review and comment on those documents during the permitting process. For existing CCR units, Oklahoma is entirely depriving the public of any opportunity to review and comment on permit applications, associated supporting documents, and even the CCR unit's permit itself prior to issuance of that permit.

Oklahoma's program grants CCR units a “permit for life” without providing the public any opportunity to review and comment on those critical site-specific compliance documents before the permitting decision is made.

Finally, Oklahoma failed to show that its CCR program affords the public participation opportunities in enforcement required by RCRA section 7004(b)(1) and set forth in 40 CFR 239.75. Specifically, the state has not shown that it provides for citizen intervention in civil enforcement proceedings.

Response: The Agency does not agree that the Oklahoma program fails to provide public participation opportunities for enforcement and for permitting. State regulations require new CCR units to submit plans containing compliance proposals and compliance demonstrations in permit applications. As discussed in section III. A. (1), Oklahoma statutes and regulations (section 27A-2-14-201(B)(1) and OAC 252:4-7-58 through 60) set out the appropriate tier for processing permit applications and modifications. These classifications are consistent with the requirements for all other Oklahoma solid waste disposal facilities (OAC 252:4-7-58 through 60 apply to all solid waste disposal facilities).

All plans and subsequent modifications fall within the permitting tier classifications and are approved either through review and action on an original permit application or as a subsequent modification to that permit. The permit general conditions provide that any permit noncompliance, including noncompliance with the original permit or any subsequent permit modification, is grounds for an enforcement action. ODEQ has the authority to evaluate permit applications for administrative and technical completeness and request changes,15 revisions, corrections, or supplemental submissions to ensure consistency with the Chapter 517 code and all rules. ODEQ may also evaluate plans or other supplemental attachments to applications for sufficiency of content and compliance and require that omissions or inaccuracies be remedied.

Regarding lack of public participation for existing permits for CCR landfills, each application and permit would have been required to provide the appropriate public participation opportunities when those permits were issued. When the permits are modified, the OAC will require public participation according to the established tiering classifications in UEPA (see section 27A-2-14-201(B)(1) and OAC 252:4-7-58 through 60). Examples of Tier II modifications for previously permitted CCR landfills are provided in the docket for this action. Each Tier II or Tier III modification allows for the opportunity for public participation.

Unlike CCR landfill units, surface impoundments were not previously permitted by ODEQ. In accordance with state and Federal CCR standards, permit applications for surface impoundments for regulation under OAC 252:517 must be submitted to ODEQ by October 2018. These new surface impoundment permits authorizing disposal of CCR generated onsite, will follow ODEQs Tier II process and provide opportunity for public participation.

Nothing in the Federal rule prohibits granting such permits for life. The life of a CCR unit begins when it is initially permitted for waste disposal and continues through active operations, closure of the unit, and conclusion of the post-closure monitoring period. The post-closure period begins at closure and continues for a minimum of 30 years. With the exception of an ODEQ enforcement action to revoke a facility's permit, a facility's permit will not terminate until the facility successfully completes closure, post-closure and any corrective action requirements. The facility's closure, post-closure, and corrective action plans are all available through ODEQ and on the facility's publicly accessible internet site. The ability for the public to comment on the initial plans and any subsequent modifications will depend on the associated permitting tier classification when applications for modifications are submitted to ODEQ.

Regarding public participation opportunities in enforcement required by RCRA section 7004(b)(1), ODEQ has reaffirmed that its CCR program allows intervention by right (see 12 OK Stat section 12-2024).16 In addition, ODEQ's CCR program provides a process to respond to citizen complaints (see 27A O.S. section 2-3-101,503) and by not opposing citizen intervention when allowed by statute (see 27A O.S. section 2-7-133). In the event any member of the public believes a facility is not in compliance with any permitting requirement, the ODEQ complaints program requires investigation and the expedient resolution of complaints involving noncompliance with statutory, regulatory, and permitting requirements. See ODEQ Application on page 8. In the event a complainant remains unsatisfied with the resolution of a complaint, mediation is available by statute. See ODEQ Application on page 9.

This satisfies the civil intervention requirement at 40 CFR 239.9(a), and on that basis, EPA considers the requirements of RCRA section 7004(b) satisfied.

Comment: Most permit modifications are Tier I, which does not require public participation.

Response: The Agency agrees that under OAC rules, most permit modifications are Tier I since they address minor or administrative changes to the permit, which can occur frequently. All existing CCR landfills in the state submitted Tier I modification requests to change the applicable standards in their permit from the previous state solid waste standards at OAC 252:215 to the new CCR standards at OAC 252:217. As a Tier I modification, the public would not have had opportunity for input into these 252:517 CCR landfill permits. Further, the public will not have opportunity for comment on these “permits for life” in the future unless the permit is modified under a Tier II or Tier III modification (see preceding discussion on comment/response above).

Based on information submitted by the state comparing standards under OAC 252:215 and OAC 252:217 (included in the docket for this authorization), the Agency has concluded that for existing landfill units, the standards under the two sets of regulations were substantially the same and the public participation opportunities were appropriate. Specifically, as indicated previously, each application and permit issuance under OAC 252:515, including permit modifications, would have included the public participation opportunities that were required when those permits were issued. Public participation requirements under the previous program in OAC 252:515 and the current program in OAC 252:517 are authorized by the same standard under Oklahoma UEPA (27A O.S. section 2-14-104).

As discussed above, permit applications for new units classified as Tier II (for on-site facilities) and Tier III (for off-site facilities) require public notice and comment and the opportunity for a public hearing. In the case of Tier II and III applications that do not receive timely comments or public meeting requests and for which no public meeting was held, ODEQ considers the comments and then prepares a response to comments prior to final permit issuance determinations. The Department makes available Tier II applications and draft permits and Tier III applications, draft permits, and proposed permits on the Department's website.17

As discussed, Tier II and III permit modifications focus on substantive changes and require public participation for any permit modifications not specifically covered under Tier I. The Tier II and III permit application processes include: Published notice of the application filing, published notice of the draft permit or denial, and opportunity for a public meeting. In determining the appropriate Tier for an application, the significance of the potential impact on the environment and other criteria outlined in III. A. 1 are considered.

Comment: Under the ESA, Federal agencies must, in consultation with FWS and/or NMFS, insure that any action authorized, funded, or carried out by the agency is not likely to jeopardize the continued existence of endangered or threatened species or result in the destruction or adverse modification of designated critical habitat. 16 U.S.C. 1536(a)(2). An agency proposing an action must first determine whether the action “may affect” species listed as threatened or endangered under the ESA. 50 CFR 402.14. EPA's proposal to approve Oklahoma's Application creates a significant risk that CCR units in the state would pollute water more than if EPA did not approve that Application, and thus the proposed action may affect listed species within the meaning of 50 CFR 402.14. As a result, EPA must initiate consultation with FWS and NMFS under ESA Section 7 prior to making a final determination as to whether to approve or deny Oklahoma's Application. See generally Nat'l Parks Conservation Ass'n v. Jewell, 62 F. Supp. 3d at 17 (finding that a 2008 rule revising standards for coal mining near streams may affect listed species where there was “clear evidence that habitats within stream buffer zones are home to threatened and endangered species and that mining operations affect the environment, water quality, and all living biota”).

Response: As discussed in section III.B.2, EPA has concluded that Oklahoma's regulation applicable to endangered and threatened species (OAC 252:517-5-8) is at least as protective as the Federal criteria in 40 CFR 257.3-2. Having made this determination, RCRA section 4005(d)(1)(C) expressly mandates that EPA approve the state's program. Therefore, consistent with 50 CFR 402.03, the requirement for EPA to consult under section 7(a)(2) of the ESA does not apply to this action.

On July 30, 2018, for those CCR units that are currently permitted and regulated by ODEQ under OAC 252:517, such permits will be in effect in lieu of the Federal 40 CFR part 257, subpart D, CCR regulations. For those CCR units that are not yet permitted, the Federal regulations at part 257 will remain in effect until such time that ODEQ issues permits under this CCR program for those units.

The WIIN Act specifies that EPA will review a state CCR permit program:

• From time to time, as the Administrator determines necessary, but not less frequently than once every 12 years;

• Not later than 3 years after the date on which the Administrator revises the applicable criteria for CCR units under part 257 of title 40, CFR (or successor regulations promulgated pursuant to sections 1008(a)(3) and 4004(a));

• Not later than 1 year after the date of a significant release (as defined by the Administrator), that was not authorized at the time the release occurred, from a CCR unit located in the state; and

• In request of any other state that asserts that the soil, groundwater, or surface water of the state is or is likely to be adversely affected by a release or potential release from a CCR unit located in the state for which the program was approved.

The WIIN Act also provides that in a state with an approved CCR permitting program, the Administrator may commence an administrative or judicial enforcement action under section 3008 if:

• The state requests that the Administrator provide assistance in the performance of an enforcement action; or

• After consideration of any other administrative or judicial enforcement action involving the CCR unit, the Administrator determines that an enforcement action is likely to be necessary to ensure that the CCR unit is operating in accordance with the criteria established under the state's permit program.

Further, in the case of an enforcement action by the Administrator, before issuing an order or commencing a civil action, the Administrator shall notify the state in which the coal combustion residuals unit is located.

In accordance with 42 U.S.C. 6945(d), EPA is approving ODEQ's CCR permit program application.

This is a summary of the Commission's Second Report and Order on Reconsideration in PS Docket No. 13-87, FCC 18-11, released on February 12, 2018, and corrected by Erratum released on May 10, 2018. The complete text of this document is also available for inspection and copying during normal business hours in the FCC Reference Information Center, Portals II, 445 12th Street SW, Room CY-A257, Washington, DC 20554. To request materials in accessible formats for people with disabilities (Braille, large print, electronic files, audio format), send an email to [email protected] or call the Consumer & Governmental Affairs Bureau at 202-418-0530 (voice), 202-418-0432 (TTY).

In this Second Report and Order, the Commission amends and clarifies the Commission's 700 MHz narrowband (769-775/799-805 MHz) interoperability and technical rules. Specifically, this Second Report and Order (1) amends and clarifies the rules to exempt 700 MHz low-power Vehicular Repeater Systems (VRS) from the 700 MHz trunking requirements; (2) amends the rules to ensure that 700 MHz public safety licensees receive information on the basis of vendor assertions that equipment is interoperable across vendors and complies with Project 25 (P25) standards; and (3) amends the rules to require that all narrowband mobile and portable 700 MHz public safety radios, as supplied to the ultimate user, must be capable of operating on all of the narrowband nationwide interoperability channels without addition of hardware, firmware, or software, and must be interoperable across vendors and operate in conformance with P25 standards.

In the companion Order on Reconsideration, the Commission addresses the Petition for Partial Reconsideration filed by Motorola Solutions, Inc. (Motorola), which requested that the Commission postpone the effective date of certain previously adopted rules (i.e. 47 CFR Sections 2.1033(c) and 90.548(c)) until complementary proposals that were the subject of the Further Notice of Proposed Rulemaking in this proceeding are resolved. As requested by Motorola, we adopt a uniform effective date for the rules that were the subject of the Motorola Petition for Partial Reconsideration and the rules newly adopted in this Second Report and Order.

The Final Regulatory Flexibility Analysis required by section 604 of the Regulatory Flexibility Act, 5 U.S.C. 604, is included in Appendix A of the Second Report and Order and Order on Reconsideration.

As required by the Regulatory Flexibility Act of 1980, as amended (RFA), an Initial Regulatory Flexibility Analysis (IRFA) was incorporated into the Further Notice of Proposed Rule Making (FNPRM) in PS Docket No. 13-87 released on August 22, 2016. See 81 FR 65984 (2016). The Commission sought written public comment on proposals in the FNPRM, including comments on the IRFA. No comments were filed addressing the IRFA. The present Final Regulatory Flexibility Analysis (FRFA) conforms to the RFA.

In the Second Report and Order in this proceeding, we amend the interoperability and technical rules governing 700 MHz public safety narrowband spectrum (769-775 MHz and 799-805 MHz). The rule changes promote interoperable and efficient use of 700 MHz public safety narrowband spectrum while reducing the regulatory burdens on public safety entities, manufacturers and other stakeholders wherever possible. In order to achieve these objectives, we revise the rules to exempt low power vehicular repeater systems (VRS) from the narrowband trunking requirements. Exempting low power VRS from the trunking requirements will facilitate rapid deployment of such systems as well as reduce compliance burdens on public safety entities that currently lack access to trunked equipment. We also amend the rule to clarify that the trunking requirement applies to fixed infrastructure.

We adopt a list of feature sets and capabilities that must be tested in order to ensure that radios operating in the conventional mode on the designated 700 MHz narrowband interoperability channels are in fact interoperable across vendors. Adopting such a list promotes certainty for public safety and manufacturers and promotes competition in the public safety equipment market.

We amend the rules concerning the requirement that 700 MHz radios be capable of being programmed to operate on the designated 700 MHz narrowband interoperability channels. Clarification provides greater certainty to equipment manufacturers on the required performance of their equipment.

There were no comments filed that specifically addressed the rules and policies proposed in the IRFA.

Pursuant to the Small Business Jobs Act of 2010, which amended the RFA, the Commission is required to respond to any comments filed by the Chief Counsel for Advocacy of the Small Business Administration (SBA), and to provide a detailed statement of any change made to the proposed rules as a result of those comments.

The Chief Counsel did not file any comments in response to the proposed rules in this proceeding.

The RFA directs agencies to provide a description of and, where feasible, an estimate of the number of small entities that may be affected by the proposed rules adopted herein. The RFA generally defines the term “small entity” as having the same meaning as the terms “small business,” “small organization,” and “small governmental jurisdiction.” In addition, the term “small business” has the same meaning as the term “small business concern” under the Small Business Act.” A “small business concern” is one which: (1) Is independently owned and operated; (2) is not dominant in its field of operation; and (3) satisfies any additional criteria established by the SBA.

Public Safety Radio Licensees. As a general matter, Public Safety Radio licensees include police, fire, local government, forestry conservation, highway maintenance, and emergency medical services. Because of the vast array of public safety licensees, the Commission has not developed a small business size standard specifically applicable to public safety licensees. The closest applicable SBA category is Wireless Telecommunications Carriers (except Satellite) which encompasses business entities engaged in radiotelephone communications. The appropriate size standard for this category under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1,000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities. With respect to local governments, in particular, since many governmental entities comprise the licensees for these services, we include under public safety services the number of government entities affected. According to Commission records, there are a total of approximately 133,870 licenses within these services. There are 1,476 licenses in the 700 MHz band, based on an FCC Universal Licensing System search of May 25, 2017. Public Safety Radio licensees are not required to disclose information about number of employees, therefore the Commission does not have information that could be used to determine how many Public Safety Radio licensees constitute small entities under this definition. Nevertheless, we estimate that fewer than 486 public safety radio licensees hold these licenses because certain entities may have multiple licenses.

Wireless Telecommunications Carriers (except Satellite). This industry comprises establishments engaged in operating and maintaining switching and transmission facilities to provide communications via the airwaves. Establishments in this industry have spectrum licenses and provide services using that spectrum, such as cellular services, paging services, wireless internet access, and wireless video services. The appropriate size standard under SBA rules is that such a business is small if it has 1,500 or fewer employees. For this industry, U.S. Census data for 2012 show that there were 967 firms that operated for the entire year. Of this total, 955 firms had employment of 999 or fewer employees and 12 had employment of 1,000 employees or more. Thus under this category and the associated size standard, the Commission estimates that the majority of wireless telecommunications carriers (except satellite) are small entities.

The Commission's own data—available in its Universal Licensing System—indicate that, as of October 25, 2016, there are 280 Cellular licensees that will be affected by our actions today. The Commission does not know how many of these licensees are small, as the Commission does not collect that information for these types of entities. Similarly, according to internally developed Commission data, 413 carriers reported that they were engaged in the provision of wireless telephony, including cellular service, Personal Communications Service, and Specialized Mobile Radio Telephony services. Of this total, an estimated 261 have 1,500 or fewer employees, and 152 have more than 1,500 employees. Thus, using available data, we estimate that the majority of wireless firms can be considered small.

Radio and Television Broadcasting and Wireless Communications Equipment Manufacturing. This industry comprises establishments primarily engaged in manufacturing radio and television broadcast and wireless communications equipment. Examples of products made by the establishments are: Transmitting and receiving antennas, cable television equipment, GPS equipment, pagers, cellular phones, mobile communications equipment, and radio and television studio and broadcasting equipment. The Small Business Administration has established a size standard for this industry of 750 employees or fewer. U.S. Census data for 2012 show that 841 establishments operated in this industry in that year. Of that number, 828 establishments operated with fewer than 1,000 employees, 7 establishments operated with between 1,000 and 2,499 employees and 6 establishments operated with 2,500 or more employees. Based on this data, we conclude that a majority of manufacturers in this industry is small.

The rules adopted in the Second Report and Order will not entail additional reporting, recordkeeping, and/or third-party consultation for small entities to comply.

The RFA requires an agency to describe any significant, specifically small business alternatives that it has considered in reaching its proposed approach, which may include the following four alternatives (among others): “(1) The establishment of differing compliance or reporting requirements or timetables that take into account the resources available to small entities; (2) the clarification, consolidation, or simplification of compliance or reporting requirements under the rule for small entities; (3) the use of performance, rather than design, standards; and (4) and exemption from coverage of the rule, or any part thereof, for small entities.”

The Second Report and Order changes the interoperability and technical rules covering operation of public safety systems on narrowband spectrum in the 700 MHz band. Specifically, the Second Report and Order amends Section 90.537 of the Commission's rules to promote efficient use of public safety narrowband spectrum in the band while reducing economic burdens on licensees. For the 700 MHz General Use and State License channels, Section 90.537 provides that “[a]ll systems using six or more narrowband channels in the 769-775 MHz and 799-805 MHz frequency bands must be trunked systems, except for those described in paragraph (b) of this section.” In order to strike the proper balance between spectrum efficiency and operational needs as well as avoid unnecessary costs to public safety, the Second Report and Order exempts low power vehicular repeaters from the 700 MHz narrowband trunking requirements and clarifies that the trunking requirement applies to individual transmitter sites.

The Second Report and Order maximizes interoperability by adopting a list of feature sets and capabilities in radios designed to operate in the conventional mode on the designated 700 MHz narrowband interoperability channels. Currently, the Commission's rules do not specify feature sets or capabilities that should be tested in order to promote interoperability across vendors and between users. Thus, it would be beneficial to incorporate into our rules specific feature sets and capabilities that must be tested for radios designed to operate on the 700 MHz narrowband interoperability channels. To minimize burdens, the Second Report and Order clarifies that manufacturers may employ their own testing protocol, declines to require manufacturers to test non-voice features and capabilities, and refrains from imposing new reporting and record keeping requirements on stakeholders.

Finally, the Second Report and Order amends the rules concerning the requirement that 700 MHz radios be capable of being programmed to operate on the designated interoperability channels. Amendment provides greater certainty to equipment manufacturers on the required performance of their equipment. Amending the rule obviates the need for imposing new requirements on public safety and manufacturers.

The Commission will send a copy of the Second Report and Order, including this FRFA, in a report to Congress pursuant to the Congressional Review Act. In addition, the Commission will send a copy of the Second Report and Order, including this FRFA, to the Chief Counsel for Advocacy of the SBA. A copy of this Second Report and Order, and FRFA (or summaries thereof) will also be published in the Federal Register.

This document does not contain new information collection requirements subject to the Paperwork Reduction Act of 1995 (PRA), Public Law 104-13.

The Commission will send a copy of this Second Report and Order and Order on Reconsideration to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

None.

Accordingly, it is ordered that, pursuant to sections 1, 4(i), 303, 316, 332, and 337 of the Communications Act of 1934, as amended, 47 U.S.C. 151, 154(i), 303, 316, 332, and 337, this Second Report and Order is hereby adopted.

It is further ordered that §§ 2.1033(c)(20), 90.537, 90.547 and 90.548 of the Commission's rules, 47 CFR 2.1033(c)(20), 90.537, 90.547, and 90.548, are amended as set forth in Appendix B. The amendments to §§ 2.1033(c)(20), 90.537, 90.547 and 90.548 of the Commission's rules, 47 CFR 2.1033(c)(20), 90.537, 90.547 and 90.548, shall become effective thirty days after publication of this Second Report and Order in the Federal Register.

It is further ordered that the Petition for Clarification of Motorola Solutions, Inc. filed March 1, 2016, is granted, to the extent discussed in this Second Report and Order.

It is further ordered, pursuant to sections 4(i), and 405 of the Communications Act of 1934, as amended, 47 U.S.C. 154(i), and 405(a), and § 1.429 of the Commission's rules, 47 CFR 1.429, that the Petition for Partial Reconsideration filed October 31, 2016, by Motorola Solutions, Inc. is granted to the extent discussed in this Second Report and Order and Order on Reconsideration.

It is further ordered, that the Commission's Consumer and Governmental Affairs Bureau, Reference Information Center, shall send a copy of this Second Report and Order, including the Final Regulatory Flexibility Analysis, to the Chief Counsel for Advocacy of the Small Business Administration.

It is further ordered that the Commission shall send a copy of this Second Report and Order in a report to be sent to Congress and the General Accounting Office pursuant to the Congressional Review Act, 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR parts 2 and 90 as follows:

This is a synopsis of the Commission's Report and Order, MB Docket No. 18-27, adopted May 25, 2018, and released May 25, 2018. The full text of this Commission decision is available for inspection and copying during normal business hours in the FCC's Reference Information Center at Portals II, CY-A257, 445 12th Street SW, Washington, DC 20554. The full text is also available online at http://apps.fcc.gov/ecfs/. This document does not contain information collection requirements subject to the Paperwork Reduction Act of 1995, Public Law 104-13. The Commission will send a copy of the Report and Order in a report to be sent to Congress and the Government Accountability Office pursuant to the Congressional Review Act, see 5 U.S.C. 801(a)(1)(A).

For the reasons discussed in the preamble, the Federal Communications Commission amends 47 CFR part 73 as follows:

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

The 2018 Alaska plaice TAC specified for the BSAI is 16,100 metric tons as established by the final 2018 and 2019 harvest specifications for groundfish in the BSAI (83 FR 8365, February 27, 2018).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that the 2018 Alaska plaice TAC in the BSAI will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 15,100 mt, and is setting aside the remaining 1,000 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Alaska plaice in the BSAI.

While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishery closure of Alaska plaice in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of June 22, 2018.

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

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

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

The 2018 other flatfish TAC specified for the BSAI is 4,000 metric tons as established by the final 2018 and 2019 harvest specifications for groundfish in the BSAI (83 FR 8365, February 27, 2018).

In accordance with § 679.20(d)(1)(i), the Administrator, Alaska Region, NMFS, (Regional Administrator) has determined that the 2018 other flatfish TAC in the BSAI will soon be reached. Therefore, the Regional Administrator is establishing a directed fishing allowance of 3,000 mt, and is setting aside the remaining 1,000 mt as bycatch to support other anticipated groundfish fisheries. In accordance with § 679.20(d)(1)(iii), the Regional Administrator finds that this directed fishing allowance has been reached. Consequently, NMFS is prohibiting directed fishing for Alaska plaice in the BSAI.

While this closure is effective the maximum retainable amounts at § 679.20(e) and (f) apply at any time during a trip.

This action responds to the best available information recently obtained from the fishery. The Assistant Administrator for Fisheries, NOAA (AA), finds good cause to waive the requirement to provide prior notice and opportunity for public comment pursuant to the authority set forth at 5 U.S.C. 553(b)(B) as such requirement is impracticable and contrary to the public interest. This requirement is impracticable and contrary to the public interest as it would prevent NMFS from responding to the most recent fisheries data in a timely fashion and would delay the directed fishery closure of other flatfish in the BSAI. NMFS was unable to publish a notice providing time for public comment because the most recent, relevant data only became available as of June 22, 2018.

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

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