Federal Register Vol. 83, No.147,

Federal Register Volume 83, Issue 147 (July 31, 2018)

Page Range36723-37420
FR Document

83_FR_147
Current View
Page and SubjectPDF
83 FR 37419 - National Korean War Veterans Armistice Day, 2018PDF
83 FR 37415 - Continuation of the National Emergency With Respect to LebanonPDF
83 FR 36968 - Sunshine Act MeetingPDF
83 FR 37043 - Request for Applications for Appointment to the Citizens Coinage Advisory CommitteePDF
83 FR 36915 - Applications for New Awards; Technical Assistance and Dissemination To Improve Services and Results for Children With Disabilities-Technical Assistance and Dissemination Center on Improving Literacy Through Supporting Elementary School LeadersPDF
83 FR 36963 - Request for Nominations for the Gateway National Recreation Area Fort Hancock 21st Century Advisory CommitteePDF
83 FR 36816 - Approval and Promulgation of Implementation Plans; New Jersey; Elements for the 2008 8-Hour Ozone National Ambient Air Quality StandardsPDF
83 FR 36935 - Formations of, Acquisitions by, and Mergers of Bank Holding CompaniesPDF
83 FR 36861 - Pipeline Safety: Class Location Change RequirementsPDF
83 FR 36823 - Approval and Promulgation of Air Quality Implementation Plans; West Virginia; 2018 Amendments to West Virginia's Ambient Air Quality StandardsPDF
83 FR 36888 - Arms Sales NotificationPDF
83 FR 36913 - Arms Sales NotificationPDF
83 FR 36837 - Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air ActPDF
83 FR 36824 - Air Plan Approval; Oregon: Lane County Permitting and General Rule RevisionsPDF
83 FR 36926 - Agency Information Collection Activities; Proposed Renewal of an Existing Collection (EPA ICR No. 2507.02); Comment RequestPDF
83 FR 36928 - Agency Information Collection Activities; Proposed Renewal of an Existing Collection (EPA ICR No. 1884.10); Comment RequestPDF
83 FR 37039 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Pilot Certification and Qualification Requirements for Air Carrier OperationsPDF
83 FR 37042 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Certification of AirportsPDF
83 FR 37040 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Airport Noise Compatibility PlanningPDF
83 FR 36946 - Great Lakes Pilotage Advisory CommitteePDF
83 FR 37041 - Agency Information Collection Activities: Requests for Comments; Clearance of Renewed Approval of Information Collection: Flight and Duty Limitations and Rest Requirements-Flightcrew MembersPDF
83 FR 36941 - National Committee on Vital and Health Statistics: MeetingPDF
83 FR 36723 - Special Conditions: Bombardier Inc., Model BD-700-2A12 and BD-700-2A13 Series Airplanes, Flight Envelope Protection: Pitch and Roll LimitingPDF
83 FR 36755 - Endangered and Threatened Wildlife and Plants; Endangered Species Status for Five Poecilotheria Tarantula Species From Sri LankaPDF
83 FR 37038 - Presidential Declaration of a Major Disaster for Public Assistance Only for the State of MassachusettsPDF
83 FR 36924 - NRG Curtailment Solutions, Inc. v. New York Independent System Operator; Notice of ComplaintPDF
83 FR 36925 - Combined Notice of FilingsPDF
83 FR 36925 - Combined Notice of Filings #1PDF
83 FR 37038 - Presidential Declaration Amendment of a Major Disaster for the State of TexasPDF
83 FR 37038 - Presidential Declaration of a Major Disaster for Public Assistance Only for the State of MarylandPDF
83 FR 36947 - Notice of Availability of Updated Privacy Impact Assessment for the Southwest Border Pedestrian Exit Field TestPDF
83 FR 36931 - Proposed Collection; Comment RequestPDF
83 FR 36924 - Application to Export Electric Energy; Sempra Gas & Power Marketing, LLCPDF
83 FR 36955 - Notice of a Federal Advisory Committee Meeting: Manufactured Housing Consensus CommitteePDF
83 FR 36794 - Elimination of the Requirement That Livestock Carcasses Be Marked “U.S. Inspected and Passed” at the Time of Inspection Within a Slaughter Establishment for Carcasses to be Further Processed Within the Same EstablishmentPDF
83 FR 36961 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Documented Petitions for Federal Acknowledgment as an Indian TribePDF
83 FR 37044 - Veterans' Advisory Committee on Rehabilitation; Notice of Meeting AmendedPDF
83 FR 36962 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Leasing of Osage Reservation Lands for Oil and Gas MiningPDF
83 FR 36875 - Certain Frozen Warmwater Shrimp From Thailand: Rescission of Antidumping Duty Administrative Review; 2017-2018PDF
83 FR 36797 - Preparation of Uninspected Products Outside of the Hours of Inspectional SupervisionPDF
83 FR 36876 - Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Notice of Court Decisions Not in Harmony With Final Results of Administrative Review and Notice of Amended Final Results of Antidumping Duty Administrative ReviewPDF
83 FR 36878 - Glycine From the People's Republic of China: Rescission of Antidumping Duty Administrative Review; 2017-2018PDF
83 FR 36945 - Great Lakes Pilotage Advisory Committee; VacancyPDF
83 FR 36876 - Laminated Woven Sacks From the Socialist Republic of Vietnam: Postponement of Preliminary Determination in the Less-Than-Fair-Value InvestigationPDF
83 FR 36879 - Certain Frozen Fish Fillets From the Socialist Republic of Vietnam: Notice of Court Decisions Not in Harmony With Final Results of Administrative Review and Notice of Amended Final Results of Antidumping Duty Administrative ReviewPDF
83 FR 36941 - Emergency Use of Treatment for Uncontrolled Hemorrhage Due to Agents of Military Combat; CorrectionPDF
83 FR 36885 - Inland Waterways Users Board; Request for NominationsPDF
83 FR 36969 - Meeting of the Public Safety Officer Medal of Valor Review BoardPDF
83 FR 36937 - Patient Safety Organizations: Voluntary Relinquishment From Diagnostic Quality AssurancePDF
83 FR 36873 - Notice of Intent To Extend a Currently Approved Information CollectionPDF
83 FR 36899 - Arms Sales NotificationPDF
83 FR 36908 - Arms Sales NotificationPDF
83 FR 36874 - Census Scientific Advisory Committee Public MeetingPDF
83 FR 36965 - Agency Information Collection Activities; Submission to the Office of Management and Budget for Review and Approval; Operations in the Outer Continental Shelf for Minerals Other Than Oil, Gas, and SulphurPDF
83 FR 36891 - Arms Sales NotificationPDF
83 FR 36906 - Arms Sales NotificationPDF
83 FR 36894 - Arms Sales NotificationPDF
83 FR 36956 - Endangered and Threatened Species; Receipt of Recovery Permit ApplicationsPDF
83 FR 36966 - Craig S. Morris, DDS; Dismissal of ProceedingPDF
83 FR 36937 - Biosimilar User Fee Rates for Fiscal Year 2019PDF
83 FR 36881 - Gulf of Mexico Fishery Management Council; Public MeetingPDF
83 FR 36897 - Arms Sales NotificationPDF
83 FR 36724 - Airworthiness Directives; General Electric Company Turbofan EnginesPDF
83 FR 36904 - Arms Sales NotificationPDF
83 FR 36886 - Arms Sales NotificationPDF
83 FR 36959 - U.S. Endangered Species; Recovery Permit ApplicationsPDF
83 FR 36911 - Arms Sales NotificationPDF
83 FR 36886 - Proposed Collection; Comment RequestPDF
83 FR 36968 - Agency Information Collection Activities; Proposed Collection Comments Requested; Reinstatement with Change of an Expired Collection: 2017-19 Survey of Sexual VictimizationPDF
83 FR 36929 - Information Collection Being Reviewed by the Federal Communications Commission Under Delegated AuthorityPDF
83 FR 36930 - Information Collection Being Reviewed by the Federal Communications CommissionPDF
83 FR 36943 - Fogarty International Center; Notice of MeetingPDF
83 FR 36945 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingPDF
83 FR 36942 - National Institute of Allergy and Infectious Diseases; Notice of Closed MeetingPDF
83 FR 36944 - Eunice Kennedy Shriver National Institute of Child Health & Human Development; Notice of MeetingPDF
83 FR 36942 - National Institute on Aging; Notice of MeetingPDF
83 FR 36944 - National Heart, Lung, and Blood Institute; Notice of Closed MeetingPDF
83 FR 36944 - National Cancer Institute; Notice of Closed MeetingPDF
83 FR 36942 - National Cancer Institute; Notice of Closed MeetingsPDF
83 FR 36873 - Establishment of Divided Mountain Purchase Unit, Grayson County, VirginiaPDF
83 FR 36969 - Notice of Initial Determination To Remove Cotton From Uzbekistan From the List of Products Requiring Federal Contractor Certification as to Forced or Indentured Child Labor Pursuant to Executive Order 13126PDF
83 FR 36883 - Notice of 30-Day Public Comment Period on the Injury Assessment Plan for the Lower Duwamish River (“Lower Duwamish River Natural Resource Damage Assessment: Injury Assessment Plan”)PDF
83 FR 36882 - U.S. Integrated Ocean Observing System (IOOS®) Advisory CommitteePDF
83 FR 36884 - Hydrographic Services Review Panel MeetingPDF
83 FR 36883 - Evaluation of State Coastal Management ProgramsPDF
83 FR 36966 - Ripe Olives From Spain; DeterminationsPDF
83 FR 36848 - Possible Revision or Elimination of RulesPDF
83 FR 36947 - Notice of Issuance of Final Determination Concerning Subdermal Needle ElectrodesPDF
83 FR 36935 - Notice of Agreement FiledPDF
83 FR 37028 - Self-Regulatory Organizations; NYSE National, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Its Schedule of Fees and RebatesPDF
83 FR 36980 - Self-Regulatory Organizations; NYSE Arca, Inc.; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend the NYSE Arca Options Fees and Charges and the NYSE Arca Equities Fees and ChargesPDF
83 FR 36985 - Self-Regulatory Organizations; NYSE American LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Its NYSE American Equities Price List and the NYSE American Options Fee SchedulePDF
83 FR 37033 - Self-Regulatory Organizations; New York Stock Exchange LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Its Price List Related to ColocationPDF
83 FR 37020 - Self-Regulatory Organizations; Nasdaq MRX, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Align Existing Investigatory and Disciplinary Processes and Related Rules With the Investigatory and Disciplinary Processes and Associated Rules of Nasdaq BX, Inc.PDF
83 FR 37012 - Self-Regulatory Organizations; Nasdaq GEMX, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Align Existing Investigatory and Disciplinary Processes and Related Rules With the Investigatory and Disciplinary Processes and Associated Rules of Nasdaq BX, Inc.PDF
83 FR 36992 - Self-Regulatory Organizations; Nasdaq ISE, LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Align Existing Investigatory and Disciplinary Processes and Related Rules With the Investigatory and Disciplinary Processes and Associated Rules of Nasdaq BX, Inc.PDF
83 FR 36989 - Self-Regulatory Organizations; The Nasdaq Stock Market LLC; Notice of Filing and Immediate Effectiveness of Proposed Rule Change To Amend Fees and Credits Under Rule 7018(a)PDF
83 FR 36964 - National Register of Historic Places; Notification of Pending Nominations and Related ActionsPDF
83 FR 36741 - Update to Product ListsPDF
83 FR 36752 - Air Plan Approval; Washington; Regional Haze Progress ReportPDF
83 FR 36935 - Agency Information Collection Activities; Announcement of Board Approval Under Delegated Authority and Submission to OMBPDF
83 FR 36872 - Submission for OMB Review; Comment RequestPDF
83 FR 36838 - National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Partial Deletion of the South Valley Superfund SitePDF
83 FR 36748 - Air Plan Approval; Minnesota; PSD Infrastructure SIP RequirementsPDF
83 FR 37043 - Membership in the National Parks Overflights Advisory GroupPDF
83 FR 37039 - Notice of Intent To Rule on Request To Release Airport Property at Perry-Houston County Airport, Perry, GAPDF
83 FR 37040 - Notice of Intent To Rule on Request To Release Airport Property at Myrtle Beach International Airport, Myrtle Beach, SCPDF
83 FR 36751 - Air Plan Approval; Indiana; Air Quality Standards Update for the 2015 Ozone StandardPDF
83 FR 36844 - National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Deletion of the Reasor Chemical Company Superfund SitePDF
83 FR 36727 - Cyber Security Incident Reporting Reliability StandardsPDF
83 FR 36950 - Privacy Act of 1974; System of RecordsPDF
83 FR 36792 - Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security/U.S. Citizenship and Immigration Services-018 Immigration Biometric and Background Check (IBBC) System of RecordsPDF
83 FR 36799 - Position Limits and Position Accountability for Security Futures ProductsPDF
83 FR 37046 - Medicare Program: Proposed Changes to Hospital Outpatient Prospective Payment and Ambulatory Surgical Center Payment Systems and Quality Reporting Programs; Requests for Information on Promoting Interoperability and Electronic Health Care Information, Price Transparency, and Leveraging Authority for the Competitive Acquisition Program for Part B Drugs and Biologicals for a Potential CMS Innovation Center ModelPDF
83 FR 36773 - Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to U.S. Navy Pier Construction Activities at Naval Submarine Base New LondonPDF
83 FR 36814 - Negotiated Rulemaking Committee; Public HearingsPDF
83 FR 37242 - Student Assistance General Provisions, Federal Perkins Loan Program, Federal Family Education Loan Program, and William D. Ford Federal Direct Loan ProgramPDF
83 FR 36971 - Biweekly Notice: Applications and Amendments to Facility Operating Licenses and Combined Licenses Involving No Significant Hazards ConsiderationsPDF
83 FR 37332 - Exchange-Traded FundsPDF

Issue

83 147 Tuesday, July 31, 2018 Contents Agency Health Agency for Healthcare Research and Quality NOTICES Patient Safety Organizations: Voluntary Relinquishment from Diagnostic Quality Assurance, 36937 2018-16327 Agriculture Agriculture Department See

Food Safety and Inspection Service

See

Forest Service

See

National Institute of Food and Agriculture

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 36872-36873 2018-16180 2018-16261
Army Army Department NOTICES Requests for Nominations: Inland Waterways Users Board, 36885-36886 2018-16329 Safety Enviromental Enforcement Bureau of Safety and Environmental Enforcement NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Operations in the Outer Continental Shelf for Minerals Other Than Oil, Gas, and Sulphur, 36965 2018-16319 Census Bureau Census Bureau NOTICES Meetings: Census Scientific Advisory Committee, 36874-36875 2018-16321 Centers Medicare Centers for Medicare & Medicaid Services PROPOSED RULES Medicare Program: Proposed Changes to Hospital Outpatient Prospective Payment and Ambulatory Surgical Center Payment Systems and Quality Reporting Programs; Requests for Information on Promoting Interoperability and Electronic Health Care Information, Price Transparency, and Leveraging Authority for the Competitive Acquisition Program for Part B Drugs and Biologicals for a Potential CMS Innovation Center Model, 37046-37240 2018-15958 Coast Guard Coast Guard NOTICES Applications for Membership: Great Lakes Pilotage Advisory Committee, 36945-36946 2018-16335 Meetings: Great Lakes Pilotage Advisory Committee, 36946-36947 2018-16365 Commerce Commerce Department See

Census Bureau

See

International Trade Administration

See

National Oceanic and Atmospheric Administration

Commodity Futures Commodity Futures Trading Commission PROPOSED RULES Position Limits and Position Accountability for Security Futures Products, 36799-36814 2018-16079 Defense Department Defense Department See

Army Department

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 36886 2018-16303 Arms Sales, 36886-36915 2018-16304 2018-16307 2018-16308 2018-16310 2018-16316 2018-16317 2018-16318 2018-16323 2018-16324 2018-16373 2018-16374
Drug Drug Enforcement Administration NOTICES Decisions and Orders: Craig S. Morris, DDS; Dismissal of Proceeding, 36966-36967 2018-16313 Education Department Education Department PROPOSED RULES Intents to Establish Negotiated Rulemaking Committees: Public Hearings, 36814-36816 2018-15929 Student Assistance General Provisions, Federal Perkins Loan Program, Federal Family Education Loan Program, and William D. Ford Federal Direct Loan Program, 37242-37330 2018-15823 NOTICES Applications for New Awards: Technical Assistance and Dissemination to Improve Services and Results for Children With Disabilities—Technical Assistance and Dissemination Center on Improving Literacy Through Supporting Elementary School Leaders, 36915-36924 2018-16382 Energy Department Energy Department See

Federal Energy Regulatory Commission

NOTICES Applications To Export Electric Energy: Sempra Gas and Power Marketing, LLC, 36924 2018-16349
Environmental Protection Environmental Protection Agency RULES Air Quality State Implementation Plans; Approvals and Promulgations: Indiana; Air Quality Standards Update for the 2015 Ozone Standard, 36751-36752 2018-16247 Minnesota; PSD Infrastructure SIP Requirements, 36748-36751 2018-16256 Washington; Regional Haze Progress Report, 36752-36755 2018-16266 PROPOSED RULES Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Correction, 36837-36838 2018-16372 Air Quality State Implementation Plans; Approvals and Promulgations: New Jersey; Elements for 2008 8-Hour Ozone National Ambient Air Quality Standards, 36816-36823 2018-16378 Oregon: Lane County Permitting and General Rule Revisions, 36824-36837 2018-16371 West Virginia; 2018 Amendments to West Virginia's Ambient Air Quality Standards, 36823-36824 2018-16375 National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Partial Deletion of the South Valley Superfund Site, 36838-36844 2018-16257 National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Deletion of the Reasor Chemical Company Superfund Site, 36844-36848 2018-16244 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 36926-36929 2018-16369 2018-16370 Federal Aviation Federal Aviation Administration RULES Airworthiness Directives: General Electric Company Turbofan Engines, 36724-36727 2018-16309 Special Conditions: Bombardier Inc., Model BD-700-2A12 and BD-700-2A13 Series Airplanes, Flight Envelope Protection: Pitch and Roll Limiting, 36723-36724 2018-16360 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Airport Noise Compatibility Planning, 37040-37041 2018-16366 Certification of Airports, 37042 2018-16367 Flight and Duty Limitations and Rest Requirements—Flightcrew Members, 37041-37042 2018-16364 Pilot Certification and Qualification Requirements for Air Carrier Operations, 37039-37040 2018-16368 Intent To Rule on Request To Release Airport Property at Myrtle Beach International Airport, Myrtle Beach, SC, 37040 2018-16251 Intent To Rule on Request To Release Airport Property at Perry-Houston County Airport, Perry, GA, 37039 2018-16252 Membership in the National Parks Overflights Advisory Group, 37043 2018-16253 Federal Communications Federal Communications Commission PROPOSED RULES Possible Revision or Elimination of Rules, 36848-36861 2018-16282 NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 36929-36931 2018-16300 2018-16301 Federal Energy Federal Energy Regulatory Commission RULES Cyber Security Incident Reporting Reliability Standards, 36727-36741 2018-16242 NOTICES Combined Filings, 36925-36926 2018-16355 2018-16356 Complaints: NRG Curtailment Solutions, Inc. v. New York Independent System Operator, 36924-36925 2018-16357 Federal Housing Finance Agency Federal Housing Finance Agency NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 36931-36935 2018-16350 Federal Maritime Federal Maritime Commission NOTICES Agreement Filed, 36935 2018-16280 Federal Reserve Federal Reserve System NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 36935-36937 2018-16265 Formations of, Acquisitions by, and Mergers of Bank Holding Companies, 36935 2018-16337 2018-16377 Fish Fish and Wildlife Service RULES Endangered and Threatened Species: Endangered Species Status for Five Poecilotheria Tarantula Species From Sri Lanka, 36755-36773 2018-16359 NOTICES Endangered and Threatened Species: Recovery Permit Applications, 36956-36959 2018-16315 Permit Applications: U.S. Endangered Species, 36959-36961 2018-16306 Food and Drug Food and Drug Administration NOTICES Biosimilar User Fee Rates for Fiscal Year 2019, 36937-36940 2018-16312 Food Safety Food Safety and Inspection Service PROPOSED RULES Elimination of the Requirement That Livestock Carcasses Be Marked U.S. Inspected and Passed at the Time of Inspection Within a Slaughter Establishment for Carcasses To Be Further Processed Within the Same Establishment, 36794-36797 2018-16345 Preparation of Uninspected Products Outside of the Hours of Inspectional Supervision, 36797-36799 2018-16339 Foreign Claims Foreign Claims Settlement Commission NOTICES Meetings; Sunshine Act, 36968 2018-16436 Forest Forest Service NOTICES Establishment of Divided Mountain Purchase Unit, Grayson County, VA, 36873 2018-16290 Health and Human Health and Human Services Department See

Agency for Healthcare Research and Quality

See

Centers for Medicare & Medicaid Services

See

Food and Drug Administration

See

National Institutes of Health

NOTICES Emergency Use of Treatment for Uncontrolled Hemorrhage Due to Agents of Military Combat; Correction, 36941-36942 2018-16331 Meetings: National Committee on Vital and Health Statistics, 36941 2018-16361
Homeland Homeland Security Department See

Coast Guard

See

U.S. Customs and Border Protection

PROPOSED RULES Privacy Act; Implementation of Exemptions, 36792-36793 2018-16137 NOTICES Privacy Act; Systems of Records, 36950-36955 2018-16138
Housing Housing and Urban Development Department NOTICES Meetings: Manufactured Housing Consensus Committee, 36955-36956 2018-16346 Indian Affairs Indian Affairs Bureau NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Documented Petitions for Federal Acknowledgment as an Indian Tribe, 36961-36962 2018-16344 Leasing of Osage Reservation Lands for Oil and Gas Mining, 36962-36963 2018-16342 Interior Interior Department See

Bureau of Safety and Environmental Enforcement

See

Fish and Wildlife Service

See

Indian Affairs Bureau

See

National Park Service

International Trade Adm International Trade Administration NOTICES Antidumping or Countervailing Duty Investigations, Orders, or Reviews: Certain Frozen Fish Fillets From the Socialist Republic of Vietnam, 36876-36881 2018-16333 2018-16338 Certain Frozen Warmwater Shrimp From Thailand, 36875-36876 2018-16341 Glycine From the People's Republic of China, 36878-36879 2018-16336 Determination in the Less-Than-Fair-Value Investigation: Laminated Woven Sacks From the Socialist Republic of Vietnam, 36876 2018-16334 International Trade Com International Trade Commission NOTICES Investigations; Determinations, Modifications, and Rulings, etc.: Ripe Olives from Spain, 36966 2018-16283 Justice Department Justice Department See

Drug Enforcement Administration

See

Foreign Claims Settlement Commission

See

Justice Programs Office

NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals: Survey of Sexual Victimization, 36968 2018-16302
Justice Programs Justice Programs Office NOTICES Meetings: Public Safety Officer Medal of Valor Review Board, 36969 2018-16328 Labor Department Labor Department NOTICES Initial Determination To Remove Cotton From Uzbekistan From the List of Products Requiring Federal Contractor Certification as to Forced or Indentured Child Labor, 36969-36971 2018-16288 National Institute Food National Institute of Food and Agriculture NOTICES Agency Information Collection Activities; Proposals, Submissions, and Approvals, 36873-36874 2018-16326 National Institute National Institutes of Health NOTICES Meetings: Eunice Kenney Shriver National Institute of Child Health and Human Development, 36944 2018-16295 Fogarty International Center, 36943-36944 2018-16299 National Cancer Institute, 36942-36945 2018-16291 2018-16292 National Heart, Lung, and Blood Institute, 36944 2018-16293 National Institute of Allergy and Infectious Diseases, 36942, 36945 2018-16296 2018-16297 National Institute on Aging, 36942 2018-16294 National Oceanic National Oceanic and Atmospheric Administration RULES Takes and Imports of Marine Mammals Incidental to Specified Activities: U.S. Navy Pier Construction Activities at Naval Submarine Base New London, 36773-36791 2018-15938 NOTICES Injury Assessment Plan for the Lower Duwamish River (Lower Duwamish River Natural Resource Damage Assessment: Injury Assessment Plan), 36883 2018-16287 Meetings: Evaluation of State Coastal Management Programs, 36883-36884 2018-16284 Gulf of Mexico Fishery Management Council, 36881-36882 2018-16311 Hydrographic Services Review Panel, 36884-36885 2018-16285 U.S. Integrated Ocean Observing System Advisory Committee, 36882-36883 2018-16286 National Park National Park Service NOTICES National Register of Historic Places: Pending Nominations and Related Actions, 36964 2018-16268 Requests for Nominations: Gateway National Recreation Area Fort Hancock 21st Century Advisory Committee, 36963-36964 2018-16381 Nuclear Regulatory Nuclear Regulatory Commission NOTICES Facility Operating and Combined Licenses: Applications and Amendments Involving Proposed No Significant Hazards Considerations, etc., 36971-36980 2018-15682 Pipeline Pipeline and Hazardous Materials Safety Administration PROPOSED RULES Pipeline Safety: Class Location Change Requirements, 36861-36871 2018-16376 Postal Regulatory Postal Regulatory Commission RULES Update to Product Lists, 36741-36748 2018-16267 Presidential Documents Presidential Documents PROCLAMATIONS Special Observances: National Korean War Veterans Armistice Day (Proc. 9770), 37417-37420 2018-16555 ADMINISTRATIVE ORDERS Lebanon; Continuation of National Emergency (Notice of July 27, 2018), 37413-37415 2018-16550 Securities Securities and Exchange Commission PROPOSED RULES Exchange-Traded Funds, 37332-37411 2018-14370 NOTICES Self-Regulatory Organizations; Proposed Rule Changes: Nasdaq GEMX, LLC, 37012-37020 2018-16272 Nasdaq ISE, LLC, 36992-37012 2018-16271 Nasdaq MRX, LLC, 37020-37028 2018-16273 New York Stock Exchange LLC, 37033-37038 2018-16274 NYSE American LLC, 36985-36989 2018-16275 NYSE Arca, Inc., 36980-36984 2018-16276 NYSE National, Inc., 37028-37033 2018-16277 The Nasdaq Stock Market LLC, 36989-36992 2018-16270 Small Business Small Business Administration NOTICES Disaster Declarations: Maryland, 37038-37039 2018-16353 Texas; Amendment 1, 37038 2018-16354 Major Disaster Declarations: Massachusetts; Public Assistance Only, 37038 2018-16358 Transportation Department Transportation Department See

Federal Aviation Administration

See

Pipeline and Hazardous Materials Safety Administration

Treasury Treasury Department See

United States Mint

Customs U.S. Customs and Border Protection NOTICES Final Determinations: Subdermal Needle Electrodes, 36947-36950 2018-16281 Privacy Impact Assessment for the Southwest Border Pedestrian Exit Field Test, 36947 2018-16351 U.S. Mint United States Mint NOTICES Applications for Appointment: Citizens Coinage Advisory Committee, 37043-37044 2018-16383 Veteran Affairs Veterans Affairs Department NOTICES Meetings: Veterans' Advisory Committee on Rehabilitation, 37044 2018-16343 Separate Parts In This Issue Part II Health and Human Services Department, Centers for Medicare & Medicaid Services, 37046-37240 2018-15958 Part III Education Department, 37242-37330 2018-15823 Part IV Securities and Exchange Commission, 37332-37411 2018-14370 Part V Presidential Documents, 37413-37415 2018-16550 Part VI Presidential Documents, 37417-37420 2018-16555 Reader Aids

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

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

83 147 Tuesday, July 31, 2018 Rules and Regulations DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 25 [Docket No. FAA-2018-0201; Special Conditions No. 25-717A-SC] Special Conditions: Bombardier Inc., Model BD-700-2A12 and BD-700-2A13 Series Airplanes, Flight Envelope Protection: Pitch and Roll Limiting AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Amended final special conditions; request for comments.

SUMMARY:

These amended special conditions are issued for the Bombardier Inc. (Bombardier), Model BD-700-2A12 and BD-700-2A13 series airplanes. These amended special conditions change paragraphs 2 and 3 of the special conditions section based on information from Bombardier that makes changes to the novel or unusual design feature of this airplane. This airplane will have a novel or unusual design feature when compared to the state of technology envisioned in the applicable airworthiness standards for transport category airplanes. This design feature is the fly-by-wire electronic flight-control system (EFCS) that will limit pitch and roll functions to prevent the airplane from attaining certain pitch attitudes and roll angles. The applicable airworthiness regulations do not contain adequate or appropriate safety standards for this design feature. 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.

DATES:

This action is effective on Bombardier Inc. on July 31, 2018. Send comments on or before September 14, 2018.

ADDRESSES:

Send comments identified by docket number FAA-2018-0201 using any of the following methods:

Federal eRegulations Portal: Go to http://www.regulations.gov/ and follow the online instructions for sending your comments electronically.

Mail: Send comments to Docket Operations, M-30, U.S. Department of Transportation (DOT), 1200 New Jersey Avenue SE, Room W12-140, West Building Ground Floor, Washington, DC 20590-0001.

Hand Delivery or Courier: Take comments to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

Fax: Fax comments to Docket Operations at 202-493-2251.

Privacy: The FAA will post all comments it receives, without change, to http://www.regulations.gov/, including any personal information the commenter provides. Using the search function of the docket website, anyone can find and read the electronic form of all comments received into any FAA docket, including the name of the individual sending the comment (or signing the comment for an association, business, labor union, etc.). DOT's complete Privacy Act Statement can be found in the Federal Register published on April 11, 2000 (65 FR 19477-19478).

Docket: Background documents or comments received may be read at http://www.regulations.gov/ at any time. Follow the online instructions for accessing the docket or go to Docket Operations in Room W12-140 of the West Building Ground Floor at 1200 New Jersey Avenue SE, Washington, DC, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

FOR FURTHER INFORMATION CONTACT:

Joe Jacobsen, FAA, Airplane and Flight Crew Interface Section, AIR-671, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service, 2200 South 216th Street, Des Moines, Washington 98198; telephone 206-231-3158; email [email protected]

SUPPLEMENTARY INFORMATION:

The FAA has determined that notice of, and opportunity for prior public comment on, these amended special conditions is impracticable because these procedures would significantly delay issuance of the design approval and thus delivery of the affected airplane. Additionally, the substance of these special conditions has been published in the Federal Register for public comment in several prior instances with no substantive comments received. Therefore, the FAA has determined that prior public notice and comment are impracticable and unnecessary, and finds that, for the same reasons, good cause exists for adopting these special conditions upon publication in the Federal Register.

Comments Invited

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.

Background

On May 30, 2012, Bombardier applied for an amendment to Type Certificate No. T00003NY to include the new Models BD-700-2A12 and BD-700-2A13 series airplanes. The BD-700-2A12 and BD-700-2A13 series airplanes, are derivatives of the BD-700 currently approved under Type Certificate No. T00003NY, and are business jets with a maximum certified passenger capacity of 19. The maximum takeoff weight of Model BD-700-2A12 airplane is 106,250 lbs. and 104,800 lbs. for the Model BD-700-2A13 airplane.

Type Certification Basis

Under the provisions of title 14, Code of Federal Regulations (14 CFR) 21.101, Bombardier must show that the Model BD-700-2A12 and BD-700-2A13 series airplanes meet the applicable provisions of the regulations listed in Type Certificate No. T00003NY 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 Model BD-700-2A12 and BD-700-2A13 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 Bombardier Model BD-700-2A12 and BD-700-2A13 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.

Novel or Unusual Design Features

The Model BD-700-2A12 and BD-700-2A13 series airplanes will incorporate the following novel or unusual design features:

Fly-by-wire EFCS that will limit pitch and roll functions to prevent the airplane from attaining certain pitch attitudes and roll angles greater than plus or minus 65 degrees, and introduce positive spiral stability introduced for roll angles greater than 30 degrees at speeds below VMO/MMO. This system generates the actual surface commands that provide for stability augmentation and flight control for all three airplane axes (longitudinal, lateral, and directional).

Discussion

Part 25 of title 14 of the CFR does not specifically relate to flight characteristics associated with fixed attitude limits. Bombardier proposes to implement on the airplanes pitch and roll attitude-limiting functions via the EFCS normal mode. This will prevent the airplane from attaining certain pitch attitudes and roll angles greater than plus or minus 65 degrees. In addition, positive spiral stability, introduced for roll angles greater than 30 degrees at speeds below VMO/MMO, and spiral stability characteristics, must not require excessive pilot strength to achieve bank angles up to the bank-angle limit.

Bombardier requested this amendment, in order to be performance-based rather than prescriptive and to more closely follow the language developed in the Aviation Rulemaking Advisory Committee (ARAC) Flight Test Harmonization Working Group (FTHWG). The FAA concurs with this request.

The basic envelope protection requirement, historically applied, is to not unduly limit the maneuver capability of the airplane, or interfere with its ability to perform maneuvers required for normal and emergency operations. Since the design details used to meet this requirement vary from airplane to airplane, this amendment recognizes and adopts that philosophy for this specific design implementation. The substance of the special conditions is unchanged, in that, for this specific design, the design details support the objective of not unduly limiting the maneuver capability, while also protecting the airplane from adverse attitudes.

These special conditions are in addition to the requirements of § 25.143. 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.

Applicability

As discussed above, these special conditions are applicable to the Model BD-700-2A12 and BD-700-2A13 series airplanes. Should Bombardier 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.

Conclusion

This action affects only certain novel or unusual design features on one model series of airplanes. It is not a rule of general applicability.

List of Subjects in 14 CFR Part 25

Aircraft, Aviation safety, Reporting and recordkeeping requirements.

Authority Citation

The authority citation for these special conditions is as follows:

Authority:

49 U.S.C. 106(f), 106(g), 40113, 44701, 44702, 44704.

The Special Conditions Accordingly, pursuant to the authority delegated to me by the Administrator, the following special conditions are issued as part of the type certification basis for Bombardier Model BD-700-2A12 and BD-700-2A13 series airplanes:

In addition to § 25.143, the following requirements apply to the electronic flight-control system (EFCS) pitch- and roll-limiting functions:

1. The pitch-limiting function must not impede normal maneuvering for pitch angles up to the maximum required for normal maneuvering, including a normal, all-engines-operating takeoff, plus a suitable margin to allow for satisfactory speed control.

2. The pitch- and roll-limiting functions must not restrict or prevent attaining pitch attitudes necessary for emergency maneuvering, or roll angles up to 65 degrees. Spiral stability, which is introduced above 30 degrees of roll angle, must not require excessive pilot strength to achieve these roll angles. Other protections, which further limit the roll capability under certain extreme angle-of-attack, attitude, or high-speed conditions, are acceptable, as long as the airplane is able to perform coordinated turns as per § 25.143(h). A roll attitude limit of approximately 45 degrees at high angle-of-attack conditions is acceptable.

3. A reduced roll attitude limit is acceptable at extreme nose down pitch attitudes and beyond the overspeed warning to provide protection against high-speed combined pitch and roll upsets. The airplane should be able to perform operational turns at these speeds. A roll attitude limit of approximately 30 degrees at Vdf/Mdf is considered acceptable.

Issued in Des Moines, Washington. Victor Wicklund, Manager, Transport Standards Branch, Policy and Innovation Division, Aircraft Certification Service.
[FR Doc. 2018-16360 Filed 7-30-18; 8:45 am] BILLING CODE 4910-13-P
DEPARTMENT OF TRANSPORTATION Federal Aviation Administration 14 CFR Part 39 [Docket No. FAA-2018-0630; Product Identifier 2018-NE-25-AD; Amendment 39-19347; AD 2018-16-07] RIN 2120-AA64 Airworthiness Directives; General Electric Company Turbofan Engines AGENCY:

Federal Aviation Administration (FAA), DOT.

ACTION:

Final rule; request for comments.

SUMMARY:

We are adopting a new airworthiness directive (AD) for certain General Electric Company (GE) GEnx-1B54, -1B58, -1B64, -1B67, -1B70, -1B54/P1, -1B58/P1, -1B64/P1, -1B67/P1, -1B70/P1, -1B54/P2, -1B58/P2, -1B64/P2, -1B67/P2, -1B70/P2, -1B70C/P1, -1B70/72/P1, -1B70/75/P1, -1B74/75/P1, -1B75/P1, -1B70C/P2, -1B70/72/P2, -1B70/75/P2, -1B74/75/P2, -1B75/P2, -1B76/P2, -1B76A/P2, -1B78/P2, -2B67, -2B67B, and -2B67/P turbofan engines. This AD requires removal of affected high-pressure turbine (HPT) stator cases (HPT cases) from service and their replacement with a part eligible for installation. This AD was prompted by the discovery of a quality escape at a manufacturing facility. We are issuing this AD to address the unsafe condition on these products.

DATES:

This AD is effective August 15, 2018.

The Director of the Federal Register approved the incorporation by reference of a certain publication listed in this AD as of August 15, 2018.

We must receive comments on this AD by September 14, 2018.

ADDRESSES:

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

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

Fax: 202-493-2251.

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

Hand Delivery: U.S. Department of Transportation, Docket Operations, M-30, West Building Ground Floor, Room W12-140, 1200 New Jersey Avenue SE, Washington, DC 20590, between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays.

For service information identified in this final rule, contact General Electric Company, GE Aviation, Room 285, 1 Neumann Way, Cincinnati, OH 45215; phone: 513-552-3272; email: [email protected] You may view this service information at the FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7759. It is also available on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0630.

Examining the AD Docket

You may examine the AD docket on the internet at http://www.regulations.gov by searching for and locating Docket No. FAA-2018-0630; or in person at Docket Operations between 9 a.m. and 5 p.m., Monday through Friday, except Federal holidays. The AD docket contains this final rule, the regulatory evaluation, any comments received, and other information. The street address for the Docket Operations (phone: 800-647-5527) is listed above. Comments will be available in the AD docket shortly after receipt.

FOR FURTHER INFORMATION CONTACT:

Herman Mak, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7147; fax: 781-238-7199; email: [email protected]

SUPPLEMENTARY INFORMATION:

Discussion

We learned from GE of a quality escape at one of their suppliers. This supplier was performing welds on newly-manufactured components to correct errors introduced in their manufacturing process. These welds were not reviewed or approved by either GE or the FAA. GE's review of manufacturing records determined that these parts include HPT cases installed on GEnx engines. These HPT cases are life limited. The unapproved repairs reduced the material capability of these cases which requires their removal prior to reaching their published Airworthiness Limitation Section life limit. This condition, if not addressed, could result in failure of the HPT case, engine fire, and damage to the airplane. We are issuing this AD to address the unsafe condition on these products.

Related Service Information Under 1 CFR Part 51

We reviewed GE Service Bulletin (SB) GEnx-1B S/B 72-0424, Revision 03, dated June 29, 2018 and GEnx-2B S/B 72-0360, Revision 03, dated June 29, 2018. The SBs describe procedures for removing the affected HPT cases from the engine. GE SB GEnx-1B S/B 72-0424 is effective for GEnx-1B engines with the serial numbers of HPT cases listed in that SB. GE SB GEnx-2B S/B 72-0360 is effective for GEnx-2B engines with the serial numbers of HPT cases listed in that SB. This service information is reasonably available because the interested parties have access to it through their normal course of business or by the means identified in the ADDRESSES section.

Other Related Service Information

We reviewed Inspection 001, Subtask 72-52-01-230-001 of GEnx-1B Cleaning, Inspection, and Repair Manual GEK112862, Rev 27, dated April 30, 2018, and GEnx-2B Cleaning, Inspection, and Repair Manual GEK114120, Rev 20, dated April 30, 2018. These manuals provide guidance for conducting Class A fluorescent penetrant inspections.

FAA's Determination

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

AD Requirements

This AD requires removal of the affected HPT cases from service and their replacement with a part eligible for installation.

FAA's Justification and Determination of the Effective Date

An unsafe condition exists that requires the immediate adoption of this AD without providing an opportunity for public comments prior to adoption. The FAA has found that the risk to the flying public justifies waiving notice and comment prior to adoption of this rule because the compliance time for the required action is shorter than the time necessary for the public to comment and for us to publish the final rule. Therefore, we find good cause that notice and opportunity for prior public comment are impracticable. In addition, for the reason stated above, we find that good cause exists for making this amendment effective in less than 30 days.

Comments Invited

This AD is a final rule that involves requirements affecting flight safety and was not preceded by notice and an opportunity for public comment. However, we invite you to send any written data, views, or arguments about this final rule. Send your comments to an address listed under the ADDRESSES section. Include the docket number FAA-2018-0630 and Product Identifier 2018-NE-25-AD at the beginning of your comments. We specifically invite comments on the overall regulatory, economic, environmental, and energy aspects of this final rule. We will consider all comments received by the closing date and may amend this final rule because of those comments.

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

Costs of Compliance

We estimate that this AD affects 13 engines installed on airplanes of U.S. registry.

We estimate the following costs to comply with this AD:

Estimated Costs Action Labor cost Parts cost Cost per
  • product
  • Cost on U.S.
  • operators
  • Replacement of HPT case 0 work-hours × $85 per hour = $0 $362,400 $362,400 $4,711,200
    Authority for This Rulemaking

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

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

    This AD is issued in accordance with authority delegated by the Executive Director, Aircraft Certification Service, as authorized by FAA Order 8000.51C. In accordance with that order, issuance of ADs is normally a function of the Compliance and Airworthiness Division, but during this transition period, the Executive Director has delegated the authority to issue ADs applicable to engines, propellers, and associated appliances to the Manager, Engine and Propeller Standards Branch, Policy and Innovation Division.

    Regulatory Findings

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

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

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

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

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

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

    List of Subjects in 14 CFR Part 39

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

    Adoption of the Amendment

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

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

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

    § 39.13 [Amended]
    2. The FAA amends § 39.13 by adding the following new airworthiness directive (AD): 2018-16-07General Electric Company: Amendment 39-19347; Docket No. FAA-2018-0630; Product Identifier 2018-NE-25-AD. (a) Effective Date

    This AD is effective August 15, 2018.

    (b) Affected ADs

    None.

    (c) Applicability

    This AD applies to General Electric Company (GE) GEnx-1B54, -1B58, -1B64, -1B67, -1B70, -1B54/P1, -1B58/P1, -1B64/P1, -1B67/P1, -1B70/P1, -1B54/P2, -1B58/P2, -1B64/P2, -1B67/P2, -1B70/P2, -1B70C/P1, -1B70/72/P1, -1B70/75/P1, -1B74/75/P1, -1B75/P1, -1B70C/P2, -1B70/72/P2, -1B70/75/P2, -1B74/75/P2, -1B75/P2, -1B76/P2, -1B76A/P2, -1B78/P2, -2B67, -2B67B, and -2B67/P turbofan engines with a high-pressure turbine (HPT) stator case (HPT case), part number (P/N) 2302M90G04 installed, and with any serial number (S/N) listed in Table 1, 2, or 3, in the Planning Information section of GE Service Bulletin (SB) GEnx-2B S/B 72-0360, Revision 03, dated June 29, 2018, or GEnx-1B S/B 72-0424, Revision 03, dated June 29, 2018, installed.

    (d) Subject

    Joint Aircraft System Component (JASC) Code 7250, Turbine Section.

    (e) Unsafe Condition

    This AD was prompted by the discovery of a quality escape at a manufacturing facility involving unapproved welds on HPT cases. We are issuing this AD to prevent failure of the HPT case. The unsafe condition, if not addressed, could result in engine fire and damage to the airplane.

    (f) Compliance

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

    (g) Required Actions

    (1) For HPT cases listed in Planning Information, Table 1 or 2, of GE SBs GEnx-2B S/B 72-0360, Revision 03, dated June 29, 2018 and GEnx-1B S/B 72-0424, Revision 03, dated June 29, 2018, determine the lesser of the following: Cycles since new (CSN) or cycles since Class A fluorescent penetrant inspection (CSFPI) of the entire HPT case.

    (2) Using the determination made in paragraph (g)(1) of this AD, remove from service the HPT case after the effective date of this AD as specified in Table 1 to paragraph (g) of this AD. Replace the removed HPT case with a part eligible for installation.

    ER31JY18.000

    (3) Remove from service HPT cases listed in Planning Information, Table 3, of GE SBs GEnx-2B S/B 72-0360, Revision 03, dated June 29, 2018 or GEnx-1B S/B 72-0424, Revision 03, dated June 29, 2018, prior to exceeding 10 cycles after the effective date of this AD or exceeding the CSN limits listed in Table 3, whichever comes later. Replace the removed HPT case with a part eligible for installation.

    (h) Installation Prohibition

    (1) After the effective date of this AD, do not install any affected HPT case onto any engine.

    (2) After the effective date of this AD, HPT cases listed in Planning Information, Table 3, in GE SB GEnx-2B S/B 72-0360, Revision 03, dated June 29, 2018 or GEnx-1B S/B 72-0424, Revision 03, dated June 29, 2018, and any higher level assemblies with these parts installed, may not be removed from a GEnx-2B engine and installed on a GEnx-1B engine or removed from a GEnx-1B engine and installed on a GEnx-2B engine.

    (i) Alternative Methods of Compliance (AMOCs)

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

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

    (j) Related Information

    For more information about this AD, contact Herman Mak, Aerospace Engineer, ECO Branch, FAA, 1200 District Avenue, Burlington, MA 01803; phone: 781-238-7147; fax: 781-238-7199; email: [email protected]

    (k) Material Incorporated by Reference

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

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

    (i) General Electric Company (GE) Service Bulletin (SB) GEnx-2B S/B 72-0360, Revision 03, dated June 29, 2018.

    (ii) GE SB GEnx-1B S/B 72-0424, Revision 03, dated June 29, 2018.

    (3) For GE service information identified in this AD, contact General Electric Company, GE Aviation, Room 285, 1 Neumann Way, Cincinnati, OH 45215; phone: 513-552-3272; email: [email protected]

    (4) You may view this service information at FAA, Engine and Propeller Standards Branch, 1200 District Avenue, Burlington, MA. For information on the availability of this material at the FAA, call 781-238-7759.

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

    Issued in Burlington, Massachusetts, on July 25, 2018. Karen M. Grant, Acting Manager, Engine & Propeller Standards Branch, Aircraft Certification Service.
    [FR Doc. 2018-16309 Filed 7-30-18; 8:45 am] BILLING CODE 4910-13-P
    DEPARTMENT OF ENERGY Federal Energy Regulatory Commission 18 CFR Part 40 [Docket No. RM18-2-000; Order No. 848] Cyber Security Incident Reporting Reliability Standards AGENCY:

    Federal Energy Regulatory Commission.

    ACTION:

    Final rule.

    SUMMARY:

    The Federal Energy Regulatory Commission (Commission) directs the North American Electric Reliability Corporation (NERC) to develop and submit modifications to the NERC Reliability Standards to augment the mandatory reporting of Cyber Security Incidents, including incidents that might facilitate subsequent efforts to harm the reliable operation of the bulk electric system (BES).

    DATES:

    This rule will become effective October 1, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Margaret Steiner (Technical Information), Office of Electric Reliability, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6704, [email protected]

    Kevin Ryan (Legal Information), Office of the General Counsel, Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426, (202) 502-6840, [email protected]

    SUPPLEMENTARY INFORMATION: Order No. 848—Final Rule (Issued July 19, 2018)

    1. Pursuant to section 215(d)(5) of the Federal Power Act (FPA), the Commission directs the North American Electric Reliability Corporation (NERC) to develop and submit modifications to the NERC Reliability Standards to augment the mandatory reporting of Cyber Security Incidents, including incidents that might facilitate subsequent efforts to harm the reliable operation of the BES.1 The Commission directs NERC to develop and submit modifications to the Reliability Standards to require the reporting of Cyber Security Incidents that compromise, or attempt to compromise, a responsible entity's Electronic Security Perimeter (ESP) or associated Electronic Access Control or Monitoring Systems (EACMS).2

    1 16 U.S.C. 824o(d)(5). The NERC Glossary of Terms Used in NERC Reliability Standards (June 12, 2018) (NERC Glossary) defines a Cyber Security Incident as “A malicious act or suspicious event that: Compromises, or was an attempt to compromise, the Electronic Security Perimeter or Physical Security Perimeter or, Disrupts, or was an attempt to disrupt, the operation of a BES Cyber System.”

    2 The NERC Glossary defines “ESP” as “[t]he logical border surrounding a network to which BES Cyber Systems are connected using a routable protocol.” The NERC Glossary defines “EACMS” as “Cyber Assets that perform electronic access control or electronic access monitoring of the Electronic Security Perimeter(s) or BES Cyber Systems. This includes Intermediate Systems.”

    2. In the NOPR, the Commission observed that Cyber Security Incidents are presently reported by responsible entities in accordance with Reliability Standard CIP-008-5 (Cyber Security—Incident Reporting and Response Planning).3 However, under the definition of Reportable Cyber Security Incident in Reliability Standard CIP-008-5, responsible entities must only report Cyber Security Incidents if they have “compromised or disrupted one or more reliability tasks.” The Commission explained that the current reporting threshold may understate the true scope of cyber-related threats facing the Bulk-Power System, particularly given the lack of any reportable incidents in 2015 and 2016. To improve awareness of existing and future cyber security threats and potential vulnerabilities, the Commission proposed to direct that NERC develop and submit modifications to the existing Reliability Standards to augment the reporting of Cyber Security Incidents, including incidents that might facilitate subsequent efforts to harm the reliable operation of the BES.

    3Cyber Security Incident Reporting Reliability Standards, Notice of Proposed Rulemaking, 82 FR 61499 (Dec. 28, 2017), 161 FERC ¶ 61,291, P 1 (2017) (NOPR).

    3. As discussed in detail below, the Commission adopts the NOPR proposal. The Commission's directive in this Final Rule consists of four elements intended to augment the current Cyber Security Incident reporting requirement: (1) Responsible entities must report Cyber Security Incidents that compromise, or attempt to compromise, a responsible entity's ESP or associated EACMS; (2) required information in Cyber Security Incident reports should include certain minimum information to improve the quality of reporting and allow for ease of comparison by ensuring that each report includes specified fields of information; (3) filing deadlines for Cyber Security Incident reports should be established once a compromise or disruption to reliable BES operation, or an attempted compromise or disruption, is identified by a responsible entity; and (4) Cyber Security Incident reports should continue to be sent to the Electricity Information Sharing and Analysis Center (E-ISAC), rather than the Commission, but the reports should also be sent to the Department of Homeland Security (DHS) Industrial Control Systems Cyber Emergency Response Team (ICS-CERT). Further, NERC must file an annual, public, and anonymized summary of the reports with the Commission.

    4. As discussed below, after considering the comments submitted in response to the NOPR, we conclude that the proposed directive to augment the current reporting requirement for Cyber Security Incidents is appropriate to carry out FPA section 215. As NERC recognizes in its NOPR comments, “[b]roadening the mandatory reporting of Cyber Security Incidents would help enhance awareness of cyber security risks facing entities[,] . . . would create a more extensive baseline understanding of the nature of cyber security threats and vulnerabilities[,] . . . [and] is consistent with recommendations in NERC's 2017 State of Reliability Report.” 4 Our directive is intended to result in a measured broadening of the existing reporting requirement in Reliability Standard CIP-008-5, consistent with NERC's recommendation, rather than a wholesale change in cyber incident reporting that supplants or otherwise chills voluntary reporting, as some commenters maintain. Indeed, as NERC contends, we believe that the new “baseline understanding, coupled with the additional context from voluntary reports received by the E-ISAC, [will] allow NERC and the E-ISAC to share that information broadly through the electric industry to better prepare entities to protect their critical infrastructure.” 5

    4 NERC Comments at 4.

    5Id.

    5. We address in the discussion below concerns raised by commenters regarding elements of the Commission's directive and the burdens the directive might impose if NERC develops requirements that are overly broad. At the outset, we agree with NERC that “because certain requirements in the CIP Reliability Standards already require entities to track data on compromises or attempts to compromise the ESP or EACMS, the additional burden to report that data appears reasonable.” 6 And we do not believe that complying with the augmented reporting requirements that we direct here would be any more burdensome to industry than the alternative, responding to a perpetual data or information request to collect the same information pursuant to Section 1600 of the NERC Rules of Procedure. To ensure that the burden is reasonable with respect to including EACMS in the augmented reporting requirement, NERC should develop requirements based on the function of the EACMS and the nature of the attempted compromise or successful intrusion. Similarly, as discussed below, NERC should develop reporting timelines for Cyber Security Incidents that are commensurate with the adverse or attempted adverse impact to the BES that loss, compromise, or misuse of those BES Cyber Systems could have on the reliable operation of the BES.7 Prioritizing incident reporting will allow responsible entities to devote resources to reporting the most significant Cyber Security Incidents faster than less significant events. With this guidance, we believe that the standard drafting team, in the first instance, is in the best position to develop the specific elements of the directed Reliability Standard requirements.

    6Id. at 8 (citing Reliability Standard CIP-005-5 (Cyber Security—Electronic Security Perimeter(s)) and Reliability Standard CIP-007-6 (Cyber Security—System Security Management)).

    7 The NERC Glossary defines BES Cyber System as “[o]ne or more BES Cyber Assets logically grouped by a responsible entity to perform one or more reliability tasks for a functional entity.” Glossary of Terms Used in NERC Reliability Standards (NERC Glossary). Reliability Standard CIP-002-5.1a (Cyber Security System Categorization) provides a “tiered” approach to cybersecurity requirements, based on classifications of high, medium and low impact BES Cyber Systems.

    6. We have considered comments submitted by NERC and others recommending that broadened Cyber Security Incident reporting should be implemented through a request for information or data pursuant to Section 1600 of the NERC Rules of Procedure instead of through Reliability Standard requirements. However, on balance, we believe that broadened mandatory reporting pursuant to Reliability Standard requirements as opposed to a standing data request is more aligned with the seriousness and magnitude of the current threat environment, and more likely to improve awareness of existing and future cyber security threats and potential vulnerabilities. Four main reasons inform our decision. First, a new or modified Reliability Standard will ensure that the desired goals of our directive are met because the Commission will have the ability to review and ultimately approve the standard, as opposed to the opportunity for informal review that the Commission would have of a data request under ROP Section 1600. Second, the Commission has well-defined authority and processes under section 215(e) of the FPA to audit and enforce compliance with a Reliability Standard. Third, we do not anticipate that there will be a need to change the parameters of the Cyber Security Incident report for EACMS because the parameters that we direct below are based on five static functions of EACMS and are not technology specific, so the potential flexibility provided by a Section 1600 data request may not be significantly beneficial. Finally, collecting data through a Reliability Standard is consistent with existing practices; responsible entities are currently required to maintain the types of information that would lead to a reportable Cyber Security Incident pursuant to Reliability Standard CIP-007-6, Requirement R4.1. Nonetheless, should future events require an expedited change in data collection or should NERC desire to collect data outside the scope of the proposed Reliability Standard, NERC could then use the Section 1600 process to supplement information reported under a mandatory Reliability Standard.

    7. Accordingly, pursuant to section 215(d)(5) of the FPA, we adopt the NOPR proposal and direct NERC to develop modifications to the Reliability Standards to include the mandatory reporting of Cyber Security Incidents that compromise, or attempt to compromise, a responsible entity's ESP or associated EACMS, as well as modifications to specify the required information in Cyber Security Incident reports, their dissemination, and deadlines for filing reports. We direct NERC to submit the directed modifications within six-months of the effective date of this Final Rule.

    I. Background A. Section 215 and Mandatory Reliability Standards

    8. Section 215 of the FPA requires a Commission-certified Electric Reliability Organization (ERO) to develop mandatory and enforceable Reliability Standards, subject to Commission review and approval. Reliability Standards may be enforced by the ERO, subject to Commission oversight, or by the Commission independently.8 Pursuant to section 215 of the FPA, the Commission established a process to select and certify an ERO,9 and subsequently certified NERC.10

    8Id.

    9Rules Concerning Certification of the Electric Reliability Organization; and Procedures for the Establishment, Approval, and Enforcement of Electric Reliability Standards, Order No. 672, FERC Stats. & Regs. ¶ 31,204, order on reh'g, Order No. 672-A, FERC Stats. & Regs. ¶ 31,212 (2006).

    10North American Electric Reliability Corp., 116 FERC ¶ 61,062, order on reh'g and compliance, 117 FERC ¶ 61,126 (2006), aff'd sub nom. Alcoa, Inc. v. FERC, 564 F.3d 1342 (D.C. Cir. 2009).

    B. Notice of Proposed Rulemaking

    9. On December 21, 2017, the Commission issued a NOPR proposing to direct that NERC develop enhanced Cyber Security Incident reporting requirements. Specifically, pursuant to section 215(d)(5) of the FPA, the NOPR proposed to direct NERC to develop modifications to the Reliability Standards to require the reporting of Cyber Security Incidents that compromise, or attempt to compromise, a responsible entity's ESP or associated EACMS. The proposed directive was based in part on a lack of Reportable Cyber Security Incidents in 2015 and 2016, and NERC's assessment in the 2017 State of Reliability Report that “[w]hile there were no reportable cyber security incidents during 2016 and therefore none that caused a loss of load, this does not necessarily suggest that the risk of a cyber security incident is low.” 11 In addition, the NOPR stated that it agreed with the recommendation by NERC in the 2017 State of Reliability Report to “redefine reportable incidents to be more granular and include zero-consequence incidents that might be precursors to something more serious.” 12

    11 NOPR, 161 FERC ¶ 61,291 at P 28 (citing 2017 NERC State of Reliability Report at 4).

    12Id. P 29 (citing 2017 NERC State of Reliability Report at 4).

    10. In justifying the proposed inclusion of ESPs and associated EACMS within the scope of the enhanced Cyber Security Incident requirement, the NOPR stated that the purpose of an ESP is to manage electronic access to BES Cyber Systems to support the protection of the BES Cyber Systems against compromise that could lead to misoperation or instability in the BES.13 In addition, the NOPR explained that EACMS, which include, for example, firewalls, authentication servers, security event monitoring systems, intrusion detection systems and alerting systems, control electronic access into the ESP and play a significant role in the protection of high and medium impact BES Cyber Systems.14 The NOPR indicated further that, once an EACMS is compromised, an attacker could more easily enter the ESP and effectively control the BES Cyber System or Protected Cyber Asset.

    13See id. P 33 (citing Reliability Standard CIP-005-5 (Cyber Security—Electronic Security Perimeter(s)).

    14See id. (citing Reliability Standard CIP-002-5.1 (Cyber Security—BES Cyber System Categorization), Background at 6; Reliability Standard CIP-007-6 (Cyber Security—System Security Management), Background at 4).

    11. The NOPR discussed the scope of the present Cyber Security Incident reporting requirement. The NOPR observed that Reliability Standard CIP-008-5, Requirement R1.2 currently requires that each responsible entity shall document one or more Cyber Security Incident Plan(s) with one or more processes to determine if an identified Cyber Security Incident is a Reportable Cyber Security Incident. And where a Cyber Security Incident is determined to qualify as a Reportable Cyber Security Incident, the NOPR explained that responsible entities are required to notify the E-ISAC with initial notification within one hour from the determination of a Reportable Cyber Security Incident. The NOPR stated, however, that the NERC Glossary defines a Reportable Cyber Security Incident as “[a] Cyber Security Incident that has compromised or disrupted one or more reliability tasks of a functional entity.” The NOPR indicated that the definition of Reportable Cyber Security Incident, insofar as it excludes unsuccessful attempts to compromise or disrupt a responsible entity's core activities, is thus more narrow than the definition of “cybersecurity incident” in FPA section 215(a)(8), which encompasses “a malicious act or suspicious event that disrupts, or was an attempt to disrupt, the operation of those programmable electronic devices and communication networks including hardware, software and data that are essential to the reliable operation of the bulk power system.” 15

    15 16 U.S.C. 824o(a)(8).

    12. The NOPR stated that altering the Cyber Security Incident reporting threshold to require reporting of attempts to compromise, instead of only successful compromises, is consistent with information already logged by registered entities pursuant to current monitoring requirements in the Reliability Standards. The NOPR explained that Reliability Standard CIP-007-6, Requirement R4.1, mandates logging of detected successful login attempts, detected failed access attempts, and failed login attempts, and the Guidelines and Technical Basis for Requirement R4.1 states that events should be logged even if access attempts were blocked or otherwise unsuccessful.16

    16See Reliability Standard CIP-007-6 (Cyber Security—Systems Security Management), Requirement R4.1.

    13. In addition to modifying the reporting threshold, the NOPR proposed to direct NERC to modify the Reliability Standards to specify the required information in Cyber Security Incident reports to improve the quality of reporting and allow for ease of comparison by ensuring that each report includes specified fields of information, as well as the deadlines for submitting a report. Specifically, the NOPR proposed that the minimum set of attributes to be reported should include: (1) The functional impact, where possible, that the Cyber Security Incident achieved or attempted to achieve; (2) the attack vector used to achieve or attempt to achieve the Cyber Security Incident; and (3) the level of intrusion achieved or attempted by the Cyber Security Incident. The NOPR explained that knowledge of these attributes regarding a specific Cyber Security Incident will improve awareness of cyber threats to BES reliability. The NOPR also noted that the proposed attributes are the same as attributes already used by DHS for its multi-sector reporting and summarized by DHS in an annual report.17

    17 NOPR, 161 FERC ¶ 61,291 at P 38 (citing 2016 ICS-CERT Year in Review, https://ics-cert.us-cert.gov/Year-Review-2016).

    14. The NOPR also proposed to continue to require that Cyber Security Incident reports be sent to the E-ISAC instead of the Commission, but the NOPR proposed to require that such reports also be sent to ICS-CERT and that NERC file with the Commission an annual, public, and anonymized summary of such reports.

    15. Finally, the NOPR sought comment on potential alternatives to modifying the mandatory reporting requirements in the NERC Reliability Standards. Specifically, the NOPR sought comment on whether a request for data or information pursuant to Section 1600 of the NERC Rules of Procedure would effectively address the reporting gap and current lack of awareness of cyber-related incidents among NERC, responsible entities and the Commission, and satisfy the goals of the proposed directive.

    II. Discussion

    16. Pursuant to section 215(d)(5) of the FPA, we adopt the NOPR proposal and direct NERC to develop and submit modifications to the NERC Reliability Standards to augment current mandatory reporting of Cyber Security Incidents, including incidents that might facilitate subsequent efforts to harm the reliable operation of the BES. We direct NERC, subject to the discussion below, to develop and submit Reliability Standard requirements that: (1) Require responsible entities to report Cyber Security Incidents that compromise, or attempt to compromise, a responsible entity's ESP or associated EACMS; (2) specify the required information in Cyber Security Incident reports; (3) establish deadlines for filing Cyber Security Incident reports that are commensurate with incident severity; and (4) require that Cyber Security Incident reports be sent to ICS-CERT, in addition to E-ISAC, and that NERC file with the Commission an annual, public, and anonymized summary of such reports.

    17. Below, we discuss the following matters: (A) The need for broadened mandatory Cyber Security Incident reporting; (B) the threshold for a reportable Cyber Security Incident; (C) the appropriate procedural approach to augment Cyber Security Incident reporting, i.e., new or modified Reliability Standards versus a NERC data request to applicable entities; (D) the content and timing of Cyber Security Incident reports; and (E) other issues.

    A. Need for Broadened Mandatory Cyber Security Incident Reporting 1. NOPR

    18. In the NOPR, the Commission indicated that cyber-related event reporting is currently addressed in Reliability Standard CIP-008-5, Requirement R1.2, which requires that each responsible entity shall document one or more Cyber Security Incident Plan(s) with one or more processes to determine if an identified Cyber Security Incident is a Reportable Cyber Security Incident. The NOPR noted that a Cyber Security Incident is defined in the NERC Glossary as: “A malicious act or suspicious event that: (1) compromises, or was an attempt to compromise, the Electronic Security Perimeter or Physical Security Perimeter or (2) disrupts, or was an attempt to disrupt, the operation of a BES Cyber System.”

    19. The Commission further explained that where a cyber-related event is determined to qualify as a Reportable Cyber Security Incident, responsible entities are required to notify the E-ISAC with initial notification to be made within one hour from the determination of a Reportable Cyber Security Incident.18 However, the NOPR observed that a Reportable Cyber Security Incident is defined more narrowly in the NERC Glossary than a Cyber Security Incident because the former requires that the incident result in the compromise or disruption of one or more reliability tasks of a functional entity. As the Commission explained, in order for a cyber-related event to be considered reportable under the existing CIP Reliability Standards, it must compromise or disrupt a core activity (e.g., reliability task) of a responsible entity that is intended to maintain BES reliability.19 Therefore, under these definitions, unsuccessful attempts to compromise or disrupt a responsible entity's core activities are not subject to the current reporting requirements in Reliability Standard CIP-008-5 or elsewhere in the CIP Reliability Standards.

    18See Reliability Standard CIP-008-5 (Cyber Security—Incident Reporting and Response Planning), Requirement R1, Part 1.2. This requirement pertains to high impact BES Cyber Systems and medium impact BES Cyber Systems.

    19 The NERC Functional Model “describes a set of Functions that are performed to ensure the reliability of the Bulk Electric System. Each Function consists of a set of related reliability Tasks. The Model assigns each Function to a functional entity, that is, the entity that performs the function. The Model also describes the interrelationships between that functional entity and other functional entities (that perform other Functions).” NERC, Reliability Functional Model: Function Definitions and Functional Entities, Version 5 at 7 (November 2009), http://www.nerc.com/pa/Stand/Functional%20Model%20Archive%201/Functional_Model_V5_Final_2009Dec1.pdf.

    20. The NOPR explained that recent NERC State of Reliability Reports indicate that there were no Reportable Cyber Security Incidents in 2015 and 2016. The NOPR also highlighted NERC's conclusion that “[w]hile there were no reportable cyber security incidents during 2016 and therefore none that caused a loss of load, this does not necessarily suggest that the risk of a cyber security incident is low.” 20 The NOPR contrasted the results reported in the NERC reports with the 2016 annual summary of the Department of Energy's (DOE) Electric Disturbance Reporting Form OE-417, which contained four cybersecurity incidents reported in 2016; two suspected cyber attacks and two actual cyber attacks.21 Moreover, the NOPR noted that ICS-CERT responded to fifty-nine cybersecurity incidents within the Energy Sector in 2016.22

    20 2017 NERC State of Reliability Report at 4.

    21 2016 DOE Electric Disturbance Events (OE-417) Annual Summary Archives, https://www.oe.netl.doe.gov/OE417_annual_summary.aspx.

    22 ICS-CERT cybersecurity incident statistics for the Energy Sector combine statistics from the electric subsector and the oil and natural gas subsector. ICS-CERT does not break out the cybersecurity incidents that only impact the electric subsector. 2016 ICS-CERT Year in Review, https://ics-cert.us-cert.gov/Year-Review-2016.

    21. Based on the comparison of information reported by NERC, DOE, and ICS-CERT, the NOPR concluded that the current reporting threshold in Reliability Standard CIP-008-5 may not reflect the true scope and scale of cyber-related threats facing responsible entities. In particular, the NOPR raised a concern that the disparity in the reporting of cyber-related incidents under existing reporting requirements, in particular the lack of any incidents reported to NERC in 2015 and 2016, suggests a gap in the current reporting requirements. The NOPR highlighted the fact that this concern is echoed in the 2017 NERC State of Reliability Report, which includes a recommendation that NERC and industry should “redefine reportable incidents to be more granular and include zero-consequence incidents that might be precursors to something more serious.” 23 Agreeing with NERC's recommendation in the 2017 State of Reliability report, the NOPR proposed to direct NERC to address the apparent gap in cyber incident reporting.

    23 2017 NERC State of Reliability Report at 4.

    2. Comments

    22. NERC supports improving the reporting of Cyber Security Incidents, stating that “[b]roadening the mandatory reporting of Cyber Security Incidents would help enhance awareness of cyber security risks facing entities.” 24 NERC maintains that enhanced reporting “would create a more extensive baseline understanding of the nature of cyber security threats and vulnerabilities.” 25 NERC notes that broadening the scope of Cyber Security Incident reporting “is consistent with recommendations in NERC's 2017 State of Reliability Report.” 26 While NERC recognizes the need for enhanced Cyber Security Incident reporting, as discussed in the following sections, NERC does not support all aspects of the NOPR, including requiring enhanced cyber incident reporting through a modified Reliability Standard.

    24 NERC Comments at 4.

    25Id. at 4.

    26Id. at 4.

    23. BPA, ITC, IRC, NYPSC, and NRG also support the NOPR proposal to direct NERC to address the gap in reporting Cyber Security Incidents. As noted by BPA, the current definition of Reportable Cyber Security Incident only addresses successful attempts to compromise or disrupt operations and, therefore, “a broader definition of a Reportable Cyber Security incident is warranted” because “information about certain attempts to compromise will likely better assist the industry in preventing successful cyber attacks.” 27 BPA, ITC, and IRC raise concerns, however, regarding the risk of over-reporting. IRC states that the proposed requirement to report all attempts to compromise an ESP or associated EACMS “needs further clarification.” 28 BPA states that any new reporting requirement “must ensure that the information reported is useful and does not result in under and over reporting of information.” 29 NRG recommends that the term “attempt” should be clarified (i.e., as a more serious risk than a port scan) and “should be provided in technical guidance or glossary definition relating to the context of [the] existing NERC glossary term: Cyber Security Incident.” 30

    27 BPA Comments at 3.

    28 IRC Comments at 1.

    29 BPA Comments at 3.

    30 NRG Comments at 3.

    24. EEI/NRECA, Trade Associations, APS, Chamber, EnergySec, Eversource, Idaho Power, and LPPC do not support the NOPR proposal to direct NERC to address the gap in reporting Cyber Security Incidents. EEI/NRECA, Trade Associations, and Chamber suggest that the Commission support existing voluntary reporting practices as opposed to mandating the reporting of Cyber Security Incidents through the CIP Reliability Standards. EEI/NRECA state that “[s]ignificant resources from responsible entities and government are engaged in [. . .] partnerships” to share threat and vulnerability information.31 EEI/NRECA argue that “[m]andating such sharing will overlap with these voluntary efforts and may harm the partnerships and ability of the programs to enhance cybersecurity for the electric grid.” 32 In addition, EEI/NRECA state that mandating Cyber Security Incident reporting “may weaken the ability of electric companies to participate in these [voluntary reporting] programs by shifting their focus to compliance activity.” 33 Eversource states that the NOPR proposal would “introduce new technical and administrative challenges that will likely impact responsible entities' ability to participate in existing voluntary threat information sharing programs.” 34 LPPC states that whatever action the Commission takes on Cyber Security Incident reporting, it “must be done with an eye towards causing as little disruption to existing information sharing programs as possible.” 35

    31 EEI/NRECA Comments at 12.

    32Id. at 12.

    33Id. at 14-15.

    34 Eversource Comments at 5.

    35 LPPC Comments at 4.

    25. Trade Associations state that while improving Cyber Security Incident reporting is an appropriate objective, “directing new or revised mandatory reliability standards is not the only tool that NERC and the Commission have for achieving that reliability objective.” 36 Trade Associations contend that, in light of the constantly evolving state of cyber security, “the Commission should consider and utilize the most flexible tools to achieve its reliability goals without imposing undue burden on registered entities.” 37

    36 APPA, et al. Comments at 3-4.

    37Id. at 4.

    26. APS states that while it “supports the Commission's objectives expressed in the NOPR,” it does not agree that modifying the CIP Reliability Standards is the appropriate solution.38 APS asserts that “the reporting requirements that already exist under Form OE-417 meet the same objectives as the Commission is attempting to satisfy by requiring additional reporting under the CIP Standards as proposed in the NOPR.” 39 APS instead suggests that “the Commission . . . direct NERC to modify the CIP Standards to include a requirement for Responsible Entities to submit copies of its Form OE-417 to the E-ISAC and ICS-CERT.” 40

    38 APS Comments at 5.

    39Id. at 7.

    40Id. at 5.

    27. EnergySec states that it is “generally in agreement with the Commission's goal of increasing the frequency and detail of incident reporting,” but raises concerns with the specifics of the NOPR proposal.41 EnergySec maintains that “`compromise' as used in the definition of Reportable Cybersecurity Incident does not necessarily imply harm.” 42 Therefore, EnergySec argues that “an incident should be considered a `compromise' if an attacker has obtained the ability to disrupt, even if no disruption occurs.” 43 EnergySec states further that it believes “that a clarified understanding of the current definition of Reportable Cybersecurity Incident can sufficiently address the Commission's concerns” since it “can be construed to include certain non-impactful incidents, as well as incidents affecting [ESPs] and [EACMS].” 44

    41 EnergySec Comments at 2.

    42Id. at 2.

    43Id. at 2.

    44Id. at 3.

    28. EnergySec also raises a concern that the NOPR proposal is too broad. EnergySec argues that determining incidents that might facilitate future cyber incidents “would be highly subjective and could easily be construed to include systems and networks that are outside the scope of the Commission's authority.” 45 EnergySec notes that most failed login or access attempts are benign in nature and “the volume of such events is orders of magnitude larger than what would be an appropriate volume for mandatory reporting.” 46 EnergySec states further that while it agrees that successful attacks against ESPs and EACMS should be reported, it does not support including attempted compromise in the reporting requirements since the “[d]etermination of attempted compromise is highly subjective and it would therefore be difficult at best to clearly define within the standards a basis for such determinations.” 47

    45Id. at 3.

    46Id. at 3.

    47Id. at 3-4.

    29. Eversource and Idaho Power do not support the NOPR proposal due to the anticipated increased burden that could result from increased mandatory reporting. Eversource states that “expanding the amount of required information to be reported and increasing the number of recipients of the reports will create undue administrative burdens.” 48 In addition, Eversource contends that “the meaning of an attempted compromise is currently undefined and may impose significant burdens on responsible entities to identify such attempts.” 49 Idaho Power states that even though “additional reporting can provide some visibility into the types of threats that entities face, additional administrative burdens such as reporting requirements reduce the finite resources that entities have to monitor and defend their critical infrastructure.” 50

    48 Eversource Comments at 1.

    49Id. at 6.

    50 Idaho Power Comments at 2.

    30. LPPC asserts that the NOPR proposal “may yield a substantial quantity of unhelpful information and confusing analysis, while needlessly burdening Registered Entities.” 51 LPPC states that it supports NERC's request for flexibility in addressing enhanced Cyber Security Incident reporting and concludes that “a technical conference may productively explore the nature and scope of the various programs that currently exist for information sharing regarding threats and the incremental value of any new requirements.” 52 Resilient Societies states that “the modifications proposed to improve the reporting of cybersecurity incidents are unlikely to have any significant positive effect.” 53 Specifically, Resilient Societies states that the proposed reporting parameters are not broad enough because “reporting of malware infection is not necessarily within thresholds set on other criteria, such as `compromise,' `breach,' `impact,' or `disruption.' ” 54 Resilient Societies also suggests that the Commission convene a public technical conference.

    51 LPPC Comments at 1.

    52Id. at 5-6.

    53 Resilient Societies Comments at 12.

    54Id. at 10.

    3. Commission Determination

    31. We adopt the NOPR proposal and, pursuant to section 215(d)(5) of the FPA, direct NERC to develop and submit modifications to the Reliability Standards to augment the mandatory reporting of Cyber Security Incidents, including incidents that might facilitate subsequent efforts to harm the reliable operation of the BES. Comments submitted by NERC and others support our determination that enhanced reporting of Cyber Security Incidents will address an existing gap in Cyber Security Incident reporting and will provide useful information on existing and future cyber security risks, as well as provide entities with better visibility into malicious activity prior to an event occurring. As noted in NERC's comments, “[b]roadening the mandatory reporting of Cyber Security Incidents would help enhance awareness of cyber security risks facing entities.” 55 Similarly, BPA agrees with the directive to include attempted compromises in an enhanced reporting regime, stating that “information about certain attempts to compromise will likely better assist the industry in preventing successful cyber attacks.” 56 Moreover, while the record reflects differing views on whether broadened Cyber Security Incident reporting should be mandatory or voluntary, there is general agreement that improved reporting is an appropriate objective.57

    55 NERC Comments at 4.

    56 BPA Comments at 3.

    57See NERC Comments at 4, Trade Associations Comments at 3, APS Comments at 1, BPA Comments at 3, EnergySec Comments at 1, Idaho Power Comments at 2, ITC Comments at 5, IRC Comments at 1, NRG Comments at 2-3.

    32. Some commenters contend that the directive to require mandatory reporting of Cyber Security Incidents that compromise, or attempt to compromise, a responsible entity's ESP or associated EACMS is vague and requires clarification. Recognizing this concern, NERC states that “[t]he challenge is to scope any additional mandatory reporting requirements in a manner that collects meaningful data about security risks without creating an unduly burdensome reporting requirement.” 58 While we address the threshold for a broadened reporting requirement issue in the next section, as a general matter, we agree with NERC that the scope of any new reporting requirement should be tailored to provide better information on cyber security threats and vulnerabilities without imposing an undue burden on responsible entities. Indeed, the NOPR proposal was not intended to be prescriptive or overly broad, but rather support NERC's efforts to enhance the reporting of Cyber Security Incidents as outlined in NERC's 2017 State of Reliability Report through the standards development process.

    58 NERC Comments at 3.

    33. Some commenters assert that a broadened reporting requirement will overlap, duplicate or otherwise chill voluntary reporting programs, potentially diverting resources away from such programs. Other commenters, however, assert that voluntary reporting does not adequately address the gap identified in the NOPR because voluntary reporting and mandatory reporting under currently-effective Reliability Standard CIP-008-5 have not resulted in adequate reporting of cybersecurity threats to the BES.59 As Appelbaum notes, “[w]ithout mandatory reporting scheme a degraded threat image will result.” 60

    59See id. at 4-5.

    60 Appelbaum Comments at 7.

    34. Based on the record, we are not persuaded that our directive to augment current mandatory reporting requirements will adversely impact existing voluntary information sharing efforts. Instead, we agree with NERC's comment that the new “baseline understanding [resulting from broadened mandatory reporting], coupled with the additional context from voluntary reports received by the E-ISAC, [will] allow NERC and the E-ISAC to share that information broadly through the electric industry to better prepare entities to protect their critical infrastructure.” 61 Moreover, we do not anticipate that the incremental burden of the directed modifications will divert significant resources from other information sharing programs since responsible entities are already required to monitor and log successful login attempts, detected failed access attempts, and failed login attempts under Reliability Standard CIP-007-6, Requirement R4.1. Nor do we anticipate that the incremental burden of complying with the directed Reliability Standards modifications would be significantly more than the burden of responding to a standing data or information request under Section 1600. We also do not believe that broadened mandatory reporting is at cross-purposes with voluntary cybersecurity-related programs offered by DHS and other government agencies. We believe that voluntary programs that focus on cyber response and sharing of cyber threat information across industry are important initiatives that should be supported. However, the comments do not provide a compelling explanation why the broadening of mandatory reporting will supplant or inhibit voluntary programs.

    61 NERC Comments at 4.

    35. While we agree with EnergySec that revisions to the current definition of Reportable Cyber Security Incident could address some aspects of our directive, a modified definition alone would not address the need to specify the required information in Cyber Security Incident reports to improve the quality of reporting and allow for ease of comparison, or establish deadlines for submitting a report to facilitate timely information sharing. Therefore, while we believe that a modified definition of Reportable Cyber Security Incident could address part of the Commission's concerns, additional modifications would be necessary to meet the full scope of our directive.

    36. In addition, we do not agree with Resilient Societies that the detection of malware infecting a responsible entity's ESP or associated EACMS would fall outside the new reporting requirement. While Resilient Societies asserts that a malware infection would not meet the threshold of a compromise, breach, impact, or disruption, we believe that it would fall within the parameters of an attempted compromise. As discussed in the next section, however, we believe that it is appropriate for NERC to address the reporting threshold through the standards development process in order to weigh the diverse technical opinions on how to identify the appropriate assets and the level of attempted compromise that warrants reporting. Accordingly, we are not persuaded to convene a technical conference. Rather, persons interested in the development of appropriate detailed parameters of the augmented reporting requirements should participate in the NERC standards development process.

    37. In sum, we conclude that the record supports our determination that directing NERC to develop and submit modifications to the Reliability Standards to require the reporting of Cyber Security Incidents that compromise, or attempt to compromise, a responsible entity's ESP, as well as associated EACMS, is appropriate to carry out FPA section 215. Therefore, pursuant to FPA section 215(d)(5), we direct NERC to develop and submit modifications to the Reliability Standards to include the mandatory reporting of Cyber Security Incidents that compromise, or attempt to compromise, a responsible entity's ESP or associated EACMS. As noted above, we direct NERC to submit the directed modifications within six-months of the effective date of this Final Rule.

    B. Threshold for a Reportable Cyber Security Incident 1. NOPR

    38. The NOPR proposed to direct NERC to modify the Reliability Standards to include the mandatory reporting of Cyber Security Incidents that compromise, or attempt to compromise, a responsible entity's ESP or associated EACMS. The NOPR explained that reporting attempts to compromise, instead of only successful compromises, is consistent with current monitoring requirements in Reliability Standard CIP-007-6, Requirement R4.1, which mandates logging of detected successful login attempts, detected failed access attempts and failed login attempts.62 In addition, the NOPR identified other reporting regimes that include attempts within the general definition of a “cyber incident.” Specifically, DHS defines a “cyber incident” as “attempts (either failed or successful) to gain unauthorized access to a system or its data. . . .” 63 The E-ISAC defines a “cyber incident” as including unauthorized access through the electronic perimeter as well as “a detected effort . . . without obvious success.” 64 And ICS-CERT defines a “cyber incident” as an “occurrence that actually or potentially results in adverse consequences. . . .” 65

    62See Reliability Standard CIP-007-6 (Cyber Security—Systems Security Management), Requirement R4.1.

    63See United States Computer Emergency Readiness Team (US-CERT) Incident Definition: https://www.us-cert.gov/government-users/compliance-and-reporting/incident-definition.

    64See E-ISAC Incident Reporting Fact Sheet document: http://www.nerc.com/files/Incident-Reporting.pdf.

    65See ICS-CERT Published “Common Cyber Security Language” document: https://ics-cert.us-cert.gov/sites/default/files/documents/Common%20Cyber%20Language_S508C.pdf.

    39. As noted above, an ESP is defined in the NERC Glossary as the “logical border surrounding a network to which BES Cyber Systems are connected using a routable protocol.” The purpose of an ESP is to manage electronic access to BES Cyber Systems to support the protection of the BES Cyber Systems against compromise that could lead to misoperation or instability in the BES. The NOPR explained that since an ESP is intended to protect BES Cyber Systems, it is reasonable to establish the compromise of, or attempt to compromise, an ESP as the minimum reporting threshold.

    40. In addition, the NOPR identified an ESP's associated EACMS as another threshold for a Reportable Cyber Security Incident. As explained in the NOPR, EACMS are defined in the NERC Glossary as “Cyber Assets that perform electronic access control or electronic access monitoring of the Electronic Security Perimeter(s) or BES Cyber Systems. This includes Intermediate Systems.” More specifically, EACMS include, for example, firewalls, authentication servers, security event monitoring systems, intrusion detection systems and alerting systems.

    41. While the Commission proposed to include EACMS within the scope of the proposed directive, the Commission also sought comment on the possibility of excluding EACMS from the scope of the proposed directive.

    2. Comments

    42. NERC supports the NOPR proposal to limit the scope of Cyber Security Incident reporting to incidents that compromise or attempt to compromise a responsible entity's ESP or associated EACMS. NERC explains that any new reporting requirements “need to be scoped in a manner that provides for meaningful reporting of cyber security risks but does not unduly burden entities.” 66 Specifically, NERC states:

    66 NERC Comments at 6.

    Because the ESP protects some of the most important Cyber Assets and the EACMS control or monitor access to those Cyber Assets, NERC agrees that reporting on attempts to compromise these security measures would provide valuable data while also imposing a reasonable burden on entities given the limited traffic they should experience.67

    67Id. at 7.

    NERC notes that some EACMS devices “may provide important early indicators of future compromise” and, therefore, NERC states that it “supports including EACMS in the reporting threshold in addition to the ESP and notes that logging attempts to compromise the ESP and some EACMS devices does not impose an unreasonable burden on entities.” 68

    68Id. at 8.

    43. While NERC supports adopting the compromise or attempt to compromise a responsible entity's ESP or an EACMS associated with an ESP as a threshold for Cyber Security Incident reporting, NERC explains that “there is still a need to refine the scope of the proposed directive to ensure that it would provide meaningful data without overburdening entities.” 69 Specifically, NERC states that there is a need to “outline the parameters of an `attempt to compromise' in order to issue a precise data request.” 70 In particular, NERC states that it “would consider the common understanding of adverse activities that are early indicators of compromise, such as campaigns against industrial control systems, to help refine the parameters.” 71 In addition, NERC notes that EACMS, as defined in the NERC Glossary, include a wide variety of devices that perform control and monitoring functions. NERC states further that it “needs to consider whether to define the reporting threshold to differentiate between the various types of EACMS for reporting purposes.” 72 Therefore, NERC requests that the Commission provide flexibility in refining the threshold for Cyber Security Incident reporting.

    69Id. at 9.

    70Id. at 9.

    71Id. at 9.

    72Id. at 9.

    44. Trade Associations, APS, BPA, EnergySec, Resilient Societies, IRC, ITC, and NYPSC generally support the reporting threshold proposed in the NOPR, but caution that any new or modified requirements should be properly scoped. Trade Associations state that the NOPR proposal “is potentially overbroad and could result in unduly burdensome reporting requirements that reduce awareness of significant cyber threats.” 73 Trade Associations also contend that a new or revised Reliability Standard “should not include the proposed generic threshold of reporting any incidents that compromise or attempt to compromise an ESP or EACMS.” 74 Instead, Trade Associations recommend that the Commission “give NERC sufficient flexibility to define appropriate reporting thresholds for attempted compromises of an ESP or EACMS.” 75

    73 APPA, et al. Comments at 5 (emphasis in original).

    74Id. (emphasis in original).

    75Id. at 5.

    45. APS asserts that, given the differences among EACMS, it does not support the inclusion of all EACMS or the exclusion of all EACMS from an enhanced reporting requirement. APS states that while it “concurs that the incidents impacting the ESP should certainly be in scope of reporting, it is concerned that the exclusion of EACMS (which includes [Electronic Access Points (EAP)]) results in a likely compromise scenario going unreported.” 76 Specifically, APS notes that “a user's credentials to an Intermediate System, which includes/can be classified as an EAP(s) and/or EACMS, could be compromised.” 77 APS contends that such a compromise would not implicate the ESP, but could impact or attempt to impact a BES Cyber Asset or System. APS states, however, that “there are numerous EACMS for which a compromise scenario would not be critical or allow potential access to an ESP.” 78 Therefore, APS maintains that an evaluation of the functions of various EACMS is needed before they can be included in any reporting requirement.

    76 APS Comments at 9.

    77Id.

    78Id.

    46. BPA states that a broader definition of a Reportable Cyber Security Incident is necessary since the current definition only addresses actual compromises. BPA avers that “information about certain attempts to compromise will likely better assist the industry in preventing successful cyber attacks.” 79 BPA states that the current definition of a Cyber Security Incident is a good starting point for a revision since it includes attempts to compromise or disrupt. BPA cautions, however, that the current definition of Cyber Security Incident “may be too broad and result in overreporting of information.” 80

    79 BPA Comments at 3.

    80Id. at 3.

    47. EnergySec states that it “generally agree[s] that successful attacks against ESPs and EACMS should be within the scope of reporting; [but] disagree[s] with the proposal to include attempted compromise in the reporting requirements.” 81 In addition, EnergySec suggests that monitoring-only systems be excluded from any reporting requirement, stating that “[a]lthough compromise of monitoring systems could assist an attack, such a compromise would not directly permit access.” 82 Resilient Societies states that “[e]xcluding [EACMS] from the Commission directive could exempt reporting of attempted compromises.” 83 IRC states that “adding EACMS to the requirement for mandatory reporting would be beneficial, not only because of their role as a boundary point, but also because EACMS perform other roles that support the BES Cyber Systems.” 84 IRC cautions, however, that “[w]ithout providing further definitions or criteria, the NOPR's proposal to require reporting of all `attempts to compromise' the ESP or EACMS is unclear and potentially unachievable.” 85

    81 EnergySec Comments at 3-4.

    82Id. at 4.

    83 Resilient Societies Comments at 14.

    84 IRC Comments at 5.

    85Id. at 3-4.

    48. While ITC generally supports the NOPR proposal, ITC “requests that the Commission refrain from including unsuccessful attempts to compromise an ESP-associated EACMS in the revised definition of a Cyber Security Incident.” 86 ITC notes that responsible entity systems with publicly-visible IP addresses “sustain a regular stream of denial of service attempts, phishing emails, attempted firewall breaches, untargeted and targeted malware, and other common cybersecurity threats for which countermeasures are well-established and which pose a miniscule chance of success.” 87 ITC states that including “attempted compromises of ESP-associated EACMS would appear to require reporting for a sizeable number of these common events.” 88 Therefore, ITC states that while it “supports expanding the definition of Reportable Cyber Incidents to include incidents that compromise, or attempt to compromise, a responsible entity's ESP, ITC would urge the Commission to direct NERC to include only actual breaches of a responsible entity's ESP-associated EACMS, and not attempted-but-unsuccessful compromises.” 89 NYPSC notes that “[f]ailed cyber attacks occur on a continuous basis, all the time. . .” and, therefore, “[a] reporting requirement of every attempted security attack may be overly burdensome for reporting entities.” 90 NYPSC “suggests FERC consider developing clear criteria of the required reporting based on its review of the comments and recommendations from reporting entities.” 91

    86 ITC Comments at 5.

    87Id. at 5.

    88Id. at 5.

    89Id. at 5.

    90 NYPSC Comments at 5-6.

    91Id. at 6.

    49. Idaho Power states that “additional reporting requirements do not increase cyber security.” 92 Idaho Power contends that “additional administrative burdens such as reporting requirements reduce the finite resources that entities have to monitor and defend their critical infrastructure.” 93 In addition, Idaho Power states that EACMS “should be excluded from any additional requirements and only BES Cyber Systems and associated devices should be included in any further reporting requirements.” 94

    92 Idaho Power Comments at 2.

    93Id.

    94Id.

    50. Other commenters support expanding the enhanced reporting requirement beyond what was proposed in the NOPR. NRG supports the NOPR proposal to direct NERC to develop modifications to the CIP Reliability Standards to improve the reporting of Cyber Security Incidents. NRG also supports including EACMS as a threshold for reporting. In addition, NRG “recommends that the scope of the NOPR avoid limiting the requirement to High and Medium Impact BES Cyber Systems.” 95 Specifically, NRG notes that the NOPR proposal “would limit the requirement to High and Medium Impact BES Cyber Systems as ESPs and EACMS are not required establishments at Low Impact BES Cyber Systems.” 96 Therefore, NRG states that “any modification to the referenced CIP Reliability Standards should be applicable to all BES Cyber Systems with External Routable Communications.” 97

    95 NRG Comments at 5.

    96Id. at 2.

    97Id.

    51. Appelbaum supports the NOPR proposal to include the attempted or actual compromise of an ESP or EACMS in the mandatory reporting requirement. However, Appelbaum “propose[s] the Commission consider adding Physical Security Perimeters and Physical Access Control Systems (PACS) as well.”98 Simon supports the NOPR proposal, but encourages the Commission to broaden the directive to include low impact BES Cyber Systems. Specifically, Simon states that “[o]mission of mandatory reporting for the disruption, or an attempt to disrupt, the operation of electronic access controls for BES assets with low impact BES Cyber Systems leaves a large blind spot in the Commission's effort to learn of efforts to harm the reliable operation of the bulk electric system.” 99 Isologic does not support limiting Cyber Security Incident reporting to situations involving an entity's ESP or associated EACMS. Isologic states that “there are few CIP standards for `secure perimeters' and for the mass of BES Low Impact Facilities, (substations), security is at the fence line, not in ESPs.” 100

    98 Appelbaum Comments at 7.

    99 Simon Comments at 4.

    100 Isologic Comments at 7.

    3. Commission Determination

    52. The record in this proceeding supports establishing the compromise or attempted compromise of an ESP as the appropriate threshold for a Reportable Cyber Security incident. In addition, with exceptions, the comments support including EACMS associated with an ESP as part of the reporting threshold. As NERC notes, an “ESP protects some of the most important Cyber Assets and the EACMS control or monitor access to those Cyber Assets.” 101 While we believe that ESPs and EACMS should be within the scope of a broadened reporting requirement, the comments, correctly in our view, point to the need to establish an appropriate scope for reporting. As NERC states, “there is still a need to refine the scope of the proposed directive to ensure that it would provide meaningful data without overburdening entities.” 102 This concern is reflected in a number of comments, pointing to the need to identify the appropriate assets to monitor (for example, only EACMS associated with an ESP) and to clearly define an “attempt to compromise.” 103

    101 NERC Comments at 7.

    102Id. at 9.

    103See NERC Comments at 9, APPA, et al. Comments at 5, APS Comments at 9, BPA Comments at 3, EnergySec Comments at 3, IRC Comments at 3-4, ITC Comments at 5, NYPSC Comments at 6.

    53. The comments generally support the view that NERC should have the flexibility to establish an appropriate reporting threshold. We recognize the need for a certain level of flexibility and believe that it is appropriate for NERC to address the specific reporting threshold through the standards development process. However, as discussed further below, we provide guidance on certain aspects of how NERC should identify EACMS for reporting purposes and what types of attempted compromise must be reported.

    54. With regard to identifying EACMS for reporting purposes, NERC's reporting threshold should encompass the functions that various electronic access control and monitoring technologies provide. Those functions must include, at a minimum: (1) Authentication; (2) monitoring and logging; (3) access control; (4) interactive remote access; and (5) alerting.104 Reporting a malicious act or suspicious event that has compromised, or attempted to compromise, a responsible entity's EACMS that perform any of these five functions would meet the intended scope of the directive by improving awareness of existing and future cyber security threats and potential vulnerabilities. Since responsible entities are already required to monitor and log system activity under Reliability Standard CIP-007-6, the incremental burden of reporting of the compromise or attempted compromise of an EACMS that performs the identified functions should be limited, especially when compared to the benefit of the enhanced situational awareness that such reporting will provide.

    104See NERC Glossary of Terms definition of EACMS. See also Reliability Standard CIP-006-6, Requirement R1.5 (Physical Security Plan) at 10 (“[i]ssue an alarm or alert in response to detected unauthorized access” to certain High and Medium Impact BES Cyber Systems and associated EACMS); Reliability Standard CIP-007-6, Requirement R4.2 (Security Event Monitoring) at 16; and Reliability Standard CIP-007-6, Requirement R5.7 (System Access Control) at 25.

    55. With regard to the definition of “attempted compromise” for reporting purposes, we consider attempted compromise to include an unauthorized access attempt or other confirmed suspicious activity. ITC raises a concern that including unsuccessful attempts to compromise an EACMS associated with an ESP would require reporting a significant number of events. We note, however, that limiting the reporting threshold to only EACMS that are associated with an ESP should limit the reporting burden since these assets should be located apart from the responsible entity's broader business IT networks. Moreover, as discussed in the next section, we also believe that a flexible reporting timeline that reflects the severity of a Cyber Security Incident could also help address the potential burden of reporting attempted compromises.

    56. With regard to BPA's suggestion that a revised definition of Reportable Cyber Security Incident is necessary, as discussed above, revisions to the current definition of Reportable Cyber Security Incident could address certain aspects of the NOPR proposal, although a modified definition alone would not address the need to specify the required information in cyber security incident reports to improve the quality of reporting and allow for ease of comparison, or establish deadlines for submitting a report to facilitate timely information sharing. Therefore, although we believe that a modified definition of Reportable Cyber Security Incident could address part of the Commission's concerns, additional modifications to the Reliability Standards would be necessary to meet the security objective of the directives discussed herein.

    57. A number of commenters request that we expand the directive to include a broader scope of assets, including low impact BES Cyber Systems. However, we decline to expand the scope of Cyber Security Incident reporting beyond the ESP and associated EACMS at this time. The focus on ESPs and associated EACMS is intended to provide threat information on BES Cyber Systems that have the greatest impact on BES reliability while imposing a reasonable reporting burden on responsible entities. Nevertheless, the Commission could revisit this issue if there is demonstrated need for expanded Cyber Security Incident reporting.

    58. Therefore, we adopt the NOPR proposal and conclude that the compromise, or attempt to compromise, a responsible entity's ESP or associated EACMS is a reasonable threshold for augmented Cyber Security Incident reporting.

    C. Appropriate Procedural Approach To Augment Cyber Security Incident Reporting 1. NOPR

    59. The NOPR proposed to direct NERC to modify the CIP Reliability Standards to augment the mandatory reporting of Cyber Security Incidents, while also seeking comment on whether a request for data or information pursuant to Section 1600 of the NERC Rules of Procedure would effectively address the reporting gap.

    2. Comments

    60. While NERC supports broadened mandatory Cyber Security Incident reporting, NERC does not support the NOPR proposal to direct a modification to the Reliability Standards. Instead, NERC requests flexibility to determine the appropriate reporting procedure. Specifically, NERC proposes to “use the [Rules of Procedure] Section 1600 process for gathering data used for system performance.” 105 NERC maintains that it has “successfully shifted to using Section 1600 for other data collection efforts, such as the collection of reports on Protection System Misoperation.” 106 NERC explains further that the Section 1600 process would be used to “supplement the existing voluntary reporting of cyber security threats to E-ISAC.” 107

    105 NERC Comments at 10.

    106Id.

    107Id.

    61. NERC states that the Section 1600 process “provides many of the same benefits as Reliability Standards,” such as stakeholder and Commission staff input.108 NERC also states that, similar to Reliability Standards, compliance with Section 1600 is mandatory. NERC explains that if a responsible entity does not respond to a Section 1600 data request, “NERC has the authority under the [Rules of Procedure] to take such action as NERC deems appropriate to address a situation where a Rule of Procedure cannot practically be complied with or has been violated.” 109 NERC explains that the Section 1600 data request process provides the flexibility to revise or update the data request, if necessary, as well as “the flexibility to determine the appropriate timeline for submitting the data.” 110 NERC states that while it may continue to use the Reliability Standards for data collection for evidence of compliance or to facilitate sharing of information between entities for BES operations, it “has found the [Rules of Procedure] Section 1600 process to be effective for data collection to assess system performance.” 111 NERC cites a standing Section 1600 data request for entities to submit quarterly data on Protection System Misoperations as an example.

    108Id.

    109Id. at 11.

    110Id. at 12-13.

    111Id. at 12.

    62. LPPC supports the use of the Section 1600 process to facilitate enhanced Cyber Security Incident reporting. LPPC states that it “supports a more flexible approach to collection of actionable information through the data request process outlined in NERC ROP Section 1600.” 112 LPPC asserts that the data request approach offers flexibility that the standards development process does not. Specifically, LPPC states that “compliance with a NERC data request is mandatory for applicable entities, while the data request procedures specified under [Rules of Procedure] Section 1600 also provide a more efficient process to update or revise a data request as needed to respond to rapidly-changing security threats.” 113 Finally, LPPC opines that “it seems appropriate to remove the data collection process from the enforcement process associated with mandatory Reliability Standards.” 114

    112 LPPC Comments at 6-7.

    113Id. at 7.

    114Id.

    63. APS, BPA, Resilient Societies, IRC, and NRG oppose the use of the Section 1600 process to facilitate enhanced Cyber Security Incident reporting. APS asserts that a request for data pursuant to Section 1600 would not effectively address the reporting gap and current lack of awareness of cyber-related incidents. Specifically, APS argues that a data request would create an independent, redundant reporting obligation to NERC or a regional entity and would subject the provisions of reported information to the confidentiality and data sharing processes set forth in Rules of Procedure Section 1500, unnecessarily delaying sharing and distribution of information.115 APS states further that the Section 1600 process “adds significant additional administrative burden for all involved entities, which is inefficient and unnecessary and presents a potential obstacle to the very sharing and distribution that is a critical part of the Commission's objectives set forth in the NOPR.” 116

    115 APS Comments at 16.

    116Id. at 16-17.

    64. BPA comments that a data request is not an effective means of obtaining information about cyber security incidents. BPA explains that Section 1600 data requests “are one time requests for existing data, and [. . .] not the appropriate vehicle for ensuring ongoing reporting necessary to make data about Cyber Security Incidents effective.” 117 Resilient Societies states that “[e]xamination of NERC Rules of Procedure Section 1600 shows the intent of [the] rule is to facilitate one-time requests for data.” 118 Therefore, Resilient Societies asserts that the Section 1600 reporting procedures “would be a poor fit for a standing order for data on cybersecurity incidents that occur continually.” 119 NRG opposes the use of the Section 1600 data request process asserting that a request for data or information would neither address the current lack of awareness of cyber-related incidents, nor satisfy the goals of the proposed directive.

    117 BPA Comments at 4.

    118 Resilient Societies Comments at 15.

    119Id.

    65. APS, as discussed above, suggests adopting the DOE Electric Disturbance Events, Form OE-417 as the primary reporting tool for Cyber Security Events. EnergySec, for its part, suggests that the Commission could direct NERC to require entities to develop and implement an information sharing plan.120 According to EnergySec, such an approach should provide broad discretion to entities and ensure that compliance oversight efforts cannot result in second-guessing of decisions regarding which information to share, when, or with whom. IRC suggests, alternatively, that the Commission allow entities to comply with the reporting requirements by participating in the Cyber Risk Information Sharing program. IRC explains that the program allows entities to automatically report information to E-ISAC for analysis against classified information. IRC states that responsible entities that “automatically report indicators of compromise through these systems will share information at machine speed, and this should be considered superior to manual reporting, which requires much slower decision-making.” 121

    120 EnergySec Comments at 6.

    121 IRC Comments at 7.

    3. Commission Determination

    66. As discussed above, we adopt the NOPR proposal and direct NERC to develop modifications to the NERC Reliability Standards to improve mandatory reporting of Cyber Security Incidents, including incidents that might facilitate subsequent efforts to harm the reliable operation of the BES. We have considered the arguments raised in the comments for using Reliability Standards, Section 1600 information and data requests, and other vehicles to implement augmented Cyber Security Incident reporting. On balance, we conclude that broadened mandatory reporting pursuant to Reliability Standard requirements is more aligned with the seriousness and magnitude of the current threat environment and the more effective approach to improve awareness of existing and future cyber security threats and potential vulnerabilities.

    67. First, the development of a Reliability Standard provides the Commission with an opportunity to review and ultimately approve a new or modified Reliability Standard, ensuring that the desired goals of the directive are met. Moreover, the Reliability Standards development process allows for the collaboration of industry experts in developing a draft standard and also gives interested entities broader opportunity to participate and comment on any proposal that is developed. In contrast, NERC's process for developing a Section 1600 data request provides for less stakeholder input and only informal review of a draft data request by Commission staff. Thus, in this circumstance, the standards development process is preferable for the development of augmented cyber incident reporting requirements that satisfy the scope of the Commission's directive.

    68. Second, the development of a Reliability Standard provides better assurance of accurate, complete, and verifiable reporting of cyber security incidents. The Commission has well-defined authority and processes under section 215(e) of the FPA to audit and enforce compliance with a Reliability Standard. While NERC notes that a responsible entity must respond to a NERC Section 1600 data request, NERC cannot impose sanctions on registered entities who fail to respond to such data requests. Rather, a failure to comply would be a violation of the Commission's regulations,122 requiring a referral to the Commission for action. Such a process would be a departure from the clearly defined processes used to enforce compliance with the Reliability Standards. Moreover, it is unclear how NERC would even learn of such a failure since, unlike mandatory Reliability Standards, compliance with Section 1600 data requests are not subject to regular audit. Accordingly, given the importance of accurate, complete, and verifiable cyber security incident reporting, we find that the more robust and well-established compliance and enforcement processes associated with mandatory Reliability Standards are desirable in this instance.

    122 18 CFR 39.2(b) (2017) (“All entities subject to the Commission's reliability jurisdiction . . . shall comply with applicable Reliability Standards, the Commission's regulations, and applicable Electric Reliability Organization and Regional Entity Rules made effective under this part.”).

    69. Third, we are not persuaded by NERC's assertion that a Section 1600 data request is preferable in this instance because it allows for flexibility and faster modification should a need arise for future revisions to the collection of cyber incident reporting data. We do not anticipate that there would be a need to change the parameters of the event report, given that the anticipated reporting requirements should not be technology-specific, but rather, broad enough to capture basic data even as the nature of cyber security incidents evolve. Specifically, the NOPR proposed that the minimum set of attributes to be reported should include: (1) The functional impact, where possible to determine, that the Cyber Security Incident achieved or attempted to achieve; (2) the attack vector that was used to achieve or attempted to achieve the Cyber Security Incident; and (3) the level of intrusion that was achieved or attempted as a result of the Cyber Security Incident. Since these attributes are general in nature and not technology specific, they would not need to be refined as the underlying cyber threats evolve, nor would they need to be refined quickly.

    70. In a similar vein, the assets (i.e., EACMS) subject to the enhanced reporting requirements should be identified based on function, as opposed to a specific technology that could require a modification in the reporting requirements should the underlying technology change. As discussed above, those functions must include, at a minimum: (1) Authentication; (2) monitoring and logging; (3) access control; (4) interactive remote access; and (5) alerting. Finally, since the level of attempted compromise that warrants reporting should reflect unauthorized access attempts and other confirmed suspicious activity, we do not anticipate that a modification would be required in the future. Nevertheless, should the situation demand a more timely change in data collection or should NERC desire to collect additional information that is outside the scope of the proposed Reliability Standard, NERC could use the Section 1600 data request process to supplement information reported under a mandatory Reliability Standard.

    71. Finally, requiring a data collection in a Reliability Standard is consistent with existing practices since responsible entities are currently required to maintain the types of information that would lead to a reportable Cyber Security Incident pursuant to Reliability Standard CIP-007-6, Requirement R4.1.

    72. While we recognize that NERC could likely develop a Section 1600 data request more quickly than a mandatory Reliability Standard, given the potential complexity of considering reporting requirements for the various EACMS, we believe that the technical depth of a standard development process is more appropriate for this case. Although NERC states that it has successfully used ROP Section 1600 to collect data on system performance, in this circumstance the information being reported relates to threats and potential compromises that may require immediate or near-term action as opposed to retrospective reporting on Misoperations, as Section 1600 has been used.

    73. We also do not support adopting the DOE Form OE-417 as the primary reporting tool for reporting Cyber Security Incidents, as suggested by some commenters. The reporting criteria in our directive are distinguishable and more aligned with a risk management approach than the information requested in the DOE Form OE-417. Specifically, the DOE Form OE-417 has twelve generic criteria for filing a report to the DOE, of which only two reflect the criteria outlined in the NOPR proposal, which are discussed in the following section. The DOE Form OE-417 does not address factors such as attack vector, functional impact and level of intrusion. In addition, the definition of a “Cyber Event” in the DOE Form OE-417 filing instructions does not align with the definition of Cyber Security Incident in the NERC Glossary of Terms, let alone a Reportable Cyber Security Incident.123 Nor does the DOE Form OE-417 require reporting to E-ISAC or ICS-CERT as our directive requires.

    123See Department of Energy Electric Emergency Incident and Disturbance Report—Form OE 417. Form OE-417 defines a Cyber Event as a disruption on the electrical system and/or communication system(s) caused by unauthorized access to computer software and communications systems or networks including hardware, software, and data. https://www.oe.netl.doe.gov/oe417.aspx.

    74. In sum, we conclude that modifications to the NERC Reliability Standards to improve mandatory reporting of Cyber Security Incidents, including incidents that might facilitate subsequent efforts to harm the reliable operation of the BES, is the appropriate approach to improve Cyber Security Incident reporting.

    D. Content and Timing of a Cyber Security Incident Report 1. NOPR

    75. The NOPR proposed to direct that NERC modify the CIP Reliability Standards to specify the required content in a Cyber Security Incident report. Specifically, the NOPR proposed that the minimum set of attributes to be reported should include: (1) The functional impact, where possible, that the Cyber Security Incident achieved or attempted to achieve; (2) the attack vector that was used to achieve or attempt to achieve the Cyber Security Incident; and (3) the level of intrusion that was achieved or attempted as a result of the Cyber Security Incident. The NOPR noted that the proposed attributes are the same as attributes already used by DHS for its multi-sector reporting and summarized by DHS in an annual report. The NOPR stated that specifying the required content should improve the quality of reporting by ensuring that basic information is provided; and allowing for ease of comparison across reports by ensuring that each report includes specified fields of information. The NOPR sought comment on the proposed attributes and, more generally, the appropriate content for Cyber Security Incident reporting to improve awareness of existing and future cyber security threats and potential vulnerabilities.

    76. In addition, the NOPR proposed to direct NERC to establish requirements outlining deadlines for filing a report once a compromise or disruption to reliable BES operation, or an attempted compromise or disruption, is identified by a responsible entity. The NOPR stated that the reporting timeline should reflect the actual or potential threat to reliability, with more serious incidents reported in a more timely fashion. The NOPR explained that a reporting timeline that takes into consideration the severity of a Cyber Security Incident should minimize potential burdens on responsible entities.

    77. The NOPR also proposed that the reports submitted under the enhanced mandatory reporting requirements would be provided to E-ISAC, similar to the current reporting scheme under Reliability Standard CIP-008-5, as well as ICS-CERT or any successor organization. While the NOPR stated that the detailed incident report would not be submitted to the Commission, the NOPR proposed to direct NERC to file publicly an annual report reflecting the Cyber Security Incidents reported to NERC during the previous year. Specifically, the NOPR proposed to direct NERC to file annually an anonymized report providing an aggregated summary of the reported information, similar to the ICS-CERT annual report.124

    124 NOPR, 161 FERC ¶ 61,291 at 42.

    2. Comments

    78. NERC supports the minimum set of reporting attributes proposed in the NOPR, stating that “this level of detail regarding each reported Cyber Security Incident will not only help NERC understand the specific threat but also help NERC understand trends in threats over time.” 125 NERC also does not oppose either filing an annual, anonymized summary of the reports with the Commission, or submitting the reports of U.S.-based entities to the ICS-CERT in addition to E-ISAC. Finally, while NERC supports the concept of imposing a deadline for entities to submit full reports of Cyber Security Incidents, NERC requests flexibility to determine the appropriate timeframe. Specifically, NERC states that it “will determine an appropriate deadline for reports so that NERC can use the data for awareness and early indicators of potential compromise but also consider whether reporting for historical analysis can provide insight to the trends and effectiveness of industry's security controls.” 126

    125 NERC Comments at 14.

    126Id.

    79. ITC, IRC, and NRG support the minimum set of reporting attributes proposed in the NOPR. ITC states that the NOPR proposal reflects “a reasonable set of baseline requirements for reporting.” 127 While ITC raises a concern that the collective information in a report could potentially lead to the identification of the reporting entity, ITC states that it “will work within the NERC stakeholder and standards development process to ensure that the Standards submitted in response to the Commission's final rule are structured to preserve anonymity to the maximum extent practicable.” 128 IRC asserts that “it will be beneficial for responsible entities to report indicators of compromise that are detected in potential cyberattacks against their systems in standard form.” 129 NRG recommends that mandatory reporting include: “content Date, Time, Duration of Incident, Origination of the attack, threat vector, targeted system (or OS), vulnerability exploited, [and] method used to stop/prevent the attack.” 130

    127 ITC Comments at 6.

    128Id.

    129 IRC Comments at 7.

    130 NRG Comments at 5.

    80. Appelbaum, APS, EnergySec, Resilient Societies, and Idaho Power raise concerns with the minimum set of reporting attributes proposed in the NOPR. According to Appelbaum, a count by category of asset, attack vector, and impact is sufficient for the mandatory reporting. APS contends that “because each entity's network topology, architecture, applications, and other characteristics are different, any requirement to provide the functional impact and level of intrusion as part of reporting is of very low value and should not be included as mandatory attributes of reporting.” 131

    131 APS Comments at 11-12.

    81. APS, however, “agrees that information regarding attack vectors could be more relevant, actionable information to be shared.” 132 EnergySec expresses concern that including the proposed set of reporting attributes as a requirement could be construed to require significant forensic and analysis efforts. Resilient Societies suggests that the Commission leverage prior work done by the federal government as opposed to establishing new report content. Specifically, Resilient Societies suggests that the Commission adopt the US-CERT “Federal Incident Notification Guidelines.” Idaho Power states that a “description of the event and the system(s) affected along with a fact pattern describing the situation and known information at the time the report is submitted should be sufficient.” 133

    132Id. at 12.

    133 Idaho Power Comments at 3.

    82. With regard to the timing of reports, ITC questions whether an initial report of a Cyber Security Incident would have to be submitted to ICS-CERT as well as E-ISAC. ITC opines that “the existing one-hour reporting requirement poses a significant compliance challenge, and that requiring that the initial report also be provided to ICS-CERT would be unworkable under that timeframe.” 134 IRC states that “[t]he timeframe for completing a full report depends on the scale and scope of the investigation [and] FERC should consider requiring that reports be updated at a certain frequency until the full report is complete.” 135 IRC recommends a 90-day update requirement until a report is finalized. NRG recommends that Cyber Security Incident reports should be submitted after existing industry processes have been followed relating to Incident Reporting and Response Plans. In addition, NRG recommends that the Commission consider directing NERC to file a quarterly report in addition to the annual report.

    134 ITC Comments at 7.

    135 IRC Comments at 8.

    83. APS recommends aligning the timing of any mandatory reporting obligations with the timing dictated in Form OE-417. APS contends that reporting events that “could, but didn't, cause harm to the BES and/or facilitate subsequent efforts to harm . . . should be far enough removed from the incident to not divert resources from incident response and to ensure that enough details are known about the incident to provide an accurate, thorough report.136

    136 APS Comments at 13.

    84. EnergySec agrees that clear timelines should be included in any new mandatory Cyber Security Incident requirements. EnergySec further comments that the timelines should factor in the severity of the incident and the level of effort required to complete an investigation. Resilient Societies offers that “[i]n an ideal world, reporting of cybersecurity incidents would take place at machine speed” and suggests that the Commission “allow and preferably require automated reporting, at least for an initial report.” 137 Idaho Power states that, should the Commission require timelines for reporting, it should ensure that an entity has adequate time to analyze each event before the reporting deadline.

    137 Resilient Societies Comments at 15.

    85. Lasky supports entities being required to report Cyber Security Incidents to both E-ISAC and ICS-CERT, and states that “it would be prudent to report all incidents to the United States Cyber Emergency Response Team (US-CERT)” as well.138

    138 Lasky Comments at 1.

    3. Commission Determination

    86. As discussed below, we adopt the NOPR proposal on minimum reporting attributes and timing, in response to the commenters' concerns, but we also leave discretion to NERC to develop the reporting timelines in the standards development process by considering several factors so that the timelines provide for notice based upon the severity of the event and the risk to BES reliability, with updates to follow initial reports.

    87. The comments generally support the proposed minimum set of reporting attributes. For example, NERC supports the proposed content for a Cyber Security Incident report, while requesting flexibility to determine the appropriate reporting timeframe. As noted by ITC, the NOPR proposal reflects “a reasonable set of baseline requirements for reporting.” 139 Certain comments do raise concerns with the proposed reporting attributes, especially in the case of attempts versus actual compromises.

    139 ITC Comments at 6.

    88. In our view, a new or revised Cyber Security Incident report should include, at a minimum, the information outlined in the NOPR proposal, where available. Specifically, the minimum set of attributes to be reported should include: (1) The functional impact, where possible, that the Cyber Security Incident achieved or attempted to achieve; (2) the attack vector that was used to achieve or attempted to achieve the Cyber Security Incident; and (3) the level of intrusion that was achieved or attempted or as a result of the Cyber Security Incident. In addition, we agree that any reporting requirement should not take away from efforts to mitigate a potential compromise.

    89. With regard to timing, we conclude that NERC should establish reporting timelines for when the responsible entity must submit Cyber Security Incident reports to the E-ISAC and ICS-CERT based on a risk impact assessment and incident prioritization approach to incident reporting.140 This approach would establish reporting timelines that are commensurate with the adverse impact to the BES that loss, compromise, or misuse of those BES Cyber Systems could have on the reliable operation of the BES. Higher risk incidents, such as detecting malware within the ESP and associated EACMS or an incident that disrupted one or more reliability tasks, could trigger the report to be submitted to the E-ISAC and ICS-CERT within a more urgent timeframe, such as within one hour, similar to the current reporting deadline in Reliability Standard CIP-008-5.141 For lower risk incidents, such as the detection of attempts at unauthorized access to the responsible entity's ESP or associated EACMS, an initial reporting timeframe between eight and twenty-four hours would provide an early indication of potential cyber attacks.142 For situations where a responsible entity identifies other suspicious activity associated with an ESP or associated EACMS, a monthly report could, as NERC states, assist in the analysis of trends in activity over time.143

    140 Similar to the Cyber Incident Severity Schema in DHS's National Cyber Incident Response Plan, Annex D (Reporting Incidents to the Federal Government) at 41 (2016), https://www.us-cert.gov/sites/default/files/ncirp/National_Cyber_Incident_Response_Plan.pdf.

    141 An example of incident categories is the Chairman of the Joint Chiefs of Staff Manual, Cyber Incident Handling Program, Enclosure B, Appendix A to Enclosure B (Cyber Incident and Reportable Cyber Event Categorization) (2012), http://www.jcs.mil/Portals/36/Documents/Library/Manuals/m651001.pdf?ver=2016-02-05-175710-897.

    142See Department of Energy Electric Emergency Incident and Disturbance Report, Form OE-417 (six-hour reporting deadline for cyber events that could potentially impact electric power system reliability) found at: https://www.oe.netl.doe.gov/docs/OE417_Form_05312021.pdf; Nuclear Regulatory Commission Regulatory Guide 5.71 (four-hour reporting deadline for cyber events that could have caused an adverse impact) found at: https://www.nrc.gov/docs/ML0903/ML090340159.pdf; see also Reliability Standard EOP-004-3 (Event Reporting), Requirement R2 (requiring a report within twenty-four hours for an events that impact or may impact BES reliability).

    143See NERC Comments at 14.

    90. With regard to the appropriate recipients for Cyber Security Incident reports, we determine that the reports should be provided to E-ISAC, similar to the current reporting scheme under Reliability Standard CIP-008-5, as well as ICS-CERT or its successor. 144 Reporting directly to E-ISAC and ICS-CERT will result in cyber threat information being provided to the organizations best suited to analyze and, to the extent necessary, timely inform responsible entities of cyber threats. In addition, reporting directly to E-ISAC and ICS-CERT addresses the concerns discussed above regarding the confidentiality of reported Cyber Security Incident information. We also find that it is reasonable for NERC to file annually an anonymized report providing an aggregated summary of the reported information, similar to the ICS-CERT annual report. The annual report will provide the Commission, NERC, and the public a better understanding of any Cyber Security Incidents that occurred during the prior year without releasing information on specific responsible entities or Cyber Security Events.

    144 The DHS ICS-CERT is undergoing a reorganization and rebranding effort. In the event that ICS-CERT no longer exists, its successor will assume the role as incident report recipient.

    91. Therefore, we conclude that the minimum set of attributes to be reported should include: (1) The functional impact, where possible, that the Cyber Security Incident achieved or attempted to achieve; (2) the attack vector that was used to achieve or attempted to achieve the Cyber Security Incident; and (3) the level of intrusion that was achieved or attempted or as a result of the Cyber Security Incident. NERC may augment the list should it determine that additional information would benefit situational awareness of cyber threats. As discussed above, we also conclude that NERC should establish a reporting timeline that provides for notice based upon the severity of the event and the risk to BES reliability, with updates to follow initial reports. We also support the adoption of an online reporting tool to streamline reporting and reduce burdens on responsible entities to the extent the option is available.145

    145 An online reporting tool will streamline the effort and allow for direct input into a database for a faster turnaround to those that may need to know about the information. For example, see https://www.us-cert.gov/forms/report.

    E. Other Issues 1. Comments

    92. NYPSC supports the NOPR proposal, but notes that if the Commission adopts the NOPR proposal, “the only additional information that state entities would gain is an annual compilation of incidents reported to federal entities.” 146 NYPSC claims that an annual report would not provide states with sufficient information on a timely basis so that they can ensure that corrective actions can be taken. Therefore, NYPSC argues that appropriate state entities should also be provided with the cyber reporting information when it is filed with the “federal authorities.”

    146 NYPSC Comments at 4-5.

    93. Microsoft raises a concern that the NOPR proposal is not clear as to whether the modified CIP Reliability Standards would apply to responsible entities that use a commercial cloud service to operate cloud-based BES Cyber Systems. Specifically, Microsoft requests that the Commission “confirm that cloud service providers that provide services to Registered Entities are not required to register with NERC based on their provision of [cloud-based] services, and . . . are not responsible for compliance with the CIP Reliability Standards.” 147 Microsoft asserts that clarifying the status of cloud service providers is important to foster technical innovation.

    147 Microsoft Comments at 1.

    2. Commission Determination

    94. While we appreciate NYPSC's interest in receiving Cyber Security Incident reports when reported to E-ISAC and ICS-CERT, state entities will have access to the same information that is reported to the Commission (i.e., the annual, anonymized summary). Should a state entity determine that it requires additional information from a responsible entity under its jurisdiction, the state entity can work within its own jurisdiction to procure additional information. Our directive is intended to enhance the quality of information received by E-ISAC and ICS-CERT, and directing additional sharing with state entities is outside the scope of this proceeding.

    95. We decline to grant Microsoft's requested clarification regarding the potential registration status of cloud service providers because it is outside the scope of this proceeding. Specifically, Microsoft's requested clarification addresses a question regarding registration of cloud service providers under the NERC functional model, as opposed to the specifics of enhanced Cyber Security Incident reporting. The purpose of this proceeding is not to make a determination regarding the registration status of cloud service providers and we have not received input from other interested entities.

    III. Information Collection Statement

    96. The FERC-725 information collection requirements contained in this Final Rule are subject to review by the Office of Management and Budget (OMB) under section 3507(d) of the Paperwork Reduction Act of 1995.148 OMB's regulations require approval of certain information collection requirements imposed by agency rules.149 Upon approval of a collection of information, OMB will assign an OMB control number and expiration date. Respondents subject to the filing requirements of this rule will not be penalized for failing to respond to these collections of information unless the collections of information display a valid OMB control number. The Commission solicits comments on the Commission's need for this information, whether the information will have practical utility, the accuracy of the burden estimates, ways to enhance the quality, utility, and clarity of the information to be collected or retained, and any suggested methods for minimizing respondents' burden, including the use of automated information techniques.

    148 44 U.S.C. 3507(d) (2012).

    149 5 CFR 1320.11 (2017).

    97. The Commission will submit these proposed reporting requirements to OMB for its review and approval under section 3507(d) of the PRA because the Final Rule results in nonsubstantive/non-material changes in paperwork burden. The Final Rule directs NERC to make Cyber Security reporting changes across all applicable Reliability Standards. These proposed changes will be covered by the FERC-725 information collection (Certification of Electric Reliability Organization; Procedures for Electric Reliability Standards) [OMB Control No. 1902-0225]). FERC-725 includes the ERO's overall responsibility for developing Reliability Standards to include any Reliability Standards that relate to Cyber Security Incident reporting. There will be no change to the Public Reporting Burden as it affects the FERC-725 information collection.

    98. Comments are solicited on the Commission's need for the information proposed to be reported, whether the information will have practical utility, ways to enhance the quality, utility, and clarity of the information to be collected, and any suggested methods for minimizing the respondent's burden, including the use of automated information techniques.

    99. Internal review: The Commission has reviewed the approved changes and has determined that the changes are necessary to ensure the reliability and integrity of the Nation's Bulk-Power System.

    100. Interested persons may obtain information on the reporting requirements by contacting the following: Federal Energy Regulatory Commission, 888 First Street NE, Washington, DC 20426 [Attention: Ellen Brown, Office of the Executive Director, email: [email protected], phone: (202) 502-8663, fax: (202) 273-0873].

    101. For submitting comments concerning the collection(s) of information and the associated burden estimate(s), please send your comments to the Commission, and to the Office of Management and Budget, Office of Information and Regulatory Affairs, 725 17th Street NW, Washington, DC 20503 [Attention: Desk Officer for the Federal Energy Regulatory Commission, phone: (202) 395-8528, fax: (202) 395-7285]. For security reasons, comments to OMB should be submitted by email to: [email protected] Comments submitted to OMB should include Docket Number RM18-2-000 and OMB Control Number 1902-0225.

    IV. Regulatory Flexibility Act Analysis

    102. The Regulatory Flexibility Act of 1980 (RFA) 150 generally requires a description and analysis of final rules that will have significant economic impact on a substantial number of small entities.

    150 5 U.S.C. 601-612.

    103. By only proposing to direct NERC, the Commission-certified ERO, to develop modified Reliability Standards for Cyber Security Incident reporting, this Final Rule will not have a significant or substantial impact on entities other than NERC. Therefore, the Commission certifies that this Final Rule will not have a significant economic impact on a substantial number of small entities.

    104. Any Reliability Standards proposed by NERC in compliance with this rulemaking will be considered by the Commission in future proceedings. As part of any future proceedings, the Commission will make determinations pertaining to the Regulatory Flexibility Act based on the content of the Reliability Standards proposed by NERC.

    V. Environmental Analysis

    105. The Commission is required to prepare an Environmental Assessment or an Environmental Impact Statement for any action that may have a significant adverse effect on the human environment.151 The Commission has categorically excluded certain actions from this requirement as not having a significant effect on the human environment. Included in the exclusion are rules that are clarifying, corrective, or procedural or that do not substantially change the effect of the regulations being amended.152 The actions proposed herein to augment current reporting requirements fall within this categorical exclusion in the Commission's regulations.

    151Regulations Implementing the National Environmental Policy Act of 1969, Order No. 486, FERC Stats. & Regs. ¶ 30,783 (1987).

    152 18 CFR 380.4(a)(2)(ii) (2017).

    VI. Document Availability

    106. In addition to publishing the full text of this document in the Federal Register, the Commission provides all interested persons an opportunity to view and/or print the contents of this document via the internet through the Commission's Home Page (http://www.ferc.gov) and in the Commission's Public Reference Room during normal business hours (8:30 a.m. to 5:00 p.m. Eastern time) at 888 First Street NE, Room 2A, Washington, DC 20426.

    107. From the Commission's Home Page on the internet, this information is available on eLibrary. The full text of this document is available on eLibrary in PDF and Microsoft Word format for viewing, printing, and/or downloading. To access this document in eLibrary, type the docket number of this document, excluding the last three digits, in the docket number field. User assistance is available for eLibrary and the Commission's website during normal business hours from the Commission's Online Support at (202) 502-6652 (toll free at 1-866-208-3676) or email at [email protected], or the Public Reference Room at (202) 502-8371, TTY (202) 502-8659. Email the Public Reference Room at [email protected]

    VII. Effective Date and Congressional Notification

    108. The Final Rule is effective October 1, 2018. The Commission has determined that this Final Rule imposes no substantial effect upon either NERC or NERC registered entities 153 and, with the concurrence of the Administrator of the Office of Information and Regulatory Affairs of OMB, that this rule is not a “major rule” as defined in section 351 of the Small Business Regulatory Enforcement Fairness Act of 1996. This Final Rule is being submitted to the Senate, House, and Government Accountability Office.

    153 5 U.S.C 804(3)c.

    By the Commission.

    Issued: July 19, 2018. Nathaniel J. Davis, Sr., Deputy Secretary.
    Note:

    The following appendix will not appear in the Code of Federal Regulations.

    Appendix Commenters Jonathan Appelbaum (Appelbaum) American Public Power Association, Electricity Consumers Resource Council, and Transmission Access Policy Study Group (Trade Associations) Applied Control Solutions (ACS) Arizona Public Service Company (APS) Bonneville Power Administration (BPA) Edison Electric Institute and National Rural Electric Cooperative Association (EEI/NRECA) Douglas E. Ellsworth (Ellsworth) Energy Sector Security Consortium (EnergySec) Eversource Energy Service Company (Eversource) Foundation for Resilient Societies (Resilient Societies) Frank Gaffney (Gaffney) Idaho Power Company (Idaho Power) International Transmission Company (ITC) ISO/RTO Council (IRC) Isologic LLC (Isologic) Jerry Ladd (Ladd) Large Public Power Council (LPPC) Mary D. Lasky (Lasky) Michael Mabee (Mabee) Garland T. McCoy (McCoy) Microsoft Corporation (Microsoft) New York Public Service Commission (NYPSC) North American Electric Reliability Corporation (NERC) NRG Energy (NRG) Fred Reitman (Reitman) Preston L. Schleinkofer (Schleinkofer) Mark S. Simon (Simon) Karen Testerman (Testerman) U.S. Chamber of Commerce (Chamber)
    [FR Doc. 2018-16242 Filed 7-30-18; 8:45 am] BILLING CODE 6717-01-P
    POSTAL REGULATORY COMMISSION 39 CFR Part 3020 [Docket Nos. MC2010-21 and CP2010-36] Update to Product Lists AGENCY:

    Postal Regulatory Commission.

    ACTION:

    Final rule.

    SUMMARY:

    The Commission is updating the product lists. This action reflects a publication policy adopted by Commission order. The referenced policy assumes periodic updates. The updates are identified in the body of this document. The product lists, which are re-published in its entirety, include these updates.

    DATES:

    Effective Date: July 31, 2018. For applicability dates, see SUPPLEMENTARY INFORMATION.

    FOR FURTHER INFORMATION CONTACT:

    David A. Trissell, General Counsel, at 202-789-6800.

    SUPPLEMENTARY INFORMATION:

    Applicability Dates: April 2, 2018, First-Class Package Service Contract 92 (MC2018-133 and CP2018-189); April 3, 2018, Priority Mail Contract 426 (MC2018-134 and CP2018-190); April 17, 2018, Priority Mail & First-Class Package Service Contract 77 (MC2018-136 and CP2018-197); April 17, 2018, Priority Mail Contract 427 (MC2018-139 and CP2018-200); April 17, 2018, Priority Mail Express, Priority Mail & First-Class Package Service Contract 33 (MC2018-137 and CP2018-198); April 17, 2018, Priority Mail Express & Priority Mail Contract 64 (MC2018-138 and CP2018-199); April 18, 2018, Priority Mail Contract 429 (MC2018-141 and CP2018-202); April 18, 2018, Priority Mail Express & First-Class Package Service Contract 3 (MC2018-135 and CP2018-196); April 18, 2018, Priority Mail Contract 428 (MC2018-140 and CP2018-201); April 18, 2018, Priority Mail Contract 430 (MC2018-142 and CP2018-203); April 24, 2018, Priority Mail Contract 431 (MC2018-143 and CP2018-205); April 30, 2018, Priority Mail Contract 432 (MC2018-144 and CP2018-207); May 3, 2018, Priority Mail & First-Class Package Service Contract 78 (MC2018-145 and CP2018-208); May 3, 2018, Priority Mail & First-Class Package Service Contract 79 (MC2018-146 and CP2018-209); May 8, 2018, Priority Mail Express, Priority Mail & First-Class Package Service Contract 34 (MC2018-147 and CP2018-211); May 18, 2018, Priority Mail Express, Priority Mail & First-Class Package Service Contract 35 (MC2018-148 and CP2018-214); May 23, 2018, Priority Mail Express & Priority Mail Contract 65 (MC2018-151 and CP2018-217); May 23, 2018, Priority Mail Express, Priority Mail & First-Class Package Service Contract 36 (MC2018-153 and CP2018-219); May 23, 2018, Priority Mail & First-Class Package Service Contract 80 (MC2018-152 and CP2018-218); May 29, 2018, Priority Mail Express, Priority Mail & First-Class Package Service Contract 37 (MC2018-154 and CP2018-223); May 30, 2018, Priority Mail Contract 433 (MC2018-149 and CP2018-215); May 30, 2018, First-Class Package Service Contract 93 (MC2018-155 and CP2018-224); June 7, 2018, Priority Mail Contract 435 (MC2018-157 and CP2018-226); June 7, 2018, Priority Mail Contract 434 (MC2018-156 and CP2018-225); June 13, 2018, Priority Mail Express Contract 62 (MC2018-158 and CP2018-228); June 13, 2018, Priority Mail Contract 438 (MC2018-161 and CP2018-231); June 13, 2018, Priority Mail Contract 436 (MC2018-159 and CP2018-229); June 13, 2018, Priority Mail Contract 437 (MC2018-160 and CP2018-230); June 19, 2018, Priority Mail Contract 440 (MC2018-163 and CP2018-234); June 19, 2018, Priority Mail Contract 441 (MC2018-164 and CP2018-235); June 19, 2018, Priority Mail Contract 439 (MC2018-162 and CP2018-233); June 20, 2018, Priority Mail Express & Priority Mail Contract 66 (MC2018-165 and CP2018-236); June 20, 2018, Priority Mail Contract 442 (MC2018-166 and CP2018-238); June 21, 2018, Priority Mail Express & Priority Mail Contract 67 (MC2018-167 and CP2018-239); June 21, 2018, Priority Mail Contract 443 (MC2018-168 and CP2018-240); June 21, 2018, Priority Mail Express & Priority Mail Contract 68 (MC2018-169 and CP2018-241); June 21, 2018, Priority Mail Contract 444 (MC2018-170 and CP2018-242); June 21, 2018, Priority Mail Contract 445 (MC2018-171 and CP2018-243); June 22, 2018, Priority Mail Express, Priority Mail & First-Class Package Service Contract 38 (MC2018-172 and CP2018-244); June 22, 2018, First-Class Package Service Contract 94 (MC2018-173 and CP2018-245); June 25, 2018, Priority Mail & First-Class Package Service Contract 81 (MC2018-174 and CP2018-246); June 25, 2018, Priority Mail & First-Class Package Service Contract 82 (MC2018-175 and CP2018-247); June 25, 2018, Priority Mail Contract 447 (MC2018-177 and CP2018-249); June 25, 2018, Priority Mail Contract 446 (MC2018-176 and CP2018-248); June 26, 2018, Parcel Select Contract 31 (MC2018-179 and CP2018-251); June 26, 2018, Priority Mail Contract 448 (MC2018-178 and CP2018-250); June 26, 2018, Priority Mail Express, Priority Mail & First-Class Package Service Contract 39 (MC2018-180 and CP2018-252); June 28, 2018, Priority Mail Express Contract 63 (MC2018-181 and CP2018-255); June 28, 2018, Priority Mail Contract 449 (MC2018-182 and CP2018-256); June 28, 2018, Priority Mail Contract 450 (MC2018-183 and CP2018-257).

    This document identifies updates to the market dominant and the competitive product lists, which appear as 39 CFR Appendix A to Subpart A of Part 3020—Market Dominant Product List and 39 CFR Appendix B to Subpart A of Part 3020—Competitive Product List, respectively. Publication of the updated product lists in the Federal Register is addressed in the Postal Accountability and Enhancement Act (PAEA) of 2006.

    Authorization. The Commission process for periodic publication of updates was established in Docket Nos. MC2010-21 and CP2010-36, Order No. 445, April 22, 2010, at 8.

    Changes. The product lists are being updated by publishing replacements in their entirety of 39 CFR Appendix A to Subpart A of Part 3020—Market Dominant Product List and 39 CFR Appendix B to Subpart A of Part 3020—Competitive Product List. The following products are being added, removed, or moved within the product lists:

    Competitive Product List

    1. First-Class Package Service Contract 92 (MC2018-133 and CP2018-189) (Order No. 4561), added April 2, 2018.

    2. Priority Mail Contract 426 (MC2018-134 and CP2018-190) (Order No. 4564), added April 3, 2018.

    3. Priority Mail & First-Class Package Service Contract 77 (MC2018-136 and CP2018-197) (Order No. 4579), added April 17, 2018.

    4. Priority Mail Contract 427 (MC2018-139 and CP2018-200) (Order No. 4580), added April 17, 2018.

    5. Priority Mail Express, Priority Mail & First-Class Package Service Contract 33 (MC2018-137 and CP2018-198) (Order No. 4581), added April 17, 2018.

    6. Priority Mail Express & Priority Mail Contract 64 (MC2018-138 and CP2018-199) (Order No. 4582), added April 17, 2018.

    7. Priority Mail Contract 429 (MC2018-141 and CP2018-202) (Order No. 4584), added April 18, 2018.

    8. Priority Mail Express & First-Class Package Service Contract 3 (MC2018-135 and CP2018-196) (Order No. 4585), added April 18, 2018.

    9. Priority Mail Contract 428 (MC2018-140 and CP2018-201) (Order No. 4586), added April 18, 2018.

    10. Priority Mail Contract 430 (MC2018-142 and CP2018-203) (Order No. 4587), added April 18, 2018.

    11. Priority Mail Contract 431 (MC2018-143 and CP2018-205) (Order No. 4590), added April 24, 2018.

    12. Priority Mail Contract 432 (MC2018-144 and CP2018-207) (Order No. 4597), added April 30, 2018.

    13. Priority Mail & First-Class Package Service Contract 78 (MC2018-145 and CP2018-208) (Order No. 4600), added May 3, 2018.

    14. Priority Mail & First-Class Package Service Contract 79 (MC2018-146 and CP2018-209) (Order No. 4601), added May 3, 2018.

    15. Priority Mail Express, Priority Mail & First-Class Package Service Contract 34 (MC2018-147 and CP2018-211) (Order No. 4603), added May 8, 2018.

    16. Priority Mail Express, Priority Mail & First-Class Package Service Contract 35 (MC2018-148 and CP2018-214) (Order No. 4609), added May 18, 2018.

    17. Priority Mail Express & Priority Mail Contract 65 (MC2018-151 and CP2018-217) (Order No. 4615), added May 23, 2018.

    18. Priority Mail Express, Priority Mail & First-Class Package Service Contract 36 (MC2018-153 and CP2018-219) (Order No. 4616), added May 23, 2018.

    19. Priority Mail & First-Class Package Service Contract 80 (MC2018-152 and CP2018-218) (Order No. 4617), added May 23, 2018.

    20. Priority Mail Express, Priority Mail & First-Class Package Service Contract 37 (MC2018-154 and CP2018-223) (Order No. 4625), added May 29, 2018.

    21. Priority Mail Contract 433 (MC2018-149 and CP2018-215) (Order No. 4626), added May 30, 2018.

    22. First-Class Package Service Contract 93 (MC2018-155 and CP2018-224) (Order No. 4627), added May 30, 2018.

    23. Priority Mail Contract 435 (MC2018-157 and CP2018-226) (Order No. 4637), added June 7, 2018.

    24. Priority Mail Contract 434 (MC2018-156 and CP2018-225) (Order No. 4638), added June 7, 2018.

    25. Priority Mail Express Contract 62 (MC2018-158 and CP2018-228) (Order No. 4642), added June 13, 2018.

    26. Priority Mail Contract 438 (MC2018-161 and CP2018-231) (Order No. 4643), added June 13, 2018.

    27. Priority Mail Contract 436 (MC2018-159 and CP2018-229) (Order No. 4644), added June 13, 2018.

    28. Priority Mail Contract 437 (MC2018-160 and CP2018-230) (Order No. 4645), added June 13, 2018.

    29. Priority Mail Contract 440 (MC2018-163 and CP2018-234) (Order No. 4650), added June 19, 2018.

    30. Priority Mail Contract 441 (MC2018-164 and CP2018-235) (Order No. 4651), added June 19, 2018.

    31. Priority Mail Contract 439 (MC2018-162 and CP2018-233) (Order No. 4653), added June 19, 2018.

    32. Priority Mail Express & Priority Mail Contract 66 (MC2018-165 and CP2018-236) (Order No. 4656), added June 20, 2018.

    33. Priority Mail Contract 442 (MC2018-166 and CP2018-238) (Order No. 4657), added June 20, 2018.

    34. Priority Mail Express & Priority Mail Contract 67 (MC2018-167 and CP2018-239) (Order No. 4662), added June 21, 2018.

    35. Priority Mail Contract 443 (MC2018-168 and CP2018-240) (Order No. 4663), added June 21, 2018.

    36. Priority Mail Express & Priority Mail Contract 68 (MC2018-169 and CP2018-241) (Order No. 4664), added June 21, 2018.

    37. Priority Mail Contract 444 (MC2018-170 and CP2018-242) (Order No. 4665), added June 21, 2018.

    38. Priority Mail Contract 445 (MC2018-171 and CP2018-243) (Order No. 4666), added June 21, 2018.

    39. Priority Mail Express, Priority Mail & First-Class Package Service Contract 38 (MC2018-172 and CP2018-244) (Order No. 4667), added June 22, 2018.

    40. First-Class Package Service Contract 94 (MC2018-173 and CP2018-245) (Order No. 4668), added June 22, 2018.

    41. Priority Mail & First-Class Package Service Contract 81 (MC2018-174 and CP2018-246) (Order No. 4671), added June 25, 2018.

    42. Priority Mail & First-Class Package Service Contract 82 (MC2018-175 and CP2018-247) (Order No. 4672), added June 25, 2018.

    43. Priority Mail Contract 447 (MC2018-177 and CP2018-249) (Order No. 4673), added June 25, 2018.

    44. Priority Mail Contract 446 (MC2018-176 and CP2018-248) (Order No. 4674), added June 25, 2018.

    45. Parcel Select Contract 31 (MC2018-179 and CP2018-251) (Order No. 4676), added June 26, 2018.

    46. Priority Mail Contract 448 (MC2018-178 and CP2018-250) (Order No. 4677), added June 26, 2018.

    47. Priority Mail Express, Priority Mail & First-Class Package Service Contract 39 (MC2018-180 and CP2018-252) (Order No. 4678), added June 26, 2018.

    48. Priority Mail Express Contract 63 (MC2018-181 and CP2018-255) (Order No. 4686), added June 28, 2018.

    49. Priority Mail Contract 449 (MC2018-182 and CP2018-256) (Order No. 4687), added June 28, 2018.

    50. Priority Mail Contract 450 (MC2018-183 and CP2018-257) (Order No. 4688), added June 28, 2018.

    The following negotiated service agreements have expired, or have been terminated early, and are being deleted from the Competitive Product List:

    1. Priority Mail Express Contract 16 (MC2014-12 and CP2014-16) (Order No. 1941).

    2. Priority Mail Express Contract 23 (MC2015-16 and CP2015-20) (Order No. 2296).

    3. Priority Mail Contract 94 (MC2014-48 and CP2014-84) (Order No. 2209).

    4. Priority Mail Contract 110 (MC2015-29 and CP2015-38) (Order No. 2354).

    5. Priority Mail Contract 119 (MC2015-39 and CP2015-50) (Order No. 2393).

    6. Priority Mail Contract 121 (MC2015-43 and CP2015-54) (Order No. 2428).

    7. Priority Mail Contract 291 (MC2017-85 and CP2017-114) (Order No. 3784).

    8. Parcel Select Contract 18 (MC2017-65 and CP2017-93) (Order No. 3724).

    9. Priority Mail & First-Class Package Service Contract 2 (MC2015-24 and CP2015-32) (Order No. 2347).

    10. Priority Mail & First-Class Package Service Contract 41 (MC2017-48 and CP2017-74) (Order No. 3698).

    The following negotiated service agreements have expired, or have been terminated early, and are being deleted from the Market Dominant Product List:

    1. PHI Acquisitions, Inc. Negotiated Service Agreement (MC2014-21 and R2014-6) (Notice of Termination of Agreement).

    Updated product lists. The referenced changes to the product lists are incorporated into 39 CFR Appendix A to Subpart A of Part 3020—Market Dominant Product List and 39 CFR Appendix B to Subpart A of Part 3020—Competitive Product List.

    List of Subjects in 39 CFR Part 3020

    Administrative practice and procedure, Postal Service.

    For the reasons discussed in the preamble, the Postal Regulatory Commission amends chapter III of title 39 of the Code of Federal Regulations as follows:

    PART 3020—PRODUCT LISTS 1. The authority citation for part 3020 continues to read as follows: Authority:

    39 U.S.C. 503; 3622; 3631; 3642; 3682.

    2. Revise Appendix A to Subpart A of Part 3020 and Appendix B to Subpart A of Part 3020 to read as follows: Appendix A to Subpart A of Part 3020—Market Dominant Product List

    (An asterisk (*) indicates an organizational class or group, not a Postal Service product.)

    Part A—Market Dominant Products 1000 Market Dominant Product List First-Class Mail * Single-Piece Letters/Postcards Presorted Letters/Postcards Flats Outbound Single-Piece First-Class Mail International Inbound Letter Post USPS Marketing Mail (Commercial and Nonprofit) * High Density and Saturation Letters High Density and Saturation Flats/Parcels Carrier Route Letters Flats Parcels Every Door Direct Mail—Retail Periodicals * In-County Periodicals Outside County Periodicals Package Services * Alaska Bypass Service Bound Printed Matter Flats Bound Printed Matter Parcels Media Mail/Library Mail Special Services * Ancillary Services International Ancillary Services Address Management Services Caller Service Credit Card Authentication International Reply Coupon Service International Business Reply Mail Service Money Orders Post Office Box Service Customized Postage Stamp Fulfillment Services Negotiated Service Agreements * Domestic * International * Inbound Market Dominant Multi-Service Agreements with Foreign Postal Operators 1 Inbound Market Dominant Exprés Service Agreement 1 Inbound Market Dominant Registered Service Agreement 1 Inbound Market Dominant PRIME Tracked Service Agreement Nonpostal Services * Alliances with the Private Sector to Defray Cost of Key Postal Functions Philatelic Sales Market Tests *
    Appendix B to Subpart A of Part 3020—Competitive Product List

    (An asterisk (*) indicates an organizational class or group, not a Postal Service product.)

    Part B—Competitive Products 2000 Competitive Product List Domestic Products * Priority Mail Express Priority Mail Parcel Select Parcel Return Service First-Class Package Service USPS Retail Ground International Products * Outbound International Expedited Services Inbound Parcel Post (at UPU rates) Outbound Priority Mail International International Priority Airmail (IPA) International Surface Air List (ISAL) International Direct Sacks—M-Bags Outbound Single-Piece First-Class Package International Service Negotiated Service Agreements * Domestic * Priority Mail Express Contract 26 Priority Mail Express Contract 27 Priority Mail Express Contract 28 Priority Mail Express Contract 29 Priority Mail Express Contract 30 Priority Mail Express Contract 31 Priority Mail Express Contract 32 Priority Mail Express Contract 34 Priority Mail Express Contract 35 Priority Mail Express Contract 36 Priority Mail Express Contract 37 Priority Mail Express Contract 38 Priority Mail Express Contract 39 Priority Mail Express Contract 40 Priority Mail Express Contract 41 Priority Mail Express Contract 42 Priority Mail Express Contract 43 Priority Mail Express Contract 44 Priority Mail Express Contract 45 Priority Mail Express Contract 46 Priority Mail Express Contract 47 Priority Mail Express Contract 48 Priority Mail Express Contract 49 Priority Mail Express Contract 50 Priority Mail Express Contract 51 Priority Mail Express Contract 52 Priority Mail Express Contract 53 Priority Mail Express Contract 54 Priority Mail Express Contract 55 Priority Mail Express Contract 56 Priority Mail Express Contract 57 Priority Mail Express Contract 58 Priority Mail Express Contract 59 Priority Mail Express Contract 60 Priority Mail Express Contract 61 Priority Mail Express Contract 62 Priority Mail Express Contract 63 Parcel Return Service Contract 5 Parcel Return Service Contract 6 Parcel Return Service Contract 7 Parcel Return Service Contract 8 Parcel Return Service Contract 9 Parcel Return Service Contract 10 Priority Mail Contract 77 Priority Mail Contract 78 Priority Mail Contract 80 Priority Mail Contract 111 Priority Mail Contract 123 Priority Mail Contract 125 Priority Mail Contract 126 Priority Mail Contract 127 Priority Mail Contract 130 Priority Mail Contract 131 Priority Mail Contract 132 Priority Mail Contract 133 Priority Mail Contract 134 Priority Mail Contract 136 Priority Mail Contract 137 Priority Mail Contract 138 Priority Mail Contract 140 Priority Mail Contract 141 Priority Mail Contract 144 Priority Mail Contract 145 Priority Mail Contract 146 Priority Mail Contract 148 Priority Mail Contract 149 Priority Mail Contract 150 Priority Mail Contract 153 Priority Mail Contract 154 Priority Mail Contract 155 Priority Mail Contract 156 Priority Mail Contract 157 Priority Mail Contract 158 Priority Mail Contract 159 Priority Mail Contract 160 Priority Mail Contract 161 Priority Mail Contract 163 Priority Mail Contract 164 Priority Mail Contract 166 Priority Mail Contract 167 Priority Mail Contract 168 Priority Mail Contract 169 Priority Mail Contract 170 Priority Mail Contract 171 Priority Mail Contract 172 Priority Mail Contract 174 Priority Mail Contract 175 Priority Mail Contract 176 Priority Mail Contract 177 Priority Mail Contract 178 Priority Mail Contract 179 Priority Mail Contract 180 Priority Mail Contract 181 Priority Mail Contract 185 Priority Mail Contract 186 Priority Mail Contract 188 Priority Mail Contract 189 Priority Mail Contract 190 Priority Mail Contract 191 Priority Mail Contract 192 Priority Mail Contract 193 Priority Mail Contract 194 Priority Mail Contract 195 Priority Mail Contract 196 Priority Mail Contract 197 Priority Mail Contract 198 Priority Mail Contract 199 Priority Mail Contract 200 Priority Mail Contract 201 Priority Mail Contract 202 Priority Mail Contract 203 Priority Mail Contract 204 Priority Mail Contract 205 Priority Mail Contract 206 Priority Mail Contract 207 Priority Mail Contract 208 Priority Mail Contract 209 Priority Mail Contract 210 Priority Mail Contract 211 Priority Mail Contract 212 Priority Mail Contract 213 Priority Mail Contract 215 Priority Mail Contract 216 Priority Mail Contract 217 Priority Mail Contract 218 Priority Mail Contract 219 Priority Mail Contract 220 Priority Mail Contract 221 Priority Mail Contract 222 Priority Mail Contract 223 Priority Mail Contract 224 Priority Mail Contract 225 Priority Mail Contract 226 Priority Mail Contract 227 Priority Mail Contract 229 Priority Mail Contract 230 Priority Mail Contract 231 Priority Mail Contract 232 Priority Mail Contract 233 Priority Mail Contract 234 Priority Mail Contract 235 Priority Mail Contract 236 Priority Mail Contract 237 Priority Mail Contract 238 Priority Mail Contract 239 Priority Mail Contract 240 Priority Mail Contract 242 Priority Mail Contract 243 Priority Mail Contract 244 Priority Mail Contract 245 Priority Mail Contract 246 Priority Mail Contract 247 Priority Mail Contract 248 Priority Mail Contract 249 Priority Mail Contract 250 Priority Mail Contract 251 Priority Mail Contract 252 Priority Mail Contract 253 Priority Mail Contract 254 Priority Mail Contract 255 Priority Mail Contract 256 Priority Mail Contract 257 Priority Mail Contract 258 Priority Mail Contract 259 Priority Mail Contract 260 Priority Mail Contract 261 Priority Mail Contract 262 Priority Mail Contract 263 Priority Mail Contract 264 Priority Mail Contract 265 Priority Mail Contract 266 Priority Mail Contract 267 Priority Mail Contract 268 Priority Mail Contract 269 Priority Mail Contract 270 Priority Mail Contract 271 Priority Mail Contract 272 Priority Mail Contract 273 Priority Mail Contract 274 Priority Mail Contract 275 Priority Mail Contract 276 Priority Mail Contract 277 Priority Mail Contract 278 Priority Mail Contract 279 Priority Mail Contract 280 Priority Mail Contract 281 Priority Mail Contract 282 Priority Mail Contract 283 Priority Mail Contract 284 Priority Mail Contract 285 Priority Mail Contract 286 Priority Mail Contract 287 Priority Mail Contract 288 Priority Mail Contract 289 Priority Mail Contract 290 Priority Mail Contract 292 Priority Mail Contract 293 Priority Mail Contract 294 Priority Mail Contract 295 Priority Mail Contract 297 Priority Mail Contract 298 Priority Mail Contract 299 Priority Mail Contract 300 Priority Mail Contract 301 Priority Mail Contract 302 Priority Mail Contract 303 Priority Mail Contract 304 Priority Mail Contract 305 Priority Mail Contract 306 Priority Mail Contract 307 Priority Mail Contract 308 Priority Mail Contract 309 Priority Mail Contract 310 Priority Mail Contract 311 Priority Mail Contract 312 Priority Mail Contract 313 Priority Mail Contract 314 Priority Mail Contract 315 Priority Mail Contract 316 Priority Mail Contract 317 Priority Mail Contract 318 Priority Mail Contract 319 Priority Mail Contract 320 Priority Mail Contract 321 Priority Mail Contract 322 Priority Mail Contract 323 Priority Mail Contract 324 Priority Mail Contract 325 Priority Mail Contract 326 Priority Mail Contract 327 Priority Mail Contract 328 Priority Mail Contract 329 Priority Mail Contract 330 Priority Mail Contract 331 Priority Mail Contract 332 Priority Mail Contract 333 Priority Mail Contract 334 Priority Mail Contract 335 Priority Mail Contract 336 Priority Mail Contract 337 Priority Mail Contract 338 Priority Mail Contract 339 Priority Mail Contract 340 Priority Mail Contract 341 Priority Mail Contract 342 Priority Mail Contract 343 Priority Mail Contract 344 Priority Mail Contract 345 Priority Mail Contract 346 Priority Mail Contract 347 Priority Mail Contract 348 Priority Mail Contract 349 Priority Mail Contract 350 Priority Mail Contract 351 Priority Mail Contract 352 Priority Mail Contract 353 Priority Mail Contract 354 Priority Mail Contract 355 Priority Mail Contract 356 Priority Mail Contract 357 Priority Mail Contract 358 Priority Mail Contract 359 Priority Mail Contract 360 Priority Mail Contract 361 Priority Mail Contract 362 Priority Mail Contract 363 Priority Mail Contract 364 Priority Mail Contract 365 Priority Mail Contract 367 Priority Mail Contract 368 Priority Mail Contract 369 Priority Mail Contract 370 Priority Mail Contract 371 Priority Mail Contract 372 Priority Mail Contract 373 Priority Mail Contract 374 Priority Mail Contract 375 Priority Mail Contract 376 Priority Mail Contract 377 Priority Mail Contract 378 Priority Mail Contract 379 Priority Mail Contract 380 Priority Mail Contract 381 Priority Mail Contract 382 Priority Mail Contract 383 Priority Mail Contract 384 Priority Mail Contract 385 Priority Mail Contract 386 Priority Mail Contract 387 Priority Mail Contract 388 Priority Mail Contract 389 Priority Mail Contract 390 Priority Mail Contract 391 Priority Mail Contract 392 Priority Mail Contract 393 Priority Mail Contract 394 Priority Mail Contract 395 Priority Mail Contract 396 Priority Mail Contract 397 Priority Mail Contract 398 Priority Mail Contract 399 Priority Mail Contract 400 Priority Mail Contract 401 Priority Mail Contract 402 Priority Mail Contract 403 Priority Mail Contract 404 Priority Mail Contract 405 Priority Mail Contract 406 Priority Mail Contract 407 Priority Mail Contract 408 Priority Mail Contract 409 Priority Mail Contract 410 Priority Mail Contract 411 Priority Mail Contract 412 Priority Mail Contract 413 Priority Mail Contract 414 Priority Mail Contract 415 Priority Mail Contract 416 Priority Mail Contract 417 Priority Mail Contract 418 Priority Mail Contract 419 Priority Mail Contract 420 Priority Mail Contract 421 Priority Mail Contract 422 Priority Mail Contract 423 Priority Mail Contract 424 Priority Mail Contract 425 Priority Mail Contract 426 Priority Mail Contract 427 Priority Mail Contract 428 Priority Mail Contract 429 Priority Mail Contract 430 Priority Mail Contract 431 Priority Mail Contract 432 Priority Mail Contract 433 Priority Mail Contract 434 Priority Mail Contract 435 Priority Mail Contract 436 Priority Mail Contract 437 Priority Mail Contract 438 Priority Mail Contract 439 Priority Mail Contract 440 Priority Mail Contract 441 Priority Mail Contract 442 Priority Mail Contract 443 Priority Mail Contract 444 Priority Mail Contract 445 Priority Mail Contract 446 Priority Mail Contract 447 Priority Mail Contract 448 Priority Mail Contract 449 Priority Mail Contract 450 Priority Mail Express & Priority Mail Contract 12 Priority Mail Express & Priority Mail Contract 13 Priority Mail Express & Priority Mail Contract 17 Priority Mail Express & Priority Mail Contract 18 Priority Mail Express & Priority Mail Contract 19 Priority Mail Express & Priority Mail Contract 20 Priority Mail Express & Priority Mail Contract 21 Priority Mail Express & Priority Mail Contract 22 Priority Mail Express & Priority Mail Contract 23 Priority Mail Express & Priority Mail Contract 24 Priority Mail Express & Priority Mail Contract 25 Priority Mail Express & Priority Mail Contract 27 Priority Mail Express & Priority Mail Contract 28 Priority Mail Express & Priority Mail Contract 29 Priority Mail Express & Priority Mail Contract 30 Priority Mail Express & Priority Mail Contract 31 Priority Mail Express & Priority Mail Contract 32 Priority Mail Express & Priority Mail Contract 33 Priority Mail Express & Priority Mail Contract 34 Priority Mail Express & Priority Mail Contract 35 Priority Mail Express & Priority Mail Contract 36 Priority Mail Express & Priority Mail Contract 37 Priority Mail Express & Priority Mail Contract 38 Priority Mail Express & Priority Mail Contract 39 Priority Mail Express & Priority Mail Contract 41 Priority Mail Express & Priority Mail Contract 42 Priority Mail Express & Priority Mail Contract 43 Priority Mail Express & Priority Mail Contract 44 Priority Mail Express & Priority Mail Contract 45 Priority Mail Express & Priority Mail Contract 46 Priority Mail Express & Priority Mail Contract 47 Priority Mail Express & Priority Mail Contract 48 Priority Mail Express & Priority Mail Contract 49 Priority Mail Express & Priority Mail Contract 50 Priority Mail Express & Priority Mail Contract 51 Priority Mail Express & Priority Mail Contract 52 Priority Mail Express & Priority Mail Contract 53 Priority Mail Express & Priority Mail Contract 54 Priority Mail Express & Priority Mail Contract 55 Priority Mail Express & Priority Mail Contract 56 Priority Mail Express & Priority Mail Contract 57 Priority Mail Express & Priority Mail Contract 58 Priority Mail Express & Priority Mail Contract 59 Priority Mail Express & Priority Mail Contract 60 Priority Mail Express & Priority Mail Contract 61 Priority Mail Express & Priority Mail Contract 62 Priority Mail Express & Priority Mail Contract 63 Priority Mail Express & Priority Mail Contract 64 Priority Mail Express & Priority Mail Contract 65 Priority Mail Express & Priority Mail Contract 66 Priority Mail Express & Priority Mail Contract 67 Priority Mail Express & Priority Mail Contract 68 Parcel Select & Parcel Return Service Contract 3 Parcel Select & Parcel Return Service Contract 5 Parcel Select & Parcel Return Service Contract 6 Parcel Select Contract 2 Parcel Select Contract 8 Parcel Select Contract 9 Parcel Select Contract 10 Parcel Select Contract 11 Parcel Select Contract 12 Parcel Select Contract 13 Parcel Select Contract 14 Parcel Select Contract 15 Parcel Select Contract 16 Parcel Select Contract 17 Parcel Select Contract 19 Parcel Select Contract 20 Parcel Select Contract 21 Parcel Select Contract 22 Parcel Select Contract 23 Parcel Select Contract 24 Parcel Select Contract 25 Parcel Select Contract 26 Parcel Select Contract 27 Parcel Select Contract 28 Parcel Select Contract 29 Parcel Select Contract 30 Parcel Select Contract 31 Priority Mail—Non-Published Rates Priority Mail—Non-Published Rates 1 First-Class Package Service Contract 38 First-Class Package Service Contract 39 First-Class Package Service Contract 40 First-Class Package Service Contract 41 First-Class Package Service Contract 42 First-Class Package Service Contract 43 First-Class Package Service Contract 44 First-Class Package Service Contract 45 First-Class Package Service Contract 46 First-Class Package Service Contract 47 First-Class Package Service Contract 48 First-Class Package Service Contract 49 First-Class Package Service Contract 50 First-Class Package Service Contract 51 First-Class Package Service Contract 52 First-Class Package Service Contract 53 First-Class Package Service Contract 54 First-Class Package Service Contract 55 First-Class Package Service Contract 57 First-Class Package Service Contract 59 First-Class Package Service Contract 60 First-Class Package Service Contract 61 First-Class Package Service Contract 62 First-Class Package Service Contract 63 First-Class Package Service Contract 64 First-Class Package Service Contract 65 First-Class Package Service Contract 66 First-Class Package Service Contract 67 First-Class Package Service Contract 68 First-Class Package Service Contract 69 First-Class Package Service Contract 71 First-Class Package Service Contract 72 First-Class Package Service Contract 73 First-Class Package Service Contract 74 First-Class Package Service Contract 75 First-Class Package Service Contract 76 First-Class Package Service Contract 77 First-Class Package Service Contract 78 First-Class Package Service Contract 79 First-Class Package Service Contract 80 First-Class Package Service Contract 81 First-Class Package Service Contract 82 First-Class Package Service Contract 83 First-Class Package Service Contract 84 First-Class Package Service Contract 85 First-Class Package Service Contract 86 First-Class Package Service Contract 87 First-Class Package Service Contract 88 First-Class Package Service Contract 89 First-Class Package Service Contract 90 First-Class Package Service Contract 91 First-Class Package Service Contract 92 First-Class Package Service Contract 93 First-Class Package Service Contract 94 Priority Mail Express, Priority Mail & First-Class Package Service Contract 5 Priority Mail Express, Priority Mail & First-Class Package Service Contract 6 Priority Mail Express, Priority Mail & First-Class Package Service Contract 7 Priority Mail Express, Priority Mail & First-Class Package Service Contract 8 Priority Mail Express, Priority Mail & First-Class Package Service Contract 9 Priority Mail Express, Priority Mail & First-Class Package Service Contract 10 Priority Mail Express, Priority Mail & First-Class Package Service Contract 11 Priority Mail Express, Priority Mail & First-Class Package Service Contract 12 Priority Mail Express, Priority Mail & First-Class Package Service Contract 13 Priority Mail Express, Priority Mail & First-Class Package Service Contract 14 Priority Mail Express, Priority Mail & First-Class Package Service Contract 15 Priority Mail Express, Priority Mail & First-Class Package Service Contract 16 Priority Mail Express, Priority Mail & First-Class Package Service Contract 17 Priority Mail Express, Priority Mail & First-Class Package Service Contract 18 Priority Mail Express, Priority Mail & First-Class Package Service Contract 19 Priority Mail Express, Priority Mail & First-Class Package Service Contract 20 Priority Mail Express, Priority Mail & First-Class Package Service Contract 21 Priority Mail Express, Priority Mail & First-Class Package Service Contract 22 Priority Mail Express, Priority Mail & First-Class Package Service Contract 23 Priority Mail Express, Priority Mail & First-Class Package Service Contract 24 Priority Mail Express, Priority Mail & First-Class Package Service Contract 25 Priority Mail Express, Priority Mail & First-Class Package Service Contract 26 Priority Mail Express, Priority Mail & First-Class Package Service Contract 27 Priority Mail Express, Priority Mail & First-Class Package Service Contract 28 Priority Mail Express, Priority Mail & First-Class Package Service Contract 29 Priority Mail Express, Priority Mail & First-Class Package Service Contract 30 Priority Mail Express, Priority Mail & First-Class Package Service Contract 31 Priority Mail Express, Priority Mail & First-Class Package Service Contract 32 Priority Mail Express, Priority Mail & First-Class Package Service Contract 33 Priority Mail Express, Priority Mail & First-Class Package Service Contract 34 Priority Mail Express, Priority Mail & First-Class Package Service Contract 35 Priority Mail Express, Priority Mail & First-Class Package Service Contract 36 Priority Mail Express, Priority Mail & First-Class Package Service Contract 37 Priority Mail Express, Priority Mail & First-Class Package Service Contract 38 Priority Mail Express, Priority Mail & First-Class Package Service Contract 39 Priority Mail & First-Class Package Service Contract 4 Priority Mail & First-Class Package Service Contract 6 Priority Mail & First-Class Package Service Contract 7 Priority Mail & First-Class Package Service Contract 8 Priority Mail & First-Class Package Service Contract 9 Priority Mail & First-Class Package Service Contract 10 Priority Mail & First-Class Package Service Contract 11 Priority Mail & First-Class Package Service Contract 13 Priority Mail & First-Class Package Service Contract 15 Priority Mail & First-Class Package Service Contract 16 Priority Mail & First-Class Package Service Contract 17 Priority Mail & First-Class Package Service Contract 18 Priority Mail & First-Class Package Service Contract 19 Priority Mail & First-Class Package Service Contract 20 Priority Mail & First-Class Package Service Contract 21 Priority Mail & First-Class Package Service Contract 22 Priority Mail & First-Class Package Service Contract 23 Priority Mail & First-Class Package Service Contract 24 Priority Mail & First-Class Package Service Contract 25 Priority Mail & First-Class Package Service Contract 26 Priority Mail & First-Class Package Service Contract 27 Priority Mail & First-Class Package Service Contract 28 Priority Mail & First-Class Package Service Contract 29 Priority Mail & First-Class Package Service Contract 30 Priority Mail & First-Class Package Service Contract 31 Priority Mail & First-Class Package Service Contract 32 Priority Mail & First-Class Package Service Contract 33 Priority Mail & First-Class Package Service Contract 34 Priority Mail & First-Class Package Service Contract 35 Priority Mail & First-Class Package Service Contract 36 Priority Mail & First-Class Package Service Contract 37 Priority Mail & First-Class Package Service Contract 38 Priority Mail & First-Class Package Service Contract 39 Priority Mail & First-Class Package Service Contract 40 Priority Mail & First-Class Package Service Contract 42 Priority Mail & First-Class Package Service Contract 43 Priority Mail & First-Class Package Service Contract 44 Priority Mail & First-Class Package Service Contract 45 Priority Mail & First-Class Package Service Contract 46 Priority Mail & First-Class Package Service Contract 47 Priority Mail & First-Class Package Service Contract 48 Priority Mail & First-Class Package Service Contract 49 Priority Mail & First-Class Package Service Contract 50 Priority Mail & First-Class Package Service Contract 51 Priority Mail & First-Class Package Service Contract 52 Priority Mail & First-Class Package Service Contract 53 Priority Mail & First-Class Package Service Contract 54 Priority Mail & First-Class Package Service Contract 55 Priority Mail & First-Class Package Service Contract 56 Priority Mail & First-Class Package Service Contract 57 Priority Mail & First-Class Package Service Contract 58 Priority Mail & First-Class Package Service Contract 59 Priority Mail & First-Class Package Service Contract 60 Priority Mail & First-Class Package Service Contract 61 Priority Mail & First-Class Package Service Contract 62 Priority Mail & First-Class Package Service Contract 63 Priority Mail & First-Class Package Service Contract 64 Priority Mail & First-Class Package Service Contract 65 Priority Mail & First-Class Package Service Contract 66 Priority Mail & First-Class Package Service Contract 67 Priority Mail & First-Class Package Service Contract 68 Priority Mail & First-Class Package Service Contract 69 Priority Mail & First-Class Package Service Contract 70 Priority Mail & First-Class Package Service Contract 71 Priority Mail & First-Class Package Service Contract 72 Priority Mail & First-Class Package Service Contract 73 Priority Mail & First-Class Package Service Contract 74 Priority Mail & First-Class Package Service Contract 75 Priority Mail & First-Class Package Service Contract 76 Priority Mail & First-Class Package Service Contract 77 Priority Mail & First-Class Package Service Contract 78 Priority Mail & First-Class Package Service Contract 79 Priority Mail & First-Class Package Service Contract 80 Priority Mail & First-Class Package Service Contract 81 Priority Mail & First-Class Package Service Contract 82 Priority Mail & Parcel Select Contract 1 Priority Mail & Parcel Select Contract 2 Priority Mail Express & First-Class Package Service Contract 1 Priority Mail Express & First-Class Package Service Contract 2 Priority Mail Express & First-Class Package Service Contract 3 Outbound International * Global Expedited Package Services (GEPS) Contracts GEPS 3 GEPS 5 GEPS 6 GEPS 7 GEPS 8 GEPS 9 Global Bulk Economy (GBE) Contracts Global Plus Contracts Global Plus 1C Global Plus 1D Global Plus 1E Global Plus 2C Global Plus 3 Global Reseller Expedited Package Contracts Global Reseller Expedited Package Services 1 Global Reseller Expedited Package Services 2 Global Reseller Expedited Package Services 3 Global Reseller Expedited Package Services 4 Global Expedited Package Services (GEPS)—Non-Published Rates Global Expedited Package Services (GEPS)—Non-Published Rates 2 Global Expedited Package Services (GEPS)—Non-Published Rates 3 Global Expedited Package Services (GEPS)—Non-Published Rates 4 Global Expedited Package Services (GEPS)—Non-Published Rates 5 Global Expedited Package Services (GEPS)—Non-Published Rates 6 Global Expedited Package Services (GEPS)—Non-Published Rates 7 Global Expedited Package Services (GEPS)—Non-Published Rates 8 Global Expedited Package Services (GEPS)—Non-Published Rates 9 Global Expedited Package Services (GEPS)—Non-Published Rates 10 Global Expedited Package Services (GEPS)—Non-Published Rates 11 Global Expedited Package Services (GEPS)—Non-Published Rates 12 Global Expedited Package Services (GEPS)—Non-Published Rates 13 Priority Mail International Regional Rate Boxes—Non-Published Rates Outbound Competitive International Merchandise Return Service Agreement with Royal Mail Group, Ltd. Priority Mail International Regional Rate Boxes Contracts Priority Mail International Regional Rate Boxes Contracts 1 Competitive International Merchandise Return Service Agreements with Foreign Postal Operators 1 Competitive International Merchandise Return Service Agreements with Foreign Postal Operators 1 Competitive International Merchandise Return Service Agreements with Foreign Postal Operators 2 Alternative Delivery Provider (ADP) Contracts ADP 1 Alternative Delivery Provider Reseller (ADPR) Contracts ADPR 1 Inbound International * International Business Reply Service (IBRS) Competitive Contracts International Business Reply Service Competitive Contract 1 International Business Reply Service Competitive Contract 3 Inbound Direct Entry Contracts with Customers Inbound Direct Entry Contracts with Foreign Postal Administrations Inbound Direct Entry Contracts with Foreign Postal Administrations Inbound Direct Entry Contracts with Foreign Postal Administrations 1 Inbound EMS Inbound EMS 2 Inbound Air Parcel Post (at non-UPU rates) Royal Mail Group Inbound Air Parcel Post Agreement Inbound Competitive Multi-Service Agreements with Foreign Postal Operators Inbound Competitive Multi-Service Agreements with Foreign Postal Operators 1 Special Services * Address Enhancement Services Greeting Cards, Gift Cards, and Stationery International Ancillary Services International Money Transfer Service—Outbound International Money Transfer Service—Inbound Premium Forwarding Service Shipping and Mailing Supplies Post Office Box Service Competitive Ancillary Services Nonpostal Services * Advertising Licensing of Intellectual Property other than Officially Licensed Retail Products (OLRP) Mail Service Promotion Officially Licensed Retail Products (OLRP) Passport Photo Service Photocopying Service Rental, Leasing, Licensing or other Non-Sale Disposition of Tangible Property Training Facilities and Related Services USPS Electronic Postmark (EPM) Program Market Tests * Customized Delivery Global eCommerce Marketplace (GeM)
    Ruth Ann Abrams, Acting Secretary.
    [FR Doc. 2018-16267 Filed 7-30-18; 8:45 am] BILLING CODE 7710-FW-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2016-0603; FRL-9981-45—Region 5] Air Plan Approval; Minnesota; PSD Infrastructure SIP Requirements AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving elements of a state implementation plan (SIP) submission from Minnesota regarding the infrastructure requirements of section 110 of the Clean Air Act (CAA) relating to Prevention of Significant Deterioration (PSD) for the 1997 ozone, 1997 fine particulate (PM2.5), 2006 PM2.5, 2008 lead (Pb), 2008 ozone, 2010 nitrogen dioxide (NO2), 2010 sulfur dioxide (SO2), and 2012 PM2.5 National Ambient Air Quality Standards (NAAQS). The Minnesota Pollution Control Agency (MPCA) submitted the SIP revision to EPA on October 4, 2016.

    DATES:

    This final rule is effective on August 30, 2018.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2016-0603. All documents in the docket are listed on the www.regulations.gov website. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available either through www.regulations.gov or at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Eric Svingen, Environmental Engineer, at (312) 353-4489 before visiting the Region 5 office.

    FOR FURTHER INFORMATION CONTACT:

    Eric Svingen, Environmental Engineer, Attainment Planning and Maintenance Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 353-4489, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    I. What is the background of this SIP submission? II. What guidance is EPA using to evaluate this SIP submission? III. What is the result of EPA's review of this SIP submission? IV. What action is EPA taking? V. Statutory and Executive Order Reviews I. What is the background of this SIP submission?

    This rulemaking approves a SIP submission from MPCA dated October 4, 2016, which addresses infrastructure requirements relating to PSD for the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

    The requirement for states to make infrastructure SIP submissions arises out of CAA section 110(a)(1). Pursuant to CAA section 110(a)(1), states must make SIP submissions “within 3 years (or such shorter period as the Administrator may prescribe) after the promulgation of a national primary ambient air quality standard (or any revision thereof),” and these SIP submissions are to provide for the “implementation, maintenance, and enforcement” of such NAAQS. The statute directly imposes on states the duty to make these SIP submissions, and the requirement to make the submissions is not conditioned upon EPA's taking any action other than promulgating a new or revised NAAQS. CAA section 110(a)(2) includes a list of specific elements that “[e]ach such plan” submission must address.

    EPA has historically referred to these SIP submissions made for the purpose of satisfying the requirements of CAA section 110(a)(1) and (2) as “infrastructure SIP” submissions. Although the term “infrastructure SIP” does not appear in the CAA, EPA uses the term to distinguish this particular type of SIP submission from submissions that are intended to satisfy other SIP requirements under the CAA. This specific rulemaking is only taking action on the infrastructure SIP elements relating to PSD, provided at CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J).

    In previous rulemakings, EPA addressed Minnesota's infrastructure obligations under the various NAAQS. On July 13, 2011 (76 FR 41075), EPA approved most elements of Minnesota's infrastructure SIP submittal for the 1997 ozone and 1997 PM2.5 NAAQS. On October 29, 2012 (77 FR 65478), EPA approved most elements of Minnesota's infrastructure SIP submittal for the 2006 PM2.5 NAAQS. On July 16, 2014 (79 FR 41439), EPA approved most elements of Minnesota's infrastructure SIP submittal for the 2008 Pb NAAQS. Finally, on October 20, 2015 (80 FR 63436), EPA approved most elements of Minnesota's infrastructure SIP submittal for the 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS. However, because Minnesota did not have an approved PSD program at the time of these rulemakings, EPA generally disapproved infrastructure SIP elements relating to PSD in the rulemakings.1

    1 States may develop and implement their own PSD programs, which are evaluated against EPA's requirements for each component. States may alternatively decline to develop their own program, but instead directly implement Federal PSD rules. At the time of the infrastructure rulemakings referenced above, Minnesota had chosen to implement the federally promulgated PSD rules at 40 CFR 52.21, and EPA had delegated to Minnesota the authority to implement these regulations. The federally promulgated rules satisfied all infrastructure requirements relating to PSD. However, as a delegated program, these infrastructure elements were not approved into the Minnesota SIP.

    MPCA's submission dated October 4, 2016, requested that EPA approve into its SIP Minnesota Rule 7007.3000, which incorporates by reference the Federal PSD rules at 40 CFR 52.21. On July 10, 2017 (82 FR 31741), EPA proposed to approve this request, and on September 26, 2017 (82 FR 44734), EPA finalized approval; the change became effective on October 26, 2017. Therefore, Minnesota is now implementing its own SIP-approved PSD program.

    In this rulemaking, as requested by Minnesota, EPA is finding that Minnesota has satisfied all infrastructure SIP elements relating to PSD, at CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J), for the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS.

    II. What guidance is EPA using to evaluate this SIP submission?

    EPA's guidance relating to infrastructure SIP submissions can be found in a guidance document entitled “Guidance on SIP Elements Required Under Sections 110(a)(1) and (2) for the 1997 8-hour Ozone and PM2.5  2 National Ambient Air Quality Standards” (2007 Guidance).3 Further guidance is provided in a September 13, 2013, document entitled “Guidance on Infrastructure State Implementation Plan (SIP) Elements under CAA Sections 110(a)(1) and (2)” (2013 Guidance).4

    2 PM2.5 refers to particles with an aerodynamic diameter of less than or equal to 2.5 micrometers, oftentimes referred to as “fine” particles.

    3https://www3.epa.gov/ttn/naaqs/aqmguide/collection/cp2/20071002_harnett_110(a)_sip_guidance.pdf.

    4https://www3.epa.gov/airquality/urbanair/sipstatus/docs/Guidance_on_Infrastructure_SIP_Elements_Multipollutant_FINAL_Sept_2013.pdf.

    III. What is the result of EPA's review of this SIP submission?

    Pursuant to CAA section 110(a), states must provide reasonable notice and opportunity for public hearing for all infrastructure SIP submissions. MPCA commenced a public comment period on June 20, 2016, and closed the public comment period on July 20, 2016. Minnesota received three comments, and provided a response to comments in its submittal.

    Minnesota provided a synopsis of how its SIP meets each of the applicable requirements in CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J) for the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS, as applicable.

    On May 17, 2018 (83 FR 22913), EPA published a proposed rule that would approve this submission into Minnesota's SIP. This proposed rule contained a detailed evaluation of how Minnesota's submission satisfies certain requirements under CAA section 110. Two comments were received; neither is relevant to this rulemaking. Therefore, EPA is finalizing this rule as proposed.

    IV. What action is EPA taking?

    EPA is approving the submission from Minnesota certifying that its current SIP is sufficient to meet the infrastructure SIP requirements relating to PSD, at CAA sections 110(a)(2)(C), 110(a)(2)(D)(i)(II), 110(a)(2)(D)(ii), and 110(a)(2)(J), for the 1997 ozone, 1997 PM2.5, 2006 PM2.5, 2008 Pb, 2008 ozone, 2010 NO2, 2010 SO2, and 2012 PM2.5 NAAQS. EPA is also making some consistency and clarification edits to Minnesota's infrastructure SIP table in 40 CFR 52.1220.

    V. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the 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 October 1, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements. (See section 307(b)(2).)

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: July 17, 2018. Cathy Stepp, Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    2. In § 52.1220, the table in paragraph (e) is amended by: i. Removing the entry for “CAA 110(a)(2)(D)(i) SIP-Interstate Transport”. ii. Revising the entries for “Section 110(a)(2) Infrastructure Requirements for the 1997 8-hour ozone NAAQS”; “Section 110(a)(2) Infrastructure Requirements for the 1997 PM2.5 NAAQS”; “Section 110(a)(2) Infrastructure Requirements for the 2006 24-Hour PM2.5 NAAQS”; “Section 110(a)(2) Infrastructure Requirements for the 2008 lead (Pb) NAAQS”; “Section 110(a)(2) Infrastructure Requirements for the 2008 ozone NAAQS”; “Section 110(a)(2) Infrastructure Requirements for the 2010 nitrogen dioxide (NO2) NAAQS”; “Section 110(a)(2) Infrastructure Requirements for the 2010 sulfur dioxide (SO2) NAAQS”; and “Section 110(a)(2) Infrastructure Requirements for the 2012 fine particulate matter (PM2.5) NAAQS”.

    The revisions reads as follows:

    § 52.1220 Identification of plan.

    (e) * * *

    EPA-Approved Minnesota Nonregulatory Provisions Name of nonregulatory SIP provision Applicable
  • geographic or
  • nonattainment area
  • State submittal date/
  • effective date
  • EPA approved date Comments
    *         *         *         *         *         *         * Section 110(a)(2) Infrastructure Requirements for the 1997 8-Hour Ozone NAAQS Statewide 10/23/2007, 11/29/2007, 5/26/2016 and 10/4/2016 7/31/2018, [insert Federal Register citation] Fully approved for all CAA elements. Section 110(a)(2) Infrastructure Requirements for the 1997 PM2.5 NAAQS Statewide 10/23/2007, 11/29/2007, 5/26/2016 and 10/4/2016 7/31/2018, [insert Federal Register citation] Fully approved for all CAA elements. Section 110(a)(2) Infrastructure Requirements for the 2006 24-Hour PM2.5 NAAQS Statewide 5/23/2011, 5/26/2016 and 10/4/2016 7/31/2018, [insert Federal Register citation] Fully approved for all CAA elements except (D)(i)(I), which has been remedied with a FIP, and the visibility protection requirements of (D)(i)(II). Section 110(a)(2) Infrastructure Requirements for the 2008 lead (Pb) NAAQS Statewide 6/19/2012, 5/26/2016 and 10/4/2016 7/31/2018, [insert Federal Register citation] Fully approved for all CAA elements. Section 110(a)(2) Infrastructure Requirements for the 2008 ozone NAAQS Statewide 6/12/2014, 5/26/2016 and 10/4/2016 7/31/2018, [insert Federal Register citation] Fully approved for all CAA elements except the visibility protection requirements of (D)(i)(II). Section 110(a)(2) Infrastructure Requirements for the 2010 nitrogen dioxide (NO2) NAAQS Statewide 6/12/2014, 5/26/2016 and 10/4/2016 7/31/2018, [insert Federal Register citation] Fully approved for all CAA elements except the visibility protection requirements of (D)(i)(II). Section 110(a)(2) Infrastructure Requirements for the 2010 sulfur dioxide (SO2) NAAQS Statewide 6/12/2014, 5/26/2016 and 10/4/2016 7/31/2018, [insert Federal Register citation] Fully approved for all CAA elements except (D)(i)(I) and the visibility protection requirements of (D)(i)(II). Section 110(a)(2) Infrastructure Requirements for the 2012 fine particulate matter (PM2.5) NAAQS Statewide 6/12/2014, 5/26/2016 and 10/4/2016 7/31/2018, [insert Federal Register citation] Fully approved for all CAA elements except (D)(i)(I) and the visibility protection requirements of (D)(i)(II).
    [FR Doc. 2018-16256 Filed 7-30-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R05-OAR-2017-0535; FRL-9981-46—Region 5] Air Plan Approval; Indiana; Air Quality Standards Update for the 2015 Ozone Standard AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving a September 7, 2017, request by the Indiana Department of Environmental Management (IDEM) to revise the Indiana state implementation plan (SIP) for ozone. IDEM revised its ozone standard in order to be consistent with EPA's 2015 revisions to the 8-hour national ambient air quality standards (NAAQS). IDEM also revised references to the monitoring test methods in its rules to be consistent with the current EPA test methods. EPA is also approving administrative revisions to regulations addressing other ambient air quality standards.

    DATES:

    This final rule is effective on August 30, 2018.

    ADDRESSES:

    EPA has established a docket for this action under Docket ID No. EPA-R05-OAR-2017-0535. All documents in the docket are listed on the www.regulations.gov website. Although listed in the index, some information is not publicly available, i.e., Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and will be publicly available only in hard copy form. Publicly available docket materials are available either through www.regulations.gov or at the Environmental Protection Agency, Region 5, Air and Radiation Division, 77 West Jackson Boulevard, Chicago, Illinois 60604. This facility is open from 8:30 a.m. to 4:30 p.m., Monday through Friday, excluding Federal holidays. We recommend that you telephone Matt Rau, Environmental Engineer, at (312) 886-6524 before visiting the Region 5 office.

    FOR FURTHER INFORMATION CONTACT:

    Matt Rau, Environmental Engineer, Control Strategies Section, Air Programs Branch (AR-18J), Environmental Protection Agency, Region 5, 77 West Jackson Boulevard, Chicago, Illinois 60604, (312) 886-6524, [email protected]

    SUPPLEMENTARY INFORMATION:

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

    I. Background II. Public Comment III. What action is EPA taking? IV. Incorporation by Reference V. Statutory and Executive Order Reviews I. Background

    On October 26, 2015 (80 FR 65291), EPA revised the primary and secondary ozone NAAQS from 0.075 to 0.070 parts per million (ppm), daily maximum 8-hour concentration, codified at 40 CFR 50.19. EPA also revised the monitoring test methods for ozone, which are codified at 40 CFR part 50, appendices D and U, and at 40 CFR part 53.

    On April 11, 2017, IDEM revised its ambient air quality primary and secondary standards for ozone to be consistent with EPA's 2015 revision, and codified that revision at 326 Indiana Administrative Code (IAC) 1-3-4, Ambient Air Quality Standards. IDEM revised 326 IAC 1-3-4(4)(B) to update its references to the Federal monitoring test methods. Indiana also made administrative revisions throughout 326 IAC 1-3-4 for ambient air quality standards other than ozone. This includes changing “shall represent” to “represents” and “shall” to “must.”

    On September 7, 2017, IDEM submitted the revisions of 326 IAC 1-3-4 to EPA and requested their approval into the Indiana SIP. EPA proposed approving 326 IAC 1-3-4, as revised, on May 2, 2018 (83 FR 19194).

    II. Public Comment

    A public comment period was provided in the May 2, 2018 (83 FR 19194) proposed rule. The comment period closed on June 1, 2018. Two comments were submitted during the comment period. Both comments raised issues outside the scope of this rulemaking.

    III. What action is EPA taking?

    EPA is approving revisions related to Indiana's ambient air quality standards in 326 IAC 1-3-4 into the Indiana SIP. The revisions to 326 IAC 1-3-4 include making IDEM's ozone standard consistent with the 2015 8-hour ozone NAAQS, as codified at 40 CFR part 50, and making IDEM's monitoring test methods for ozone consistent with the methods codified at 40 CFR part 50 and 40 CFR part 53. Further, administrative revisions were made to IDEM's other ambient air quality standards in 326 IAC 1-3-4. IDEM submitted the SIP revision request on September 7, 2017.

    IV. Incorporation by Reference

    In this rule, EPA is finalizing regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is finalizing the incorporation by reference of the Indiana Regulations described in the amendments to 40 CFR part 52 set forth below. EPA has made, and will continue to make, these documents generally available through www.regulations.gov, and at the EPA Region 5 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

    1 62 FR 27968 (May 22, 1997).

    V. Statutory and Executive Order Reviews

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

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

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

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

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

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

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

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

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

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

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

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

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

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

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides.

    Dated: July 17, 2018. Cathy Stepp, Regional Administrator, Region 5.

    40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    2. In § 52.770, the table in paragraph (c) is amended by revising the entry for “1-3-4” under “Article 1. General Provisions” “Rule 3. Ambient Air Quality Standards” to read as follows:
    § 52.770 Identification of plan.

    (c) * * *

    EPA-Approved Indiana Regulations Indiana citation Subject Indiana
  • effective
  • date
  • EPA approval date Notes
    Article 1. General Provisions *         *         *         *         *         *         * Rule 3. Ambient Air Quality Standards *         *         *         *         *         *         * 1-3-4 Ambient air quality standards 8/11/2017 7/31/2018, [Insert Federal Register citation] *         *         *         *         *         *         *
    [FR Doc. 2018-16247 Filed 7-30-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R10-OAR-2018-0001; FRL-9981-50-Region 10] Air Plan Approval; Washington; Regional Haze Progress Report AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Final rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is approving a revision to the regional haze State Implementation Plan (SIP) submitted by Washington on November 6, 2017. Washington submitted its Regional Haze Progress Report (“progress report” or “report”) and a negative declaration stating that further revision of the existing regional haze SIP is not needed at this time. Washington submitted both the progress report and the negative declaration in the form of implementation plan revisions as required by federal regulations. The progress report addresses the federal Regional Haze Rule requirements under the Clean Air Act to submit a report describing progress in achieving reasonable progress goals established for regional haze and a determination of the adequacy of the state's existing plan addressing regional haze.

    DATES:

    This final rule is effective August 30, 2018.

    ADDRESSES:

    The EPA has established a docket for this action under Docket ID No. EPA-R10-OAR-2018-0001. All documents in the docket are listed on the https://www.regulations.gov website. Although listed in the index, some information is not publicly available, e.g., CBI or other information the disclosure of which is restricted by statute. Certain other material, such as copyrighted material, is not placed on the internet and is publicly available only in hard copy form. Publicly available docket materials are available at https://www.regulations.gov, or please contact the person identified in the FOR FURTHER INFORMATION CONTACT section for additional availability information.

    FOR FURTHER INFORMATION CONTACT:

    Jeff Hunt at (206) 553-0256, or [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document wherever “we,” “us,” or “our” is used, it is intended to refer to the EPA.

    I. Background Information

    On May 31, 2018, the EPA proposed to approve Washington's Regional Haze Progress Report (83 FR 24954). An explanation of the Clean Air Act requirements, a detailed analysis of the submittal, and the EPA's reasons for proposing approval were provided in the notice of proposed rulemaking, and will not be restated here. The public comment period for the proposal ended July 2, 2018.

    II. Response to Comments

    We received six comments on the rulemaking. After reviewing the comments, we have determined that four of the comments are outside the scope of our proposed action and fail to identify any material issue necessitating a response. The fifth and sixth comments, submitted by TransAlta Centralia Generation LLC (TransAlta) and an anonymous commenter, are described below.

    Comment 0012: In its comment, TransAlta stated: “We write to comment on the future operations of TransAlta's Centralia Power Plant in the Regional Haze 5-Year Progress Report. The Progress Report and its supporting documents describe the `retirement' or `closure' of TransAlta's Centralia Power Plant in reference to reducing emissions and impacts. However, TransAlta and a number of other parties have always anticipated that when the Centralia Power Plant ceases coal-fired operations, it would likely convert one or both boilers to use gas instead of coal. Rather than shuttering the plant, TransAlta envisions retrofitting the facility to accommodate fuel-switching to natural gas as a means to supply power for Washington State until renewable energy is reliably sufficient. TransAlta estimates a reduction in emissions as a result of this fuel-switching, but does not anticipate ceasing operations or closing the Centralia Power Plant.” TransAlta then requested that the EPA make specific wording changes to the narrative text of the state's progress report, and supporting documents, to reflect this position.

    Comment 0013: Purportedly in response to TransAlta's Comment 0012, an anonymous commenter stated: “The agreement to close a plant means that it is CLOSED. The last minute attempt to re-engineer the plant to burn a different type of fossil fuel is a contradiction of the plan.”

    Response: Under the Clean Air Act the EPA has the authority to approve or disapprove SIP revisions submitted by the states. We do not have the authority to modify the narrative text of state submissions, or supporting documents, other than disapproval or partial disapproval. To the extent TransAlta believes that Washington's narrative description of the existing best available retrofit technology (BART) Order 6426 (order) is ambiguous or incorrect regarding facility operation after 2020 and 2025, this comment could have been submitted during the state public comment period. In reviewing Appendix G. Ecology's Responses to Comments Received during the Public Comment Period, we see no evidence of TransAlta requesting changes or commenting on this issue during the state public comment period.1

    1 The EPA was sent a copy of TransAlta's December 13, 2017, letter with similar comments. This letter was written after the state public comment period closed on August 1, 2017, and also after submission of the SIP revision to the EPA on November 6, 2017.

    As discussed in the proposal for this action, the primary purpose of the progress report is to evaluate whether the existing regional haze plan is adequate for meeting the reasonable progress goals (RPGs) established for the first regional haze planning period, ending in 2018. The TransAlta BART order, as approved into the SIP states, “Coal units BW21 and BW22 will permanently cease burning coal and be decommissioned as follows: (4.1) One coal fired unit must permanently cease burning coal no later than December 31, 2020. (4.2) The second coal fired unit must permanently cease burning coal no later than December 31, 2025.” To the extent that TransAlta and Washington may or may not agree about the interpretation of these conditions as they relate to potential future revisions to the BART order, potential future changes under the new source review program, or potential use of the facility beyond 2020 and 2025, we note these issues are outside the scope of this action evaluating progress during the first planning period. We encourage TransAlta to resolve these issues directly with Washington as the state develops the regional haze update for the next planning period (2018-2028). In the interim, we do not believe this comment constitutes a sufficient basis for disapproving or partially disapproving Washington's progress report. As stated in our proposed approval of Washington's Regional Haze Progress Report, the progress report contained the information required by 40 CFR 51.308 and demonstrated that Washington is meeting or exceeding all reasonable progress goals for all Class I areas within Washington's borders, and implementation of the regional haze SIP has enabled other nearby states to meet RPGs for Class I areas where Washington sources are reasonably anticipated to contribute to visibility impairment. In addition, Washington's progress report contained an assessment of the status of all measures included in the SIP that were implemented during the first planning period, such as compliance with the BART emission limit for nitrogen oxides at TransAlta's Centralia Power Plant. Therefore, our position remains that the appropriate action is to approve Washington's Regional Haze Progress Report.

    III. Final Action

    The EPA is approving the Washington Regional Haze Progress Report, submitted on November 6, 2017, as meeting the applicable requirements of the Clean Air Act and the federal Regional Haze Rule, as set forth in 40 CFR 51.308(g). The EPA is also approving Washington's determination that the existing regional haze SIP is adequate to meet the state's visibility goals established for the first planning period and requires no substantive revision at this time, as set forth in 40 CFR 51.308(h). We have also determined that Washington fulfilled the requirements in 40 CFR 51.308(i) regarding state coordination with Federal Land Managers.

    IV. Statutory and Executive Order Reviews

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

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

    • is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because actions such as 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 this action does not involve technical standards; and

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

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

    The Congressional Review Act, 5 U.S.C. 801 et seq., as added by the Small Business Regulatory Enforcement Fairness Act of 1996, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. The EPA will submit a report containing this action and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States prior to publication of the rule in the Federal Register. A major rule cannot take effect until 60 days after it 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 October 1, 2018. Filing a petition for reconsideration by the Administrator of this final rule does not affect the finality of this action for the purposes of judicial review nor does it extend the time within which a petition for judicial review may be filed, and shall not postpone the effectiveness of such rule or action. This action may not be challenged later in proceedings to enforce its requirements (See section 307(b)(2)).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Dated: July 23, 2018. Chris Hladick, Regional Administrator, <E T="03">Region 10.</E>

    For the reasons set forth in the preamble, 40 CFR part 52 is amended as follows:

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

    42 U.S.C. 7401 et seq.

    Subpart WW—Washington 2. In § 52.2470(e), amend table 2 by adding the entry “Regional Haze Progress Report” after the entry “Regional Haze State Implementation Plan—BP Cherry Point Refinery BART Revision” to read as follows:
    § 52.2470 Identification of plan.

    (e) * * *

    Table 2—Attainment, Maintenance, and Other Plans Name of SIP provision Applicable
  • geographic or
  • nonattainment area
  • State
  • submittal date
  • EPA approval date Explanations
    *         *         *         *         *         *         * Regional Haze Progress Report Statewide 11/6/2017 7/31/2018, [Insert Federal Register citation] *         *         *         *         *         *         *
    [FR Doc. 2018-16266 Filed 7-30-18; 8:45 am] BILLING CODE 6560-50-P
    DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS-HQ-ES-2016-0076; 4500030115] RIN 1018-BC82 Endangered and Threatened Wildlife and Plants; Endangered Species Status for Five Poecilotheria Tarantula Species From Sri Lanka AGENCY:

    Fish and Wildlife Service, Interior.

    ACTION:

    Final rule.

    SUMMARY:

    We, the U.S. Fish and Wildlife Service (Service), determine endangered species status under the Endangered Species Act of 1973, as amended, for the following five tarantula species from Sri Lanka: Poecilotheria fasciata, P. ornata, P. smithi, P. subfusca, and P. vittata. The effect of this regulation will be to add these species to the List of Endangered and Threatened Wildlife.

    DATES:

    This rule becomes effective August 30, 2018.

    ADDRESSES:

    This final rule is available on the internet at http://www.regulations.gov at docket number FWS-HQ-ES-2016-0076. Comments and materials we received, as well as supporting documentation we used in preparing this rule, are available for public inspection at http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    Don Morgan, Chief, Branch of Delisting and Foreign Species, Ecological Services, U.S. Fish and Wildlife Service, MS: ES, 5275 Leesburg Pike, Falls Church, VA 22041-3803; telephone, 703-358-2171. Persons who use a telecommunications device for the deaf (TDD) may call the Federal Relay Service at 800-877-8339.

    SUPPLEMENTARY INFORMATION: Executive Summary

    Why we need to publish a rule. Under the Endangered Species Act of 1973, as amended (Act; 16 U.S.C. 1531 et seq.), a species may be protected through listing as an endangered species or threatened species if it meets the definition of an “endangered species” or “threatened species” under the Act. Listing a species as an endangered or threatened species can only be completed by issuing a rule.

    What this document does. This rule will add the following five tarantula species to the List of Endangered and Threatened Wildlife in title 50 of the Code of Federal Regulations (50 CFR 17.11(h)) as endangered species: Poecilotheria fasciata, P. ornata, P. smithi, P. subfusca, and P. vittata.

    The basis for our action. Under the Act, we use the best available scientific and commercial data to determine whether a species meets the definition of a “threatened species” or an “endangered species” because of any one or more of the following five factors or the cumulative effects thereof: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. We have determined on the basis of the best available scientific and commercial data that P. fasciata, P. ornata, P. smithi, P. subfusca, and P. vittata are in danger of extinction because of ongoing habitat loss and degradation and the cumulative effects of this and other threat factors. One species, P. smithi, is also in danger of extinction because of the effects of stochastic (random) processes.

    Peer review and public comment. We sought comments from independent peer reviewers to ensure that our designation is based on scientifically sound data and analyses. We invited these peer reviewers to comment on our listing proposal. We also considered all comments and information received from the public during the comment period.

    Previous Federal Action

    We received a petition, dated October 29, 2010, from WildEarth Guardians requesting that the following 11 tarantula species in the genus Poecilotheria be listed under the Act as endangered or threatened: Poecilotheria fasciata, P. formosa, P. hanumavilasumica, P. metallica, P. miranda, P. ornata, P. pederseni, P. rufilata, P. smithi, P. striata, and P. subfusca. The petition identified itself as such and included the information as required by 50 CFR 424.14(a). We published a 90-day finding on December 3, 2013 (78 FR 72622), indicating that the petition presents substantial scientific and commercial information indicating that listing these 11 species may be warranted. At that time we also (1) notified the public that we were initiating a review of the status of these species to determine if listing them is warranted, (2) requested from the public scientific and commercial data and other information regarding the species, and (3) notified the public that at the conclusion of our review of the status of these species, we would issue a 12-month finding on the petition, as provided in section 4(b)(3)(B) of the Act. We published a 12-month finding and proposed rule for listing the five Poecilotheria species that are endemic to Sri Lanka (Poecilotheria fasciata, P. ornata, P. pederseni, P. smithi, and P. subfusca) on December 14, 2016 (81 FR 90297). In our 12-month finding and proposed rule we determined that these five species were in danger of extinction throughout their ranges and proposed listing them as endangered under the Act. We requested input from the public, range country, other interested parties, and peer reviewers during a 60-day public comment period that ended February 13, 2017.

    Summary of Changes From the Proposed Rule

    In preparing this final rule, we reviewed and fully considered comments from the public and peer reviewers on the proposed rule. This final rule incorporates minor changes to our proposed listing based on the comments we received (See: Summary of Comments and Recommendations).

    Background Taxonomy and Species Descriptions

    Poecilotheria is a genus of arboreal spiders endemic to Sri Lanka and India. The genus belongs to the family Theraphosidae, often referred to as tarantulas, within the infraorder Mygalomorphae. As with most theraphosid genera, Poecilotheria is a poorly understood genus. The taxonomy has never been studied using modern DNA technology; therefore, species descriptions are based solely on morphological characteristics. Consequently, there have been several revisions, additions, and subtractions to the list of Poecilotheria species over the last 20 years (Nanayakkara 2014a, pp. 71-72; Gabriel et al. 2013, entire).

    The World Spider Catalog (2017, unpaginated; 2016, unpaginated) currently recognizes 14 species of Poecilotheria. The Integrated Taxonomic Information System currently identifies 16 species in the genus, based on the 2011 version of the same catalog. Because the World Spider Catalog is the widely accepted authority on spider taxonomy, we consider the Poecilotheria species recognized by the most recent (2017) version of this catalog to be valid. Based on the World Spider Catalog, all five of the species addressed in this rule are considered valid taxon, although P. pederseni is now considered a junior synonym to the currently accepted name P. vittata. Therefore, in the remainder of this document we refer to this species as P. vittata. Further, all five of these species have multiple common names (see WildEarth Guardians 2010, p. 4); thus, we refer to them by their scientific names throughout this document.

    Poecilotheria species are among the largest spiders in the world, with body lengths of 4 to 9 centimeters (1.5 to 3.5 inches) and maximum adult leg spans varying from 15 to 25 centimeters (6 to 10 inches) (Nanayakkara 2014a, pp. 94-129; Molur et al. 2006, p. 23). They are known for their fast movements and potent venom that, in humans, typically causes extended muscle cramps and severe pain (Fuchs 2014, p. 75; Nanayakkara and Adikaram 2013, p. 53). They are hairy spiders and have striking coloration, with dorsal color patterns of gray, black, brown, and in one case, a metallic blue. Ventral coloration of either sex is typically more of the same with the exception of the first pair of legs, which in some species bear bright yellow to orange aposematic (warning) markings that are visible when the spider presents a defensive display. Mature spiders exhibit some sexual dimorphism with mature males having a more drab coloration and being significantly smaller than the adult females (Siliwal 2017, unpaginated; Nanayakkara 2014a, entire; Pocock 1899, pp. 84-86).

    The primary characteristics used to distinguish Poecilotheria species are ventral leg markings (Gabriel 2010 p. 13, citing several authors). Some authors indicate that identification via leg markings is straightforward for most Poecilotheria species (Nanayakkara 2014a, pp. 74-75; Gabriel 2011a, p. 25). However, the apparent consistent leg patterns observed in adults of a species could also be a function of specimens being collected from a limited number of locations (Morra 2013, p. 129). During surveys, researchers found more variation than suggested by published species descriptions and indicated that identifying Poecilotheria species is not as straightforward as suggested by current descriptions (Molur et al. 2003, unpaginated). Immature spiders (juveniles) lack the variation in coloring found in adults. As a result, they are difficult to differentiate visually; genetic analysis may be the only way to reliably identify juveniles to species (Longhorn 2014a, unpaginated).

    Captive Poecilotheria

    Most captive individuals of Poecilotheria species are in the pet trade; few specimens of the species addressed in this rule are held in zoos (Species360 2017, unpaginated). Poecilotheria species are commonly bred in captivity by amateur hobbyists as well as vendors, and are available as captive-bred young in the pet trade in the United States, Europe, and elsewhere (see Trade). However, while rearing and keeping of captive individuals by hobbyists and vendors has provided information on life history of these species, we are not aware of any existing conservation programs for these species, including any in which specimens held or sold as pets contribute to the viability of these species within their native ranges in the wild.

    Individuals of these species that are held or sold as pets hold limited conservation value to the species in the wild because they are not genetically managed for conservation purposes. Individuals in the pet trade descend from wild individuals from unknown locations, have undocumented lineages, come from limited stock (e.g., see Gabriel 2012, p. 18), and are bred without knowledge or consideration of their genetics. They also likely include an unknown number of hybrid individuals resulting from intentional crosses, or unintentional crosses resulting from confusion and difficulty in species taxonomy and identification (Gabriel 2011a, pp. 25-26; Gabriel et al. 2005, p. 4; Gabriel 2003, pp. 89-90). Further, many are likely several generations removed from wild ancestors and thus may be adversely affected by inbreeding or maladapted to conditions in the wild. In short, captive individuals held or sold as pets do not adhere to the IUCN guidelines for reintroductions and other conservation translocations (IUCN 2013, entire). Further, we are not aware of any captive-breeding programs for Poecilotheria that adhere to IUCN guidelines.

    Because (1) the purpose of our status assessments is to determine the status of the species in the wild, (2) we are not aware of any information indicating that captive individuals are contributing to the conservation of these species in the wild, and (3) captive individuals held or sold as pets have limited value for conservation programs or for reintroduction purposes, we place little weight on the status of captive individuals in our assessment of the status of the five Poecilotheria species addressed in this rule.

    Tarantula General Biology

    Tarantulas possess life-history traits markedly different from most spiders and other arthropods (Bond et al. 2006, p. 145). They are long-lived, have delayed sexual maturity, and most are habitat specialists that are extremely sedentary. They also have poor dispersal ability because their mode of travel is limited to walking, and they typically do not move far from the area in which they are born. As a result, the distribution of individuals tends to be highly clumped in suitable microhabitats (a smaller habitat within a larger habitat), populations are extremely genetically structured (genetically subdivided; gene frequencies differ across the population), and the group shows a high level of endemism (species restricted to a particular geographical location) (Ferreti et al. 2014, p. 2; Hedin et al. 2013, p. 509, citing several sources; Bond et al. 2006, pp. 145-146, citing several sources).

    Tarantulas are primarily nocturnal and typically lead a hidden life, spending much of their time concealed inside burrows or crevices (retreats) that provide protection from predators and the elements (Foelix 2011, p. 14; Molur et al. 2003, unpaginated; Gallon 2000, unpaginated). They are very sensitive to vibrations and climatic conditions, and usually do not come out of their retreats in conditions like rains, wind, or excessive light, or when they detect movement outside their retreat (Molur et al. 2003, unpaginated). Tarantulas are generalist predators that sit and wait for passing prey near the entrance of their retreats (Gallon 2000, unpaginated). With the exception of reproductive males that wander in search of females during the breeding season, they leave their retreat only briefly for capturing prey, and quickly return to it at the slightest vibration or disturbance (Foelix 2011, p. 14; Stotley and Shillington 2009, pp. 1210-1211; Molur et al. 2003, unpaginated). Tarantulas generally inhabit a suitable retreat for extended periods and may use the same retreat for years (Stotley and Shilling 2009, pp. 1210-1211; Stradling 1994, p. 87). Most tarantulas are solitary, with one spider occupying a retreat (Gallon 2000, unpaginated).

    The lifestyle of adult male tarantulas differs from that of adult females and juveniles. Females and juveniles are sedentary, spending most of their time in or near their retreat. Adult females are long-lived and continue to grow, molt, and reproduce for several years after reaching maturity (Ferreti et al. 2014, p. 2, citing several sources; Costa and Perez-Miles 2002, p. 585, citing several sources; Gallon 2000, unpaginated). They are capable of producing one brood per year, although they do not always do so (Ferreti et al. 2014, p. 2; Stradling 1994, pp. 92-96). Males have shorter lifespans than females and, after reaching maturity, no longer molt and usually only live one or two breeding seasons (Costa and Perez-Miles 2002, p. 585, Gallon 2000, unpaginated). Further, on reaching maturity, males leave their retreats to wander in search of receptive females with which to mate (Stotley and Shillington 2009, pp. 1210-1211). Males appear to search the landscape for females randomly and, at short range, may be able to detect females through contact sex-pheromones on silk deposited by the female at the entrance of her retreat (Ferreti et al. 2013, pp. 88, 90; Janowski-Bell and Horner 1999, pp. 506, 509; Yanez et al. 1999, pp. 165-167; Stradling 1994, p. 96). Males may cover relatively large areas when searching for females. Males of a ground-dwelling temperate species (Aphonopelma anax) are reported covering search areas up to 29 ha (72 acres), though the mean size of areas searched is much smaller (1.1 ± 0.5 ha one year and 8.8 ± 2.5 ha another year) (Stotley and Shillington 2009, p. 1216).

    When a male locates a receptive female, the two will mate in or near the entrance to the female's retreat. After mating, the female returns to her retreat where she eventually lays eggs within an egg-sac and tends the eggs until they hatch. Spiderlings reach maturity in one or more years (Gallon 2000, unpaginated).

    Poecilotheria Biology

    Limited information is available on Poecilotheria species in the wild. While they appear to be typical tarantulas in many respects, they differ from most tarantulas in that they are somewhat social (discussed below) and reside in trees rather than ground burrows (see Microhabitat).

    Poecilotheria species are patchily distributed (Siliwal et al. 2008, p. 8) and prey on a variety of insects, including winged termites, beetles, grasshoppers, and moths, and occasionally small vertebrates (Das et al. 2012, entire; Molur et al. 2006, p. 31; Smith et al. 2001, p. 57).

    We are not aware of any information regarding the reproductive success of wild Poecilotheria species. However, reproduction may be greatly reduced during droughts (Smith et al. 2001, pp. 46, 49). Additionally, given the apparently random searching for females by male tarantulas, successful mating of females likely depends on the density of males in the vicinity. In a study conducted on an arboreal tropical tarantula (Avicularia avicularia in Trinidad), less than half of adult females produced eggs in the same year despite the fact that they were in close proximity to each other and exhibited the same weight gain, possibly due to a failure to mate (Stradling 1994, p. 96).

    Time to maturity in Poecilotheria species varies and is influenced by the temperature at which the young are raised and amount of food provided (Gabriel 2006, entire). Based on observations of captive Poecilotheria, males mature from spiderlings to adults in 11 to16 months (Gabriel 2011b, p. 101; Gabriel 2005, entire). Females mature in 14 to 48 months and generally live an additional 60 to 85 months after maturing (Cowper 2017, unpaginated; Weaver 2017, unpaginated; Gabriel 2012, p. 19; Government of Sri Lanka and Government of the United States 2000, p. 3), although they have been reported living up to 14 years (Gallon 2012, p. 69). Females lay about 50 to 100 eggs, 5 to 6 months after mating (Nanayakarra 2014a, p. 79; Gabriel 2011b, entire; Gabriel 2005, p. 101). In captivity, generation time appears to be roughly 2-3 years (see Gabriel 2011b, entire; Gabriel 2006, p. 96; Gabriel 2005, entire). While captive individuals provide some indication of potential growth, longevity, and reproductive capacity of wild individuals, these variables are likely to vary with conditions in the wild. Poecilotheria are ectotherms and, as such, their physiological and developmental processes including growth and reproduction are strongly influenced by body temperature and it is likely that captive-rearing of these species is primarily done under ideal environmental conditions for reproduction and growth.

    Unlike most tarantulas, which are solitary, most Poecilotheria species display a degree of sociality. Adult females often share their retreat with their spiderlings. Eventually as the young mature, they disperse to find denning areas of their own. Occasionally young remain on their natal tree to breed, or three to four adult females will share the same retreat (Nanayakkara 2014a, pp. 74, 80). These semi-social behaviors are believed to be a response to a lack of availability of suitable habitat (trees) in which individuals can reside (Nanayakkara 2014a, pp. 74, 80; Gallon 2000, unpaginated).

    Poecilotheria Habitat Microhabitat

    Poecilotheria occupy preexisting holes or crevices in trees or behind loose tree bark (Molur et al. 2006, p. 31; Samarawckrama et al. 2005; Molur et al. 2003 unpaginated; Kirk 1996, pp. 22-23). Individuals of some species are also occasionally found in grooves or crevices in or on other substrates such as rocks or buildings that are close to wooded areas (Samarawckrama et al. 2005, pp. 76, 83; Molur et al. 2003, unpaginated). In a survey in Sri Lanka, 89 percent (31) of Poecilotheria spiders were found in or on trees, while 11 percent (4) were found in or on buildings (Samarawckrama et al. 2005, p. 76). Poecilotheria species are said to have a preference for residing in old, established trees with naturally occurring burrows (Nanayakkara 2014a, p. 86). Some species also appear to prefer particular tree species (Nanayakkara 2014a, p. 84; Samarawckrama et al. 2005, p. 76).

    Macrohabitat

    Most Poecilotheria species occur in forested areas, although some occasionally occur in other treed habitats such as plantations (Nanayakkara 2014a, p. 86; Molur et al. 2006, p. 10; Molur et al 2003, entire; Smith et al. 2001, entire). Poecilotheria are less abundant in degraded forest (Molur et al. 2004, p. 1665). Less complex, degraded forests may contain fewer trees that provide adequate retreats for these species and less cover for protection from predators and the elements. Trees with broad, dense canopy cover likely provide Poecilotheria in hotter, dryer habitats protection from heat and desiccation (Siliwal 2008, pp. 12, 15). We provide additional, species-specific information on habitat below.

    Sri Lanka

    Sri Lanka is an island nation about 65,610 square kilometers (km 2) (25,332 square miles (mi 2)) in area (Weerakoon 2012, p. xvii), or about the size of West Virginia (Fig. 1). The variation in topography, soils, and rainfall on the island has resulted in a diversity of ecosystems with high levels of species endemism (Government of Sri Lanka (GOSL) 2014, pp. xiv-xv). Sri Lanka, together with the Western Ghats of India, is identified as a global biodiversity hotspot, and is among the eight “hottest hotspots,” (Myers et al. 2000, entire).

    Sri Lanka consists of a mountainous region (central highlands), reaching 2,500 meters (8,202 feet) in elevation, in the south-central part of the island surrounded by broad lowland plains (GOSL 2012, p. 2a-3-141) (Fig. 2). The country has a tropical climate characterized by two major monsoon periods: the southwest monsoon from May to September and the northeast monsoon from December to February (GOSL 2012, pp. 7-8).

    Sri Lanka's central highlands create a rain shadow effect that gives rise to two pronounced climate zones—the wet zone and dry zone—and a less extensive intermediate zone between the two (Ministry of Environment-Sri Lanka (MOE) 2010, pp. 21-22) (Fig. 2). Small arid zones also occur on the northwestern and southeastern ends of the country (Nanayakkara 2014a, p. 22). Annual rainfall ranges from less than 1,000 millimeters (mm) (39.4 inches (in)) in the arid zone to over 5,000 mm (197 in) in the wet zone of the central highlands (Jayatillake et al. 2005, pp. 66-67). Mean annual temperature ranges from 27 degrees Celsius (°C) (80.6 degrees Fahrenheit (°F)) in the lowlands to 15 °C (59 ;°F) in the highlands (Eriyagama et al. 2010, p. 2).

    The wet zone is located in the southwestern quarter of the island, where high annual rainfall is maintained throughout the year by rain received during both monsoons and during inter-monsoonal periods (MOE 2010, pp. 21-22) (Fig. 2). The wet zone is divided into low, mid, and montane regions based on altitude. The dry zone, in which most of the land area of Sri Lanka occurs, is spread over much of the lowland plains and is subjected to several months of drought (MOE 2010, pp. 21-22) (Fig. 2). Most of the rain in this zone comes from the northeast monsoon and inter-monsoonal rains (MOE 2010, pp. 21-22; Malgrem 2003, p. 1236). Characteristic forest types occur within each of the different climate zones.

    Species-Specific Information

    Each of the five species addressed in this finding is endemic to Sri Lanka and has a range restricted to a particular region and one or two of Sri Lanka's climate zones (Nanayakkara 2014a, pp. 84-85) (Fig. 1, Fig. 2). Due to their secretive and nocturnal habits, sensitivity to vibrations, and their occurrence in structurally complex habitat (forest), Poecilotheria species are difficult to detect (Molur et al. 2003, unpaginated). Therefore, reported ranges are possibly smaller than the actual ranges of these species. However, surveys for these species were conducted at many locations throughout the country during 2009-2012 by Nanayakkara et al. (2012, entire), and we consider the locations reported in Nanayakkara (2014a, entire) to reflect the best available information concerning the ranges of these species.

    Historical ranges for the five species addressed in this rule are unknown. Further, information on species abundance or population dynamics is not available on any of the five species; therefore, population trends are unknown. However, based upon the multitude of threats acting on these species, especially extensive and ongoing habitat loss and degradation, experts believe populations are declining, and that these species are very likely to go extinct within the next two or three decades (Nanayakkara and Adikaram 2013, p. 54). We are not aware of any existing conservation programs for these species. All five species are categorized on the National Red List of Sri Lanka as Endangered or Critically Endangered based on their area of occupancy (Critically Endangered: less than 10 km 2; Endangered: less than 500 km 2) and distribution (Critically Endangered: severely fragmented or known to exist at only a single location; Endangered: severely fragmented or known to exist at no more than five locations), and the status (continuing decline, observed, inferred or projected, in the area, extent, or quality, or any combination of the three) of their habitat (MOE 2012, p. 55; IUCN 2001, entire).

    For locations discussed in species-specific information below, see Fig. 1. For locations of the ranges of the different species, see Fig. 2.

    BILLING CODE 4333-15-P ER31JY18.001 ER31JY18.002 BILLING CODE 4333-15-C P. fasciata

    Poecilotheria fasciata occurs in forests below 200-m elevation in Sri Lanka's dry and intermediate zones north of Colombo and is also sometimes found in coconut plantations in this region (Nanayakkara 2014a, p. 96; Nanayakkara 2014b, unpublished data; Smith et al. 2001, entire). The species has a broad but patchy distribution and is estimated to occupy less than 500 km2 (193 mi2) of its range (MOE 2012, p. 55; Smith et al. 2001, p. 48). The area, extent, or quality (or a combination thereof) of P. fasciata's habitat is in continuing decline, and the species is categorized on the National Red List of Sri Lanka as Endangered (MOE 2012, p. 55).

    The only detailed record of the species' occurrence is provided by Smith et al. (2001, entire), where Poecilotheria fasciata colonized a coconut plantation following a prolonged drought. While P. fasciata in dry and intermediate zone forests, including those surrounding the coconut plantation, were found to be emaciated and without spiderlings, those in the irrigated plantation were found to have spiderlings in their retreats and wider abdomens. Smith et al. argue that P. fasciata was able to colonize the plantation due to the occurrence of P. fasciata in the adjacent remnant forest, the presence of coconut trees that were infested with weevils and subsequently fed on by woodpeckers that created holes suitable for P. fasciata retreats, and plantation irrigation that resulted in an abundant prey base for the species. The P. fasciata population in the plantation was apparently established in the 1980s and persisted until at least 2000 (Smith et al. 2001, pp. 49, 52).

    During recent surveys, P. fasciata were detected at nine locations—two in coconut plantations and seven in forest locations. Greater than 20 adults and 100 juveniles were found in coconut plantations, and greater than 30 adults and no juveniles were found in forest locations (Nanayakkara 2014b, unpublished data). Although no juveniles were detected in forest habitats during these surveys, recent observations of P. fasciata juveniles in forest habitat have been reported (Nanayakkara 2014a, p. 96; Kumarasinghe et al. 2013, p. 10). Therefore, based on the observations of Smith et al. described above, it is possible that the lack of juveniles detected in forests during recent surveys was due to drought conditions during the survey period. As indicated above, island-wide surveys for Poecilotheria were conducted during 2009-2012, and droughts occurred in 2010 and 2012 in the region in which P. fasciata occurs (Integrated Regional Information Network 2012, unpaginated; Disaster Management Center, Sri Lanka 2010, p. 12). However, while juveniles were detected only in coconut plantations during these surveys, numbers found in coconut and forest habitat cannot be directly compared because surveys were designed for determining distribution rather than species abundance or density. For instance, juveniles may be more difficult to detect in forest habitat than in coconut plantations, or a greater area of coconut plantations may have been searched compared to forest habitat.

    P. ornata

    Poecilotheria ornata is found in the plains and hills of the lowland wet zone in southwestern Sri Lanka (Nanayakkara 2014a, pp. 112-113; Smith et al. 2002, p. 90). It is one of the few solitary species in the genus (Nanayakkara 2014a, p. 112). In recent surveys, 23 adults and no juveniles were detected at 4 locations (Nanayakkara 2014b, unpublished data). Poecilotheria ornata is estimated to occupy less than 500 km2 (193 mi2) of its range (MOE 2012, p. 55), and the area, extent, or quality (or a combination thereof) of the species' habitat is in continuing decline. Poecilotheria ornata is categorized on the National Red List of Sri Lanka as Endangered (MOE 2012, p. 55).

    P. smithi

    Poecilotherai smithi is found in the central highlands, in Kandy and Matale districts (Nanayakkara et al. 2013, pp. 73-74). It was originally found in the wet zone at mid elevations (Kirk 1996, p. 23), although it is described as a montane species (Jacobi 2005, entire; Smith et al. 2002, p. 92). Poecilotheria smithi appears to be very rare (Nanayakkara et al. 2013, p. 73; Gabriel et al. 2005, p. 4) and is considered “highly threatened” (Nanayakkara et al. 2013, p. 73). The species was described in 1996, and, despite several efforts to locate the species during the past 20 years, few individuals have been found (Nanayakkara et al. 2013, pp. 73-74; Gabriel et al. 2005, pp. 6-7). In 2005, three adult females and four spiderlings were reported in the Haragama, Kandy district, an area described as severely impacted by several anthropogenic factors (Nanayakkara et al. 2013, p. 74; Gabriel et al. 2005, pp. 6-7). During surveys conducted in several areas of the country during 2003-2005, no P. smithi were found (Samarawckrama et al. 2005, entire). Finally, during recent surveys, the species was found at two locations with seven adults and nine juveniles detected (Nanayakkara 2014b, unpublished data). Prior to these recent surveys, the species was known only from the Haragama, Kandy district. However, the species was recently found about 31 km (19.3 mi) away from Haragama, in three trees within a 5-km2 (1.9-mi2) area of highly disturbed habitat (Nanayakkara et al. 2013, p. 74).

    Poecilotheria smithi was estimated to occupy less than 10 km2 (3.9 mi2) of its range (MOE 2012, p. 55) but a recently reported location in Matale district increases the known area of occupancy by 5 km2 (1.9 mi2). The area, extent, or quality (or a combination thereof) of the species' habitat is considered to be in continuing decline, and the species is categorized on the National Red List of Sri Lanka as Critically Endangered (MOE 2012, p. 55).

    P. subfusca

    Poecilotheria subfusca occurs in the wet zone of the central highlands of Sri Lanka, in two disjunct regions: the montane region above 1,500-m elevation in Nuwara Eliya and Badulla districts; and at 500 to 600 m (1,640 to 1,968 ft) elevation in Kegalla, Kandy, and Matale districts (Nanayakkara 2014a, pp. 101-102, 116; Smith et al. 2002, entire).

    During recent surveys, P. subfusca was found at 10 locations, and a total of 25 adult and 56 juvenile P. subfusca were detected (Nanayakkara 2014b, unpublished data). The area of the range occupied by P. subfusca is less than 500 km2 (193 mi2) (MOE 2012, p. 55). Further, the area, extent, or quality (or a combination thereof) of P. subfusca's habitat is in continuing decline throughout its range, and the species is categorized on the National Red List of Sri Lanka as Endangered (MOE 2012, p. 55).

    P. vittata

    Poecilotheria vittata occurs in the arid, dry, and intermediate zones of Hambantota and Monaragala districts in southeastern Sri Lanka (Kekulandala and Goonatilake 2015, unpaginated; Nanayakkara 2014a, pp. 106-107). The species' preferred habitat is Manilkara hexandra (Palu) trees (Nanayakkara 2014a, p. 106), a dominant canopy tree species in Sri Lanka's dry forest (Gunarathne and Perera 2014, p. 15). In recent surveys, the species was found at 4 locations, and 15 adults and 7 juveniles of P. vittata were detected (Nanayakkara 2014b, unpublished data). Poecilotheria vittata is estimated to occupy less than 500 km2 (193 mi2) of its range (MOE 2012, p. 55), and the area, extent, or quality (or a combination thereof) of the species' habitat is considered to be in continuing decline. Poecilotheria vittata is categorized on the National Red List of Sri Lanka as Endangered (MOE 2012, p. 55).

    Summary of Biological Status and Threats

    The Act directs us to determine whether any species is an endangered species or a threatened species because of any one or more of five factors or the cumulative effects thereof: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence. In this section, we summarize the biological condition of the species and its resources, and the influences on these to assess the species' overall viability and the risks to that viability.

    Habitat Loss and Degradation

    Habitat loss and degradation are considered primary factors negatively affecting Poecilotheria species (Nanayakkara and Adikaram 2013, pp. 53-54; MOE 2012, p. 55; Molur et al. 2008, pp. 1-2). Forest loss and degradation are likely to negatively impact the five species addressed in this rule in several ways. First, forest loss and degradation directly eliminate or reduce the availability of trees required by Poecilotheria species for reproduction, foraging, and protection (Samarawckrama et al. 2005, p. 76; Smith et al. 2002, entire). Second, due to the limited ability of Poecilotheria species to travel, as well as their sedentary habits, forest loss and degradation are also likely to result in direct mortality of individuals or populations, via physical trauma caused by the activities that result in forest loss and degradation, or the intentional killing of these spiders when they are encountered by humans during these activities (see Intentional Killing). Such mortality affects these species' abundances and distributions, and also their genetic diversity. Tarantulas have highly structured populations (See Tarantula General Biology) and, consequently, the loss of a local population of a species—due to habitat loss or any other factor—equates to a loss of unique genetic diversity (Bond et al. 2006, p. 154, citing several sources). Finally, the loss of forest also often results in fragmented habitat. Due to the limited dispersal ability of these species, forest fragmentation is likely to isolate Poecilotheria populations, which increases their vulnerability to stochastic processes (see Stochastic Processes), and may also expose wandering males and dispersing juveniles to increased mortality from intentional killing or predation when they attempt to cross between forest fragments (Bond et al. 2006, p. 155) (see Intentional Killing).

    Deforestation

    Forests covered almost the entire island of Sri Lanka a few centuries ago (Mattsson et al. 2012, p. 31). However, extensive deforestation occurred during the British colonial period (1815-1948) as a result of forest-clearing for establishment of plantation crops such as tea and coffee, and also exploitation for timber, slash-and-burn agriculture (a method of agriculture in which natural vegetation is cut down and burned to clear the land for planting), and land settlement. In 1884, about midway through the British colonial period, closed-canopy (dense) forest covered 84 percent of the country and was reduced to 44 percent by 1956 (GOSL 2012, p. 2a-3-145; Nanayakkara 1996, in Mattson et al. 2012, p. 31). Deforestation continued after independence as the result of timber extraction, slash-and-burn agriculture, human settlements, national development projects, and encroachment (GOSL 2012, pp. 2a-3-144-145; Perera et al. 2012, p. 165). As a result, dense forest cover (canopy density greater than 70 percent) declined by half in about 50 years, to 22 percent in 2010 (GOSL 2012, pp. 51, 2a-3-145; Nanayakkara 1996, in Mattson et al. 2012, p. 31). Open-canopy forest (canopy density less than 70 percent) covered an additional 6.8 percent of the country in 2010 for an overall forest cover of 28.6 percent (GOSL 2012, p. 51).

    The extent of deforestation differed in the three climate zones of the country. The impacts of anthropogenic factors on forests in the wetter regions of the island have been more extensive due to the higher density of the human population in these regions. The human population density in the wet zone is 650 people per km2 (1,684 per mi2) compared to 170 people per km2 (440 per km2) in the dry zone and 329 per km2 (852 per mi2) nationally (GOSL 2012, p. 8). Currently about 13 percent of the wet zone, 15 percent of the intermediate zone, and 29 percent of the dry zone are densely forested (Table 1).

    Recent information on forest cover in the different climate zones is provided in three reports (GOSL 2015, GOSL 2012, and FAO 2015a), all of which provide information from the Forest Department of Sri Lanka. One report (GOSL 2015) provides a map of the change in forest cover between 1992 and 2010 and a qualitative assessment of these changes. The others (GOSL 2012 and FAO 2015a) provide quantitative information on the area of forest cover by forest type for 1992, 1999, and 2010. These latter two reports differ slightly in their presentation of information but contain identical data on natural forest cover. However, the Forest Department of Sri Lanka used different rainfall criteria to separate dry and intermediate zone forests, and different altitude criteria to separate montane and submontane forests, in different years (see climate zone and forest definitions in FAO 2015a, p. 6; GOSL 2012, p. 51; FAO 2005, p. 7; FAO 2001, pp. 16, 53). Therefore, we combined the information on intermediate and dry zone forests, and the information on montane and submontane forests (see 81 FR 90307, Table 4). We discuss the information on forest cover from the various sources by climate zone below.

    Wet Zone Forest

    Wet zone forests in Sri Lanka are categorized as montane, submontane, or lowland forest, based on elevation. Very little wet zone forest remains in Sri Lanka. Currently, montane and submontane forests combined covers only about 733 km2 (283 mi2) and is severely fragmented (GOSL 2012, pp. 51, 2a-3-142). The area remained relatively stable from 1992 to 2010 (81 FR 90307; GOSL 2012, p. 51). More recent evidence indicates these forests are currently declining: firewood collection, cutting of trees for other domestic purposes, and gem mining are ongoing in these forests, and large areas were recently illegally cleared for vegetable cultivation (Wijesundara 2012, p. 182). While these forests are protected in Sri Lanka, administering agencies do not have sufficient resources to prevent these activities (Wijesundara 2012, p. 182).

    The area of lowland wet zone forests (lowland rainforest) declined from 1992 to 2010. Remaining lowland rainforests are severely fragmented, exist primarily as small, isolated patches, and declined by 13% (183 km2)(71 mi2)) during the 18-year period, though the rate of loss slowed considerably during the latter half of this period (81 FR 90307, Table 4; GOSL 2012, p. 2a-3-142; Lindstrom et al. 2012, p. 681). Changes in forest cover show low levels of deforestation throughout the lowland rainforest region from 1992 to 2010, and a deforestation “hotspot” on the border of Kalutara and Ratnapura districts, which is within the range of P. ornata (Fig. 1, Fig. 2) (GOSL 2015, unpaginated).

    Dry and Intermediate Zone Forests

    Dry and intermediate zone forests, which include most open-canopy forest (Mattsson et al. 2012, p. 30), declined by 8% (1,372 km2 (530 mi2)) between 1992 and 2010 (81 FR 90307, Table 4). The rate of deforestation nationwide during this period was highest in Anuradhapura and Moneragala districts, in which large portions of the ranges of P. fasciata and P. vittata occur (see Fig. 1, Fig. 2) (GOSL 2015, unpaginated). Further, deforestation hotspots have been found in other districts where these species occur, including Puttalam and Hambantota (GOSL 2015, unpaginated). Natural regeneration of dry forest species is poor, and dry zone forests are heavily degraded as a result of activities such as frequent shifting cultivation and timber logging (Perera 2012, p. 165, citing several sources).

    Table 1—The Total Area of Sri Lanka's Climate Zones, and the Coverage of Dense Forest (Canopy Cover Greater Than 70 Percent) Within Each Zone in 2010, Based on Information Provided in 81 FR 90302, Table 2 and GOSL 2012, p. 51 Climate zones of Sri Lanka Area 1 (km2) Area covered with dense (canopy cover greater than 70 percent) closed-canopy forest in 2010 (km2) Proportion
  • (percent) with dense
  • forest 2
  • Wet Zone 15,090 1,966 13 Intermediate Zone 7,873 1,179 15 Dry Zone 39,366 3 11,238 29 Arid Zone 3,281 1 Calculated based on proportion of land area in each climate zone as provided in 81 FR 90302, Table 2, and a total land area of 65,610 km2. 2 Original extent of forest cover is unknown. However, each zone was likely close to 100% forested because dense forest covered 84% of the island in 1884, following several decades of deforestation. 3 Figure is for dry monsoon forest and riverine forest. It does not include mangrove forests.
    Forest Conservation Measures

    Sri Lanka has taken steps in recent decades to conserve its forests, and these efforts have contributed to the slowing of deforestation in the country (GOSL 2012, pp. 54-55). In 1990, the country imposed a moratorium on logging in all natural forests, marked most reserve boundaries to stem encroachments, and implemented management plans for forest and wildlife reserves, which became legal requirements under the Forest Ordinance Amendment Act No. 65 of 2009 and the Fauna and Flora Ordinance Amendment Act No. 22 of 2009 (GOSL 2014, p. 26). The government also encourages community participation in forest and protected area management, has implemented programs to engage residents in community forestry to reduce encroachment of cash crops and tea in the wet zone and slash-and-burn agriculture in the dry zone, and encourages use of non-forest lands and private woodlots for meeting the demands for wood and wood products (GOSL 2014, p. 26). In addition to these efforts, between 12 percent (GOSL 2015, unpaginated) and 28 percent (GOSL 2014, pp. xvi, 23) of the country's land area is reported to be under protected area status.

    Although considerable efforts have been undertaken in Sri Lanka in recent years to stop deforestation and forest degradation, these processes are ongoing (see Current and Future Forest Trends). The assessment of the status of natural forests during the Species Red List assessments in 2012 indicate that, despite advances in forest conservation in the country, many existing threats continue to impact forest habitats (GOSL 2014, p. 26). While laws and regulations are in place to address deforestation, several factors inhibit their implementation (GOSL 2012, pp. 55, 2a-3-148-150). For instance, lack of financial assistance for protected area management, increasing demand for land, and unplanned, after-the-fact legalization of land encroachments, result in further loss of the forest habitat of the five species addressed in this finding (GOSL 2014, p. 22; GOSL 2011, unpaginated). Also, government agencies have poor coordination with respect to forest conservation—conservation agencies are not always adequately consulted on initiatives to develop forested land (GOSL 2014, p. 22; MOE 2010, p. 31). Finally, many protected areas within the wet zone are small, degraded, and isolated (GOSL 2014, p. 31).

    Current and Future Forest Trends

    The current drivers of deforestation and forest degradation in Sri Lanka include a variety of factors such as small-scale encroachments, illicit timber harvesting, forest fires, destructive mining practices, and clearing of forest for developments, settlements, and agriculture (GOSL 2012, p. 12). These stressors are exacerbated by a large, dense human population that is projected to increase from 20.7 million in 2015 to 21.5 million in 2030 (United Nations 2015, p. 22). While the majority of remaining forested areas are protected, further population growth is likely to result in reduction of forested areas because (1) Sri Lanka already has a very high human density (329 people per km2 (852 per mi2)), (2) increases in the population will elevate an already high demand for land, and (3) little non-forested land is available for expansion of housing, development, cash crops, or subsistence agriculture (GOSL 2012, pp. 8, 14, 58). Most (72%) of the population of Sri Lanka is rural, dependence on agriculture for subsistence is widespread, and the rate of population growth is higher in rural areas. This results in an increasing demand in the country for land for subsistence (Lindstrom et al. 2012, p. 680; GOSL 2011, unpaginated).

    The current drivers of deforestation and forest degradation are exacerbated by high economic returns from illicit land conversions, lack of alternative livelihood opportunities for those practicing slash-and-burn agriculture and, in the dry zone, poverty and the weak implementation of land-use policy (GOSL 2012, pp. 14-15). Further, in the 30 years prior to 2009, Sri Lanka was engaged in a civil war, which was fought primarily in the dry zone of the northern and eastern regions of the country, many areas of which were inaccessible. The war, along with a reduced rate of development in the country as a whole during this period, may have helped limit deforestation rates (GOSL 2012, pp. 48, 56-57).

    Overall, deforestation and forest degradation in Sri Lanka are ongoing, although recent rates of deforestation are much lower than during the mid- to late-20th century—the rate of deforestation during 1992-2010 was 71 km2 (27.4 mi2) per year, compared to 400 km2 (154 mi2) per year during 1956-1992 (GOSL 2015, unpaginated). However, since the end of Sri Lanka's civil war in 2009, the government has been implementing an extensive 10-year development plan with the goal of transforming the country into a global economic and industrial hub (Buthpitiya 2013, p. ii; Central Bank of Sri Lanka 2012, p. 67; Ministry of Finance and Planning-Sri Lanka (MOFP) 2010, entire). The plan includes large infrastructure projects throughout the country (MOFP 2010, entire). Projects include, among other things, development of seaports, airports, expressways, railways, industrial parks, power plants, and water management systems that will allow for planned expansion of agriculture, and many of these projects have already started (Buthpitiya 2013, pp. 5-6; Central Bank of Sri Lanka 2012, p. 67; MOFP 2010, entire). They also include projects located within the ranges of all five species addressed in this finding, although the plan does not provide the amount of area that will be impacted by these projects (Fig. 2 and MOFP 2010, pp. 63, 93, 101, 202-298). For example, a new dam project within the range of P. smithi will submerge one of the two sites at which the species is found (Nanayakkara 2017, unpaginated). The rate of loss of natural forest (primary forest and other naturally regenerated forest) increased from 60 km2 (23 mi2) per year during 2000-2010 to 86 km2 (33 mi2) per year during 2010-2015 (FAO 2015b, pp. 44, 50). As post-war reconstruction and development continues in Sri Lanka, deforestation and forest degradation can be expected to rise (GOSL 2012, p. 2a-3-146).

    Coconut Plantations

    Coconut is grown throughout Sri Lanka. Most (57 percent) of the area under coconut cultivation is in the intermediate and wet zones north of Colombo (MOE 2011, p. 14), which overlaps with the southern portion of the range of P. fasciata. As indicated above, P. fasciata are sometimes found in coconut plantations in Sri Lanka, although the extent to which coconut plantations contribute to sustaining viable populations of these species is unknown. The ability of coconut plantations to contribute to conservation of P. fasciata is limited because: (1) Tarantulas are poor dispersers (see Tarantula General Biology); (2) colonization of coconut plantations by the species appears to depend on the occurrence of occupied natural forest in relatively close proximity to coconut plantations (Smith et al. 2001, entire); and (3) very little natural forest remains in the coconut-growing region in which P. fasciata occurs (Fig. 2 and GOSL 2015, unpaginated; MOE 2014, p. 94).

    The aerial extent of coconut cultivation in Sri Lanka has varied between about 3,630 and 4,200 km2 (1,402 and 1,622 mi2) since 2005 (Central Bank of Sri Lanka 2014, Statistical Appendix, Table 13), with no clear directional trend. However, due to the rising human population and resulting escalating demand for land in Sri Lanka, plantations have become increasingly fragmented due to conversion of these lands to housing (GOSL 2014, pp. 26-27). As indicated above, due to their limited dispersal ability, forest fragmentation is likely to isolate Poecilotheria populations, which increases their vulnerability to stochastic processes (see Stochastic Processes), and may also expose wandering males and dispersing juveniles to increased mortality from intentional killing or predation when they attempt to cross between forest fragments (Bond et al. 2006, p. 155) (see Intentional Killing). Thus, even though P. fasciata uses coconut plantations to some extent, fragmentation of this habitat is likely to isolate populations and increase their vulnerability to stochastic processes, intentional killing, and predation.

    Summary

    Sri Lanka has lost most of its forest cover due to a variety of factors over the past several decades. Very little (1,966 km2 (759 mi2)) wet zone forest—in which the ranges of P. ornata, P. smithi, and P. subfusca occur—remains in the country. The remainder is highly fragmented and continues to be deforested. Only about 35 percent (16,872 km2 (6,514 mi2)) of dense and open canopy dry and intermediate zone forests—in which the ranges of P. fasciata and P. vittata occur—remain, deforestation in these forests is ongoing, and recent rates of deforestation in the country have been highest in regions constituting large portions of the ranges of these two species. Forest cover continues to decline at a rate of 86 km2 (33 mi2) per year, and the rate of loss is higher in the dry zone than the wet zone. While the current rate of forest loss is much lower than in the previous century, the rate of loss of natural forest is increasing and is anticipated to increase in the future with the country's emphasis on development and the projected population increase of 800,000 people. While coconut plantations provide additional habitat for one species (P. fasciata) in some areas, these plantations are becoming increasingly fragmented due to demand for housing.

    Tarantulas have sedentary habits, limited dispersal ability, and highly structured populations. Therefore, loss of habitat has likely resulted in direct loss of individuals or populations and, consequently, a reduction in the distribution and genetic diversity of these species. The distribution of these species is already limited—each currently occupies less than 500 km2 (193 mi2) or, for P. smithi, less than 10 to 15 km2 (3.9 to 5.8 mi2) of its range—and deforestation continues within the ranges of all five species discussed in this finding. Further, the limited distribution of these species is likely continuing to decline with ongoing loss of habitat. We conclude that habitat loss is likely currently having significant negative impacts on the viability of these species because: (1) These species have very small distributions; (2) little forest remains in Sri Lanka; (3) remaining habitat is fragmented; and (4) deforestation is ongoing within these species' ranges.

    Pesticides

    Pesticides are identified as a threat to Poecilotheria species in Sri Lanka (Nanayakkara 2014b, unpublished data; Gabriel 2014, unpaginated). The five species addressed in this finding could potentially be exposed to pesticides via pesticide drift into forests that are adjacent to crop-growing areas; by traveling over pesticide-treated land when dispersing between forest patches; or by consuming prey that have been exposed to pesticides. Populations of these species could potentially be directly affected by pesticides through increased mortality or through sublethal effects such as reduced fecundity, fertility, and offspring viability, and changes in sex ratio, behavior, and dispersal (Nash et al. 2010, p. 1694, citing several sources). Poecilotheria species may also be indirectly affected by pesticides if pesticides reduce or deplete available prey species.

    Over 100 pesticide (herbicide, fungicide, and insecticide) active ingredients are registered for use in Sri Lanka. Among the most commonly used insecticides are carbofuran, diazinon, and chloropyrifos (Padmajani et al. 2014, pp. 11-12). These are broad-spectrum, neurotoxic insecticides, which tend to have very negative effects on nontarget organisms (Pekar 2013, p. 415). Further, sit-and-wait predators appear to be more sensitive to insecticide applications than web-making spiders (Pekar 1999, p. 1077).

    The use of pesticides in Sri Lanka has been increasing steadily since the 1950s (Selvarajah and Thiruchelvam 2007, p. 381). Pesticide imports into Sri Lanka increased by 50 percent in 2011 compared to 2006 (Padmajani et al. 2014, p. 11). The level of misuse and overuse of pesticides in Sri Lanka is high. Depending on region and crop species, 33 to 60 percent of Sri Lankan farmers use greater amounts, higher concentrations, or more frequent applications of pesticides (or a combination of these) than is recommended (Padmajani et al. 2014, pp. 13, 31, citing several sources).

    The susceptibility of spiders to the direct effects of different pesticides varies with pesticide type and formulation, spider species, development stage, sex, and abiotic and biotic conditions at the time of pesticide application (Pekar 2013, pp. 416-417). Further, different classes of pesticides can cause different sublethal effects. For instance, activities such as movement, prey capture, reproduction, development, and defense are particularly disrupted by neurotoxic formulations because they are governed by complex neural interactions. However, spiders can potentially recover from sublethal effects over several days (Pekar 2013, p. 417), although the effects are complicated by the potential for cumulative effects of multiple applications across a season (Nash et al. 2010, p. 1694).

    We are not aware of any information on the population-level effects of pesticides on Poecilotheria species. However, given the large proportion of Sri Lanka's human population that is reliant on farming, the high level of misuse and overuse of pesticides in the country, and the broad-spectrum and high level of toxicity of the insecticides commonly used in the country, it is likely that the species addressed in this finding are directly or indirectly negatively affected by pesticides to some extent. Therefore, while the population-level effects of pesticides on the five species addressed in this finding are uncertain, the effects of pesticides likely exacerbate the effects of other threats acting on these species.

    Climate Change

    The Intergovernmental Panel on Climate Change (IPCC) concluded that warming of the climate system is unequivocal (IPCC 2013, p. 4). Numerous long-term climate changes have been observed including changes in land surface temperatures, precipitation patterns, ocean temperature and salinity, sea ice extent, and sea level (IPCC 2013, pp. 4-12). Various types of changes in climate can have direct or indirect effects on species. These effects may be positive, neutral, or negative and they may change over time, depending on the species and other relevant considerations, such as the effects of interactions of climate with other variables (e.g., habitat fragmentation) (IPCC 2007, pp. 8-14, 18-19). However, a large fraction of terrestrial and freshwater species face increased extinction risk under projected climate change during and beyond the current century, especially as climate change interacts with habitat modification and other factors such as overexploitation, pollution, and invasive species (Settele et al. 2014, p. 275).

    Maintenance of body temperature and water retention by spiders is critical to their survival. All spiders, including Poecilotheria, are ectotherms; therefore, their body temperature varies with that of their environment. While spiders keep body temperature within tolerable limits through behaviors such as moving into shade when temperatures rise (Pulz 1987, pp. 27, 34-35), they are susceptible to rapid fluctuations in body temperature and severe depletion of body water stores due to their relatively low body mass and high surface-to-volume ratio (Pulz 1987, p. 27).

    Tropical ectotherms evolved in an environment of relatively low inter- and intra-annual climate variability, and already live near their upper thermal limits (Settele et al. 2014, p. 301; Deutsch et al. 2008, p. 6669). Their capacity to acclimate is generally low. They have small thermal safety margins, and small amounts of warming may decrease their ability to perform basic physiological functions such as development, growth, and reproduction (Deutsch et al. 2008, pp. 6668-6669, 6671). Evidence also indicates they may have low potential to increase their resistance to desiccation (drying out) (Schilthuizen and Kellerman 2014, p. 61, citing several sources).

    The general trend in temperature in Sri Lanka over the past several decades is that of increasing temperature, although with considerable variation between locations in rates and magnitudes of change (De Costa 2008, p. 87; De Silva et al. 2007, p. 21, citing several sources). Over the six to ten decades prior to 2007, temperatures have increased within all climate zones of the country, although rates of increase vary from 0.065 °C (0.117 °F) per decade in Ratnapura (an increase of 0.65 °C (1.17 °F) during the 97-year period analyzed) in the lowland wet zone, to 0.195 °C (0.351 °F) per decade in Anuradhapura (an increase of 1.50 °C (2.70 °F) during the 77-year period analyzed) in the dry zone. In the montane region, temperatures increased at a rate of 0.141 °C (0.254 °F) per decade at Nuwara Eliya to 0.191 °C (0.344 °F) per decade at Badulla (increases of 1.09 and 1.47 °C (1.96 and 2.65 °F) during the 77-year period analyzed, respectively) (De Costa 2008, p. 68). The rate of warming has increased in more recent years—overall temperature in the country increased at a rate of 0.003 °C (0.005 °F) per year during 1896-1996, 0.016 °C (0.029 °F) per year during 1961-1990, and 0.025 °C (0.045 °F) per year during 1987-1996 (Eriyagama et al. 2010, p. 2, citing several sources). Depending on future climate scenarios, temperatures are projected to increase by 2.93 to 5.44 °C (5.27 to 9.49 °F) by the end of the current century in South Asia (Cruz et al. 2007, in Eriyagama et al. 2010, p. 6). Downscaled projections for Sri Lanka using regional climate models report increases of 2.0 to 4.0 °C (3.6 to 7.2 °F) by 2100, while statistical downscaling of global climate models report increases of 0.9 to 3 °C (1.62 to 5.4 °F) by 2100 and 1.2 to 1.3 °C (2.16 to 2.34 °F) by 2050 (Eriyagama et al. 2010, p. 6, citing several sources).

    Trends in rainfall have been decreasing in Sri Lanka over the past several decades (see De Costa 2008, p. 87; De Silva et al. 2007, p. 21, citing several sources) although, according to the Climate Change Secretariat of Sri Lanka (2015, p. 19), there is no consensus on this fact. However, authors appear to agree that the intensity and frequency of extreme events such as droughts and floods have increased (Imbulana et al. 2016 and Ratnayake and Herath 2005, in Climate Change Secretariat of Sri Lanka 2015, p. 19).

    Rainfall in Sri Lanka is highly variable from year to year, across seasons and across locations within any given year (Jayatillake et al. 2005, p. 70). Statistically significant declines in rainfall have been observed for the period 1869-2007 at Anuradhapura in the northern dry zone (12.92 mm (0.51 in) per decade), and Badulla, Kandy, and Nuwara Eliya (19.16, 30.50, and 51.60 mm (0.75, 1.20, and 2.03 in) per decade, respectively) in the central highlands (De Costa 2008, p. 77). Significant declines have also been observed in more recent decades at Kurunegala in western Sri Lanka's intermediate zone (120.57 mm (4.75 in) per decade during 1970-2007) and Ratnapura (41.02 mm (1.61 in) per decade during 1920-2007) (De Costa 2008, p. 77). Further, a significant trend of decreasing rainfall with increasing temperature exists at Anuradhapura, Kurunegala, and Nuwara Eliya (De Costa 2008, pp. 79-81). Patterns of future rainfall in the country are highly uncertain—studies provide variable and conflicting projections (Eriyagama et al. p. 6, citing several sources). However, an increased frequency of dry periods and droughts are expected (MOE 2010, p. 35).

    While observed and projected changes in temperature and precipitation could potentially be within the tolerance limits of the Poecilotheria species addressed in this finding, it is possible that climate change could directly negatively affect these species through rising land surface temperatures, changes in the amount and pattern of precipitation, and increases in the frequency and intensity of extreme climate events such as heat waves or droughts. It is also possible that climate change could indirectly negatively affect these species by adversely impacting populations of their insect prey, which are also tropical ectotherms. The only detailed observations of a Sri Lankan Poecilotheria species indicated that P. fasciata found in natural forest were emaciated and without spiderlings during an extended drought, while those found in an irrigated plantation had wider girths and spiderlings (see Species-Specific Information) (Smith et al. 2001, entire). The lack of reproduction in natural forest during drought may have been due to desiccation stress or lack of available prey, or both, as a result of low moisture levels.

    While at least one of the species addressed in this finding (P. fasciata) appears to be vulnerable to drought, the responses of the five Poecilotheria species to observed and projected climate change in Sri Lanka are largely unknown. However, the climate in Sri Lanka has already changed considerably in all climate zones of the country, and continues to change at an increasing rate. These species evolved in specific, relatively stable climates and, because they are tropical ectotherms, may be sensitive to changing environmental conditions, particularly temperature and moisture (Deutsch et al. 2008, pp. 6668-6669; Schilthuizen and Kellerman 2014, pp. 59-61, citing several sources). Moreover, because they have poor dispersal ability, Peocilotheria are unlikely to be able to escape changing climate conditions via range shifts. Therefore, while population-level responses of the five species addressed in this finding to observed and projected changes in climate are not certain, the stress imposed on these species by increasing temperatures and changing patterns of precipitation is likely exacerbating the effects of other factors acting on these species such as stochastic events and habitat loss and degradation. This is especially the case for P. fasciata because (1) the frequency and intensity of droughts have increased and are expected to continue increasing, (2) the species fails to reproduce in natural forest during extended droughts, and (3) although P. fasciata is also known to inhabit irrigated coconut plantations, most populations have been found in natural forest.

    Trade

    Poecilotheria species are popular in trade due to their striking coloration and large size (Nanayakkara 2014a, p. 86; Molur et al. 2006, p. 23). In 2000, concerned about increasing trade in these species, Sri Lanka and the United States co-sponsored a proposal to include the genus in Appendix II of the Convention on International Trade in Endangered Species of Wild Fauna and Flora (CITES) (Government of Sri Lanka and Government of the United States 2000, entire). However, at the 11th Conference of the Parties, the proposal was criticized as containing too little information on international trade and on the limits of the distribution of the genus. It was further noted that the genus was primarily threatened by habitat destruction, and was not protected by domestic legislation in India. Also, the delegation of Sri Lanka promised to list the genus in Appendix III if the proposal failed. No consensus was reached on the proposal and a vote failed to achieve the required two-thirds majority—there were 49 votes in favor, 30 against, and 27 abstentions—and the proposal was therefore rejected (Convention on International Trade in Endangered Species of Wild Fauna and Flora 2000, p. 50). None of the five species addressed in this rule are currently listed in the CITES Appendices (Convention on International Trade in Endangered Species of Wild Fauna and Flora 2017, p. 48).

    Collection of Poecilotheria specimens from the wild could have significant negative impacts on Poecilotheria populations. Due to the patchy distributions and poor dispersal abilities of tarantulas, collection of several individuals from a single location could potentially reduce the abundance or distribution of a species, especially those with restricted distributions (Molur et al. 2006, p. 14; West et al. 2001, unpaginated). Further, because tarantula populations are highly structured, loss of individuals from a single location could result in significant loss of that species' genetic diversity (Bond 2006, p. 154). Collection of a relatively large number of individuals from a single population could also alter population demographics such that the survival of a species or population is more vulnerable to the effects of other factors, such as habitat loss.

    Collection of species from the wild for trade often begins when a new species is described or when a rare species has been rediscovered. Alerted to a new or novel species, collectors arrive at the reported location and set out collecting the species from the wild (Molur et al. 2006, p. 15; Stuart et al. 2006, entire). For tarantulas, adult females may be especially vulnerable to collection pressures as collectors often attempt to capture females, which produce young that can be sold (Capannini 2003, p. 107). Collectors then sell the collected specimens or their offspring to hobbyists who captive-rear the species and provide the pet trade with captive-bred specimens (Gabriel 2014, unpaginated; Molur et al. 2006, p. 16). Thus, more individuals are likely to be captured from the wild during the period in which captive-breeding stocks are being established, in other words, prior to the species becoming broadly available in trade (Gabriel 2014, unpaginated).

    All five of the endemic Sri Lankan species addressed in this rule are bred by hobbyists and vendors and are available in the pet trade as captive-bred individuals in the United States, Europe, and elsewhere (see Herndon 2014, pers. comm.; Elowsky 2014, unpaginated; Gabriel 2014, unpaginated; Longhorn 2014a, unpaginated; Longhorn 2014b, unpaginated; Mugleston 2014, unpaginated; Service 2012, in litt.). We are not aware of any information on numbers of these species in domestic trade within the United States or numbers solely in foreign trade outside the United States. The Service's Law Enforcement Management Information System contains information on U.S. international trade in three of these species—P. fasciata, P. ornata, and P. vittata (it does not currently collect information on P. smithi or P. subfusca). Four hundred individuals of these species were legally imported into, or exported or re-exported from, the United States during 2007-2012; 298 were imported into, and 106 were exported or re-exported from, the United States.

    Captive-bred individuals appear to supply the majority of the current legal trade in these species in the United States. Of the 400 individuals legally imported into, or exported or re-exported from, the United States during 2007-2012, 392 (98 percent) were declared as captive-bred (Service 2012, in litt.). However, wild individuals of at least some of these species are still being collected (Nanayakkara 2014a, p. 86; Nanayakkara 2014b, unpublished data; Service 2012, in litt.). Two sources indicate that there is evidence of illegal smuggling from Sri Lanka, although they do not provide details (see Nanayakkara 2014, p. 85; Samarawckrama et al. 2005, p. 76). Further, of the 400 individuals of Sri Lankan Poecilotheria imported into, or exported or re-exported from, the United States during 2007-2012, 8 P. vittata were declared as wild-caught. It is possible that additional wild-caught individuals of the five species addressed in this rule were (or are) not included in this total because they are imported into the United States illegally, or imported into other countries. For example, some wild-caught specimens are imported into Europe (Merzlak 2017, unpaginated; Corcoran, 2016, unpaginated), although specific information on this activity is not available.

    Sri Lanka prohibits the commercial collection and exportation of all Poecilotheria species, under the Sri Lanka Flora and Fauna Protection (Amendment) Act, No. 22 of 2009, which is part of the Fauna and Flora Protection Ordinance No. 2 (1937) (DLA Piper 2015, p. 392; Government of Sri Lanka and Government of the United States 2000, p. 5). However, enforcement is weak and influenced by corruption (DLA Piper 2015, p. 392; GOSL 2012, p. 2a-3-149).

    In sum, individuals of at least some of these species are currently being collected from the wild. However, the extent to which this activity is occurring is unknown, as is the extent to which these species have been, or are being, affected by collection. Based on the available information on U.S. imports, exports, and re-exports, a small amount of trade occurs in wild specimens of these species. However, it is likely that more wild specimens enter Europe or Asia than the United States due to the closer proximity of Sri Lanka to Europe and Asia and consequent increased ease of travel and transport of specimens. Further, even small amounts of collection of species with small populations can have a negative impact on these species. Given that collection of at least some of these species from the wild continues to occur, it is likely that collection for trade is exacerbating population effects of other factors negatively impacting these species, such as stochastic events, habitat loss, and habitat degradation.

    Intentional Killing

    Poecilotheria spiders are feared by humans in Sri Lanka and, as a result, are usually killed when encountered (Kekulandala and Goonatilake 2015, unpaginated; Nanayakkara 2014a, p. 86; Gabriel 2014, unpaginated; Smith et al. 2001, p. 49). Intentional killing of Poecilotheria spiders may negatively impact these five species by raising mortality rates in these species' populations to such an extent that populations decline or are more vulnerable to the effects of other factors, such as habitat loss. Adult male Poecilotheria are probably more vulnerable to being intentionally killed because they wander in search of females during the breeding season (see Tarantula General Biology) and thus are more likely to be encountered by people. Consequently, intentional killing could potentially reduce the density of males in an area. Because the mating of a female depends on a male finding her, and males search for females randomly, a reduction in the density of males could result in a reduction in the percent of females laying eggs in any given year (Stradling 1994, p. 96) and, consequently, a lower population growth rate.

    We do not have any information on the number of individuals of these five species that are intentionally killed by people. However, in areas where these species occur, higher human densities are likely to result in higher human contact with these species and, consequently, higher numbers of spiders killed. The human population density in Sri Lanka is much higher in the wet zone (see Habitat Loss and Degradation). Therefore, it is likely that P. ornata, P. smithi, and P. subfusca are affected by intentional killing more than P. fasciata and P. vittata. Although we do not have any information indicating the numbers of individuals of these species that are intentionally killed each year, it is likely that such killing is exacerbating the negative effects of other factors on these species' populations, such as habitat loss and degradation.

    Stochastic (Random) Events and Processes

    Species endemic to small regions, or known from few, widely dispersed locations, are inherently more vulnerable to extinction than widespread species because of the higher risks from localized stochastic (random) events and processes, such as floods, fire, landslides, and drought (Brooks et al. 2008, pp. 455-456; Mangel and Tier 1994, entire; Pimm et al. 1988, p. 757). These problems can be further magnified when populations are very small, due to genetic bottlenecks (reduced genetic diversity resulting from fewer individuals contributing to the species' overall gene pool) and random demographic fluctuations (Lande 1988, pp. 1455-1458; Pimm et al. 1988, p. 757). Species with few populations, limited geographic area, and a small number of individuals face an increased likelihood of stochastic extinction due to changes in demography, the environment, genetics, or other factors, in a process described as an extinction vortex (a mutual reinforcement that occurs among biotic and abiotic processes that drives population size downward to extinction) (Gilpin and Soule´ 1986, pp. 24-25). The negative impacts associated with small population size and vulnerability to random demographic fluctuations or natural catastrophes can be further magnified by synergistic interactions with other threats.

    P. smithi is known from very few widely dispersed locations and is likely very rare (see Species-Specific Information). Therefore, it is highly likely that P. smithi is extremely vulnerable to stochastic processes and that the species is highly likely negatively impacted by these processes. The remaining four species have narrow ranges within specific climate zones of Sri Lanka. It is unclear whether the range sizes of these four are so small that stochastic processes on their own are likely to have significant negative impacts on these species. However, stochastic processes may have negative impacts on these species in combination with other factors such as habitat loss, because habitat loss can further fragment and isolate populations.

    Determinations

    Section 4 of the Act (16 U.S.C. 1533), and its implementing regulations at 50 CFR part 424, set forth the procedures for adding species to the Federal Lists of Endangered and Threatened Wildlife and Plants. Under section 4(a)(1) of the Act, we determine whether a species meets the definition of a “threatened species” or an “endangered species” because of any one or more of the following five threat factors or the cumulative effects thereof: (A) The present or threatened destruction, modification, or curtailment of its habitat or range; (B) Overutilization for commercial, recreational, scientific, or educational purposes; (C) Disease or predation; (D) The inadequacy of existing regulatory mechanisms; or (E) Other natural or manmade factors affecting its continued existence.

    We have carefully assessed the best scientific and commercial information available on P. fasciata, P. ornata, P. subfusca, P. smithi, and P. vittata. While information on species abundance or population dynamics is not available on these species, the best available information indicates these species' populations have experienced extensive declines in the past and their populations continue to decline. Tarantulas have limited dispersal ability and sedentary habits; therefore, the loss of habitat (Factor A) likely results in direct loss of individuals or populations and, consequently, a reduction in the distribution of the species. As a result, the extensive loss of forest (71 percent in the dry zone, 85 percent in the intermediate zone, and 87 percent in the wet zone) has reduced the amount of habitat where the species may remain, and their populations will likely continue to decline with ongoing deforestation. Further, because these species likely have highly structured populations, reductions in these species' populations have likely resulted in coincident loss of these species' unique genetic diversities, eroding the adaptive and evolutionary potential of these species (Bond 2006, p. 154).

    All five Sri Lankan Poecilotheria species have restricted ranges within specific regions and climates of Sri Lanka and are currently estimated to occupy areas of less than 500 km2 (193 mi2), and less than 10-15 km2 (4-6 mi2) for P. smithi. Due to the life-history traits of tarantulas—restricted range, sedentary habits, poor dispersal ability, and structured populations—these species are vulnerable to habitat loss. Extensive habitat loss (Factor A) has already occurred in all the climate zones in which these species occur, and deforestation is ongoing in the country. Further, the cumulative effects of changing climate, intentional killing, pesticides, capture for the pet trade, and stochastic processes are likely significantly exacerbating the effects of habitat loss.

    Therefore, for the following reasons we conclude populations of P. fasciata, P. ornata, P. subfusca, P. smithi, and P. vittata have been and continue to be significantly reduced to the extent that the viability of each of these five species is significantly compromised:

    (1) These species are closely tied to their habitats, little of their forest habitat remains, deforestation is ongoing in these habitats, and these species are vulnerable to habitat loss;

    (2) these species' have poor dispersal ability, are unlikely to be able to escape changing climate conditions via range shifts, and Sri Lanka's climate is changing at increasing rates;

    (3) the cumulative effects of climate change, intentional killing, pesticides, capture for the pet trade, and stochastic processes are likely significantly exacerbating the effects of habitat loss; and

    (4) P. smithi is known from few locations, is likely rare, and very likely vulnerable to stochastic processes.

    The Act defines an endangered species in section 3(6) of the Act as any species that is “in danger of extinction throughout all or a significant portion of its range” and a threatened species in section 3(20) of the Act as any species that is “likely to become an endangered species within the foreseeable future throughout all or a significant portion of its range.”

    Based on the factors described above and their impacts on P. fasciata, P. ornata, P. smithi, P. subfusca, and P. vittata, we find the following factors to be threats to these species (i.e., factors contributing to the risk of extinction of these species): Loss of habitat (Factor A; all five species), stochastic processes (Factor E; P. smithi), and the cumulative effects (Factor E; all five species) of these and other threats including climate change, intentional killing, pesticide use, and capture for the pet trade. Furthermore, despite laws in place to protect these five species and the forest and other habitat they depend on, these threats continue (Factor D), in part due to lack of resources and challenges to enforcement. We consider the risk of extinction of these five species to be high because these species are vulnerable to habitat loss, this process is ongoing, and these species have limited potential to recolonize reforested areas or move to more favorable climate. We find that P. fasciata, P. ornata, P. smithi, P. subfusca, and P. vittata are presently in danger of extinction throughout their ranges based on the likely severity and immediacy of threats currently impacting these species, and we are listing these five tarantula species as endangered in accordance with sections 3(6) and 4(a)(1) of the Act. We find that a threatened species status is not appropriate for these species because of their restricted ranges, limited distributions, and vulnerability to extinction and because the threats are ongoing throughout their ranges at a level that places these species in danger of extinction now, even without the worsening of the threats, that, as discussed above, is likely.

    Under the Act and our implementing regulations, a species may warrant listing if it is endangered or threatened throughout all or a significant portion of its range. Because we have determined that P. fasciata, P. ornata, P. smithi, P. subfusca, and P. vittata are endangered throughout all of their ranges, we do not need to conduct an analysis of whether there is any significant portion of their ranges where these species are in danger of extinction or likely to become so in the foreseeable future. This is consistent with the Act because when we find that a species is currently in danger of extinction throughout all of its range (i.e., meets the definition of an endangered species), the species is experiencing high-magnitude threats across its range or threats are so high in particular areas that they severely affect the species across its range. Therefore, the species is in danger of extinction throughout every portion of its range and an analysis of whether there is any significant portion of the range that may be in danger of extinction or likely to become so would not result in a different outcome.

    Available Conservation Measures

    Conservation measures provided to species listed as endangered or threatened under the Act include recognition of conservation status, requirements for Federal protection, and prohibitions against certain practices. Recognition through listing encourages and results in public awareness and conservation actions by Federal and State governments in the United States, foreign governments, private agencies and groups, and individuals.

    Section 7(a) of the Act, as amended, and as implemented by regulations at 50 CFR part 402, requires Federal agencies to evaluate their actions that are to be conducted within the United States or upon the high seas, with respect to any species that is listed as an endangered or threatened species. Because P. fasciata, P. ornata, P. smithi, P. subfusca, and P. vittata are not native to the United States, no critical habitat is being designated with this rule. Regulations implementing the interagency cooperation provision of the Act are codified at 50 CFR part 402. Section 7(a)(2) of the Act requires Federal agencies to ensure that activities they authorize, fund, or carry out are not likely to jeopardize the continued existence of a listed species or to destroy or adversely modify its critical habitat. If a proposed Federal action may adversely affect a listed species, the responsible Federal agency must enter into formal consultation with the Service. Currently, with respect to P. fasciata, P. ornata, P. smithi, P. subfusca, and P. vittata, no Federal activities are known that would require consultation.

    Section 8(a) of the Act authorizes the provision of limited financial assistance for the development and management of programs that the Secretary of the Interior determines to be necessary or useful for the conservation of endangered or threatened species in foreign countries. Sections 8(b) and 8(c) of the Act authorize the Secretary to encourage conservation programs for foreign listed species, and to provide assistance for such programs, in the form of personnel and the training of personnel.

    Section 9 of the Act and our implementing regulations at 50 CFR 17.21 set forth a series of general prohibitions that apply to all endangered wildlife. These prohibitions, in part, make it illegal for any person subject to the jurisdiction of the United States to “take” (which includes harass, harm, pursue, hunt, shoot, wound, kill, trap, capture, or collect; or to attempt any of these) endangered wildlife within the United States or upon the high seas. It is also illegal to possess, sell, deliver, carry, transport, or ship any such wildlife that has been taken illegally. In addition, it is illegal for any person subject to the jurisdiction of the United States to import; export; deliver, receive, carry, transport, or ship in interstate or foreign commerce, by any means whatsoever and in the course of commercial activity; or sell or offer for sale in interstate or foreign commerce any listed species. Certain exceptions apply to employees of the Service, the National Marine Fisheries Service, other Federal land management agencies, and State conservation agencies.

    We may issue permits to carry out otherwise prohibited activities involving endangered wildlife under certain circumstances. No permit is required for activities that do not constitute prohibited acts. Regulations governing permits for endangered species are codified at 50 CFR 17.22. With regard to endangered wildlife, a permit may be issued for the following purposes: For scientific purposes, to enhance the propagation or survival of the species, and for incidental take in connection with otherwise lawful activities. The Service may also register persons subject to the jurisdiction of the United States through its captive-bred-wildlife (CBW) program if certain established requirements are met under the CBW regulations. 50 CFR 17.21(g). Through a CBW registration, the Service may allow a registrant to conduct certain otherwise prohibited activities under certain circumstances to enhance the propagation or survival of the affected species: Take; export or re-import; deliver, receive, carry, transport or ship in interstate or foreign commerce, in the course of a commercial activity; or sell or offer for sale in interstate or foreign commerce. A CBW registration may authorize interstate purchase and sale only between entities that both hold a registration for the taxon concerned. The CBW program is available for species having a natural geographic distribution not including any part of the United States and other species that the Director has determined to be eligible by regulation. The individual specimens must have been born in captivity in the United States. There are also certain statutory exemptions from the prohibitions, which are found in sections 9 and 10 of the Act.

    Summary of Comments and Recommendations

    In the proposed rule published on December 14, 2016 (81 FR 90297), we requested that all interested parties submit written comments on the proposal by February 13, 2017. We also contacted appropriate scientific experts and organizations, and other interested parties and invited them to comment on the proposal. We did not receive any requests for a public hearing. All substantive information provided during comment periods has either been incorporated directly into this final determination or is addressed below.

    Peer Reviewer Comments

    In accordance with our peer review policy published on July 1, 1994 (59 FR 34270), we solicited expert opinion from four knowledgeable individuals with scientific expertise that included familiarity with Poecilotheria species or other tarantulas, their habitats and biological needs, and stressors acting on their populations. We received responses from two of the peer reviewers from whom we requested comments. One did not review the rule but provided additional information regarding a threat to the habitat of P. smithi, and we have incorporated this information into this final rule. The second peer reviewer supported our determinations based on our assessment of some threats, but disagreed with our assessment of others. This peer reviewer also provided a technical correction pertaining to our physical description of Poecilotheria species, and we have incorporated this information into this final rule.

    We reviewed all comments received from the peer reviewers for substantive and new information regarding the listing of the five species addressed in this rule. Peer reviewer comments are addressed in the following summary and incorporated into the final rule as appropriate.

    (1) Comment: Citing the taxonomic revision done by Gabriel et al. (2013, entire), and the World Spider Catalog, the peer reviewer states that P. vittata is not endemic to Sri Lanka, but rather that P. vittata was synonymized with the Indian species P. striata and recently removed from this synonymy.

    Our response: Gabriel et al. (2013, entire) not only remove P. vittata from synonymy with the Indian species P. striata, but also show P. vittata to be the senior synonym of P. pederseni. Further, the World Spider Catalog (2017, unpaginated) recognizes this synonymy, identifying P. pederseni as a synonym of P. vittata. Therefore, in this final rule we retain the taxonomy provided in our proposed rule.

    (2) Comment: The peer reviewer indicated that our conclusions regarding the effects of climate change and pesticides on these species are speculative because no studies have been conducted on the effects of these factors on Poecilotheria species. The peer reviewer also indicates that Poecilotheria are unlikely to come in direct contact with pesticides because they live in forests, which are not generally sprayed, and are nocturnal so are not active when spraying occurs. The peer reviewer indicates that studies on spiders in agroecosystems show spiders that do not have direct contact with pesticides survive. However, the peer reviewer did not provide any new information or evidence supporting her assertions.

    Our response: While no studies have been carried out specifically assessing the effects of stress factors on any Poecilotheria species, the Act requires that we make our determination of species status based on the best scientific and commercial data available at the time of our rulemaking. In conducting our assessment of the statuses of these species, we reviewed all relevant information available to us, including information submitted to us following the initiation of the 12-month status reviews for these species. We subsequently based our conclusions regarding the factors affecting these five species on the best available information. We acknowledged in our proposed rule that the population-level effects of climate change and pesticides on these species are uncertain. However, as indicated in our proposed rule, the best available information indicates that these stressors are likely negatively affecting these species, either directly or indirectly, to some extent. Consequently, it is reasonable to conclude, as we did in our proposed rule, that pesticides and climate change likely exacerbate the effects of other stressors acting on these species. Therefore, because we based our conclusions on the best available information, and the peer reviewer provided no evidence or new information for our review, we did not revise our conclusions regarding the effects of climate change or pesticides on these five species.

    We cannot assess the studies to which the reviewer refers regarding the effects of pesticides on spiders because the reviewer did not provide copies of these studies or the citations for them. Further, while we agree that some members of these species' populations are unlikely to have direct contact with pesticides, we do not agree that is the case for all members, particularly those inhabiting fragmented forests or remnant forest patches. As indicated in our proposed rule, these species could be exposed to pesticides via pesticide drift into forests that are adjacent to crop-growing areas, by traveling over pesticide treated land when dispersing between forest patches, or by consuming prey that have been exposed to pesticides (see Pesticides). Also, the most commonly used insecticides in Sri Lanka—carbofuran, chlorpyrifos, and diazinon—can remain active in the environment for days after application (Kamrin 1997, in Christensen et al. 2009, unpaginated; Karmin 1997, in Harper et al. 2009, unpaginated; U.S. National Library of Medicine 1995, in EXTOXNET 1996, unpaginated). Therefore, these five species could be directly and negatively affected by these pesticides after spraying occurs. They could also be indirectly affected by pesticides through consumption of contaminated prey, or reduction or depletion of prey populations. Taken together, and considering the extent of pesticide use and misuse in the country, it is likely that the five species addressed in this rule are directly or indirectly negatively affected by pesticides to some extent and that these effects likely exacerbate the effects of other threats acting on these species.

    Public Comments

    We received 115 public comments on the proposed listing of these species, most from people involved in the tarantula hobby as owners, breeders, or sellers. We reviewed all comments received from the public for substantive issues and new information regarding the listing of the five species addressed in this rule. Public comments are addressed in the following summary and incorporated into the final rule as appropriate. A few commenters provided new information on Poecilotheria biology or trade, and we have incorporated this information into the corresponding sections of this rule.

    (1) Comment: Several commenters questioned certain information in our proposed rule. Several claimed that we inaccurately characterized the degree or effects (or both) of inbreeding or maladaptation in captive specimens of these species. Another questioned our assessment of the ability of these species to adapt to changing climate in Sri Lanka. Many of these commenters cited their own anecdotal observations of captive specimens to support their claims while the remaining commenters provided no new information. A few other commenters claimed, more generally, that we used outdated references or erroneous information, or misrepresented the findings of cited authors. However, these commenters also provided no new references or information supporting their claims.

    Our Response: The Act requires that we use the best available scientific and commercial data to determine if a species meets the definition of a “threatened species” or an “endangered species” because of any one or a combination of the five factors found in section 4(a)(1) of the Act. This analysis includes an analysis of the extent to which captive-held members of a species create or contribute to threats to the species (for example, by fueling trade) or the extent to which captive-held members of a species remove or reduce threats to the species by contributing to the conservation of the species (for example, by providing specimens for population augmentation or reintroduction). In conducting our analysis, we reviewed all relevant information available to us on these species, including information submitted to us following the initiation of the 12-month status reviews for these species. We based our proposed rule, including the discussion and conclusions regarding captive Poecilotheria, on the best scientific and commercial data available to us at the time of our proposed rule. In addition, we reviewed all comments and information submitted by the public and peer reviewers during the public comment period for our proposed rule and base this final rule on the best available information.

    Although some commenters provided anecdotal observations of captive specimens to support their assertions regarding the effects of inbreeding and maladaptation in captive specimens, or the ability of captive specimens to adapt to climate conditions, observations of health or survivability in captive conditions are not informative to predicting health or survivability in wild conditions because selection pressures in the wild differ greatly from those in captivity. Therefore, in this final rule we did not change any of our conclusions on these topics. However, we revised the section on Captive Poecilotheria to clarify the bases of our conclusions.

    (2) Comment: A few commenters suggested that we did not consider the knowledge or efforts of hobbyists in our proposal.

    Our Response: As required by the Act, we based our determinations on the best scientific and commercial information available. In doing so, we reviewed all information available to us on these species, including information submitted to us by the public following initiation of our 12-month status reviews for these species. This included information and dozens of articles from hobbyist publications. Further, we cited several of these sources in our proposal and retained these citations in this final rule.

    (3) Comment: Some commenters believe that we inaccurately suggested in our proposed rule that all captive-bred specimens of these species have limited value to the conservation of these species—that all are inbred, maladapted to conditions in the wild, or hybridized—and that we did not acknowledge the knowledge and good practices of reputable breeders. A few suggest that genetic tests could determine which captives could potentially be useful for a conservation breeding program.

    Our Response: We appreciate the level of knowledge and care taken by reputable hobbyists when breeding these species. However, we acknowledged the uncertainties pertaining to the levels of inbreeding and hybridization in pet trade specimens in our proposed rule by indicating that captive individuals of these species “may be inbred or maladapted to conditions in the wild” and “likely include an unknown number of hybrids” (see Captive Poecilotheria). Further, as indicated above, we have revised the section on captive Poecilotheria to clarify the bases of our conclusions. With respect to determining the genetic appropriateness of captive specimens for conservation via genetic testing, the Act requires us to make our decision based on the best available information at the time we make our decision, and we are not aware of any genetic studies on any individuals of these species, captive or wild. Even if such information existed, we have no information indicating that pet trade specimens are contributing to the conservation of these species in the wild, for instance, as part of a reintroduction program. Therefore, we have not changed our conclusions regarding captive specimens of these species.

    (4) Comment: A few commenters assert that the extent of hybridization of these species in the pet trade is likely low because tarantula hobbyists are strongly opposed to hybridization of species, and because breeders can distinguish between species of adult specimens and take care not to cross-breed them.

    Our Response: Again, we appreciate the level of knowledge and care taken by reputable hobbyists when breeding these species. However, because (1) genetic studies have not been conducted on any of these species, (2) evidence indicates that hybrids do occur in the hobby, (3) hybridization may not be visually apparent in captive individuals, and (4) the lineages of pet trade specimens of these species are not documented, the extent of hybridization in any particular captive specimen—be it high, low, or nonexistent—is unknown.

    (5) Comment: Several commenters believe that captive-bred specimens in the pet trade are beneficial or necessary to the conservation of these species. They believe captive-bred specimens provide a safety net for these species to prevent extinction, increase public awareness, provide for education and research, supply zoos, and take the collection pressure off wild populations by fulling the demand for these species as pets. Two commenters assert that these species are not in danger of extinction because many exist in captivity.

    Our Response: The goal of the Act is survival and recovery of endangered and threatened species and the ecosystems on which they depend. Therefore, when analyzing threats to a species, we focus our analysis on threats acting upon its survival in the wild, generally within the native range of the species. In our assessment of the status of a species, the extent to which captive-held members of a species create or contribute to threats to the species (for example, by fueling trade) or the extent to which captive-held members of a species remove or reduce threats to the species by contributing to the conservation of the species in the wild (for example, by providing specimens for population augmentation or reintroduction) is part of the analysis we conduct under section 4(a)(1) of the Act to determine if the species meets the definition of an endangered species or a threatened species. Further, the Act requires that we make our decision based on the best scientific and commercial data available at the time our decision is made. As indicated in our proposed rule, we are not aware of any existing conservation programs for these species or information indicating that pet trade specimens contribute to the viability of these species within their native ranges in the wild, and have clarified this in revisions to the Captive Poecilotheria section of this rule. We also determined that pet trade specimens likely hold limited value to the conservation of these species in the wild. However, we acknowledge that some pet trade specimens could potentially contribute to the conservation of these species in the wild if, for example, they became part of a genetically managed conservation breeding program. Persons seeking to engage in otherwise prohibited activities with endangered wildlife for scientific purposes or to enhance the propagation or survival of these species may seek authorization from the Service (see Available Conservation Measures).

    We also have no information indicating that current or future education or research efforts are being conducted or planned with captive-bred pet trade specimens of these species for conservation purposes, or any evidence that populations in the wild are benefiting from current education or research efforts using captive-bred pet trade specimens. The best scientific and commercial data available indicate that as of September 2017 there were only 19 specimens in captivity in zoos worldwide (11 P. fasciata, 1 P. ornata, 2 P. vitatta, 5 P. subfusca) (Species360 2017, unpaginated).

    With respect to trade, certain prohibitions, certain exceptions, and other conservation measures established through the Act are available for endangered species upon listing (see Available Conservation Measures). Therefore, they are provided by law to fulfill the purposes and policy of the Act. The effects of legal trade of a species on wild populations and market demand for that species is a complex phenomenon influenced by a variety of factors (Bulte and Damania 2005, entire; Fischer 2004, entire), and we are not aware of any evidence indicating that the pet trade of captive-bred specimens of these species are benefitting wild populations.

    (6) Comment: One commenter expressed concern that listing these species as endangered would likely result in their extinction due to forcing breeders to stop breeding unless they apply for a permit. The commenter also indicated that specimens possessed by hobbyists that are unable to be used in repopulation efforts would not fall under the protections of the Act because they are “unpure specimens”.

    Our Response: As explained in response to comments below, captive breeding and many activities related to captive breeding are not prohibited under the Act. Persons seeking to engage in activities that are not prohibited under the Act do not need a permit under the Act. While we are not certain how this commenter defines “unpure”, the protections of the Act apply to all members of these five species as explained in response to comments below. We recommend that breeding records be maintained to show parentage.

    (7) Comment: Several commenters requested we exempt captive-bred specimens and their offspring from possession and interstate sales regulations, allowing ownership and interstate trade of these species to occur without obtaining a permit under the Act.

    Our Response: Because we determined that all five of these species meet the definition of an “endangered species” under the Act, section 9(a)(1) of the Act and our implementing regulations at 50 CFR 17.21 set forth a series of general prohibitions that apply to all members of each of these species, whether captive or wild. The prohibitions cannot be revised through a regulation under section 4(d) of the Act, because such regulations apply to threatened species. The Act also does not allow for captive-bred specimens of these listed species to be assigned separate legal status from their wild counterparts. However, no permit is required for activities that do not constitute prohibited acts. As noted in response to comments below, the Act does not prohibit captive breeding of listed species and also does not prohibit a number of activities related to captive breeding, such as ownership. Furthermore, we may authorize otherwise prohibited activities for scientific purposes or to enhance the propagation or survival of these species, in accordance with the Act and our regulations (see Available Conservation Measures).

    (8) Comment: Several commenters suggested that, rather than list these species as endangered species under the Act, we instead take another action such as: List them in a CITES Appendix, list them as threatened species with a section 4(d) rule that allows interstate trade, do not list them at all, or focus on ameliorating threats within these species' native ranges rather than on regulating domestic trade.

    Our Response: When we receive a petition to list a species under the Act, we are required to make a determination as to whether that species meets the Act's definition of a threatened species or an endangered species. We are required to do this based solely on the best scientific and commercial data available, as it relates to the five listing factors in section 4(a)(1) of the Act. When we determine that a species meets the Act's definition of a threatened species or endangered species, we must list that species accordingly under the Act. We determined that these species meet the definition of endangered species, and as such we must list them as endangered species. The Act and our regulations provide prohibitions and other conservation measures that apply to all endangered species as described above (see Available Conservation Measures). Because we found that listing these species as endangered is warranted, not listing them is not an option. We also cannot list them as threatened species with a section 4(d) rule because we found that they are endangered, not threatened species. Furthermore, because we found them warranted for listing, not listing them is not feasible. Finally, CITES has a different process and set of criteria for listing species in the CITES Appendices that is independent of listing under the Act. The portion of the comment suggesting a CITES listing is outside the scope of this agency action to consider whether these species should be listed as endangered species under the Act.

    (9) Comment: One commenter asked how to acquire a permit for exemption from the prohibitions of the Act and how often permits need to be renewed.

    Our Response: Information regarding permits for activities related to these five species can be obtained at our International Affairs program website at https://www.fws.gov/international/.

    (10) Comment: Several commenters believe that trade in these species has little or no effect on wild populations and provided various reasons, including: They had never seen, or heard of others seeing, a wild-caught specimen; the captive stock is self-sustaining; wild-caught specimens are frowned upon in the hobby; and there is no financial incentive for the trade of wild-caught specimens. Others contend that listing and/or regulating trade in the United States is not necessary or useful because U.S. trade does not affect wild populations and because the primary threats to these species occur outside U.S. jurisdiction, in Sri Lanka.

    Our Response: Evidence shows that wild-caught specimens of some of these species occur in trade (see Trade). Although the amount of trade in wild-caught specimens in the United States appears to be small, this does not mean trade, or U.S. trade, has no, or even little, effect on wild populations. As indicated in our proposed rule, collection of small numbers of individuals of these species could potentially have significant negative effects on wild populations of these species. With respect to U.S. jurisdiction and the regulation of trade, the Act requires the Service to determine if species qualify as endangered or threatened species regardless of whether a species is native to the United States. The protections of the Act include prohibitions on certain activities including import, export, take, and certain commercial activity in interstate or foreign commerce (see Available Conservation Measures). By regulating these activities, the Act helps to ensure that people under the jurisdiction of the United States do not contribute to the further decline of listed species.

    (11) Comment: Several commenters raise concerns that listing would provide a disincentive to captive-breeding these species.

    Our Response: It is not our intention to cause difficulties for breeders of these species or a decline in the pool of captive-held specimens. The Act does not prohibit or “ban” captive breeding of listed species. The Act also does not prohibit a number of activities related to captive breeding. For example, ownership, possession, or keeping of a listed species that was legally acquired and not taken in violation of the Act is not prohibited by the Act—nor is interstate transport of animals that are not for sale, not offered for sale, or not transported in the course of a commercial activity. Further, while the Act prohibits harassment of listed species (via the definition of “take”), our regulations specify that, when captive animals are involved, harassment does not include generally accepted animal husbandry practices that meet or exceed AWA standards, breeding procedures, or provisions of veterinary care for confining, tranquilizing, or anesthetizing, when such practices, procedures, or provisions are not likely to result in injury (see the definition of harass at 50 CFR 17.3). In addition, activities that do not adversely affect these species, such as observations in behavioral research, are not considered take. Activities that are not prohibited by the Act do not require a permit under the Act.

    The protections of the Act for endangered species include prohibitions on certain activities with any member of the listed species including import, export, take, and certain commercial activity in interstate or foreign commerce (see Available Conservation Measures). Permits may be issued to carry out otherwise prohibited activities, for scientific purposes or to enhance the propagation or survival of the species. For example, a permit could potentially be issued for import or export of captive-bred specimens if the activity were determined to enhance the propagation or survival of the species. Section 10(g) of the Act provides that any person claiming the benefit of any exemption or permit under the Act shall have the burden of proving that the exemption or permit is applicable, has been granted, and was valid and in force at the time of an alleged violation. While the Service may have information available to it that may assist in making required determinations prior to authorizing otherwise prohibited activities with listed species, the burden is on the applicant to provide necessary information for the Service to issue a permit.

    Required Determinations National Environmental Policy Act (42 U.S.C. 4321 et seq.)

    We have determined that environmental assessments and environmental impact statements, as defined under the authority of the National Environmental Policy Act (NEPA; 42 U.S.C. 4321 et seq.), need not be prepared in connection with listing a species as an endangered or threatened species under the Endangered Species Act. We published a notice outlining our reasons for this determination in the Federal Register on October 25, 1983 (48 FR 49244).

    References Cited

    A complete list of references cited in this rulemaking is available on the internet at http://www.regulations.gov in Docket No. FWS-HQ-ES-2016-0076 and upon request from the Branch of Foreign Species, Ecological Services (see FOR FURTHER INFORMATION CONTACT).

    Authors

    The primary authors of this final rule are the staff members of the Branch of Foreign Species, Ecological Services, Falls Church, VA.

    List of Subjects in 50 CFR Part 17

    Endangered and threatened species, Exports, Imports, Reporting and recordkeeping requirements, Transportation.

    Regulation Promulgation

    Accordingly, we amend part 17, subchapter B of chapter I, title 50 of the Code of Federal Regulations, as set forth below:

    PART 17—ENDANGERED AND THREATENED WILDLIFE AND PLANTS 1. The authority citation for part 17 continues to read as follows: Authority:

    16 U.S.C. 1361-1407; 1531-1544; and 4201-4245; unless otherwise noted.

    2. In § 17.11(h), add the following entries to the List of Endangered and Threatened Wildlife in alphabetical order under Arachnids: a. Spider, ivory ornamental tiger; b. Spider, ornate tiger; c. Spider, Pedersen's tiger; d. Spider, Smith's tiger; and e. Spider, Sri Lanka ornamental tiger.

    The additions read as follows:

    § 17.11 Endangered and threatened wildlife.

    (h) * * *

    Common name Scientific name Where listed Status Listing citations and
  • applicable rules
  • *         *         *         *         *         *         * Arachnids *         *         *         *         *         *         * Spider, ivory ornamental tiger Poecilotheria subfusca Wherever found E 83 FR [Insert Federal Register page where the document begins], 7/31/2018. *         *         *         *         *         *         * Spider, ornate tiger Poecilotheria ornata Wherever found E 83 FR [Insert Federal Register page where the document begins], 7/31/2018. Spider, Pedersen's tiger Poecilotheria vittata Wherever found E 83 FR [Insert Federal Register page where the document begins], 7/31/2018. Spider, Smith's tiger Poecilotheria smithi Wherever found E 83 FR [Insert Federal Register page where the document begins], 7/31/2018. *         *         *         *         *         *         * Spider, Sri Lanka ornamental tiger Poecilotheria fasciata Wherever found E 83 FR [Insert Federal Register page where the document begins], 7/31/2018. *         *         *         *         *         *         *
    Dated: May 29, 2018. James W. Kurth, Deputy Director, U.S. Fish and Wildlife Service, Exercising the Authority of the Director, U.S. Fish and Wildlife Service.
    [FR Doc. 2018-16359 Filed 7-30-18; 8:45 am] BILLING CODE 4333-15-P
    DEPARTMENT OF COMMERCE National Oceanic and Atmospheric Administration 50 CFR Part 217 [Docket No. 170908887-8622-02] RIN 0648-BH24 Taking and Importing Marine Mammals; Taking Marine Mammals Incidental to U.S. Navy Pier Construction Activities at Naval Submarine Base New London AGENCY:

    National Marine Fisheries Service (NMFS), National Oceanic and Atmospheric Administration (NOAA), Commerce.

    ACTION:

    Final rule.

    SUMMARY:

    Upon application from the U.S. Navy (Navy), NMFS is issuing regulations under the Marine Mammal Protection Act for the taking of marine mammals incidental to the pier construction activities conducted at the Naval Submarine Base New London in Groton, Connecticut, over the course of five years (2020-2025). These regulations allow NMFS to issue a Letter of Authorization (LOA) for the incidental take of marine mammals during the specified construction activities carried out during the rule's period of effectiveness, set forth the permissible methods of taking, set forth other means of effecting the least practicable adverse impact on marine mammal species or stocks and their habitat, and set forth requirements pertaining to the monitoring and reporting of the incidental take.

    DATES:

    Effective March 1, 2020 through February 28, 2025.

    ADDRESSES:

    To obtain an electronic copy of the Navy's LOA application or other referenced documents, visit the internet at: www.nmfs.noaa.gov/pr/permits/incidental/construction.htm. In case of problems accessing these documents, please call the contact listed below (see FOR FURTHER INFORMATION CONTACT).

    FOR FURTHER INFORMATION CONTACT:

    Shane Guan, Office of Protected Resources, NMFS; phone: (301) 427-8401.

    SUPPLEMENTARY INFORMATION: Purpose and Need for Regulatory Action

    This final rule establishes a framework under the authority of the MMPA (16 U.S.C. 1361 et seq.) to allow for the authorization of take of marine mammals incidental to the Navy's construction activities related to marine structure maintenance and pile replacement at a facility in Groton, Connecticut.

    We received an application from the Navy requesting five-year regulations and authorization to take multiple species of marine mammals. Take would occur by Level A and Level B harassment incidental to impact and vibratory pile driving. Please see “Background” below for definitions of harassment.

    Legal Authority for the Proposed Action

    Section 101(a)(5)(A) of the MMPA (16 U.S.C. 1371(a)(5)(A)) directs the Secretary of Commerce to allow, upon request, the incidental, but not intentional taking of small numbers of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) within a specified geographical region for up to five years if, after notice and public comment, the agency makes certain findings and issues regulations that set forth permissible methods of taking pursuant to that activity and other means of effecting the “least practicable adverse impact” on the affected species or stocks and their habitat (see the discussion below in the “Proposed Mitigation” section), as well as monitoring and reporting requirements. Section 101(a)(5)(A) of the MMPA and the implementing regulations at 50 CFR part 216, subpart I, provide the legal basis for issuing this proposed rule containing five-year regulations, and for any subsequent letters of authorization (LOAs). As directed by this legal authority, this final rule contains mitigation, monitoring, and reporting requirements.

    Summary of Major Provisions Within the Final Rule

    Following is a summary of the major provisions of this final rule regarding Navy construction activities. These measures include:

    • Required monitoring of the construction areas to detect the presence of marine mammals before beginning construction activities.

    • Shutdown of construction activities under certain circumstances to avoid injury of marine mammals.

    • Soft start for impact pile driving to allow marine mammals the opportunity to leave the area prior to beginning impact pile driving at full power.

    Background

    Sections 101(a)(5)(A) and (D) of the Marine Mammal Protection Act of 1972, as amended (MMPA; 16 U.S.C. 1361 et seq.) direct the Secretary of Commerce (Secretary) to allow, upon request, the incidental, but not intentional taking of marine mammals by U.S. citizens who engage in a specified activity (other than commercial fishing) if certain findings are made and regulations are issued or, if the taking is limited to harassment, notice of a proposed authorization is provided to the public for review.

    Authorization for incidental takings shall be granted if NMFS finds that the taking will have a negligible impact on the species or stock(s), will not have an unmitigable adverse impact on the availability of the species or stock(s) for subsistence uses (where relevant), and if the permissible methods of taking and requirements pertaining to the mitigation, monitoring and reporting of such taking are set forth.

    NMFS has defined “negligible impact” in 50 CFR 216.103 as an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival.

    The MMPA states that the term “take” means to harass, hunt, capture, kill or attempt to harass, hunt, capture, or kill any marine mammal. Except with respect to certain activities not pertinent here, the MMPA defines “harassment” as any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment).

    Summary of Request

    On March 22, 2017, NMFS received an application from the Navy requesting authorization to incidentally take harbor and gray seals, by Level A and Level B harassment, incidental to noise exposure resulting from conducting pier construction activities at the Navy Submarine Base New London in Groton, Connecticut, from October 2018 to March 2022. These regulations would be valid for a period of five years. On August 31, 2017, NMFS deemed the application adequate and complete. On May 23, 2018, the Navy requested that the rule be valid between March 1, 2020, and February 28, 2025, due to construction schedule changes.

    The use of sound sources such as those described in the application (e.g., piledriving) may result in the take of marine mammals through disruption of behavioral patterns or may cause auditory injury of marine mammals. Therefore, incidental take authorization under the MMPA is warranted.

    Description of the Specified Activity Overview

    The Navy is planning to demolish Pier 32 and Pier 10 and construct a new Pier 32 at Naval Submarine Base New London (SUBASE), Groton, Connecticut.

    Recent Global Shore Infrastructure Plans and Regional Shore Infrastructure Plans identified a requirement for 11 adequate submarine berths at SUBASE. There are currently six adequate berths available via Piers 6, 17, and 31, leaving a shortfall of five adequate berths. The remaining submarine berthing piers (8, 10, 12, 32, and 33) are classified as inadequate because of their narrow width and short length compared to current SSN (hull classification) berthing design standards (Unified Facilities Criteria 4-152-01, Design Standards for Piers and Wharves).

    The Proposed Action is to demolish Pier 32 and Pier 10, and replace them with a new Pier 32 that meets all current Navy SSN pier standards to accommodate Virginia Class submarines. The Proposed Action includes:

    • Construction of a new, larger Pier 32 to be located approximately 150 feet (ft) north of the current location.

    • Upgrade of the quaywall, north of Pier 32, may be required to accommodate a crane weight test area.

    • Demolition of existing Pier 32 and Pier 10.

    • Dredging of the sediment mounds beneath the existing Pier 32 (approximately 9,400 cubic yards [cy]) and the existing Pier 10 (approximately 10,000 cy) to a depth of 36 ft below mean lower low water (−36 ft MLLW) plus 2 ft of over dredge (additional dredge depth that allows for varying degrees of accuracy of different types of dredging equipment). Any remaining timber piles beneath the existing piers would be pulled with a strap.

    • Dredging of the berthing areas alongside the proposed new Pier 32 (approximately 74,000 sq ft) to a depth of −38 feet MLLW plus 2 feet of over dredge.

    • Dredging of two additional areas (approximately 10,200 cy and 31,100 cy) in the Thames River navigation channel to a depth of −36 ft MLLW plus 2 ft of over dredge.

    Two species of marine mammals are expected to potentially be present in the Thames River near SUBASE: Harbor seal (Phoca vitulina) and gray seal (Halichoeris grypus). Harbor seals and gray seals are more likely to occur at SUBASE from September to May.

    Dates and Duration

    Pile installation for the new Pier 32 and pile removal associated with the demolition of the existing Piers 32 and 10 is expected to take a total of approximately 3.5 years. Construction and demolition activities are expected to begin no earlier than March 2020 and proceed to completion in February 2025.

    In-water activities expected to result in incidental takes of marine mammals would occur during approximately 35 non-consecutive months of the project beginning in March 2020. The estimated duration of pile installation and removal, including duration of the vibratory and impact hammer activities, is provided in Table 1 below for each year of construction and demolition. Also included in the Table are the durations for wood piles and steel fender piles to be pulled by a crane using a sling or strap attached to the pile. The durations of proposed pile driving/removal activities are primarily derived from information provided by Naval Facilities Engineering Command (NAVFAC) Mid-Atlantic Public Works Department, Facilities Engineering and Acquisition Department (FEAD) Design Manager and the record of pile driving activities documented during the construction of SUBASE Pier 31 (American Bridge 2010-2011). The proposed new Pier 32 would be comparable to Pier 31 in design and location and would have similar sub-surface geological conditions along this reach of the Thames River.

    Specified Geographical Region

    SUBASE is located in the towns of Groton and Ledyard in New London County, Connecticut. SUBASE occupies approximately 687 acres along the east bank of the Thames River, 6 mi north of the river's mouth at Long Island Sound (Figure 1-1 in LOA application). The Thames River is the easternmost of Connecticut's three major rivers and is formed by the confluence of the Shetucket and Yantic rivers in Norwich, from which it flows south for 12 mi to New London Harbor. The Thames River discharges freshwater and sediment from the interior of eastern Connecticut into Long Island Sound. It is the main drainage of the Thames River Major Drainage Basin, which encompasses approximately 3,900 square mi of eastern Connecticut and central Massachusetts (USACE 2015). The lower Thames River and New London Harbor sustains a variety of military, commercial, and recreational vessel usage. New London Harbor provides protection to a number of these.

    Detailed Description of Specified Activity 1. Construction of New Pier 32

    Pile driving would most likely be conducted using a barge and crane. However, the contractor may choose to use a temporary pile-supported work trestle that would be constructed by driving approximately 60 steel 14-inch diameter H-piles.

    Structural support piles for Pier 32 would consist of approximately 120 concrete-filled steel pipe piles measuring 36 inches in diameter. The piles would be driven between 40 ft below the mudline near the shore and 150 ft below the mudline at the end of the pier. Fender piles would also be installed and would consist of approximately 194 fiberglass-reinforced plastic piles measuring 16 inches in diameter.

    Special construction features would include drilling rock sockets into bedrock in an estimated 60 places to hold the piles. A rotary drill using a rock core barrel and rock muck bucket would be used inside of the steel pipe piles to drill a minimum of 2 ft down into bedrock to create the rock socket that would be filled with concrete. Sediment would be lifted out and re-deposited within 10 ft of the pipe pile during rock socket drilling. Underwater noise from the rock drill as it is operated inside a steel pipe would be much less than that produced by vibratory and impact pile driving of the steel pipes (Martin et al. 2012).

    Impact and vibratory hammers would be used for installing piles where rock sockets are not required. Based on previous construction projects at SUBASE, it is estimated that an average of one 36-inch pile per week (with driving on multiple days) and two plastic piles per day would be installed. The per-pile drive time for each pile type and method will vary based on environmental conditions (including substrate) where each pile is driven. Impact or vibratory pile driving may result in harassment of marine mammals.

    Construction of Pier 32 may also require upgrade of the quaywall north of Pier 32 to provide the reinforcement needed to support a crane weight test area. Because there is potential that a work trestle would be used and the requirement for the upgrade will not be determined until final design, the pile driving is included in the analyzed activities. The quaywall upgrade would include up to approximately eighteen 30-inch diameter concrete-filled steel pipe piles that would be installed into rock sockets driven into bedrock adjacent and parallel to the existing steel sheet pile wall. Pile caps and a concrete deck would be installed above the piles. A fender system composed of approximately nine 16-inch diameter plastic piles would also be installed into rock sockets approximately 2 ft in front of the new deck.

    2. Demolition and Removal of Pier 32 and Pier 10

    When the new Pier 32 is operational, the existing Pier 32 would be demolished using a floating crane and a series of barges. Pier 10 would be demolished after the demolition of existing Pier 32. The concrete decks of the piers would be cut into pieces and placed on the barges. Demolition debris would be sorted and removed by barge and recycled to the maximum extent practicable. Any residual waste would be disposed of offsite in accordance with applicable federal, state, and local regulations. Once the decks are removed, the steel H piles and pipe piles that support the existing pier would be pulled using a vibratory extraction method (hammer). The vibratory hammer would be attached to the pile head with a clamp. Once attached, vibration would be applied to the pile that would liquefy the adjacent sediment allowing the pile to be removed.

    Demolition of existing Pier 32 would include the removal by vibratory driver-extractor (hammer) of approximately 60 steel piles from the temporary work trestle, 120 concrete-encased steel H-piles, and 70 steel H-piles. Fifty-six wood piles would be pulled with a sling. Demolition of Pier 10 would include the removal by vibratory hammer of 24 concrete-encased, steel H-piles and 166 cast-in-place, reinforced concrete piles. Eighty-four steel fender piles and 41 wood piles would be pulled with a sling. A total of 440 piles would be removed by vibratory hammer for both piers and the work trestle.

    3. Dredging of Pier Areas and Navigation Channel

    The Proposed Action would also include dredging of approximately 60,000 cy of sediment in two areas of the Thames River navigation channel near Pier 32, the berthing areas alongside the new Pier 32, and underneath existing Pier 32 and Pier 10 after demolition. All dredging for the Proposed Action would support safe maneuvering for entry and departure of submarines at the proposed new Pier 32 and existing Piers 8, 12, 17, and 31. The proposed design dredge depth in all areas to be dredged is −36 ft relative to MLLW plus 2 ft of over dredge.

    Dredging would be conducted in two phases. Dredging of the new Pier 32 area and the northern portion of the channel dredge areas would be conducted in the first construction year. The footprints of the demolished Pier 32 and Pier 10 and the southern portions of the channel dredge areas would be dredged after demolition of the existing piers in the fourth year of construction. Dredging would occur only during the period between October 1 and January 31 to avoid potential impacts on shellfish and fisheries resources in the area. Each dredging and disposal phase would take approximately 2 weeks to complete.

    After the demolition of Pier 32, any remnant timber piles present underneath existing Pier 32 would be pulled with a strap. The sediment mound that has formed beneath the pier would be dredged (approximately 9,400 cy) to the design depth. Dredging would also be required immediately west of Piers 31 and 32 (approximately 10,200 cy) and along the eastern edge (approximately 31,100 cy) of the navigation channel to achieve the required minimum depths to maneuver the submarines. Once the existing Pier 10 and any remnant timber piles are removed, the sediment mound beneath the old pier would be dredged (approximately 10,000 cy).

    Since dredging and disposal activities would be slow moving and conspicuous to marine mammals, they pose negligible risks of physical injury. An environmental bucket would be used for dredging to minimize turbidity compared with the turbidity generated by hydraulic dredging. Noise emitted by dredging equipment is broadband, with most energy below 1 kilohertz (kHz), and would be similar to that generated by vessels and maritime industrial activities that regularly operate within the action area (Clarke et al. 2002; Todd et al. 2015). Due to the low noise output and slow and steady transiting nature of the dredging activity, NMFS does not consider it would result to the level of harassment under the MMPA. Therefore, dredging is not considered further in this document.

    Table 1—Summary of Construction Activities for the Navy Submarine Base New London Activity Pile No. Pile type Method Piles/day Total
  • driving
  • days
  • Strike number
  • (impact) or
  • duration(s) per pile
  • Duration
    Year 1 Pier 32 construction 60 14″ steel H-pile temp. work trestle Impact 4 15 1,000 strikes 3 weeks. 60 36″ x 100′ concrete-filled steel pipe piles Vibratory hammer & rock socket drilling 0.5 120 1,200 seconds 6 months. 20 36″ x 180′ concrete-filled steel piles Vibratory hammer 0.2 100 1,800 seconds 5 months. 20 36″ x 180′ concrete-filled steel piles Impact hammer to last 20-40 ft 2.5 8 1,000 strikes 2 weeks. Quaywall upgrade 18 30″ x 100′ concrete-filled steel pipe piles Rock socket drilling 0.5 36 15,000 seconds Concurrent with Pier 32. 9 16″ fiberglass reinforced plastic piles Rock socket drilling 0.5 18 7,500 seconds. Year 2 Pier 32 construction 40 36″ x 180′ concrete-filled steel piles Vibratory hammer 0.2 200 1,800 seconds 10 months. 40 36″ x 180′ concrete-filled steel piles Impact hammer to drive last 20-40 ft 2.5 16 1,000 strikes 3.5 weeks. Year 3 Pier 32 construction 194 16″ fiberglass reinforced plastic piles Vibratory hammer 2 97 1,200 seconds 5 months. 64 16″ fiberglass reinforced plastic piles Impact hammer to drive last 20-40 ft 2.5 26 1,000 strikes 1.5 months. Year 4 Pier 32 demolition 60 14″ steel H-piles temp. work trestle Vibratory hammer (removal) 5 14 1,200 seconds 3 weeks. 24 33″ concrete-encased steel H piles Vibratory hammer (removal) 2 12 1,200 seconds 3.5 months. 96 24″ concrete-encased steel H piles Vibratory hammer (removal) 2 48 1,200 seconds. 70 14″ steel H piles Vibratory hammer (removal) 5 14 1,200 seconds. Pier 10 demolition 24 24″ concrete-encased steel H piles Vibratory hammer (removal) 9.5 2.5 1,200 seconds 0.5 month. 166 24″ cast-in-place reinforced concrete piles Vibratory hammer (removal) 9.5 17.5 1,200 seconds 0.5 month.

    Prescribed mitigation, monitoring, and reporting measures are described in detail later in this document (please see “Mitigation” and “Monitoring and Reporting”).

    Comments and Responses

    NMFS published a proposed rule in the Federal Register on April 13, 2018 (83 FR 16027). During the 30-day public comment period on the proposed rule, NMFS received comments from the Marine Mammal Commission (Commission). We did not receive other comments.

    Comment 1: The Commission recommends that NMFS require the Navy to conduct sound source verification (SSV) and the size of Level B harassment zone measurements for certain piles that data are lacking and where the zones are not based on modeling. These acoustic measurements include:

    • Vibratory and impact installation of at least five 16-in fiberglass-reinforced plastic piles—measurements for source levels;

    • Rock socket drilling of at least three 30-in and three 16-in piles—measurements for source levels and the extent of the Level B harassment zones;

    • Vibratory installation of at least three 36-in steel piles—measurements for the extent of the Level B harassment zone; and

    • Vibratory removal of at least three 24-in concrete and three 33-in concrete piles—measurements for source levels and the extent of the Level B harassment zones.

    Response: NMFS discussed these recommendation with the Navy and the Navy agreed to conduct SSVs on the piles for which source level data are not already available. SSV measurements to be conducted are:

    • Vibratory and impact installation of at least 5 16-in fiberglass reinforced plastic piles, and

    • Rock socket drilling of at least 3 30-in and 3 16-in piles.

    However, the Navy did not agree to conduct acoustic measurements to the extent of the Level B harassment zones. The Navy indicated that conducting hydroacoustic monitoring to the extent of the Level B harassment zones is not a common requirement based on the five most recent active IHAs, including U.S. Army Corps of Engineers' (USACE) Tampa Harbor Big Bend Channel expansion project, the City of Astoria's waterfront bridge replacement project, the Navy's Bravo wharf recapitalization project, and U.S. Coast Guard's (USCG) Monterey waterfront repair project. Instead, the Navy offered to conduct hydroacoustic measurements at several points between 10 and 500 m from the source and extrapolate the distance of the Level B harassment zone.

    While being able to determine the extent of Level B harassment zones is critical to accurately assess the potential impacts to marine mammals, these zones can be determined by means other than direct measurements recommended by the Commission. Therefore, NMFS considers the Navy's proposal of extrapolating the Level B harassment zone using near- and far-field measurement data a valid approach.

    Therefore, in the final rule, NMFS requires the Navy to conduct SSVs on the piles listed above and to conduct measurements on several locations between 10 and 500 m from the source to determine the Level B harassment zones for those zones that were not based on modeling.

    These requirements are included in the final rule.

    Comment 2: The Commission recommends that NMFS require the Navy to include certain metrics in the hydroacoustic monitoring report for measurements being conducted. These metrics include:

    • Root-mean-square sound pressure levels (SPLrms), 1-sec sound exposure levels (SELs), duration of recordings used to derive SELs, cumulative SEL (SELcum) based on the number of piles and driving duration for each scenario, and SEL source spectra for vibratory pile driving/removal source level measurements;

    • Peak SPLs (SPLpeak), SPLrms, integration time/pulse duration for SPLrms, single-strike SPLs (SPLs-s), SELcum based on the number of piles and driving duration for each scenario, and SELs-s spectra for impact pile driving source level measurements;

    • The measured (or extrapolated, if not reached) distances at which the SPLrms decays to 120 dB re 1 μPa or to ambient, whichever is higher, and integration time/pulse duration for SPLrms for verification of the extent to the Level B harassment zones;

    • All sound levels via medians, means, minimums, and maximums and linear average (i.e., averaging the sound intensity/pressure before converting to dB); and

    • Sediment type, water depth, hydrophone depth, etc.

    Response: NMFS discussed this with the Navy and the Navy agreed to report these metrics in the acoustic monitoring report. These requirements are included in the final rule.

    Comment 3: The Commission recommends that NMFS revise its draft rounding criteria and share it with the Commission.

    Response: NMFS appreciates the Commission's ongoing concern in this matter. Calculating predicted takes is not an exact science and there are arguments for taking different mathematical approaches in different situations, and for making qualitative adjustments in other situations. We believe, however, that the methodology used for take calculation in this LOA remains appropriate and is not at odds with the 24-hour reset policy the Commission references. We look forward to continued discussion with the Commission on this matter and will share the rounding guidance as soon as is appropriate.

    Description of Marine Mammals in the Area of the Specified Activities

    Sections 3 and 4 of the application summarize available information regarding status and trends, distribution and habitat preferences, and behavior and life history, of the potentially affected species. Additional information regarding population trends and threats may be found in NMFS's Stock Assessment Reports (SAR; www.nmfs.noaa.gov/pr/sars/) and more general information about these species (e.g., physical and behavioral descriptions) may be found on NMFS's website (https://www.fisheries.noaa.gov/seals-sea-lions).

    Table 2 lists all species with expected potential for occurrence in location and summarizes information related to the population or stock, including regulatory status under the MMPA and ESA and potential biological removal (PBR), where known. For taxonomy, we follow Committee on Taxonomy (2017). PBR is defined by the MMPA as the maximum number of animals, not including natural mortalities, that may be removed from a marine mammal stock while allowing that stock to reach or maintain its optimum sustainable population (as described in NMFS's SARs). While no mortality is anticipated or authorized here, PBR and annual serious injury and mortality from anthropogenic sources are included here as gross indicators of the status of the species and other threats.

    Marine mammal abundance estimates presented in this document represent the total number of individuals that make up a given stock or the total number estimated within a particular study or survey area. NMFS's stock abundance estimates for most species represent the total estimate of individuals within the geographic area, if known, that comprises that stock. For some species, this geographic area may extend beyond U.S. waters. All managed stocks in this region are assessed in NMFS's U.S. Atlantic SARs (Waring et al., 2017). All values presented in Table 2 are the most recent available at the time of publication and are available in the draft 2017 SARs (Hayes et al., 2017).

    Table 2—Marine Mammals That May Occur Within Navy Submarine Base New London Area Common name Scientific name Stock ESA/MMPA status Stock abundance best/
  • minimum
  • population
  • Occurrence in study area
    Order Carnivora Suborder Pinnipedia Family Phocidae (true seals): Gray seal Halichoerus grypus Western North Atlantic 505,000 * Thames River. Harbor seal Phoca vitulina Western North Atlantic 75,834 (0.15)/66,884 Thames River. * There are an estimated 27,131 seals in U.S. waters; however, gray seals form one population not distinguished on the basis of the U.S./Canada boundary (Waring et al., 2017).

    All species that could potentially occur in the proposed survey areas are included in table 2. As described below, all two species (with two managed stocks) temporally and spatially co-occur with the activity to the degree that take is reasonably likely to occur, and we have proposed authorizing it.

    Marine Mammal Hearing

    Hearing is the most important sensory modality for marine mammals underwater, and exposure to anthropogenic sound can have deleterious effects. To appropriately assess the potential effects of exposure to sound, it is necessary to understand the frequency ranges marine mammals are able to hear. Current data indicate that not all marine mammal species have equal hearing capabilities (e.g., Richardson et al., 1995; Wartzok and Ketten, 1999; Au and Hastings, 2008). To reflect this, Southall et al. (2007) recommended that marine mammals be divided into functional hearing groups based on directly measured or estimated hearing ranges on the basis of available behavioral response data, audiograms derived using auditory evoked potential techniques, anatomical modeling, and other data. Note that no direct measurements of hearing ability have been successfully completed for mysticetes (i.e., low-frequency cetaceans). Subsequently, NMFS (2016) described generalized hearing ranges for these marine mammal hearing groups. Generalized hearing ranges were chosen based on the approximately 65 dB threshold from the normalized composite audiograms, with the exception for lower limits for low-frequency cetaceans where the lower bound was deemed to be biologically implausible and the lower bound from Southall et al. (2007) retained. The functional groups and the associated frequencies are indicated below (note that these frequency ranges correspond to the range for the composite group, with the entire range not necessarily reflecting the capabilities of every species within that group):

    • Low-frequency cetaceans (mysticetes): Generalized hearing is estimated to occur between approximately 7 Hz and 35 kHz;

    • Mid-frequency cetaceans (larger toothed whales, beaked whales, and most delphinids): Generalized hearing is estimated to occur between approximately 150 Hz and 160 kHz;

    • High-frequency cetaceans (porpoises, river dolphins, and members of the genera Kogia and Cephalorhynchus; including two members of the genus Lagenorhynchus, on the basis of recent echolocation data and genetic data): Generalized hearing is estimated to occur between approximately 275 Hz and 160 kHz.

    • Pinnipeds in water; Phocidae (true seals): Generalized hearing is estimated to occur between approximately 50 Hz to 86 kHz;

    • Pinnipeds in water; Otariidae (eared seals): Generalized hearing is estimated to occur between 60 Hz and 39 kHz.

    The pinniped functional hearing group was modified from Southall et al. (2007) on the basis of data indicating that phocid species have consistently demonstrated an extended frequency range of hearing compared to otariids, especially in the higher frequency range (Hemilä et al., 2006; Kastelein et al., 2009; Reichmuth and Holt, 2013).

    For more detail concerning these groups and associated frequency ranges, please see NMFS (2016) for a review of available information. Two marine mammal species (both phocid species) have the reasonable potential to co-occur with the proposed survey activities. Please refer to Table 2.

    Potential Impacts to Marine Mammals

    The Navy's Submarine Base New London pier construction using in-water pile driving and pile removal could adversely affect marine mammal species and stocks by exposing them to elevated noise levels in the vicinity of the activity area.

    Exposure to high intensity sound for a sufficient duration may result in auditory effects such as a noise-induced threshold shift (TS)—an increase in the auditory threshold after exposure to noise (Finneran et al., 2005). Factors that influence the amount of threshold shift include the amplitude, duration, frequency content, temporal pattern, and energy distribution of noise exposure. The magnitude of hearing threshold shift normally decreases over time following cessation of the noise exposure. The amount of TS just after exposure is the initial TS. If the TS eventually returns to zero (i.e., the threshold returns to the pre-exposure value), it is a temporary threshold shift (TTS) (Southall et al., 2007).

    Threshold Shift (noise-induced loss of hearing)—When animals exhibit reduced hearing sensitivity (i.e., sounds must be louder for an animal to detect them) following exposure to an intense sound or sound for long duration, it is referred to as a noise-induced TS. An animal can experience TTS or permanent threshold shift (PTS). TTS can last from minutes or hours to days (i.e., there is complete recovery), can occur in specific frequency ranges (i.e., an animal might only have a temporary loss of hearing sensitivity between the frequencies of 1 and 10 kHz), and can be of varying amounts (for example, an animal's hearing sensitivity might be reduced initially by only 6 dB or reduced by 30 dB). PTS is permanent, but some recovery is possible. PTS can also occur in a specific frequency range and amount as mentioned above for TTS.

    For marine mammals, published data are limited to the captive bottlenose dolphin, beluga, harbor porpoise, and Yangtze finless porpoise (Finneran, 2015). For pinnipeds in water, data are limited to measurements of TTS in harbor seals, an elephant seal, and California sea lions (Kastak et al., 1999, 2005; Kastelein et al., 2012b).

    Lucke et al. (2009) found a TS of a harbor porpoise after exposing it to airgun noise with a received sound pressure level (SPL) at 200.2 dB (peak-to-peak) re: 1 micropascal (μPa), which corresponds to a sound exposure level of 164.5 dB re: 1 μPa2 s after integrating exposure. Because the airgun noise is a broadband impulse, one cannot directly determine the equivalent of root mean square (rms) SPL from the reported peak-to-peak SPLs. However, applying a conservative conversion factor of 16 dB for broadband signals from seismic surveys (McCauley, et al., 2000) to correct for the difference between peak-to-peak levels reported in Lucke et al. (2009) and rms SPLs, the rms SPL for TTS would be approximately 184 dB re: 1 μPa, and the received levels associated with PTS (Level A harassment) would be higher. Therefore, based on these studies, NMFS recognizes that TTS of harbor porpoises is lower than other cetacean species empirically tested (Finneran & Schlundt, 2010; Finneran et al., 2002; Kastelein and Jennings, 2012).

    Marine mammal hearing plays a critical role in communication with conspecifics, and interpretation of environmental cues for purposes such as predator avoidance and prey capture. Depending on the degree (elevation of threshold in dB), duration (i.e., recovery time), and frequency range of TTS, and the context in which it is experienced, TTS can have effects on marine mammals ranging from discountable to serious (similar to those discussed in auditory masking, below). For example, a marine mammal may be able to readily compensate for a brief, relatively small amount of TTS in a non-critical frequency range that occurs during a time where ambient noise is lower and there are not as many competing sounds present. Alternatively, a larger amount and longer duration of TTS sustained during time when communication is critical for successful mother/calf interactions could have more serious impacts. Also, depending on the degree and frequency range, the effects of PTS on an animal could range in severity, although it is considered generally more serious because it is a permanent condition. Of note, reduced hearing sensitivity as a simple function of aging has been observed in marine mammals, as well as humans and other taxa (Southall et al., 2007), so one can infer that strategies exist for coping with this condition to some degree, though likely not without cost.

    In addition, chronic exposure to excessive, though not high-intensity, noise could cause masking at particular frequencies for marine mammals, which utilize sound for vital biological functions (Clark et al., 2009). Acoustic masking is when other noises such as from human sources interfere with animal detection of acoustic signals such as communication calls, echolocation sounds, and environmental sounds important to marine mammals. Therefore, under certain circumstances, marine mammals whose acoustical sensors or environment are being severely masked could also be impaired from maximizing their performance fitness in survival and reproduction.

    Masking occurs at the frequency band that the animals utilize. Therefore, since noise generated from vibratory pile driving is mostly concentrated at low frequency ranges, it may have less effect on high frequency echolocation sounds by odontocetes (toothed whales). However, lower frequency man-made noises are more likely to affect detection of communication calls and other potentially important natural sounds such as surf and prey noise. It may also affect communication signals when they occur near the noise band and thus reduce the communication space of animals (e.g., Clark et al., 2009) and cause increased stress levels (e.g., Foote et al., 2004; Holt et al., 2009).

    Unlike TS, masking, which can occur over large temporal and spatial scales, can potentially affect the species at population, community, or even ecosystem levels, as well as individual levels. Masking affects both senders and receivers of the signals and could have long-term chronic effects on marine mammal species and populations. Recent science suggests that low frequency ambient sound levels have increased by as much as 20 dB (more than three times in terms of sound pressure level) in the world's ocean from pre-industrial periods, and most of these increases are from distant shipping (Hildebrand, 2009). For the Navy's Submarine Base New London pier construction, noises from vibratory pile driving and pile removal contribute to the elevated ambient noise levels in the project area, thus increasing potential for or severity of masking. Baseline ambient noise levels in the vicinity of project area are high due to ongoing shipping, construction and other activities in the Thames River.

    Finally, marine mammals' exposure to certain sounds could lead to behavioral disturbance (Richardson et al., 1995), such as: Changing durations of surfacing and dives, number of blows per surfacing, or moving direction and/or speed; reduced/increased vocal activities; changing/cessation of certain behavioral activities (such as socializing or feeding); visible startle response or aggressive behavior (such as tail/fluke slapping or jaw clapping); avoidance of areas where noise sources are located; and/or flight responses (e.g., pinnipeds flushing into water from haulouts or rookeries).

    The onset of behavioral disturbance from anthropogenic noise depends on both external factors (characteristics of noise sources and their paths) and the receiving animals (hearing, motivation, experience, demography) and is also difficult to predict (Southall et al., 2007). Currently NMFS uses a received level of 160 dB re 1 μPa (rms) to predict the onset of behavioral harassment from impulse noises (such as impact pile driving), and 120 dB re 1 μPa (rms) for continuous noises (such as vibratory pile driving). For the Navy's Submarine Base New London pier construction, both 160- and 120-dB levels are considered for effects analysis because the Navy plans to use both impact pile driving and vibratory pile driving and pile removal.

    The biological significance of many of these behavioral disturbances is difficult to predict, especially if the detected disturbances appear minor. However, the consequences of behavioral modification could be biologically significant if the change affects growth, survival, and/or reproduction, which depends on the severity, duration, and context of the effects.

    Potential Effects on Marine Mammal Habitat

    The primary potential impacts to marine mammal habitat are associated with elevated sound levels produced by vibratory pile removal and pile driving in the area. However, other potential impacts to the surrounding habitat from physical disturbance are also possible.

    With regard to fish as a prey source for cetaceans and pinnipeds, fish are known to hear and react to sounds and to use sound to communicate (Tavolga et al., 1981) and possibly avoid predators (Wilson and Dill, 2002). Experiments have shown that fish can sense both the strength and direction of sound (Hawkins, 1981). Primary factors determining whether a fish can sense a sound signal, and potentially react to it, are the frequency of the signal and the strength of the signal in relation to the natural background noise level.

    The level of sound at which a fish will react or alter its behavior is usually well above the detection level. Fish have been found to react to sounds when the sound level increased to about 20 dB above the detection level of 120 dB (Ona, 1988); however, the response threshold can depend on the time of year and the fish's physiological condition (Engas et al., 1993). In general, fish react more strongly to pulses of sound (such as noise from impact pile driving) rather than continuous signals (such as noise from vibratory pile driving) (Blaxter et al., 1981), and a quicker alarm response is elicited when the sound signal intensity rises rapidly compared to sound rising more slowly to the same level.

    During in-water pile driving only a small fraction of the available habitat would be ensonified at any given time. Disturbance to fish species would be short-term and fish would return to their pre-disturbance behavior once the pile driving activity ceases. Thus, the proposed construction would have little, if any, impact on marine mammals' prey availability in the area where construction work is planned.

    Disposal of dredged material in the confined aquatic disposal (CAD) cell would have a direct impact to the benthos as a result of burial and suffocation. Most, if not all, sessile marine invertebrates are not expected to survive burial. Some motile marine organisms would be buried and unable to survive, while others such as burrowing specialists, may survive. Survival rates would depend primarily on burial depth. From 2010 through 2012, biannual benthic sampling of the CAD cell area was conducted to assess the timeframe for recovery of benthic populations of the CAD cells, in accordance with Water Quality Certificate conditions for the 2010 waterfront maintenance dredging project at the submarine base. The sampling results of the CAD cell were compared to sampling results of an undisturbed reference site located upriver. The degree of similarity of population and community structures was assessed. The results of the three year survey program indicated that a progressive recovery to a stable benthic population was occurring at the CAD cell. As demonstrated by the biannual benthic survey, benthic assemblages are anticipated to recover within three to five years after the completion of the project, and disposal impacts would not be significant (CardnoTEC 2015).

    Project activities would temporarily disturb benthic and water column habitats and change bottom topography to a minor degree, but effects on prey availability and foraging conditions for marine mammals would be temporary and limited to the immediate area of pier demolition/construction, dredging, and disposal. The new surfaces of piles and exposed concrete on the new pier would likely result in establishment of fouling communities on the new structures, and may attract fish and benthic organisms, resulting in small scale shifts in prey distribution.

    There are no known haul outs within the vicinity of the Proposed Action.

    The project activities would not permanently modify existing marine mammal habitat. The activities may kill some fish and cause other fish to leave the area temporarily, thus impacting marine mammals' foraging opportunities in a limited portion of the foraging range; but, because of the short duration of the activities and the relatively small area of the habitat that may be affected, the impacts to marine mammal habitat are not expected to cause significant or long-term negative consequences. Therefore, given the consideration of potential impacts to marine mammal prey species and their physical environment, the Navy's proposed construction activity at the submarine base would not adversely affect marine mammal habitat.

    Estimated Take

    Except with respect to certain activities not pertinent here, section 3(18) of the MMPA defines “harassment” as: Any act of pursuit, torment, or annoyance which (i) has the potential to injure a marine mammal or marine mammal stock in the wild (Level A harassment); or (ii) has the potential to disturb a marine mammal or marine mammal stock in the wild by causing disruption of behavioral patterns, including, but not limited to, migration, breathing, nursing, breeding, feeding, or sheltering (Level B harassment). Harassment is the only type of take expected to result from these activities.

    Authorized takes would be by Level A and Level B harassments, in the form of mild permanent hearing threshold shift (Level A) and disruption of behavioral patterns (Level B) for individual marine mammals resulting from exposure to noise generated from impact pile driving and vibratory pile driving and removal. Based on the nature of the activity and the anticipated effectiveness of the mitigation measures (e.g., shutdown measures—discussed in detail below in Mitigation section), serious injury or mortality is neither anticipated nor authorized.

    As described previously, no mortality is anticipated or authorized for this activity. Below we describe how the take is estimated.

    Described in the most basic way, we estimate take by considering: (1) Acoustic thresholds above which NMFS believes the best available science indicates marine mammals will be behaviorally harassed or incur some degree of permanent hearing impairment; (2) the area or volume of water that will be ensonified above these levels in a day; (3) the density or occurrence of marine mammals within these ensonified areas; and, (4) and the number of days of activities. Below, we describe these components in more detail and present the take estimate.

    Acoustic Thresholds

    Using the best available science, NMFS has developed acoustic thresholds that identify the received level of underwater sound above which exposed marine mammals would be reasonably expected to be behaviorally harassed (equated to Level B harassment) or to incur PTS of some degree (equated to Level A harassment).

    Level B Harassment for non-explosive sources—Though significantly driven by received level, the onset of behavioral disturbance from anthropogenic noise exposure is also informed to varying degrees by other factors related to the source (e.g., frequency, predictability, duty cycle), the environment (e.g., bathymetry), and the receiving animals (hearing, motivation, experience, demography, behavioral context) and can be difficult to predict (Southall et al., 2007, Ellison et al., 2011). Based on what the available science indicates and the practical need to use a threshold based on a factor that is both predictable and measurable for most activities, NMFS uses a generalized acoustic threshold based on received level to estimate the onset of behavioral harassment. NMFS predicts that marine mammals are likely to be behaviorally harassed in a manner we consider Level B harassment when exposed to underwater anthropogenic noise above received levels of 120 dB re 1 μPa (rms) for continuous (e.g., vibratory pile-driving, drilling) and above 160 dB re 1 μPa (rms) for non-explosive impulsive (e.g., seismic airguns) or intermittent (e.g., scientific sonar) sources.

    Applicant's proposed activity includes the use of continuous (vibratory pile driving and removal) and impulsive (impact pile driving) sources, and therefore the 120 and 160 dB re 1 μPa (rms) levels are applicable.

    Level A harassment for non-explosive sources—NMFS' Technical Guidance for Assessing the Effects of Anthropogenic Sound on Marine Mammal Hearing (Technical Guidance, 2016) identifies dual criteria to assess auditory injury (Level A harassment) to five different marine mammal groups (based on hearing sensitivity) as a result of exposure to noise from two different types of sources (impulsive or non-impulsive). Applicant's proposed activity includes the use of non-impulsive (vibratory pile driving and pile removal) sources.

    These thresholds were developed by compiling and synthesizing the best available science and soliciting input multiple times from both the public and peer reviewers to inform the final product, and are provided in the table below. The references, analysis, and methodology used in the development of the thresholds are described in NMFS' 2016 Technical Guidance, which may be accessed at: http://www.nmfs.noaa.gov/pr/acoustics/guidelines.htm.

    Table 3—Current Acoustic Exposure Criteria for Non-Explosive Sound Underwater Hearing group PTS onset thresholds Impulsive Non-impulsive Behavioral thresholds Impulsive Non-impulsive Low-Frequency (LF) Cetaceans L pk,flat: 219 dB
  • L E, LF,24h: 183 dB
  • L E, LF,24h: 199 dB L rms, flat: 160 dB L rms, flat: 120 dB
    Mid-Frequency (MF) Cetaceans L pk,flat: 230 dB
  • L E, MF,24h: 185 dB
  • L E, MF,24h: 198 dB
    High-Frequency (HF) Cetaceans L pk,flat: 202 dB
  • L E, HF,24h: 155 dB
  • L E, HF,24h: 173 dB
    Phocid Pinnipeds (PW)
  • (Underwater)
  • L pk,flat: 218 dB
  • L E, PW,24h: 185 dB
  • L E, PW,24h: 201 dB
    Otariid Pinnipeds (OW)
  • (Underwater)
  • L pk,flat: 232 dB
  • L E, OW,24h: 203 dB
  • L E, OW,24h: 219 dB
    * Dual metric acoustic thresholds for impulsive sounds: Use whichever results in the largest isopleth for calculating PTS onset. If a non-impulsive sound has the potential of exceeding the peak sound pressure level thresholds associated with impulsive sounds, these thresholds should also be considered. Note: Peak sound pressure (Lpk) has a reference value of 1 μPa, and cumulative sound exposure level (LE) has a reference value of 1μPa2s. In this Table, thresholds are abbreviated to reflect American National Standards Institute standards (ANSI 2013). However, peak sound pressure is defined by ANSI as incorporating frequency weighting, which is not the intent for this Technical Guidance. Hence, the subscript “flat” is being included to indicate peak sound pressure should be flat weighted or unweighted within the generalized hearing range. The subscript associated with cumulative sound exposure level thresholds indicates the designated marine mammal auditory weighting function (LF, MF, and HF cetaceans, and PW and OW pinnipeds) and that the recommended accumulation period is 24 hours. The cumulative sound exposure level thresholds could be exceeded in a multitude of ways (i.e., varying exposure levels and durations, duty cycle). When possible, it is valuable for action proponents to indicate the conditions under which these acoustic thresholds will be exceeded.
    Ensonified Area

    Here, we describe operational and environmental parameters of the activity that will feed into identifying the area ensonified above the acoustic thresholds.

    Source Levels

    The project includes impact pile driving and vibratory pile driving and removal of various piles. Source levels of pile driving and removal activities are based on reviews of measurements of the same or similar types and dimensions of piles available in the literature (Caltrans, 2015; Martin et al., 2012; Dazey et al., 2012; WSDOT, 2007, 2012; NAVFAC Southwest, 2014). Based on this review, the following source levels are assumed for the underwater noise produced by construction activities:

    • Impact driving of 14-inch steel H-piles for the temporary trestle is assumed to generate a peak SPL of 208 dB re 1μPa, and a root-mean-squared (rms) SPL of 187 dB re 1 μPa, based on adding 10 dB to a single-strike SEL of 177 dB re 1 μPa2-sec at 10 m (33 ft) reported by Caltrans (2015). This assumption is based on differences between SEL and rms values of other piles reported by Caltrans (2015).

    • Impact driving of 36-inch steel piles would be assumed to generate an instantaneous peak SPL of 209 dB, an rms SPL of 198 dB, and a SEL of 183 dB at the 10 m (33 ft) distance, based on the weighted average of similar pile driving at the Bangor Naval Base, Naval Base Point Loma, Washington State Department of Transportation (WSDOT) Anacortes Ferry Terminal, and WSDOT Mukilteo Ferry Terminal.

    • Vibratory driving of 36-inch steel piles would be assumed to generate a 168 dB SPLrms and a 168 dB SEL at 10 m (33 ft), based on the weighted average of similar pile driving measured at Bangor Naval Base, Naval Base Point Loma, and WSDOT Anacortes Ferry Terminal.

    • Impact driving of the 16-inch plastic piles, for which no data specific to that size and composition are available, are assumed to be similar to available data on 13-inch plastic piles: 166 dB peak SPL and 153 dB rms SPL. No SEL measurements were made, but the SEL at 10 m (33 ft) can be assumed to be 9 dB less than the rms value (based on differences of rms and SEL values of in-water impact pile-driving data of other piles summarized by Caltrans 2015), which would put the SEL value for the plastic piles at 144 dB. For vibratory pile driving of the same plastic piles, the SPL rms of impact driving is used as a proxy due to lack of measurement.

    • Vibratory removal of 14-inch steel H-piles is conservatively assumed to have rms and SEL values of 158 dB based on a relatively large set of measurements from the vibratory installation of 14-inch H-piles.

    • Drilling the rock sockets is assumed to be an intermittent, non-impulsive, broadband noise source, similar to vibratory pile driving, but using a rotary drill inside a pipe or casing, which is expected to reduce sound levels below those of typical pile driving (Martin et al. 2012). Measurements made during a pile drilling project in 1-5 m (3-16 ft) depths at Santa Rosa Island, CA, by Dazey et al. (2012) appear to provide reasonable proxy source levels for the proposed activities. Dazey et al. (2012) reported average rms source levels ranging from 151 to 157 dB re 1µPa, normalized to a distance of 1 m (3 ft) from the pile, during activities that included casing removal and installation as well as drilling, with an average of 154 dB re 1µPa during 62 days that spanned all related drilling activities during a single season.

    • Since no source level data are available for vibratory extraction of concrete or concrete encased 24-inch and 33-inch steel H-piles, conservative proxy source levels were based on the summary values reported for vibratory driving of 24-inch steel sheet piles by Caltrans (2015). There are two reasons for using 24-in steel sheet pile driving source level as a proxy: (1) In general, pile extraction generates less noise in comparison to pile driving, and (2) piling of concrete or concrete encased piles generated less noise in comparison to steel piles. Since there are no source levels available for extraction of the 24-in concrete or concrete encased piles and 33-in steel H-piles, we defer to the pile driving source level of 24-in steel sheet pile reported by Caltrans (2015). The Caltrans (2015) typical source level of 160 dB rms and SEL was used for vibratory removal of 24-inch concrete piles and 24-inch concrete encased steel H-piles, whereas the loudest source level of 165 dB rms and SEL was used for vibratory removal of 33-inch concrete encased steel piles.

    A summary of source levels from different pile driving and pile removal activities is provided in Table 4.

    Table 4—Summary of In-Water Pile Driving Source Levels [At 10 m from source] Method Pile type/size SPLpk
  • (dB re 1 µ Pa)
  • SPLrms
  • (dB re 1 µ Pa)
  • SEL
  • (dB re 1 µ Pa2-s)
  • Impact driving 14-in steel H pile 208 187 177 Impact driving 36-in concrete-filled steel pile 209 198 183 Vibratory driving 30- and 36-in concrete-filled steel pipe pile; 16-in fiberglass plastic pile NA 168 168 Impact driving 16-in fiberglass plastic pile 166 153 144 Vibratory driving 16-in fiberglass plastic pile NA 153 153 Rock socket drilling 30-in steel pile & 16-in plastic pile NA 154 154 Vibratory removal 14-in steel H pile NA 158 158 Vibratory removal 24-in concrete-encased steel H pile NA 160 160 Vibratory removal 33-in concrete-encased steel H pile NA 165 165

    These source levels are used to compute the Level A injury zones and to estimate the Level B harassment zones. For Level A harassment zones, since the peak source levels for both pile driving methods are below the injury thresholds, cumulative SEL were used to do the calculations using the NMFS acoustic guidance (NMFS 2016).

    Estimating Injury Zones

    When NMFS' Technical Guidance (2016) was published, in recognition of the fact that ensonified area/volume could be more technically challenging to predict because of the duration component in the new thresholds, we developed a User Spreadsheet that includes tools to help predict a simple isopleth that can be used in conjunction with marine mammal density or occurrence to help predict takes. We note that because of some of the assumptions included in the methods used for these tools, we anticipate that isopleths produced are typically going to be overestimates of some degree, which will result in some degree of overestimate of Level A take. However, these tools offer the best way to predict appropriate isopleths when more sophisticated 3D modeling methods are not available, and NMFS continues to develop ways to quantitatively refine these tools, and will qualitatively address the output where appropriate.

    For cumulative SEL (L E), distances to marine mammal injury thresholds were estimated using NMFS' Optional User Spreadsheet based on the noise exposure guidance. For impact pile driving, the single strike SEL/pulse equivalent was used, and for vibratory pile driving, the rms SPL source level was used. Per the NMFS Spreadsheet, default Weighting Factor Adjustments (WFA) were used for calculating PTS from both vibratory and impact pile driving, using 2.5 kHz and 2.0 KHz, respectively. These WFAs are acknowledged by NMFS as conservative. A transmission loss coefficient of 15 is used with reported source levels measured at 10 m.

    Estimating Behavioral Harassment Zones

    Isopleths to Level B behavioral zones are based on rms SPL (SPLrms) that are specific for non-impulse (vibratory pile driving) sources. Distances to marine mammal behavior thresholds were calculated using practical spreading.

    In addition, based on the number of piers and high density of pilings along the shoreline, the Navy concluded that underwater sound transmission through these structures would be impeded similar to the interruption of sound transmission by natural projections of the shoreline. Using this assumption, the resulting Level B behavioral harassment zone for marine mammal disturbance for most project activities would be limited to the middle reaches of the Thames River, extending no farther south than the Amtrak Bridge, 3 miles (4,642 m) upstream from the mouth of the river.

    A summary of the measured and modeled harassment zones is provided in Table 5. In modeling transmission loss from the project area, the conventional assumption would be made that acoustic propagation from the source is impeded by natural and manmade features that extend into the water, resulting in acoustic shadows behind such features. While not solid structures, given the density of structural pilings under the many pile-supported piers located south of Piers 32 and 10, coupled with the docking of submarines at these piers, the piers are presumed to disrupt sound propagation southward in the river.

    Table 5—Calculated Areas of Zone of Influence and Maximum Distances Year Activity description Source level @10m, dB
  • (rms/SEL)
  • Level A distance (m)/area
  • (km2)
  • Level B distance (m)/area
  • (km2)
  • 1 Impact driving 14″ steel H-pile 1,000 strikes per pile, 4 piles/day 187/177 536/0.4468 631/0.5468. Vibratory & rock socket drilling installation of 36″ concrete-filled steel piles; average 10 minutes/day 168 <4/<0.0001 4,642/2.2002. Impact driving 36″ concrete-filled steel piles; 1,000 strikes per pile; average 2.5 piles per day 198/183 984/0.886 3,415/2.037. Rocket socket drilling of 30″ concrete-filled steel piles and 16″ fiberglass reinforced plastic piles; average 1.04 hours/day 154 Activity will occur concurrently with above activities that have much bigger zones 2 Vibratory installation of 36″ concrete-filled steel piles; average 6 minutes/day 168 <4/<0.0001 4,642/2.2002. Impact pile driving 36″ concrete-filled steel piles; 1,000 strikes per pile; average 2.5 piles per day 198/183 984/0.886 3,415/2.037. 3 Vibratory installation of 16″ fiberglass plastic piles; 40 minutes/day 153 0.9/<0.0001 1,584/1.1584. Impact installation of 16″ fiberglass plastic piles; 1,000 strikes per pile; average 2.5 piles per day 153/144 2.5/<0.0001 1/<0.000. 4 Vibratory removal of 14″ steel H-piles; average 100 minutes/day 158 <4/<0.0001 3,415/1.8372. Vibratory removal of 24″ concrete-filled steel piles (Pier 32); average 190 minutes/day 160 2.7/<0.0001 4,642/2.2002. Vibratory removal of 30″ concrete-filled steel piles (Pier 32); average 40 minutes/day 165 5.9/<0.0001 4,642/2.2002. Vibratory removal of 24″ concrete-filled steel piles (Pier 10); average 40 minutes/day 160 7.7/<0.0001 4,642/2.2002.
    Marine Mammal Occurrence

    In this section we provide the information about the presence, density, or group dynamics of marine mammals that will inform the take calculations.

    The Navy's Marine Species Density Database (NMSDD) has density estimates for harbor and gray seals that occur in Long Island Sound. The NMSDD density estimates for harbor seals and gray seals are the same, 0.0703/km2 during fall, winter, and spring, and 0.0174/km2 during summer months. These estimates, however, are based on broad-scale oceanic surveys, which have not extended up the Thames River.

    Marine mammal surveys were conducted in fall 2014 and winter, spring, and summer of 2015 as part of a nearshore biological survey at Submarine Base New London. No marine mammals were observed (Tetra Tech 2016). Harbor seals have been sighted in the Thames River near the submarine base by Navy personnel. Both gray and harbor seals have rookeries in Long Island Sound. A two-year detailed, systematic survey of marine mammals in the Thames River began in January 2017. During the first nine months of the survey through September, one pinniped (gray seal) was observed approximately 23/4 miles downstream of SUBASE at a fishing dock near the ferry terminal, approximately 3,000 feet south of the Gold Star Memorial Bridge (I-95).

    There are no survey-based estimates of the relative abundances of the two species in the Thames River. Up to two harbor seals have been observed near the submarine base by base personnel. No gray seals have been observed by the Navy close to the submarine base. However, the Navy states that during preparation of the LOA they have learned that since the population of gray seals is generally growing in the region that gray seals are likely to also occur in the area of effect by the first year of construction, 2020, but in smaller numbers. A ratio of 3 to 1 harbor seals to gray seals was identified as a reasonable approximation of their relative abundance. No evidence is available to suggest a different ratio. There are no areas (haul outs) where seals are known to be concentrated nor have there been contemporary sightings of larger numbers of seals along this stretch of the river, and the animals seen at the submarine base are likely to move up and down as well as across the river. Given that the Thames River is about 500 m (1,640 ft) wide at the Submarine Base New London, and similarly developed areas extend about 1 km (3,280 ft) up and down the river, the Navy believes it is reasonable to extrapolate the observations at the Submarine Base New London to an area of about 1 km2 for the purpose of estimating density. This would result in an average density of 0.45 harbor and 0.15 gray seals per km2 within the project ZOIs from September through May. Very few animals were sighted outside the September through May time frame. Therefore, the September through May data is used for density estimates to be conservative.

    Take Calculation and Estimation

    Here we describe how the information provided above is brought together to produce a quantitative take estimate. For both harbor and gray seals, estimated takes are calculated based on ensonified area for a specific pile driving activity multiplied by the marine mammal density in the action area, multiplied by the number of pile driving (or removal) days. Distances to and areas of different harassment zones are listed in Table 4.

    For both Level A and Level B harassment, take calculations and assumptions are as follows:

    • Number of takes per activity = density (average number of seals per km2) * area of ZOI (km2) * number of days, rounded to the nearest whole number.

    • Seal density in the project area is estimated as 0.6/km2 from September through May (zero from June through August), consisting of 75% harbor seals (0.45/km2) and 25% gray seals (0.15/km2).

    • Assumes as a worst case that activities will occur up to a maximum of 180 workdays (5 days per week) when seals are present (September through May) during each full construction year.

    • Assumes vibratory and impact hammer pile driving would not occur on the same days.

    • Level A and Level B takes are calculated separately based on the respective ZOIs for each type of activity, providing a maximum estimate for each type of take which corresponds to the authorization requested under the MMPA.

    • Assumes that the effective implementation of a 10 m shutdown zone will prevent non-acoustic injuries and will prevent animals from entering acoustic harassment ZOIs that extend less than 10 m from the source.

    The maximum extent of the potential injury zone (for impact pile driving of steel piles) is 984 m (3,228 ft) from the source for 36-inch concrete-filled steel piles and 536 m (1,758 ft) for 14-inch steel H-piles; other potential acoustic injury ZOIs for vibratory pile extraction and installation are only 1 to 7.7 m (3 to 25 ft) from the source (Table 4). Seals within about 10 m (33 ft) of in-water construction or demolition may also be at risk of injury from interaction with construction equipment. These potential injury zones and the 10 m (33 ft) shutdown distance would be monitored during all in-water construction/demolition activities, and the activities would be halted if a marine mammal were to approach within these distances.

    The estimated numbers of instances of acoustic harassment (takes) by year, species and severity (Level A or Level B) are shown in Table 6. Total Level A takes are estimated as 12 harbor seals and 4 gray seals (total 16), and Level B takes are estimated as 504 harbor seals and 168 gray seals (total 672).

    Table 6—Estimated Numbers of Marine Mammals That May Be Exposed to Received Noise Levels That Cause Level A and Level B Harassment Year Species Estimated
  • Level A take
  • Estimated
  • Level B take
  • Estimated
  • total take
  • Abundance Percentage
    1 Harbor seal 6 166 172 75,834 0.23 Gray seal 2 55 57 27,131 0.21 2 Harbor seal 6 177 183 75,834 0.24 Gray seal 2 59 61 505,000 0.01 3 Harbor seal 0 51 51 75,834 0.07 Gray seal 0 17 17 27,131 0.06 4 Harbor seal 0 110 110 75,834 0.13 Gray seal 0 37 37 27,131 0.12
    Mitigation

    In order to issue an LOA under section 101(a)(5)(A) of the MMPA, NMFS must set forth the permissible methods of taking pursuant to such activity, and other means of effecting the least practicable impact on such species or stock and its habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance, and on the availability of such species or stock for taking for certain subsistence uses (latter not applicable for this action). NMFS regulations require applicants for incidental take authorizations to include information about the availability and feasibility (economic and technological) of equipment, methods, and manner of conducting such activity or other means of effecting the least practicable adverse impact upon the affected species or stocks and their habitat (50 CFR 216.104(a)(11)).

    In evaluating how mitigation may or may not be appropriate to ensure the least practicable adverse impact on species or stocks and their habitat, as well as subsistence uses where applicable, we carefully consider two primary factors:

    (1) The manner in which, and the degree to which, the successful implementation of the measure(s) is expected to reduce impacts to marine mammals, marine mammal species or stocks, and their habitat. This considers the nature of the potential adverse impact being mitigated (likelihood, scope, range). It further considers the likelihood that the measure will be effective if implemented (probability of accomplishing the mitigating result if implemented as planned) the likelihood of effective implementation (probability implemented as planned), and;

    (2) The practicability of the measures for applicant implementation, which may consider such things as cost and impact on operations.

    Mitigation for Marine Mammals and Their Habitat

    1. Time Restriction.

    Work will occur only during daylight hours, when visual monitoring of marine mammals can be conducted.

    2. Establishing and Monitoring Level A and Level B Harassment Zones, and Shutdown Zones. These zones may be adjusted as appropriate on the basis of the acoustic monitoring described below.

    Before the commencement of in-water construction activities, which include impact pile driving and vibratory pile driving and pile removal, the Navy shall establish Level A harassment zones where received underwater SELcum could cause PTS (see Table 5 above).

    The Navy shall also establish Level B harassment zones where received underwater SPLs are higher than 160 dBrms re 1 µPa for impulsive noise sources (impact pile driving) and 120 dBrms re 1 µPa for non-impulsive noise sources (vibratory pile driving and pile removal).

    The Navy shall establish a 10-m (33-ft) shutdown zone for all in-water construction and demolition work.

    If marine mammals are found within the shutdown zone, pile driving of the segment would be delayed until they move out of the area. If a marine mammal is seen above water and then dives below, the contractor would wait 15 minutes. If no marine mammals are seen by the observer in that time it can be assumed that the animal has moved beyond the shutdown zone.

    If pile driving of a segment ceases for 30 minutes or more and a marine mammal is sighted within the designated shutdown zone prior to commencement of pile driving, the observer(s) must notify the pile driving operator (or other authorized individual) immediately and continue to monitor the shutdown zone. Operations may not resume until the marine mammal has exited the shutdown zone or 15 minutes have elapsed since the last sighting.

    3. Shutdown Measures.

    The Navy shall implement shutdown measures if a marine mammal is detected moving towards or entered the 10-m (33-ft) shutdown zone.

    Further, the Navy shall implement shutdown measures if the number of authorized takes for any particular species reaches the limit under the LOA and such marine mammals are sighted within the vicinity of the project area and are approaching the Level B harassment zone during in-water construction activities.

    In addition, the Navy shall implement shutdown measures if species not authorized to take are sighted within the vicinity of the project area and are approaching the Level B harassment zone during in-water construction activities.

    4. Soft Start.

    The Navy shall implement soft start techniques for impact pile driving. The Navy shall conduct an initial set of three strikes from the impact hammer at 40 percent energy, followed by a 1-minute waiting period, then two subsequent three strike sets. Soft start shall be required for any impact driving, including at the beginning of the day, and at any time following a cessation of impact pile driving of thirty minutes or longer.

    Whenever there has been downtime of 30 minutes or more without impact driving, the contractor shall initiate impact driving with soft-start procedures described above.

    Based on our evaluation of the required measures, NMFS has determined that the prescribed mitigation measures provide the means effecting the least practicable adverse impact on the affected species or stocks and their habitat, paying particular attention to rookeries, mating grounds, and areas of similar significance.

    Monitoring and Reporting

    In order to issue an LOA for an activity, section 101(a)(5)(A) of the MMPA states that NMFS must set forth, “requirements pertaining to the monitoring and reporting of such taking.” The MMPA implementing regulations at 50 CFR 216.104(a)(13) state that requests for authorizations must include the suggested means of accomplishing the necessary monitoring and reporting that will result in increased knowledge of the species and of the level of taking or impacts on populations of marine mammals that are expected to be present in the proposed action area. Effective reporting is critical both to compliance as well as ensuring that the most value is obtained from the required monitoring.

    Monitoring and reporting requirements prescribed by NMFS should contribute to improved understanding of one or more of the following:

    • Occurrence of marine mammal species or stocks in the area in which take is anticipated (e.g., presence, abundance, distribution, density);

    • Nature, scope, or context of likely marine mammal exposure to potential stressors/impacts (individual or cumulative, acute or chronic), through better understanding of: (1) Action or environment (e.g., source characterization, propagation, ambient noise); (2) affected species (e.g., life history, dive patterns); (3) co-occurrence of marine mammal species with the action; or (4) biological or behavioral context of exposure (e.g., age, calving or feeding areas);

    • Individual marine mammal responses (behavioral or physiological) to acoustic stressors (acute, chronic, or cumulative), other stressors, or cumulative impacts from multiple stressors;

    • How anticipated responses to stressors impact either: (1) Long-term fitness and survival of individual marine mammals; or (2) populations, species, or stocks;

    • Effects on marine mammal habitat (e.g., marine mammal prey species, acoustic habitat, or other important physical components of marine mammal habitat); and

    • Mitigation and monitoring effectiveness.

    Monitoring Measures

    The Navy shall employ trained protected species observers (PSOs) to conduct marine mammal monitoring for its Submarine Base New London pier construction project. The purposes of marine mammal monitoring are to implement mitigation measures and learn more about impacts to marine mammals from the Navy's construction activities. The PSOs will observe and collect data on marine mammals in and around the project area for 15 minutes before, during, and for 30 minutes after all pile removal and pile installation work.

    Protected Species Observer Qualifications

    NMFS-approved PSOs shall meet the following requirements:

    1. Independent observers (i.e., not construction personnel) are required;

    2. At least one observer must have prior experience working as an observer;

    3. Other observers may substitute education (undergraduate degree in biological science or related field) or training for experience;

    4. Where a team of three or more observers are required, one observer should be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer; and

    5. NMFS will require submission and approval of observer CVs.

    Marine Mammal Monitoring Protocols

    The Navy shall conduct briefings between construction supervisors and crews and the PSO team prior to the start of all pile driving activities, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures. All personnel working in the project area shall watch the Navy's Marine Species Awareness Training video. An informal guide shall be included with the monitoring plan to aid in identifying species if they are observed in the vicinity of the project area.

    The Navy will monitor the Level A and Level B harassment zones before, during, and after pile driving activities for all in-water constructions. The Marine Mammal Monitoring Plan would include the following procedures:

    • PSOs will be primarily located on boats, docks, and piers at the best vantage point(s) in order to properly see the entire shutdown zone(s).

    • PSOs will be located at the best vantage point(s) to observe the zone associated with behavioral impact thresholds.

    • During all observation periods, PSOs will use high-magnification (25X), as well as standard handheld (7X) binoculars, and the naked eye to search continuously for marine mammals.

    • Monitoring distances will be measured with range finders. Distances to animals will be based on the best estimate of the PSO, relative to known distances to objects in the vicinity of the PSO.

    • Bearings to animals will be determined using a compass.

    • Pile driving shall only take place when the shutdown and Level A zones are visible and can be adequately monitored. If conditions (e.g., fog) prevent the visual detection of marine mammals, activities with the potential to result in Level A harassment shall not be initiated. If such conditions arise after the activity has begun, pile driving or pile removal activities shall be halted if the 10-m shutdown zone is not visible.

    • Three (3) PSOs shall be posted to monitor marine mammals during in-water pile driving and pile removal. One PSO will be located on land and two will be located in a boat to monitor the farther locations.

    • Pre-Activity Monitoring:

    The shutdown zone will be monitored for 15 minutes prior to in-water construction/demolition activities. If a marine mammal is present within the 10-m shutdown zone, the activity will be delayed until the animal(s) leave the shutdown zone. Activity will resume only after the PSO has determined that, through sighting or by waiting 15 minutes, the animal(s) has moved outside the shutdown zone. If a marine mammal is observed approaching the shutdown zone, the PSO who sighted that animal will notify all other PSOs of its presence.

    • During Activity Monitoring:

    If a marine mammal is observed entering the Level A or Level B zones outside the 10-m shutdown zone, the pile segment being worked on will be completed without cessation, unless the animal enters or approaches the shutdown zone, at which point all pile driving activities will be halted. If an animal is observed within the shutdown zone during pile driving, then pile driving will be stopped as soon as it is safe to do so. Pile driving can only resume once the animal has left the shutdown zone of its own volition or has not been re-sighted for a period of 15 minutes.

    • Post-Activity Monitoring:

    Monitoring of all zones will continue for 30 minutes following the completion of the activity.

    Acoustic Monitoring (1) Sound Source Verification

    The Navy shall conduct pile driving sound source verification for the types and sizes of piles with no prior measurements. These piles include:

    • Vibratory and impact installation of at least 5 16-in fiberglass reinforced plastic piles, and

    • Rock socket drilling of at least 3 30-in and 3 16-in piles.

    Sound source measurements of these piles sound be conducted at distances approximately 10 m from the source.

    For vibratory pile driving/removal source level measurements, reports should include 1-s sound exposure level (SEL), source spectrum, duration of recordings used to derived the SEL, and 24-hour cumulative SEL extrapolated from measurements.

    For impact pile driving source level measurements, report should include peak sound pressure level (SPLpk), root-mean-square SPL (SPLrms), single strike SEL (SELss), integration time for SPLrms, SELss spectrum, and 24-hour cumulative SEL extrapolated from measurements.

    (2) Level B Harassment Distance Verification

    The Navy shall empirically determine the Level B harassment distance either by extrapolating from in situ measurements conducted at several points between 10 and 500 m from the source, or by direct measurements at far distance to locate the distance where the received levels reach 120 dB or below, or at the ambient noise level.

    Level B behavioral harassment zones need to be empirically determined include:

    • Rock socket drilling of at least 3 30-in and 3 16-in piles,

    • Vibratory installation of at least 3 36-in steel piles, and

    • Vibratory removal of at least 3 24-in concrete and 3 33-in concrete piles.

    For extent of Level B distance verification, the Navy shall report the measured or extrapolated distances where the received levels SPLrms decay to 120-dB or to the ambient noise level, whichever is higher, as well as integration time for such SPLrms.

    The sound levels reported should be in median and linear average (i.e., taking averages of sound intensity before converting to dB).

    The acoustic monitoring reports shall also include sediment type where measurements are made.

    Reporting Measures

    The Navy is required to submit an annual report within 90 days after each activity year, starting from the date when the LOA is issued (for the first annual report) or from the date when the previous annual report ended. These reports will detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed during the period of the report. Results from acoustic monitoring should also be included within the monitoring report, as discussed above. NMFS will provide comments within 30 days after receiving these reports, and the Navy shall address the comments and submit revisions within 30 days after receiving NMFS comments. If no comment is received from NMFS within 30 days, the annual report is considered completed.

    The Navy is also required to submit a draft monitoring report within 90 days after completion of the construction work or the expiration of the final LOA, whichever comes earlier. This report will synthesize all data recorded during marine mammal monitoring, and estimate the number of marine mammals that may have been harassed through the entire project. NMFS will provide comments within 30 days after receiving this report, and the Navy shall address the comments and submit revisions within 30 days after receiving NMFS comments. If no comment is received from NMFS within 30 days, the monitoring report is considered as final.

    In addition, NMFS requires the Navy to notify NMFS' Office of Protected Resources and NMFS' Greater Atlantic Stranding Coordinator within 48 hours of sighting an injured or dead marine mammal in the construction site. The Navy shall provide NMFS and the Stranding Network with the species or description of the animal(s), the condition of the animal(s) (including carcass condition, if the animal is dead), location, time of first discovery, observed behaviors (if alive), and photo or video (if available).

    In the event that the Navy finds an injured or dead marine mammal that is not in the construction area, the Navy will report the same information as listed above to NMFS as soon as operationally feasible.

    Negligible Impact Analysis and Determination

    NMFS has defined negligible impact as “an impact resulting from the specified activity that cannot be reasonably expected to, and is not reasonably likely to, adversely affect the species or stock through effects on annual rates of recruitment or survival” (50 CFR 216.103). A negligible impact finding is based on the lack of likely adverse effects on annual rates of recruitment or survival (i.e., population-level effects). An estimate of the number of takes alone is not enough information on which to base an impact determination. In addition to considering estimates of the number of marine mammals that might be “taken” through harassment, NMFS considers other factors, such as the likely nature of any responses (e.g., intensity, duration), the context of any responses (e.g., critical reproductive time or location, migration), as well as effects on habitat, and the likely effectiveness of the mitigation. We also assess the number, intensity, and context of estimated takes by evaluating this information relative to population status. Consistent with the 1989 preamble for NMFS's implementing regulations (54 FR 40338; September 29, 1989), the impacts from other past and ongoing anthropogenic activities are incorporated into this analysis via their impacts on the environmental baseline (e.g., as reflected in the regulatory status of the species, population size and growth rate where known, ongoing sources of human-caused mortality, or ambient noise levels).

    To avoid repetition, this introductory discussion of our analyses applies to both of the species listed in Table 2, given that the anticipated effects of the Navy's Submarine Base New London pier construction project activities involving pile driving and pile removal on marine mammals are expected to be relatively similar in nature. There is no information about the nature or severity of the impacts, or the size, status, or structure of any species or stock that would lead to a different analysis by species for this activity, or else species-specific factors would be identified and analyzed.

    Although a few individual seals (6 harbor seals and 2 gray seals each in year 1 and year 2) are estimated to experience Level A harassment in the form of PTS if they stay within the Level A harassment zone during the entire pile driving for the day, the degree of injury is expected to be mild and is not likely to affect the reproduction or survival of the individual animals. It is expected that, if hearing impairments occurs, most likely the affected animal would lose a few dB in its hearing sensitivity, which in most cases is not likely to affect its survival and recruitment. Hearing impairment that might occur for these individual animals would be limited to the dominant frequency of the noise sources, i.e., in the low-frequency region below 2 kHz. Nevertheless, as for all marine mammal species, it is known that in general these pinnipeds will avoid areas where sound levels could cause hearing impairment. Therefore it is not likely that an animal would stay in an area with intense noise that could cause severe levels of hearing damage.

    Under the majority of the circumstances, anticipated takes are expected to be limited to short-term Level B harassment. Marine mammals present in the vicinity of the action area and taken by Level B harassment would most likely show overt brief disturbance (startle reaction) and avoidance of the area from elevated noise levels during pile driving and pile removal. Given the limited estimated number of incidents of Level A and Level B harassment and the limited, short-term nature of the responses by the individuals, the impacts of the estimated take cannot be reasonably expected to, and are not reasonably likely to, rise to the level that they would adversely affect either species at the population level, through effects on annual rates of recruitment or survival.

    There are no known important habitats, such as rookeries or haul-outs, in the vicinity of the Navy's proposed Submarine Base New London pier construction project. The project also is not expected to have significant adverse effects on affected marine mammals' habitat, including prey, as analyzed in detail in the “Anticipated Effects on Marine Mammal Habitat” subsection.

    Based on the analysis contained herein of the likely effects of the specified activity on marine mammals and their habitat, and taking into consideration the implementation of the proposed monitoring and mitigation measures, NMFS finds that the total take from the proposed activity will have a negligible impact on all affected marine mammal species or stocks.

    Small Numbers

    As noted above, only small numbers of incidental take may be authorized under section 101(a)(5)(A) of the MMPA for specified activities other than military readiness activities. The MMPA does not define small numbers and so, in practice, NMFS compares the number of individuals taken to the most appropriate estimation of abundance of the relevant species or stock in our determination of whether an authorization is limited to small numbers of marine mammals.

    The estimated takes are below one percent of the population for all marine mammals (Table 6).

    Based on the analysis contained herein of the proposed activity (including the prescribed mitigation and monitoring measures) and the anticipated take of marine mammals, NMFS finds that small numbers of marine mammals will be taken relative to the population size of the affected species or stocks.

    Unmitigable Adverse Impact Subsistence Analysis and Determination

    There are no relevant subsistence uses of the affected marine mammal stocks or species implicated by this action. Therefore, NMFS has determined that the total taking of affected species or stocks would not have an unmitigable adverse impact on the availability of such species or stocks for taking for subsistence purposes.

    Adaptive Management

    The regulations governing the take of marine mammals incidental to Navy maintenance construction activities would contain an adaptive management component.

    The reporting requirements associated with this proposed rule are designed to provide NMFS with monitoring data from the previous year to allow consideration of whether any changes are appropriate. The use of adaptive management allows NMFS to consider new information from different sources to determine (with input from the Navy regarding practicability) on an annual or biennial basis if mitigation or monitoring measures should be modified (including additions or deletions). Mitigation measures could be modified if new data suggests that such modifications would have a reasonable likelihood of reducing adverse effects to marine mammals and if the measures are practicable.

    The following are some of the possible sources of applicable data to be considered through the adaptive management process: (1) Results from monitoring reports, as required by MMPA authorizations; (2) results from general marine mammal and sound research; and (3) any information which reveals that marine mammals may have been taken in a manner, extent, or number not authorized by these regulations or subsequent LOAs.

    National Environmental Policy Act (NEPA)

    Issuance of an MMPA authorization requires compliance with NEPA.

    In accordance with NEPA (42 U.S.C. 4321 et seq.) and NOAA Administrative Order (NAO) 216-6A, we have determined that issuance of this rule and subsequent LOAs qualifies to be categorically excluded from further NEPA review. Issuance of the rule is consistent with categories of activities identified in CE B4 of the Companion Manual and we have not identified any extraordinary circumstances listed in Chapter 4 of the Companion Manual that would preclude use of this categorical exclusion.

    Endangered Species Act (ESA)

    No incidental take of ESA-listed species is proposed for authorization or expected to result from this activity. Therefore, NMFS has determined that formal consultation under section 7 of the ESA is not required for this action.

    Classification

    Pursuant to the procedures established to implement Executive Order 12866, the Office of Management and Budget has determined that this proposed rule is not significant.

    Pursuant to section 605(b) of the Regulatory Flexibility Act (RFA), the Chief Counsel for Regulation of the Department of Commerce has certified to the Chief Counsel for Advocacy of the Small Business Administration that this proposed rule, if adopted, would not have a significant economic impact on a substantial number of small entities. The U.S. Navy is the sole entity that would be subject to the requirements in these proposed regulations, and the Navy is not a small governmental jurisdiction, small organization, or small business, as defined by the RFA. Because of this certification, a regulatory flexibility analysis is not required and none has been prepared.

    This proposed rule does not contain a collection-of-information requirement subject to the provisions of the Paperwork Reduction Act (PRA) because the applicant is a federal agency. Notwithstanding any other provision of law, no person is required to respond to nor shall a person be subject to a penalty for failure to comply with a collection of information subject to the requirements of the PRA unless that collection of information displays a currently valid OMB control number. These requirements have been approved by OMB under control number 0648-0151 and include applications for regulations, subsequent LOAs, and reports.

    List of Subjects in 50 CFR Part 217

    Exports, Fish, Imports, Incidental take, Indians, Labeling, Marine mammals, Navy, Penalties, Reporting and recordkeeping requirements, Seafood, Sonar, Transportation.

    Dated: July 20, 2018. Samuel D. Rauch III, Deputy Assistant Administrator for Regulatory Programs, National Marine Fisheries Service.

    For reasons set forth in the preamble, 50 CFR part 217 is amended as follows:

    PART 217—REGULATIONS GOVERNING THE TAKING AND IMPORTING OF MARINE MAMMALS 1. The authority citation for part 217 continues to read as follows: Authority:

    16 U.S.C. 1361 et seq., unless otherwise noted.

    2. Add subpart J to part 217 to read as follows: Subpart J—Taking and Importing Marine Mammals; U.S. Navy's Submarine Base New London Pier Construction Sec. 217.90 Specified activity and specified geographical region. 217.91 Effective dates. 217.92 Permissible methods of taking. 217.93 Prohibitions. 217.94 Mitigation requirements. 217.95 Requirements for monitoring and reporting. 217.96 Letters of Authorization. 217.97 Renewals and modifications of Letters of Authorization. 217.98 [Reserved] 217.99 [Reserved] Subpart J—Taking and Importing Marine Mammals; U.S. Navy's Submarine Base New London Pier Construction
    § 217.90 Specified activity and specified geographical region.

    (a) Regulations in this subpart apply only to the U.S. Navy (Navy) and those persons it authorizes or funds to conduct activities on its behalf for the taking of marine mammals that occurs in the area outlined in paragraph (b) of this section and that occurs incidental to the activities described in paragraph (c) of this section.

    (b) The taking of marine mammals by the Navy may be authorized in Letters of Authorization (LOAs) only if it occurs within the Navy Submarine Base New London Study Area, which is located in the towns of Groton and Ledyard in New London County, Connecticut.

    (c) The taking of marine mammals by the Navy is only authorized if it occurs incidental to the Navy's conducting in-water pier construction or demolition activities.

    § 217.91 Effective dates and definitions.

    Regulations in this subpart are effective March 1, 2020 through February 28, 2025.

    § 217.92 Permissible methods of taking.

    Under LOAs issued pursuant to § 216.106 of this chapter and § 217.96, the Holder of the LOAs (hereinafter “Navy”) may incidentally, but not intentionally, take marine mammals within the area described in § 217.90(b) by Level A harassment and Level B harassment associated with in-water pile driving and pile removal activities, provided the activity is in compliance with all terms, conditions, and requirements of the regulations in this subpart and the applicable LOAs.

    § 217.93 Prohibitions.

    Notwithstanding takings contemplated in § 217.92 and authorized by LOAs issued under § 216.106 of this chapter and § 217.96, no person in connection with the activities described in § 217.90 may:

    (a) Violate, or fail to comply with, the terms, conditions, and requirements of this subpart or a LOA issued under § 216.106 of this chapter and § 217.96;

    (b) Take any marine mammal not specified in such LOAs;

    (c) Take any marine mammal specified in such LOAs in any manner other than as specified;

    (d) Take a marine mammal specified in such LOAs if NMFS determines such taking results in more than a negligible impact on the species or stocks of such marine mammal; or

    (e) Take a marine mammal specified in such LOAs if NMFS determines such taking results in an unmitigable adverse impact on the availability of such species or stock of marine mammal for taking for subsistence uses.

    § 217.94 Mitigation requirements.

    When conducting the activities identified in § 217.90(c), the mitigation measures contained in any LOAs issued under § 216.106 of this chapter and § 217.96 must be implemented. These mitigation measures shall include but are not limited to:

    (a) Time restriction. In-water construction and demolition work shall occur only during daylight hours.

    (b) Establishment of monitoring and shutdown zones. (1) For all relevant in-water construction and demolition activity, the Navy shall designate Level A harassment zones with radial distances as identified in any LOA issued under § 216.106 of this chapter and § 217.96.

    (2) For all relevant in-water construction and demolition activity, the Navy shall designate Level B harassment zones with radial distances as identified in any LOA issued under § 216.106 of this chapter and § 217.96.

    (3) For all in-water construction and demolition activity, the Navy shall implement a minimum shutdown zone of a 10-m radius around the pile. If a marine mammal comes within or approaches the shutdown zone, such operations shall cease.

    (c) Monitoring visibility. Pile driving shall only take place when the shutdown and Level A zones are visible and can be adequately monitored. If conditions (e.g., fog) prevent the visual detection of marine mammals, activities with the potential to result in Level A harassment shall not be initiated. If such conditions arise after the activity has begun, pile driving or pile removal activities shall be halted if the 10-m shutdown zone is not visible.

    (d) Shutdown measures. (1) The Navy shall deploy three protected species observers (PSOs) to monitor marine mammals during in-water pile driving and pile removal. One PSO shall be located on land and two shall be located in a boat to monitor the farther locations.

    (2) Monitoring shall take place from 15 minutes prior to initiation of pile driving or removal activity through 30 minutes post-completion of pile driving or removal activity. Pre-activity monitoring shall be conducted for 15 minutes to ensure that the shutdown zone is clear of marine mammals, and pile driving or removal may commence when observers have declared the shutdown zone clear of marine mammals. In the event of a delay or shutdown of activity resulting from marine mammals in the shutdown zone, animals shall be allowed to remain in the shutdown zone (i.e., must leave of their own volition) and their behavior shall be monitored and documented. Monitoring shall occur throughout the time required to drive or remove a pile. A determination that the shutdown zone is clear must be made during a period of good visibility (i.e., the entire shutdown zone and surrounding waters must be visible to the naked eye).

    (3) If a marine mammal approaches or enters the shutdown zone, or if a marine mammal not specified in the LOAs enters the Level B harassment zone, or if the take of a marine mammal species or stock has reached the take limits specified in any LOA issued under § 216.106 of this chapter and § 217.96 and enters the Level B harassment zone, all pile driving or removal activities at that location shall be halted. If pile driving or removal is halted or delayed due to the presence of a marine mammal, the activity may not commence or resume until either the animal has voluntarily left and been visually confirmed beyond the shutdown zone or fifteen minutes have passed without re-detection of the animal.

    (4) The Navy shall implement shutdown measures if the number of authorized takes for any particular species reaches the limit under the applicable LOA and if such marine mammals are sighted within the vicinity of the project area and are approaching the Level B harassment zone during in-water construction or demolition activities.

    (e) Soft start. (1) The Navy shall implement soft start techniques for impact pile driving. The Navy shall conduct an initial set of three strikes from the impact hammer at 40 percent energy, followed by a 1-minute waiting period, then two subsequent three strike sets.

    (2) Soft start shall be required for any impact driving, including at the beginning of the day, and at any time following a cessation of impact pile driving of 30 minutes or longer.

    § 217.95 Requirements for monitoring and reporting.

    (a) Marine mammal monitoring—(1) General requirements. The Navy shall employ trained protected species observers (PSOs) to conduct marine mammal monitoring for its Submarine Base New London pier construction project. The PSOs shall observe and collect data on marine mammals in and around the project area for 15 minutes before, during, and for 30 minutes after all pile removal and pile installation work. PSOs shall have no other assigned tasks during monitoring periods, and shall be placed at the best vantage point(s) practicable to monitor for marine mammals and implement shutdown or delay procedures when applicable through communication with the equipment operator.

    (2) Protected species observer qualifications. NMFS-approved PSOs shall meet the following requirements:

    (i) Independent observers (i.e., not construction personnel) are required;

    (ii) At least one observer must have prior experience working as an observer;

    (iii) Other observers may substitute education (undergraduate degree in biological science or related field) or training for experience;

    (iv) Where a team of three or more observers are required, one observer should be designated as lead observer or monitoring coordinator. The lead observer must have prior experience working as an observer; and

    (v) NMFS will require submission and approval of observer CVs.

    (3) Marine mammal monitoring protocols. (i) The Navy shall conduct briefings between construction supervisors and crews and the PSO team prior to the start of all pile driving activities, and when new personnel join the work, in order to explain responsibilities, communication procedures, marine mammal monitoring protocol, and operational procedures. All personnel working in the project area shall watch the Navy's Marine Species Awareness Training video. An informal guide shall be included with the monitoring plan to aid in identifying species if they are observed in the vicinity of the project area.

    (ii) The Navy shall monitor the Level A and Level B harassment zones before, during, and after pile driving activities for all in-water constructions. The Marine Mammal Monitoring Plan shall include the following procedures:

    (A) PSO location. PSOs will be primarily located on boats, docks, and piers at the best vantage point(s) in order to properly see the entire shutdown zone(s).

    (B) PSO vantage point. PSOs will be located at the best vantage point(s) to observe the zone associated with behavioral impact thresholds.

    (C) Observation equipment. During all observation periods, PSOs will use high-magnification (25X), as well as standard handheld (7X) binoculars, and the naked eye to search continuously for marine mammals.

    (D) Ranging equipment. Monitoring distances will be measured with range finders. Distances to animals will be based on the best estimate of the PSO, relative to known distances to objects in the vicinity of the PSO.

    (E) Bearing. Bearings to animals will be determined using a compass.

    (F) Pre-activity monitoring. The shutdown zone will be monitored for 15 minutes prior to in-water construction/demolition activities. If a marine mammal is present within the 10-m shutdown zone, the activity will be delayed until the animal(s) leaves the shutdown zone. Activity will resume only after the PSO has determined that, through sighting or by waiting 15 minutes, the animal(s) has moved outside the shutdown zone. If a marine mammal is observed approaching the shutdown zone, the PSO who sighted that animal will notify all other PSOs of its presence.

    (G) During activity monitoring. If a marine mammal is observed entering the Level A or Level B harassment zones outside the 10-m shutdown zone, the pile segment being worked on will be completed without cessation, unless the animal enters or approaches the shutdown zone, at which point all pile driving activities will be halted. If an animal is observed within the shutdown zone during pile driving, then pile driving will be stopped as soon as it is safe to do so. Pile driving can only resume once the animal has left the shutdown zone of its own volition or has not been re-sighted for a period of 15 minutes.

    (H) Post-activity monitoring. Monitoring of all zones will continue for 30 minutes following the completion of the activity.

    (b) Acoustic monitoring—(1) Sound source verification. (i) The Navy shall conduct pile driving sound source verification for the following types and sizes of piles:

    (A) Vibratory and impact installation of at least 5 16-in fiberglass reinforced plastic piles; and

    (B) Rock socket drilling of at least 3 30-in and 3 16-in piles.

    (ii) Sound source measurements of these piles sound shall be conducted at distances approximately 10 m from the source.

    (iii) For vibratory pile driving/removal source level measurements, reports shall include 1-s sound exposure level (SEL), source spectrum, duration of recordings used to derived the SEL, and 24-hour cumulative SEL extrapolated from measurements.

    (iv) For impact pile driving source level measurements, report should include peak sound pressure level (SPLpk), root-mean-square SPL (SPLrms), single strike SEL (SELss), integration time for SPLrms, SELss spectrum, and 24-hour cumulative SEL extrapolated from measurements.

    (2) Level B harassment distance verification. (i) The Navy shall empirically determine the Level B harassment distance either by extrapolating from in situ measurements conducted at several points between 10 and 500 m from the source, or by direct measurements to locate the distance where the received levels reach 120 dB or below, or at the ambient noise level.

    (ii) Level B harassment zones to be empirically verified include:

    (A) Rock socket drilling of at least 3 30-in and 3 16-in piles;

    (B) Vibratory installation of at least 3 36-in steel piles; and

    (C) Vibratory removal of at least 3 24-in concrete and 3 33-in concrete piles.

    (iii) For extent of Level B harassment zone verification, the Navy shall report the measured or extrapolated distances where the received levels SPLrms decay to 120-dB or to the ambient noise level, whichever is higher, as well as integration time for such SPLrms.

    (3) Source level calculation. The sound levels reported should be in median and linear average (i.e., taking averages of sound intensity before converting to dB).

    (4) Sediment type. The passive acoustic monitoring reports shall also include sediment type where measurements are made.

    (c) Reporting measures—(1) Annual reports. (i) The Navy shall submit an annual report within 90 days after each activity year, starting from the date when the LOA is issued (for the first annual report) or from the date when the previous annual report ended.

    (ii) Annual reports shall detail the monitoring protocol, summarize the data recorded during monitoring, and estimate the number of marine mammals that may have been harassed during the period of the report.

    (iii) Annual reports shall also include results from acoustic monitoring detailed in paragraph (b) of this section.

    (iv) NMFS shall provide comments within 30 days after receiving annual reports, and the Navy shall address the comments and submit revisions within 30 days after receiving NMFS comments. If no comment is received from the NMFS within 30 days, the annual report is considered completed.

    (2) Final report. (i) The Navy shall submit a comprehensive summary report to NMFS not later than 90 days following the conclusion of marine mammal monitoring efforts described in this subpart.

    (ii) The final report shall synthesize all data recorded during marine mammal monitoring, and estimate the number of marine mammals that may have been harassed through the entire project.

    (iii) NMFS would provide comments within 30 days after receiving this report, and the Navy shall address the comments and submit revisions within 30 days after receiving NMFS comments. If no comment is received from the NMFS within 30 days, the final report is considered as final.

    (3) Reporting of injured or dead marine mammals. (i) In the unanticipated event that the construction or demolition activities clearly cause the take of a marine mammal in a prohibited manner, such as an injury, serious injury, or mortality, the Navy shall immediately cease all operations and immediately report the incident to the NMFS Office of Protected Resources, NMFS, and the Greater Atlantic Region Stranding Coordinators. The report must include the following information:

    (A) Time, date, and location (latitude/longitude) of the incident;

    (B) Description of the incident;

    (C) Status of all sound source use in the 24 hours preceding the incident;

    (D) Environmental conditions (e.g., wind speed and direction, sea state, cloud cover, visibility, and water depth);

    (E) Description of marine mammal observations in the 24 hours preceding the incident;

    (F) Species identification or description of the animal(s) involved;

    (G) The fate of the animal(s); and

    (H) Photographs or video footage of the animal (if equipment is available).

    (ii) Activities shall not resume until NMFS is able to review the circumstances of the prohibited take. NMFS shall work with the Navy to determine what is necessary to minimize the likelihood of further prohibited take and ensure MMPA compliance. The Navy may not resume their activities until notified by NMFS via letter, email, or telephone.

    (iii) In the event that the Navy discovers an injured or dead marine mammal, and the lead PSO determines that the cause of the injury or death is unknown and the death is relatively recent (i.e., in less than a moderate state of decomposition as described in the next paragraph), the Navy will immediately report the incident to the NMFS Office of Protected Resources, NMFS, and the Greater Atlantic Regional Stranding Coordinators. The report must include the same information identified in paragraph (c)(3)(i)(A) of this section. Activities may continue while NMFS reviews the circumstances of the incident. NMFS will work with the Navy to determine whether modifications in the activities are appropriate.

    (iv) In the event that the Navy discovers an injured or dead marine mammal, and the lead protected species observer determines that the injury or death is not associated with or related to the activities authorized in the IHA (e.g., previously wounded animal, carcass with moderate to advanced decomposition, or scavenger damage), the Navy shall report the incident to the NMFS Office of Protected Resources, NMFS, and the Greater Atlantic Regional Stranding Coordinators, within 24 hours of the discovery. The Navy shall provide photographs or video footage (if available) or other documentation of the stranded animal sighting to NMFS and the Marine Mammal Stranding Network. The Navy can continue its operations under such a case.

    § 217.96 Letters of Authorization.

    (a) To incidentally take marine mammals pursuant to these regulations, the Navy must apply for and obtain LOAs in accordance with § 216.106 of this chapter for conducting the activity identified in § 217.90(c).

    (b) LOAs, unless suspended or revoked, may be effective for a period of time not to extend beyond the expiration date of these regulations.

    (c) If an LOAs expires prior to the expiration date of these regulations, the Navy may apply for and obtain a renewal of the LOAs.

    (d) In the event of projected changes to the activity or to mitigation, monitoring, reporting (excluding changes made pursuant to the adaptive management provision of § 217.97(c)(1)) required by an LOA, the Navy must apply for and obtain a modification of LOAs as described in § 217.97.

    (e) Each LOA shall set forth:

    (1) Permissible methods of incidental taking;

    (2) Means of effecting the least practicable adverse impact (i.e., mitigation) on the species, their habitat, and the availability of the species for subsistence uses; and

    (3) Requirements for monitoring and reporting.

    (f) Issuance of the LOAs shall be based on a determination that the level of taking shall be consistent with the findings made for the total taking allowable under these regulations.

    (g) Notice of issuance or denial of the LOAs shall be published in the Federal Register within 30 days of a determination.

    § 217.97 Renewals and modifications of Letters of Authorization.

    (a) An LOA issued under § 216.106 of this chapter and § 217.96 for the activity identified in § 217.90(c) shall be renewed or modified upon request by the applicant, provided that:

    (1) The proposed specified activity and mitigation, monitoring, and reporting measures, as well as the anticipated impacts, are the same as those described and analyzed for these regulations (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section); and

    (2) NMFS determines that the mitigation, monitoring, and reporting measures required by the previous LOAs under these regulations were implemented.

    (b) For LOA modification or renewal requests by the applicant that include changes to the activity or the mitigation, monitoring, or reporting measures (excluding changes made pursuant to the adaptive management provision in paragraph (c)(1) of this section) that do not change the findings made for the regulations or result in no more than a minor change in the total estimated number of takes (or distribution by species or years), NMFS may publish a notice of proposed LOA in the Federal Register, including the associated analysis of the change, and solicit public comment before issuing the LOA.

    (c) An LOA issued under § 216.106 of this chapter and § 217.96 for the activity identified in § 217.90(c) may be modified by NMFS under the following circumstances:

    (1) Adaptive management. After consulting with the Navy regarding the practicability of the modifications, NMFS may modify (including by adding or removing measures) the existing mitigation, monitoring, or reporting measures if doing so creates a reasonable likelihood of more effectively accomplishing the goals of the mitigation and monitoring set forth in the preamble for these regulations.

    (i) Possible sources of data that could contribute to the decision to modify the mitigation, monitoring, or reporting measures in an LOA:

    (A) Results from the Navy's monitoring from the previous year(s);

    (B) Results from other marine mammal and/or sound research or studies; or

    (C) Any information that reveals marine mammals may have been taken in a manner, extent or number not authorized by these regulations or subsequent LOAs.

    (ii) If, through adaptive management, the modifications to the mitigation, monitoring, or reporting measures are substantial, NMFS shall publish a notice of proposed LOA in the Federal Register and solicit public comment.

    (2) Emergencies. If NMFS determines that an emergency exists that poses a significant risk to the well-being of the species or stocks of marine mammals specified in LOAs issued pursuant to § 216.106 of this chapter and § 217.96, an LOA may be modified without prior notice or opportunity for public comment. Notice would be published in the Federal Register within thirty days of the action.

    § 217.98 [Reserved]
    § 217.99 [Reserved]
    [FR Doc. 2018-15938 Filed 7-30-18; 8:45 am] BILLING CODE 3510-22-P
    83 147 Tuesday, July 31, 2018 Proposed Rules DEPARTMENT OF HOMELAND SECURITY Office of the Secretary 6 CFR Part 5 [Docket No. DHS-2018-0002] Privacy Act of 1974: Implementation of Exemptions; Department of Homeland Security/U.S. Citizenship and Immigration Services-018 Immigration Biometric and Background Check (IBBC) System of Records AGENCY:

    Department of Homeland Security.

    ACTION:

    Notice of proposed rulemaking.

    SUMMARY:

    The Department of Homeland Security (DHS) is giving concurrent notice of a newly established system of records pursuant to the Privacy Act of 1974 for the “Department of Homeland Security/U.S. Citizenship and Immigration Services-018 Immigration Biometric and Background Check System of Records” and this proposed rulemaking. In this proposed rulemaking, the Department proposes to exempt portions of the system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.

    DATES:

    Comments must be received on or before August 30, 2018.

    ADDRESSES:

    You may submit comments, identified by docket number DHS-2018-0002 by one of the following methods:

    Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

    Fax: 202-343-4010.

    Mail: Philip S. Kaplan, Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528-0655.

    Instructions: All submissions received must include the agency name and docket number DHS-2018-0002 for this notice. All comments received will be posted without change to http://www.regulations.gov, including any personal information provided.

    Docket: For access to the docket to read background documents or comments received, go to http://www.regulations.gov.

    FOR FURTHER INFORMATION CONTACT:

    For general questions please contact: Donald K. Hawkins, (202) 272-8030, [email protected], Privacy Officer, U.S. Citizenship and Immigration Services, 20 Massachusetts Avenue NW, Washington, DC 20529.

    For privacy questions please contact: Philip S. Kaplan, (202) 343-1717, [email protected], Chief Privacy Officer, Privacy Office, Department of Homeland Security, Washington, DC 20528-0655.

    SUPPLEMENTARY INFORMATION: I. Background

    In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, the DHS U.S. Citizenship and Immigration Services (USCIS) has relied on two preexisting DHS/USCIS Privacy Act system of records notices (SORN) for the maintenance of USCIS biometric and background check records: “DHS/USCIS 002 Background Check Service,” 72 FR 31082 (June 5, 2007), and “DHS/USCIS-003 Biometric Storage System,” 72 FR 17172 (April 6, 2007). DHS plans to rescind these SORNs. Records covered under these preexisting SORNs will now be covered by one new system of records named “DHS/USCIS-018 Immigration Biometric and Background Check System of Records” (IBBC). This SORN consolidates all USCIS records maintained on biometric and associated biographic information it collects pursuant to its mission to process and adjudicate immigration benefit requests and other immigration request forms (e.g., applications and petitions). The purpose of this system is to verify identity and conduct criminal and national security background checks in order to establish an individual's eligibility for an immigration benefit or other request, and support domestic and international data sharing efforts. USCIS determines eligibility by capturing biometric and associated biographic data from benefit requestors, beneficiaries, and other categories of individuals to facilitate three key operational functions: (1) Verify an individual's identity; (2) conduct criminal and national security background checks; and (3) produce benefit cards/documents as a proof of benefit. Further, this system permits the sharing of information covered by this system between the United States and foreign partners to prevent terrorism, including terrorist travel; prevent serious crime and other threats to national security and public safety; and assist in the administration and enforcement of immigration laws.

    A description of this consolidated system is further described in DHS/USCIS's notice of a new Privacy Act systems of records published elsewhere in this Federal Register.

    II. Privacy Act

    The Privacy Act embodies fair information practice principles in a statutory framework under which Federal Government agencies collect, maintain, use, and disseminate individuals' records. The Privacy Act applies to information that is maintained in a “system of records.” A “system of records” is a group of any records under the control of an agency from which information is retrieved by the name of an individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. Additionally, the Judicial Redress Act (JRA) provides a statutory right to covered persons to make requests for access and amendment to covered records, as defined by the JRA, along with judicial review for denials of such requests. In addition, the JRA prohibits disclosures of covered records, except as otherwise permitted by the Privacy Act.

    The Privacy Act allows government agencies to exempt certain records from the access and amendment subsection 552a(d) provisions. If an agency claims an exemption, however, it must issue a Notice of Proposed Rulemaking and Final Rule to make clear to the public the reasons why a particular exemption is claimed.

    DHS is claiming exemptions from certain requirements of the Privacy Act for DHS/USCIS-018 Immigration Biometric and Background Check System of Records. Information in DHS/USCIS-018 Immigration Biometric and Background Check System of Records relates to official DHS national security, law enforcement, immigration, and intelligence activities. These exemptions are needed to protect ongoing investigations and law enforcement activities. Specifically, the exemptions are required to preclude subjects of these activities from frustrating these processes; to avoid disclosure of activity techniques; to protect the identities and physical safety of confidential informants and law enforcement personnel; to ensure DHS's ability to obtain information from third parties and other sources; and to safeguard classified information. Disclosure of information to the subject of the inquiry could also permit the subject to avoid detection or apprehension.

    In appropriate circumstances, when compliance would not appear to interfere with or adversely affect the law enforcement purposes of this system and the overall law enforcement process, the applicable exemptions may be waived on a case by case basis.

    List of Subjects in 6 CFR Part 5

    Freedom of information, Privacy.

    For the reasons stated in the preamble, DHS proposes to amend chapter I of title 6, Code of Federal Regulations, as follows:

    PART 5—DISCLOSURE OF RECORDS AND INFORMATION 1. The authority citation for part 5 is revised to read as follows: Authority:

    6 U.S.C. 101 et seq.; Pub. L. 107-296, 116 Stat. 2135; 5 U.S.C. 301. Subpart A also issued under 5 U.S.C. 552. Subpart B also issued under 5 U.S.C. 552a.

    2. Add at the end of appendix C to part 5, the following new paragraph “78”: Appendix C to Part 5—DHS Systems of Records Exempt From the Privacy Act

    78. The DHS/USCIS-018 Immigration Biometric and Background Check (IBBC) System of Records covers electronic and paper records and will be used by DHS and its components. The DHS/USCIS-018 IBBC System of Records covers information held by DHS/USCIS in connection with its several and varied missions and functions, including, but not limited to, the enforcement of civil and criminal laws; investigations, inquiries, and proceedings there under; and national security and intelligence activities. The DHS/USCIS-018 IBBC System of Records contains information that is collected by, on behalf of, in support of, or in cooperation with DHS and its components and may contain personally identifiable information collected by other Federal, state, local, tribal, foreign, or international government agencies.

    The Secretary of Homeland Security, pursuant to Secretary's delegation 15002 to the Director of USCIS to conduct certain law enforcement activities when necessary to protect the national security and public safety, pursuant to 5 U.S.C. 552a(j)(2), has exempted this system from the following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3), (c)(4); (d); (e)(1), (e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), (e)(8); (f); and (g). Additionally, the Secretary of Homeland Security, pursuant to 5 U.S.C. 552a(k)(2), has exempted this system from the following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). Where a record received from another system has been exempted in that source system under 5 U.S.C. 552a(j)(2), DHS will claim the same exemptions for those records that are claimed for the original primary systems of records from which they originated and claims any additional exemptions set forth here.

    Exemptions from these particular subsections are justified, on a case-by-case basis to be determined at the time a request is made, for the following reasons:

    (a) From subsection (c)(3) and (4) (Accounting for Disclosures) because release of the accounting of disclosures could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS as well as the recipient agency. Disclosure of the accounting would therefore present a serious impediment to law enforcement efforts and/or efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension, which would undermine the entire investigative process.

    (b) From subsection (d) (Access to Records) because access to the records contained in this system of records could inform the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DHS or another agency. Access to the records could permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension. From subsection (d) (Amendment to Records) because permitting amendment of records could interfere with ongoing investigations and law enforcement activities and would impose an unreasonable administrative burden by requiring investigations to be continually reinvestigated. In addition, permitting access and amendment to such information could disclose security-sensitive information that could be detrimental to homeland security.

    (c) From subsection (e)(1) (Relevancy and Necessity of Information) because in the course of investigations into potential violations of federal law, the accuracy of information obtained or introduced occasionally may be unclear, or the information may not be strictly relevant or necessary to a specific investigation. In the interests of effective law enforcement, it is appropriate to retain all information that may aid in establishing patterns of unlawful activity.

    (d) From subsection (e)(2) (Collection of Information from Individuals) because requiring that information be collected from the subject of an investigation would alert the subject to the nature or existence of the investigation, thereby interfering with that investigation and related law enforcement activities.

    (e) From subsection (e)(3) (Notice to Subjects) because providing such detailed information could impede law enforcement by compromising the existence of a confidential investigation or reveal the identity of witnesses or confidential informants.

    (f) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency Requirements) and (f) (Agency Rules), because portions of this system are exempt from the individual access provisions of subsection (d) for the reasons noted above, and therefore DHS is not required to establish requirements, rules, or procedures with respect to such access. Providing notice to individuals with respect to existence of records pertaining to them in the system of records or otherwise setting up procedures pursuant to which individuals may access and view records pertaining to themselves in the system would undermine investigative efforts and reveal the identities of witnesses, and potential witnesses, and confidential informants.

    (g) From subsection (e)(5) (Collection of Information) because with the collection of information for law enforcement purposes, it is impossible to determine in advance what information is accurate, relevant, timely, and complete. Compliance with subsection (e)(5) would preclude DHS agents from using their investigative training and exercise of good judgment to both conduct and report on investigations.

    (h) From subsection (e)(8) (Notice on Individuals) because compliance would interfere with DHS's ability to obtain, serve, and issue subpoenas, warrants, and other law enforcement mechanisms that may be filed under seal and could result in disclosure of investigative techniques, procedures, and evidence.

    (i) From subsection (g) (Civil Remedies) to the extent that the system is exempt from other specific subsections of the Privacy Act.

    Philip S. Kaplan, Chief Privacy Officer, Department of Homeland Security.
    [FR Doc. 2018-16137 Filed 7-30-18; 8:45 am] BILLING CODE 9111-97-P
    DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service 9 CFR Part 316 [Docket No. FSIS 2018-0019] RIN 0583-AD69 Elimination of the Requirement That Livestock Carcasses Be Marked “U.S. Inspected and Passed” at the Time of Inspection Within a Slaughter Establishment for Carcasses to be Further Processed Within the Same Establishment AGENCY:

    Food Safety and Inspection Service, USDA.

    ACTION:

    Proposed rule.

    SUMMARY:

    FSIS is proposing to amend the Federal meat inspection regulations to eliminate the requirement that livestock carcasses be marked with the official inspection legend at the time of inspection in a slaughter establishment, if the carcasses are to be further processed in the same establishment.

    DATES:

    Comments must be received on or before October 1, 2018.

    ADDRESSES:

    FSIS invites interested persons to submit comments on this proposed rule. Comments may be submitted by one of the following methods:

    Federal eRulemaking Portal: This website provides the ability to type short comments directly into the comment field on this web page or attach a file for lengthier comments. Go to http://www.regulations.gov. Follow the on-line instructions at that site for submitting comments.

    Mail, including CD-ROMs: Send to Docket Clerk, U.S. Department of Agriculture, Food Safety and Inspection Service, 1400 Independence Avenue SW, Mailstop 3758, Room 6065, Washington, DC 20250-3700.

    Hand- or courier-delivered submittals: Deliver to 1400 Independence Avenue SW, Room 6065, Washington, DC 20250-3700.

    Instructions: All items submitted by mail or electronic mail must include the Agency name and docket number FSIS-2018-0005. Comments received in response to this docket will be made available for public inspection and posted without change, including any personal information, to http://www.regulations.gov.

    Docket: For access to background documents or comments received, call (202) 720-5627 to schedule a time to visit the FSIS Docket Room at 1400 Independence Avenue SW, Room 6065, Washington, DC 20250-3700.

    FOR FURTHER INFORMATION CONTACT:

    Roberta Wagner, Assistant Administrator, Office of Policy and Program Development, Food Safety and Inspection Service, U.S. Department of Agriculture; Telephone: (202) 205-0495.

    SUPPLEMENTARY INFORMATION:

    Background

    In the past, slaughter establishments often would ship carcasses to other establishments for further processing into primal, subprimal, and other meat cuts and products. Today however, most establishments that slaughter swine, cattle, or sheep also fabricate the carcasses into various primal and subprimal parts, as well as other meat products. After a carcass has passed inspection, the slaughter establishment typically moves it, under control, to another department in the same establishment for further processing. The establishment then typically ships the resulting meat food products, rather than marked carcasses, in fully labeled containers either for further processing at other establishments or into commerce.

    The Federal Meat Inspection Act (FMIA) requires the inspection of all livestock carcasses and parts of livestock carcasses prepared in slaughter establishments as articles of commerce capable of use as human food (21 U.S.C. 604). In this same provision, the FMIA requires that such carcasses and parts of carcasses found to be not adulterated be stamped as “inspected and passed” before they enter commerce. The FMIA also gives FSIS broad authority to promulgate rules and regulations necessary to carry out its provisions (21 U.S.C. 621).

    The regulations at 9 CFR 316.9 set forth more prescriptive, and partially outdated, requirements for the marking of inspected carcasses. Specifically, the regulation at 9 CFR 316.9(a) requires each carcass at an official establishment to be marked at the time of inspection with the official inspection legend. This requirement is intended to prevent uninspected carcasses from being shipped in commerce from slaughter establishments to processing establishments or elsewhere. However, given contemporary practices at slaughter establishments, marking the carcass on the slaughter floor is often unnecessary, as the carcass will be moved elsewhere in the same establishment for further processing.

    Requests To Move Carcasses and Parts of Carcasses To Processing Without Marking the Carcass

    Numerous slaughter establishments have requested waivers from the requirement in 9 CFR 316.9(a), i.e., that the carcasses they further process in-house not be required to be marked at the time of inspection. The information presented with these requests has described the steps that establishments would take to ensure that uninspected, unmarked, or adulterated product does not enter commerce. These steps typically include: (1) Ensuring that all carcasses inspected and passed by USDA, but not marked on the slaughter floor, are stored and processed in the establishment; (2) ensuring that all products shipped from the establishment bear the mark of inspection or are shipped in fully labeled containers that bear the mark of inspection; and (3) ensuring that FSIS still maintains control over any carcasses that do not pass inspection.

    FSIS has granted many of these waivers, per the regulations at 9 CFR 303.1, thereby allowing inspected and passed carcasses to move, without the mark of inspection, from the slaughter floor to processing departments in the same establishment. At one point, because of the high number of waivers granted, FSIS issued an administrative notice to inspectors (FSIS Notice 17-16) with instructions for verification activities at establishments that had received a waiver from these requirements. FSIS has allowed this notice to expire, in anticipation of this rulemaking. Further, based on discussions with FSIS District Offices, while a significant number of establishments are currently operating under such waivers, there are no reports of unmarked carcasses being shipped into commerce.

    FSIS has carefully considered the available information on allowing establishments to move carcasses and parts of carcasses to processing without marking the carcass with the inspection legend. From its experience with establishments to which it has provided waivers, the Agency has concluded that controls that establishments have put in place and Agency procedures to address inspection of unmarked carcasses have been successful in preventing unmarked carcasses from leaving the establishment for processing in an outside facility. FSIS is thus proposing that establishments not be required to mark carcasses with the inspection legend when the carcasses leave the slaughter floor to be further processed within the same establishment. However, all primals, subprimals, parts and other meat food products will have to be properly labeled and bear the mark of inspection before entering commerce.

    Under the proposed rule, FSIS inspection personnel will continue to verify that the establishment has in place in its Hazard Analysis and Critical Control Point (HACCP) plan, Sanitation Standard Operating Procedures (SOPs), or other prerequisite programs, controls to ensure that unmarked carcasses are further processed in the establishment and that carcasses that are not further processed in the establishment do not leave the establishment unmarked. Additionally, should this rule become final, inspectors would verify through records review or direct observation that the establishment's procedures ensure that: (1) The establishment properly identifies and handles carcasses or parts eligible for the mark of inspection through edible channels, so that only edible, inspected and passed product proceeds to fabrication; (2) the establishment can account for the number of carcasses it slaughters and moves through its establishment and that it correctly identifies the species slaughtered on the final label; (3) retained carcasses or parts remain under FSIS control until the establishment makes corrections that render the carcass or part eligible to bear the mark of inspection (e.g., carcasses retained for residue sample or pending pathology disposition are held in FSIS controlled retained cages in the cooler); and (4) whole carcasses transported to another establishment bear the mark of inspection.

    Executive Orders 12866 and 13563, and the Regulatory Flexibility Act

    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 benefits, distributive impacts, and equity). Executive Order (E.O.) 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This proposed rule has been designated as a “non-significant” regulatory action under section 3(f) of E.O. 12866. Accordingly, the rule has not been reviewed by the Office of Management and Budget (OMB) under E.O. 12866.

    Economic Impact Analysis

    FSIS is proposing to remove the requirement for carcasses slaughtered in an establishment to bear the mark of inspection after being inspected and passed on the slaughter floor if the carcasses are to be further processed in the same establishment. Since this requirement is no longer necessary to prevent adulterated food product from entering commerce (see explanation in the Background section above), removing it will have no negative public health impact. Nor will it impose costs on the industry or the Agency.

    In regard to benefits from the rulemaking, removing an unnecessary requirement will allow establishments the flexibility to be innovative and to operate in the most efficient manner. In addition, it will also allow FSIS to utilize its resources more appropriately by relieving inspectors of unnecessary tasks. The expected benefits from this proposed rule would accrue from time and resource savings. Inspected and passed carcasses meant for further processing would not have to wait for the mark of inspection but could move directly to further processing. Thus, establishments that slaughter livestock and process livestock carcasses in the same facility would benefit from fewer delays in their operations and greater flexibility to conduct processing operations on inspected and passed carcasses.

    Agency data show that there are approximately 797 meat slaughtering establishments, and approximately 676 of them (~85 percent) do both slaughtering and processing.1 FSIS estimates that approximately 644 of these 676 establishments (~95 percent) further process the carcasses they slaughter. Given that the annual production of meat by Federal inspected establishments is approximately 150 million heads,2 roughly 120.9 million carcasses are subject to the requirements in 9 CFR 316.9 (150 million × 85 percent × 95 percent). Assuming that it takes establishment labor, on average, 3 seconds to stamp each carcass, and that approximately half of the establishments already have waivers from the requirement, approximately 50,417 additional hours would be saved. Most establishments use hired workers to do the stamping. If we assume the average hourly pay (salary plus benefits) is $20,3 then the time saved is equivalent to approximately $1.01 million annually.

    1 Data source: Public Health Inspection System as of June 2017, provided by FSIS's Office of Data Integration and Food Protection.

    2 Livestock Slaughter 2016 Summary (April 2017). USDA, National Agricultural Statistics. http://usda.mannlib.cornell.edu/usda/current/LiveSlauSu/LiveSlauSu-04-19-2017.pdf, p.15. accessed 06/01/2017.

    3 Data source: Bureau of Labor Statistics (BLS) most recent report of average wage of meat slaughterers and packers. https://www.bls.gov/oes/current/oes513023.htm/, accessed 06/2017.

    In addition, such establishments would no longer need to replace the broken or worn out stamps previously used for marking carcasses on the slaughter floor. Typically, a stamp (usually made of bronze) costs $225 and lasts 5 years.4 The annualized cost of the stamp is $55 (if the interest rate is 7 percent) or $50 (if the interest rate is 3 percent). Assuming each establishment (that does not already have a waiver from the requirement) uses one stamp per year, the annual savings on these stamps would be between $16,700 and $18,600.

    4 Data from Ketchum Manufacturing Inc., a manufacturer of meat stamps, through telephone interview on 4/17/2017.

    Additionally, establishments would no longer need to make written requests for waivers from the requirement to stamp carcasses further processed within the same establishment and would no longer need to wait to have such requests approved. Further, because FSIS inspectors would no longer need to ensure that inspected and passed carcasses bear the mark of inspection before they are sent for further processing, FSIS inspectors would have greater flexibility to focus on activities that are more important in ensuring food safety, such as verifying that establishments meet HACCP regulations and collecting product samples. However, the time needed for submitting a written waiver request and waiting for approval is minimal, and the saving of that time would be offset by the increase in time needed for establishments to amend their HACCP plans, Sanitation SOPs, or prerequisite programs to add controls for the movement of these unmarked carcasses under this proposed rule. Similarly, the time saved for FSIS inspectors to ensure that inspected carcasses bear the mark of inspection would be offset by the increase in time to verify that establishments meet HACCP regulations.

    There are no expected costs associated with this proposed rule. Establishments already operating under a waiver will have procedures in their HACCP plans, Sanitation SOPs, or prerequisite programs that ensure that carcasses that are not further processed in the establishment do not leave the establishment unmarked. Other establishments will need to revise these procedures. However, FSIS expects that any costs associated with revising the procedures would be offset by increased flexibility allowed to those establishments as discussed in the foregoing section.

    Regulatory Flexibility Act Assessment

    The FSIS Administrator has made a preliminary determination that this proposed rule will not have a significant economic impact on a substantial number of small entities, as defined by the Regulatory Flexibility Act (5 U.S.C. 601). The proposed rule will not increase costs to the industry.

    Executive Order 13771

    Consistent with E.O. 13771 (82 FR 9339, February 3, 2017), FSIS has estimated that this proposed rule would yield cost savings. Therefore, if finalized as proposed, this rule is expected to be an E.O. 13771 deregulatory action.

    Paperwork Reduction Act

    There are no paperwork or recordkeeping requirements associated with this proposed rule under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

    E-Government Act

    FSIS and USDA are committed to achieving the purposes of the E-Government Act (44 U.S.C. 3601, et seq.) by, among other things, promoting the use of the internet and other information technologies and providing increased opportunities for citizen access to Government information and services, and for other purposes.

    Executive Order 12988, Civil Justice Reform

    This proposed rule has been reviewed under E.O. 12988, Civil Justice Reform. Under this rule: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) no administrative proceedings will be required before parties may file suit in court challenging this rule.

    Executive Order 13175

    This rule has been reviewed in accordance with the requirements of E.O. 13175, “Consultation and Coordination with Indian Tribal Governments.” E.O. 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects 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.

    FSIS has assessed the impact of this rule on Indian tribes and determined that this rule does not, to our knowledge, have tribal implications that require tribal consultation under E.O. 13175. If a Tribe requests consultation, FSIS will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions and modifications identified herein are not expressly mandated by Congress.

    USDA Non-Discrimination Statement

    No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.

    How To File a Complaint of Discrimination

    To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at http://www.ocio.usda.gov/sites/default/files/docs/2012/Complain_combined_6_8_12.pdf, or write a letter signed by you or your authorized representative.

    Send your completed complaint form or letter to USDA by mail, fax, or email: Mail:U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW, Washington, DC 20250-9410; Fax: (202) 690-7442; Email: [email protected].

    Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

    Additional Public Notification

    Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this Federal Register publication on-line through the FSIS web page located at: http://www.fsis.usda.gov/federal-register.

    FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, and other types of information that could affect or would be of interest to our constituents and stakeholders. Constituent updates are available on the FSIS web page. Through the web page, FSIS is able to provide information to a much broader, more diverse audience. In addition, FSIS offers an email subscription service which provides automatic and customized access to selected food safety news and information. This service is available at: http://www.fsis.usda.gov/subscribe. Options range from recalls to export information, regulations, directives, and notices. Customers can add or delete subscriptions themselves, and have the option to password protect their accounts.

    List of Subjects in 9 CFR Part 316

    Food labeling, Food packaging, Meat inspection.

    For the reasons set forth in the preamble, FSIS is proposing to amend 9 CFR part 316 as follows:

    PART 316—MARKING PRODUCTS AND THEIR CONTAINERS 1. The authority citation for part 316 is revised to read as follows: Authority:

    21 U.S.C. 601-695; 7 CFR 2.18, 2.55.

    2. In § 316.9, revise paragraph (a), redesignate paragraphs (b) through (d) as paragraphs (c) through (e), respectively, and add a new paragraph (b) to read as follows:
    § 316.9 Products to be marked with official marks.

    (a) Each carcass that has been inspected and passed in an official establishment must be marked at the time of inspection with the official inspection legend containing the number of the official establishment, if the carcass is to be shipped into commerce from the establishment without further processing.

    (b) A passed and inspected carcass that is to be further processed in the slaughtering establishment need not be marked with the official inspection legend at the time of inspection, provided the establishment develops and implements, as part of a HACCP plan, Sanitation SOPs, or other prerequisite program, procedures to ensure that:

    (1) Unmarked carcasses are further processed only in the slaughtering establishment;

    (2) Unmarked carcasses that, for any reason, are not further processed in the establishment do not leave the establishment unmarked; and

    (3) Unmarked and retained carcasses or parts remain under FSIS control until the establishment makes any corrections that are necessary to render the carcass or part eligible to bear the mark of inspection.

    Done in Washington, DC.

    Paul Kiecker, Acting Administrator.
    [FR Doc. 2018-16345 Filed 7-30-18; 8:45 am] BILLING CODE 3410-DM-P
    DEPARTMENT OF AGRICULTURE Food Safety and Inspection Service 9 CFR Parts 318 and 381 [Docket No. FSIS 2016-0032] RIN 0583-AD66 Preparation of Uninspected Products Outside of the Hours of Inspectional Supervision AGENCY:

    Food Safety and Inspection Service, USDA.

    ACTION:

    Proposed rule.

    SUMMARY:

    FSIS is proposing to amend the Federal meat and poultry products inspection regulations to eliminate prescriptive requirements governing the manufacture of uninspected products, such as pet food, in edible product areas of official establishments and to allow official establishments to manufacture such products outside the hours of inspection.

    DATES:

    To receive full consideration, comments should be received by August 30, 2018.

    ADDRESSES:

    FSIS invites interested persons to submit comments on this proposed rule. Comments may be submitted by one of the following methods:

    Federal eRulemaking Portal: This website provides the ability to type short comments directly into the comment field on this web page or attach a file for lengthier comments. Go to http://www.regulations.gov. Follow the on-line instructions at that site for submitting comments.

    Mail, including CD-ROMs, etc.: Send to Docket Clerk, U.S. Department of Agriculture, Food Safety and Inspection Service, 1400 Independence Avenue SW, Mailstop 3758, Room 6065, Washington, DC 20250-3700.

    Hand- or courier-delivered submittals: Deliver to 1400 Independence Avenue SW, Room 6065, Washington, DC 20250-3700.

    Instructions: All items submitted by mail or electronic mail must include the Agency name and docket number FSIS-2018-0005. Comments received in response to this docket will be made available for public inspection and posted without change, including any personal information, to http://www.regulations.gov.

    Docket: For access to background documents or comments received, call (202) 720-5627 to schedule a time to visit the FSIS Docket Room at 1400 Independence Avenue SW, Room 6065, Washington, DC 20250-3700.

    FOR FURTHER INFORMATION CONTACT:

    Roberta Wagner, Assistant Administrator, Office of Policy and Program Development; Telephone: (202) 205-0495.

    SUPPLEMENTARY INFORMATION:

    Background

    FSIS regulations at 9 CFR 318.12 and 381.152 govern the manufacture of pet food and other uninspected, inedible products in official meat and poultry establishments. These regulations set forth prescriptive requirements intended to prevent the creation of insanitary conditions in official establishments, the commingling of inedible and edible meat and poultry products, and the movement of inedible meat and poultry products into commerce as human food. They also require that pet food and other inedible products be manufactured in official establishments only when an FSIS inspector is on premises.

    These prescriptive requirements for the production of pet food and other inedible products (e.g., inedible rendered fats, lungs, lung lobes, and experimental products) are incompatible with the Hazard Analysis and Critical Control Point (HACCP) regulations at 9 CFR part 417 and the related sanitation regulations at 9 CFR part 416. Under the HACCP regulations, establishments are responsible for developing and implementing HACCP plans incorporating the controls determined by the establishment to be necessary and appropriate to produce safe, unadulterated products. Specifically under HACCP, official establishments must determine the food safety hazards reasonably likely to occur in the production process; institute controls necessary to prevent those hazards from occurring or keeping them within acceptable limits; monitor the performance of controls and verify the HACCP system is working as intended; and maintain required HACCP records. HACCP is a flexible system that appropriately places the responsibility for food safety on establishments and enables them to tailor their control systems to the needs of specific processes and operating conditions.

    Similarly, the Sanitation Performance Standards (SPS) and requirements for Sanitation Standard Operating Procedures (SOPs) at 9 CFR part 416 set forth sanitation objectives to be achieved, while allowing establishments to develop and employ innovative and effective sanitation procedures customized to the nature of their operations. Under the Sanitation SOP regulations, FSIS requires that all inspected establishments develop and implement written Sanitation SOPs to prevent direct contamination or adulteration of product before and during operations. An establishment's Sanitation SOP typically covers the scheduled, daily pre-operational and operational cleaning and sanitation of equipment and surfaces that may contact product directly. Under the SPS regulations, establishments must address all of the other aspects of establishment sanitation that can affect food safety, e.g., pest control, adequate ventilation, lighting, and plumbing systems.

    Under the HACCP and sanitation requirements, an establishment that produces both edible and inedible meat and poultry products must develop and implement the controls and procedures necessary to prevent the adulteration of edible products by insanitary conditions and product commingling, as well as the movement of inedible products into commerce as human food. FSIS inspectors verify the implementation and effectiveness of these controls through inspection, records review and, as necessary, product sampling. Thus, FSIS inspectors do not need to be present in an official establishment when it manufactures inedible products in order to verify that edible products are not adulterated as a result.

    Proposed Changes

    FSIS is proposing to eliminate the prescriptive regulatory requirements at 9 CFR 318.12 and 381.152 governing the manufacture of uninspected, inedible products, such as pet food, and restricting the hours during which such products may be prepared in an official establishment. Specifically, these regulations set forth specific requirements regarding the sanitary handling of inedible products and their separation from edible products, as well as the placement, movement and cleaning of equipment in areas where inedible product is manufactured. They also require that the manufacture of uninspected, inedible products be conducted only during those hours in which the establishment operates under inspectional supervision. These regulations were issued before FSIS published its HACCP and Sanitation SOP regulations, when prescriptive regulatory requirements were deemed necessary to prevent the adulteration of meat and poultry products by the preparation of inedible products in the same establishment.

    FSIS is proposing to replace the prescriptive requirements in 9 CFR 318.12 and 381.152 with general standards governing the manufacture of uninspected, inedible products in official establishments. The proposed standards require that the manufacture of uninspected products in official establishments must not result in the adulteration of meat and poultry products, create insanitary conditions whereby meat and poultry products may be adulterated, or prevent or otherwise interfere with inspection or other program tasks performed by FSIS personnel. Establishments that manufacture pet food and other inedible products should be meeting these proposed standards already, through the implementation of their HACCP plans, Sanitation SOPs or other prerequisite programs.

    Executive Order 12866 and the Regulatory Flexibility Act

    This proposed rule has been designated as a “non-significant” regulatory action under section 3(f) of Executive Order (E.O.) 12866. Accordingly, the proposed rule has not been reviewed by the Office of Management and Budget under E.O. 12866.

    Economic Impact Analysis

    As stated above, the HACCP and the sanitation regulations provide a framework or food safety system for establishments to produce safe, unadulterated product. Compliance with these requirements makes the prescriptive requirements in 9 CFR 318.12 and 381.151 unnecessary. Because these prescriptive requirements are no longer necessary to ensure the production of safe, unadulterated food, removing them will have no negative public health impact. In addition, this rule will not impose costs on the industry or the Agency.

    Further, removing the unnecessary, prescriptive requirements should allow establishments additional flexibility to be innovative and to operate in the most efficient manner. Similarly, the rule should also allow FSIS to use its resources more appropriately by relieving inspectors of unnecessary tasks.

    Regulatory Flexibility Act (RFA)

    FSIS has examined the economic implications of the proposed rule as required by the RFA (5 U.S.C 601-612). If a rule has a significant economic impact on a substantial number of small entities, the RFA requires that regulatory options that would lessen the economic effect of the rule on small entities be analyzed. FSIS has determined that, should it become final, the proposed rule would not have a significant impact on a substantial number of small entities.

    Executive Order 13771

    This proposed rule, if finalized as proposed, is expected to be a deregulatory action under E.O. 13771. Assessment of the costs and cost savings may be found in the preceding economic analysis.

    Paperwork Reduction Act

    There are no paperwork or recordkeeping requirements associated with this proposed rule under the Paperwork Reduction Act of 1995 (44 U.S.C. 3501-3520).

    E-Government Act

    FSIS and USDA are committed to achieving the purposes of the E-Government Act (44 U.S.C. 3601, et seq.) by, among other things, promoting the use of the internet and other information technologies and providing increased opportunities for citizen access to Government information and services, and for other purposes.

    Executive Order 12988, Civil Justice Reform

    This proposed rule has been reviewed under Executive Order 12988, Civil Justice Reform. Under this rule: (1) All State and local laws and regulations that are inconsistent with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) no administrative proceedings will be required before parties may file suit in court challenging this rule.

    Executive Order 13175

    This rule has been reviewed in accordance with the requirements of Executive Order 13175, “Consultation and Coordination with Indian Tribal Governments.” E.O. 13175 requires Federal agencies to consult and coordinate with tribes on a government-to-government basis on policies that have tribal implications, including regulations, legislative comments or proposed legislation, and other policy statements or actions that have substantial direct effects 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.

    FSIS has assessed the impact of this rule on Indian tribes and determined that this rule does not, to our knowledge, have tribal implications that require tribal consultation under E.O. 13175. If a Tribe requests consultation, the Food Safety and Inspection Service will work with the Office of Tribal Relations to ensure meaningful consultation is provided where changes, additions and modifications identified herein are not expressly mandated by Congress.

    USDA Non-Discrimination Statement

    No agency, officer, or employee of the USDA shall, on the grounds of race, color, national origin, religion, sex, gender identity, sexual orientation, disability, age, marital status, family/parental status, income derived from a public assistance program, or political beliefs, exclude from participation in, deny the benefits of, or subject to discrimination any person in the United States under any program or activity conducted by the USDA.

    How To File a Complaint of Discrimination

    To file a complaint of discrimination, complete the USDA Program Discrimination Complaint Form, which may be accessed online at http://www.ocio.usda.gov/sites/default/files/docs/2012/Complain_combined_6_8_12.pdf, or write a letter signed by you or your authorized representative.

    Send your completed complaint form or letter to USDA by mail, fax, or email: Mail: U.S. Department of Agriculture, Director, Office of Adjudication, 1400 Independence Avenue SW, Washington, DC 20250-9410; Fax: (202) 690-7442; Email: [email protected]

    Persons with disabilities who require alternative means for communication (Braille, large print, audiotape, etc.), should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD).

    Additional Public Notification

    Public awareness of all segments of rulemaking and policy development is important. Consequently, FSIS will announce this Federal Register publication on-line through the FSIS web page located at: http://www.fsis.usda.gov/federal-register.

    FSIS also will make copies of this publication available through the FSIS Constituent Update, which is used to provide information regarding FSIS policies, procedures, regulations, Federal Register notices, FSIS public meetings, and other types of information that could affect or would be of interest to our constituents and stakeholders. The Update is available on the FSIS web page. Through the web page, FSIS is able to provide information to a much broader, more diverse audience. In addition, FSIS offers an email subscription service which provides automatic and customized access to selected food safety news and information. This service is available at: http://www.fsis.usda.gov/subscribe. Options range from recalls to export information, regulations, directives, and notices. Customers can add or delete subscriptions themselves, and have the option to password protect their accounts.

    List of Subjects 9 CFR Part 318

    Food additives, Food packaging, Laboratories, Meat inspection, Reporting and recordkeeping requirements, Signs and symbols.

    9 CFR Part 381

    Administrative practice and procedure, Animal diseases, Crime, Exports, Food grades and standards, Food labeling, Food packaging, Government employees, Grant programs-agriculture, Intergovernmental relations, Laboratories, Meat inspection, Nutrition, Polychlorinated biphenyls, Poultry and poultry products, Reporting and recordkeeping requirements, Seizures and forfeitures, Signs and symbols, Technical Assistance, Transportation.

    For the reasons set forth in the preamble, FSIS is proposing to amend 9 CFR parts 318 and 381 as follows:

    PART 318—ENTRY INTO OFFICIAL ESTABLISHMENTS; REINSPECTION AND PREPARATION OF PRODUCTS 1. The authority citation for part 318 continues to read as follows: Authority:

    7 U.S.C. 138f, 450, 1901-1906; 21 U.S.C. 601-695; 7 CFR 2.18, 2.53.

    2. Section 318.12 is revised to read as follows:
    § 318.12 Manufacture of uninspected, inedible products at official establishments.

    (a) Official establishments may manufacture pet food or similar uninspected, inedible products in areas where edible products also are produced, provided that the manufacture of uninspected, inedible products does not:

    (1) Adulterate edible products;

    (2) Create insanitary conditions in the official establishment whereby edible products may be adulterated; or

    (3) Prevent or interfere with inspection or other program tasks performed by FSIS personnel in the official establishment.

    (b) Pet food and similar uninspected, inedible products must be distinguished from edible products so as to avoid their distribution as human food. Pet food or similar uninspected, inedible products must be labeled or otherwise identified in accordance with § 325.11(d) of this subchapter.

    PART 381—POULTRY PRODUCTS INSPECTIONS REGULATIONS 3. The authority citation for part 381 continues to read as follows: Authority:

    7 U.S.C. 138f; 7 U.S.C. 450; 21 U.S.C. 451-470; 7 CFR 2.18, 2.53.

    4. Section 381.152 is revised to read as follows:
    § 381.152 Manufacture of uninspected, inedible products at official establishments.

    (a) Official establishments may manufacture pet food or similar uninspected, inedible products in areas where edible products also are produced, provided that the manufacture of uninspected, inedible products does not:

    (1) Adulterate edible products;

    (2) Create insanitary conditions in the official establishment whereby edible products may be adulterated; or

    (3) Prevent or interfere with inspection or other program tasks performed by FSIS personnel in the official establishment.

    (b) The immediate container of uninspected, inedible products manufactured in an official establishment shall be conspicuously labeled so as to distinguish them from human food.

    Done in Washington, DC.

    Paul Kiecker, Acting Administrator.
    [FR Doc. 2018-16339 Filed 7-30-18; 8:45 am] BILLING CODE 3410-DM-P
    COMMODITY FUTURES TRADING COMMISSION 17 CFR Part 41 RIN 3038-AE61 Position Limits and Position Accountability for Security Futures Products AGENCY:

    Commodity Futures Trading Commission.

    ACTION:

    Proposed rule.

    SUMMARY:

    The Commodity Futures Trading Commission (“CFTC” or “Commission”) is proposing to amend its position limits rules for security futures products (“SFPs”) by: Increasing the default level of equity SFP position limits, and modifying the criteria for setting a higher level of position limits and position accountability levels. In addition, the proposed amended position limit regulation would provide discretion to a designated contract market (“DCM”) to apply limits to either a person's net position or a person's position on the same side of the market. The Commission also proposes criteria for setting position limits on an SFP on other than an equity security, generally based on an estimate of deliverable supply.

    DATES:

    Comments must be received on or before October 1, 2018.

    ADDRESSES:

    You may submit comments, identified by RIN 3038-AE61 and “Position Limits and Position Accountability for Security Futures Products,” by any of the following methods:

    CFTC website: http://comments.cftc.gov. Follow the instructions for submitting comments through the Comments Online process on the website.

    Mail: Christopher Kirkpatrick, Secretary of the Commission, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW, Washington, DC 20581.

    Hand delivery/courier: Same as Mail above.

    Please submit your comments using only one method.

    All comments must be submitted in English, or if not, accompanied by an English translation. Comments will be posted as received to http://www.cftc.gov. You should submit only information that you wish to make available publicly. If you wish the Commission to consider information that is exempt from disclosure under the Freedom of Information Act, a petition for confidential treatment of the exempt information may be submitted according to the procedures set forth in section 145.9 of the Commission's regulations.1

    1 All Commission regulations referred to herein are found in chapter I of title 17 of the Code of Federal Regulations. Commission regulations are accessible on the Commission's website, http://www.cftc.gov.

    The Commission reserves the right, but shall have no obligation, to review, pre-screen, filter, redact, refuse or remove any or all of your submission from http://www.cftc.gov that it may deem to be inappropriate for publication, such as obscene language. All submissions that have been redacted or removed that contain comments on the merits of the rulemaking will be retained in the public comment file and will be considered as required under the Administrative Procedure Act and other applicable laws, and may be accessible under the Freedom of Information Act.

    FOR FURTHER INFORMATION CONTACT:

    Thomas M. Leahy, Jr., Associate Director, Product Review, Division of Market Oversight, 202-418-5278, [email protected]; or Riva Spear Adriance, Senior Special Counsel, Chief Counsel's Office, Division of Market Oversight, 202-418-5494, [email protected]; Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW, Washington, DC 20581.

    SUPPLEMENTARY INFORMATION:

    I. Background A. Overview

    On December 21, 2000, the Commodity Futures Modernization Act (“CFMA”) became law and amended the Commodity Exchange Act (“CEA”). The CFMA removed a long-standing ban 2 on trading futures on single securities and narrow-based security indexes 3 in the United States. As amended by the CFMA, in order for a DCM to list SFPs,4 the SFPs and the securities underlying the SFPs must meet a number of criteria.5 One of the criteria requires that trading in the SFP is not readily susceptible to manipulation of the price of such SFP, nor to causing or being used in the manipulation of the price of any underlying security, option on such security, or option on a group or index including such securities.6

    2See section 251(a) of the CFMA. This trading previously was prohibited by 7 U.S.C. 2(a)(1)(B)(v).

    3See 7 U.S.C. 1a(35) for the definition of “narrow-based security index.”

    4 The term “security futures product” is defined in section 1a(45) of the CEA and section 3(a)(56) of the Exchange Act to mean a security future or any put, call, straddle, option, or privilege on any security future. The term “security future” is defined in section 1a(44) of the CEA and section 3(a)(55)(A) of the Exchange Act to include futures contracts on individual securities and on narrow-based security indexes. The term “narrow-based security index” is defined in section 1a(35) of the CEA and section 3(a)(55)(B) of the Exchange Act.

    5See 7 U.S.C. 2(a)(1)(D)(i).

    6 7 U.S.C. 2(a)(1)(D)(i)(VII).

    As the Commission noted when it proposed to adopt criteria for trading of SFPs:

    It is important that the listing standards and conditions in the CEA and the [Securities Exchange Act of 1934 (“Exchange Act”)] be easily understood and applied by [DCMs]. The rules proposed today address issues related to these standards and establish uniform requirements related to position limits, as well as provisions to minimize the potential for manipulation and disruption to the futures markets and underlying securities markets.7

    7See Listing Standards and Conditions for Trading Security Futures Products, proposed rules, 66 FR 37932, 37933 (July 20, 2001) (“2001 Proposed SFP Rules”). The Commission further noted, “The speculative position limit level adopted by a [DCM] should be consistent with the obligation in section 2(a)(1)(D)(i)(VII) of the CEA that the [DCM] maintain procedures to prevent manipulation of the price of the [SFP] and the underlying security or securities.” Id. at 37935.

    Among those provisions is current Commission regulation 41.25(a)(3), which requires a DCM that lists SFPs to establish position limits or position accountability standards. The Commission's SFP position limits regulations were set at levels that are generally comparable but not identical to the limits that currently apply to options on individual securities.8

    8See Listing Standards and Conditions for Trading Security Futures Products, 66 FR 55078, 55082 (November 1, 2001) (“2001 Final SFP Rules”).

    Under the existing regulations, a DCM is required to establish for each SFP a position limit, applicable to positions held during the last five trading days of an expiring contract month, of no greater than 13,500 (100-share) contracts, except under specific conditions.9 If a security underlying an SFP has either (i) an average daily trading volume of at least 20 million shares; or (ii) an average daily trading volume of at least 15 million shares and at least 40 million shares outstanding, then the DCM may establish a position limit for the SFP of no more than 22,500 contracts.10 A DCM may adopt position accountability for an SFP on a security that has: (i) An average daily trading volume of at least 20 million shares; and (ii) at least 40 million shares outstanding.11 Under any position accountability regime, upon a request from a DCM, traders holding a position of greater than 22,500 contracts, or such lower threshold as specified by the DCM, must provide information to the exchange regarding the nature of the position.12 Under position accountability, traders must also consent to halt increases in the size of their positions upon the direction of the DCM.13 The position limits and position accountability trigger levels specified in the Commission's regulations are based on a contract size of 100 shares in the underlying security. DCMs may use part 150 of the Commission's regulations as guidance when approving exemptions from SFP position limit rules.14

    9 17 CFR 41.25(a)(3)(i). The 13,500 limit level is premised on an SFP contract size of 100 shares of an underlying equity security.

    10 17 CFR 41.25(a)(3)(i)(A).

    11 17 CFR 41.25(a)(3)(i)(B).

    12Id.

    13Id.

    14 Although part 150 previously provided requirements for exchange-set position limits, it was rendered “mere guidance” by the CFMA. See, e.g., 81 FR 96704, 96742 (Dec. 30, 2016); see also 74 FR 12178, 12183 (March 23, 2009) (noting “the part 150 rules essentially constitute guidance for DCMs administering position limits regimes”).

    B. Differences Between Initially Adopted SFP and Equity Option Position Limit Rules

    In response to the 2001 Proposed SFP rules, three commenters noted several differences between the SFP position limit regulations and position limit rules for equity security options listed on national security exchanges or associations (“NSE”) approved by the Securities and Exchange Commission (“SEC”): (1) The specification that position limits for SFPs are on a net, rather than a gross,15 basis; (2) the numerical limits on SFPs differ from those on security options; and (3) the position limits for SFPs are applicable only during the last five trading days prior to expiration, rather than at any time in the lifespan of a security option contract.16 Commenters also requested that the Commission coordinate with the SEC so that the SFP position limit regulations are the same as those applicable to security and securities index options, or, alternatively, that such position limit regulations more closely resemble existing limits on security and securities index options.17 The Commission noted that the provisions in Commission regulation 41.25(a)(3) as finalized were consistent with the Commission's customary approach for all other futures markets,18 were necessary to effectively oversee the markets, and were consistent with the obligation of a DCM to prevent manipulation of the price of an SFP and its underlying security or securities.19

    15 The Commission understands that “gross” in this context means on the same side of the market, as discussed infra.

    16 2001 Final SFP Rules at 55081.

    17Id. at 55082.

    18See infra discussion regarding part 150 of the Commission's regulations.

    19 2001 Final SFP Rules at 55082.

    There was one other difference between the position limit rules for SFPs and security options, on which no one commented. Specifically, the volume test adopted by the Commission for position limits on SFPs was based on average trading volume over a six-month period while the volume test for security options was based on total trading volume over a six-month period. This difference typically results in position limits for SFPs that are more restrictive than those on analogous security options.20

    20 Although DCMs may adopt for certain SFPs position accountability provisions with an accountability level of 22,500 (100-share) SFP contracts, in lieu of position limits, the analogous security option is subject to a position limit likely to be set at a level of 250,000 (100-share) option contracts, as shown below in Table A.

    C. Subsequent Developments in SFP Position Limit Regulations

    Since the 2001 Final SFP Rules, the Commission's SFP position limit regulations have not been substantively amended to account for SFPs on securities other than common stock, although the statute authorizes it. CEA section 2(a)(1)(D)(i) authorizes DCMs to list for trading SFPs based upon common stock and such other equity securities as the Commission and the Securities and Exchange Commission jointly determine appropriate.21 The CFMA further authorized the Commission and the SEC (collectively “Commissions”) to allow SFPs to be based on securities other than equity securities.22 The Commissions used their authority to allow SFPs on Depositary Receipts; 23 Exchange Traded Funds, Trust Issued Receipts and Closed End Funds; 24 and debt securities.25

    21 7 U.S.C. 2(a)(1)(D)(i)(III).

    22 7 U.S.C. 2(a)(1)(D)(v)(I).

    23See Joint Order Granting the Modification of Listing Standards Requirements under section 6(h) of the Securities Exchange Act of 1934 and the Criteria under section 2(a)(1) of the Commodity Exchange Act, August 20, 2001 https://www.sec.gov/rules/other/34-44725.htm.

    24See 67 FR 42760 (June 25, 2002).

    25See 17 CFR 41.21(a)(2)(iii) (providing that the underlying security of an SFP may include a note, bond, debenture, or evidence of indebtedness); see also 71 FR 39534 (July 13, 2006) (describing debt securities to include notes, bonds, debentures, or evidences of indebtedness).

    D. Subsequent Equity Security Option Position Limit Increases

    Since the Commission's initial adoption of SFP position limits, the SEC has granted approval to increase position limits for equity security options listed on NSEs, but the Commission has not amended its SFP regulations to reflect those changes. For example, under current position limits for equity security options that are uniform across rules of NSEs,26 position limits are at least 25,000 option contacts.27 Also, as noted above, NSEs set higher levels based on six-month total trading volume or, alternatively, a combination of six-month total trading volume and shares outstanding, as shown in Table A.28

    26See, e.g., the Cboe Exchange, Inc. (“Cboe”) rule 4.11, Nasdaq ISE, LLC (“ISE”) rule 412, NYSE American LLC (“NYSE American”) rule 904, Nasdaq PHLX LLC (“Phlx”) rule 1001.

    27See, e.g., 73 FR 10076 (February 25, 2008) (granting permanent approval of an increase in position and exercise limits for equity security options).

    28Id. at 10076-77.

    Table A—NSE Equity Security Option Position Limits [As of Dec. 6, 2017] Option contract limit
  • (100 shares/contract)
  • Six-month total trading volume is at least: Trading volume
  • (shares)
  • Or, if six-month total trading volume and shares currently outstanding are at least: Trading volume
  • (shares)
  • Shares outstanding
    25,000 Default Default Default. 50,000 20 million 15 million 40 million. 75,000 40 million 30 million 120 million. 200,000 80 million 60 million 240 million. 250,000 100 million 75 million 300 million.

    Each equity security option contract limit is applicable on a gross basis to option positions on both sides of the market.29 The NSEs permit certain exemptions, including for qualified hedging transactions and positions and for facilitation of orders with customers. Generally, limits for options on registered investment companies, organized as open-end management companies, unit investment trusts or similar entities, are the same as the positions limits applicable to equity options.30

    29 For example, Cboe applies limits to an aggregate position in an option contract “of the put type and call type on the same side of the market.” Cboe rule 4.11. For this purpose, under the rule, long positions in put options are combined with short positions in call options; and short positions in put options are combined with long position in call options.

    30 NSEs have established position limits higher than shown in Table A for certain security options on products with broad-based holdings of underlying securities; for example, the Cboe position limit in the DIAMONDS Trust option is 300,000 contracts, iShares Russell 2000 Index Fund option is 500,000 contracts, PowerShares QQQ Trust option is 900,000 contracts, and iShares MSCI Emerging Markets Index Fund option is 500,000 contracts. Similarly, BOX Options Exchange, Inc., Cboe, Nasdaq ISE, LLC, Nasdaq PHLX, LLC, NYSE American, LLC, and NYSE Arca, Inc. all recently adopted position limits for security options on the Standard and Poor's Depositary Receipts Trust that are 1,800,000 contracts. See, e.g., 83 FR 28274 (June 18, 2018) (allowing the SPY Pilot Program to terminate and making immediately effective the new limit).

    In addition to position limits under NSE rules, NSEs establish uniform exercise limits for the aggregate exercise of a long position in any option contract within any five consecutive business days, generally at the levels of the applicable position limits.31 This exercise limit may serve to reduce the potential for manipulation (such as a squeeze on short option position holders) by restricting the number of shares demanded for delivery by a long call option position holder, in a similar manner to a DCM's position limit, under current Commission regulation 41.25(a)(3), thus restricting the number of shares that may be demanded during the last five days of trading.

    31See, e.g., Cboe rule 4.12, ISE rule 414, NYSE American rule 905, and Phlx rule 1001.

    E. Commission's Position Limit Approach in Other Commodity Futures

    The Commission's customary approach for position limits in futures contracts other than SFPs is found in part 150 of the Commission's regulations, which establishes a position limits regime that generally includes three components: (1) The level of the limits, which sets a threshold that restricts the number of speculative positions that a person may hold in the spot-month, individual month, and all months combined; (2) exemptions for positions that constitute bona fide hedging transactions and certain other types of transactions; and (3) rules to determine which accounts and positions a person must aggregate for the purpose of determining compliance with the position limit levels. For exchange-set position limits, on physically-delivered contracts, the spot month limit level should be no greater than one-quarter of the estimated spot month deliverable supply, calculated separately for each month to be listed, and for cash settled contracts, the spot month limit level should be no greater than necessary to minimize the potential for manipulation or distortion of the contract's or the underlying commodity's price.32

    32See 17 CFR 150.5(b)(1); see also supra note 14.

    II. The Proposal A. Overview

    The Commission notes that SFPs and security options may serve economically equivalent or similar functions.33 As noted above, when adopted, the Commission's SFP position limits regulations were set at levels that are generally comparable but not identical to the limits that currently apply to options on individual securities. However, over time, while the default level for position limits for SFPs did not change, those of security options on the same security have in some cases changed, allowing the position limit for the security option, as observed above, to be set at a much higher default level. This may place SFPs at a competitive disadvantage. One goal of this proposal, therefore, is to provide a level regulatory playing field.34

    33 For example, the price of a long call option with a strike price well below the prevailing market price of the underlying security is expected to move almost in lock step with the price of a long SFP on the same underlying security. Similarly, the price of a long put option with a strike price well above the prevailing market price of the underlying security is expected to move almost in lock step with the price of a short SFP on the same underlying security.

    34 As the Commission notes above, commenters also requested that the SFP position limit regulations be the same as those applicable to security and securities index options, or, alternatively, that such position limit regulations more closely resemble existing limits on security and securities index options. See supra note 17 and accompanying text.

    When determining appropriate limit levels, the Commission took note of the experience of NSEs over several years with higher position limit levels on security options, with no apparent significant issues, suggesting, therefore, that it may be reasonable for SFP position limits to closely resemble existing contract limits for equity options at NSEs. To allow DCMs to adapt as NSE position limits change, the current draft would be flexible, providing a formula for a DCM to set a higher level, rather than the specific levels in a current rule of an NSE.

    However, as has been noted, some aspects of the position limits regime under current Commission regulation 41.25 differ from those on security options as the Commission determined certain approaches were necessary to effectively oversee the markets, and consistent with the obligation of a DCM to prevent manipulation of the price of an SFP and its underlying security or securities.35 In light of its experience since the first adoption of a position limits regime for SFPs in 2001, the Commission believes in the merit of updating Commission regulation 41.25 under an incremental approach, for example, by providing DCMs with discretion to increase limits, generally consistent with those currently permitted for equity options listed by an NSE, while allowing the Commission to assess the impact on SFP markets.

    35See 2001 Final SFP Rules at 55082. The approach NSEs may use to set an equity option's position limit is not consistent with existing Commission policy and may, in the Commission's opinion, as noted previously, render position limits ineffective.

    The Commission proposes to maintain the requirement in current Commission regulation 41.25(a)(3) that DCMs establish position limits or, in certain cases, accountability standards for SFPs. The proposal would increase the default level for speculative position limits in SFPs in equity securities to 25,000 100-share contracts (or the equivalent if the contract size is different than 100 shares per contract) from 13,500 100-share contracts. The proposal would change the criterion that DCMs use to set higher levels of speculative position limits to no more than 12.5 percent of the estimated deliverable supply 36 of the relevant underlying security, from no greater than 22,500 100-share contracts if certain criteria are met in current Commission regulation 41.25(a)(3)(i).37 The proposed 12.5 percent criterion is discussed further below. In this regard, the Commission believes that exchange-set position limits for SFPs based on estimated deliverable supply would provide flexibility to DCMs while ensuring that position limits appropriately reflect current market conditions for the specific securities that underlie their SFPs.

    36See infra regarding proposed guidance on estimated deliverable supply.

    37 The current criteria for a level higher than 13,500 100-share contracts are six-month average daily trading volume in the underlying security exceeds 20 million shares, or exceeds 15 million shares and there are more than 40 million shares of the underlying security outstanding.

    The Commission also proposes to amend the position accountability provisions so that a DCM could substitute position accountability for position limits when six-month total trading volume in the underlying security exceeds 2.5 billion shares and there are more than 40 million shares of estimated deliverable supply, rather than the current criteria of six-month average daily trading volume in the underlying security exceeds 20 million shares and there are more than 40 million outstanding shares. In addition, the maximum accountability level under the position accountability regime would be increased to 25,000 contracts, from the current level of 22,500 contracts.

    This proposal also addresses SFPs based on products other than a single equity security. As discussed below, these products are a physically-delivered basket equity SFP, a cash-settled equity index SFP, and an SFP on one or more debt securities.38

    38 The SFP definition permits the listing of SFPs on debt securities (other than exempted securities). See supra note 22 and accompanying text. While an SFP may not be listed on a debt security that is an exempted security, futures contracts may be listed on an exempted security. See infra note 69 and accompanying text.

    The Commission proposes to maintain the provision that requires position limits to be applied during a period of time of no shorter than the last five trading days in an expiring contract month. However, the proposed regulation would require a longer period than five trading days in the event the terms of an SFP provide for delivery prior to the last five trading days.

    The Commission proposes that a DCM should have discretion to apply position limits or position accountability levels either on a net basis, as under current regulations, or on the same side of the market.39 If a DCM imposes limits on the same side of the market, then the DCM could not net positions in SFPs in the same security on opposite sides of the market.

    39 The Commission notes that, although it has not proposed an aggregation rule that would define “person” for purposes of SFP position limits, current 17 CFR 150.5(g) provides guidance to DCMs in setting aggregation standards for exchange-set position limits. The Commission believes a DCM should have reasonable discretion to set aggregate standards based on a person's control or ownership of SFP positions, including in the same manner as that of an NSE for equity security options.

    This proposal permits DCMs to approve exemptions to limits, provided such exemptions are consistent with the guidance in current Commission regulation 150.5, which addresses exchange-set position limits, rather than consistent with current Commission regulation 150.3, which addresses exemptions to Commission-set position limits. In addition, the proposal permits DCMs to approve exemptions consistent with those of an NSE.

    Under this proposal, DCMs would be required to calculate estimated deliverable supply and six-month total trading volume no less frequently than semi-annually, rather than the monthly requirement under the current regulations. The proposal requires that a DCM lower the position limit levels if the estimated deliverable supply justifies lower position limits. Similarly, the proposal requires that a DCM adopt position limits if the estimated deliverable supply or six-month total trading volume no longer supports position accountability provisions.

    Finally, as discussed further below, these proposed regulations provide the definitions for “estimated deliverable supply and “same side of the market”, terms used in Commission regulation 41.25, by adding those definitions into a new paragraph (a).40

    40 In connection with adding the definitions into a new paragraph (a), paragraphs (a) through (d) would be re-designated as paragraphs (b) through (e).

    B. Section-by-Section Discussion 1. Commission Regulation 41.25(a), Definitions

    The proposal includes two definitions used in Commission regulation 41.25: Estimated deliverable supply; and same side of the market. These definitions are included in new paragraph (a).

    Estimated deliverable supply is defined under the proposal as the quantity of the security underlying a security futures product that reasonably can be expected to be readily available to short traders and salable by long traders at its market value in normal cash marketing channels during the specified delivery period. The proposal provides guidance for estimating deliverable supply in proposed appendix A to subpart C of part 41, as discussed below.

    The proposal defines same side of the market to mean long positions in physically-delivered security futures contracts and cash settled security futures contracts, in the same security, and, separately, short positions in physically-delivered security futures contracts and cash settled security futures contracts, in the same security. The Commission invites comment on whether it should also include options on security futures contracts in this definition, although options on SFPs are not currently permitted to be listed.41 Generally, a long call and a short put, on a futures equivalent basis, would be aggregated with a long futures contract; and a short call and a long put, on a futures equivalent basis, would be aggregated with a short futures contract.

    41 Under CEA section 2(a)(1)(D)(iii)(II), the CFTC and SEC may, by Order, jointly determine to permit the listing of options on SFPs; that authority has not been exercised.

    2. Commission Regulation 41.25(b)(3), Position Limits or Accountability Rules Required

    As with current Commission regulation 41.25(a)(3), under this proposal, the paragraph, as re-designated regulation 41.25(b)(3), would continue to require a DCM to establish position limits or position accountability rules in each SFP for the expiring futures contract month.

    3. Commission Regulation 41.25(b)(3)(i), Limits for Equity SFPs

    Proposed changes to regulation 41.25(a)(3)(i), re-designated as regulation 41.25(b)(3)(i), would increase the default level of position limits in an equity SPF to no greater than 25,000 100-share contracts (or the equivalent if the contract size is different than 100 shares per contract), either net or on the same side of the market, from the existing regulation's default level of no greater than 13,500 100-share contracts on a net basis. The default level of 25,000 100-share contracts is equal to 2,500,000 shares. The Commission notes that 12.5 percent of 20 million shares equals 2,500,000 shares. Thus, for an equity security with less than 20 million shares of estimated deliverable supply, the default position limit level for the equity SFP would be larger than 12.5 percent of estimated deliverable supply. While a DCM could adopt the default position limit for SFPs in equity securities with fewer than 20 million shares, consistent with a position limit applicable to an option on that security, the Commission would expect a DCM to assess the liquidity of trading in the underlying security to determine whether the DCM should set a lower position limit level, as appropriate to ensure compliance with DCM Core Principles 3 and 5. In this regard, the Commission seeks comment on whether it should provide greater specificity with respect to this liquidity assessment and whether there are circumstances where the position limit level should be set lower than 25,000 100-share contracts (for example, no greater than 12.5 percent of estimated deliverable supply).42

    42 Core Principle 3, 7 U.S.C. 7(d)(3), provides that DCMs shall list only contracts that are not readily susceptible to manipulation, while Core Principle 5, 7 U.S.C. 7(d)(5), provides for the adoption of position limits and position accountability, as is necessary and appropriate, to deter the threat of manipulation. Moreover, 7 U.S.C. 2(a)(1)(D)(i)(VII) and 17 CFR 41.22(f) require that trading in an SFP: (i) Be not readily susceptible to manipulation of the SFP; or (ii) cause the manipulation of any underlying security, an option on such security, or an option on a group or index including such security or securities.

    The Commission notes that minimum position limits for equity security option positions on NSEs are 25,000 100-share option contracts on the same side of the market. Thus, the proposal would allow a DCM to coordinate the default position limit level for SFPs to that of an equity option traded on a NSE. Accordingly, as previously requested by commenters in the context of the CFTC's adoption of its current SFP position limit requirements, this proposed default level for SFP limits would closely resemble existing minimum limit levels on security options.

    As noted above, SFPs and security options may serve economically equivalent or similar functions.43 However, under current Commission regulation 41.25(a)(3), as previously detailed, the default level for position limits for SFPs must be set no greater than 13,500 (100-share) contracts, while security options on the same security may be, and currently are, set at a much higher default level of 25,000 contracts,44 which may place SFPs at a competitive disadvantage. Closer coordination of limit levels is intended to provide a level regulatory playing field.

    43 For example, the price of a long call option with a strike price well below the prevailing market price of the underlying security is expected to move almost in lock step with the price of a long SFP on the same underlying security. Similarly, the price of a long put option with a strike price well above the prevailing market price of the underlying security is expected to move almost in lock step with the price of a short SFP on the same underlying security.

    44See current Cboe rule 4.11.

    However, because limit levels would not apply to a market participant's combined position between SFPs and security options, the Commission is not proposing a default limit level for an SFP higher than 12.5 percent of estimated deliverable supply. That is, under the proposal, a market participant with positions at the limits in each of an SFP and a security option on the same underlying security might be equivalent to about 25 percent of estimated deliverable supply, which is at the outer bound of where the Commission has historically permitted spot month limit levels. The Commission invites comment on whether this proposed default level is appropriate.

    The proposal would include, in the requirements for limits for equity SFPs, securities such as exchange trading funds (“ETFs”) and other securities that represent ownership in a group of underlying securities. The Commission requests comment on whether this is appropriate and invites further comment, below, in the discussion of estimated deliverable supply.

    This proposal would provide discretion to a DCM to apply position limits on a gross basis (“on the same side of the market”) or net basis, rather than the current regulation's net basis. For example, if there were a physically-delivered SFP on equity XYZ, a dividend-adjusted SFP on equity XYZ, and a cash-settled SFP on equity XYZ, then a DCM's rules could provide that long positions held by the same person across each of these classes of SFP based on equity XYZ would be aggregated for the purpose of determining compliance with the position limit. A gross position in a futures contract is larger than a net position in the event a person holds positions on opposite sides of the market. That is, a net basis is computed by subtracting a person's short futures position from that person's long futures positions, and, under current regulations, a single position limit applies on a net basis to that net long or net short position. Under the proposal, at the discretion of a DCM, a person's long futures position would be subject to the position limit and, separately, a person's short futures position also would be subject to the position limit. As previously requested by commenters, adding this proposed gross basis approach (in addition to net basis) to SFP limits would more closely resemble existing limits on security options that apply on the same side of the market per the rules of the NSEs. A DCM that elects to implement limits on a gross basis would be providing its market participants with the same metric for position limit compliance as is currently the case on NSEs, which may reduce compliance costs and encourage cross-market participation. However, limits on a gross basis may be more restrictive than limits on a net basis, which could reduce the position sizes that may be held, without an applicable exemption.

    In addition, the Commission would continue to permit DCMs to apply limits on a net basis at the DCM's discretion. In this regard, the Commission believes it is possible for a DCM's application of limits to further the goals of the CEA whether applied on a net or a gross basis.45 This would be true, for example, if a DCM applied limits on a net basis and did not permit netting of physically-delivered contracts with cash settled contracts. But if, instead, the DCM permitted netting of physically-delivered contracts and cash settled contracts in the same security, it would render position limits ineffective.46 For example, a person should not be permitted to avoid limits by obtaining a large long position in a physically-delivered contract (which could be used to corner or squeeze) and a similarly large short position in a cash settled contract that would net to zero.

    45 CEA section 2(a)(1)(D)(i)(VII) requires that trading in SFPs is not readily susceptible to manipulation of the price of the SFP, the SFP's underlying security, or an option on the SFP's underlying security.

    46 Although no DCM currently lists both physically-delivered SFPs contracts and cash-settled SFP contracts for the same underlying security, and this concern may be theoretical, the Commission believes that providing clarity reduces uncertainty regarding netting in such circumstances, which may facilitate listing of such contracts in the future. Therefore, the Commission proposes to provide in 17 CFR 41.25(b)(3)(vii) that, for a DCM applying limits on a net basis, netting of physically-delivered contracts and cash settled-contracts in the same security is not permitted as it would render position limits ineffective. This concern is not applicable to a DCM applying limits on the same side of the market, as limits are applied separately to long positions and to short positions.

    4. Commission Regulation 41.25(b)(3)(i)(A), Higher Position Limits in Equity SFPs 47

    47 As noted above, the proposal would re-designate 17 CFR 41.25(a)(3)(i)(A) as 17 CFR 41.25(b)(3)(i)(A).

    For an SFP based on an underlying security with an estimated deliverable supply of more than 20 million shares, the proposal would permit a DCM to set a higher limit level based on 12.5 percent of the estimated deliverable supply of the underlying security, if appropriate in light of the liquidity of trading in the underlying security. By way of example, if the estimated deliverable supply were 40 million shares, then the proposed regulation would permit a DCM to set a limit level of no greater than 50,000 100-share contracts; computed as 40 million shares times 12.5 percent divided by 100 shares per contract.

    This level of 50,000 100-share contracts is the same as permitted under current rules of NSEs for an underlying security with 40 million shares outstanding, although an NSE would also require the most recent six-month trading volume of the underlying security to have totaled at least 15 million shares. While this proposed provision for SFP position limits would more closely resemble existing limits on security options, the Commission is proposing to permit a DCM to use its discretion in assessing the liquidity of trading in the underlying security, rather than imposing a prescriptive trading volume requirement.48 The Commission preliminarily does not believe that trading volume alone is an appropriate indicator of liquidity.49 In this regard, the proposed regulation would permit a DCM to set a position limit at a level lower than 12.5 percent of estimated deliverable supply. The Commission invites comment on whether it is appropriate to provide a DCM with discretion in its assessment of liquidity in the underlying security, rather than the Commission imposing a liquidity requirement. Core Principle 5 requires DCMs to adopt, as is necessary and appropriate, position limits to deter the adverse market impact of manipulation. The Commission invites comment on whether estimated deliverable supply alone serves as an adequate proxy for market impact.

    48 Generally, under CEA section 5(d)(1)(B), unless otherwise restricted by a Commission regulation, a DCM has reasonable discretion in establishing the manner in which it complies with core principles, including Core Principle 5 regarding position limits or position accountability. See 7 U.S.C. 7(d)(1) and (5).

    49 Under current 17 CFR 41.25(a)(3)(i)(A), for example, a DCM may adopt a net position limit no greater than 22,500 shares, provided the six-month average daily trading volume exceeds 15 million shares and there are more than 40 million shares of the security outstanding. The Commission notes that almost all stocks with at least 40 million shares outstanding also had a six-month average trading volume of at least 15 million shares. Thus, the current trading volume criterion generally is not a meaningful restriction.

    Although the Commission is proposing a criterion of 12.5 percent of estimated deliverable supply, the Commission expects a DCM to conduct a reasoned analysis as to whether setting a level for a limit based on such criterion is appropriate. In this regard, for example, assume security QRS and security XYZ have equal free float of shares. Assume, however, that trading in QRS is not as liquid as trading in XYZ. Under these assumptions, it may be appropriate for a DCM to adopt a position limit for XYZ equivalent to 12.5 percent of deliverable supply, but to adopt a lower limit for QRS because a lesser number of shares would be readily available for shorts to make delivery.

    The Commission notes that the proposed criterion of 12.5 percent of estimated deliverable supply is half the level for DCM-set spot month speculative position limits in current Commission regulation 150.5(c),50 which, as previously noted, has been rendered “mere guidance” since the CFMA.51 That regulation provides that, for physically-delivered contracts, the spot month limit level should be no greater than one-quarter of the estimated spot month deliverable supply.52 The Commission is proposing a lower percent of estimated deliverable supply in light of current limits on equity security options listed at NSEs. In this regard, the proposal would result in SFP position limits that closely resemble the existing 25,000 and 50,000 contract limits for equity options at NSEs, set when certain trading volume has been reached or a combination of trading volume and shares currently outstanding, as shown in Table A above. For example, a position at a 50,000 (100-share) option contract limit is equivalent to 5 million shares. 12.5 percent of 40 million shares equals 5 million shares; that is, the proposed criterion for a DCM to set a limit would be similar to that of the criteria for an NSE to set such a limit. Under this proposal, a similar 50,000 contract position limit on an SFP on such a security would be an increase from the 22,500 contract limit currently permitted for such an SFP. The Commission believes the proposed incremental approach to increasing SFP limits is a measured response to changes in the SFP markets, while retaining consistency with the existing requirements for equity security options listed by NSEs.

    50 17 CFR 150.5(c).

    51See supra discussion of the impact of the CFMA on part 150; see also 74 FR 12177 at 12183 (March 23, 2009).

    52 17 CFR 150.5(c)(1).

    However, as noted above, SFPs and equity security options in the same underlying security are not subject to a combined position limit across DCMs and NSEs. Accordingly, the Commission is proposing a maximum SFP limit level that is half the guidance level for DCM-set spot month futures contract limits of 25 percent of estimated deliverable supply.

    Further, as shown in Table A above, the Commission notes that limits for equity security options at NSEs do not increase in a linear manner for all increases in shares outstanding; for example, upon a doubling of shares outstanding, the 100-share equity security option contract limit increases only to 75,000 contracts from 50,000 contracts, while, under similar circumstances of a doubling of estimated deliverable supply, the Commission proposes to permit a linear increase for a SFP limit to 100,000 contracts from 50,000 contracts. The Commission invites comments as to whether the proposed linear approach based on estimated deliverable supply is appropriate.

    Alternative Criteria for Setting Levels of Limits. As an alternative to the proposed criteria for setting position limit levels based on estimated deliverable supply, the Commission invites comments on whether the Commission should permit a DCM to mirror the position limit level set by an NSE in a security option with the same underlying security or securities as that of the DCM's SFP. This alternative has the advantage of consistency in position limits across exchange-traded derivatives based on the same security.

    However, the Commission notes that NSEs may set an equity option's position limit by the use of trading volume as a sole criterion. That approach is not consistent with existing Commission policy regarding use of estimated deliverable supply to support position limits in an expiring contract month, as stated in part 150 of the Commission's regulations.53 The Commission notes that use of trading volume as a sole criterion for setting the level of a position limit could result in a position limit that exceeds the number of outstanding shares when the underlying security exhibits a very high degree of turnover. Such a resulting high limit level would render position limits ineffective.

    53 For example, Cboe rules also permit a 50,000 contract position limit based on the total most recent six-month trading volume of 20 million shares, without regard to shares outstanding.

    5. Commission Regulation 41.25(b)(3)(i)(B), Position Accountability in Lieu of Limits 54

    54 As noted above, the proposal would re-designate 17 CFR 41.25(a)(3)(i)(B) as 17 CFR 41.25(b)(3)(i)(B).

    This proposal would continue to permit a DCM to substitute position accountability for a position limit in an equity SFP that meets two criteria. The proposal would require six-month total trading volume of at least 2.5 billion shares, which generally is equivalent to the current first criterion that six-month average daily trading volume in the underlying security must exceed 20 million shares.55 The proposal would tighten the second criterion. Rather than require that the underlying security have more than 40 million shares outstanding, under the proposal the second criterion would require the underlying security to have more than 40 million shares of estimated deliverable supply, which generally would be smaller than shares outstanding. This change conforms to the proposed use of estimated deliverable supply in setting a position limit. The Commission believes an appropriate refinement to its criterion for position accountability is to quantify those equity shares that are readily available in the market, rather than all shares outstanding. Generally, a short position holder may expect to obtain at or close to fair value shares that are readily available in the market and a long position holder may expect to sell such shares at or close to fair value. However, in contrast, shares that are issued and outstanding by a corporation may not be readily available in a timely manner, such as shares held by the corporation as treasury stock.56 Therefore, to ensure that position holders will generally be able to obtain equity shares at or close to fair value, the DCM should consider whether the shares are readily available in the market when estimating deliverable supply.

    55 20 million shares times 125 trading days in a typical six-month period equals 2.5 billion shares. In regards to total trading volume rather than average daily trading volume, the Commission notes that use of total trading volume is consistent with the rules of NSEs, which use six-month total trading volume in their criteria for setting position limits, as shown in Table A above.

    56 Treasury stock means any shares that a company holds itself. Such treasury stock may be authorized by the corporate charter but not yet issued to the public or, in contrast, may have been previously issued to the public but was the subject of a stock repurchase program to buy back the shares from the public.

    In addition, the proposal would amend the accountability level to no greater than 25,000 contracts, either net or on the same side of the market, from 22,500 contracts net, conforming to the proposed default position limit level. The Commission notes a DCM would be able to set a lower accountability level, should it desire. The Commission preliminarily believes it is appropriate to set a position accountability level no higher than 25,000 contracts because the Commission believes a DCM should have the authority, but not the obligation, to inquire with very large position holders and to order such position holders not to increase positions.57 The Commission preliminarily believes a maximum position accountability level of 25,000 contracts is at the outer bounds for purposes of providing a DCM with authority to obtain information from position holders; for example, a position of 25,000 100-share contracts has a notional size of $125 million when the price of the underlying stock is $50 per share.

    57 By way of comparison, under 17 CFR 15.03, the Commission's reporting level for large traders (“reportable position”) is 1,000 contracts for individual equity SFPs and 200 contracts for narrow-based SFPs. Under 17 CFR 18.05, the Commission may request any pertinent information concerning such a reportable position.

    6. Commission Regulation 41.25(b)(3)(ii), Limits for Physically-Delivered Basket Equity SFPs

    This proposal would amend the existing position limits and position accountability provisions for a physically-delivered SFP comprised of more than one equity security 58 by basing the criteria on the underlying equity security with the lowest estimated deliverable supply, rather than the lowest average daily trading volume.59 Specifically, under the proposal, for an SFP on more than one security, the criteria in proposed regulations 41.25(b)(3)(i)(A) and (B) 60 would apply to the underlying security with the lowest estimated deliverable supply in the basket, with an appropriate adjustment to the level of the position limit or accountability level for a contract size different than 100 shares per underlying security.

    58 The Commission notes that there is not a limit per se on the maximum number of securities in a narrow-based security index. Rather, under CEA section 1a(35), a narrow-based security index generally means, among other criteria, an index that has 9 or fewer component securities; in which a component security comprises more than 30 percent of the index's weighting; in which the five highest weighted component securities in the aggregate comprise more than 60 percent of the index's weight; or in which the lowest weighted component securities, comprising the lowest 25 percent of the index's weight, have an aggregate dollar value of average daily trading volume of less than $50 million.

    59 This means that, under proposed 17 CFR 41.25(b)(3)(i), the default level position limit would be no greater than 25,000 100-share contracts, unless the underlying equity security with the lowest estimated deliverable supply supports a higher level.

    60 As noted above, as proposed, 17 CFR 41.25(a)(3)(i)(A) and (B) would be re-designated as 17 CFR 41.25(b)(3)(i)(A) and (B).

    The proposal is based on the premise that the limit on a physically-delivered basket equity SFP should be consistent with the most restrictive of each limit that would be applicable to SFPs based on each component of such basket of deliverable securities. This would restrict a person from obtaining a larger exposure to a particular security through a physically-delivered basket equity SFP, than could be obtained directly in a single equity SFP. However, this proposal would not aggregate positions in single equity SFPs with positions in basket deliverable SFPs.

    7. Commission Regulation 41.25(b)(3)(iii), Limits for Cash-Settled Equity Index SFPs

    For setting levels of limits on an SFP comprised of more than one security, current Commission regulation 41.25(a)(3)(ii) specifies certain criteria for trading volume and shares outstanding that must be applied to the security in the index with the lowest average daily trading volume. However, the Commission is not proposing to retain those criteria for setting levels of limits for cash-settled equity index SFPs for a number of reasons. For an equity index that is price weighted, it appears that use of shares outstanding or trading volume may result in an inappropriately restrictive level for a position limit.61 For an equity index that is value weighted, it also appears that such use may result in an inappropriately restrictive level for a position limit.62 The Commission observes that while trading volume, as an indicator of liquidity, may be an appropriate factor for a DCM to consider in setting position limits, trading volume is not generally used in construction of equity indexes.

    61 For example, assume the level of a simple price-weighted index is computed by adding the price of each equity security in the index and dividing by the number of different equity securities. For such a simple index, a given percentage change in the price of a company with a higher share price would have a greater impact on the index than a given percentage change in the price of a company with a lower share price. In such a circumstance, the Commission preliminarily believes the DCM should have discretion, in setting the position limit, to give consideration to the equity (or equities) with the greater weight(s) in the index, rather than only with regard to the equity with the lowest number of shares outstanding.

    62 For example, the level of a value-weighted index will change in relation to the change in the market capitalization of each component equity security. In such a circumstance, a given percentage change in the market value of a higher capitalized company would have a greater impact on the index than a given percentage change in the market value of a lower capitalized company. In such a circumstance, the Commission preliminarily believes the DCM should have discretion, in setting the position limit, to give consideration to the equity (or equities) with the greater weight(s) in the index, rather than only with regard to the equity with the lowest number of shares outstanding.

    Proposed appendix A to subpart C provides guidance and acceptable practices for setting the limit level for a cash-settled equity index SFP, discussed below. However, as noted above, the proposal would continue to require a DCM, for cash-settled equity index SFPs, to establish position limits or position accountability rules in each SFP for the expiring futures contract month in the last five trading days of an expiring contract month. As also discussed above, the proposal provides discretion to a DCM to set such a limit either net or on the same side of the market.

    8. Commission Regulation 41.25(b)(3)(iv), Limits for Debt SFPs 63

    63 As noted above, as proposed, 17 CFR 41.25(a)(3) would be re-designated as 17 CFR 41.25(b)(3).

    As previously detailed, for setting levels of limits on an SFP comprised of more than one security, current Commission regulation 41.25(a)(3)(ii) specifies certain criteria for trading volume and shares outstanding that must be applied to the security in the index with the lowest average daily trading volume. However, the Commission is not proposing to retain those criteria for setting levels of limits for debt SFPs because debt securities generally are neither issued in terms of shares nor trading volume measured in terms of shares.

    Proposed appendix A to subpart C provides guidance and acceptable practices for setting the limit level for a debt SFP, discussed below. This proposal would require a DCM to set a position limit on a debt SFP, either net or on the same side of the market, applicable to positions held during the last five trading days of an expiring contract month, as is the case for equity SFPs under the proposal.

    9. Commission Regulation 41.25(b)(3)(v), Required Minimum Position Limit Time Period

    Although DCMs do not currently list SFPs where the product permits delivery before the close of trading, the Commission proposes that, for such a product, the DCM would be required to apply position limits beginning no later than the first day that long position holders may be assigned delivery notices, if such period is longer than the last five trading days of an expiring contract month. The Commission notes that the current DCM practice for other commodity futures contracts is to apply spot month position limits at the close of business before delivery notices are assigned to holders of long positions in futures contracts that provide for physical delivery prior to the close of trading. Further, this provision is analogous to provisions of NSEs that apply exercise limits for any five consecutive business days, applicable to American exercise style equity options.64

    64 American exercise style refers to the right of an option holder to exercise the option at any time prior to, and including, expiration. In contrast, a European exercise style option only can be exercised at expiration.

    10. Commission Regulation 41.25(b)(3)(vi), Requirements for Re-Setting Levels of Position Limits 65

    65 The proposal would re-designate 17 CFR 41.25(a)(3)(iv) to 17 CFR 41.25(b)(3)(vi).

    This proposal would require a DCM to consider, on at least a semi-annual basis, whether position limits were set at appropriate levels, through consideration of estimated deliverable supply. In the event that estimated deliverable supply has decreased, then a DCM would be required to lower the level of a position limit in light of that decreased deliverable supply. In the event that estimated deliverable supply has increased, then a DCM would have discretion to increase the level of a position limit. In addition, a DCM that has substituted a position accountability rule for a position limit would be required to consider whether estimated deliverable supply and total six-month trading volume continue to justify that position accountability rule.

    Current provisions require a DCM to calculate trading volume monthly. The Commission believes that review of position limit levels and position accountability rules on at least a semi-annual basis rather than a monthly basis generally should be adequate to ensure appropriate levels because deliverable supply generally does not change to a great degree from month to month. For example, the number of shares outstanding may increase through periodic issuance of additional shares, and may decrease through stock repurchase programs, but, as a general observation, such issuance or repurchases are not a large percentage of free float. Of course, there could be situations where deliverable supply changes to a great degree before the semi-annual period and the rule does not prevent a DCM from considering those changes before such period.

    The Commission also proposes a technical change to the filing requirement whenever a DCM makes such changes to limit levels. While the proposal continues to provide that changes to limit levels be filed pursuant to the requirements of Commission regulation 41.24, it removes the superfluous provision in the current regulation that provides that the change be effective no earlier than the day after the DCM has provided notification to the Commission and to the public. Instead, the regulation simply cites to Commission regulation 41.24, which specifies that changes must be received by the Commission no later than the day prior to the implementation.

    11. Appendix A to Subpart C of Part 41, Guidance and Acceptable Practices for Position Limits and Position Accountability for SFPs

    Section (a), Guidance on Estimating Deliverable Supply. The proposal provides guidance for estimating deliverable supply. For an equity security, deliverable supply should be no greater than the free float of the security. For a debt security, deliverable supply should not include securities that are committed for long-term agreements (e.g., closed-end investment companies, structured products, or similar securities).

    Regarding the guidance for estimating deliverable supply for equity securities, free float of the security generally means issued and outstanding shares less restricted shares. Restricted shares include restricted and control securities, which are not registered with the SEC to sell in a public marketplace.66 The Commission requests comment on whether there are any other adjustments that should be made in estimating deliverable supply for equities. For example, should the guidance exclude from deliverable supply any equity shares held by ETFs, mutual funds, or similar investment vehicles? If so, how would such counts of shares be determined or estimated?

    66 For a general discussion of restricted and control securities, see https://www.sec.gov/reportspubs/investor-publications/investorpubsrule144htm.html.

    Also regarding the guidance for estimating deliverable supply for equity securities, the Commission notes that authorized participants may increase the number of outstanding shares in an ETF.67 In setting a position limit for an ETF, the Commission has not proposed that DCMs look through the ETF to the lowest deliverable supply in an underlying security, as is the case in the proposal for limits for physically-delivered basket equity SFPs. Rather, the Commission has proposed to restrict the estimate of deliverable supply in an ETF to existing shares of the ETF. As an alternative, the Commission requests comment on whether an estimate of deliverable supply for an ETF should include an allowance for the creation of ETF shares. If so, how would one estimate such an allowance?

    67 An authorized participant generally is an institutional investor, such as a broker dealer, who acts to create or redeem ETF shares. The authorized participant buys shares that underlie the ETF and exchanges those underlying shares with the ETF sponsor for shares in the ETF, thus creating new ETF shares that it may sell to the public. An authorized participant may also purchase ETF shares in the market place and redeem those shares with the ETF sponsor, thus reducing the number of ETF shares outstanding.

    Section (b), Guidance on Setting Limits on Cash-Settled Equity Index SFPs. As noted above, the Commission is proposing guidance for setting limits on cash-settled equity index SFPs. This proposed guidance would permit a DCM to set the limit level for a cash-settled SFP on a narrow-based security index of equity securities to that of a similar narrow-based security index equity option listed on an NSE. As an alternative for setting the level based on that of a similar equity option, the proposal provides guidance and acceptable practices that would allow a DCM, in setting a limit, to consider the deliverable supply of securities underlying the equity index, and the equity index weighting and SFP contract multiplier.

    As an example of an acceptable practice, for a cash-settled equity index SFP on a security index weighted by the number of shares outstanding, a DCM could set a position limit as follows: First, compute the limit on an SFP on each underlying security under proposed regulation (b)(3)(i)(A) (currently designated as (a)(3)(i)(A)); second, multiply each such limit by the ratio of the 100-share contract size and the shares of the security in the index; and third, determine the minimum level from step two and set the limit to that level, given a contract size of one dollar times the index, or for a larger contract size, reduce the level proportionately. As the Commission is proposing for physically-delivered basket equity SFPs, the proposal is based on the premise that the limit on a cash-settled SFP on a narrow-based security index of equity securities should be as restrictive as the limit for an SFP based on the underlying security with the most restrictive limit.

    Section (c), Guidance on Setting Limits on Debt SFPs. The proposal would provide guidance that an appropriate level for limits on debt SFPs generally would be no greater than the equivalent of 12.5 percent of the par value of the estimated deliverable supply of the underlying debt security. The Commission notes that this approach is guidance because there may be other reasonable bases for setting levels of debt SFPs position limits and the Commission does not want to foreclose those bases. For example, a coupon stripped from an interest bearing corporate bond does not have a par value in terms of such corporate bond, but instead such coupon is the amount of interest due at the time the corporate issuer is scheduled to pay such coupon under the corporate bond indenture.68

    68 An interest bearing bond may be structured in a conduit and divided into separate obligations, where the cash flow from the principal of the bond and the cash flow from each coupon may be sold as separate securities. Each such separate security is a zero-coupon security.

    Although no DCM currently lists an SFP based on a debt security, the Commission believes a framework for position limits may reduce uncertainty regarding acceptable practices for listing such contracts on non-exempted securities and, thereby, may facilitate listing of such contracts. The Commission notes that futures contracts in exempted securities, such as U.S. Treasury notes, have been listed for many years.69 The Commission is proposing 12.5 percent of the par value of the estimated deliverable supply of the underlying debt security as guidance on an appropriate basis based on the existing levels of limits for equity option contracts on NSEs. The Commission invites comment on whether a level based on par value is appropriate, or whether some other metric would be appropriate.

    69 In this regard, an exempted security refers to certain exempted securities under the Securities Act of 1933 or the Securities Exchange Act of 1934. See CEA section 2(a)(1)(C).

    Section (d), Guidance on Position Accountability. The Commission proposes, as guidance, that a DCM may adopt a position accountability rule for any SFP, including an SFP where a position limit is required or adopted. Under the proposal, a position accountability rule would provide, at a minimum, that the DCM have authority to obtain information from a market participant with a position at or above the accountability level and that the DCM have authority, in its discretion, to order such a market participant to halt increasing their position. The Commission notes that position accountability can work in tandem with a position limit rule, particularly where the accountability level is set at a low level, in comparison to the level of the position limit. Further, the Commission notes that a DCM may adopt a position accountability rule to provide authority to the DCM to order market participants to reduce position sizes, for example, to maintain orderly trading or to ensure an orderly delivery.

    Section (e), Guidance for Exemptions. 70 The proposed regulation would continue to provide a DCM with discretion to grant exemptions to position limits. The proposal provides guidance that such exemptions may be consistent with current Commission regulation 150.5 regarding exchange-set position limits or consistent with rules of an NSE regarding securities option exemptions. This guidance differs from the provisions of the current regulation, which references Commission regulation 150.3 regarding federal position limits in certain physical commodity futures contracts. The Commission believes the guidance should reference exemption provisions applicable to exchange-set limits in Commission regulation 150.5, rather than federal limits, because the exemptions for federal limits are written largely in terms of the federal limits on physical commodity contracts in Commission regulation 150.2.

    70 In addition to re-designating 17 CFR 41.25(a)(3) as 17 CFR 41.25(b)(3), the proposal would re-designate current 17 CFR 41.25(a)(3)(iii) to appendix A to subpart C.

    III. Related Matters A. Regulatory Flexibility Act

    The Regulatory Flexibility Act (“RFA”) 71 requires that federal agencies consider whether a proposed rule will have a significant economic impact on a substantial number of small entities and, if so, provide a regulatory flexibility analysis of the impact. The proposed amendments generally apply to exchange-set position limits. The proposed amendments would permit a DCM to increase the level of position limits for SFPs and may change the application of those limits from a trader's net position to a trader's gross position. The proposed amendments would affect DCMs. The Commission has previously established certain definitions of “small entities” to be used in evaluating the impact of its rules on small entities in accordance with the RFA, and has previously determined that DCMs are not small entities for purpose of the RFA.72

    71 5 U.S.C. 601 et seq.

    72See Policy Statement and Establishment of Definitions of “Small Entities” for Purposes of the Regulatory Flexibility Act, 47 FR 18618, 18619 (Apr. 30, 1982).

    Therefore, the Commission believes that the amendments to the SFP position limits regulations would not have a significant economic impact on a substantial number of small entities. Accordingly, the Chairman, on behalf of the Commission, hereby certifies, pursuant to 5 U.S.C. 605(b), that the proposed amendments will not have a significant economic impact on a substantial number of small entities.

    B. Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (“PRA”) 73 provides that a federal agency may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid control number issued by the Office of Management and Budget (“OMB”). The collection of information related to this proposed rule is OMB control number 3038-0059—Security Futures Products.74 As a general matter, the proposed amendments to the SFP position limits regulation (1) permit a DCM to increase the level of limits; and (2) may change the application of exchange-set limits from a net basis to a gross basis. The Commission believes that the proposed amendments will not impose any new information collection requirements that require approval of OMB under the PRA. As such, the proposed amendments do not impose any new burden or any new information collection requirements in addition to those that already exist in connection with filing to list SFPs under Commission regulation 41.23 or to amend exchange rules for SFPs under Commission regulation 41.24.75

    73 44 U.S.C. 3501 et seq.

    74 Regarding Security Futures Products (OMB Control No. 3038-0059), the Commission recently published a notice of a request for extension of the currently approved information collection. See 82 FR 48496 (Oct. 18, 2017).

    75 Similarly, the Commission previously determined that a rule expanding the listing standards for security futures did not require a new collection of information on the part of any entities. See 71 FR 39534 at 39539 (July 13, 2006) (adopting a rule to permit security futures to be based on individual debt securities or a narrow-based security index comprised of such securities).

    C. Cost-Benefit Considerations 1. Introduction

    Section 15(a) of the CEA requires the CFTC to consider the costs and benefits of its actions before promulgating a regulation under the CEA or issuing certain orders.76 CEA section 15(a) further specifies that the costs and benefits shall be evaluated in light of five broad areas of market and public concern: (1) Protection of market participants and the public; (2) efficiency, competitiveness, and financial integrity of futures markets; (3) price discovery; (4) sound risk management practices; and (5) other public interest considerations. The CFTC considers the costs and benefits resulting from its discretionary determinations with respect to the section 15(a) factors below.

    76 7 U.S.C. 19(a).

    Where reasonably feasible, the CFTC has endeavored to estimate quantifiable costs and benefits. Where quantification is not feasible, the CFTC identifies and describes costs and benefits qualitatively.

    The CFTC requests comment on the costs and benefits associated with the proposed rule amendments. In particular, the CFTC requests that commenters provide data and any other information or statistics that the commenters relied on to reach any conclusions regarding the CFTC's proposed considerations of costs and benefits.

    2. Economic Baseline

    The CFTC's economic baseline for this proposed rule amendment analysis is the SFP position limits rule requirement that exists today. In the 2001 Final SFP Rules, the Commission adopted an SFP position limits rule that is consistent with the statutory requirements of CEA section 2(a)(1)(D). In particular, CEA section 2(a)(1)(D)(i)(VII) requires generally that trading in an SFP is not readily susceptible to manipulation of the price of that SFP or its underlying security. The CFTC regulation that is in effect currently states that, “the [DCM] shall have rules in place establishing position limits or position accountability procedures for the expiring futures contract month.” 77 The 2001 Final SFP Rules also provide criteria for a maximum level of position limits and criteria that permit a DCM to adopt an exchange rule for position accountability in lieu of position limits.78 In addition, the 2001 Final SFP Rules permit a DCM to approve exemptions from position limits pursuant to exchange rules that are consistent with CFTC regulation 150.3.

    77 17 CFR 41.25(a)(3).

    78 17 CFR 41.25(a)(3).

    The CFTC will analyze the costs and benefits of the rules in this proposal against the current default net position limit level of 13,500 (100-share) contracts; or a higher net position limit level of 22,500 (100-share) contracts for equity SFPs meeting either a criterion of at least 20 million shares of average daily trading volume, or criteria of at least 15 million shares of average daily trading volume and more than 40 million shares of the underlying security outstanding.

    The current regulation permits (but does not require) a DCM to adopt an exchange rule for position accountability in lieu of position limits, provided that average daily trading volume in the underlying security exceeds 20 million shares and there are more than 40 million shares of the underlying security outstanding.

    3. Summary of Proposed Requirements

    For equity SFPs, the proposed amendment would increase the default position limit level from 13,500 (100-share) contracts to 25,000 (100-share) contracts. The proposed amendment also permits a DCM to establish a higher position limit level than 25,000 (100-share) contracts, equivalent to 12.5 percent of estimated deliverable supply of the underlying security (which, under proposed guidance, should not exceed the free float of the underlying security). In connection with this change, a DCM would be required to estimate deliverable supply at least semi-annually, rather than to calculate the average daily trading volume at least monthly.

    Also for equity SFPs, the proposed amendment would change one of the criteria that permit a DCM to adopt an exchange rule for position accountability in lieu of position limits, from more than 40 million shares of the underlying security outstanding, to an estimated deliverable supply of more than 40 million shares. The proposal generally would retain the other criterion, namely six-month average daily trading volume in the underlying security exceeding 20 million shares, but convert that criterion to 2.5 billion shares of six-month total trading volume, based on 125 trading days in a typical six-month period.

    For physically-delivered basket equity SFPs, the proposed amendment would change the criteria for the position limit to the underlying security with the lowest estimated deliverable supply, from the security in the index with the lowest average daily trading volume. The proposed amendment also would clarify that an appropriate adjustment would be made to the level of the limit for a contract size different than 100 shares per underlying security.

    For SFPs that are cash settled to a narrow-based security index of equity securities, the proposed amendment provides guidance that a DCM may set the limit level to that of a similar narrow-based security index equity option. The proposal also provides guidance and an acceptable practice, which would provide a safe harbor for a DCM itself to set such a limit level.

    For SFPs in debt securities, the proposal would establish a requirement that a DCM must adopt a position limit either net or on the same side of the market, and would provide guidance that the level of such limit generally should be set no greater than the equivalent of 12.5 percent of the par value of the estimated deliverable supply of the underlying debt security. There currently are no SFPs in debt securities listed for trading.

    The proposal would establish a required minimum position limit time period beginning no later than the first day that a holder of a long position may be assigned a delivery notice, if such period is longer than the last five trading days, where the SFP permits delivery before the close of trading. There currently are no SFPs listed for trading that provide for delivery before the close of trading.

    The proposed amendment would provide DCMs with the discretion to alter the basis for applying a position limit from a net position to a gross position on the same side of the market.79

    79 In this regard, OneChicago, LLC (“OneChicago”), a DCM listing SFPs, permits concurrent long and short positions to be held. See OneChicago exchange rule 424, available at https://www.onechicago.com/wp-content/uploads/content/OneChicago_Current_Rulebook.pdf.

    The proposal would establish guidance that a DCM may adopt an exchange rule for position accountability in addition to an exchange rule for a position limit.

    The proposal would amend the guidance for exemptions from position limits by changing the reference to CFTC regulation 150.3, regarding exemptions to federal position limits, to CFTC regulation 150.5, regarding guidance for exchange-set limits. The proposal also would add guidance for exemptions from position limits to permit a DCM to provide exemptions consistent with those of a NSE regarding securities options position limits or exercise limits.

    The proposal would amend the requirements for re-setting levels of position limits by changing the required review period from monthly to semi-annually; and imposing a requirement that a DCM must lower the position limit for an SFP with data that no longer justifies a higher limit level, rather than guidance that a DCM may lower such position limit. The proposal also would make clear that a DCM must impose a position limit for an SFP with data that no longer justifies an exchange rule for position accountability in lieu of a position limit. The proposal would continue to permit a DCM to use discretion as to whether to increase the level of a position limit for an SFP with data that justifies a higher level.

    The proposal would establish a general definition of estimated deliverable supply, consistent with the guidance on estimating deliverable supply in appendix C to part 38, and provide guidance on estimating delivery supply that is specific to an SFP.

    Finally, the proposal would establish a definition of same side of the market, for clarity in the proposed limit levels on a gross basis. The definition would distinguish long positions for an SFP in the same security from short positions in an SFP in the same security.80

    80 These two definitions would be added into a new paragraph (a) of 17 CFR 41.25; in conjunction with the addition of the new paragraph (a), current paragraphs (a) through (d) would be re-designated as paragraphs (b) through (e).

    4. Costs

    The proposal would as a general matter reduce costs relative to the existing Commission regulation 41.25(a)(3),81 since it will reduce the frequency of hedge exemption requests (as discussed in the benefits section) and reduce the frequency of required DCM reviews of position limits from monthly to semi-annually. Under the proposal, DCMs that list SFPs for trading would continue to be required to adopt position limits or position accountability, but the proposal would generally increase the levels of position limits. The Commission preliminarily believes that the proposal would impose certain costs on such DCMs, and that these costs are necessary to establish appropriate position limits or position accountability trigger levels based on deliverable supply and such additional criteria that the listing DCM determines to be appropriate. The Commission also believes that these costs are comparable to those incurred under current regulations (whereby DCMs must calculate average daily trading volume) and notes that these costs will be incurred only semi-annually under the proposal rather than monthly as under current regulations. The Commission believes that DCMs would be able to exercise control over the extent of these costs depending on the degree of standardization such DCMs use to determine position limits and accountability and the Commission anticipates that DCMs will choose from among the lower-cost options. For example, a DCM could, consistent with the proposal, adopt a simple rule for equity securities based on the number of free-float outstanding shares. For equity securities, free-float information is readily available on certain publicly-available market websites and on Bloomberg terminals and similar services (which DCMs are likely to have access to for other business reasons). Reducing the frequency with which DCMs are required to review position limits and accountability to semi-annually from monthly will reduce costs to DCMs. Thus, the Commission anticipates that estimating deliverable supply would not be more costly (and would likely be less costly) than estimating average daily trading volume as required under current regulations.

    81 Re-designated under the proposal as 17 CFR 41.25(b)(3).

    The Commission notes that under the proposed rule, DCMs have the discretion to implement the default position limit of 25,000 contracts regardless of deliverable supply and that this may result in position limit levels in some contracts greater than 12.5 percent of deliverable supply. However, this discretion is limited by Core Principle 5 (which requires DCMs to set position levels at necessary and appropriate levels to deter manipulation) and by Core Principle 3 (which requires that DCMs may only list contracts that are not readily susceptible to manipulation). To the extent that DCMs comply with these core principles, this DCM discretion should not impair the protection of market participants and the public or otherwise impose significant costs on the markets for SFPs market or related securities.

    To the extent that a DCM lists equity SFPs on deliverable baskets, the costs of implementing the proposed position limit provisions for such SFPs would be similar to the costs of the analogous provisions for single stock SFPs, but there are no current costs associated with those proposed changes to the regulations since such SFPs are not currently listed for trading. There are also no listed SFPs at this time on debt securities. To the extent that there is less publicly-available information related to the deliverable supply of debt securities, estimating deliverable supply may be more costly for debt securities than for equity securities. However, these costs will only be incurred in the event that a DCM begins listing security futures on non-exempted debt securities. Moreover, these deliverable supply provisions are set out as guidance so that DCMs are free to implement less costly methods to comply with the rule, which provides only that futures on debt securities must have position limits. While DCMs have not listed debt security SFPs absent the proposed changes to the regulation, it is theoretically possible that the costs associated with estimating deliverable supply or otherwise determining position limit levels may affect future decisions regarding whether or not to list such SFPs. The costs of the proposed regulation for debt securities would be otherwise similar to the costs of the proposed regulation for equity securities.

    The proposal to permit DCMs to implement position limits on a net basis or on positions on the same side of the market (e.g., on physically-delivered and cash settled contracts on the same security, should a DCM ever list both types of contracts) would not require DCMs to change their current practice, and will thus not impose new costs on DCMs. Any change that imposes new costs on market participants would be made at the discretion of the DCM.

    The proposal to establish a required minimum position limit time period beginning no later than the first day that a holder of a long position may be assigned a delivery notice, if such period is longer than the last five trading days, in instances where the SFP permits delivery before the close of trading currently imposes no costs since contracts of this nature are not currently listed for trading. If a DCM listed such contracts, the proposal would require market participants to incur the costs of complying with position limits or applying for hedge exemptions (and would require DCMs to incur the costs of reviewing such applications) earlier in the life of the contract than absent the proposal.

    5. Benefits

    The Commission reviews its regulations to help ensure they keep pace with technological developments and industry trends, and to reduce regulatory burden where needed. The proposal would allow DCMs to adopt position limits that they deem to be appropriate. The Commission preliminarily believes that DCMs will adopt position limits that are large enough not to significantly inhibit liquidity, but will appropriately mitigate against potential manipulations and other concerns that may be associated with overly large positions in SFPs. Moreover, to the extent that the proposal would lead to position limits that are higher than current position limits, the proposal could alleviate the costs to hedgers of filing hedge exemptions for positions that are larger than a current position limit, but lower than a new position limit under the proposal. In that regard, Commission staff reviewed the largest positions in SFPs that were held during the calendar year 2017 and found that there were 16 positions held during the last five trading days of expiring SFP contract months across all listed SFPs on OneChicago, currently the only DCM to list SFPs for trading. These positions generally appear to have been associated with securities lending agreements 82 and thus appear to have been eligible for hedge exemptions. These 16 positions exceeded the current applicable limit for their underlying securities of the default 13,500 contracts. If the proposed default position limit of 25,000 contracts had been in effect in 2017, fewer than four positions would have been above that default position limit and would have required hedge exemptions. While the Commission believes that the monetary cost of filing a hedge exemption form is very small for an entity large enough to maintain a position that exceeds a position limit (perhaps less than $100), it is possible that the burden of filing a hedge exemption may discourage hedging at sizes exceeding position limits and, thus, that raising position limits may encourage larger hedges. The Commission also notes that to the extent SFPs are now or in the future used for speculation,83 speculators could establish larger positions under the proposal without a need for concern about position limits and may thus increase their trading activity. Any potential increase in trading activity could improve liquidity in the SFP markets.

    82 OneChicago describes itself on its website, https://onechicago.com, as “the Securities Finance Exchange” and states that “single stock futures are ideally suited to replace `agreements' in equity repo and securities lending transactions.”

    83 As noted above, SFPs may be used for securities finance transactions that are not speculative in nature.

    Requiring DCMs to set position limits and accountability based on semi-annual deliverable supply estimates should help ensure on an ongoing basis that position limits and accountability are set at levels that are necessary and appropriate to deter manipulation consistent with DCM Core Principles 3 and 5.

    The Commission preliminarily believes that the proposed frameworks for position limits in SFPs on deliverable equity baskets and debt securities (all based on deliverable supply estimates) should help ensure that such products, if they are ever listed for trading, are reasonably protected from manipulation. Further, the Commission preliminarily believes that the proposal may help foster position limits consistent with those in analogous securities options (where applicable).

    The proposal to permit DCMs to implement position limits on a net basis or on positions on the same side of the market (such as physically-delivered or cash settled contracts on the same security, should a DCM ever list both types of contracts) will give DCMs the discretion to implement position limits in a manner that they see fit.

    The proposal to establish a required minimum position limit time period beginning no later than the first day that a holder of a long position may be assigned a delivery notice, if such period is longer than the last five trading days, where the SFP permits delivery before the close of trading currently provides no benefits since contracts of this nature are not listed for trading. If a DCM listed such contracts, the proposal would help ensure that such contracts are not readily susceptible to manipulation during the entire delivery period.

    6. CEA Section 15(a) Factors i. Protection of Market Participants and the Public

    The Commission preliminarily believes that this proposal maintains the protection of market participants and the public provided by the current regulation. The proposal will continue to protect market participants and the public by maintaining the requirement that DCMs that list SFPs adopt and enforce appropriate position limits or position accountability consistent with DCM Core Principle 5 and implementing for SFPs the longstanding Commission policy that spot-month position limits should be set based on estimates of deliverable supply. Linking the levels of position limits and accountability to deliverable supply protects market participants and the public by helping prevent congestion, manipulation, or other problems that can be associated with speculative positions in expiring contracts that are overly large relative to deliverable supply.

    ii. Efficiency, Competitiveness, and Financial Integrity of Markets

    As discussed above, under the proposal, it is reasonable to anticipate that many or most SFPs would be subject to higher position limits compared to the current position limits. Therefore, hedgers may be able to take larger positions without the need to apply for hedge exemptions. This also could alleviate the DCM's need to review hedge exemptions improving resource allocation efficiency for exchanges and certain market participants. Moreover, with less restrictive position limits, it is theoretically possible that more traders could be enticed into the market and thus improve the liquidity and pricing efficiency of the SFP market.

    The current position limit regulation (a default of 13,500 contracts) often leads to position limits that are tighter than analogous position limits for security options (a default of 25,000 contracts). The proposal would raise the default limit level in SFPs to match that in securities options. More closely aligning the position limits in SFPs to those in securities options may enhance the competitiveness of the SFP market relative to the securities option market.

    iii. Price Discovery

    The Commission believes that price discovery typically occurs in the liquid and generally transparent security markets underlying existing SFPs rather than the relatively low-volume SFPs themselves. Nevertheless, as noted above, to the extent that trading activity in SFP markets increases due to less restrictive position limits, the price discovery function of SFPs could be enhanced by reducing liquidity risk and thereby facilitating arbitrage between the underlying security and SFP markets.

    iv. Sound Risk Management Practices

    The current position limit regulation often leads to position limits that are tighter than analogous position limits for security options. It is conceivable that this could discourage potential hedgers or other risk managers from using SFPs rather than security options because of burdens associated with the hedge exemption process. Risk managers might also find that the liquidity risk in the current SFP market is too high, due to a lack of speculators in the SFP market (among other causes). In this regard, it is possible that the current position limits might be too tight for speculators to perform adequately their role of providing liquidity in a futures market. Because the proposal raises the default limit to 25,000 contracts to match the default in security options, and thus would likely lead to higher position limits for many SFPs, it is possible that both risk managers and speculators enter or increase trading in the SFP market under the proposal.

    v. Other Public Interest Considerations

    The Commission has not identified any additional public interest considerations associated with the proposal.

    7. Consideration of Alternatives

    The Commission considered regulations that would require DCMs to conform the position limits in SFPs to those in securities options to a greater degree than under the proposal (consistent with comments to the original SFP rule proposal), including applying position limits throughout the life of the contract (rather than only in the last five trading days) and no longer permitting position accountability for SFPs on securities with higher trading volume and deliverable supply. The Commission believes that permitting position accountability for certain SFPs and only requiring spot month limits is consistent with Core Principle 5 and that these requirements are sufficient to ensure that SFPs are not readily susceptible to manipulation as required by Core Principle 3. Thus, not permitting position accountability and requiring DCMs to apply position limits throughout the life of the contract would significantly increase costs on market participants while not significantly enhancing protection of market participants and the public or providing significant benefits beyond those of the proposed position limits framework.

    The Commission also considered not setting default position limits for equity SFPs and simply requiring that position limits and accountability be set based on deliverable supply, as is done in many other futures products. However, the Commission preliminarily determined not to make such a proposal because some exchanges and market participants (based on past comments) 84 appear to believe that there are benefits to conforming position limits in SFPs to those in securities options to the extent practicable.

    84See supra discussion of the 2001 Final SFP Rules.

    8. Request for Comments

    The Commission invites public comment on its cost-benefit considerations, including the CEA section 15(a) factors described above. Commenters are also invited to submit any data or other information that they may have quantifying or qualifying the costs and benefits of the proposal with their comment letters.

    The Commission specifically seeks comment on the following:

    1. Are there alternatives to the proposal (whether discussed in this release or not) that would be superior from a cost-benefit standpoint?

    2. Would the proposal affect costs for those market participants that seek hedge exemptions?

    3. Would DCMs that list for trading SFPs face additional costs in adopting and setting position limits and position accountability levels for SFPs under the proposal that are not discussed in this consideration of costs and benefits?

    4. Do DCMs and market participants expect to see benefits under the proposal that are not discussed in this consideration of costs and benefits? Please quantify or describe such benefits.

    5. Should the Commission eliminate default position limits for equity SFPs and instead simply require that position limits and accountability be set based on deliverable supply, as is done in many other futures products?

    6. Is it feasible to estimate deliverable supply for debt securities at reasonable cost?

    7. Are there benefits associated with the Commission implementing rules for types of SFPs that are not currently listed for trading? Does implementing such rules have the potential to impose costs associated with possibly deterring innovation?

    D. Anti-Trust Considerations

    CEA Section 15(b) requires the Commission to take into consideration the public interest to be protected by the antitrust laws and endeavor to take the least anticompetitive means of achieving the objectives, polices and purposes of the CEA, in issuing any order or adopting any Commission rule or regulation (including any exemption under section 4(c) or 4c(b)), or in requiring or approving any bylaw, rule, or regulation of a contract market or registered futures association established pursuant to CEA section 17.85

    85 7 U.S.C. 19(b).

    The Commission believes that the public interest to be protected by the antitrust laws is generally to protect competition. The Commission requests comment on whether the proposal implicates any other specific public interest to be protected by the antitrust laws. The Commission has considered the proposal to determine whether it is anticompetitive and has preliminarily identified no anticompetitive effects. The Commission requests comment on whether the proposal is anticompetitive and, if it is, what the anticompetitive effects are.

    Because the Commission has preliminarily determined that the proposal is not anticompetitive and has no anticompetitive effects, the Commission has not identified any less anticompetitive means of achieving the purposes of the Act. The Commission requests comment on whether there are less anticompetitive means of achieving the relevant purposes of the Act that would further the objective of this proposal, such as leveling the regulatory playing field between SFPs and security options listed on NSEs.

    List of Subjects in 17 CFR Part 41

    Position accountability, Position limits, Security futures products.

    For the reasons discussed in the preamble, the Commodity Futures Trading Commission proposes to amend 17 CFR part 41 as set forth below:

    PART 41—SECURITY FUTURES PRODUCTS 1. The authority citation for part 41 continues to read as follows: Authority:

    Sections 206, 251 and 252, Pub. L. 106-554, 114 Stat. 2763, 7 U.S.C. 1a, 2, 6f, 6j, 7a-2, 12a; 15 U.S.C. 78g(c)(2).

    2. In § 41.25: a. Redesignate paragraphs (a) through (d) as paragraphs (b) through (e); b. Add new paragraph (a); c. Revise newly redesignated paragraphs (b)(3), (c)(2) and (3), and (e).

    The addition and revisions read as follows:

    § 41.25 Additional conditions for trading for security futures products.

    (a) Definitions. For purposes of this section:

    Estimated deliverable supply means the quantity of the security underlying a security futures product that reasonably can be expected to be readily available to short traders and salable by long traders at its market value in normal cash marketing channels during the specified delivery period. For guidance on estimating deliverable supply, designated contract markets may refer to appendix A of this subpart.

    Same side of the market means the aggregate of long positions in physically-delivered security futures products and cash-settled security futures products, in the same security, and, separately, the aggregate of short positions in physically-delivered security futures products and cash-settled security futures products, in the same security.

    (b) * * *

    (3) Speculative position limits. A designated contract market shall have rules in place establishing position limits or position accountability procedures for the expiring futures contract month as specified in this paragraph (b)(3).

    (i) Limits for equity security futures products. For a security futures product on a single equity security, including a security futures product on an underlying security that represents ownership in a group of securities, e.g., an exchange traded fund, a designated contract market shall adopt a position limit no greater than 25,000 100-share contracts (or the equivalent if the contract size is different than 100 shares), either net or on the same side of the market, applicable to positions held during the last five trading days of an expiring contract month; except where:

    (A) For a security futures product on a single equity security where the estimated deliverable supply of the underlying security exceeds 20 million shares, a designated contract market may adopt, if appropriate in light of the liquidity of trading in the underlying security, a position limit no greater than the equivalent of 12.5 percent of the estimated deliverable supply of the underlying security, either net or on the same side of the market, applicable to positions held during the last five trading days of an expiring contract month; or

    (B) For a security futures product on a single equity security where the six-month total trading volume in the underlying security exceeds 2.5 billion shares and there are more than 40 million shares of estimated deliverable supply, a designated contract market may adopt a position accountability rule, either net or on the same side of the market, applicable to positions held during the last five trading days of an expiring contract month. Upon request by a designated contract market, traders who hold positions greater than 25,000 100-share contracts (or the equivalent if the contract size is different than 100 shares), or such lower level specified pursuant to the rules of the designated contract market, must provide information to the designated contract market and consent to halt increasing their positions when so ordered by the designated contract market.

    (ii) Limits for physically-delivered basket equity security futures products. For a physically-delivered security futures product on more than one equity security, e.g., a basket of deliverable securities, a designated contract market shall adopt a position limit, either net or on the same side of the market, applicable to positions held during the last five trading days of an expiring contract month and the criteria in paragraph (b)(3)(i) of this section must apply to the underlying security with the lowest estimated deliverable supply. For a physically-delivered security futures product on more than one equity security with a contract size different than 100 shares per underlying security, an appropriate adjustment to the limit must be made. If each of the underlying equity securities in the basket of deliverable securities is eligible for a position accountability level under paragraph (b)(3)(i)(B) of this section, then the security futures product is eligible for a position accountability level in lieu of position limits.

    (iii) Limits for cash-settled equity index security futures products. For a security futures product cash settled to a narrow-based security index of equity securities, a designated contract market shall adopt a position limit, either net or on the same side of the market, applicable to positions held during the last five trading days of an expiring contract month. For guidance on setting limits for a cash-settled equity index security futures product, designated contract markets may refer to section (b) of appendix A of this subpart.

    (iv) Limits for debt security futures products. For a security futures product on one or more debt securities, a designated contract market shall adopt a position limit, either net or on the same side of the market, applicable to positions held during the last five trading days of an expiring contract month. For guidance on setting limits for a debt security futures product, designated contract markets may refer to section (c) of appendix A of this subpart.

    (v) Required minimum position limit time period. For position limits required under this section where the security futures product permits delivery before the termination of trading, a designated contract market shall apply such position limits for a period beginning no later than the first day that long position holders may be assigned delivery notices, if such period is longer than the last five trading days of an expiring contract month.

    (vi) Requirements for re-setting levels of position limits. A designated contract market shall calculate estimated deliverable supply and six-month total trading volume no less frequently than semi-annually.

    (A) If the estimated deliverable supply data supports a lower speculative limit for a security futures product, then the designated contract market shall lower the position limit for that security futures product pursuant to the submission requirements of § 41.24. If the data require imposition of a reduced position limit for a security futures product, the designated contract market may permit any trader holding a position in compliance with the previous position limit, but in excess of the reduced limit, to maintain such position through the expiration of the security futures contract; provided, that the designated contract market does not find that the position poses a threat to the orderly expiration of such contract.

    (B) If the estimated deliverable supply or six-month total trading volume data no longer supports a position accountability rule in lieu of a position limit for a security futures product, then the designated contract market shall establish a position limit for that security futures product pursuant to the submission requirements of § 41.24.

    (C) If the estimated deliverable supply data supports a higher speculative limit for a security futures product, as provided under paragraph (b)(3)(i)(A) of this section, then the designated contract market may raise the position limit for that security futures product pursuant to the submission requirements of § 41.24.

    (vii) Restriction on netting of positions. If the designated contract market lists both physically-delivered contracts and cash settled-contracts in the same security, it shall not permit netting of positions in the physically-delivered contract with that of the cash-settled contract for purposes of determining applicability of position limits.

    (c) * * *

    (2) Notwithstanding paragraph (c)(1) of this section, if an opening price for one or more securities underlying a security futures product is not readily available, the final settlement price of the security futures product shall fairly reflect:

    (i) The price of the underlying security or securities during the most recent regular trading session for such security or securities; or

    (ii) The next available opening price of the underlying security or securities.

    (3) Notwithstanding paragraph (c)(1) or (2) of this section, if a derivatives clearing organization registered under Section 5b of the Act or a clearing agency exempt from registration pursuant to Section 5b(a)(2) of the Act, to which the final settlement price of a security futures product is or would be reported determines, pursuant to its rules, that such final settlement price is not consistent with the protection of customers and the public interest, taking into account such factors as fairness to buyers and sellers of the affected security futures product, the maintenance of a fair and orderly market in such security futures product, and consistency of interpretation and practice, the clearing organization shall have the authority to determine, under its rules, a final settlement price for such security futures product.

    (e) Exemptions. The Commission may exempt a designated contract market from the provisions of paragraphs (b)(2) and (c) of this section, either unconditionally or on specified terms and conditions, if the Commission determines that such exemption is consistent with the public interest and the protection of customers. An exemption granted pursuant to this paragraph shall not operate as an exemption from any Securities and Exchange Commission rules. Any exemption that may be required from such rules must be obtained separately from the Securities and Exchange Commission.

    3. Add appendix A to subpart C to read as follows: Appendix A to Subpart C of Part 41—Guidance on and Acceptable Practices for Position Limits and Position Accountability for Security Futures Products

    (a) Guidance for estimating deliverable supply. (1) For an equity security, deliverable supply should be no greater than the free float of the security.

    (2) For a debt security, deliverable supply should not include securities that are committed for long-term agreements (e.g., closed-end investment companies, structured products, or similar securities).

    (3) Further guidance on estimating deliverable supply, including consideration of whether the underlying security is readily available, is found in appendix C to part 38 of this chapter.

    (b) Guidance and acceptable practices for setting limits on cash-settled equity index security futures products—(1) Guidance for setting limits on cash-settled equity index security futures products. For a security futures product cash settled to a narrow-based security index of equity securities, a designated contract market:

    (i) May set the level of a position limit to that of a similar equity index option listed on a national security exchange or association; or

    (ii) Should consider the deliverable supply of equity securities underlying the index, and should consider the index weighting and contract multiplier.

    (2) Acceptable practices for setting limits on cash-settled equity index security futures products. For a security futures product cash settled to a narrow-based security index of equity securities weighted by the number of shares outstanding, a designated contract market may set a position limit as follows: First, determine the limit on a security futures product on each underlying equity security pursuant to § 41.25(b)(3)(i); second, multiply each such limit by the ratio of the 100-share contract size and the shares of the equity securities in the index; and third, determine the minimum level from step two and set the limit to that level, given a contract size of one U.S. dollar times the index, or for a larger contract size, reduce the level proportionately. If under these procedures each of the equity securities underlying the index is determined to be eligible for position accountability levels, the security futures product on the index itself is eligible for a position accountability level.

    (c) Guidance and acceptable practices for setting limits on debt security futures products—(1) Guidance for setting limits on debt security futures products. A designated contract market should set the level of a position limit to no greater than the equivalent of 12.5 percent of the par value of the estimated deliverable supply of the underlying debt security. For a security futures product on more than one debt security, the limit should be based on the underlying debt security with the lowest estimated deliverable supply.

    (2) Acceptable practices for setting limits on debt security futures products.

    [Reserved.]

    (d) Guidance on position accountability. A designated contract market may adopt a position accountability rule for any security futures product, in addition to a position limit rule required or adopted under this section. Upon request by the designated contract market, traders who hold positions, either net or on the same side of the market, greater than such level specified pursuant to the rules of the designated contract market must provide information to the designated contract market and consent to halt increasing their positions when so ordered by the designated contract market.

    (e) Guidance on exemptions from position limits. A designated contract market may approve exemptions from these position limits pursuant to rules that are consistent with § 150.5 of this chapter, or to rules that are consistent with rules of a national securities exchange or association regarding exemptions to securities option position limits or exercise limits.

    Issued in Washington, DC, on July 24, 2018, by the Commission. Robert Sidman, Deputy Secretary of the Commission. Note:

    The following appendices will not appear in the Code of Federal Regulations.

    Appendices to Position Limits and Position Accountability for Security Futures Products—Commission Voting Summary and Commissioner's Statement Appendix 1—Commission Voting Summary

    On this matter, Chairman Giancarlo and Commissioners Quintenz and Behnam voted in the affirmative. No Commissioner voted in the negative.

    Appendix 2—Concurring Statement of Commissioner Rostin Behnam

    I respectfully concur with the Commodity Futures Trading Commission's approval of its proposed rule regarding Position Limits and Position Accountability for Security Futures Products (the “Proposal”). I commend staff on their hard work in producing this Proposal, and for their thoughtful responses to my questions. I look forward to hearing from market participants and other stakeholders regarding the amendments to the existing position limits rules for security futures products. In particular, I will be interested in comments regarding the appropriateness of increasing the default level of equity security futures products position limits from 13,500 contracts to 25,000 contracts. While today's Proposal only would amend the Commission's Part 41 rules regarding security futures products, I nonetheless encourage market participants and interested stakeholders to consider how the Proposal might impact or interplay with the Commission's position limits rules in Part 150 and any future amendments to them.

    [FR Doc. 2018-16079 Filed 7-30-18; 8:45 am] BILLING CODE 6351-01-P
    DEPARTMENT OF EDUCATION 34 CFR Chapter VI [Docket ID ED-2018-OPE-0076] Negotiated Rulemaking Committee; Public Hearings AGENCY:

    Office of Postsecondary Education, Department of Education.

    ACTION:

    Intent to establish negotiated rulemaking committee.

    SUMMARY:

    We announce our intention to establish a negotiated rulemaking committee to prepare proposed regulations for the Federal Student Aid programs authorized under title IV of the Higher Education Act of 1965, as amended (HEA) (title IV, HEA programs). We also announce our intention to create two subcommittees for this committee. In addition, we announce three public hearings at which interested parties may comment on the topics suggested by the Department and may suggest additional topics that should be considered for action by the negotiating committee. We will also accept written comments on the topics suggested by the Department and suggestions for additional topics that should be considered for action by the negotiating committee. The Department will present negotiators with proposed regulatory language at the first negotiating session.

    DATES:

    The dates, times, and locations for the public hearings are listed under SUPPLEMENTARY INFORMATION. We must receive written comments on the topics suggested by the Department and additional topics that should be considered for action by the negotiating committee on or before September 14, 2018.

    ADDRESSES:

    Submit your comments through the Federal eRulemaking Portal or via postal mail, commercial delivery, or hand delivery. We will not accept comments by fax or by email. To ensure that we do not receive duplicate copies, please submit your comments only once. In addition, please include the Docket ID at the top of your comments.

    Federal eRulemaking Portal: Go to www.regulations.gov to submit your comments electronically. Information on using Regulations.gov, including instructions for accessing agency documents, submitting comments, and viewing the docket, is available on the site under “Help.”

    Postal Mail, Commercial Delivery, or Hand Delivery: The Department strongly encourages commenters to submit their comments electronically. However, if you mail or deliver your comments, address them to Aaron Washington, U.S. Department of Education, 400 Maryland Ave. SW, Room 294-12, Washington, DC 20202.

    Privacy Note: The Department's policy is to make all comments received from members of the public available for public viewing in their entirety on the Federal eRulemaking Portal at www.regulations.gov. Therefore, commenters should be careful to include in their comments only information that they wish to make publicly available.

    FOR FURTHER INFORMATION CONTACT:

    For information about the public hearings, go to www2.ed.gov/policy/highered/reg/hearulemaking/2018/index.html or contact: Aaron Washington, U.S. Department of Education, 400 Maryland Ave. SW, Room 294-12, Washington, DC 20202. Telephone: (202) 453-7241. Email: [email protected]

    For information about negotiated rulemaking in general, see The Negotiated Rulemaking Process for Title IV Regulations, Frequently Asked Questions at www2.ed.gov/policy/highered/reg/hearulemaking/hea08/neg-reg-faq.html or contact: Aaron Washington, U.S. Department of Education, 400 Maryland Ave. SW, Room 294-12, Washington, DC 20202. Telephone: (202) 453-7241. Email: [email protected]

    If you use a telecommunications device for the deaf (TDD) or text telephone (TTY), call the Federal Relay Service (FRS), toll free, at 1-800-877-8339.

    SUPPLEMENTARY INFORMATION:

    Section 492 of the HEA requires that, before publishing any proposed regulations to implement programs authorized under title IV of the HEA, the Secretary obtain public involvement in the development of the proposed regulations. After obtaining advice and recommendations from the public, the Secretary conducts negotiated rulemaking to develop the proposed regulations. We announce our intent to develop proposed title IV regulations by following the negotiated rulemaking procedures in section 492 of the HEA.

    We intend to select participants for the negotiated rulemaking committee from nominees of organizations and groups that represent the interests significantly affected by the proposed regulations. In accordance with section 492(b)(1) of the HEA, we will select from the nominees individual negotiators who reflect the diversity among program participants.

    Regulatory Issues

    We intend to convene a negotiated rulemaking committee to develop proposed regulations to revise the regulations related to the Secretary's recognition of accrediting agencies in 34 CFR part 602, and related parts as described below. The proposed topics for negotiation would include:

    • Requirements for accrediting agencies in their oversight of member institutions;

    • Requirements for accrediting agencies to honor institutional mission;

    • Criteria used by the Secretary to recognize accrediting agencies, emphasizing criteria that focus on educational quality;

    • Developing a single definition for purposes of measuring and reporting job placement rates; and

    • Simplifying the Department's process for recognition and review of accrediting agencies.

    In addition to developing proposed regulations on the core functions of accreditation, the committee would also develop proposed regulations in a number of areas to promote greater access for students to high-quality, innovative programs by revising the regulations related to:

    (1) State authorization, to address the requirements related to programs offered through distance education or correspondence courses, including disclosures about such programs to enrolled and prospective students, and other State authorization issues (34 CFR 600.9 and 668.50);

    (2) The definition of “regular and substantive interaction,” as that term is used in the definitions of “correspondence course” and “distance education” in 34 CFR 600.2, 600.7, and 668.10;

    (3) The definition of the term “credit hour” as it is used in 34 CFR 600.2, 602.24, 603.24, and 668.8;

    (4) The requirement that an institution demonstrate a reasonable relationship between the length of a program and entry-level requirements for the recognized occupation for which the program prepares the student (34 CFR 668.8(e)(1)(iii) and 668.14(b)(26));

    (5) The arrangements between an institution and another institution or organization to provide a portion of an educational program (34 CFR 668.5);

    (6) The roles and responsibilities of institutions and accrediting agencies in the teach-out process (34 CFR 600.32(d) and 602.24);

    (7) The barriers to innovation and competition in postsecondary education or to student completion, graduation, or employment, including, but not limited to, those contained in the Department's institutional eligibility regulations (34 CFR part 600) and student assistance general provisions (34 CFR part 668);

    (8) The simplification and clarification of program requirements to minimize inadvertent grant-to-loan conversions and to improve outcomes for Teacher Education Assistance for College and Higher Education (TEACH) Grant recipients (34 CFR part 686);

    (9) Direct assessment programs and competency-based education (34 CFR 668.10), focusing on the ability of institutions to develop, and students to progress through, innovative programs responsive to student, employer, and societal needs, including consideration of regulations that are barriers to the implementation of such programs, such as certain requirements for term-based academic calendars and satisfactory academic progress; and

    (10) In light of the recent United States Supreme Court decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), and the October 6, 2017, Memorandum for All Executive Departments and Agencies issued by the Attorney General of the United States pursuant to Executive Order No. 13798,1 the committee would consider revisions to the various provisions of the regulations regarding the eligibility of faith-based entities to participate in the title IV, HEA programs, including the Gaining Early Awareness and Readiness for Undergraduate Programs program, and the eligibility of students to obtain certain benefits under those programs (34 CFR 600.11 and parts 628, 674, 675, 676, 682, 685, 690, 692, and 694).

    1https://www.justice.gov/opa/press-release/file/1001891/download.

    Finally, we intend to convene two subcommittees for this committee. One subcommittee would address proposed regulations related to direct assessment programs/competency-based education (34 CFR 668.10) focusing on the ability of institutions to develop, and students to progress through, innovative programs responsive to student, employer, and societal needs. This subcommittee could consider revisions to regulations that are barriers to the implementation of such programs, including certain requirements for term-based academic calendars and satisfactory academic progress, among other topics. The second subcommittee would make recommendations to the committee regarding revisions to the regulations regarding the eligibility of faith-based entities to participate in the title IV, HEA programs. Proposed subcommittees are formed to address specified issues and to make recommendations to the committee regarding proposed regulatory language. Subcommittees do not make decisions for the committee. While committee meetings are open to the public to attend in person, subcommittee meetings will be made available through a Department-provided livestream.

    We intend to provide draft proposed regulatory language for discussion by the negotiating committee and the subcommittees prior to the first meeting of the committee or subcommittees.

    After reviewing the public comments presented at the hearings and in the written submissions, we will publish a document (or documents) in the Federal Register announcing the specific topics for which we intend to establish the negotiated rulemaking committee and a request for nominations for individual negotiators for the committee who represent the communities of interest that would be significantly affected by the proposed regulations. We will also announce the specific topics for which we intend to establish subcommittees and request nominations for individuals with pertinent expertise to participate on the subcommittees. This document will also be posted on the Department's website at: www2.ed.gov/policy/highered/reg/hearulemaking/2018/index.html.

    Public Hearings

    We will hold three public hearings for interested parties to discuss the rulemaking agenda. The public hearings will be held:

    • September 6, 2018, at the U.S. Department of Education, 400 Maryland Ave. SW, Barnard Auditorium, Washington, DC 20202.

    • September 11, 2018, at Xavier University, Convocation Center Annex, Room 111, Building 62, 7800 Washington Ave., New Orleans, LA 70125.

    • September 13, 2018, at Gateway Technical College, SC Johnson iMET Center, 2320 Renaissance Blvd., Sturtevant, WI 53177.

    The Washington, DC public hearing will be held from 9:00 a.m. to 4:00 p.m., Eastern Daylight Time. The New Orleans, LA and Sturtevant, WI public hearings will be held from 9:00 a.m. to 1:00 p.m., Central Daylight Time. Further information on the public hearing sites is available at www2.ed.gov/policy/highered/reg/hearulemaking/2018/index.html.

    Individuals who would like to present comments at the public hearings must register by sending an email to [email protected] The email should include the name of the presenter along with the public hearing at which the individual would like to speak, the general topic(s) the individual would like to address, and a general timeframe during which the individual would like to speak (for example, a presenter could indicate morning or afternoon, or before 11:00 a.m. or after 3:00 p.m.). We will make the determination on a first-come, first-served basis, based on the time and date the email was received. Each participant will be limited to five minutes. The Department will notify registrants of the date and time slot reserved for them. An individual may make only one presentation at the public hearings. If we receive more registrations than we are able to accommodate, the Department reserves the right to reject the registration of an entity or individual that is affiliated with an entity or individual that is already scheduled to present comments, and to select among registrants to ensure that a broad range of entities and individuals is allowed to present. We will accept registrations for any remaining time slots on a first-come, first-served basis, beginning at 8:30 a.m. on the day of the public hearing at the Department's on-site registration table. Registration is not required to observe the public hearings; however, space may be limited.

    The Department will post transcripts of the hearings to www2.ed.gov/policy/highered/reg/hearulemaking/2018/index.html. Although the Department will not be video recording the hearings, speakers should be aware that, since these are public meetings, they may be filmed or recorded by members of the public.

    Speakers may submit written comments at the public hearings. In addition, the Department will accept written comments via the Federal eRulemaking portal, and by postal mail, commercial delivery, or hand delivery. (See the ADDRESSES section of this document for submission information.)

    Schedule for Negotiations

    We anticipate that any committee established after the public hearings will begin negotiations in January of 2019, with the committee meeting for up to three sessions of three days each at roughly four- to eight-week intervals. The Department will post transcripts and audio of the sessions to www2.ed.gov/policy/highered/reg/hearulemaking/2018/index.html. We anticipate that any subcommittees established will begin meeting in January or February, after the first meeting of the committee. The committee and subcommittees will meet in the Washington, DC area. The dates and locations of these meetings will be published in a subsequent notice in the Federal Register, and will be posted on the Department's website at: www2.ed.gov/policy/highered/reg/hearulemaking/2018/index.html.

    Accessible Format: Individuals with disabilities can obtain this document in an accessible format by contacting Aaron Washington, U.S. Department of Education, 400 Maryland Ave. SW, Room 281-13, Washington, DC 20202. Telephone: (202) 203-9155. Email: [email protected]

    Electronic Access to This Document: The official version of this document is the document published in the Federal Register. You may access the official edition of the Federal Register and the Code of Federal Regulations via the Federal Digital System at: www.thefederalregister.org/fdsys. At this site you can view this document, as well as all other documents of this Department published in the Federal Register, in text, or Portable Document Format (PDF). You may also access documents of the Department published in the Federal Register by using the article search feature at: www.federalregister.gov. Specifically, through the advanced search feature at this site, you can limit your search to documents published by the Department.

    Program Authority:

    20 U.S.C. 1098a.

    Diane Auer Jones, Principal Deputy Under Secretary Delegated to Perform the Duties of Under Secretary and Assistant Secretary, Office of Postsecondary Education.
    [FR Doc. 2018-15929 Filed 7-30-18; 8:45 am] BILLING CODE 4000-01-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R02-OAR-2018-0549; FRL-9981-62—Region 2] Approval and Promulgation of Implementation Plans; New Jersey; Elements for the 2008 8-Hour Ozone National Ambient Air Quality Standards AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve several State Implementation Plan (SIP) revisions submitted by the State of New Jersey for purposes of implementing Reasonably Available Control Technology (RACT) for the 2008 8-hour ozone National Ambient Air Quality Standard (NAAQS). The EPA is proposing to approve New Jersey's SIP revision for the control and prohibition of air pollution by volatile organic compounds (VOCs) and control and prohibition of air pollution by oxides of nitrogen (NOX), as they are intended to satisfy certain control technique guideline (CTG) and NOX RACT categories. The EPA is proposing to approve New Jersey's certification that there are no sources within the State for the following CTGs: Manufacture of Vegetable Oils; Manufacture of Pneumatic Rubber Tires; Aerospace Coatings; Shipbuilding and Ship Repair Operations; Metal Furniture Coatings; Large Appliance Coatings; and Auto and Light Duty Truck Original Equipment Manufacturer Assembly Coatings. In addition, the EPA is proposing to approve New Jersey's RACT SIP as it applies to non-CTG major sources of VOCs and major sources of NOX. The EPA is also proposing to approve the other portions of the comprehensive SIP revision submitted by New Jersey that certify that the State has satisfied the requirements for an enhanced motor vehicle Inspection and Maintenance program, certify that the State has satisfied the requirements for an emission statement program, certify that the State has satisfied the requirements for an ozone specific provisions nonattainment new source review program, and show the State has adopted all NOX RACT and VOC RACT, as it pertains to the 2008 8-hour ozone NAAQS. These actions are being taken in accordance with the requirements of the Clean Air Act.

    DATES:

    Written comments must be received on or before August 30, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID Number EPA-R02-OAR-2018-0549 at http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Omar Hammad, Environmental Protection Agency, 290 Broadway, New York, New York 10007-1866, at (212) 637-3347, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    The Supplementary Information section is arranged as follows:

    Table of Contents I. What action is the EPA proposing? II. What is the background for this proposed rulemaking? III. What did New Jersey submit? IV. What is the EPA's evaluation of New Jersey's SIP submittals? V. What action is the EPA proposing? VI. Incorporation by Reference VII. Statutory and Executive Order Reviews I. What action is the EPA proposing?

    The EPA is proposing to approve a State Implementation Plan (SIP) revision submitted by the State of New Jersey on June 11, 2015, for purposes of implementing Reasonably Available Control Technology (RACT) 1 for the 2008 8-hour ozone National Ambient Air Quality Standard (NAAQS or standard). New Jersey's June 11, 2015 SIP submittal consists of a showing that the State meets the RACT requirements for the two precursors for ground-level ozone, i.e., oxides of nitrogen (NOX) and volatile organic compounds (VOCs), set forth by the Clean Air Act (CAA or Act) with respect to the 2008 ozone standard.

    1 The EPA has defined RACT as the lowest emission limitation that a particular source is capable of meeting by the application of control technology that is reasonably available considering technological and economic feasibility (44 FR 53762, September 17, 1979).

    This action addresses New Jersey SIP submittals dated June 11, 2015, December 14, 2017, and January 2, 2018. In the June 11, 2015 SIP submittal, the State indicates that the RACT requirements for the 2008 ozone NAAQS have been fulfilled with the exception of sources subject to four Control Techniques Guidelines (CTGs) for source categories represented in New Jersey: Industrial Cleaning Solvents (EPA 453/R-06-001); Paper, Film, and Foil Coatings (EPA 453/R-07-003); Miscellaneous Metal and Plastic Parts Coatings (EPA 453/R-08-003); and Fiberglass Boat Manufacturing Materials (EPA-453/R-08-004). The June 11, 2015 submittal also establishes new limits on NOX emissions from existing simple cycle combustion turbines combusting natural gas and compressing gaseous fuel at major NOX facilities and stationary reciprocating engines combusting natural gas and compressing gaseous fuel at major NOX facilities. In a submission received by the EPA on December 14, 2017,2 titled “Control and Prohibition of Air Pollution by Volatile Organic Compounds and Oxides of Nitrogen,” New Jersey indicates that the RACT requirements for the 2008 ozone NAAQS have been fulfilled for sources subject to the four CTGs identified above that were not addressed in the June 11, 2015 submittal. The EPA is proposing to approve New Jersey's June 11, 2015 RACT SIP as it applies to non-CTG major sources of VOCs and to major sources of NOX. The EPA is proposing to approve New Jersey's December 14, 2017 submittal addressing the aforementioned four CTGs and establishing new limits on NOX emissions.

    2 Submission cover letter dated November 30, 2017.

    Also, the EPA is proposing to approve the portions of New Jersey's SIP revision submitted on January 2, 2018,3 that certifies the State has satisfied the requirements for a motor vehicle enhanced inspection and maintenance (I/M) program, an emission statement program, an ozone specific provisions nonattainment new source review (NNSR) program, and that the State has adopted all applicable NOX RACT and VOC RACT, submitted in the “1997 84 ppb and 2008 75 ppb 8-Hour Ozone Attainment Demonstration Northern New Jersey-New York-Connecticut Nonattainment Area and Nonattainment New Source Review (NNSR) Program Compliance Certification New Jersey Statewide” SIP revision.

    3 Submission cover letter dated December 22, 2017.

    The EPA proposes that New Jersey's SIP submittals are consistent with the EPA's guidance documents as well as the EPA's CTG and Alternative Control Technique (ACT) documents and are fully approvable as SIP-strengthening measures for New Jersey's ozone SIP.

    II. What is the background for this proposed rulemaking?

    In 2008, the EPA revised the health based NAAQS for ozone, setting it at 0.075 parts per million (ppm), or 75 parts per billion (ppb), averaged over an 8-hour time frame. The EPA determined that the revised 8-hour standard would be more protective of human health, especially with regard to children and adults who are active outdoors and individuals with a pre-existing respiratory disease such as asthma.

    On May 21, 2012 (77 FR 30087), the EPA finalized its attainment/nonattainment designations for areas across the country with respect to the 2008 8-hour ozone standard. This action became effective on July 20, 2012. The two 8-hour ozone marginal nonattainment areas located in New Jersey are the New York-Northern New Jersey-Long Island, NY-NJ-CT nonattainment area, also referred to as the New York Metropolitan Area (NYMA), and the Philadelphia-Wilmington-Atlantic City, PA-NJ-MD-DE nonattainment area. The New Jersey portion of the NYMA is comprised of Bergen, Essex, Hudson, Hunterdon, Middlesex, Monmouth, Morris, Passaic, Somerset, Sussex, Union and Warren Counties. On May 4, 2016 (81 FR 26697), the EPA determined that the NYMA did not attain the 2008 ozone standard by the applicable attainment date and is reclassified from a marginal to a moderate nonattainment area. State attainment plans for moderate nonattainment areas were due by January 1, 2017. Since the NYMA has been reclassified to a moderate nonattainment area, New Jersey submitted a new RACT determination as part of the State's attainment demonstration for the 2008 ozone standard.

    In areas classified as moderate or areas located in the Ozone Transport Region (OTR) (which includes all of New Jersey) under the 8-hour ozone standard, the definition for major sources is 50 tons per year for VOC and 100 tons per year for NOX. New Jersey, however, has an emission threshold of 25 tons per year throughout the state for purposes of the RACT analysis which results in a more stringent evaluation of RACT.

    Sections 172(c)(1) and 182(b)(2) of the CAA require states to implement RACT in areas classified as moderate (and higher) nonattainment for ozone, while section 184(b)(1)(B) of the CAA requires RACT in states located in the OTR. Specifically, these areas are required to implement RACT for all major VOC and NOX emission sources and for all sources covered by a CTG. A CTG is a document issued by the EPA which establishes a “presumptive norm” for RACT for a specific VOC source category. A related set of documents, ACT documents, exists primarily for NOX control requirements. States must submit rules or negative declarations when the State has no such sources for CTG source categories, but not for sources in ACT categories. However, RACT must be imposed on major sources of NOX, and some of those major sources may be within a sector covered by an ACT document.

    On March 6, 2015 (80 FR 12264), the EPA published a final rule, herein referred to as the “2008 ozone implementation rule,” that outlined the obligations that areas found to be in nonattainment of the 2008 ozone NAAQS needed to address. The 2008 ozone implementation rule contains, among other things, a description of the EPA's expectations for states with RACT obligations. The 2008 ozone implementation rule indicates that states could meet RACT through the establishment of new or more stringent requirements that meet RACT control levels, through a certification that previously adopted RACT controls in their SIP approved by the EPA under a prior ozone NAAQS represents adequate RACT control levels for attainment of the 2008 ozone NAAQS, or a combination of these two approaches. In addition, a state must submit a negative declaration in instances where there are no CTG sources. The 2008 ozone implementation rule requires that states with nonattainment areas to submit RACT SIPs to EPA within two years from the effective date of nonattainment designation or by July 20, 2014.

    The 2008 ozone implementation rule also states, among other things, that an attainment demonstration should consist of a list of adopted measures (including RACT) with schedules for implementation and other means and techniques necessary and appropriate for demonstrating attainment as expeditiously as practicable but no later than the outside attainment date for the area's classification. New Jersey submitted an attainment demonstration SIP and EPA will act on it in a separate rulemaking.

    III. What did New Jersey submit?

    On June 11, 2015, the New Jersey Department of Environmental Protection (NJDEP) submitted to the EPA a formal revision to its SIP. The SIP revision consists of information documenting how New Jersey complied with the RACT requirements for the 2008 8-hour ozone NAAQS, pertaining to the former marginal classification for the NYMA. In its June 11, 2015 submittal, New Jersey certifies that the State's submittal addresses the RACT requirements for the 2008 8-hour ozone standard except that it does not fulfill the requirements of the CTGs for industrial cleaning solvents, paper film and foil coatings, fiberglass boat manufacturing materials, and miscellaneous metal and plastic parts coatings and the requirements of the ACTs for stationary reciprocating internal combustion engines and stationary gas turbines. In New Jersey's June 2015 RACT submittal, the State commits to revise New Jersey Administrative Code, Title 7, Chapter 27 (N.J.A.C 7:27) Subchapter 16 and Subchapter 19 to address those requirements in a timely manner.

    On December 14, 2017, the EPA received New Jersey's SIP revision, “New Jersey's Control and Prohibition of Air Pollution by Volatile Organic Compounds and Control and Prohibition of Air Pollution by Oxides of Nitrogen.” 3 The December 14, 2017 submittal includes the amendment to N.J.A.C. 7:27, Subchapter 16, “Control and Prohibition of Air Pollution by Volatile Organic Compounds” and Subchapter 19, “Control and Prohibition of Air Pollution by Oxides of Nitrogen” that New Jersey committed to propose and adopt in their June 11, 2015 submittal.

    3 Effective date November 6, 2017 (49 N.J.R. 3518).

    On January 2, 2018, New Jersey submitted, for inclusion in the SIP, the “1997 84 ppb and 2008 75 ppb 8-Hour Ozone Attainment Demonstration Northern New Jersey-New York-Connecticut Nonattainment Area and Nonattainment New Source Review (NNSR) Program Compliance Certification New Jersey Statewide.” In the January 2, 2018 submission New Jersey certifies, among other things, that the State has satisfied the requirements for an enhanced motor vehicle I/M program, an emission statement program, an ozone specific provisions NNSR program, and that the State has adopted all applicable NOX RACT and VOC RACT for the moderate NYMA.4

    4 The EPA will act on the remainder of New Jersey's January 2, 2018 SIP revision submittal, including the attainment demonstrations, Reasonable Further Progress (RFP) requirements and other portions at a later date.

    In New Jersey's June 11, 2015 RACT submittal, the State evaluated its existing RACT regulations which were adopted to meet the 1997 8-hour ozone standard to ascertain whether the same regulations constitute RACT for the 2008 8-hour ozone standard. In making its new 8-hour ozone RACT determination, New Jersey referenced EPA's RACT guidance (“Beyond Volatile Organic Compound-Reasonably Available Control Technology-Control Technology Guidelines Requirements, EPA-453/R-95-010, April 1995) and EPA's proposed rule “Implementation of the 2008 National Ambient Air Quality Standards for Ozone: State Implementation Plan Requirements.” 78 FR 34178 (June 2013).5 Accordingly, the basic framework for New Jersey's June 11, 2015 RACT SIP determination is described as follows:

    5 The EPA finalized the proposed rule. 80 FR 12264 (March 6, 2015).

    • Identify all source categories covered by Control Technique Guidelines (CTG) and Alternative Control Technique (ACT) documents.

    • Identify applicable regulations that implement RACT.

    • Certify that the existing level of controls for the 1997 8-hour ozone standard equals RACT under the 2008 8-hour ozone standard in certain cases.

    • Declare that sources covered by a CTG and ACT do not exist within the state and/or that RACT is not applicable in certain cases.

    • Identify and evaluate applicability of RACT to individual sources whose source category does not have a presumptive emission limit covered by a state-wide regulation.

    • Identify potential RACT revisions.

    In New Jersey's June 11, 2015 submittal, the State certified that all statewide RACT regulations, with the exception of four CTGs and two ACTs, with SIP approved state effective dates prior to the date when the RACT analysis was performed in 2015, are RACT for the 2008 8-hour ozone NAAQS, because the RACT determinations issued by the State are consistent with the most recent control technology and economic considerations. The State's December 14, 2017 submittal addressed the requirements for the four CTGs; the CTG for “industrial cleaning solvents,” “paper film and foil coatings,” “fiberglass boat manufacturing materials,” and “miscellaneous metal and plastic parts coatings” and the two ACTs for “stationary reciprocating internal combustion engines” and “stationary gas turbines.” The following discusses the results of New Jersey's analysis of RACT under the basic framework identified above.

    CTGs and ACTs

    New Jersey reviewed its existing RACT regulations adopted under the 1979 1-hour and 1997 8- hour ozone standard to identify source categories covered by the EPA's CTG and ACT documents. New Jersey's 2015 RACT SIP submittal lists the CTG and ACT documents and corresponding State RACT regulations that cover the CTG and ACT sources included in New Jersey's emissions inventory.

    In 2009, New Jersey adopted VOC and NOX RACT for major non-CTG sources located in the State. Those sources for which EPA guidance was not published, but for which the State established RACT, include:

    1. High Electric Demand Day boilers serving EGUs [N.J.A.C. 7:27-19.4];

    2. High Electric Demand Day turbines serving EGUs [N.J.A.C. 7:27-19.5];

    3. Asphalt paving production plants [N.J.A.C. 7:27-19.9];

    4. Alternative VOC control requirements [N.J.A.C. 7:27-16.17];

    5. Alternative and facility-specific NOX emission limits [N.J.A.C. 7:27-19.13];

    6. Municipal solid waste (MSW) incinerators [N.J.A.C. 7:27-19.12]; and

    7. Sewage sludge incinerators [N.J.A.C. 7:27-19.28].

    New Jersey has determined that currently effective emission limits for these source categories still represent RACT in 2015 for the marginal classification in the NYMA for the 75 ppb ozone standard.

    With the exception of the source categories for which New Jersey has made negative declarations, New Jersey has implemented RACT controls state-wide for all CTGs that the EPA has issued as of June 2015 to meet the requirements of the CAA. The following table lists the RACT controls that have been promulgated in N.J.A.C. 7:27 and the corresponding EPA SIP approval dates.

    N.J.A.C. 7:27 subchapter Title EPA latest approval date 16.2 VOC stationary storage tanks 8/3/10, 75 FR 45483 16.3 Gasoline transfer operations 8/3/10, 75 FR 45483 16.6 Open top tanks and solvent cleaning operations 8/3/10, 75 FR 45483 16.7 Surface coating and graphic arts operations 8/3/10, 75 FR 45483 16.12 Surface coating operations at mobile equipment repair and refinishing facilities 8/3/10, 75 FR 45483 16.16 Other source operations 8/3/10, 75 FR 45483 16.18 Leak detection and repair 8/3/10, 75 FR 45483 16.19 Application of cutback and emulsified asphalts 8/3/10, 75 FR 45483 16.20 Petroleum solvent dry cleaning operations 8/3/10, 75 FR 45483 19.4 Boilers serving electric generating units 8/3/10, 75 FR 45483 19.5 Stationary combustion turbines 8/3/10, 75 FR 45483 19.7 Industrial/commercial/institutional boilers and other indirect heat exchangers 8/3/10, 75 FR 45483 19.8 Stationary reciprocating engines 8/3/10, 75 FR 45483 19.10 Glass manufacturing furnaces 8/3/10, 75 FR 45483 23 Prevention of Air Pollution from Architectural Coatings Standards 12/22/10, 75 FR 80340 24 Consumer products 12/22/10, 75 FR 80340 26 Prevention of Air Pollution from Adhesives, Sealants, Adhesive Primers and Sealant Primers 12/22/10, 75 FR 80340

    New Jersey's June 11, 2015 RACT submittal contains a table (see Table II-2: RACT Certifications Based on Existing EPA Guidance) listing all the CTG and ACT categories (67 categories in total) and the corresponding State regulations or negative declarations that address the requirements. The EPA previously approved and incorporated into the SIP all of the State's regulations identified in Table II-2 that address CTGs and ACTs. New Jersey's December 14, 2017 submittal fulfilled the requirement to submit for the four CTGs and two ACTs which are identified in Table II-2 as rules that had not yet been adopted.

    For many source categories, the existing New Jersey rules have more stringent emission limits and/or lower thresholds of applicability than the recommendations contained in the CTG and ACT documents. New Jersey considers and certifies that its SIP approved regulations meet the RACT requirements for the 2008 8-hour ozone standard.

    Source Categories Not Applicable in New Jersey

    In New Jersey's 2015 submittal, by comparing the list of existing CTGs with New Jersey's effective rules, and researching the New Jersey Environmental Management System (NJEMS) emission statements and permitting database for source categories by Standard Industrial Code (SIC), the State certifies that the following source-specific categories either do not exist in this State, or fall below significant emission unit applicability thresholds in the CTGs: (1) Manufacture of Vegetable Oils; 6 (2) Manufacture of Pneumatic Rubber Tires; (3) Aerospace Coatings; (4) Shipbuilding and Ship Repair Operations; (5) Metal Furniture Coatings; (6) Large Appliance Coatings; and (7) Auto and Light Duty Truck Original Equipment Manufacturer (OEM) Assembly Coatings.

    6 The CTG for the manufacturing of vegetable oils was published in June 1978 (see EPA-450/2-78- 035) but in a March 1980 guidance document, entitled “Guidance for the Control of Volatile Organic Compounds Emitted by Ten Selected Source Categories,” the EPA advised that the “states are not required, at this time, to develop regulations for the vegetable oil manufacturing industry.” The EPA guidance has not been revised since the March 1980 guidance. At this time, the EPA considers the vegetable oil CTG as only guidance for states when they need to develop attainment plans in nonattainment areas.

    Source-Specific RACT Determinations

    A source-specific RACT determination applies to sources that have obtained a facility-specific emission limit or an alternative emission limit, i.e., a variance. A case-by-case RACT analysis is required for sources that are not defined by a specific source category covered by an existing state regulation, that are requesting a variance, or that are not addressed by a CTG. New Jersey's RACT regulations at N.J.A.C. 7:27 Subchapter 19.13 for NOX and at Subchapter 16.17 for VOCs outline the process and conditions for granting a source-specific RACT determination. Under the CAA, these individual source-specific RACT determinations need to be submitted by the State as a SIP revision for the EPA's approval. Therefore, New Jersey included Table II-3 in its June 2015 RACT SIP submittal, a listing of VOC and NOX source facilities that are subject to a RACT source-specific SIP revision under the 8-hour ozone SIP and the corresponding emission limits, control technology and applicable regulation governing the RACT determinations. Consistent with the CAA, New Jersey submitted to the EPA SIP revisions that included the source-specific RACT revisions identified in Table II-3 of the 2015 RACT SIP submittal. The EPA has approved some of those revisions and is performing its technical review of the remainder of the submittals and will take separate rulemaking actions for each of the source-specific determinations (see 40 CFR 52.1570 (d) “EPA approved State source-specific requirements”).

    New Jersey's Control and Prohibition of Air Pollution by Volatile Organic Compounds

    New Jersey's December 14, 2017 submittal, which included amendments to N.J.A.C. 7:27, Subchapter 16, addresses sources subject to four CTGs for source categories represented in New Jersey: Industrial Cleaning Solvents (ICS), CTG issued September 2006 (EPA 453/R-06-001); Paper, Film, and Foil Coatings (PFFC), CTG issued September 2007 (EPA 453/R-07-003); Miscellaneous Metal and Plastic Parts Coatings (MMPPC), CTG issued September 2008 (EPA 453/R-08-003); and Fiberglass Boat Manufacturing Materials (FBMM), CTG issued September 2008 (EPA-453/R-08-004). The VOC emission limits adopted by New Jersey and set forth in Subchapter 16 are as effective in regulating the source categories as the EPA's CTG documents.

    Industrial Cleaning Solvents (ICS)

    The EPA issued a CTG for industrial cleaning solvents in 2006 that includes recommended control techniques. This category includes the industrial cleaning solvents used by many industries. It includes a variety of products that are used to remove contaminants such as adhesives, inks, paint, dirt, soil, oil and grease. The recommended measures for controlling VOC emissions from the use, storage and disposal of industrial cleaning solvents include work practice standards, limitations on VOC content of the cleaning materials, and an optional alternative limit on composite vapor pressure of the cleaning materials. They also include the use of add-on controls with an overall emission reduction of at least 85 percent by mass.

    Based on the EPA CTG, New Jersey adopted new rules N.J.A.C. 7:27-16.24 which specifies VOC content and vapor pressure limits for solvents used in solvent cleaning activities conducted to remove material through wiping, flushing, or spraying. Facilities can be exempt by annual industrial cleaning solvent usage, based on a purchase limit, and by source operation type. Compliance can be achieved by meeting a maximum VOC content, a maximum VOC composite vapor pressure, or a minimum control efficiency. Applicable facilities must implement best management practices, which include keeping cleaning materials in closed containers when not in use. Recordkeeping must be maintained which demonstrates compliance. The EPA proposes to find that New Jersey's adopted ICS rules are as effective in regulating the source category as the EPA's CTG document.

    Paper, Film, and Foil Coatings (PFFC)

    The EPA issued a 2007 CTG for paper, film and foil coatings. Previous Federal actions that affected this source category included a 1977 CTG for controlling VOC emissions from surface coating of paper, the 1983 new source performance standards (NSPS) for surface coating of pressure sensitive tape and labels (a subset of this category), and a 2002 National Emissions Standards for Hazardous Air Pollutants (NESHAP) for paper and other web coating. The EPA recommends applying the control recommendations for coatings only to individual paper, film and foil surface coating lines with the potential to emit at least 25 tons per year (tpy) of VOC from coatings, prior to controls. The EPA recommends an overall VOC control efficiency of 90 percent as RACT for each coating line.

    New Jersey adopted amendments to N.J.A.C. 7:27-16.7, based on the CTG, which requires paper, film, and foil coating operations to implement best management practices if the actual VOC emissions exceed 15 pounds per day for all coating operations. The EPA proposes to find that New Jersey's adopted PFFC rules are as effective in regulating the source category as the EPA's CTG document.

    Miscellaneous Metal and Plastic Parts Coatings (MMPPC)

    The EPA issued a 2008 CTG for miscellaneous metal and plastic parts coatings. The CTG recommended three options for controlling VOC emissions: (1) VOC content limits for each coating category based on the use of low-VOC content coatings and specified application methods to achieve good transfer efficiency; (2) equivalent VOC emission rate limits based on the use of a combination of low-VOC coatings, specified application methods, and add-on controls; or (3) an overall VOC control efficiency of 90 percent for facilities that choose to use add-on controls instead of low-VOC Content coatings and specified application methods. In addition, the EPA recommended work practices to further reduce VOC emissions from coatings as well as to minimize emissions from cleaning materials used in miscellaneous metal product and plastic part surface coating processes.

    New Jersey adopted new rules at N.J.A.C. 7:27-16.15, based on the EPA CTG, which specify an applicability limit of 2.7 tons of actual VOC emissions during any consecutive 12-month period from all miscellaneous metal and plastic part coating operations, including related cleaning activities. Compliance can be achieved by either meeting the maximum allowable VOC content, achieving a minimum 90 percent overall control efficiency, or meeting a minimum overall control efficiency which is based upon the characteristics of the coating. Exemptions include surface coating operations that exclusively use powder coating and metal parts coatings which must comply with a military specification that has been formulated to meet a higher, less stringent VOC content. Applicable facilities must implement best management practices, which include keeping cleaning materials in closed containers when not in use. Recordkeeping must be maintained which demonstrates compliance. The EPA proposes to find that New Jersey's adopted MMPPC rules are as effective in regulating the source category as the EPA's CTG document.7

    7 New Jersey's rule includes a partial exemption for military specification coatings from the new VOC limits for metal parts and products, at N.J.A.C. 7:27-16.15(c)(1). N.J.A.C. 7:27-16.15(c)(3)(vii) exempts any military specification coating that has been formulated to meet a higher, less stringent VOC content limit. Additional exceptions include less stringent VOC content limits for extreme high gloss topcoat (craft) and other substrate antifoulant coating than those recommended in the MMPPC CTG. This departure from the MMPPC CTG recommendation is based on EPA guidance memo “Control Technique Guidelines for Miscellaneous Metal and Plastic Part Coatings—Industry Request for Reconsideration”.

    Fiberglass Boat Manufacturing Materials (FBMM)

    The EPA issued a CTG in 2008 that provides control recommendations for reducing VOC emissions from the use of gel coats, resins, and materials used to clean application equipment in fiberglass boat manufacturing operations. The CTG recommends the use of low-VOC content (monomer and non-monomer VOC) resin and gel coats with specified application methods. The CTG recommends the use of covers on mixing containers to further reduce VOC emissions from gel coats and resins. The CTG also recommends the use of low-VOC and low vapor pressure cleaning materials. Because the CTG recommendations are based on the 2001 National Emission Standards for Hazardous Air Pollutants (NESHAP) for boat manufacturing, those facilities that are major sources of HAP are already complying with the 2001 NESHAP and have already adopted these control measures. Because the 2001 NESHAP does not apply to area sources, area source fiberglass boat manufacturing facilities are not currently required to implement the measures provided in the NESHAP and recommended in the CTG. There are boat manufacturing facilities in ozone nonattainment areas that meet the applicability threshold in the CTG and would provide VOC emission reductions when the CTG recommended controls are applied. These control approaches are recommended for all fiberglass boat manufacturing facilities where total actual VOC emissions from all fiberglass boat manufacturing operations are equal to or exceed 15 pounds per day.

    New Jersey adopted new rules at N.J.A.C. 7:27-16.14, based on the EPA CTG, which establish an applicability limit of actual VOC emissions, before add-on control, of 15 pounds per day from all fiberglass boat manufacturing operations. Exemptions include production of vessels that must meet military specifications and production of parts of boats that do not involve the manufacture of fiberglass. Compliance can be achieved by meeting a maximum monomer VOC content standard, meeting a maximum monomer VOC mass emission rate, or installation of a VOC control apparatus. Recordkeeping must be maintained which demonstrates compliance. The EPA proposes to find that New Jersey's adopted FBMM rules are as effective in regulating the source category as the EPA's CTG document.

    New Jersey's Control and Prohibition of Air Pollution by Oxides of Nitrogen (Subchapter 19)

    New Jersey's December 14, 2017 submittal, which included amendments to N.J.C.A. 7:27, Subchapter 19, establishes more stringent limits on NOX emissions from existing simple cycle combustion turbines combusting natural gas and compressing gaseous fuel at major NOX facilities and stationary reciprocating engines combusting natural gas and compressing gaseous fuel at major NOX facilities. The EPA proposes to find that the NOx emission limits adopted by New Jersey and set forth in their December 14, 2017 submittal are as effective in regulating the source categories as the EPA's recommendations and guidance.

    Stationary Natural Gas Compressor Turbines and Reciprocating Engines

    In New Jersey's December 14, 2017 submittal, New Jersey adopted amendments to its rules for stationary gas turbines and engines. New Jersey amended N.J.A.C. 7:27-19.5 by adopting new standards for NOX emissions from existing simple cycle combustion turbines combusting natural gas and compressing gaseous fuel at major NOX facilities (compressor turbines). The standard provides, at 7:27-19.5(l) that, beginning November 6, 2019, any simple cycle combustion turbine combustion natural gas and compressing gaseous fuel at a major NOX facility shall not emit more than 42 ppm by volume, dry basis (ppmvd), of NOX corrected to 15 percent oxygen. NJDEP amended N.J.A.C. 7:27-19.8 by adopting new standards for NOX emissions from stationary reciprocating engines combusting natural gas and compressing gaseous fuel at major NOX facilities (compressor engines). The standard provides, at 7:27-19.8 (g), that beginning November 6, 2019, the owner or operator of a two-stroke lean burn engine capable of producing an output of 200 brake horsepower (bhp) or more but less than 500 bhp, combusting natural gas, and compressing gaseous fuel at a major NOX facility shall cause it to emit no more than 3.0 grams NOX/brake horsepower-hour (bhp-hr). The standard also provides, at 7:27-19.8 (h), that beginning November 6, 2019, the owner or operator of a four-stroke lean burn engine or four-stroke rich burn engine capable of producing an output of 200 bhp or more but less than 500 bhp, combusting natural gas, and compressing gaseous fuel at a major NOX facility shall cause it to emit no more than 2.0 grams NOX/bhp-hr.

    The EPA proposes to find that the adopted rules are consistent with EPA guidance and address NOX RACT requirements by establishing new limits on NOX emissions from existing simple cycle combustion turbines combusting natural gas and compressing gaseous fuel at major NOX facilities and stationary reciprocating engines combusting natural gas and compressing gaseous fuel at major NOX facilities.

    Nitrogen Oxide (NOX) Reasonably Available Control Technology (RACT) and Volatile Organic Compounds (VOC) RACT Certification

    In New Jersey's January 2, 2018 submittal, the State certified that they have addressed RACT requirements for the 2008 75 ppb 8-hour ozone NAAQS supported by their June 11, 2015 and December 14, 2017 submittals. EPA proposes to find that New Jersey has demonstrated that it has met the NOX RACT and VOC RACT requirements. In some instances, New Jersey has gone beyond RACT by adopting control measures more stringent than the Federal rules and CTGs.

    New Jersey's VOC RACT rules cover source categories such as VOC stationary storage tanks, gasoline transfer operations, VOC transfer operations other than gasoline, marine tank vessel loading and ballasting operations, open tanks and solvent cleaning operations, surface coating and graphic arts operations, boilers, stationary combustion turbines, stationary reciprocating engines, asphalt pavement production plants, surface coating operations at mobile equipment repair and finishing facilities, flares, other source operations, leak detection and repair, application of cutback and emulsified asphalts, petroleum solvent dry cleaning operations, natural gas pipelines, and their NOX RACT cover source categories such as boilers serving electric generating units, stationary combustion turbines, industrial/commercial/institutional boilers and other indirect heat exchangers, stationary reciprocating engines, asphalt pavement production plants, glass manufacturing furnaces, emergency generators, municipal solid waste (MSW) incinerators and sewage sludge incinerators. These RACT controls that have been promulgated in N.J.A.C. 7:27, have been approved by the EPA as part of New Jersey's SIP most recently on August 3, 2010 8 and December 22, 2010.9

    8 75 FR 45483.

    9 75 FR 80340.

    Enhanced Motor Vehicle Inspection and Maintenance (I/M) Program Certification

    In New Jersey's January 2, 2018 submission, the State certifies that its state-wide rules at N.J.A.C. 7:27-14 and 15, N.J.A.C. 7:27B-4 and B-5 and the Motor Vehicle Commission (MVC) rules at N.J.A.C. 13:20-43, satisfy Federal requirements for an enhanced motor vehicle I/M Program for the 2008 75 ppb 8-hour ozone NAAQS.

    Four categories of vehicles are subject to the enhanced I/M program: light-duty gasoline-fueled vehicles, heavy-duty gasoline-fueled vehicles, light-duty diesel-powered vehicles and heavy-duty diesel-powered vehicles. Within each category are commercial and non-commercial vehicles.

    EPA approved New Jersey's enhanced I/M program as meeting applicable requirements of the CAA. 67 FR 2811. On April 3, 2009 and September 9, 2016, New Jersey adopted amendments to its enhanced I/M Program. The EPA approved these amendments into the SIP. 83 FR 21174 (May 9, 2018).

    Emission Statement Program Certification

    In New Jersey's January 2018 submittal, the State certifies that its state-wide rules at N.J.A.C. 7:27-21 satisfy Federal requirements for an emission statement program for the 2008 75 ppb 8-hour ozone NAAQS. The EPA most recently approved a revision to Subchapter 21 into the SIP on August 3, 2010.10

    10 75 FR 45483.

    The EPA stated in the 2008 ozone implementation rule that if an area has a previously approved emission statement rule in force for the 1997 ozone NAAQS or the 1-hour ozone NAAQS that covers all portions of the nonattainment area for the 2008 ozone NAAQS, such rule should be sufficient for purposes of the emissions statement requirement for the 2008 ozone NAAQS.

    N.J.A.C. 7:27-21 requires the submission of annual emission statements from major facilities. From these statements, the Department develops reports of emissions of all criteria pollutants and submits them to the EPA pursuant to the Federal Air Emission Reporting Requirements (AERR) Rule for uploading to the EPA's National Emission Inventory (NEI).

    Federal Nonattainment New Source Review (NNSR) Program Certification

    In New Jersey's January 2018 submission, the State certifies that its existing state-wide NNSR rules codified at N.J.A.C. 7:27-18, which regulate the New Jersey portions of the Northern NJ-NY-CT and Southern NJ-PA-DE-MD Nonattainment Areas for the 2008 75 ppb 8-hour ozone NAAQS are at least as stringent as the Federal requirements at 40 CFR 51.165 for ozone and its precursors. See 80 FR 12264 (March 6, 2015). The EPA most recently approved a revision to Subchapter 18 into the SIP on July 25, 1996.11 New Jersey's demonstration that its NNSR rules comply with the ozone specific Federal provisions is provided in Table 8-2 of its submission.

    11 61 FR 38591.

    IV. What is the EPA's evaluation of New Jersey's SIP submittals?

    New Jersey submitted a state-wide RACT assessment on June 11, 2015. The RACT submission from New Jersey consists of: (1) A certification that previously adopted RACT controls in New Jersey's SIP for various source categories that were approved by the EPA under the 1-hour and the 1997 8-hour ozone standards are based on the currently available technically and economically feasible controls and that they continue to represent RACT for the 2008 8-hour ozone standard for implementation purposes; (2) New Jersey's 14 existing case-by-case source specific limits, approved by the EPA for the 1997 8-hour ozone standard, which New Jersey indicates continue to meet RACT for the 2008 8-hour ozone standard; (3) a negative declaration that for certain CTGs and/or ACTs there are no sources within New Jersey or that there are no sources within New Jersey above the applicability threshold; and (4) a commitment to revise and adopt, and submit as a SIP revision, a new or more stringent regulation(s), incorporating four CTGs, if determined to be more effective than current New Jersey requirements, and to consider further limiting NOX emissions from natural gas compressor engines and turbines. New Jersey's December 14, 2017 submittal addresses the commitment for the four CTGs and two ACTs. New Jersey's January 8, 2018 SIP revision submittal certified, among other things, that the State's NOX RACT, VOC RACT, enhanced I/M program, emission statement program and ozone specific provisions NNSR program satisfy Federal regulations and are at least as stringent as the Federal requirements.

    The EPA has reviewed New Jersey's RACT analysis including the state-wide RACT analysis submitted on June 11, 2015, the December 14, 2017 revisions and the January 2, 2018 certification that the State has adopted all applicable NOX RACT and VOC RACT. EPA proposes to find that these submissions fully address the OTR RACT requirements, the moderate RACT requirements for the NYMA and address the RACT requirements consistent with sections 172(c)(1), 182(b)(2) and 182(f) of the CAA, as interpreted by the EPA's regulations, guidance and policies. Also, the EPA has reviewed portions of New Jersey's January 2, 2018 SIP submittal that certify the State has satisfied the requirements for an enhanced motor vehicle I/M program, an emission statement program and an ozone specific provisions NNSR program, and the EPA is proposing to approve the State's certifications.

    V. What action is the EPA proposing?

    The EPA has evaluated the information provided by New Jersey and is proposing to approve New Jersey's state-wide RACT submittal dated June 11, 2015 and the State's December 14, 2017 SIP revision rule, which include a declaration that the following source-specific categories either do not exist in this State, or fall below significant emission unit applicability thresholds in the CTGs: (1) Manufacture of Vegetable Oils; (2) Manufacture of Pneumatic Rubber Tires; (3) Aerospace Coatings; (4) Shipbuilding and Ship Repair Operations; (5) Metal Furniture Coatings; (6) Large Appliance Coatings; and (7) Auto and Light Duty Truck Original Equipment Manufacturer (OEM) Assembly Coatings. The submittals also include amendments to N.J.A.C. 7:27, Subchapter 16, “Control and Prohibition of Air Pollution by Volatile Organic Compounds,” Subchapter 19, “Control and Prohibition of Air Pollution by Oxides of Nitrogen,” 12 for purposes of satisfying the 2008 8-hour ozone standard RACT requirements, NOX RACT for major sources, Non-CTG VOC RACT for major sources, all VOC CTG RACT sources and relevant OTR RACT requirements. The EPA is also proposing to approve portions of New Jersey's January 2, 2018 SIP revision that certifies the State has satisfied the requirements for an enhanced motor vehicle I/M program, an emission statement program, an ozone specific provisions NNSR program. As indicated in footnote 5, above, the EPA will address the remainder of the January 2, 2018 SIP submittal in a separate rulemaking.

    12 State Effective dates for both rules is November 6, 2017 (49 N.J.R. 3518).

    The EPA is soliciting public comments on the issues discussed in this proposal. These comments will be considered before the EPA takes final action. Interested parties may participate in the Federal rulemaking procedure by submitting written comments as discussed in the ADDRESSES section of this rulemaking.

    VI. Incorporation by Reference

    In this rule, the EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, the EPA is proposing to incorporate by reference of revisions to Title 7, Chapter 27: Subchapters 16 and 19 of the New Jersey Administrative Code that implements New Jersey's RACT regulations for VOCs and NOX, as described in section III of this preamble.

    The EPA has made, and will continue to make, these materials generally available through www.regulations.gov and at the EPA Region 2 Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

    VII. Statutory and Executive Order Reviews

    Under the CAA, the Administrator is required to approve a SIP submission that complies with the provisions of the 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 proposes to approve state law as meeting Federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

    • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive Order 12866 (58 FR 51735, October 4, 1993) and 13563 (76 FR 382, January 21, 2011);

    • is not an Executive Order 13771 (82 FR 9339, February 2, 2017) regulatory action because SIP approvals are exempt 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, this proposed rulemaking action, pertaining to New Jersey's 2008 8-hour ozone RACT submission the is not approved to apply on any Indian reservation land or in any other area where EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications and will not impose substantial direct costs on tribal governments or preempt tribal law as specified by Executive Order 13175 (65 FR 67249, November 9, 2000).

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Nitrogen Dioxide, Intergovernmental Relations, Ozone, Reporting and recordkeeping requirements, Volatile Organic Compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: July 23, 2018. Peter D. Lopez, Regional Administrator, Region 2.
    [FR Doc. 2018-16378 Filed 7-30-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R03-OAR-2018-0550; FRL-9981-60—Region 3] Approval and Promulgation of Air Quality Implementation Plans; West Virginia; 2018 Amendments to West Virginia's Ambient Air Quality Standards AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) is proposing to approve a state implementation plan (SIP) revision submitted by the State of West Virginia. This revision updates the effective date by which the state incorporates by reference the national ambient air quality standards (NAAQS) as well as their monitoring reference and equivalent methods. This action is being taken under the Clean Air Act (CAA).

    DATES:

    Written comments must be received on or before August 30, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R03-OAR-2018-0550 at http://www.regulations.gov, or via email to [email protected] For comments submitted at Regulations.gov, follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. For either manner of submission, EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be confidential business information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, please contact the person identified in the FOR FURTHER INFORMATION CONTACT section. For the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Joseph Schulingkamp, (215) 814-2021, or by email at [email protected]

    SUPPLEMENTARY INFORMATION:

    On June 8, 2018, the West Virginia Department of Environmental Protection (WVDEP) submitted a formal revision to its SIP pertaining to amendments of Legislative Rule, 45CSR8—Ambient Air Quality Standards. The SIP revision consists of revising the effective date of the incorporation by reference of the NAAQS and the associated monitoring reference and equivalent methods.

    I. Summary of SIP Revision

    This SIP revision is required by WVDEP in order to update the State's incorporation by reference of the primary and secondary NAAQS and the ambient air monitoring reference and equivalent methods, found in 40 CFR parts 50 and 53, respectively. Currently, 45CSR8 incorporates by reference 40 CFR parts 50 and 53 as effective on June 1, 2016. Since that date, EPA retained the standard for lead and made a technical correction to the particulate standard. See 81 FR 71906 and 82 FR 14325, respectively. EPA also designated one new ambient air monitoring reference method for measuring concentrations of sulfur dioxide, four new ambient air monitoring equivalent methods for measuring concentrations of fine and coarse particulate matter (PM2.5 and PM10, respectively), and two new equivalent methods for measuring concentrations of nitrogen dioxide (NO2) in ambient air.

    The amendments to the legislative rule include the following changes: To section 45-8-1 (General), the filing, effective, and incorporation by reference dates are changed to reflect the update of the legislative rule; to section 45-8-3 (Adoption of Standards), the effective dates for the incorporation by reference of the primary and secondary NAAQS and the ambient air monitoring reference and equivalent methods are changed. The filing and effective dates of the legislative rule were updated to March 22, 2018 and June 1, 2018 respectively. The effective date of the incorporation by reference of 40 CFR parts 50 and 53 changed from June 1, 2016 to June 1, 2017.

    II. Proposed Action

    EPA is proposing to approve the West Virginia SIP revision updating the date of incorporation by reference, which was submitted on June 8, 2018. EPA is soliciting public comments on the issues discussed in this document. These comments will be considered before taking final action.

    III. Incorporation by Reference

    In this proposed rule, EPA is proposing to include in a final EPA rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, EPA is proposing to incorporate by reference 45CSR8, as effective on June 1, 2018. EPA has made, and will continue to make, these materials generally available through http://www.regulations.gov and at the EPA Region III Office (please contact the person identified in the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

    IV. Statutory and Executive Order Reviews

    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 proposed action:

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

    • 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, this proposed rule, updating the effective date of West Virginia's 45CSR8, does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), because the SIP is not approved to apply in Indian country located in the state, and EPA notes that it will not impose substantial direct costs on tribal governments or preempt tribal law.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Carbon monoxide, Incorporation by reference, Lead, Nitrogen dioxide, Ozone, Particulate matter, Sulfur oxides.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: July 23, 2018. Cosmo Servidio, Regional Administrator, Region III.
    [FR Doc. 2018-16375 Filed 7-30-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 52 [EPA-R10-OAR-2018-0238, FRL-9981-61—Region 10] Air Plan Approval; Oregon: Lane County Permitting and General Rule Revisions AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule.

    SUMMARY:

    The Environmental Protection Agency (EPA) proposes to approve, and incorporate by reference, specific changes to the Oregon State Implementation Plan as it applies in Lane County, Oregon. The local air agency in Lane County, Lane Regional Air Protection Agency, has revised its rules to align with recent changes to Oregon state regulations. The revisions, submitted on August 29, 2014 and March 27, 2018, are related to the criteria pollutants for which the EPA has established national ambient air quality standards—carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, and sulfur dioxide. The regulatory changes address federal particulate matter requirements, update the major and minor source pre-construction permitting programs, add state-level air quality designations, update public processes, and tighten emission standards for dust and smoke.

    DATES:

    Comments must be received on or before August 30, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID No. EPA-R10-OAR-2018-0238, at https://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information the disclosure of which is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    Kristin Hall at (206) 553-6357, or [email protected]

    SUPPLEMENTARY INFORMATION:

    Throughout this document, wherever “we,” “us,” or “our” is used, it is intended to refer to the EPA.

    Table of Contents I. Background II. Evaluation of Revisions A. Title 12: General Provisions and Definitions B. Title 13: General Duties and Powers of Board and Director C. Title 14: Rules of Practice and Procedures D. Title 29: Designation of Air Quality Areas E. Title 30: Incinerator Regulations F. Title 31: Public Participation G. Title 32: Emission Standards H. Title 33: Prohibited Practices and Control of Special Classes of Industry I. Title 34: Stationary Source Notification Requirements J. Title 35: Stationary Source Testing and Monitoring K. Title 36: Excess Emissions L. Title 37: Air Contaminant Discharge Permits M. Title 38: New Source Review N. Title 40: Air Quality Analysis Requirements O. Title 41: Emission Reduction Credits P. Title 42: Criteria for Establishing Plant Site Emission Limits Q. Title 48: Rules for Fugitive Emissions R. Title 50: Ambient Air Standards and PSD Increments S. Title 51: Air Pollution Emergencies III. Proposed Action A. Rules Approved and Incorporated by Reference B. Rules Approved but Not Incorporated by Reference C. Rules Removed D. Rules Deferred IV. Incorporation by Reference V. Oregon Notice Provision VI. Statutory and Executive Order Reviews I. Background

    Each state has a Clean Air Act (CAA) State Implementation Plan (SIP), containing the control measures and strategies used to attain and maintain the national ambient air quality standards (NAAQS) established for the criteria pollutants (carbon monoxide, lead, nitrogen dioxide, ozone, particulate matter, sulfur dioxide). The SIP contains such elements as air pollution control regulations, emission inventories, attainment demonstrations, and enforcement mechanisms. The SIP is a living compilation of these elements and is revised and updated by a state over time—to keep pace with federal requirements and to address changing air quality issues in that state.

    The Oregon Department of Environmental Quality (ODEQ) implements and enforces the Oregon SIP through rules set out in Chapter 340 of the Oregon Administrative Rules (OAR). Chapter 340 rules apply in all areas of the state, except where the Oregon Environmental Quality Commission (EQC) has designated a local agency as having primary jurisdiction.

    Lane Regional Air Protection Agency (LRAPA) has been designated by the EQC to implement and enforce state rules in Lane County, and also to adopt local rules that apply within Lane County. LRAPA may promulgate a local rule in lieu of a state rule provided: (1) It is as strict as the corresponding state rule; and (2) it has been submitted to and not disapproved by the EQC.1 This delegation of authority in the Oregon SIP is consistent with CAA section 110(a)(2)(E) requirements for state and local air agencies.

    1See OAR 340-200-0010(3), state effective April 16, 2015, codified at 40 CFR 52.1970.

    On August 29, 2014 and March 27, 2018, LRAPA and ODEQ submitted specific revisions to the Oregon SIP as it applies in Lane County. These changes align local rules with recently revised state rules, approved by the EPA on October 11, 2017 and incorporated by reference into the Code of Federal Regulations (CFR) at 40 CFR part 52, subpart MM (82 FR 47122). The changes address federal particulate matter requirements, revise the major and minor source pre-construction permitting programs, add state-level air quality designations, update public processes, and tighten emission standards for dust and smoke.

    We note that the March 27, 2018, revisions partially supersede the August 29, 2014, revisions. In this action, we are reviewing and taking action on the most recent version of the submitted rules applicable in Lane County, as described below. In describing our evaluation, we have focused on the substantive rule changes. We have not described typographical corrections, minor edits, and renumbering changes.

    II. Evaluation of Revisions A. Title 12: General Provisions and Definitions

    Title 12 in LRAPA's rules contains generally-applicable provisions and definitions used throughout Lane County air quality rules. The submitted revisions align the definitions in Section 12-005 with the definitions in state rules, recently reviewed and approved by the EPA.2 In this section of our evaluation, we discuss key changes to existing definitions and substantive new terms used in multiple titles. Terms used primarily in a single title are described in the discussion section for that particular title.

    2See OAR 340-200-0020, state effective April 16, 2015, and approved by the EPA on October 11, 2017 (82 FR 47122).

    Key definition changes include narrowing the definition of “adjacent” by limiting the use of this defined term (“interdependent facilities that are nearby to each other”) to the “major source” and “source” terms in LRAPA's program for air contaminant discharge permits. Definitions of the terms “capture efficiency,” “control efficiency,” “destruction efficiency,” and “removal efficiency” were added to differentiate amongst similar terms.

    LRAPA revised the term “categorically insignificant activities” to narrow when emissions may be excluded from consideration—in some aspects of source permitting—as “insignificant.” For example, there is a cap on the aggregate emissions from fuel burning equipment that may be considered categorically insignificant, and there is also a restriction on when emergency generators may be considered categorically insignificant (limiting the exemption to no more than 3,000 horsepower, in the aggregate). We note that LRAPA adopted a new category of insignificant emissions, as Oregon did, namely, fuel burning equipment brought on site for six months or less for construction, maintenance, or similar purposes, provided the equipment performs the same function as the permanent equipment, and is operated within the source's existing plant site emission limit. Importantly, however, insignificant activity emissions must be included in determining whether a source is a “federal major source” or a “major modification” subject to federal major new source review (federal major NSR).3 In addition, categorically insignificant activities must still comply with all applicable requirements.

    3 This includes both the prevention of significant deterioration (PSD) new source review permitting program that applies in attainment and unclassifiable areas (40 CFR 51.166) and the nonattainment major source new source review permitting program that applies in nonattainment areas (40 CFR 51.165).

    LRAPA revised definitions to consistently use certain terms, such as “construction,” “control device,” “federal major source,” “immediately,” “fugitive emissions,” “major modification,” “major source,” “PM10,” “PM2.5,” and “stationary source.” LRAPA added definitions to align with state rules, including “continuous compliance determination method,” “emergency,” “emission limitation,” “excursion,” “greenhouse gases,” “Indian governing body,” “Indian reservation,” “potential to emit,” and “synthetic minor source.” The term “internal combustion engine” was defined to clarify the universe of regulated fuel burning equipment under local rules.

    In the definition of “opacity,” LRAPA spelled out that visual opacity determinations are to be made using EPA Method 203B. Method 203B is designed for time-exception regulations, such as those that establish a limit on the average percent opacity for a period or periods aggregating more than three minutes in any one hour. There are a small number of LRAPA visible emissions standards that are not time-exception regulations, and in those cases, LRAPA rules specify a different test method, including, for example, EPA Method 9. All specified methods are included in the March 2015 version of the Oregon Source Sampling Manual, approved by the EPA on October 11, 2017, for purposes of the limits in the Oregon SIP (82 FR 47122). Please see our discussion of opacity standards and methods for visual opacity determinations in Section H. below.

    Consistent with the state definition, LRAPA defined the term “portable” as “designed and capable of being carried or moved from one location to another.” At the same time, the definition of “stationary source” was updated to include portable sources required to have permits under the air contaminant discharge permitting program at Title 37.

    LRAPA changed the definition of “modification” to differentiate it from the terms “major modification”, “permit modification”, and “title I modification”, and to make clear that it applies to a change in a portion of a source, as well as a source in its entirety. LRAPA also simplified the definition of “ozone precursor” to remove redundant language pointing to the reference method for measuring volatile organic compounds (VOCs). The term “VOC” was also updated to reflect changes to the federal definition of “VOC” at 40 CFR 51.100(s).

    LRAPA formally defined “wood fuel-fired device”, consistent with the definition in state rules. The term was added and defined as “a device or appliance designed for wood fuel combustion, including cordwood stoves, woodstoves, and fireplace stove inserts, fireplaces, wood fuel-fired cook stoves, pellet stoves and combination fuel furnaces and boilers that burn wood fuels.” The remainder of the new definitions established by LRAPA in Title 12 are common dictionary terms and are not discussed in this summary.

    We have evaluated these Title 12 definition changes, and the changes to definitions discussed in the sections below, and we propose to find that LRAPA's defined terms are consistent with CAA requirements and the EPA's implementing regulations. We therefore propose to approve the submitted definitions into the Oregon SIP for Lane County.

    Other Provisions

    The revisions also include general rules in Title 12 submitted to be consistent with state rules in Division 200. LRAPA revised Section 12-001 General to align with OAR 340-200-0010 Purpose and Application, including repealing the SIP-approved version of Section 12-001(2), state effective March 8, 1994, and renumbering the section paragraphs. Section 12-001(2) stated that “in cases of apparent conflict between rules and regulations within these titles, the most stringent regulation applies unless otherwise expressly stated,” and is appropriately removed from the SIP.

    Section 12-010 was added to spell out abbreviations and acronyms used throughout the Lane County air quality rules, consistent with OAR 340-200-0025. LRAPA also added Section 12-020 listing activities that are not subject to local air quality regulations, comparable to OAR 340-200-0030 and Oregon Revised Statutes (ORS) 468A-020. Section 12-020(2) makes clear, however, that the exceptions in subsection (1) do not apply to the extent such local air regulations are necessary to implement CAA requirements. We note that LRAPA added Section 12-025 identifying key reference materials, including the March 2015 version of the Oregon Source Sampling Manual, approved by the EPA into the Oregon SIP on October 11, 2017 (82 FR 47122). We propose to approve and incorporate by reference these changes to Title 12.

    Consistent with our recent action on OAR 340-200-0050, LRAPA did not submit Section 12-030 Compliance Schedules for approval into the SIP. Any compliance schedule established by LRAPA under this provision must be specifically submitted to, and approved by the EPA, before it will be federally-enforceable or change the requirements of the EPA-approved SIP.4

    4 40 CFR 51.102(a)(2) and (c) and 260; 82 FR 47122, October 11, 2017.

    B. Title 13: General Duties and Powers of Board and Director

    Title 13 sets out general authority to adopt, implement and enforce regulations in Lane County, including issuing permits. These general authority provisions were first approved into the Oregon SIP in 1993 (58 FR 47385, September 9, 1993). We note, that at the time of that original approval, the general authority provisions were located in Title 12, and were later renumbered to Title 13. These provisions contain long-standing requirements for make-up of the LRAPA Board and disclosures of potential conflicts of interest for board members and director, approved as meeting CAA state board requirements under section 128.5

    5 LRAPA Section 12-025, renumbered to Section 13-025; 58 FR 47385, September 9, 1993.

    We propose to find that the submitted updates to Title 13 remain consistent with CAA section 110 requirements for permit issuance, enforcement authority, state and local agencies, and state boards. In this action, we are proposing to approve Title 13 to the extent the provisions relate to the implementation of requirements in the SIP, but we note we are not incorporating these provisions by reference into 40 CFR part 52, subpart MM. These types of rules are generally not incorporated by reference into the CFR because they may conflict with the EPA's independent administrative and enforcement procedures under the CAA.

    C. Title 14: Rules of Practice and Procedures

    The submissions revise Title 14 to align with Oregon's SIP-approved state rules in Division 11. LRAPA's revisions follow the Oregon Attorney General Model Rules, as do the comparable Oregon rules, and address procedures for filing and serving documents in contested cases (appeals of LRAPA and ODEQ actions). Title 14 was revised to improve the clarity and completeness of contested case appeals coming before the LRAPA Board. This title provides authority needed to implement the SIP in Lane County, and is consistent with the CAA requirements for the issuance of permits and enforcement authority. The EPA therefore proposes to approve the submitted revisions to Title 14 Rules of Practice and Procedures, to the extent it relates to implementation of requirements contained in the Oregon SIP. We are not incorporating these rules by reference into the CFR, however, because we rely on the EPA's independent administrative and enforcement procedures under the CAA.

    D. Title 29: Designation of Air Quality Areas

    This division contains rules for the designation of air quality areas in Lane County. In Section 29-0010, LRAPA culled definitions to leave only those directly related to designated areas in Lane County, including Eugene-Springfield and Oakridge. Sections 29-0020, 0050, and 0060 were added to mirror state air quality region and prevention of significant deterioration area rules in OAR 340-204-0020, 0050, and 0060, respectively. Section 29-0030 addresses the two nonattainment areas in Lane County, namely the Oakridge Urban Growth Boundary (coarse particulate matter (PM10)) and the Oakridge Nonattainment Area (fine particulate matter (PM2.5)). In addition, LRAPA added Sections 29-0070 Special Control Areas, 29-0080 Motor Vehicle Inspection Boundary Designations, and 29-0090 Oxygenated Gasoline Control Areas, to correspond to state rule sections OAR 340-204-0070, 0080, and 0090, respectively.

    A significant change in this title is the introduction of three concepts: “sustainment areas,” “reattainment areas,” and “priority” sources.6 Both sustainment and reattainment areas are state-level designations designed to add to federal requirements. We note that LRAPA and Oregon have both implemented a state-level designation in the past—specifically, the maintenance area designation. Following Oregon's lead, LRAPA is now defining two added state designations intended to help areas address air quality problems by further regulating emission increases from major and minor sources.

    6See Sections 29-0300 through 0320 and the corresponding state provisions at OAR 340-204-0300 through 0320.

    To designate an area as sustainment or reattainment, the LRAPA rule revisions create a similar process as was used in the past to designate a maintenance area. The process includes public notice, a rule change, and approval by the LRAPA Board. Oregon and LRAPA designed the new designations and associated requirements with the stated intent to help solve air quality issues while not changing attainment planning requirements or federal requirements for major stationary sources.

    The sustainment area designation is designed to apply to an area where monitored values exceed, or have the potential to exceed, ambient air quality standards, but which has not been formally designated nonattainment by the EPA.7 To construct or modify a major or minor source in a sustainment area, the owner or operator may need to offset new emissions with reductions from other sources, including the option of targeting “priority” sources, in that area. Priority sources are defined as sources causing or contributing to elevated emissions levels in the area. This is determined using local airshed information, such as emissions inventories and modeling results. A new major or minor stationary source seeking to construct in a sustainment area may obtain more favorable offsets from priority sources.

    7 As codified at 40 CFR part 81.

    The reattainment area designation is designed to apply to an area that is formally designated nonattainment by the EPA, but that has achieved three years of quality-assured/quality-controlled monitoring data showing the area is attaining the relevant standard.8 When an area has met attainment planning requirements and has attained the standard, the CAA requires that a state submit, and the EPA approve, a maintenance plan demonstrating attainment for the next ten years. The state may then request that the EPA redesignate the area to attainment. In the interim, LRAPA may designate the area a reattainment area. The submitted rules require that all elements of the area's attainment plan continue to apply with a reattainment designation. However, minor sources will be subject to less stringent state new source review permitting requirements—unless the source has been specifically identified as a significant contributor to air quality problems in the area, or the source has control requirements that are relied on as part of the attainment plan. The federal requirements for redesignation remain in place and are unchanged.

    8See Section 29-0310.

    In the submissions, LRAPA included the Oakridge area as a state-designated reattainment area with respect to PM2.5.9 We note that at the federal level, the EPA has approved the Oakridge PM2.5 attainment plan, determined the Oakridge area attained the 2006 24-hour PM2.5 NAAQS by the applicable attainment date, and achieved clean data for the most recent three years of valid, certified monitoring data (83 FR 5537, February 8, 2017). However, the Oakridge area remains a federal nonattainment area for the 2006 24-hour PM2.5 NAAQS until LRAPA and Oregon submit a maintenance plan to the EPA to ensure the area can continue to meet the standard for the next 10 years, and the EPA approves the maintenance plan and redesignates the Oakridge area to attainment.10 We propose to determine that designation of the Oakridge area as a state reattainment area does not change federal requirements for the area, and that the Oakridge PM2.5 attainment plan remains in effect.

    9See Section 29-0310(2)(a).

    10See 40 FR 81.338.

    We propose to approve these revisions to Title 29 because the submitted rules for state-level designations are consistent with CAA requirements and the EPA's implementing regulations for attainment planning and major source pre-construction permitting. The related changes to LRAPA's major and minor source permitting program—and our evaluation of those changes—are discussed in detail in Section M. below.

    E. Title 30: Incinerator Regulations

    The submissions made changes to LRAPA's incinerator regulations consistent with those in state rule at Division 230. Most changes were minor; however, a significant change was made to tighten limits and clarify the appropriate method of compliance for crematory incinerators. Consistent with our previous action on August 3, 2001, we propose to approve the revisions to Title 30, except as those rules relate to hazardous air pollutants and odors that are not also criteria pollutants or precursors (66 FR 40616).

    F. Title 31: Public Participation

    Title 31 governs public participation in the review of proposed permit actions. This title corresponds to Division 209 in state rules. LRAPA submitted this title for SIP approval, consistent with recent changes to Oregon's public participation rules. Title 31 provides four different levels of public process, depending on the type of permitting action, with Category I having the least amount of public notice and opportunities for public participation, and Category IV having the most. The majority of new source review permitting actions are subject to category III, for which LRAPA provides public notice and an opportunity for a hearing at a reasonable time and place if requested, or if LRAPA otherwise determines a public hearing is necessary. Category IV public process apply to major new source review permitting actions, and LRAPA provides an informational meeting before issuing a draft permit for public review and comment.

    LRAPA has aligned the requirements for informational meetings with state rules in Division 209, to provide at least a 14-day public notice, before the scheduled informational meeting. The submitted rules also make clear that although LRAPA accepts, and will consider, comments from the public during the informational meeting, LRAPA does not maintain an official record of the informational meeting, or respond in writing to comments provided at the informational meeting. This same approach to informational meetings in state rules was approved by the EPA into the Oregon SIP on October 11, 2017 (82 FR 47122).

    The submissions also addressed public participation requirements for permitting in state-designated sustainment and reattainment areas, detailed the option of email notification, and identified where public comment records are made available for review. Hearing procedures, laid out at Section 31-0070, correlate with hearing provisions at OAR 340-209-0070. We propose to approve the hearing procedures, but not incorporate them by reference, to avoid confusion or potential conflict with the EPA's independent authorities.

    In sum, we have concluded that the submitted LRAPA public participation rules are consistent with the CAA and federal requirements for public notice of new source review actions in 40 CFR 51.161 Public availability of information, 40 CFR 51.165 Permit requirements, and 40 CFR 51.166 Prevention of significant deterioration of air quality, and we propose to approve them.

    G. Title 32: Emission Standards

    This title contains emission standards and provisions of general applicability, including requirements for highest and best practicable treatment and control, operating and maintenance, typically achievable control technology, additional requirements imposed on a permit by permit basis, particulate emission limits for process equipment and other sources (other than fuel or refuse burning equipment or fugitive emissions), and alternative emission limits (bubbles).

    LRAPA made changes to Section 32-001 to clarify what definitions apply to this section (those in Titles 12 and 29) in addition to more specific definitions for “distillate fuel oil” and “residual fuel oil.” In Section 32-007, LRAPA clarified that pressure drop and ammonia slip are operational, maintenance, and work practice requirements that may be established in a permit condition or notice of construction approval. Section 32-008 Typically Achievable Control Technology was also updated by moving procedural requirements from the definitions section to this section, and revising them to account for Oregon's changes to NSR, Major NSR and Type A State NSR, discussed below in Section M.

    Notably, LRAPA retained its general, SIP-approved visible emission standards in the form of an aggregate exception of three minutes in a 60-minute period. Three-minute aggregate periods are to be measured by EPA Method 203B, a continuous opacity monitoring system, or an alternative monitoring method approved by LRAPA and that has been determined by the EPA to be equivalent to Method 203B. While LRAPA's form and method for evaluating visible emissions from sources are different than those in Oregon's corresponding SIP-approved rules (OAR 340-208-0110 was recently revised to a 6-minute block average as measured by EPA Method 9), both forms and their associated test methods are equally-valid means to measure opacity and determine compliance with standards.11

    11 The EPA approved OAR 340-208-0110, state effective April 16, 2015 on October 11, 2017 (82 FR 47122).

    LRAPA also made changes to phase in tighter visible emission limits granted to wood-fired boilers in operation before 1970. These sources are required to meet a 40% visible emission limit. However, starting in 2020, these sources must meet a 20% visible emissions limit, except for certain, limited situations where a boiler-specific, short-term limit may be established in a source's operating permit, if appropriate and allowed under the SIP-approved permitting program.

    Notably, LRAPA revised particulate emission limits under Section 32-015 to reduce emissions from certain non-fuel-burning sources built before June 1970. The rules in this section phase in tighter standards for older sources, generally tightening grain loading standards for existing sources from 0.2 grains per dry standard cubic foot (gr/dscf) to between 0.10 and 0.15 gr/dscf, depending on whether there is existing source test data for the source, and what that data shows. Timelines to achieve these rates depend on whether sources were built before or after June 1, 1970. Existing sources that operate equipment less frequently (less than 867 hours a year) must meet less stringent standards. For new sources, LRAPA has increased the stringency of the grain loading standard by adding a significant digit, revising the standard from 0.1 gr/dscf to 0.10 gr/dscf. Compliance with the grain loading standards is determined using test methods specifically identified in the March 2015 version of the Oregon Source Testing Manual, approved on October 11, 2017 (82 FR 47122).

    LRAPA also tightened grain loading standards for fuel burning equipment (Sections 32-020 and 025) in the same manner as described above. Process weight provisions in Section 32-045 were aligned with state rules, and the listing of process weight limitations was moved to Section 32-8010. Sulfur content of fuels and sulfur dioxide emission limits in Section 32-065 were also updated by removing a coal space-heating exemption that expired in 1983, and clarifying that recovery furnaces are regulated in Title 33.

    We propose to approve the revisions to Title 32 because they are consistent with the CAA and strengthen the SIP. We note we are taking no action on Sections 32-050, and 32-055 because they are nuisance provisions related to concealment and masking of emissions and particle fallout. We are also taking no action on the acid rain provision in Section 32-075. These types of provisions are generally not appropriate for SIP approval because they are not related to attainment and maintenance of the NAAQS under CAA section 110 and the SIP.

    H. Title 33: Prohibited Practices and Control of Special Classes of Industry

    Title 33 establishes controls on specific sectors, including board products facilities, charcoal plants, Kraft pulp mills, and hot mix asphalt plants. LRAPA clarified that Title 12 definitions apply to this section, except where specific definitions are established in Title 33. Throughout this title, LRAPA removed open burning provisions made obsolete now that LRAPA limits open burning through regulations established in Title 47, most recently approved by the EPA on October 23, 2015 (80 FR 64346).

    In Section 33-060, LRAPA made changes to improve the enforceability of opacity limits on veneer dryers and hardboard manufacturing operations. Section 33-070 was updated to ensure local rules for Kraft pulp mills are as stringent as the state equivalent. LRAPA also revised what was formerly referred to as “replacement or significant upgrading” of equipment for purposes of determining whether more restrictive standards apply. Alternative temperatures for hardboard tempering ovens must be approved using the procedures in the federal NESHAP for Plywood and Composite Wood Products, 40 CFR part 63, subpart DDDD. LRAPA added source test methods for particulate matter and demonstrations of oxygen concentrations in recovery furnace and lime kiln gases. Under the reporting section, LRAPA removed the alternative sampling option where transmissometers are not feasible because all pulp mills in Oregon now have transmissometers. Minor changes were made under a provision in this section authorizing LRAPA to determine that upset conditions at a subject source are chronic and correctable by the installation of new or modified process or control equipment, and the establishment of a program and schedule to effectively eliminate the deficiencies causing the upset conditions. This provision is consistent with the corresponding state provision at OAR 340-234-0270.12

    12See EPA proposed approval of OAR 340-234-0270, state effective April 16, 2015 (March 22, 2017, 82 FR 14654 at page 14667).

    LRAPA revised Section 33-075 Hot Mix Asphalt Plants to specify the appropriate test method to determine compliance. In addition, LRAPA added a requirement that hot mix asphalt plants must develop a fugitive emissions control plan if requested.

    Except for the requirements relating to total reduced sulfur, odor, and reduction of animal matter, we propose to approve the submitted changes to Title 33 because they strengthen the SIP and are consistent with CAA requirements. Total reduced sulfur, odor, and reduction of animal matter requirements are not appropriate for SIP approval because they are not criteria pollutants, not related to the criteria pollutants regulated under title I of the CAA, not essential for meeting and maintaining the NAAQS, nor related to the requirements for SIPs under section 110 of the CAA. We are therefore excluding from the SIP the following parts of Section 33-070: The definitions of “Other sources” and “Total Reduced Sulfur (TRS)” in paragraph (1), and paragraphs (3)(a), (4)(b), (5)(b), (6)(a), and (6)(b); and Section 33-080 Reduction of Animal Matter.

    I. Title 34: Stationary Source Notification Requirements

    Title 34 contains a registration program for sources not subject to one of LRAPA's operating permit programs, as well as some of the requirements for the construction of new and modified sources. In Section 34-010, LRAPA broadened the applicability of this title, as Oregon did in Division 210, so that it applies to “air contaminant sources” and to “modifications of existing portable sources that are required to have permits under title 37”, in addition to stationary sources. Sections 34-016 and 34-017 were added for recordkeeping and reporting, and enforcement, respectively.13 LRAPA also added a new section for general source registration requirements and detailed the information an owner or operator must submit to register and re-register. Sections 34-034, 035, and 036 were added to clarify when a Notice of Construction application is required, how the construction/modification is categorized for purposes of process and public review, and what to include in a notice to construct.

    13See OAR 340-214-0114, and OAR 340-214-0120.

    LRAPA added Sections 34-037 and 038 to spell out when sources may proceed with construction or modification, and that construction approval does not mean approval to operate the source, unless the source is not required to obtain an ACDP under Title 37.

    We propose to approve the revisions to Title 34 because we have determined they are consistent with CAA requirements and correct or clarify existing source notification requirements to help ensure that changes to sources go through the appropriate approval process. We note that Section 34-170 through 200 are not appropriate for SIP approval because they are related to title V of the CAA, not title I and the SIP.

    J. Title 35: Stationary Source Testing and Monitoring

    This title contains general requirements for source testing and monitoring. Title 35 was recently established to correlate closely with state provisions in Division 212. LRAPA clarified the term “stationary source” to include portable sources that require permits under Title 37. This change is consistent with the term as used in other titles. LRAPA also clarified, with respect to stack height and dispersion technique requirements, the procedures referenced in 40 CFR 51.164 are the major and minor NSR review procedures used in Oregon, as applicable.

    Section 35-0140 sets forth test methods, and requires that sampling, testing, or measurements performed pursuant to this title conform to the methods in Oregon's March 2015 revised versions of the Source Sampling Manual, Volumes I and II, and Continuous Monitoring Manual. The revised manuals were approved by the EPA into the Oregon SIP on October 11, 2017 (82 FR 47122). In that action we concluded that the revised manuals are consistent with the EPA's monitoring requirements for criteria pollutants and we approved them for the purpose of the limits approved into the SIP.

    We note that the submitted provisions in Section 35-0200 through 0280 are related to compliance assurance monitoring, and are not appropriate for SIP approval. The specified rules apply to title V sources only and implement the requirements of 40 CFR parts 64 and 70. We are taking no action on these rules because they are not appropriate for SIP approval under section 110 of title I of the CAA.

    K. Title 36: Excess Emissions

    LRAPA made several revisions to the excess emissions and emergency provision requirements in Title 36 and submitted them for approval into the SIP. We are deferring action on the Title 36 revisions. We intend to address the submitted provisions of Title 36 in a separate, future action.

    L. Title 37: Air Contaminant Discharge Permits

    The Air Contaminant Discharge Permit (ACDP) program is both the federally-enforceable non-title V state operating permit program, and also the administrative mechanism used to implement the notice of construction and new source review programs. There are six types of ACDPs under state and LRAPA rules: Construction, General, Short Term Activity, Basic, Simple, and Standard. The types of ACDPs have not changed, but LRAPA has made some changes and clarifications to the criteria and requirements for the various ACDPs. LRAPA also revised application requirements to set application renewal deadlines, and to clarify the required contents of applications.

    The applicability rules at Section 37-0020 reference the table of applicability criteria for the types of permits in Section 37-8010 Table 1. The associated fees are listed at Section 37-8020 Table 2. These sections are consistent with OAR 340-216-8010 Table 1 and OAR 216-8020 Table 2, respectively, including the type of ACDP (Basic, General, Simple, or Standard) each source category is required to obtain prior to construction and operation. Overall, the list of sources required to obtain Basic, General, Simple, or Standard ACDPs was slightly expanded, with one exception. LRAPA removed the requirement that greenhouse gas-only sources obtain a Standard ACDP, and pay the associated permitting fees, consistent with the federal court decision described below in Section M.

    For Construction ACDPs at Section 37-0052, LRAPA added a qualifier to the rule that construction commence within 18 months after the permit is issued. This deadline now applies only if a source is subject to federal major NSR and certain state major NSR permitting, which we have discussed in more detail below. LRAPA also added language to the public notice requirements for a modified Construction ACDP, making clear when public notice as a Category I permit action is appropriate, as opposed to a Category II permit action under Title 31. Although the construction permit itself expires, the requirements remain in effect and must be added to the subsequent operating permit.14

    14See Section 37-0082.

    General ACDP requirements at Section 37-0060 were updated to refer to the appropriate public notice procedures, reference the fee class for specific source categories, and confirm the procedures that will be used to rescind a source's General ACDP, if the source no longer qualifies and must obtain a Simple or Standard ACDP instead. LRAPA also changed the rule section to make clear that the agency may rescind an individual source's assignment to a General Permit. When notified, the source has 60 days to submit an application for a Simple or Standard ACDP. General ACDP Attachments, Section 37-0062, was updated to clarify public notice requirements and fees.

    For Simple ACDPs, it is now clear that LRAPA may determine a source ineligible for a Simple ACDP with generic emission limits, and instead, require the source obtain a Standard ACDP with source-specific emission limits, as necessary. LRAPA also clarified the public notice requirements and fees for Simple ACDPs and removed redundant requirements from the section that are also in Section 37-0020.

    The requirements at Section 37-0066 were updated to lay out the different application requirements for sources seeking a Standard ACDP permit when they are subject to federal major versus minor NSR. LRAPA also changed this section to allow sources with multiple activities or processes at a single site, covered by more than one General ACDP or that has multiple processes, to obtain a Standard ACDP.

    For processing permits, LRAPA's provision at Section 37-0082 now expressly provide that sources with expired ACDP permits may continue operating under the expired permit if they have submitted a timely and complete renewal application. Sources may also request a contested case hearing, if LRAPA revokes a permit or denies a permit renewal. We have determined in our review that LRAPA's Title 37 provisions are consistent with the Division 216 rule sections recently approved by the EPA on October 11, 2017 (82 FR 47122). Therefore, we find Title 37 is consistent with CAA requirements and propose to approve the submitted provisions.

    M. Title 38: New Source Review

    Parts C and D of title I of the CAA, 42 U.S.C. 7470-7515, set forth preconstruction review and permitting program requirements that apply to new and modified major stationary sources of air pollutants, known as major new source review (major NSR). The CAA major NSR programs include a combination of air quality planning and air pollution control technology program requirements. States adopt major NSR programs as part of their SIP. Part C is the Prevention of Significant Deterioration (PSD) program, which applies in areas that meet the NAAQS (attainment areas), as well as in areas for which there is insufficient information to determine whether the area meets the NAAQS (unclassifiable areas). Part D is the nonattainment new source review (nonattainment NSR) program, which applies in areas that are not in attainment of the NAAQS (nonattainment areas).

    The EPA regulations for SIPs implementing these programs are contained in 40 CFR 51.165 and 51.166, and appendix S to part 51. Regulations addressing the EPA's minor new source review (NSR) requirements are located at 40 CFR 51.160 through 164. We note that states generally have more flexibility in designing minor NSR programs. Minor NSR programs, however, must still ensure that emissions from the construction or modification of a facility, building, structure, or installation (or any combination thereof) will not interfere with attainment and maintenance of the NAAQS, or violate an applicable portion of a control strategy approved into the SIP.

    Oregon and LRAPA's major NSR program has long differed from the federal major NSR programs in several respects. The program does not subject the same sources and modifications to major NSR as would the EPA's rules. It also has had lower major source thresholds for sources in nonattainment and maintenance areas. The program requires fugitive emissions to be included in applicability determinations for all new major sources and modifications to existing major sources. However, Oregon and LRAPA also utilize a Plant Site Emission Limit, or “PSEL,” approach to defining “major” modifications, rather than the contemporaneous net emissions increase approach used in the EPA's main major NSR program (not the EPA's plant-wide applicability limit (PAL) option). The EPA has previously determined that, overall, the major NSR program in Oregon is at least as stringent as the EPA's major NSR program and meets the requirements of 40 CFR 51.165 and 51.166.15

    15See 76 FR 80747, 80748 (December 27, 2011) (final action); 76 FR 59090, 59094 (Sept. 23, 2011) (proposed action).

    Under the previous SIP-approved program, both federal major sources and large minor sources have been covered by Title 38. The submitted changes to Title 38 revise this approach and establish distinct components within Title 38, referred to as Major New Source Review (LRAPA Major NSR—Sections 38-0045 through 0070) and State New Source Review (State NSR—Sections 38-0245 through 0270) to help clarify the requirements that apply to federal major sources and large minor sources. Pre-construction review and permitting of other minor sources continue to be covered in Title 34 Stationary Source Notification Requirements, Title 37 Air Contaminant Discharge Permits, and Title 42 Plant Site Emission Limits.

    As discussed above, Oregon and LRAPA have created two new state designations. “Sustainment” areas are state-designated areas that are violating or close to violating the NAAQS but which are not formally designated nonattainment by the EPA. “Reattainment” areas are state-designated areas that have been designated nonattainment by the EPA, but that have achieved improved air quality, and data shows the area is attaining the NAAQS. Key changes to the LRAPA Major NSR and State NSR programs are discussed below.

    Section 38-0010 Applicability, General Prohibitions, General Requirements, and Jurisdiction

    LRAPA has narrowed the scope of sources that are subject to LRAPA Major NSR in nonattainment and maintenance areas by increasing the thresholds, from the significant emission rate (SER) to the major source thresholds in the CAA specified for the current nonattainment areas in Lane County.16 At the same time, LRAPA's State NSR requirements under Title 38 apply to the construction of new sources with emissions of a regulated air pollutant at or above the SER, as well as increases in emissions of a regulated pollutant from existing sources that equal or exceed the SER over the netting basis. This is consistent with Oregon's rules in Division 224.

    16See Title 12.

    LRAPA has divided the State NSR program into two parts: Type A, which generally applies in nonattainment, reattainment, and maintenance areas, and Type B, for attainment, unclassifiable, and sustainment areas. Sources subject to Type A State NSR remain subject to many of the same requirements that apply to such sources under the current SIP-approved program in nonattainment 17 and maintenance areas, whereas sources subject to Type B State NSR are subject to requirements equivalent to the minor NSR requirements under the PSEL rules in the current SIP.18 Because LRAPA's changes to the definition of “federal major source” in nonattainment areas are consistent with the federal definition of “major stationary source” at 40 CFR 51.165 for the designated areas in Lane County, and because LRAPA has retained most of the characteristics of the previous Major NSR permitting program for Type A State NSR, the EPA proposes to approve these revisions.

    17 Key changes are discussed below in the discussion of State NSR.

    18 Sources in sustainment areas subject to Section 38-0245(2) are also subject to Type A NSR.

    LRAPA also made revisions here, and in several other places in its rules, to be consistent with changes to the federal PSD rules made in response to a Supreme Court decision on greenhouse gases (May 7, 2015, 80 FR 26183).19 Specifically, LRAPA revised definitions and procedures in Titles 12, 36, 37, 38, and 42 to remove greenhouse gas-only sources from PSD applicability. Therefore, as required by the federal PSD program, a source is now subject to the LRAPA Major NSR requirements for greenhouse gases in attainment and unclassifiable areas only when the source is subject to LRAPA Major NSR requirements anyway, for one or more criteria pollutants. As specified in the federal PSD regulations, LRAPA's rules continue to require that sources of greenhouse gases subject to LRAPA Major NSR in attainment and unclassifiable areas for a criteria pollutant, are also subject to LRAPA Major NSR for greenhouse gases.

    19Utility Air Regulatory Group v. Environmental Protection Agency, 134 S.Ct. 2427 (2014).

    LRAPA also made clear in this section that a source is subject to Title 38 requirements for the designated area in which the source is located—for each regulated pollutant, including precursors. Finally, revisions clarify that a subject source must not begin actual construction, continue construction, or operate without complying with the requirements of Title 38 and obtaining an ACDP permit authorizing construction or operation.

    Section 38-0025 Major Modification

    LRAPA moved the definition of “major modification” from Title 12 to Title 38, to reflect that the former definition was really a procedure for determining whether a major modification has, or will occur, rather than a true definition. The revised definition and procedure are intended to better explain how emissions increases and decreases are tracked and factored into calculations for major modifications.

    LRAPA also specified that emissions from categorically insignificant activities, aggregate insignificant emissions, and fugitive emissions must be included in determining whether a major modification has occurred. In addition, LRAPA clarified that major modifications for ozone precursors, or PM2.5 precursors, also constitute major modifications for ozone and PM2.5, respectively. Finally, language was added stating that the PSEL, netting basis, and emissions changes must be recalculated when more accurate or reliable emissions information becomes available, to determine whether a major modification has occurred.

    Section 38-0030 New Source Review Procedural Requirements

    LRAPA revised this section to account for differing LRAPA Major NSR and State NSR procedures. Included are: When LRAPA will determine whether an application is complete; when a final determination will be made; when construction is permitted; how to revise a permit and extend it; and when and how LRAPA will terminate an NSR permit.

    With respect to the provision in the federal PSD regulations authorizing extensions to the 18-month construction time limitation in 40 CFR 52.21(r)(2) “upon a satisfactory showing that an extension is justified,” LRAPA revised its extension provisions to be consistent with recent EPA guidance. This guidance sets out the EPA's views on what constitutes an adequate justification for an extension of the 18-month timeframe under 40 CFR 52.21(r)(2) for commencing construction of a source that has been issued a PSD permit.20 LRAPA also extended the time period for making a final determination on an LRAPA Major NSR or Type A State NSR permit from six months to one year, to reflect the more complex nature of such permitting actions. The one-year time-frame for permit issuance is consistent with the EPA's requirements for major NSR permitting.21

    20 Memorandum from Stephen D. Page, Director of EPA's Office of Air Quality Planning and Standards, to Regional Air Division Directors, Region 1-10, entitled Guidance on Extension of Prevention of Significant Deterioration (PSD) Permits under 40 CFR 52.21(r)(2), dated January 31, 2014.

    21See 40 CFR 52.21(q)(2).

    Section 38-0038 Fugitive and Secondary Emissions

    This section was moved and amended to account for State NSR requirements. For sources subject to LRAPA Major NSR and Type A State NSR, fugitive emissions are included in the calculation of emission rates and subject to the same controls and analyses required for emissions from identifiable stacks or vents. Secondary emissions are not included in potential to emit calculations for LRAPA Major NSR or Type A State NSR, but once a source is subject to LRAPA Major NSR or Type A State NSR, secondary emissions must be considered in the required air quality impact analysis in Titles 38 and 40.

    Sections 38-0045 Through 0070 Major NSR

    LRAPA has made changes consistent with Oregon's corresponding rules and has specified LRAPA Major NSR requirements for each of the following designations: Sustainment, nonattainment, reattainment, maintenance, and attainment/unclassifiable.

    Major NSR in Sustainment Areas

    New sources and modifications subject to LRAPA Major NSR in sustainment areas (areas that are classified as attainment/unclassifiable by the EPA but have air quality either violating the NAAQS or just below the NAAQS) must meet PSD requirements for each sustainment pollutant, but must also satisfy additional requirements for obtaining offsets and demonstrating a net air quality benefit to address the air quality problems in the area, as discussed in more detail below. Because such areas are designated as attainment/unclassifiable by the EPA, requiring compliance with LRAPA's PSD requirements meets federal requirements. The additional requirements for obtaining offsets and demonstrating a net air quality benefit go beyond CAA requirements for attainment/classifiable areas and are thus approvable.

    Major NSR in Nonattainment Areas

    For new sources and modifications subject to LRAPA Major NSR in nonattainment areas, LRAPA reorganized and clarified the requirements, aligning with state rules, including that they apply for each pollutant for which the area is designated nonattainment. Lowest Achievable Emission Rate (LAER) and offsets continue to be required for such sources and modifications. In addition, LRAPA's submitted revisions tighten offsets required in nonattainment areas (except with respect to ozone). LRAPA rules now initially require 1.2:1 offsets to emissions in non-ozone areas. If offsets are obtained from priority sources, the ratio may be reduced to 1:1, equivalent to the federal requirement in 40 CFR 51.165(a)(9)(i).

    The submitted changes also tighten requirements for sources seeking construction permit extensions, and limit extension requests to two 18-month periods, with certain additional review and re-evaluation steps. We note that, beyond the federal rules, the rules applicable in Lane County extend best available control technology (BACT) and offset requirements to new and modified minor sources in nonattainment areas.

    Major NSR in Reattainment Areas

    In reattainment areas (areas meeting the NAAQS but not yet redesignated to attainment), new sources and modifications subject to LRAPA Major NSR must continue to meet all nonattainment LRAPA Major NSR requirements for the reattainment pollutant. In addition, to ensure air quality does not again deteriorate, LRAPA requires that sources subject to LRAPA Major NSR also meet other requirements for each reattainment pollutant. Specifically, the owner or operator of the source must demonstrate the source will not cause or contribute to a new violation of the ambient air quality standard, or PSD increment, by conducting an air quality analysis as outlined in Title 40.

    Major NSR in Maintenance Areas

    In maintenance areas, new sources and modifications subject to LRAPA Major NSR must continue to comply with LRAPA Major NSR requirements for attainment/unclassifiable areas (i.e., PSD), and also conduct a demonstration or obtain allowances to ensure a net air quality benefit in the area. Rather than setting out the specific PSD requirements in this section, however, this section simply references the PSD requirements at Section 38-0070.

    Major NSR in Attainment/Unclassifiable Areas (PSD)

    For the construction of new sources and modifications subject to LRAPA Major NSR in attainment or unclassifiable areas, LRAPA revised its rules to address court decisions impacting federal PSD rules. First, as discussed above, LRAPA revised definitions and procedures in Titles 12, 36, 37, 38, and 42 to remove greenhouse gas-only sources from PSD applicability. Therefore, as required under the EPA's federal PSD program, a source is now subject to the LRAPA Major NSR requirements for greenhouse gases only when the source also is subject to LRAPA PSD requirements for one or more criteria pollutants.

    Second, LRAPA revised its requirements for preconstruction monitoring to address another court decision and the resulting revisions to the EPA's PSD rules. On October 20, 2010, the EPA promulgated the 2010 PSD PM2.5 Implementation Rule, revising the federal significant monitoring concentration (SMC) and significant impact levels (SILs) for PM2.5 (75 FR 64864). On January 22, 2013, the U.S. Court of Appeals for the District of Columbia, in Sierra Club v. EPA, 22 issued a judgment that, among other things, vacated the provisions adding the PM2.5 SMC to the federal regulations at 40 CFR 51.166(i)(5)(i)(c) and 52.21(i)(5)(i)(c). In its decision, the court held that the EPA did not have the authority to use SMCs to exempt permit applicants from the statutory requirement in CAA section 165(e)(2) that ambient monitoring data for PM2.5 be included in all PSD permit applications. Although the PM2.5 SMC was not a required element, where a state program contained an SMC and applied it to allow new permits without requiring ambient PM2.5 monitoring data, the provision would be inconsistent with the court's opinion and CAA section 165(e)(2).

    22 703 F.3d 458 (D.C. Cir. 2013).

    At the EPA's request, the decision also vacated and remanded the portions of the 2010 PSD PM2.5 Implementation Rule that revised 40 CFR 51.166 and 40 CFR 52.21 related to SILs for PM2.5. The EPA requested this vacatur and remand of two of the three provisions in the EPA regulations that contain SILs for PM2.5 because the wording of these two SIL provisions (40 CFR 51.166(k)(2) and 40 CFR 52.21(k)(2)) was inconsistent with the explanation of when and how SILs should be used by permitting authorities, that we provided in the preamble to the Federal Register publication when we promulgated these provisions. Specifically, the EPA erred because the language promulgated in 2010 did not provide permitting authorities the discretion to require a cumulative impact analysis notwithstanding that the source's impact is below the SIL, where there is information that shows the proposed source would lead to a violation of the NAAQS or increments. The third SIL provision (40 CFR 51.165(b)(2)) was not vacated and remains in effect. On December 9, 2013, the EPA removed the vacated PM2.5 SILs and SMC provisions from federal PSD regulations (78 FR 73698). On April 17, 2018, the EPA issued guidance to states on recommended PM2.5 (and ozone) SILs.23 As stated in this guidance, the EPA intends to use information yielded from application of this guidance by permitting authorities to determine whether a future rulemaking to codify SILs is appropriate.

    23 Memorandum from Peter Tsirigotis, Director of EPA's Office of Air Quality Planning and Standards, to Regional Air Division Directors, Region 1-10, entitled Guidance on Significant Impact Levels for Ozone and Fine Particles in the Prevention of Significant Deterioration Permitting Program, dated April 17, 2018.

    In response to the vacatur and remand, LRAPA submitted revisions to several titles. LRAPA revised the PM2.5 SMC to zero, as the EPA did, to address this issue in the federal PSD regulations. LRAPA also revised the definition of “significant impact levels” or “SIL” in state rules, removed the vacated language and added text to make clear that “no source may cause or contribute to a new violation of an ambient air quality standard or PSD increment even if the single source impact is less than the significant impact level.” We propose to approve LRAPA's revisions as consistent with the court decision.

    LRAPA also aligned local rules with state rules to remove language allowing the substitution of post-construction monitoring for preconstruction monitoring. LRAPA added an exemption from the preconstruction ambient air monitoring requirement, with LRAPA's approval, if representative or conservative background concentration data is available, and the source demonstrates that such data is adequate to determine that the source would not cause or contribute to a violation of an ambient air quality standard or any applicable PSD increment. These revisions, along with the other existing provisions regarding preconstruction monitoring in LRAPA's PSD regulations, are consistent with 40 CFR 51.166(m)(iii) and therefore we propose to approve them.

    Finally, LRAPA added the requirement to demonstrate a net air quality benefit for subject sources that will have a significant impact on air quality in a designated area other than the area in which the source is located. This demonstration of net air quality benefit is beyond federal PSD requirements, and will be discussed in more detail below.

    Sections 38-0245 Through 0270 State NSR

    Title 38 now also specifies State NSR requirements for sustainment, nonattainment, reattainment, maintenance, and attainment/unclassifiable areas. For sources that emit between the SER and 100 tons per year in nonattainment and maintenance areas (Type A State NSR sources), LRAPA has relaxed some of the requirements, as compared to the current SIP, that historically went beyond federal requirements. In nonattainment areas, if the increase in emissions from the source is the result of a major modification,24 BACT rather than LAER is now required. In maintenance areas, Type A State NSR sources are no longer required to conduct preconstruction monitoring to support the ambient air impact analysis for the source.

    24 Oregon and LRAPA use the term “major modification” for physical and operational changes that result in significant increases to both existing major and existing minor sources.

    In both nonattainment and maintenance areas, LRAPA's State NSR rules allow a reduction of the offset ratio if some of the offsets come from sources that are contributing to air quality problems in the area (which historically have been woodstoves). As we found in our 2017 action on the Oregon SIP, the State NSR requirements in sustainment and reattainment areas go beyond CAA requirements for minor NSR programs by requiring a demonstration of a net air quality benefit (discussed below).25 (October 11, 2017, 82 FR 47122).

    25 October 11, 2017, 82 FR 47122.

    Because BACT, LAER, pre-construction monitoring, and offsets are not required components of a State's SIP-approved minor NSR program, and because the offset requirements now provide sources with incentives to obtain offsets from sources found to be specifically contributing to air quality problems in the area, we propose to find that LRAPA's minor NSR program continues to meet CAA requirements for approval.

    Sections 38-0500 Through 0540 Net Air Quality Benefit Emission Offsets

    The CAA requires that, for nonattainment NSR, the proposed major source or major modifications must obtain emissions reductions of the affected nonattainment pollutant from the same source or other sources in the area to offset the proposed emissions increase.26 Consistent with that requirement, the EPA's nonattainment NSR regulations require that major sources and major modifications in nonattainment areas obtain emissions offsets at a ratio of at least 1 to 1 (1:1) from existing sources in the area to offset emissions from the new or modified source.27

    26See CAA section 173(c).

    27See 40 CFR 51.165(a)(9)(i).

    LRAPA revised the criteria for demonstrating a net air quality benefit, in line with Oregon's rule revisions approved by the EPA on October 11, 2017 (82 FR 47122). In addition to the incentives provided to sources subject to Type A State NSR in sustainment and reattainment areas (to obtain offsets from priority sources discussed above) LRAPA made an additional change. Rules were revised to provide incentives for major sources to use priority source offsets for LRAPA Major NSR sources in nonattainment and reattainment areas by increasing the required offset ratio for major sources to 1.2:1 from the current 1:1. If a source subject to LRAPA Major NSR obtains offsets of some emissions increases from priority sources, the ratio may be reduced to no less than 1:1, the minimum offset level under the federal nonattainment NSR program.

    We note that LRAPA did not submit Section 38-0510(3) for SIP approval because the submissions do not also include a demonstration for inter-pollutant offset ratios as recommended by the EPA's inter-pollutant offset policy.28 LRAPA also did not submit Section 38-0520 for SIP approval, in this case because the section addresses ozone nonattainment areas, of which Lane County has none. We propose to approve the revisions to LRAPA's net air quality benefit emissions rules, except Sections 38-0510(3) and 38-0520, for which LRAPA did not request approval.

    28 Gina McCarthy, EPA Administrator. “Revised Policy to Address Reconsideration of Inter-pollutant Trading Provisions for Fine Particles (PM2.5),” Memorandum to Regional Administrators, July 21, 2011.

    Summary

    We propose to approve the submitted revisions to Title 38 because we have determined that, in conjunction with other provisions including but not limited to rules in Titles 12, 31, 34, 35, 40, 42, and 50, the revisions are consistent with the requirements of the federal PSD and minor NSR permitting programs applicable statewide. We have also determined that the submitted changes are consistent with the federal requirements for nonattainment NSR for the current designated nonattainment areas in Lane County.29

    29See 40 CFR 51.160 through 161, 51.165, and 51.166. See also EPA proposed approval of Oregon nonattainment NSR program (March 22, 2017, 82 FR 14654 at page 14663).

    N. Title 40: Air Quality Analysis Requirements

    This title contains the air quality analysis requirements, which are primarily used in Title 38 New Source Review. By its terms, this title does not apply unless a rule in another section refers to Title 40. Substantive changes include revising the definition of “allowable emissions” at Section 40-0020(1) to add “40 CFR part 62” to the list of referenced standards and clarifying the definition of “baseline concentration year” at Section 40-0020(2), that varies depending on the pollutant for a particular designated area. LRAPA also revised the definitions of “competing PSD increment consuming source impacts” and “competing NAAQS [national ambient air quality standards] source impacts” 30 to broaden the reference to include all of LRAPA's ambient air quality standards at Title 50 (which include the NAAQS) 31 and to specify that in calculating these concentrations, sources may factor in the distance from the new or modified source to other emission sources (range of influence or ROI), spatial distribution of existing emission sources, topography, and meteorology.

    30See Sections 40-0020(4) and (5), respectively.

    31 Our approval of Section 38-0020(4) and (5) would not extend to those ambient standards in Title 50 that we have excluded from our approval.

    LRAPA also clarified and reorganized the defined ROI formula at Section 38-0020(10). The ROI is the distance from the new or modified source or source impact area to other emission sources that could impact that area. The ROI and source impact area are used to predict the air quality impacts of a new or modified source. LRAPA continues to limit the maximum ROI to 50 kilometers and has moved the constant values in the ROI formula from the table at the end of the division into the text of the rule.

    PSD requirements were revised to align with the court decision vacating and remanding the PM2.5 SIL. Please see Section M. above for a discussion of the court decision. This title now includes language stating that application of a SIL as a screening tool does not preclude LRAPA from requiring additional analysis to evaluate whether a proposed source or modification will cause or contribute to a violation of an air quality standard or PSD increment.

    PSD requirements for demonstrating compliance with air quality related values were also updated. LRAPA made clear that, if applicable, the analysis applies to each emission unit that increases the actual emissions of a regulated pollutant above the portion of the netting basis attributable to that emission unit. In addition, the term “air quality related values” includes visibility, deposition, and ozone impacts. A visibility analysis for sources impacting the Columbia River Gorge National Scenic Area, is now required, where applicable, to evaluate potential impacts on that area. We propose to approve Title 40 into the LRAPA SIP as meeting CAA requirements, including the EPA's major NSR permitting regulations at 40 CFR 51.165 and 51.166, and the regional haze requirements at 40 CFR part 51, subpart P.

    O. Title 41: Emission Reduction Credits

    In Title 41, LRAPA submitted revisions to clarify when reductions in criteria pollutant emissions that are also hazardous air pollutant emissions are creditable. Emission reductions required to meet federal NESHAP standards in 40 CFR parts 61 or 63 are not creditable reductions for purposes of Major NSR in nonattainment or reattainment areas in Lane County. However, criteria pollutant reductions that are in excess of, or incidental to, the required hazardous air pollutant reductions can potentially earn credits—as long as all conditions are met. LRAPA also lowered the threshold for banking credits in the Oakridge area—from ten tons to one ton—to encourage trading activity. Finally, the rules were revised to specify when such credits are considered used up, and when they expire. The revisions are consistent with the CAA and the EPA's implementing regulations and we propose to approve them.

    P. Title 42: Criteria for Establishing Plant Site Emission Limits

    This division contains a regulatory program for managing airshed capacity through a PSEL. PSELs are used in Oregon, including Lane County, to protect ambient air quality standards, prevent significant deterioration of air quality, and to ensure protection of visibility. Establishing such a limit is a mandatory step in the Oregon and LRAPA source permitting process. A PSEL is designed to be set at the actual baseline emissions from a source plus approved emissions increases and minus required emissions reductions. This design is intended to maintain a more realistic emissions inventory. Oregon and LRAPA use a fixed baseline year of 1977 or 1978 (or a prior year if more representative of normal operation) and factor in all approved emissions increases and required emissions decreases since baseline, to set the allowable emissions in the PSEL. Increases and decreases since the baseline year do not affect the baseline, but are included in the difference between baseline and allowable emissions.

    “Netting basis” is a concept in this program that defines both the baseline emissions from which increases are measured—to determine if changes are subject to review—as well as the process for re-establishing the baseline, after changes have been through the new source review permitting process.

    As noted above, the PSEL program is used, in part, to implement NSR permitting. For major NSR, if a PSEL is calculated at a level greater than an established SER over the baseline actual emission rate, an evaluation of the air quality impact and major NSR permitting are required. If not, the PSEL is set without further review (a construction permit may also be required). For minor NSR (State NSR), a similar calculation is conducted. If the difference is greater than the SER, an air quality analysis is required to evaluate whether ambient air quality standards and increments are protected. The air quality analysis results may require the source to reduce the airshed impact and/or comply with a tighter emission limit.

    LRAPA submitted a number of changes to the PSEL requirements in this title, to align with similar changes to state rules. Many of the changes are organizational, centralizing requirements related to PSELs in Title 42. Other changes are more substantive. LRAPA revised the criteria for establishing PSELs at Sections 42-0035 through 0090 by consolidating requirements from other sections into these provisions, and revising them to take into account the differentiated major and State NSR requirements. LRAPA also updated the source-specific annual PSEL provision, at Section 42-0041, to account for PM2.5 and major and State NSR requirements. We note that as previously written, the PSEL rule included provisions for PSEL increases that were not subject to New Source Review. The submissions revoke those provisions and instead make these PSEL increases subject to the State New Source Review requirements in Title 38. The comprehensive requirements for approval of such PSEL increases in sustainment, nonattainment, reattainment, maintenance, and attainment/unclassifiable areas are as stringent as the current requirements.

    LRAPA updated the short-term PSEL requirements at Section 42-0042 to spell out the process a source must follow to request an increase in a short-term PSEL—and when that source must obtain offsets, or an allocation, from an available growth allowance in the area.

    At Section 42-0046, LRAPA clarified how the initial netting basis for PM2.5 is set and how potential increases are limited. Changes were made to spell out how a source's netting basis may be reduced—when a rule, order or permit condition requires the reductions—and how unassigned emissions and emissions reduction credits are to be addressed. In addition, the submitted revisions clarify that a source may retain a netting basis if that source relocates to a different site, as opposed to an adjacent site. However, it is only allowed if LRAPA determines the different site is within or affects the same airshed, and that the time span between operation at the old site and new sites is less than six months.

    At Section 42-0048, LRAPA consolidated baseline period and baseline emission rate provisions, and indicated when a baseline emission rate may be recalculated—limited to circumstances when more accurate or reliable emission factor information becomes available, or when regulatory changes require additional emissions units be addressed. Changes were also made to Section 42-0051, which addresses actual emissions, and how to appropriately calculate the mass emissions of a pollutant from an emissions source during a specified time period. LRAPA revised this provision to account for the changes in the program that differentiate major NSR from State NSR.

    We note that Section 42-0055 unassigned emissions procedures were clarified. The rule section was revised to state that a source may not use emissions that are removed from the netting basis—including emission reductions required by rule, order or permit condition—for netting any future permit actions. LRAPA also updated Section 42-0090, addressing the impact on PSEL calculations and permitting requirements when sources combine, split, and change primary Standard Industrial Code. The changes make clear that sources must qualify to combine, and that it will impact the netting basis and SER, and trigger new source review and recordkeeping requirements, if applicable.

    Except for Section 42-0060, we propose to approve Title 42 into the SIP because we believe the revisions to the PSEL requirements are intended to clarify and strengthen the rules. Section 42-0060 is not appropriate for SIP approval because it is applicable to sources of hazardous air pollutants addressed under CAA section 112, rather than sources of criteria pollutants addressed under CAA section 110.

    Q. Title 48: Rules for Fugitive Emissions

    LRAPA submitted fugitive emission requirements in Title 48 for SIP approval, consistent with Oregon's fugitive emissions rules in Division 208. This title requires sources to take reasonable precautions to prevent fugitive emissions, and may require a fugitive emissions control plan to prevent visible emissions from leaving a facility property for more than 18 seconds in a six-minute period. Compliance is based on EPA Method 22, Visual Determination of Fugitive Emissions from Material Sources and Smoke Emissions from Flares. We propose to approve Title 48 into the SIP because we have determined that these fugitive emissions rules are consistent with CAA requirements.

    R. Title 50: Ambient Air Standards and PSD Increments

    Title 50 contains ambient air quality standards and Prevention of Significant Deterioration (PSD) increments applicable in Lane County. Most notably, LRAPA updated Title 50 for all current federal national ambient air quality standards and federal reference methods.32

    32See Sections 50-015 through 045.

    At Section 50-005(2), LRAPA added language expressly stating that no source may cause or contribute to a new violation of an ambient air quality standard or a PSD increment, even if the single source impact is less than the significant impact level. This change was made to address a court decision vacating and remanding regulatory text for the PM2.5 significant impact level. Please see Section M for a detailed discussion of the basis for our determination that this change, along with other related changes, adequately addresses the court decision.

    LRAPA updated the table of PSD increments, also known as maximum allowable increases and clarified that PSD increments are compared to aggregate increases in pollution concentrations from the new or modified source over the baseline concentration.33 LRAPA included ambient air quality thresholds for pollutants in this title, moved from Title 38, to centralize ambient standards and thresholds. Finally, LRAPA consolidated requirements for areas subject to an approved maintenance plan, moving ambient standards and thresholds from Title 38 into Section 50-065. We propose to approve the submitted revisions to Title 50 as being consistent with CAA requirements and implementing regulations at 40 CFR parts 50 and 51.

    33See Section 50-055.

    S. Title 51: Air Pollution Emergencies

    This title establishes criteria for identifying and declaring air pollution episodes at levels below the levels of significant harm. LRAPA submitted mostly minor changes to this title. However, significant changes were made to establish a significant harm level for PM2.5, and PM2.5 trigger levels corresponding with alert, warning, and emergency episodes. We propose to approve the submitted revisions to Title 51 because this title remains consistent with the EPA's rules at 40 CFR part 51, subpart H Prevention of Air Pollution Emergency Episodes.

    III. Proposed Action

    We propose to approve, and incorporate by reference into the SIP, specific rule revisions submitted by Oregon and LRAPA on August 29, 2014 (state effective March 31, 2014) and March 27, 2018 (state effective March 23, 2018), to apply in Lane County. We also propose to approve, but not incorporate by reference, specific provisions that provide LRAPA with authority needed for SIP approval.

    As requested by LRAPA and the state, we are removing certain rules from the SIP, because they are obsolete, redundant, or replaced by equivalent or more stringent local rules. We are also deferring action on a section of rules because we intend to address them in a separate, future action.

    We note that the submissions include changes to OAR 340-200-0040, a rule that describes the Oregon procedures for adopting its SIP and references all of the state air regulations that have been adopted by LRAPA and ODEQ for approval into the SIP (as a matter of state law), whether or not they have yet been submitted to or approved by the EPA. We are not approving the changes to OAR 340-200-0040 because the federally-approved SIP consists only of regulations and other requirements that have been submitted by LRAPA and ODEQ and approved by the EPA.

    A. Rules Approved and Incorporated by Reference

    We propose to approve into the Oregon SIP, and incorporate by reference at 40 CFR part 52, subpart MM, revisions to the following LRAPA rule sections. Each rule section listed is state effective March 23, 2018, unless marked with an asterisk, denoting it is effective March 31, 2014:

    • Title 12—Definitions (001, 005, 010, 020, 025);

    • Title 29—Designation of Air Quality Areas (0010, 0020, 0030, 0040, 0050, 0060, 0070*, 0080*, 0090*, 0300, 0310, 0320);

    • Title 30—Incinerator Regulations (010, 015*, 020*—except (2) and (8), 025*—except (9), 030*—except (1)(I) and (2)(E), 035*, 040*, 045*—except (3), 050*, 055*, 060*);

    • Title 31—Public Participation (0010, 0020, 0030, 0040, 0050, 0060, 0070, 0080);

    • Title 32—Emission Standards (001, 005, 006, 007, 008, 009, 010, 015, 020, 030, 045, 050, 060, 065, 070, 090*, 100, 8010);

    • Title 33—Prohibited Practices and Control of Special Classes of Industry (005, 060, 065, 070—except, in (1), the definitions of “non-condensables”, “other sources”, and “TRS”, (3)(a), (4)(b), (5)(b), (6)(a), (6)(b), 500);

    • Title 34—Stationary Source Notification Requirements (005, 010, 015, 016, 017, 020, 025, 030, 034, 035, 036, 037, 038);

    • Title 35—Stationary Source Testing and Monitoring (0010, 0110, 0120, 0130, 0140, 0150*);

    • Title 37—Air Contaminant Discharge Permits (0010, 0020, 0025, 0030, 0040, 0052, 0054, 0056, 0060, 0062, 0064, 0066, 0068, 0070, 0082, 0084, 0090, 0094, 8010, 8020);

    • Title 38—New Source Review (0010, 0020, 0025, 0030, 0034, 0038, 0040, 0045, 0050, 0055, 0060, 0070, 0245, 0250, 0255, 0260, 0270, 0500, 0510—except (3), 0530, 0540);

    • Title 40—Air Quality Analysis Requirements (0010, 0020, 0030, 0040, 0045, 0050, 0060, 0070);

    • Title 41—Emission Reduction Credits (0010*, 0020, 0030);

    • Title 42—Stationary Source Plant Site Emission Limits (0010, 0020, 0030, 0035, 0040, 0041, 0042, 0046, 0048, 0051, 0055, 0080, 0090);

    • Title 48—Rules for Fugitive Emissions (001, 005, 010, 015);

    • Title 50—Ambient Air Standards and PSD Increments (001, 005, 015, 025, 030, 035, 040, 045, 050, 055, 060*, 065); and

    • Title 51—Air Pollution Emergencies (005, 007, 010, 011, 015, 020, 025, Table I, Table II, Table III).

    B. Rules Approved But Not Incorporated by Reference

    We propose to approve, but not incorporate by reference, the following LRAPA rule sections. Each rule section is state effective March 23, 2018, unless marked with an asterisk, denoting the rule is effective March 31, 2014:

    • Title 13—General Duties and Powers of Board and Director (005*, 010*, 020*, 025*, 030*, 035*); and

    • Title 14—Rules of Practice and Procedures (110, 115, 120, 125, 130, 135, 140, 145, 147, 150, 155, 160, 165, 170, 175, 185, 190, 200, 205).

    C. Rules Removed

    We are removing the following rules from the current federally-approved Oregon SIP at 40 CFR part 52, subpart MM, because they have been repealed, replaced by rules noted in paragraph A. above, or the state has asked that they be removed:

    • Title 12—Definitions (001(2)), state effective March 8, 1994;

    • Title 30—Incinerator Regulations (005), state effective March 8, 1994;

    • Title 33—Prohibited Practices and Control of Special Classes of Industry (030, 045), state effective November 10, 1994; and

    • Title 34—Stationary Source Notification Requirements (040), state effective June 13, 2000.

    We also are removing the following rules in the table entitled, “Rules Also Approved for Lane County”, state effective April 16, 2015, because LRAPA has submitted equivalent or more stringent local rules to apply in place of those requirements:

    Table 5—EPA-Approved Oregon Administrative Rules (OAR) Also Approved for Lane County

    • Division 200—General Air Pollution Procedures and Definitions (0020);

    • Division 202—Ambient Air Quality Standards and PSD Increments (0050);

    • Division 204—Designation of Air Quality Areas (0300, 0310, 0320);

    • Division 208—Visible Emissions and Nuisance Requirements (0110, 0210);

    • Division 214—Stationary Source Reporting Requirements (0114)(5);

    • Division 216—Air Contaminant Discharge Permits (0040, 8010);

    • Division 222—Stationary Source Plant Site Emission Limits (0090);

    • Division 224 -New Source Review (0030, 0530);

    • Division 225—Air Quality Analysis Requirements (0010, 0020, 0030, 0040, 0045, 0050, 0060, 0070);

    • Division 226—General Emissions Standards (0210); and

    • Division 228—Requirements for Fuel Burning Equipment and Fuel Sulfur Content (0210).

    D. Rules Deferred

    We are deferring action on the following rules, state effective March 23, 2018, because we intend to address them in a separate, future action:

    • Title 36—Excess Emissions (001, 005, 010, 015, 020, 025, 030).

    IV. Incorporation by Reference

    In this rule, we are proposing to include in a final rule regulatory text that includes incorporation by reference. In accordance with requirements of 1 CFR 51.5, we are proposing to incorporate by reference the provisions described above in Section III. Proposed Action. The EPA has made, and will continue to make, these documents generally available electronically through https://www.regulations.gov and in hard copy at the appropriate EPA office (see the FOR FURTHER INFORMATION CONTACT section of this preamble for more information).

    V. Oregon Notice Provision

    Oregon Revised Statute 468.126 prohibits ODEQ from imposing a penalty for violation of an air, water or solid waste permit unless the source has been provided five days' advanced written notice of the violation and has not come into compliance or submitted a compliance schedule within that five-day period. By its terms, the statute does not apply to Oregon's title V program or to any program if application of the notice provision would disqualify the program from federal delegation. Oregon has previously confirmed that, because application of the notice provision would preclude EPA approval of the Oregon SIP, no advance notice is required for violation of SIP requirements.

    VI. Statutory and Executive Order Reviews

    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, the EPA's role is to approve state choices, provided that they meet the criteria of the CAA. Accordingly, this proposed action merely approves state law as meeting federal requirements and does not impose additional requirements beyond those imposed by state law. For that reason, this proposed action:

    • Is not a “significant regulatory action” subject to review by the Office of Management and Budget under Executive 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 this action does not involve technical standards; and

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

    The SIP is not approved to apply on any Indian reservation land or in any other area where the EPA or an Indian tribe has demonstrated that a tribe has jurisdiction. In those areas of Indian country, the rule does not have tribal implications as specified by Executive Order 13175 (65 FR 67249, November 9, 2000), nor will it impose substantial direct costs on tribal governments or preempt tribal law.

    List of Subjects in 40 CFR Part 52

    Environmental protection, Air pollution control, Incorporation by reference, Intergovernmental relations, Lead, Nitrogen dioxide, Ozone, Particulate matter, Reporting and recordkeeping requirements, Sulfur oxides, Volatile organic compounds.

    Authority:

    42 U.S.C. 7401 et seq.

    Dated: July 23, 2018. Chris Hladick, Regional Administrator, Region 10.
    [FR Doc. 2018-16371 Filed 7-30-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 68 [EPA-HQ-OEM-2015-0725; FRL-9981-66-OLEM] RIN 2050-AG95 Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule; notification of data availability and extension of comment period; correction.

    SUMMARY:

    The Environmental Protection Agency (EPA) issued a proposed rule in the Federal Register on May 30, 2018 to request public comment on several proposed changes to the final Risk Management Program Amendments rule (Amendments rule) issued on January 13, 2017. This document is being issued to correct technical errors in the Regulatory Impact Analysis and the Notification of Data Availability and Extension of Comment Period for the proposed rule.

    DATES:

    Comments on the proposed rule (83 FR 24850, May 30, 2018), as extended by the Notification of Data Availability and Extension of Comment Period (83 FR 34967, July 24, 2018) must be received by August 23, 2018.

    ADDRESSES:

    Submit comments and additional materials, identified by docket EPA-HQ-OEM-2015-0725 to the Federal eRulemaking Portal: http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e., on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit https://www.epa.gov/dockets/commenting-epa-dockets.

    FOR FURTHER INFORMATION CONTACT:

    James Belke, United States Environmental Protection Agency, Office of Land and Emergency Management, 1200 Pennsylvania Ave. NW (Mail Code 5104A), Washington, DC 20460; telephone number: (202) 564-8023; email address: [email protected], or Kathy Franklin, United States Environmental Protection Agency, Office of Land and Emergency Management, 1200 Pennsylvania Ave. NW (Mail Code 5104A), Washington, DC 20460; telephone number: (202) 564-7987; email address: [email protected]

    SUPPLEMENTARY INFORMATION:

    Detailed background information describing the proposed RMP Reconsideration rulemaking may be found in a previously published document: Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Proposed Rule (83 FR 24850, May 30, 2018).

    I. What action is EPA taking?

    EPA is correcting incorrect date references to the version of the Risk Management Plan (RMP) database used to extract accident history information for the years 2014 through 2016. EPA used this accident information to update the trend of accidents from RMP facilities discussed in the Regulatory Impact Analysis for the proposed Reconsideration rule (EPA. Regulatory Impact Analysis, Reconsideration of the 2017 Amendments to the Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act, Section 112(r)(7), April 27, 2018). EPA also referred to the 2014-2016 accident information in the Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Notification of Data Availability and Extension of Comment Period (83 FR 34967, July 24, 2018). In both documents, EPA made incorrect references to the date of the RMP database version used to extract these accident data. This document serves to correct the incorrect date references.

    II. What does this correction do?

    This document corrects incorrect date references to the RMP database in two locations in the regulatory record for the Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Proposed Rule (83 FR 24850, May 30, 2018). One location is on page 33 of the Regulatory Impact Analysis (RIA). Page 33 of the RIA discusses the availability of annual accident data for 2014-2016, and includes a footnote (footnote 32) indicating the source of the accident data. The footnote states: “EPA. April 2018. Risk Management Plan (RMP) Facility Accident Data, 2014-2016. USEPA, Office of Emergency Management.” This footnote should read “EPA. March 2018. Risk Management Plan (RMP) Facility Accident Data, 2014-2016. USEPA, Office of Emergency Management.”

    The other location is on page 34968 of “Accidental Release Prevention Requirements: Risk Management Programs Under the Clean Air Act; Notification of Data Availability and Extension of Comment Period,” 83 FR 34967, 34968 (July 24, 2018), in the SUPPLEMENTARY INFORMATION section. Column two of this page also discusses the 2014-2016 accident data, but incorrectly indicates that EPA developed the docketed spreadsheet containing these data from the November 2017 version of the RMP database. The last sentence of the carryover paragraph at the top of column two should read: “EPA developed the latter spreadsheet from the March 2018 version of the database.”

    While the facility count information discussed in the Notification of Data Availability was based on the November 2017 version of the RMP database, EPA extracted the 2014-2016 accident data from the March 2018 version of the RMP database, as indicated above. EPA notes that the previously docketed 2014-2016 accident spreadsheet contains an additional 25 accident records for the 2014-2016 period that were not available when the November 2017 version of the database was created. By using a later version of the database to extract accident records, EPA provided more up-to-date accident information to support the regulatory record. However, users who attempt to replicate EPA's 2014-2016 accident spreadsheet by extracting accident data from the November 2017 version of the RMP database (which was recently added to the rulemaking docket as EPA-HQ-OEM-2015-0725-0989) would not see the additional 25 accident records.

    EPA has added a memo to the rulemaking docket dated July 25, 2018, with the subject line: Corrections to References to Risk Management Plan Accident Information for 2014-2016. This memo explains the corrections discussed above and includes a list of the 25 accidents that are included in the 2014-2016 spreadsheet but not in the November 2017 version of the RMP database.

    Dated: July 25, 2018. Reggie Cheatham, Director, Office of Emergency Management.
    [FR Doc. 2018-16372 Filed 7-30-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 300 [EPA-HQ-SFUND-1983-0002; FRL-9981-39—Region 6] National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Partial Deletion of the South Valley Superfund Site AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule; notice of intent.

    SUMMARY:

    The Environmental Protection Agency (EPA) Region 6 is issuing a Notice of Intent to Delete Operable Units 1, 2, and 5 of the South Valley Superfund Site (Site) located in Albuquerque, New Mexico, from the National Priorities List (NPL) and requests public comments on this proposed action. The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The EPA and the State of New Mexico, through the New Mexico Environment Department, have determined that all appropriate response actions at these identified parcels under CERCLA have been completed, other than five-year reviews and operation and maintenance activities. However, this deletion does not preclude future actions under Superfund. This partial deletion pertains to Operable Units 1, 2, and 5. The remaining Operable Units 3, 4, and 6 will remain on the NPL and are not being considered for deletion as part of this action.

    DATES:

    Comments must be received by August 30, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID no. EPA-HQ-SFUND-1983-0002, by one of the following methods:

    http://www.regulations.gov . Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    Email: [email protected]

    Mail: Michael A. Hebert, Remedial Project Manager, EPA Region 6, Mail Code—6SF-RL, 1445 Ross Avenue, Dallas, Texas 75202-2733.

    Hand delivery:

    ○ Michael A. Hebert, Remedial Project Manager, EPA Region 6, Mail Code—6SF-RL, 7th Floor Reception Area, 1445 Ross Avenue, Dallas, Texas 75202-2733. ○ Such deliveries are only accepted during the Docket's normal hours of operation (Monday through Friday, 7 a.m. to 4 p.m.) and special arrangements should be made for deliveries of boxed information.

    Instructions: Direct your comments to Docket ID no. EPA-HQ-SFUND-1983-0002. The http://www.regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in the hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at:

    Zimmerman Library, Government Information Department, University of New Mexico, Albuquerque NM 87131, 505.277.9100, Monday-Thursday—7 a.m.-2 a.m., Friday—7 a.m.-9 p.m., Saturday—10 a.m.-6 p.m., Sunday—12 p.m.-2 a.m. New Mexico Environment Department, Harold Runnels Building, 1190 St. Francis Drive, Santa Fe, NM 87505, 505.827.2855, Monday-Friday—8 a.m.-5 p.m.
    FOR FURTHER INFORMATION CONTACT:

    Michael A. Hebert, Remedial Project Manager, U.S. Environmental Protection Agency, Region 6, Mail Code—6SF-RL, 1445 Ross Avenue, Dallas, Texas, 75202-2733, (214) 665-8315, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Introduction II. NPL Deletion Criteria III. Deletion Procedures IV. Basis for Intended Partial Site Deletion I. Introduction

    EPA Region 6 announces its intent to delete Operable Units 1, 2, and 5 of the South Valley Superfund Site (Site), from the National Priorities List (NPL) and requests public comment on this proposed action. The NPL constitutes Appendix B of 40 CFR part 300 which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to Section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. EPA maintains the NPL as those sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). This partial deletion of the South Valley Superfund Site is proposed in accordance with 40 CFR 300.425(e) and is consistent with the Notice of Policy Change: Partial Deletion of Sites Listed on the National Priorities List. 60 FR 55466 (Nov. 1, 1995). As described in § 300.425(e)(3) of the NCP, a portion of a site deleted from the NPL remains eligible for Fund-financed remedial action if future conditions warrant such actions.

    EPA will accept comments on the proposal to partially delete this site for 30 days after publication of this document in the Federal Register.

    Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses Operable Units 1, 2, and 5 of the South Valley Superfund Site and demonstrates how the operable units meet the deletion criteria.

    II. NPL Deletion Criteria

    The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:

    i. Responsible parties or other persons have implemented all appropriate response actions required;

    ii. all appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

    iii. the remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

    Pursuant to CERCLA section 121(c) and the NCP, EPA conducts five-year reviews to ensure the continued protectiveness of remedial actions where hazardous substances, pollutants, or contaminants remain at a site above levels that allow for unlimited use and unrestricted exposure. EPA conducts such five-year reviews even if a site is deleted from the NPL. EPA may initiate further action to ensure continued protectiveness at a deleted site if new information becomes available that indicates it is appropriate. Whenever there is a significant release from a site deleted from the NPL, the deleted site may be restored to the NPL without application of the hazard ranking system.

    III. Deletion Procedures

    The following procedures apply to deletion of Operable Units 1, 2, and 5 of the Site:

    (1) EPA consulted with the State of New Mexico before developing this Notice of Intent for Partial Deletion.

    (2) EPA has provided the State of New Mexico 30 working days for review of this notice prior to publication of it today.

    (3) In accordance with the criteria discussed above, EPA has determined that no further response is appropriate.

    (4) The State of New Mexico, through the New Mexico Environment Department, has concurred with the deletion of Operable Units 1, 2, and 5 of the South Valley Superfund Site, from the NPL.

    (5) Concurrently, with the publication of this Notice of Intent for Partial Deletion in the Federal Register, a notice is being published in a major local newspaper, the Albuquerque Journal, http://www.abqjournal.com. The newspaper announces the 30-day public comment period concerning the Notice of Intent for Partial Deletion of the Site from the NPL.

    (6) The EPA placed copies of documents supporting the proposed partial deletion in the deletion docket, made these items available for public inspection, and copying at the Site information repositories identified above.

    If comments are received within the 30-day comment period on this document, EPA will evaluate and respond accordingly to the comments before making a final decision to delete Operable Units 1, 2, and 5. If necessary, EPA will prepare a Responsiveness Summary to address any significant public comments received. After the public comment period, if EPA determines it is still appropriate to delete Operable Units 1, 2, and 5 of the South Valley Superfund Site, the Regional Administrator will publish a final Notice of Partial Deletion in the Federal Register. Public notices, public submissions and copies of the Responsiveness Summary, if prepared, will be made available to interested parties and included in the site information repositories listed above.

    Deletion of a portion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a portion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

    IV. Basis for Partial Site Deletion

    The following information provides EPA's rationale for deleting Operable Units 1, 2, and 5 of the South Valley Superfund Site from the NPL:

    Site Background and History

    The EPA ID for the South Valley Superfund Site is NMD980745558. The South Valley Superfund Site is in the southern portion of Albuquerque, in Bernillo County, New Mexico, directly across Interstate 25 from the Albuquerque International Airport and the University of New Mexico Golf Course. The South Valley Superfund Site consists of an area of approximately one square mile proximate to the intersection of South Broadway Boulevard and Woodward Road and is divided into two properties: the former Air Force Plant 83 site and the Univar site. The Air Force Plant 83 site is further divided into two parcels located north and south of Woodward Road known as North Plant 83 and South Plant 83, respectively. Various manufacturing operations occurred at the Air Force Plant 83 site from the 1940s until 1967, when the United States Air Force took ownership of the property and its contractor, General Electric Aircraft Engines (GEA), began manufacturing aircraft engine components at the property. GEA purchased the Air Force Plant 83 in 1983 and continued operations until October 1997, when North Plant 83 was closed, and until October 2010, when South Plant 83 was closed. Groundwater beneath the Site is in the Santa Fe Group which is comprised of several layers within the formation. The shallow zone aquifer (approximately 175-225 below ground surface [bgs]) beneath the North Plant 83 area has a continuous silty clay layer underneath it and is therefore primarily perched and does not have a uniform flow direction. The shallow groundwater in the South Plant 83 area flows east to west. Unlike North Plant 83, the silty clay layer beneath the South Plant 83 area is discontinuous and therefore is in hydraulic connection with the deeper aquifer zones. The deeper aquifer sand zones (approximately 225-355 bgs, 255-415 bgs, and 415-515 bgs) have discontinuous silts and clays interbedded within them which are not laterally extensive but may limit downward movement through the formation. Groundwater flows generally east to west in all the deeper aquifer zones.

    Groundwater contamination was first suspected in the late 1970s in two municipal wells—San Jose No. 6 and San Jose No. 3. The wells were taken out of service after subsequent sampling indicated contamination. Groundwater monitoring results in the vicinity of the wells indicated the potential for a number of sources, including several industrial operations located in close proximity to the contaminated wells. When the Site was proposed to the NPL on December 30, 1982, (47 FR 58476), it was the number one priority of the State of New Mexico. EPA finalized the NPL listing on September 8, 1983, (48 FR 40658).

    The Operable Units at the South Valley Superfund Site are as follows:

    Operable Unit 1 (OU1) (included in partial deletion)—OU1 consists of the City of Albuquerque San Jose 6 (SJ-6) and San Jose 3 (SJ-3) wells, which were contaminated with volatile organic compounds (VOCs). EPA signed the Record of Decision (ROD) for OU1 on March 22, 1985 but did not identify a Potentially Responsible Party (PRP). The remedial goal was to eliminate the threat to human health posed by introducing water from the San Jose 6 and San Jose 3 wells into the City of Albuquerque drinking water supply. The objective was achieved by EPA replacing wells SJ-6 and SJ-3 with the Burton No. 4 well, which was completed in April 1987.

    Operable Unit 2 (OU2) (included in partial deletion)—The remedial goals of OU2 were to eliminate the conduit(s) for contaminant migration from the shallow to the deeper aquifers and to restrict groundwater use under the Site. EPA signed the OU2 ROD on September 30, 1988 and identified GEA as a PRP. GEA implemented the remedial action by plugging SJ-6 and SJ-3 and any shallow wells that could act as conduits for contaminant transport from the shallow to the deeper aquifers, restricting groundwater use, and implementing groundwater monitoring. GEA integrated the OU2 groundwater monitoring program into Operable Unit 6 and continues the monitoring program today.

    Operable Unit 3 (OU3)—The remedial goal of OU3 included reducing the concentrations of site-related VOCs in groundwater to acceptable levels (aquifer restoration) via a pump-treat-injection system. EPA signed the ROD on June 28, 1988 and identified Univar as the Potentially Responsible Party. Univar initiated groundwater recovery system in April 1992 and a vapor recovery system in November 1999. Univar shut off both systems in November 2006. Subsequent monitoring has shown that the groundwater and vapor recovery systems reduced the dissolved chlorinated VOC concentrations to levels below and compliant with applicable or relevant and appropriate requirements as defined in the ROD. On June 10, 2014, the EPA acknowledged that Univar completed all requirements of the Consent Decree dated March 27, 1990, as they relate to the constituents of concern in groundwater identified in the ROD and the subsequent Explanation of Significant Differences dated September 26, 2006, except for addressing 1,4-dioxane contamination. The EPA acknowledged that Univar is addressing 1,4-dioxane in groundwater at OU3 pursuant to Section XVI(D) of the above Consent Decree.

    Operable Unit 4 (OU4)—OU4 consists of the vadose zone at the Univar site. As the PRP, Univar was required to investigate the soil around a pit on its property to establish the source of the solvents under their plant. The investigation found no evidence in the vadose zone that a release occurred at this location. EPA signed the ROD on June 28, 1988 and specified No Further Action.

    Operable Unit 5 (OU5) (included in partial deletion)—OU5 consists of the unsaturated and saturated portion of the shallow zone aquifer at North Plant 83 and South Plant 83. EPA signed the ROD on September 30, 1988, and identified GEA as the PRP. The remedial goals for this operable unit were remediating shallow zone groundwater and eliminating source materials via enhanced dewatering, soil flushing, and soil vapor extraction (SVE) to result in aquifer restoration. GEA conducted soil vapor surveys and collected soil borings in the South Plant 83 area and the North Plant 83 area to identify VOC contamination. The result of these investigations indicated that the concentrations of VOCs would best be remediated using SVE. GEA operated SVE systems at the North Plant 83 and South Plant 83 areas in 1992 and 1993. Prior to remediation, the groundwater contamination encompassed approximately twelve acres at North Plant 83 and approximately seven acres at South Plant 83. GEA initiated shallow groundwater recovery systems at the North Plant 83 and South Plant 83 areas in May 1994 and completely shut down the groundwater recovery systems in July 2010. GEA completed compliance groundwater monitoring and on September 22, 2014 requested closure of OU5 stating that GEA had satisfactorily completed all requirements of the Administrative Order dated July 3, 1989. All wells and infrastructure associated with the OU5 groundwater treatment system have been plugged and abandoned or removed as approved by EPA.

    After the closure of South Plant 83 in October 2010, GEA performed additional remedial activities associated with OU5 soils. Specifically, GEA performed investigations within the North Plant 83 and South Plant 83 building footprints and excavated and disposed of hexavalent chromium contaminated soil from the East and West Tank Line area in South Plant 83. In addition, GEA filed a deed restriction in the Bernalillo County records covering areas where semi-volatile organic compounds (i.e., polyaromatic hydrocarbons) or hexavalent chromium contamination remained above industrial soil screening levels.

    Operable Unit 6 (OU6)—OU6 consists of the deep aquifer at North Plant 83 and South Plant 83. EPA signed the ROD on September 30, 1988 and identified GEA as the PRP. The remedial goals of OU6 are hydraulically containing the plume to protect the City of Albuquerque's water supply wells and reducing the concentrations of site-related VOC compounds in groundwater to acceptable levels (aquifer restoration). The original plume was approximately 100 acres in size but as of 2018, only two wells have constituents above cleanup levels. The groundwater remediation system at OU6 began operation in March 1996. Remedial action activities have hydraulically contained the plume and shrunk it significantly from its former volume and mass. To date, over 7.5 billion gallons of contaminated water have been recovered, treated, and reinjected back into the deep aquifer.

    The South Valley area of Albuquerque has experienced ongoing development and redevelopment for decades. The proposed extension of Sunport Boulevard from east of Interstate 25 to west of Interstate 25, if constructed, is expected to spur local economic growth and redevelopment.

    Remedial Investigation and Feasibility Study

    Operable Unit 1 (OU1)—Other than the sampling that established that San Jose No. 6 and San Jose No. 3 municipal water supply wells had been impacted, there was no remedial investigation performed for OU1. Upon detection of contamination, the City of Albuquerque discontinued use of the water supply wells. Subsequently, the EPA, the City of Albuquerque, and other stakeholders conducted several meetings to discuss potential sites for a replacement municipal well, which culminated in the final design and ultimate installation of a replacement municipal water supply well, Burton Well No. 4. In addition, a remedial investigation was initiated which provided information utilized to develop remedial activities for the remaining operable units at the Site.

    Operable Unit 2 (OU2)—GEA conducted a remedial investigation for OU2 because of the contamination identified in OU1. As part of the remedial investigation, GEA compiled existing investigative information and collected additional soil, groundwater, surface water, and sediment information associated with the one-square-mile boundary area of the South Valley Superfund Site. In addition, GEA identified contamination associated with several different sources. Based upon the remedial investigation data, GEA determined in the feasibility study that contaminated groundwater in the shallow zone was potentially migrating into the intermediate zone throughout the Site through improperly constructed groundwater wells. The contaminants of concern identified in the remedial investigation were VOCs, with the main contaminant being trichloroethylene (TCE).

    Operable Unit 5 (OU5)—GEA conducted a remedial investigation for OU5 because of the contamination identified in OU1. As part of the remedial investigation GEA, compiled existing investigative information and collected additional soil, groundwater, surface water, and sediment information associated with the one-square-mile boundary area of the South Valley Superfund Site. Further, GEA identified contamination associated with several different sources. The contaminants of concern identified in the remedial investigation were VOCs, with the main contaminant being TCE.

    Based upon the remedial investigation data, GEA determined in the feasibility study that OU5 soil contamination occurs in areas associated with the two areas, North Plant 83 and South Plant 83, and groundwater contamination occurs in the shallow aquifer below portions of both the North Plant 83 and South Plant 83 areas. GEA also identified groundwater contamination comprising of similar constituents of concerns as in OU5 in several other hydrogeological units beneath the Site, which are addressed in OU6.

    After the closure of South Plant 83 in October 2010, GEA performed additional remedial activities associated with OU5, including soil investigations within the North Plant 83 and South Plant 83 building footprints. GEA identified 68 separate areas as a potential concern with 41 of these locations being identified for investigation. In addition, GEA sampled soil borings for VOCs, semi-volatile organic compounds, polychlorinated biphenyls, and selected metals. GEA did not detect VOCs above industrial soil screening levels and did not detect any polychlorinated biphenyls. GEA detected semi-volatile organic compounds (i.e., polyaromatic hydrocarbons) and hexavalent chromium in a few of the 41 locations investigated. In addition, GEA inspected, investigated, and cleaned out sanitary sewer lines for both North Plant 83 and South Plant 83. While GEA detected concentrations of metal contaminants in sediments within the sewer lines, it did not identify impacts in the soils adjacent and beneath the sewer lines.

    Selected Remedy

    Operable Unit 1 (OU1)—EPA signed the ROD for OU1 on March 22, 1985. The selected remedy was installation of a new water supply well to replace the capacity of the contaminated well San Jose No. 6. The remedial goal was to eliminate the threat to human health posed by introducing water from this well into the City of Albuquerque drinking water supply.

    Operable Unit 2 (OU2)—EPA signed the ROD for OU2 on September 30, 1988. The selected remedy consisted of cleaning out and sealing abandoned wells that were acting as conduits for contaminant migration, groundwater quality monitoring during and after implementation of any remedial action, and the imposition of access restrictions regarding well construction specifications and depth of completions through the State Engineer's office. The remedial goals were eliminating conduit(s) for contaminant migration from the shallow to intermediate aquifers and preventing the use of contaminated groundwater in the site area.

    Operable Unit 5 (OU5)—EPA signed the ROD for OU5 on September 30, 1988. The selected remedy consisted of further investigation to define the extent of soil and groundwater contamination, soil remediation utilizing SVE on portions of North Plant 83 and South Plant 83, groundwater remediation through extraction, treatment with air stripping followed by carbon adsorption, and reinjection into the aquifer for shallow (OU5) groundwater contaminated zones located under portions of North Plant 83 and South Plant 83 along with intermediate/deep (OU6) groundwater contaminated zones on-site and off-site. The remedial goals for OU5 were remediating shallow zone groundwater and eliminating source materials via enhanced dewatering, soil flushing, and SVE. Further, as a result of the investigations performed by GEA after closure of South Plant 83 in October 2010, GEA conducted removal of soil proximate to the East and West Tank Line area in South Plant 83 in 2011.

    Response Actions

    Operable Unit 1 (OU1)—The United State Corps of Engineers completed a final design for a new municipal water supply well in late 1986. The remedial action performed at OU1 was the replacement of wells SJ-6 and SJ-3 with the Burton No. 4 well, which was completed in April 1987.

    Operable Unit 2 (OU2)—GEA completed a final design dated July 20, 1990, that contained plans to install monitoring wells, clean out and plug abandoned wells including the SJ-6 well (OU1), and conduct a groundwater monitoring program. GEA completed the installation of new monitoring wells and the plugging and abandonment of wells that could act as conduits for contaminant transport to lower groundwater zones by the end of 1992. GEA initiated an OU2 groundwater monitoring program, which in 1996 was combined with the OU6 groundwater monitoring program to simplify groundwater monitoring and reporting at the Site. The New Mexico State Engineer's office issued a restriction concerning groundwater well construction within the boundaries of the South Valley Superfund Site on December 19, 1988.

    Operable Unit 5 (OU5)—Because the remedial investigation identified both soil and groundwater contamination, the response actions for OU5 were separated by media into soil and groundwater actions. For soils, GEA finalized the remedial design for the SVE systems in late 1991, which EPA subsequently approved on January 24, 1992. GEA installed and operated SVE systems on both the North Plant 83 and South Plant 83 areas. The North Plant 83 SVE system operated for approximately four months from June 1992 to June 1993. The South Plant 83 SVE system operated for approximately five months from October 1992 to March 1993. For groundwater, GEA's contractor, Canonie Environmental, completed a final design dated July 21, 1993, that contained construction details for the remedial systems for the shallow zone groundwater remediation on the North Plant 83 and South Plant 83 areas. The North Plant 83 system initially was comprised of seven extraction wells, and the South Plant 83 system was comprised of three wells. These systems were augmented through their operational lifetime to adapt to changes in groundwater concentrations and flow patterns.

    After the closure of South Plant 83 in October 2010, GEA performed additional remedial activities associated with OU5. GEA conducted removal of soil proximate to the East and West Tank Line area in South Plant 83 in 2011. Approximately 3.5 tons of contaminated soil and concrete were removed and transported for final disposal at an off-site hazardous waste disposal facility. Following removal, GEA backfilled the area with clean fill and capped the area with a five-inch-thick, 3,000 pounds/square inch layer of reinforced concrete. GEA filed a deed restriction in the Bernalillo County records covering areas where semi-volatile organic compounds (i.e., polyaromatic hydrocarbons) or hexavalent chromium contamination remained present above industrial soil screening levels. GEA removed approximately 1,750 feet of primary 4-inch to 8-inch diameter cast iron process sewer lines, 435 feet of similar smaller branch lines, and seven manholes and disposed these materials at a Resource Conservation and Recovery Act treatment, storage, and disposal facility. Finally, GEA cleaned and abandoned in place the South Plant 83 sewer system piping and plugged the connection to the City of Albuquerque sewer system.

    Cleanup Levels

    Operable Unit 1 (OU1)—There were no cleanup levels established for OU1, as the remedy was simply replacement of a municipal water supply well to replace the capacity lost by the contaminated SJ-6 well.

    Operable Unit 2 (OU2)—There were no cleanup levels established for OU2, as the remedy was simply the installation of additional groundwater monitoring wells, the plugging and abandonment of wells that could act as conduits for contaminant transport to lower groundwater zones, the imposition of access restrictions regarding well construction specifications and depth of completions through the State Engineer's office, and the establishment of a groundwater monitoring program to obtain data concerning groundwater contamination.

    Operable Unit 5 (OU5)—The investigations and remediation work for OU5 was separated by media into soil and groundwater work. For soil, the ROD required the utilization of SVE for soil remediation but did not specify cleanup levels. The ROD stated, “Soils treatment will continue until the vapor extraction system ceases to produce volatile contaminants and will be followed by sampling to confirm soil remediation.” GEA obtained post remediation soil samples after the SVE systems ceased operations and proposed cleanup levels for soils in April 1993. The proposed cleanup levels considered soil exposure pathways including dermal contact, inhalation, and ingestion (i.e., by children ages 2 to 6) as well as the potential for contaminants to leach from soil into groundwater that would exceed drinking water standards. GEA based the cleanup levels on the assumption of an operating manufacturing facility with restricted access but also on the worst-case exposure scenario that the site could be converted to residential use. During a meeting with GEA on November 2, 1993, EPA verbally agreed to the proposed cleanup levels. In a letter dated June 21, 1994, EPA indicated that the levels of contaminants found in the soils were below limits that required removal. In addition, out of an abundance of caution, as part of the 2017 Remedial Action Report for OU5, GEA performed a comparison of the post remediation soil concentrations to the EPA Industrial and Residential Soil Screening Levels (November 2015) which indicated all the post soil remediation soil concentrations were below the EPA Industrial and Residential Soil Screening Levels. For groundwater, the ROD specified that cleanup levels would be maximum contaminant limits from the Safe Drinking Water Act and levels in the New Mexico Water Quality Control Commission regulations, whichever was more stringent. These levels were updated in an Explanation of Significant Differences dated October 16, 2006, which added a level for tetrachloroethylene promulgated under the Safe Drinking Water Act in 1992. GEA implemented and conducted a groundwater monitoring program throughout the operation of the shallow zone groundwater remediation systems. After six years of monitoring indicating that none of the off-site wells of the North Plant 83 system well network exceeded cleanup levels, EPA approved closure of the off-site wells and conveyance system. GEA flushed, cleaned, and abandoned conveyance piping in place and plugged and abandoned wells in 2010. One on-site well associated with the North Plant 83 system remained slightly above cleanup levels. In 2010, GEA performed in-situ chemical oxidation around this well which subsequent sampling confirmed that contaminant concentrations fell and remained below cleanup levels. The South Plant 83 system experienced a similar history to the North Plant 83 system. By 1999, all wells associated with the South Plant 83 system except for two wells were below cleanup levels. By 2006, only one well had concentrations above cleanup levels. Like the North Plant 83 system, GEA performed in-situ chemical oxidation in 2010 around this well, which subsequent sampling confirmed that contaminant concentrations fell below cleanup levels shortly after the in-situ treatment and remained below cleanup levels through 2012.

    After the closure of South Plant 83 in October 2010, GEA performed additional remedial activities associated with OU5. Utilizing investigations results, GEA completed an assessment of the risk for the contaminants identified in the investigation. This assessment indicated that hexavalent chromium contamination in deep soils would not pose a risk to human health and the environment assuming that an impermeable cover remained in place and institutional controls were implemented. The assessment also indicated that the semi-volatile organic compounds (i.e., polyaromatic hydrocarbons) identified in soils would not pose a risk to human health and the environment if the existing concrete cap was left in place. GEA removed soil with concentrations of hexavalent chromium above 50 milligrams per kilogram (mg/kg) but did not remove soil with hexavalent chromium contamination ranging from 5.6 to 50 mg/kg at depths between 5 to 14 feet below the existing concrete slab. GEA filed a deed restriction in the Bernalillo County records covering areas where semi-volatile organic compounds or hexavalent chromium contamination remained above industrial soil screening levels.

    Operation and Maintenance

    Operable Unit 1 (OU1)—The operation and maintenance concerning the Burton No. 4 replacement well is performed by the City of Albuquerque.

    Operable Unit 2 (OU2)—There is no operation and maintenance associated with OU2. The restriction concerning groundwater well construction within the boundaries of the South Valley Superfund Site issued by the New Mexico State Engineer's office on December 19, 1988, remains in effect but is now monitored under OU6. This restriction is not needed and does not affect the protectiveness of the actions performed at OU2.

    Operable Unit 5 (OU5)—Since the soil and groundwater remediation systems associated with OU5 have met their associated cleanup levels and have been dismantled, there are no operation and maintenance activities required or ongoing for the OU5 SVE and groundwater remediation systems. In addition, while still in effect, the New Mexico State Engineer's restriction concerning groundwater well construction is no longer required for the protectiveness of the OU5 remedy because groundwater concentrations are below the maximum contaminant limits from the Safe Drinking Water Act and levels in the New Mexico Water Quality Control Commission regulations. After ceasing operations in September 2010 and completing demolition of the South Plant 83 buildings in May 2011, GEA performed investigations of the South Plant 83 property which included evaluating soil impacts near any existing sub-grade foundation features as well as the North Plant 83 and South Plant 83 sewer systems. In addition, GEA cleaned out and abandoned in place the sewer systems. Because of the soil investigation, GEA removed hexavalent chromium contamination near the location of the East and West Tank Line on the South Plant 83 property. Some contamination remained in place and, as a result, GEA filed a declaration of restrictive covenants on September 9, 2014 in the Bernalillo County property records. The declaration identified five areas where semi-volatile organic compounds or hexavalent chromium contamination exceed industrial soil screening levels. The declaration also contained the following: Identification of the abandoned sanitary sewer lines and existing sewer line locations; restriction that the property use is limited to commercial and industrial; restriction that groundwater beneath the site cannot be used; and engineered barriers must remain in place on portions of the property where semi-volatile organic compounds and hexavalent chromium remain above industrial soil screening levels. GEA performs normal property maintenance inspections of the North Plant 83 and South Plant 83 to identify fencing integrity issues and to maintain weed control. These inspections also observe the integrity of the concrete cap over the East and West Tank Line removal area to ensure it is competent. GEA also ensures that the deed restriction remains in the Bernalillo County records.

    Five Year Review

    Operable Unit 1 (OU1)—A five-year review is not necessary for OU1 because no hazardous substances, pollutants, or contaminants remain at the site above levels that allow for unlimited use and unrestricted exposure.

    Operable Unit 2 (OU2)—A five-year review is not necessary for OU2 because no hazardous substances, pollutants, or contaminants remain at the site above levels that allow for unlimited use and unrestricted exposure. While still in effect, the New Mexico State Engineer's restriction concerning groundwater well construction is no longer required for the protectiveness of the OU5 remedy because groundwater concentrations are below the maximum contaminant limits from the Safe Drinking Water Act and levels in the New Mexico Water Quality Control Commission regulations. In 1996, the OU2 groundwater monitoring program was combined with the OU6 groundwater monitoring program, which is and has been the subject of ongoing five-year reviews associated with the Site. The next five-year review for the Site is due in July 2020.

    Operable Unit 5 (OU5)—A statutory five-year review is necessary for OU5 because hazardous substances, pollutants, or contaminants remain at the site above levels that allow for unlimited use and unrestricted exposure. OU5 has been the subject of ongoing five-year reviews with the next review due in July 2020. No issues and/or recommendations were identified in the 2015 five-year review for OU5.

    Community Involvement

    The major community involvement activities associated with the operable units proposed for deletion are as follows:

    • Open Houses and Workshops: September 1988; November 1993; July 1995; October 1997; September 1998; November 1999, October 2000; November 2001; January 2013.

    • Original Proposed Plan Fact Sheet and Public Meetings: June 1988; July 1988; August 1988; February 1989.

    • Public Meetings: October 2000; November 2001.

    • Original ROD Fact Sheets: July 1988; November 1988; April 1989.

    • Milestone Fact Sheets: May 1989; March 1990; April 1990; June 1990; March 1991; November 1993; June 1995; April 1996; December 2011; January 2013; June 2015; July 2015; June 2018.

    • Citizens on Site Mailing List: 590.

    Other notable community involvement activities are:

    • Pre Five-Year Review public notices published in local newspapers indicating Five-Year Reviews were being initiated.

    • Post Five-Year Review public notices published in local newspapers indicating Five-Year Reviews were completed and available in the local repository or from the State or EPA.

    • Monthly site status summaries that were made available to the public or more recently, updates to site activities made on the site web page available on the internet.

    • September 23, 2010, newspaper article in the Albuquerque Journal concerning the closure of the General Electric plant.

    • Discussion of the site at public meetings associated with the Sunport Boulevard Extension from approximately 2010 to the present.

    • Fact sheets and public notices have been provided in both English and Spanish.

    Determination That the Criteria for Deletion Have Been Met

    The implemented remedies have achieved the degree of cleanup or protection specified in the OU1, OU2, and OU5 RODs for the portions of the Site proposed for deletion. The selected remedial action goals and associated cleanup levels for the OU1, OU2, and OU5 portions of the Site proposed for deletion are consistent with EPA policy and guidance. No further Superfund response for the OU1, OU2, and OU5 portions of the Site proposed for deletion are needed to protect human health and the environment. The State of New Mexico, in an August 11, 2017, letter from the New Mexico Environment Department, concurred with the proposed partial deletion of the OU1, OU2, and OU5 portions of the Site from the NPL.

    The NCP specifies that EPA may delete a site from the NPL if all appropriate response under CERCLA has been implemented and no further response action is appropriate. 40 CFR 300.425(e)(1)(ii). EPA, with the concurrence of the State of New Mexico, through NMED, believes that this criterion for the deletion of the OU1, OU2, and OU5 portions of the Site has been met and the OU1, OU2, and OU5 portions of the Site no longer pose a threat to public health or the environment. Consequently, EPA is proposing to delete the OU1, OU2, and OU5 portions of the Site from the NPL. Documents supporting this action are available in the Docket.

    List of Subjects in 40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.

    Authority:

    33 U.S.C. 1321(d); 42 U.S.C. 9601-9657; E.O. 13626, 77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.

    Dated: July 19, 2018. Arturo Blanco, Acting Regional Administrator, Region 6.
    [FR Doc. 2018-16257 Filed 7-30-18; 8:45 am] BILLING CODE 6560-50-P
    ENVIRONMENTAL PROTECTION AGENCY 40 CFR Part 300 [EPA-HQ-SFUND-2002-0001; FRL-9981-51—Region 4] National Oil and Hazardous Substances Pollution Contingency Plan; National Priorities List: Deletion of the Reasor Chemical Company Superfund Site AGENCY:

    Environmental Protection Agency (EPA).

    ACTION:

    Proposed rule; notice of intent.

    SUMMARY:

    The Environmental Protection Agency (EPA) Region 4 is issuing a Notice of Intent to Delete the Reasor Chemical Company Superfund Site (site) located in Castle Hayne, New Hanover County, North Carolina, from the National Priorities List (NPL) and requests public comments on this proposed action. The NPL, promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) of 1980, as amended, is an appendix of the National Oil and Hazardous Substances Pollution Contingency Plan (NCP). The EPA and the State of North Carolina, through the North Carolina Department of Environmental Quality (NCDEQ), have determined that all appropriate response actions under CERCLA have been completed. However, this deletion does not preclude future actions under Superfund.

    DATES:

    Comments must be received by August 30, 2018.

    ADDRESSES:

    Submit your comments, identified by Docket ID no. EPA-HQ-SFUND-2002-0001, by one of the following methods:

    http://www.regulations.gov. Follow the online instructions for submitting comments. Once submitted, comments cannot be edited or removed from Regulations.gov. The EPA may publish any comment received to its public docket. Do not submit electronically any information you consider to be Confidential Business Information (CBI) or other information whose disclosure is restricted by statute. Multimedia submissions (audio, video, etc.) must be accompanied by a written comment. The written comment is considered the official comment and should include discussion of all points you wish to make. The EPA will generally not consider comments or comment contents located outside of the primary submission (i.e. on the web, cloud, or other file sharing system). For additional submission methods, the full EPA public comment policy, information about CBI or multimedia submissions, and general guidance on making effective comments, please visit http://www2.epa.gov/dockets/commenting-epa-dockets.

    Email: [email protected]

    Mail: Samantha Urquhart-Foster, Remedial Project Manager, Remediation and Site Evaluation Branch, Superfund Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960.

    Hand delivery: U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. Such deliveries are only accepted during the Docket's normal hours of operation, and special arrangements should be made for deliveries of boxed information.

    Instructions: Direct your comments to Docket ID no. EPA-HQ-SFUND-2002-0001. The http://www.regulations.gov website is an “anonymous access” system, which means EPA will not know your identity or contact information unless you provide it in the body of your comment. If you send an email comment directly to EPA without going through http://www.regulations.gov, your email address will be automatically captured and included as part of the comment that is placed in the public docket and made available on the internet. If you submit an electronic comment, EPA recommends that you include your name and other contact information in the body of your comment and with any disk or CD-ROM you submit. If EPA cannot read your comment due to technical difficulties and cannot contact you for clarification, EPA may not be able to consider your comment. Electronic files should avoid the use of special characters, any form of encryption, and be free of any defects or viruses.

    Docket: All documents in the docket are listed in the http://www.regulations.gov index. Although listed in the index, some information is not publicly available, e.g., CBI or other information whose disclosure is restricted by statute. Certain other material, such as copyrighted material, will be publicly available only in the hard copy. Publicly available docket materials are available either electronically in http://www.regulations.gov or in hard copy at:

    • U.S. EPA Record Center, attention: Ms. Tina Terrell, Atlanta Federal Center, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. Phone: 404-562-8835. Hours: 8 a.m.-4 p.m., Monday through Friday by appointment only; and

    • New Hanover County Library, 201 Chestnut Street, Wilmington, North Carolina 28401. Phone: 910-798-6391. Hours: 9 a.m.-5 p.m., Monday through Saturday.

    FOR FURTHER INFORMATION CONTACT:

    Samantha Urquhart-Foster, Remedial Project Manager, Remediation and Site Evaluation Branch, Superfund Division, U.S. Environmental Protection Agency, Region 4, 61 Forsyth Street SW, Atlanta, Georgia 30303-8960. Phone: 404-562-8760, email: [email protected]

    SUPPLEMENTARY INFORMATION:

    Table of Contents I. Introduction II. NPL Deletion Criteria III. Deletion Procedures IV. Basis for Site Deletion I. Introduction

    EPA Region 4 announces its intent to delete the Reasor Chemical Company Superfund Site from the National Priorities List (NPL) and requests public comment on this proposed action. The NPL constitutes Appendix B of 40 CFR part 300 which is the National Oil and Hazardous Substances Pollution Contingency Plan (NCP), which EPA promulgated pursuant to section 105 of the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA) of 1980, as amended. EPA maintains the NPL as the list of sites that appear to present a significant risk to public health, welfare, or the environment. Sites on the NPL may be the subject of remedial actions financed by the Hazardous Substance Superfund (Fund). As described in 40 CFR 300.425(e)(3) of the NCP, sites deleted from the NPL remain eligible for Fund-financed remedial actions if future conditions warrant such actions.

    EPA will accept comments on the proposal to delete this site for thirty (30) days after publication of this document in the Federal Register.

    Section II of this document explains the criteria for deleting sites from the NPL. Section III discusses procedures that EPA is using for this action. Section IV discusses the Reasor Chemical Company Superfund Site and demonstrates how it meets the deletion criteria.

    II. NPL Deletion Criteria

    The NCP establishes the criteria that EPA uses to delete sites from the NPL. In accordance with 40 CFR 300.425(e), sites may be deleted from the NPL where no further response is appropriate. In making such a determination pursuant to 40 CFR 300.425(e), EPA will consider, in consultation with the State, whether any of the following criteria have been met:

    i. Responsible parties or other persons have implemented all appropriate response actions required;

    ii. all appropriate Fund-financed response under CERCLA has been implemented, and no further response action by responsible parties is appropriate; or

    iii. the remedial investigation has shown that the release poses no significant threat to public health or the environment and, therefore, the taking of remedial measures is not appropriate.

    III. Deletion Procedures

    The following procedures apply to deletion of the Site:

    (1) EPA consulted with the State before developing this Notice of Intent to Delete;

    (2) EPA has provided the State 30 working days for review of this notice prior to publication of it today;

    (3) In accordance with the criteria discussed above, EPA has determined that no further response is appropriate;

    (4) The State of North Carolina, through the NCDEQ, has concurred with deletion of the Site from the NPL.

    (5) Concurrently with the publication of this Notice of Intent to Delete in the Federal Register, a notice is being published in a major local newspaper, the Wilmington Star-News. The newspaper notice announces the 30-day public comment period concerning the Notice of Intent to Delete the site from the NPL.

    (6) The EPA placed copies of documents supporting the proposed deletion in the deletion docket and made these items available for public inspection and copying at the Site information repositories identified above.

    If comments are received within the 30-day public comment period on this document, EPA will evaluate and respond appropriately to the comments before making a final decision to delete. If necessary, EPA will prepare a Responsiveness Summary to address any significant public comments received. After the public comment period, if EPA determines it is still appropriate to delete the Site, the Regional Administrator will publish a final Notice of Deletion in the Federal Register. Public notices, public submissions and copies of the Responsiveness Summary, if prepared, will be made available to interested parties and in the site information repositories listed above.

    Deletion of a site from the NPL does not itself create, alter, or revoke any individual's rights or obligations. Deletion of a site from the NPL does not in any way alter EPA's right to take enforcement actions, as appropriate. The NPL is designed primarily for informational purposes and to assist EPA management. Section 300.425(e)(3) of the NCP states that the deletion of a site from the NPL does not preclude eligibility for future response actions, should future conditions warrant such actions.

    IV. Basis for Site Deletion

    The following information provides EPA's rationale for deleting the Site from the NPL:

    Site Background and History

    The Reasor Chemical Company Site (EPA ID: NCD986187094) is located at 5100 North College Road (Hwy. 132), in Castle Hayne, New Hanover County, North Carolina. Castle Hayne is approximately 13 miles north of Wilmington, NC. The site is an abandoned stump rendering facility, which operated from 1959 to 1972 under the name of Reasor Chemical Company. The site property consists of one parcel of 25.59 acres. A fire and possible explosion occurred on the property on April 7, 1972, which damaged and destroyed the remaining buildings and material on the site property. The property currently is unused, unoccupied, and covered with native brush and secondary growth forest.

    The former Reasor Chemical Company reportedly produced turpentine, pine resin, pitch, tall oil, pine oil, camphor, pine tar, and charcoal from pine tree stumps. It is believed that the facility used various solvents to extract raw product from chipped stumps, distilling the extract into separate product fractions. The solvents used in the extraction process were likely stored on-site in 55-gallon drums, the remains of which were in a surface drum disposal area near the center of the property. It is thought that four of the five onsite ponds were used in the manufacturing process. Those four ponds contained sediments with elevated concentrations of volatile organic compounds (VOCs), semi-volatile organic compounds (SVOCs) including polycyclic aromatic hydrocarbons (PAHs), and inorganic compounds. An area thought to have been used to store scrap copper metal was also present, which had elevated concentrations of copper and lead.

    EPA proposed listing the site on the NPL on September 13, 2001 (66 FR 47612), and finalized the listing on September 5, 2002 (67 FR 56757). The property is currently undeveloped. The Site is currently zoned industrial.

    Remedial Investigation and Feasibility Study (RI/FS)

    During 1996 through 2002, Roy F. Weston, Inc. (WESTON) performed the Remedial Investigation/Feasibility Study (RI/FS) for EPA. During 2000 through 2002, EPA Region 4's Science and Ecosystem Support Division (SESD) completed the Ecological Risk Assessment (ERA). Investigations at the site revealed the presence of metals, VOCs, and SVOCs above risk-based screening values.

    The human health risk assessment identified risks for potential future on-site workers and residents. These risks were primarily associated with drinking shallow groundwater and ingestion of or dermal contact with soils. The ecological risk assessment indicated that risks were posed to ecological receptors from contact with or ingestion of surface water, soil, and sediment.

    Selected Remedy

    EPA's Record of Decision (ROD) was signed on September 26, 2002, and the North Carolina Department of Environment and Natural Resources, (now known as the North Carolina Department of Environmental Quality (NCDEQ)), concurred with the selected remedy. EPA revised the remedy in a ROD Amendment dated June 1, 2007. The amended selected remedy included the following:

    Soil and sediment: Excavation and off-site disposal, backfill the excavated soil areas and vegetate with native plant species, and return the former ponds to wetland habitats.

    Surface water: On-site treatment and disposal.

    Groundwater: Backfill the drum disposal area with an alkaline substance to raise the pH of shallow groundwater, perform annual monitoring of groundwater to determine if contaminants of concern (COCs) continue to be elevated, and attach a “Declaration of Perpetual Land Use Restrictions” to the property title that prohibits the use of shallow groundwater for any purpose.

    The Remedial Action Objectives (RAOs) for the site were:

    Sediment: Prevent further migration of contaminants from sediment to groundwater and surface water above levels exceeding groundwater and surface water clean-up goals; eliminate exposure of ecological receptors to contaminated sediment; achieve ecological risk-based sediment clean-up goals for: Methyl ethyl ketone, toluene, (3 and/or 4)-methylphenol, total PAHs, and copper.

    Surface water: Prevent further migration of contaminants above clean-up goals from Ponds 1, 2, 3 and 4, to soil, groundwater and down-gradient surface water bodies; eliminate exposure to contaminated surface water above levels exceeding clean-up goals by aquatic receptors; achieve the North Carolina Surface Water Quality Standards (NCAC Title 15A, Chapter 2, Subchapter 2B.0100 and 2B.0200) in Ponds 1, 2, 3 and 4 for: Copper, lead, iron and zinc.

    Soil: Prevent further migration of contaminants from soil to groundwater and surface water above levels exceeding groundwater and surface water clean-up goals; eliminate unacceptable risk to human health and the environment; achieve the human health and ecological risk based clean-up goals for: Benzo(a)pyrene, benzo(b &/or k)fluoranthene, dibenzo(a,h) anthracene, antimony, copper and lead.

    Groundwater: Prevent human consumption of contaminated groundwater until risk-based standards for aluminum, and Safe Drinking Water Act's Maximum Contaminant Levels (MCLs) for beryllium, chromium and nickel, are attained.

    Response Actions

    The Remedial Design (RD) was completed by EPA between September 2002 and January 2004. EPA and the Potentially Responsible Parties (PRPs) entered a Consent Decree in which the PRPs agreed to conduct the Remedial Action (RA). The PRPs began the RA on June 4, 2007 utilizing the remedial actions outlined in the 2007 ROD Amendment. Apex Companies, LLC (Apex) was retained by the PRPs and performed all the of the RA work described below. The RA for soil, sediment and surface water was completed in July 2007 and the Preliminary Close-Out Report was issued in September 2007. The Interim Remedial Action and Final Remediation Report, Revision 3, was issued in August 2008.

    Approximately 140,000 gallons of contaminated water was treated and discharged on site. Approximately 2,000 tons of contaminated soils and sediments were excavated and disposed of in off-site landfills. After excavation and confirmation sampling, the ponds were allowed to naturally refill with water and vegetate. The soil excavation areas were backfilled and allowed to naturally vegetate. Lime was applied in the area of monitoring wells MW-7S and MW-7D in order to increase the groundwater pH. Increasing the pH of groundwater is intended to lower concentrations of metals in the groundwater in this area. Institutional controls in the form of a Declaration of Perpetual Land Use Restriction were filed with the property deed in 2008.

    Annual sampling of groundwater monitoring wells MW-7S and MW-7D was performed when appropriate pH and turbidity levels permitted. Collection of samples for laboratory analysis was only required if the pH was between 7.2 and 8.5 using best efforts to reduce turbidity. Annual sampling events were attempted on February 11, 2008, January 28, 2009, December 7, 2009, and November 2, 2010. However, samples were not collected during any of the annual sampling events due to pH conditions recorded below 7.2 units.

    Apex returned to the site on May 18, 2011, to complete a groundwater sampling event in accordance with the Amended ROD, which stated that regardless of the pH levels, samples were to be collected within five years after initiation of remedial action. The sampling event was conducted with the intent that EPA could determine if the clean-up goals had been achieved.

    Based on the groundwater quality results from the May 18, 2011, sampling event, remedial actions had been successful in achieving the cleanup goals for beryllium and nickel in groundwater. However, elevated concentrations of aluminum and chromium were still present above the cleanup goals. Based on past groundwater sampling results at the site, there is a direct correlation between low sample pH, high sample turbidity, and elevated metal concentrations. Apex returned to the site on November 12, 2012, to sample for metals in MW-7D and MW-7S, collecting both an unfiltered and filtered sample to address turbidity. Due to a malfunctioning pump at MW-7S, only MW-7D could be sampled on November 12, 2012. Elevated concentrations of aluminum and chromium were still present above the Amended ROD RAOs established for the site in the unfiltered sample; however, metal concentrations were below Amended ROD RAOs established for the site in the filtered sample.

    Apex conducted groundwater assessment activities at the site in December 2015 and January 2016 to fulfill the requirements of the Amended ROD. The activities included the advancement of two groundwater monitoring wells installed immediately adjacent to MW-7D and MW-7S, in addition to the collection and analysis of groundwater samples, both filtered and unfiltered.

    Replacement wells MW-7SR and MW-7DR were installed to address elevated turbidity levels. It was suspected that there could have been some damage to the existing well screens which resulted in the influx of sediment. Quarterly sampling was conducted at MW-7SR and MW-7DR. Results indicated that the COCs are not present at concentration at or above applicable Amended ROD clean up goals. Based on the cancer slope factor and oral reference dose for hexavalent chromium being more stringent, chromium was speciated during the January 2016 sampling event and was not detected above laboratory detection limits in either MW-7SR or MW-7DR.

    It was determined that hexavalent chromium is not a COC and concentrations of total chromium are also below the Amended ROD clean up goals. Apex completed the Final Remedial Action Report Addendum in November 2017.

    As prescribed in the 2007 Amended ROD, institutional controls (ICs) were implemented in September 2008 with the placement of a Declaration of Perpetual Land Use Restrictions (DPLUR) on the property deed. The DPLUR requires annual notification to NCDEQ and EPA confirming that the DPLUR is still recorded in the Office of the New Hanover County Register of Deeds and that activities and conditions at the site remain in compliance with the land use restrictions. The land use restrictions in the DPLUR state that groundwater from the surficial aquifer underlying the site may not be used for any purpose. Groundwater located beneath the confining layer shall not be used as a source of potable water. Any groundwater well or other device for access to groundwater for any purpose other than monitoring groundwater quality must include an isolation seal between the surficial aquifer and the Peedee Formation aquifer located below. The installation of groundwater wells or other devices for access to groundwater for any purpose other than monitoring groundwater quality requires prior approval by NCDEQ, or its successor in function. The owner(s) of the property must provide written notification to EPA prior to seeking approval from NCDEQ for the installation of groundwater wells.

    Cleanup Levels

    Cleanup goals were established to achieve a 10 −5 (one in 100,000) excess carcinogenic risk level for potential future resident children (most conservative risk category evaluated) and/or a hazard quotient (HQ) of 1 for potential resident children or ecological receptors.

    Surface Water: Although the treatment system did not reduce contaminant concentrations in surface water to below cleanup goals during its operation in 2007, the RAOs were achieved for the following reasons:

    • Migration of and aquatic receptor exposure to contaminated surface water was halted by

    ○ treating all surface water in ponds and land applying treated water;

    ○ excavating contaminated soils to residential cleanup standards;

    ○ excavating contaminated sediments to ecological cleanup goals and placing 18 to 60 inches of non-contaminated soil over the base of the excavated ponds; and

    ○ allowing the ponds to refill naturally.

    Soil: Cleanup goals specified in the 2007 ROD Amendment for soil were attained.

    All confirmation sample results from the soil excavation areas were below the ROD-specified cleanup goals.

    Sediment: Ten samples were collected and analyzed to determine if cleanup goals were met in the four sediment excavation areas. Six confirmation samples were collected from the four excavated ponds in June 2007. One sample was a duplicate of another sample in Pond 3. The duplicate sample result was within the same order of magnitude as the sample from which it was split. Because the laboratory detection limits for (3 and/or 4)-methylphenol and methyl ethyl ketone (also known as butanone) were higher than the cleanup goals, the four ponds were resampled in August 2007 and analyzed for these two COCs.

    Cleanup goals for toluene and copper were attained in all four ponds. The cleanup goal for methyl ethyl ketone (also known as 2-butanone) was attained in ponds 1-3, and possibly pond 4. The original confirmation sample collected in June 2007 from pond 4 had a concentration less than the laboratory reporting limit of 100 micrograms per kilogram (µg/kg), which is less than the cleanup goal established in the 2007 ROD Amendment. However, the sample collected in pond 4 in August 2007 did not have a detectable concentration of methyl ethyl ketone but the laboratory detection limit (268 µg/kg) was greater than the cleanup goal of 137 µg/kg. Methyl ethyl ketone was not detected in any of the ponds. All ponds had at least one sample which had a laboratory detection limit that was lower than the cleanup goal.

    All samples collected from the excavated ponds had concentrations of (3 and/or 4)-methylphenol above cleanup goals or the laboratory detection limit was greater than the cleanup goal. The low-level presence of (3 and/or 4)-methylphenol in the soil does not present a significant risk to human health or the environment, and further sampling and assessment is not needed for the following reasons:

    • Methylphenol is a naturally occurring substance. Cresols (methylphenols) are found in many foods and in wood in this region of North Carolina. The contaminant presence at low-levels may be naturally occurring and not site-related.

    • The impacted soil was removed from the lagoons and capped with 18 to 60 inches of clean fill. Therefore, the surface water within the lagoons is not in direct contact with impacted soil.

    • The ROD clean-up goal of 50 µg/kg for (3 and/or 4)-methlyphenol was established based on ecological risk, not human health risk. Any residual contamination is at depths greater than 18 inches, and therefore there is no exposure route for ecological receptors. There is no obvious or adverse impact to the ecology within the lagoons as observed through the thriving aquatic flora and fauna present within lagoons over the last 11 years, since the time the lagoons were remediated in 2007.

    • The concentrations present in the soil are below the EPA Regional Screening Levels (RSLs) for residential soils for methylphenol of 3,200 milligrams per kilogram (mg/kg), which is protective of human health.

    The RAOs were achieved for the following reasons:

    • All confirmatory samples obtained from ponds 1-4 were collected from each basin's clay liner.

    • Each basin was subsequently capped with 18 inches to 60 inches of clean soil backfill.

    • The RAs performed removed the contaminated ecological exposure medium, sediment, and subsequently capped the underlying clay liner with clean soil, thereby eliminating the ecological exposure pathway for sediments in the ponds and exposure to remaining residual levels in the clay layer, and thus any associated risk.

    Soil or sediment samples have not been collected since the RA. For the soil excavation areas, restoration included backfilling with soil, grading the areas to provide drainage away from the areas, revegetation with native rye grass and spreading of wood chips over the area for erosion control. Pond restoration consisted of backfilling a portion of the ponds, covering the banks of the excavation and surrounding disturbed areas with straw matting for erosion control, and seeding with native rye grass. During the final site inspection conducted in April 2017, it was observed that the excavation areas are now restored with native brush and secondary growth forest.

    Groundwater: No COCs were detected at concentrations above the Amended ROD clean up goals in either sample MW-7DR or MW-7SR during 2016 quarterly groundwater sampling. The detected concentrations of these compounds are generally significantly less than the concentrations previously identified in groundwater samples collected at the Site in May 2011 and November 2012. Aluminum, beryllium, chromium, and nickel were either detected at estimated concentrations that are below the applicable criteria, or were not detected above laboratory detections limits in both the filtered and unfiltered samples.

    Due to the low turbidity of the samples, the concentrations reported for both filtered and unfiltered samples were very similar. In addition to the reductions in the observed concentrations of the COCs, the pH values were also higher than historic values. The pH was measured at 3.81 in MW-7SR versus historic values ranging from 2.31 to 3.55 in MW-7S. The pH of the sample collected at MW-7DR was 6.47 versus historic values measured as low as 3.21.

    In addition, pH values measured in the newly installed wells are similar to other sites in the Castle Hayne area. Based on the findings of the January 2016 sampling event, Apex conducted three additional quarterly sampling events in April, July, and October 2016 to obtain sufficient data for site closure. During these quarterly sampling events, since the January 2016 sampling results demonstrated that hexavalent chromium was not a COC, the samples were only analyzed for total chromium.

    The monitoring data demonstrates that remedial action objectives and cleanup levels specified in the 2007 ROD Amendment are achieved. There are no additional monitoring or Operations and Maintenance of the remedy required.

    Five-Year Reviews

    The purpose of a five-year review (FYR) is to evaluate the implementation and performance of a remedy to determine if the remedy is and will continue to be protective of human health and the environment. In addition, FYR reports identify issues found during the review, if any, and document recommendations to address them. EPA completed two policy FYRs for the site in September 2012 and September 2017. The 2017 FYR determined that the remedy was protective of human health and the environment, and there were no issues or recommendations. The 2017 FYR concluded that no further FYRs are planned for the site because all impacted media have reached Unlimited Use/Unrestricted Exposure (UU/UE) categorization.

    Community Involvement

    EPA has communicated with the public through Fact Sheets, meetings, internet postings, newspaper ads, and answering email and phone inquiries. Current Site information can be found at https://cumulis.epa.gov/supercpad/cursites/csitinfo.cfm?id=0405590.

    Public participation activities have been satisfied as required in CERCLA Section 113(k), 42 U.S.C. 9613(k) and CERCLA Section 117, 42 U.S.C. 9617. Documents in the deletion docket, which the EPA relied on for recommendation of the deletion from the NPL, are available to the public in the information repositories identified above.

    Determination That the Site Meets the Criteria for Deletion in the NCP

    Region 4 has followed the procedures required by 40 CFR 300.425(e) as mentioned above and the implemented remedy achieves the degree of cleanup specified in the ROD for all pathways of exposure. The information presented in the Final Close-Out Report verifies that the site has achieved the ROD Amendment's RAOs, and that all cleanup actions specified in the ROD Amendment were implemented. All selected remedial action objectives and associated cleanup levels are consistent with agency policy and guidance. This site meets all the site completion requirements as specified in Office of Solid Waste and Emergency Response (OSWER) Directive 9320.22, Close-Out Procedures for National Priorities List Sites. No further Superfund response is needed to protect human health and the environment.

    List of Subjects in 40 CFR Part 300

    Environmental protection, Air pollution control, Chemicals, Hazardous waste, Hazardous substances, Intergovernmental relations, Penalties, Reporting and recordkeeping requirements, Superfund, Water pollution control, Water supply.

    Authority:

    33 U.S.C. 1321(d); 42 U.S.C. 9601-9657; E.O. 13626, 77 FR 56749, 3 CFR, 2013 Comp., p. 306; E.O. 12777, 56 FR 54757, 3 CFR, 1991 Comp., p. 351; E.O. 12580, 52 FR 2923, 3 CFR, 1987 Comp., p. 193.

    Dated: July 17, 2018. Onis “Trey” Glenn, III, Regional Administrator, Region 4.
    [FR Doc. 2018-16244 Filed 7-30-18; 8:45 am] BILLING CODE 6560-50-P
    FEDERAL COMMUNICATIONS COMMISSION 47 CFR Chapter I [CB Docket No. 18-31; DA 18-115] Possible Revision or Elimination of Rules AGENCY:

    Federal Communications Commission.

    ACTION:

    Review of regulations; comments requested.

    SUMMARY:

    This document invites members of the public to comment on the Commission's rules to be reviewed pursuant to section 610 of the Regulatory Flexibility Act of 1980, as amended (RFA). The purpose of the review is to determine whether Commission rules whose ten-year anniversary dates are in the years 2015-2016, as contained in the Appendix, should be continued without change, amended, or rescinded in order to minimize any significant impact the rules may have on a substantial number of small entities. Upon receipt of comments from the public, the Commission will evaluate those comments and consider whether action should be taken to rescind or amend the relevant rule(s).

    DATES:

    Comments may be filed on or before October 29, 2018.

    FOR FURTHER INFORMATION CONTACT:

    Sharon K. Stewart, Women's Outreach Specialist, Office of Communications Business Opportunities (OCBO), Federal Communications Commission, (202) 418-0990. People with disabilities may contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: [email protected] or phone: 202-418-0530 or TTY: 202-418-0432.

    ADDRESSES:

    You may submit comments, identified by CB Docket No. 18-31, by any of the following methods:

    Federal Communications Commission's Website: http://apps.fcc.gov/ecfs//. Follow the instructions for submitting comments.

    People with Disabilities: Contact the FCC to request reasonable accommodations (accessible format documents, sign language interpreters, CART, etc.) by email: [email protected] or phone: 202-418-0530 or TTY: 888-835-5322.

    For detailed instructions for submitting comments and additional information on the rulemaking process, see the SUPPLEMENTARY INFORMATION section of this document.

    SUPPLEMENTARY INFORMATION:

    Each year the Commission will publish a list of ten-year old rules for review and comment by interested parties pursuant to the requirements of section 610 of the RFA.

    Synopsis

    1. Pursuant to the Regulatory Flexibility Act (RFA), see 5 U.S.C. 610, the FCC hereby publishes a plan for the review of rules adopted by the agency in calendar years 2005-2006 which have, or might have, a significant economic impact on a substantial number of small entities. The purpose of the review is to determine whether such rules should be continued without change, or should be amended or rescinded, consistent with the stated objective of section 610 of the RFA, to minimize any significant economic impact of such rules upon a substantial number of small entities.

    2. This document lists the FCC regulations to be reviewed during the next twelve months. In succeeding years, as here, the Commission will publish a list for the review of regulations promulgated ten years preceding the year of review.

    3. In reviewing each rule in a manner consistent with the requirements of section 610, the FCC will consider the following factors:

    (a) The continued need for the rule;

    (b) The nature of complaints or comments from the public concerning the rule;

    (c) The complexity of the rule;

    (d) The extent to which the rule overlaps, duplicates, or conflicts with other federal rules and, to the extent feasible, with state and local governmental rules; and

    (e) The length of time since the rule has been evaluated or the degree to which technology, economic conditions, or other factors have changed in the area affected by the rule.

    4. Appropriate information has been provided in the Appendix for each rule, as chosen for review by the FCC according to the requirements of section 610, including a Brief Description of the rule and the need for, and Legal Basis of, the rule. The public is invited to comment on these rules, and all relevant and timely comments will be considered by the FCC before final action is taken in this proceeding.

    5. Pursuant to sections 1.415 and 1.419 of the Commission's rules, 47 CFR 1.415, 1.419, interested parties may file comments and reply comments on or before the dates indicated on the first page of this document. Comments may be filed using the Commission's Electronic Comment Filing System (ECFS). See Electronic Filing of Documents in Rulemaking Proceedings, 63 FR 24121 (1998).

    Electronic Filers: Comments may be filed electronically using the internet by accessing the ECFS: http://apps.fcc.gov/ecfs/.

    Paper Filers: Parties who choose to file by paper must file an original and one copy of each filing. If more than one docket or rulemaking number appears in the caption of this proceeding, filers must submit two additional copies for each additional docket or rulemaking number. Filings can be sent by hand or messenger delivery, by commercial overnight courier, or by first-class or overnight U.S. Postal Service mail. All filings must be addressed to the Commission's Secretary, Office of the Secretary, Federal Communications Commission.

    All hand-delivered or messenger-delivered paper filings for the Commission's Secretary must be delivered to FCC Headquarters at 445 12th St. SW, Room TW-A325, Washington, DC 20554. The filing hours are 8:00 a.m. to 7:00 p.m. All hand deliveries must be held together with rubber bands or fasteners. Any envelopes and boxes must be disposed of before entering the building.

    Commercial overnight mail (other than U.S. Postal Service Express Mail and Priority Mail) must be sent to 9050 Junction Drive, Annapolis Junction, MD 20701.

    U.S. Postal Service first-class, Express, and Priority mail must be addressed to 445 12th Street SW, Washington, DC 20554.

    People with Disabilities: 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).

    6. The proceeding this Notice initiates shall be treated as a “permit-but-disclose” proceeding in accordance with the Commission's ex parte rules.1 Persons making ex parte presentations must file a copy of any written presentation or a memorandum summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentation must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter's written comments, memoranda or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with rule 1.1206(b). In proceedings governed by rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission's ex parte rules.

    1 47 CFR 1.1200 et seq.

    7. For information on the requirements of the RFA, the public may contact Sharon K. Stewart, Women's Outreach Specialist, Office of Communications Business Opportunities, 202-418-0990 or visit www.fcc.gov/ocbo.

    Federal Communications Commission. Sanford S. Williams, Director, Office of Communications Business Opportunities.

    List of rules for review pursuant to the Regulatory Flexibility Act of 1980, 5 U.S.C. Section 610, for the ten-year period beginning in the year 2005 and ending in the year 2006. All listed rules are in title 47 of the Code of Federal Regulations.

    PART 1—PRACTICE AND PROCEDURE Subpart E—Complaints, Applications, Tariffs, and Reports Involving Common Carriers

    Brief Description: Section 1.767 sets forth the application filing requirements for submarine cable landing licenses. Section 1.768 sets forth the notification and prior approval requirements for submarine cable landing licensees that are or propose to become affiliated with a foreign carrier.

    Need: The rules are needed to implement the Commission's policies that facilitate the expansion of capacity and facilities-based competition in the submarine cable market. These measures are designed to enable international carriers to respond to the demands of the market with minimal regulatory oversight and delay, saving time and resources for both the industry and government, while preserving the Commission's ability to guard against anticompetitive behavior.

    Legal Basis: 47 U.S.C. 151, 154(i), 154(j), 155, 225, 303(r), 309 and 325(e).

    Section Number and Titles:

    1.767(a), (a)(5), (a)(7)-(11), (g)-(n) Cable landing licenses. 1.768, (h)-(j) Notification by and prior approval for submarine cable landing licensees that are or propose to become affiliated with a foreign carrier. Subpart F—Wireless Radio Services Applications and Proceedings

    Brief Description: Part 1 states the general rules of practice and procedure before the Federal Communications Commission. Subpart F sets forth the requirements and conditions under which entities may be licensed in the Wireless Radio Services as described in parts 1, 13, 20, 22, 24, 26, 27, 74, 80, 87, 90, 95, 97 and 101.

    Need: These recodifications of Part 22 rules (1.958 and 1.959) establish the required distance and terrain elevation calculation methods applicable to all Wireless Radio Services (except Parts 21 and 101) (Parts 1, 20, 22, 24, 27, 80 87, 90, 95, and 97); implement the Commission's policies with regard to the processing of applications (1.913(a)(6) and 1.919(b)(5)) and the protection of Federal Government operations (1.924(e)); and revise the procedures for the amateur service vanity call sign system (1.934(d)(5)). The need for these rules is ongoing.

    Legal Basi